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to do with respect to them, and all that could be legally done under the compact, was to identify the sections by appropriate surveys; . . They could not be diverted from their appropriation to the State.

    "In Cooper v. Roberts, 18 How. 173, this court gave construction to a similar clause in the compact upon which the State of Michigan was admitted into the Union, and held, after full consideration, that by it the State acquired such an interest in every section 16 that her title became perfect so soon as the section in any township was designated by the survey."

    Congress thus cannot impair the title to lands granted to the State of Alaska by Section 6 by the imposition of the two percent royalty urged by the Alaskan Natives.

DISPOSITION OF PROCEEDS DERIVED FROM
MINERAL DEPOSITS--LANDS IN OKLAHOMA
PURCHASED FOR CHOCTAW TRIBE

76 I.D. 313

M-36791                                                                                                                         October 31, 1969.

Indian Reorganization Act--Acts of June 18, 1934, ch. 576, 48 Stat. 984; and of June 26, 1936, ch. 831, 49 Stat. 1967--Indian Lands: Sub-surface Estates--Indian Lands: Tribal Lands--Indian Tribes: Fiscal and Financial Affairs

The proviso clause of Section 7 of the Act of June 26, 1936, ch. 831, 49 Stat. 1967 (which requires proceeds from mineral deposits underlying lands purchased with funds appropriated pursuant thereto be credited to a special revenue account for use in acquiring lands for and making loans to Indians in Oklahoma), is applicable only to proceeds from mineral deposits underlying lands for which the consideration was derived from such appropriated funds; accordingly, lands acquired by gift or purchased with tribal funds are not subject to that proviso.

To the extent that offsets, which were claimed by the United States for sums paid to or on behalf of the Choctaw Nation as reflected by a stipulation approved by the Indian Claims Commission in Docket No. 16 on July 14, 1950, represented funds used to acquire trust title to parcels of land for the Choctaw Tribe pursuant to the Acts of June 13, 1934, ch. 576, 48 Stat. 984, and of June 26, 1936, ch. 831, 49 Stat. 1967, the proceeds from the mineral deposits underlying said parcel, arising from exploration of such lands for minerals on and after July 14, 1950, have been since that date and now are properly creditable to the tribe instead of the special revenue account established, pursuant to Section 7 of said 1936 Act, for use in acquiring lands for, and making loans to, Indians in Oklahoma.

Indian Reorganization Act--Acts of June 18, 1934; ch. 576, 48 Stat. 984; of June 26, 1936, ch. 831, 49 Stat. 1967; and of August 25, 1959, Pub. I., No. 86-192, 73 Stat. 420--Indian Lands: Sub surface Estates--Indian Lands: Tribal Lands Indian Tribes: Fiscal and Financial Affairs--Indians: Termination of Status

To the extent that the proviso clause of Section 7 the Act of June 26, 1936, ch. 831, 49 Stat. 1967 (which requires that proceeds from mineral deposits underlying lands purchased with funds appropriated pursuant thereto be credited to a special revenue account for use in acquiring lands for and making loans to Indians in Oklahoma), was, on the date of enactment of the Act of August 25, 1959, Pub. L. No. 86-192, 73 Stat. 420 (Choctaw Termination Act), applicable to proceeds from such parcels theretofore purchased in trust for the Choctaw Tribe, said proviso remained applicable thereto upon enactment of the latter statute, inasmuch as the purpose of the latter statute was to discontinue earlier statutory authorization to acquire additional parcels of land for the Choctaw Tribe and its members, but did not have the effect of altering the status of lands theretofore acquired under such authority.

Memorandum

To:            Area Director, Bureau of Indian Affairs, Muskogee
From:        Regional Solicitor, Tulsa Region
Subject:     Disposition of proceeds from royalties, bonuses, and other revenues derived from
                 mineral deposits underlying lands purchased in Oklahoma for the Choctaw Tribe
                 under authority of the Act of June 26, 1936, ch. 831, 49 Stat. 1967

    This responds to your requests for advice concerning the above subject. The first section of the Act of June 25, 1936, supra (hereinafter referred to as the 1936 Act), provides:

"That the Secretary of the Interior is hereby authorized, in his discretion, to acquire . . . lands . . . Title to all lands so acquired shall be taken in the name of the United States, in trust for the tribe . . . for whose benefit such land is so acquired. . . ."

Section 7 of this act further provides:

"All funds appropriated under the several grants of authority contained in the Act of June 18, 1934 (48 Stat. 984), are hereby made available for use under the provisions of this Act, and Oklahoma Indians shall be accorded and allotted a fair and just share of any and all funds hereafter appropriated under the authorization herein set forth: Provided, That any royalties, bonuses, or other revenues derived from mineral deposits underlying lands purchased in Oklahoma under the authority granted by this Act . . . shall be deposited in the Treasury of the United States, and such revenues are hereby made available for expenditure by the Secretary . . . for the acquisition of lands and for loans to Indians in Oklahoma as authorized by this Act and by the Act of June 18, 1934 (48 Stat. 984) ." [Emphasis supplied]

    Funds appropriated pursuant to the statutes cited above were used to purchase various parcels of land in Oklahoma, which were conveyed to the United States in trust for the Choctaw Tribe. Royalties, bonuses, and other revenues derived from mineral deposits underlying some of these lands have been collected by the Bureau of Indian Affairs. Such revenues as originally accrued from such sources have properly been credited to the special revenue account in the Treasury of the United States, as authorized by the quoted Section 7 of the 1936 Act, for use in acquiring lands for, and making loans to, Indians in Oklahoma. However, you question the legality of thus crediting revenues which accrued after the date of enactment of the Act of August 25, 1959, Pub. L. No. 86-192, 73 Stat. 420, as amended (hereinafter referred to as the Choctaw Termination Act). The response to your specific question will be furnished herein after consideration has been given to the effect, on the disposition of funds derived from such sources, of certain intervening litigation between the Choctaw Tribe and the United States, which was not mentioned in your requests but became final before enactment of the Choctaw Termination Act, supra.

    It should be noted at the outset that the proviso of Section 7 of the 1936 Act is applicable only to the proceeds from mineral deposits for which the consideration was derived from funds appropriated pursuant to the statutes cited above. Accordingly, lands acquired by gift or purchased with tribal funds would not be subject to that proviso. This conclusion is in accord with the following views expressed in a memorandum of April 23, 1941, written for the Solicitor by W. H. Flanery to the Assistant Secretary, who approved the memorandum on April 25, 1941, and referred it to the Commissioner of Indian Affairs:

"The wording of the proviso indicates that the minerals underlying 'lands purchased in Oklahoma under the authority granted by this Act' belong to the United States and not to the group or individual for which the land is purchased. That this is indeed the purpose of the proviso is shown in the hearings held before the House Committee on Indian Affairs on this act; which was S. 2047. During the hearings held on April 6, 1936, Representative Sam C. Massingale of Oklahoma pointed out that the bill, as then worded, would result in giving the exclusive benefit of minerals found in the subsoil of land purchased under the act to the individual or group for which the land was purchased. He considered that an unjust advantage for those tribes of Indians who were located in the richer parts of Oklahoma as against those tribes who live in districts where there is no oil or other mineral wealth. The Committee thereupon amended the bill at its next meeting on April 8, 1936, so as to insert the proviso to section 7 as it now stands. The purpose of this proviso thus is that mineral wealth found on lands purchased in order to give Indian groups or individuals the use of more agricultural or grazing land should be used for the benefit of all Oklahoma Indians."

"It would appear from this origin of the proviso that it is meant to cover only lands purchased with `funds appropriated under the several grants of authority contained in the Act of June 18, 1934,' and 'made available for use under the provisions of this Act.' This language, which is drawn from the first part of section 7, also would appear to point to the interpretation that the proviso is intended only to see to it that funds of the United States used in the purchase of lands for certain Indians do not unduly enrich these Indians to the exclusion of other Oklahoma Indians. On the other hand, it may be fairly assumed that mineral wealth found on lands acquired by

the United States in trust for Indian individuals or groups, either by gift or by purchase with funds belonging to the Indians for which these lands are being purchased, should belong exclusively to those Indians for whom the United States holds such lands in trust. Under this view, which I think is correct, the mineral rights in the lands involved in the instant case belong to the minor children for whom the United States acquired the land by gift under authority of the Oklahoma Indian Welfare Act."

    It is our understanding that in Docket No. 16 before the Indian Claims Commission, an award was made to the Choctaw Nation in 1950, based on the following computation:

    Although we do not have detailed information concerning the items included in the aforernentioned offsets claimed by the United States, it is quite probable that among the items included therein were sums expended for the purchase of some, or possibly all, of the various parcels of land held by the United States in trust for the Choctaw Tribe. To the extent that such items represented funds used to acquire such parcels of land, the proceeds from mineral deposits underlying said parcels, arising from exploitation of such lands lot minerals on and after July 14, 1950, have been since that date and are now properly creditable to the tribe instead of the special revenue account established pursuant to Section 7 of the 1936 Act. As indicated above, this is true because the proviso of said section is applicable only to the extent that funds of the United States were expended and thereafter continued to be impressed with the characteristics of having been derived from that source. While such lands were impressed with such characteristics from the date of purchase to July 14, 1950, they were freed therefrom upon approval of the stipulated settlement of the claim of the United States against the tribe for reimbursement thereof. In effect, the parcels in this category were purchased for the tribe with its own funds as of July 14, 1950, from which date the proviso of said section was and is inapplicable to those parcels.

    In view of the foregoing, a response to your specific question would relate merely to those parcels of land for which the consideration paid was not included in the offsets claimed in the aforementioned litigation, either because of inadvertence or because of the fact that such parcels were purchased subsequent to the filing of the claim for offsets. If any parcels are held in trust for the tribe and are not within the category mentioned above, it is my opinion that, for the reasons hereinafter stated, the applicability of the proviso of Section 7 of the 1936 Act to the proceeds from the minerals underlying them has continued unchanged and will so continue until such time as such parcels are either sold or conveyed at the request of the tribe pursuant to the Choctaw Termination Act.

    The basic purpose of the Choctaw Termination Act was to complete the disposition of the affairs of the Choctaws. To accomplish this purpose, the first section thereof authorizes and directs the Secretary either to sell or to convey at the request of the tribe to a successor entity created on behalf of the tribe all tribal lands and interests therein (except for the reservation of certain mineral interests not pertinent to the problem here considered). This section contains no language which would indicate that the status of such lands should be altered until the act of sale or conveyance has been accomplished. The only section of this statute which might be interpreted as altering that status prior to sale or conveyance is section 7 thereof, which provides:

"The Act of June 18, 1934 (48 Stat. 984), as amended (25 U.S.C. 461), and the Act of June 26, 1936 (49 Stat. 1967), as amended (25 U.S.C. 501-509), shall not apply to the Choctaw Tribe and its members after the date of enactment of this Act, except that the provisions of section 1 of the Act of June 26, 1936, with respect to taxes on lands that are held by the United States in trust shall continue in effect until the trust is terminated . . ."

    It is my opinion that the purpose of the section last quoted above was merely to discontinue the authorizations contained in the two earlier statutes to acquire additional parcels of land for the Choctaw Tribe and its members in conformity with the basic purpose of the Choctaw Termination Act, and did not have the effect of altering the status of lands theretofore acquired under such authority. This section does not vitiate the proviso of Section 7 of the 1936 Act which designates the uses to which mineral proceeds are to be put for so long as trust title is in the United States.

Approved: Raymond C. Coulter, Deputy Solicitor.

CLASSIFICATION OF PERSONS AS ILLEGITIMATE
FOR PURPOSES OF EXCLUSION FROM TRIBAL
MEMBERSHIP REPUGNANT TO CIVIL
RIGHTS ACT OF 1968

76 I.D. 353

Indian Tribes: Enrollment--Indian Tribes: Membership--Indians: Civil Rights--Indians: Tribal Enrollment--Statutes: Act of April 11, 1968, 82 Stat. 77, 25 U.S.C. § 1302

Where a tribal membership classification of the Jicarilla Apache constitution resulted in excluding illegitimate persons from membership or denied right of such persons to claim the Jicarilla Apache blood of their acknowledged or putative father, such classification was not based upon an essential requirement of an Indian tribe, served no rational purpose and abrogated a fundamental right of membership and was therefore repugnant to the equal protection clause of Section 202, subsection (8), of the Civil Rights Act of April 11, 1968, 82 Stat. 77, 25 U.S.C. § 1302 and void and of no effect.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Legality of provisions of revised constitution of Jicarilla Apache Tribe which would
                 preclude illegitimate children of tribal members from claiming, proving, or including
                 Jicarilla Apache Indian blood derived from mother or putative or acknowledged
                 father in qualifying for tribal membership

    The pertinent provisions (critical portions herein underscored) of Article III of the Revised Constitution are as follows:

Section 1. Membership in the Jicarilla Apache Tribe shall extend to the following persons provided they do not renounce such membership or join another tribe:

*     *     *     *     *

(b). All persons of three-eighths or more Jicarilla Apache Indian blood born in legal wedlock from and after December 15, 1968, whose mother or father is a member of the Jicarilla Apache Tribe

Section 2. Membership in the Jicarilla Apache Tribe may be granted by a three-fourths majority vote of the whole tribal council to any person of three-eighths or more Jicarilla Indian blood who is not affiliated with another tribe. Persons born out of wedlock, from and after December 15, 1968, seeking or granted membership under this section shall be conclusively deemed to have no greater quantum of Jicarilla Apache Indian blood than one-half that amount shown for his or her mother on the official tribal membership roll. (Emphasis added)

    Thus, persons possessing the requisite quantum of Jicarilla Apache blood whose parents were not wed are accorded a status inferior to that of other persons in other respects of the same class.

    Until April of 1968 such action by a tribe was unlikely to be questioned as their acts in dealing with those under their jurisdiction was held not to be subject to restraints of the Federal conrtitution.¹ See Talton v. Mayes, 163 U.S. 376 (1896); Martinez v. Southern Ute Tribe of Southern Ute Res., 249 F.2d 915 (10th Cir. 1957); Barta v. Oglala Sioux Tribe of Pine Ridge Reservation, 259 F.2d 553 (8th Cir. 1958), cert. denied, 358 U.S. 932 (1959); Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959); United States v. Seneca Nation of New York Indians, 274 F. 946 (W.D.N.Y. 1921); Glover v. United States, 219 F. Supp. 19 (D. Mont. 1963); United States v. Blackfeet Tribal Court, 244 F. Supp. 474 (D. Mont. 1965); Dodge v. Nakai, 298 F. Supp. 17 (D. Ariz. 1968); Spotted Eagle v. Blackfeet Tribe, 301 F. Supp. 85 (D. Mont. 1969). That situation was, however, drastically altered by the Act of April 11, 1968, 82 Stat. 77, commonly known as the Civil Rights Act of 1968. Included in that act as Section 202 are the provisions popularly called the Indian Bill of Rights. As codified in 25 U.S.C. § 1302 (Supp. IV, 1965-68), Section 202 reads in pertinent part as follows:

§ 1302 Constitutional Rights.

No Indian tribe in exercising powers of self-government shall--

*     *     *     *     *

(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;

    The question thus raised is whether the denial of or exclusion from membership in the tribe of persons born out of legal wedlock is a proper exclusionary classification under the equal protection clause of the Civil Rights Act of 1968. In my opinion it is not.

    The purpose to be attained in excluding illegitimate issue of tribal members is not stated in the constitution. It appears, however, from the nature of the provision, and we are led to believe from communication with members of the tribal council, that the purpose is to deter sexual promiscuity. Whether classification of persons on the basis of the marital status of their parents is a rational exercise of governmental authority in achieving that purpose in view of other fundamental rights denied by such classification is the crux of the problem.

    It appears evident from the number and tenor of appeals from denials of tribal membership that membership in an Indian tribe is cherished no less by those involved than is that of American citizenship. Tribal membership is as fundamental to Indians as American citizenship is to Americans generally. To an Indian membership in an Indian tribe corresponds to that of citizenship rather than to membership in an organization, fraternity, class, or group.² In early dealings with Indian tribes, members were, indeed, referred to as citizens of those tribes.³ Such designation is more closely correlated with the designation of tribes as "domestic dependent nations." Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515; Choctaw Nation v. United States, 119 U.S. 1; Cherokee Na/ion v. Kansas Railway Company, 135 U.S. 641. Membership of non-Indians in the past as "naturalized citizens" of Indian tribes (see footnote 3, supra) reflects the political nature of Indian tribes; however, recognition given Indians and Indian tribes by the United States Government is in essence a recognition of race.⁴

    Denial of rights of illegitimate persons to membership is not a rational exercise of governmental power in the deterrence of illicit conduct. See Levy v. Louisiana, 391 U.S. 69 (1968). Nor would it be more acceptable were the purpose the deterrence of persons from having children in order to collect an additional share in the distribution of tribal assets. See Glona v. American Guarantee Co., 391 U.S. 73 (1968). There is no substantial basis for support of a premise that exclusion of illegitimate persons from tribal membership would deter sexual promiscuity. And even though the expectation of its effectiveness were high, it is improbable that such an exclusion would be sanctioned by the courts, particularly in view of the fundamental right of membership involved. There are other means of combating illicit conduct available to the tribe in the exercise of its police powers.

____________________

    ¹ But see Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965).
    ² See 3 Am. Jur. 2d § 115 Citizenship: "A 'citizen' in the popular and appropriate sense of the term, is one who, by birth, naturalization, or otherwise, is a member of an independent political society, called a state, kingdom, or empire, and as such subject to its laws and entitled to its protection in all his rights incident to that relation."
    ³ See. e.g.. Act of June 28, 1898, 30 Stat. 495, 502 ("Cherokee *     *     * lawfully admitted to citizenship by the tribal authorities."); Cherokee Intermarriage Cases, 203 U.S. 76 (1906) (Rights of non-Indians "naturalized citizens" of Cherokee Tribe); Robb v. Burney, 168 U.S. 218 (1897) (withdrawal by Chickasaw legislature of citizenship of non-Indians in Chickasaw Nation)
    ⁴ See purposes for Indian Reorganization Act stated in Sen. Rept. No. 1080, 73rd Cong., 2d Sess.

    Where, as here, a membership classification is made not based upon an essential requirement of an Indian tribe, serves no rational purpose, and abrogates other fundamental rights, that classification must be and is considered repugnant to the equal protection clause of Section 202, subsection (8) of the Civil Rights Act of 1968, supra, and therefore void and of no effect.

    A recognition of the substantive right of illegitimate children of tribal members to qualify for membership in the tribe necessarily includes the requirement that the illegitimate child must bear the procedural burden of proving the degree of blood claimed from the acknowledged or putative father. In providing procedures for such proof, it is necessary to keep in mind that the provisions of the due process clause of the tribal constitution as well as the Civil Rights Act of 1968, supra, must be complied with. Dodge v. Nakai, 298 F. Supp. 26, 29 (D. Ariz. 1969). In this regard, whether procedure is provided by ordinance enacted pursuant to Article III, Section 3, or by amendment of Article III, Section 2, we would see no denial of equal protection or due process were the tribe to establish as a rebuttable presumption that an illegitimate child is deemed to possess no greater quantum of Jicarilla Apache blood than one-half of that shown on the official tribal membership roll for his or her mother and, further, permitted the presumption to be rebutted either by oath or affirmation of the father or by determination of paternity by a court of competent jurisdiction.

    In view of the foregoing, the tribe should be advised: first, that the second sentence of Section 2 of Article III from which approval was withheld is now disapproved; second, that the phrase "in legal wedlock" as employed in Section 1, subsection (b) of Article III is void as being repugnant to the equal protection provisions of Section 202 (8) of the Act of April 11, 1968, 82 Stat. 77.

UPPER COLORADO RIVER BASIN--
RESTRICTION ON USE OF UPPER
BASIN WATER IN ARIZONA

76 I.D. 357

M-36799                                                                                                                             December 10, 1969.

The Secretary of the Interior and all other Federal officers and agencies are required by Section 601 (c) of the Colorado River Basin Project Act (Public Law 90-537) to comply with the Upper Colorado River Basin Compact, including the restriction against use for any purpose of Upper Basin water in Arizona in excess of 50,000 acre feet a year.

Water Compacts and Treaties--Indian Water and Power Resources: Generally

To the extent that there are Indian reserved water rights in the Colorado River for use in the Upper Basin portion of Arizona, those rights must be satisfied out of the 50,000 acre-feet a year apportioned to Arizona by the Upper Colorado River Basin Compact.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Navajo Steam Generating Project--use of Colorado River water

    The Bureau of Reclamation and five electric utilities, three investor owned and two public agencies, have completed negotiations and final contract drafts for construction and operation of the Navajo Project for the thermal generation of electric power. The Project will be built on the Navajo Indian Reservation near Page, Arizona, using coal mined on the Reservation and Colorado River water from Lake Powell.

    The Bureau of Reclamation's participation will entitle it to approximately one-fourth of the plant generating capability. This source of electric power has been determined to be the best alternative for supplying pumping power to the Central Arizona Project. The remainder of the plant capability will be used, and is urgently needed, by the other parties to supply immediately projected loads.

    All parties except the United States have signed the basic contracts for the project, and it is now in order for the United States to execute the documents. However, at a meeting with the Congressional delegations of Wyoming and other Upper Basin states on October 29, 1969, objection was raised to the water service contract entered into by Interior with the Salt River Project on January 17, 1969. The Salt River Project is one of the participants in the Navajo Project.

    The water service contract, which runs for a maximum of 40 years, allows the Navajo Project to use up to 34,100 acre-feet a year of Colorado River water. Under Article III of the Upper Colorado River Basin Compact, water used for the Navajo Project must be charged to the 50,000 acre-feet a year of Upper Basin water that has been

apportioned to Arizona under the Compact. Lest there be any doubt as to this, Section 303 (d) of the Colorado River Basin Project Act and Section 6 (a) of the water service contract also specifically provide that water used by the Navajo Project shall be charged to the 50,000 acre-feet a year apportioned to Arizona.

    The objection of the Upper Basin states to the water service contract is based on their assertion that when Indian and other miscellaneous uses of Upper Basin water in Arizona are added to the 34,100 acre-feet a year committed to the Navajo Project, the total demand in Arizona on Upper Basin water will exceed 50,000 acre-feet. They express concern that because of the reserved water rights the Indians arc claimed to have, the Navajo Tribe may be able to insist that the Secretary of the Interior deliver water in excess of the 50,000 acre-feet a year apportioned to Arizona under the Compact.

    There is, in my opinion, no legal basis for this concern. The Upper Colorado River Basin Compact is binding on the Secretary of the Interior, the Indians, and all others, and it flatly precludes total use of Upper Basin water in Arizona in excess of 50,000 acre-feet a year. It does not matter whether the use by the Indians of their reserved water rights is considered a use by the United States for the benefit of the Indians or whether it is considered; a direct use by the Indians themselves; such use must be counted as part of Arizona's total use of Upper Basin water and charged against the 50,000 acre-feet. Article VII of the Compact states specifically:

"The consumptive use of water by the United States of America or any of its agencies, instrumentalities or wards shall be charged as a use by the State in which the use is made . . ."

    Section 601 (c) of the Colorado River Basin Project Act (Public Law 90-537) binds the Secretary of the Interior and all other Federal officers and agencies to comply with the Upper Colorado River Basin Compact "in the storage and release of water from all reservoirs and in the operation and maintenance of all facilities in the Colorado River system under the jurisdiction and supervision of the Secretary, and in the operation and maintenance of all works which may be authorized hereafter for the augmentation of the water supply of the Colorado River systems." No one, therefore, should entertain any doubt about the inviolability of the 50,000 acre-feet limitation.

    However, the representatives of the Upper Basin states point to the Supreme Court decisions in Winters v. United States, 207 U.S. 564 (1908), and Arizona v. California, 373 U.S. 546 (1962), as justifying their concern. As explained in Arizona v. California, the United States at the time of creating the Indian Reservation reserved water rights for the Indians sufficient to irrigate all practicably irrigable acreage on the Reservation. Therefore--it is contended--the United States is under an obligation to make available for Indian use the amount of Colorado River water necessary to satisfy their reserved water rights. If such an obligation exists, it has been preserved by Article XIX of the Compact, which provides that nothing in the Compact shall be construed as affecting "the obligations of the United States of America to Indian tribes."

    Even if the foregoing exposition of Indian reserved water rights is correct, it is not inconsistent with the Compact's absolute limitation on combined uses of Upper Basin water in Arizona. In fact, Article III (b) (4) of the Compact declares that the apportionment to each state includes "all water necessary for the supply of any rights which now exist." It is clear, therefore, that to the extent the Navajo Tribe has reserved water rights in the Upper Basin portion of Arizona, those rights must be satisfied out of the 50,000 acre-feet a year apportioned to Arizona.

    As a practical matter, the water-use experts of the Bureau of Reclamation assure us that the amount of water available--after the 34,100 acre-feet contracted for the Navajo Project is deducted from 50,000 acre-feet apportioned to Arizona--will be adequate to meet the Indians' reasonably foreseeable needs. If this estimate is wrong, the deficiency could be made up, under Article XVII of the Compact, by augmentation through importation of water from another river basin or desalination, for example. But under no circumstances can the Navajo Tribe have any complaint against the United States for having entered into the water service contract. Section 15 of the plant site lease, approved by the Tribe on September 29, 1969, states:

"In consideration of the execution of this Lease and the benefits to the Tribe which shall accrue hereunder, the benefits to the Tribe from the construction and operation of Navajo Units No. I, No. 2 and No. 3 and the benefits to the Tribe from Peabody's mining operations to provide coal fuel for said units, the Tribe agrees that during the term of this Lease or the operating life of the Navajo Generation Station, whichever is the shorter, of the 50,000 acre-feet of water allocated to the State of Arizona pursuant to Article III (a) (1) of the Upper Colorado River Basin Compact

(63 Stat. 31), 34,100 acre-feet of water per year shall at all times be available for consumptive use by Lessees in the operation of the Navajo Generation Station and all other purposes related to such operation including coal transportation and ash disposal. The Tribe agrees the use of water on Reservation Lands within the Upper Basin of Arizona (as said Upper Basin is defined in the Upper Colorado River Basin Compact) shall not reduce or diminish the availability of said 34,100 acre-feet to the Lessees. This agreement shall not be construed in any manner as a waiver by the Tribe of any present or prospective water rights of the Tribe, other than as set forth above."

    In this and other ways, the Navajo Tribe has encouraged the Navajo Project to go forward and the United States to cooperate. As a result of the Project's construction and operation on Navajo lands, including the lease of Navajo coal deposits for use in the Project, the Navajo Tribe will realize substantial profits. The water service contract was an indispensable element in the mosaic of events making this possible, and I do not believe that the Tribe could thus encourage the United States to enter into the contract for water service to the Navajo Project and later be heard to complain because the contract has reduced the availability of Upper Basin water for Indian use in Arizona.

    In sum, the Upper Basin states are protected under the Upper Colorado River Basin Compact and the Navajo Project documents against any infraction of the 50,000 acre-feet a year limit on Arizona use of Upper Basin water. The Project--in addition to supplying the pumping-power needs of the Central Arizona Project and meeting imminent loads of the participating utilities--will provide substantial economic benefits to the Navajo Tribe. It will also serve as a prototype for similar projects to be built at Kaiparowits in Utah and elsewhere. It is our recommendation that you complete execution of the Navajo Project documents.

REPAYMENTS OF EXPERT ASSISTANCE
LOANS

77 I.D. 20

M-36800                                                                                                                                 February 20, 1970.

Indian Tribes: Judgment Funds--Act of November 4, 1963. 77 Stat. 301, 25 U.S.C. sec. 70n-1 et seq.

When a tribe receives separate loans for expert assistance on several claims against the United States, repayment from an award on a claim is only required to the extent needed to repay the loan made for expert assistance on the particular claim on which the award was granted.

Indian Tribes: Judgment Funds--Appropriations

Under the Appropriation Act for the Department of the Interior for fiscal 1970, 83 Stat. 147, there may be paid out of an award of the Indian Claims Commission only the attorney fees and expenses of litigation incurred in obtaining the award, plus expenses for program planning, until other legislation authorizes other use of the award.

Memorandum

To:            Commissioner of Indian Affairs
From:        Deputy Solicitor
Subject:     Repayment of Expert Assistance Loans--Three Affiliated Tribes of Fort Berthold

    The question arises from an award of $1,850,000 recovered by Three Affiliated Tribes of Fort Berthold on June 18, 1969, on its claims numbered 350-A, 350-E, and 350-H. The tribe received a $15,000 expert assistance loan in 350-H, and stands ready to repay it with interest out of the proceeds appropriated to cover the award, Act of December 26, 1969 (83 Stat. 447) . It protests the request of the Aberdeen Area Office, Bureau of Indian Affairs, dated January 9, 1970, that it also repay out of this judgment loans made for expert assistance in four separate claims, numbered 350-B, 350-C, 350-D, and 350-F. In a memorandum of January

14, 1970, while agreeing with the Aberdeen Area Director's interpretation of the law, the Deputy Assistant Commissioner states that the Bureau would not object to "deferring payment" of the other loans "if it is legally permissible to do so."

    1. From the background to the bill, H.R. 11263, 87th Congress, that was the forerunner of the legislation that was finally passed the following year as the Act of November 4, 1963, it is clear that the reason for the bill was a decision by the Indian Claims Commission that contingent fee contracts for expert witnesses were against public policy (see letters from the Secretary to the Chairmen of the House and Senate Interior Committees dated July 12 and 13, 1962, and a memorandum on the Assistant Attorney General's testimony on the bill, dated June 20, 1962). That Congress intended the repayment of assistance loans to depend upon the contingency of recovery which had been the practice with respect to the payment of the fees of the expert witnesses is evident from the language of the 1963 act. For the Congress expressly made the replenishing of the revolving loan fund contingent upon the tribe's recovery on "its claim": "If no judgment is recovered or if the amount of the judgment recovered is inadequate to repay the loan and interest thereon, the unpaid amount may be declared nonrepayable by the Secretary." 25 U.S.C. sec. 70n-4. Consequently, the repayment of each expert witness loan depends upon a recovery on the claim for which the loan was made in an amount which is adequate to repay the loan.

    2. This result is also required by the following provision in the Department of the Interior Appropriation Act for 1970, 83 Stat. 147, under "Bureau of Indian Affairs: Tribal Funds":

[N]othing contained in this paragraph or in any other provision of law shall be construed to authorize the expenditure of funds derived from appropriations in satisfaction of awards of the Indian Claims Commission and the Court of Claims, except for such amounts as may be necessary to pay attorney fees, expenses of litigation, and expenses of program planning, *     *     * (Emphasis supplied)

    There can be no question but that the attorney fees and expenses of litigation are those expenses which have been incurred in obtaining the award for which the judgment fund was appropriated and that the expenses of program planning are the subsequent administrative costs which will be incurred in deciding the use to be made of such judgment funds. Therefore, since the expert assistance rendered in 350-B, 350-C, 350-D, and 350-F cannot be considered an expense of litigation in 350-A, 350-E, or 350-H, the loans made for such assistance in the former claims cannot be repaid out of the award made on the latter three claims.

                                                                                                                    RAYMOND C. COULTER,

BOUNDARIES OF THE FT. BERTHOLD INDIAN
RESERVATION IN NORTH DAKOTA

M-36802                                                                                                                        March 13, 1970.

Boundaries -- Indian Lands: Generally -- Indian Lands: Fee Lands -- Withdrawals and Reservations: Generally -- Withdrawals and Reservations: Revocation and Restoration

The general rule governing changes in reservation boundaries is that when Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress; no authority exists for an administrative change in reservation boundaries. Whether Congress intended to change a reservation boundary by an act would be reflected primarily by the act itself and its legislative history. Sale of land within the boundaries of the Fort Berthold Indian Reservation pursuant to Congressional authority did not change the boundaries nor remove the land from reservation status.

The Act of June 1, 1910, 36 Stat. 455 providing for sale of surplus land within the Fort Berthold Indian Reservation and further providing for additional allotments in a designated portion of the area did not diminish the reservation and change the boundary to the area designated for additional allotments; other provisions of the act manifested an intent that the Indians of Fort Berthold Reservation retained a substantial interest in the area opened to sale and provisions for donation and expenditure of their funds and property were authorized to that end. Authorization for sale of the land within the reservation did not change the boundary of the reservation nor remove the sale area from reservation status.

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Boundaries of the Fort Berthold Indian Reservation in North Dakota 

    By memorandum of September 30, 1969, you requested our comments on an inquiry by Wilkinson,

Cragun & Barker, 1616 H St. N.W., Washington, DC, General Counsel to the Three Affiliated Tribes of the Fort Berthold Reservation in North Dakota, as to the views of this Department on a question of jurisdiction over land formerly owned by the Three Affiliated Tribes and disposed of pursuant to the provisions of the Act of June 1, 1910, 36 Stat. 455.

    A position on this question was taken on July 31, 1962, by John O. Crow, who was then Deputy Commissioner of the Bureau of Indian Affairs. By letter to Martin N. B. Holm, Area Director, Bureau of Indian Affairs, Aberdeen, South Dakota, Mr. Crow concluded that the Fort Berthold Indian Reservation had been diminished by the 1910 act and therefore neither the tribe nor the Federal Government had jurisdiction over the area in question. Cited as authority for that conclusion were comments and characterizations made subsequent to the 1910 act and found in congressional and other documents.

    The general rule governing changes in reservation boundaries as stated in United States v. Celestine, 215 U.S. 278 (1909), was reaffirmed in Seymour v. Superintendent, 380 U.S. 359 (1962). That rule as stated in Celestine at page 285 is:

    [W]hen Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress.

    Sale of land within a reservation by congressional authority does not necessarily change the boundaries or remove the land from reservation status. Seymour v. Superintendent, supra. Congress did not explicitly by the 1910 act provide for a change in the boundary of the Fort Berthold Reservation, therefore if such a change were made it was by implication. Whether such a change was intended by Congress would be reflected primarily by the act itself and by its legislative history.

    The Fort Berthold Indian Reservation was initially established by the Treaty of September 17, 1851. There were subsequent additions to and reductions of the reservation. The boundary which existed in 1910 was that boundary established by Section 23 of the Act of March 3, 1891, 36 Stat. 989, 1032. Congress by that act ratified, accepted and confirmed the 1886 agreement between the Indians of the Fort Berthold Indian Reservation and the United States whereby an area within the 1880 Executive Order boundary of the reservation "lying north of the forty-eighth parallel of north latitude" was ceded, sold, and relinquished to the United States.¹ Thus, the forty-eighth parallel of north latitude became the northern boundary of the reservation as constituted in 1891. Roughly rectangular in area, the reservation was bisected from northwest to southeast by the Missouri River. The 1910 act dealt with the area north and east of the Missouri River. It provided in part:

That the Secretary of the Interior be, and he is hereby, authorized and directed to cause the unsurveyed part of the Fort Berthold Indian Reservation, in the State of North Dakota, to be surveyed, and to sell and dispose of, as hereinafter provided, all the surplus unallotted and unreserved lands within that portion of said reservation lying and being east and north of the Missouri River, *     *     *. (Emphasis added)

    There had been no cession of the area by the Indians as had been done by the 1886 agreement, nor was the sale and disposal area restored to the public domain. Congress specifically disclaimed responsibility to find buyers for the land or to pay for it, except that payment would be made for Sections 16 and 36, or lieu lands, donated to the state for school purposes. The intention of Congress as stated in Section 14 of the act is not indicative of an intent relating to a change in the reservation boundary. That section provides in part:

*     *     * it being the intention of this Act that the United States shall act as trustee for said Indians to dispose of said lands and to expend and pay over the proceeds received from the sale thereof only as received and as herein provided.

    It was the conclusion of the Deputy Commissioner of Indian Affairs as stated in his letter of July 31, 1962, that the boundary of the reservation was changed by the 1910 act to run along certain township lines so that roughly the north half of the area north and east of the Missouri River was excluded from the reservation. The provision of the 1910 act upon which that interpretation was based, Section 2, provides in part:

____________________

    ¹ A clear concern for boundaries of the reservation was shown by a provision of the 1886 agreement:

        The outboundaries of the diminished reservation shall be surveyed and marked in a plain and substantial manner.

Sec. 2. That the Secretary of the Interior be, and he is hereby, authorized to cause an allotment of one hundred and sixty acres of agricultural land or three hundred and twenty acres of grazing land to be made from the lands of the Fort Berthold Indian Reservation to each member of the several tribes belonging to and occupying said reservation now living, such allotment to be in addition to any allotments heretofore made or which may be made under existing law: Provided, That all allotments made under this Act shall be made on that part of the reservation lying west and south of the Missouri River, or in townships one hundred and fifty north, of ranges ninety, ninety-one, ninety-two, and ninety-three west; townships one hundred and forty-nine north, of ranges ninety and ninety-one west; town ships one hundred and forty-eight north, of ranges eighty-eight, eighty-nine, ninety, and ninety-one west; and townships one hundred and forty-seven north, of ranges eighty-seven, eighty-eight, eighty-nine, and ninety west, lying east and north of the Missouri River; *     *     *

    Note that the provision is for additional allotments, supplemental to those which were made or which might be made under existing law, in the area described. Allotments had been made under prior authority in townships described in Section 2 of the act, as well as outside that area north and east of the Missouri River, mainly in Township 149 North, Range 89 West. The designating of certain townships for additional allotment purposes is the sole feature distinguishing the area which the Deputy Commissioner regarded as remaining a part of the reservation from the area regarded as excluded therefrom. The other provisions of the act make no distinctions in the nature of area north and east of the Missouri River. Disposals under the general provisions of the homestead laws were permitted over the entire area north and east of the Missouri River and some were in fact made in the area described in Section 2 of the act. The state was permitted to select school lands by Section 6 of the act without restriction to area and selections were made throughout the area including that described in Section 2. The Secretary of the Interior was authorized to reserve an area north and east of the river for purposes of establishing a tribal demonstration farm but the act did not provide that such farm was restricted to the area described in Section 2.

    Further indication that there was no intent to limit the Indians to the area of the townships described in Section 2 are the provisions of Section 6 of the act. Provision is there made for donation without compensation to the tribe of 10 acres of land in each townsite for park, school or other public purpose; further, 20 percent of the net proceeds of the sale of lots in townsites was to be expended under the direction of the Secretary "in the construction of schoolhouses or other public buildings or improvements in the townsites in which lots are located." The requirement of direction by the Secretary and expenditure of the proceeds in such manner can only be construed as providing for contribution to the improvement of an area which the Indians would continue to utilize along with others admitted under the act.

    The legislative history of the 1910 act supports what must be regarded as the intent of Congress, similar to that found in Seymour v. Superintendent, supra, i.e., that it "did no more than open the way for non-Indian settlers to own land on the reservation in a manner which the Federal Government, acting as guardian and trustee for the Indians, regarded as beneficial to the development of its wards." The sponsor of H.R. 21904, which became the Act of 1910, Rep. L. B. Hanna of North Dakota, in seeking to assuage the fears of the Indians and counter opposition to the bill wrote the Commissioner of Indian Affairs on July 30, 1909, in part as follows:

*     *     *     *     *

Also as to the advantages that will come to the Indians by reason of the opening of the reservation.

These are, there maybe other the much larger amount of money they will receive from interest over that now received from the grazing leases.

The fact that the white settler will go on and improve the land he takes, build house and barn and break the land up and that the land will go up in price and value by reason of the improvements made, and that when the White Settler does this then he adds to the value of the land belonging to the Indian.

The fact that the white men will build schools and the red men will send their children to them and in that way they will be civilized as they cannot possibly be, as long as they are by themselves and continue their tribal relations.

*     *     *     *     *

The white men will farm. At the present time you send men to teach the Indian to farm and he will learn a thousand times faster from the example that will be set for him by his neighbor if he is a white man.

    This indicates an intent identical to that stated in Seymour, supra, i.e., to permit non-Indian entry upon a reservation to serve as a civilizing influence upon the Indian population. The purpose of the legislation, according to Senate Report No. 694, 61st Congress, 2d Session, accompanying H.R. 21904, was "to authorize the Secretary of the Interior to dispose of surplus and unallotted lands in the Fort Berthold Reservation in the State of North Dakota." Not all lands north and east of the Missouri River were designated or considered surplus.² Lands not so designated were those allotments made under prior congressional authority, additional allotments under authority of the 1910 act, power and reservoir sites, mineral³ and timber lands, and sites for school, agency and religious purposes--all north and east of the Missouri River without restriction (except as to the additional allotments) to the area described in Section 2.

    The Deputy Commissioner in his letter of July 31, 1962, makes this observation:⁴

There is no doubt that the intent of the 1910 Act was to diminish the Fort Berthold Reservation by removing therefrom the land lying east and north of the Missouri River.

The letter then goes on to note:

Notwithstanding the language used in Bureau letters *     *     * that the Missouri River constitutes the north and east boundaries of the Fort Berthold Reservation, the administrative practice of this bureau, the Department and the Congress has been to recognize as the north and east boundaries of the diminished reservation the north boundary of *     *     * (describing a boundary around the area described in Section 2 of the 1910 Act.)

    I cannot agree with that construction of the statute. If the intent of Congress is that described in the letter, then the Missouri River, and not the boundary described in the letter, must be regarded as the reservation boundary. No authority exists for an administrative change in reservation boundaries; that authority lies in the United States Congress. Seymour v. Superintendent, p. 359.

    The provisions of the 1910 act manifest an intent that the Indians would retain a substantial interest in the area north and east of the Missouri River and donation of their property and expenditure of their funds were authorized to that end. It is my conclusion that Seymour v. Superintendent, 368 U.S. 351 (1962) is controlling and that the 1910 act made no change in boundary.

    Therefore, the area north and east of the Missouri River within the boundary established by Section 23 of the Act of March 3, 1891, is still a part of the Fort Berthold Indian Reservation.

AUTHORITY OF B.I.A. TO TRANSFER TO TRIBE THE
DIRECTION OF FEDERAL EMPLOYEES

M-36803                                                                                                                                April 3, 1970.

Federal Employees and Officials: Generally--Indian tribes: Generally--Statutes: Revised Statutes Section 2072, 25 U.S.C. § 48 (1964)

The authority to direct the employment of Federal employees which the Secretary of the Interior may delegate to an Indian tribe pursuant to the provisions of R. S. § 2072, 25 U.S.C. § 48

____________________

    ² Nor were all lands considered surplus under the act eventually disposed of; some tracts not disposed of were restored to the tribe under Section 3 of the Act of June 18, 1934, 48 Stat. 984. Set e.g., F.R. Vol. 28. No. 73 pages 3655-3656, (1963); and Restoration Order of June 13, 1938. Such tracts were subject to restoration to augment a tribal land base only if they wee: (1) remaining surplus lands (2) of a reservation and (3) opened before June 18, 1934, or authorized to be opened to sale or any other form of disposal by Presidential proclamation or by public land laws. See 69 I.D. 195 (1962).
    ³ A substantial area outside the area described in Section 2 was reserved from allotment or sale under this provision of the 1910 act: "*     *     * If there he found any lands bearing coal or other mineral, the Secretary of the Interior is hereby authorized to reserve them from allotment or other disposition until Congress shall provide for their disposal: *     *     * ." The area reserved was later dealt with by the Act of August 3, 1914, 38 Stat. 681. providing for disposal of the surface of those "lands in the Fort Berthold Indian Reservation, North Dakota, *     *     *." Though we do not regard such characterizations as particularly indicative of what was actually accomplished by a prior act, it does indicate that though the act dealing directly with the area and which was closest in time regarded the area as still in the reservation, there was no consistency in this regard as noted in the Deputy Commissioner's letter.
    ⁴ In construing a statute materially similar involving the Cheyenne River Reservation the Deputy Commissioner applied the Seymour rule. That construction is inconsistent with the construction made involving Fort Berthold a few months earlier where the Seymour rule was not mentioned and apparently not considered.

(1964), is that authority related to the direction of employees and within the general range of the duties of their employment.

Federal Employees and Officers: Appointment: Disciplinary Action: Promotion: Qualifications: Separation: Tenure--Indian tribes: Generally--Statutes: Revised Statutes Section 2072, 25 U.S.C. § 48 (1964)

The authority to direct the employment of Federal employees which the Secretary of the Interior may delegate to an Indian tribe pursuant to the provisions of R. S. § 2072, 25 USC. § 48 (1964), may not include authority to employ, promote, or evaluate the performance of employees, nor authority to approve the alienation of rights in trust property, nor authority over Individual Indian Money accounts, nor authority to expend or encumber appropriated Federal funds; nor authority to review or approve tribal actions, nor authority which would abrogate employee rights granted by Executive order or regulation, nor authority to issue, amend, or waive Federal regulations.

Administrative Procedure Act: Public Information

Where a substantial change is made in the procedure which the public must follow in dealing with an agency as a result of delegation of direction of Federal employees pursuant to the provision of R. S. § 2072, 25 U.S.C. § 48 (1964), the provisions of the Administrative Procedure Act, 5 U.S.C. §§ 551-559 (Supp. IV, 1965-1968), requiring public notice of description of agency organization and channels through which public may deal with the agency must be complied with.

Opinion of the Solicitor, October 25, 1934, 55 I.D. 14, overruled so far as inconsistent.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Authority of the Bureau of Indian Affairs to transfer to an Indian tribe the direction of Federal
                 employees pursuant to the provisions of R.S.Sec.2072,25 U.S.C. § 48

    You request an opinion as to whether the Bureau of Indian Affairs has legal authority under the provisions of R. S. § 2072 to "turn over" to the Mescalero Apache Tribe "supervising responsibility" over Federal employees on duty at the Mescalero Agency of the Bureau of Indian Affairs in New Mexico.

    As codified in 25 U.S.C. § 48 (1964), R.S. § 2072 reads as follows:

Where any of the tribes are, in the opinion of the Secretary of the Interior, competent to direct the employment of their blacksmiths, mechanics, teachers, farmers, or other persons engaged for them, the direction of such persons may be given to the proper authority of the tribe.

    Despite the fact that the statute from which this provision derives--the Act of June 30, 1834, Section 9, 4 Stat. 737--was enacted well over a century ago, the authority conferred evidently has been exercised very rarely, if indeed at all.¹ If this provision were employed during the era of its enactment, we have found no indication of it; nor did the contemporary regulations providing specifically for the implementation of the provisions of the 1834 Act reflect such a practice.² Those regulations provided, in part, for the employment by the War Department of persons for which "provision is made by treaty." Reference is made in other provisions of the 1834 Act to persons employed as "required by treaty stipulations." The subject provision does not, however, expressly limit its operation to persons employed pursuant to treaty and we do not so construe it. To do so would, of course, render the provision inoperative as we are aware of no instance where employment is now made specifically pursuant to a treaty or where such employment is recognized as currently obligatory on the Federal Government.

    The earliest published comment on the scope of the provision, so far as we have been able to ascertain, appears almost exactly a hundred years after enactment in an October 25, 1934, opinion of the Solicitor of this Department. See 55 I.D.

____________________

14, 64-65. A paraphrased version of that opinion appears in Handbook of Federal Indian Law, United States Department of the Interior, 1941, pp. 149-150. The revised version of that work, Federal Indian Law, United States Department of the Interior, 1958, includes comments on the provision at pages 452-453 and calls it "[p]otentially the most important of these statutory tribal powers." The 1934 Solicitor's opinion, in commenting generally on powers of Indian tribes, notes specifically regarding this section:

Under the terms of this statute it is clearly within the discretionary authority of the Secretary of the Interior to grant to the proper authorities of an Indian tribe all powers of supervision and control over local employees which may now be exercised by the Secretary, e.g., the power to specify the duties, within a general range set by the nature of the employment, which the employee is to perform, the power to prescribe standards for appointment, promotion, and continuance in office, the power to compel reports, from time to time, of work accomplished or begun.

    The opinion concluded by summarizing the powers of an Indian tribe as including the power:

9. To prescribe the duties and to regulate the conduct of Federal employees, but only insofar as such powers of supervision may be expressly delegated by the Interior Department.³

    In our view, the opinion overstates to some degree the permissible scope of the statute as it may be applied today, in that it does not recognize or accommodate the rights of Federal employees as employees. Civil Service laws were unheard of in 1834, and even when the Solicitor issued the 1934 opinion they had not developed to the degree of refinement and protection of employees' rights which now exists. Because the exercise of tribal power under the 1834 Act might impinge on the rights of employees assured by other laws, we will later in this memorandum suggest some limitations which must be imposed on the grant of supervisory authority to Indian tribes.

    Your memorandum suggests that more than a delegation of direction over a group of Federal employees is contemplated: a transferred superintendent would not be replaced and "the Bureau would contract with the tribe to supervise the Agency." The authorities and responsibilities of the agency as carried out by the Federal agent--i.e., the superintendent--are, of course, a great deal more extensive than the supervision of an employee or employees. Such authorities and responsibilities are imposed or granted, in accordance with statute, by delegation from the Secretary of the Interior and, in some cases, by provisions of a tribal constitution. The problem, thus, is more complex than one which would be involved in the assignment, for example, of a mechanic to the direction of a tribe. Even, however, were the assignment of only a single employee contemplated, questions would be encountered. For example, might the delegation of authority to direct a social worker include authority to issue a United States Treasury check for disbursal of funds from an Individual Indian Money Account, or authority to issue a Federal purchase order, or authority to consider an appeal from that worker's denial of welfare assistance?

    I shall undertake to provide some initial guidelines for your assistance in implementing this provision. It should be noted, however, that in absence of precedent, inevitably there will be circumstances and questions which are not herein contemplated. It would be advisable, therefore, should you definitely decide to make a delegation of direction to consider in more detail the circumstances involved at Mescalero Agency. Further, it would be desirable that this office review the documents stating specifically the action being taken.

    The authority contained in 25 U.S.C. § 48 is presently in the Secretary of the Interior. Whether the authority shall be delegated to the Commissioner of Indian Affairs or exercised directly by the Secretary is, of course, an administrative decision. In this regard we note that by memorandum dated January 30, 1970, you wrote the Assistant Secretary, Public Land Management, requesting approval to "proceed within our delegated authority the exercise of the provisions of this Section 48. Notation at the bottom of your memorandum indicates that approval was given. We are unable to find among the amendments to Secre-

____________________

    ³ Federal Indian Law, supra, at page 452, adds to comments on § 48 this statement:

        Various powers have been conferred on Indian tribes by Federal statute which are subject to constitutional doctrines applicable to the exercise or delegation of Federal government powers.

       The reference here is, no doubt, to the general prohibition against delegation by Congress of legislative powers. Set 16 Am Jur. 2d Constitutional Law § 240 (1964) However, where an administrative power has been validly delegated. Congress may authorize the delegate to redelegate such powers. O'Neal v. United Stales, 140 F. 2d 908 (6th Cir. 1944).

tarial Order 2508, Section 30 a delegation of the authority of 25 U.S.C. § 48 to the Commissioner.

    The intent of the provision is evident: viz., to permit the exercise of local autonomy in directing the performance of work for the tribe. It is also evident, from an analysis of the wording of the provision, that: (1) the employees involved are persons "engaged" by the Federal Government, i.e., the employment, promotion, etc. of such persons is made by the Federal Government, not by the tribe; and (2) the authority conferred on a tribe by the Secretary under authority of the provision must be related to the "direction" of an employee or employees.

    In further delineating the extent of authority of a superintendent which may be delegated, it appears, as a practical matter, necessary to determine those authorities which by legal necessity are exercisable only by an official of the Federal Government. Further, the rights of employees and the rights of those dealing with the agency as well as such nontransferable authorities and obligations of the Federal Government must be correlated with the subject provision and would, in effect, circumscribe it. In striving to carry out the intent of the provision, therefore, some necessary considerations to be taken into account in stating guidelines are these:

Employee rights. The Civil Service Commission has developed procedures for the protection of employee rights. It is important in assuring employees of due process in the assertion and protection of rights that these procedures be available to them.

Trust obligations. The fiduciary obligations of the Federal Government cannot be delegated on the basis that authority to make such a delegation is impliedly included in the subject provision. The effect of such a delegation would, as it would relate to tribal lands, be an abdication of such trust obligation and would frustrate the purpose of the trust. The same reasons are applicable to trust obligations relating to individual Indian trust property.

Federal funds. The bond covering persons responsible for disbursal of Federal funds is provided pursuant to 6 U.S.C. § 14. It covers employees and officers of the Federal Government. Authority to disburse Federal funds is not necessary to the operation of the subject provision and therefore not included by implication as authority which might be delegated concomitantly with authority to direct an employee. Considering the nature of authority to disburse Federal funds, particularly the usual requirement that the exercise is conditioned upon coverage by bond, we would sanction such direct access to the Federal treasury funds only upon express statutory authority.

Obligations of review and approval of tribal actions. By approval of tribal constitutions the Federal Government has undertaken the obligation of reviewing such actions of tribes as those regarding the expenditure of tribal funds, the enactment of ordinances, the adoption of tribal members, etc. The object of such review would be defeated were the obligation delegated to the tribe. Further, it would appear necessary that the tribal constitution be amended in order to eliminate the review or approval requirement.

Public notice of change in authority. The contemplated action would represent a change in administrative procedure of which the general public (including, of course, the Indians of Mescalero Reservation) must be put on notice in order that they might deal with the agency accordingly.

    General guidelines based on these considerations are:

    1. Authority delegated must be necessarily related to the direction of an employee or employees; a tribe may not be regarded as standing in the place of a superintendent with all the prerogatives, obligations and authorities of that office. See in this regard attached letter of the General Counsel of the Civil Service Commission dated March 18, 1970, to Newell B. Terry, Department Director of Personnel.

    2. A delegation of direction of employees cannot include authority of the superintendent to approve the alienation of any rights in trust property; nor may authority over funds in Individual Indian Money Accounts be delegated to the tribe.

    3. A delegation of direction of employees cannot include authority which would abrogate any rights granted to such employees by law, Executive order, or regulation, including rights relating to union representation and rights of petition and appeal to the Department and the Civil Service Commission for redress of grievances.

    4. Provision must be made for the rating of the performance of Federal employees by Federal employees (including acceptable level of competence and promotion potential); such procedures

should conform as nearly as possible to those for other Bureau of Indian Affairs employees generally.

    5. The direction delegated may not include authority to prescribe standards for appointment, promotion and continuance in office, although we see no objection to tribal recommendations in these respects.

    6. An employee may be directed to perform only functions within the general range of duties prescribed for his employment. Appropriate revisions of position descriptions would be necessary to include tribal direction to which the employee would be subject.

    7. A delegation of direction of employees cannot include authority to expend or encumber appropriated Federal funds.

    8. Where there is a substantial change in procedure which the public must follow in dealing with an agency (e.g., the elimination of the office of superintendent), the provisions of the Administrative Procedure Act, 5 U.S.C. §§ 551-559, must be complied with. This requires: (a) publication of the description of agency organization; (b) publication of a statement showing channels through which the public may obtain information, make submittals or requests, or obtain decisions.

    9. Any provision for delegation should specifically state the extent of direction delegated and then only after careful study of the authorities and responsibilities of the superintendent generally, and specifically regarding that agency in order to provide a contingent means for the exercise of supervisory authority not transferred should the need arise.

    10. Authority contained in Federal statutes, regulations or tribal constitutions to review or approve tribal action may not be delegated to the tribe.

    11. No authority may be conferred on a tribe pursuant to this provision to issue, amend or waive Federal regulations.

    12. Prerequisite to delegation of direction under this provision is a finding by the Secretary that the particular tribe to which a delegation is proposed is competent to exercise the direction delegated. Such a finding would include an identification and evaluation of the competence of "the proper authority of the tribe."

    The foregoing are some general conclusions as to the scope of 25 U.S.C. § 48 for your assistance in further considering a delegation of direction. Expressions in the earlier Solicitor's opinion so far as inconsistent herewith are overruled.

STATE AND FEDERAL TAXATION OF INCOME
DERIVED FROM REINDEER INDUSTRY--
INTERPRETATION OF REINDEER ACT

                                                                                                                                                July 2, 1970.

HONORABLE TED STEVENS
United States Senate
Washington, D.C. 20510

DEAR SENATOR STEVENS:

    You requested by letter of June 3, 1970, our comments on the matter of the taxation of income derived from "reindeer herding." Enclosed with your letter were copies of letters from Mr. Richard A. Bradley, Field Solicitor in Juneau, Alaska, and from Mr. Lester W. Utter of the Internal Revenue Service, Washington, D.C.

    We gather from the letters that your interest is in the taxability by the state and federal governments of income derived from the sale of reindeer or products of reindeer. Therefore, we direct our comments to that question rather than to other aspects of taxation relating to the reindeer industry, e.g., the taxation of income of natives derived from salaries earned from employment in the industry, ad valorem taxation of personal property employed in the industry, etc.

    The Congress by the Act of September 1, 1937, commonly called the Reindeer Act, 50 Stat. 900, 48 U.S.C. § 250-250p (1958 ed.), placed the reindeer industry in Alaska under Federal supervision and protection in accordance with this declaration of policy:

. . . to establish and maintain for the said natives of Alaska a self-sustaining economy by acquiring and organizing for and on behalf of said natives a reindeer industry or business, by encouraging and developing native activity and responsibility in all branches of the said industry or business, and by preserving the native character of the said industry or business thus established.

See 48 U.S.C. § 250 (1958 ed.). The Reindeer Act provides for comprehensive control of the industry by the Federal Government. Specifically, authority is provided for the acquisition of reindeer in the name of the United States, the management of the industry, and the distribution of reindeer to natives by "appropriate instruments of title" or the holding of the same in trust for the use and benefit of the natives. The Act imposes, perhaps most significantly for the purposes here considered, restrictions against alienation of reindeer.

    The restrictions are similar to those which in the past were imposed on cattle administratively by the Bureau of Indian Affairs (See 25 CFR Subchapter E, 1938 Edition) and legislatively by Congress (See e.g., 23 Stat. 76, 94). The United States Supreme Court in United States v. Rickert, 188 U.S. 432 (1903), concluded that taxation of property under these circumstances by a state would defeat the Congressional purpose. See Rickert pp. 443-444:

The personal property in question was purchased with the money of the Government and was furnished to the Indians in order to maintain them on the land allotted during the period of the trust estate, and to induce them to adopt the habits of civilized life. It was, in fact, the property of the United States, and was put into the hands of the Indians to be used in execution of the purpose of the Government in reference to them. The assessment and taxation of the personal property would necessarily have the effect to defeat that purpose.

Though there are distinguishing differences between the factors involved in the Rickert case and those here considered--the property in Rickert was used in connection with a trust allotment and the question of ad valorem taxation was involved--we do not regard those differences as requiring or supporting a conclusion that the income derived from the property, trust or restricted reindeer, is taxable by the state. The decisive factor, in my view, is the Congressional purpose in imposing the restriction.

    The policy and method of implementing that policy in the Reindeer Act are in essence the same as that stated in Rickert. It is my view, therefore, that reindeer in Alaska, held in trust by the United States or subject to restrictions imposed by the Reindeer Act, supra, and the income derived therefrom, are not subject to taxation by the state on the ground that that property constitutes an instrumentality of the Federal Government employed for the purpose of carrying out policy regarding the natives of Alaska. See Dewey County v. United States, 26 F. 2d 434 (8th Cir. 1928), cert. den. 278 U.S. 649; United States v. Pearson, 231 F. 270; United States v. Hughes, 6 F. Supp. 972; Lebo v. Griffith, 173 N.W. 840; Olney v. McNair, 177 P. 641; Three Foretops v. Ross, 235 P. 333; Pourier v. Board of Commissioners of Shannon County, 157 N.W. 2d 532; 57 I.D. 124; cf. United States v. Porter, 22 F. 2d 365, where personal property held by an Indian outside a reservation (and therefore not in connection with an allotment) was held taxable by the state on the basis that it was not restricted property.

    Alternatively, see Section 4 of the Alaska State hood Act, 72 Stat. 339, as amended by the Act of June 25, 1959, 73 Stat. 141, which provides in part:

And provided further, That no taxes shall be imposed by said State upon any lands or other property now owned or hereafter acquired by the United States or which, as hereinabove set forth, may belong to said natives, except to such extent as the Congress has prescribed or may hereafter prescribe; and except when held by individual natives in fee without restrictions on alienation.

    The Reindeer Act does not provide for complete removal of restrictions on alienation; the transfer or alienation of reindeer being permitted only with the consent of the Secretary of the Interior and for purposes limited by operation of law. 48 U.S.C. 250i (1958 ed). This provision construed literally, and thus most favorably to the natives,¹ would exempt reindeer or income derived therefrom from taxation by the state.

    In the matter of Federal taxation of income derived from reindeer, we note at the outset that the authoritative determination of the administrative position regarding Federal income taxation is not within our province, but within that of the Treasury Department. Nevertheless, we do have some observations to make in response to your request. The position stated in the letter from Mr. Utter of the Internal Revenue Service to you, listing the five tests which must be met, is the present rule applicable to income from live stock owned by Indians, and is based upon the principles of Squire v. Capoeman, supra, fn. 1.

    In ordinary circumstances the generic classification of reindeer, i.e., as livestock, for tax purposes would be entirely proper. Reindeer, however, are not ordinary livestock; they are, like trust or restricted Indian lands, the object of special legislative treatment and the instrument employed in carrying out specific Federal policy and purpose. Such status makes it necessary that reindeer be treated by application of a rule directed at that status just as taxation rules applicable to land are directed at the trust or restricted status. Thus, if the rule cited were adapted to this personal property--i.e., the word "reindeer" or the words "trust

____________________

    ¹ Doubtful expressions in acts of Congress relating to Indians are to be resolved in favor of the Indians. Carpenter v. Shaw 280 U.S. 363 (1930); Squire v. Capoeman, 351 U.S. 1 (1956).

or restricted personal property" were substituted for "trust or restricted land" in the rule--the income from reindeer would meet, in substance, each of the live criteria stated.

    We are aware of no pending case or controversy regarding the matter of Federal taxation of in come from reindeer. If you have a constituent now concerned with this question, perhaps he may wish to assert an exemption on the grounds above stated. There are alternative procedures for making such an assertion, the most direct being a request to the Internal Revenue Service for a ruling or a reconsideration of a former ruling. Unless the position as stated in Mr. Utter's letter is either modified by the Internal Revenue Service or the courts, the Alaska natives will be obligated to pay a Federal tax on income derived from the sale of reindeer or reindeer products.

CRIMINAL JURISDICTION OF INDIAN TRIBES
OVER NON-INDIANS^*

M-36810                                                                                                                            August 10, 1970.

Indian tribes: Generally--Indians: Criminal Jurisdiction: Law and Order--Revised Statutes Section 2146, 18 U.S.C. § 1152

Indian tribes generally do not possess criminal jurisdiction over non-Indians unless there still remains in force a treaty provision whereby a tribe acquired "exclusive jurisdiction over such offenses" as provided by Section 1152, Title 18, United States Code. While that reference to exclusive tribal jurisdiction still appears in Section 1152, it is doubtful that any such jurisdiction has survived since, though initially some treaties may have granted criminal jurisdiction over non-Indians, later treaty provisions usually required the tribes to seize and surrender offenders to designated Federal officials.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Criminal jurisdiction of Indian tribes over non-Indians

    You requested, by furnishing this office a copy of your memorandum of March 9, 1970, to the Vice President, that we review the problem of state taxation on Indian reservations and tribal jurisdiction over non-Indians. I have undertaken in this memorandum a review of tribal criminal jurisdiction over non-Indians.¹ We will consider the state taxation matter in a later memorandum.

    The question of criminal jurisdiction of an Indian tribe over a non-Indian was ruled on in Ex parte Kenyon, 14 Fed. Cas. 353 (No. 7720) (C.C.W.D. Ark., 1878) The court in that case denied tribal jurisdiction of a Cherokee court over a non-Indian accused of theft. Citing Revised Statutes of 1873, Section 2146, the Court in Kenyon stated in part:

*     *     * if there was any crime committed, at any time, it was committed not only beyond the place over which the Indian court had jurisdiction, but, at the time it was committed, by one over whose person such court did not have jurisdiction; because to give this court jurisdiction of the person of the offender, such offender must be an Indian, and the one against whom the offence is committed must also be an Indian.²

Revised Statutes Section 2146, supra, provides:

Sec. 2146 The preceding section [extending the general laws of the United States to Indian country] shall not be construed to extend to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction

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    ^* This opinion was withdrawn by the Solicitor on January 25, 1974.
    ¹ It should be noted that the question of tribal jurisdiction discussed in this memorandum relates to action by tribes in the exercise of remaining sovereign authority and does not relate to Courts of Indian Offenses which are courts established by the Secretary and by the provision of 25 CFR Part 11 exercise jurisdiction over Indians only. See United States v. Clapox, 35 Fed. 575 (D.C. Ore. 1888). Further, not all Indian groups organized under the Indian Reorganization Act, 48 Stat. 987, retained sovereign authority if they were not recognized as sovereign prior to being reorganized. See Federal Indian Law, Interior Department (1958). p. 411. fn. 36. In organizing under written constitutions most tribes have limited criminal jurisdiction of their laws and courts to Indians.
    ² Accord, Ex parte Morgan, 20 Fed 298, 308. (D C.W.D.Ark. (1883) also based upon construction of R.S. Sec. 2146. Through this and the 1855 opinion of the Attorney General, infra, suggest that Indian tribes do not have jurisdiction over members who commit offenses against non-Indians, the practice and interpretation given Section 1152. United States Code, Title 18, has been to recognize jurisdiction of tribes over offenses by tribal members against non-Indians. See Federal Indian Law, Interior Department (1958) pp. 447, 448; 55 I.D. 14, 58.

over such offense, is or may be secured to the Indian tribes respectively.

    Section 2146 derived from Section 25 of the Act of June 30, 1834, 4 Stat. 729, 733.³ Section 25 of the 1834 Act was construed by the Attorney General as excluding criminal jurisdiction over non-Indians. See 2 Op. Atty. Gen. 693 (1834) at page 695:

*     *     * the 25th section of the act of the 30th of June, 1834, declares that so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the Indian country; with a proviso, that the same shall not extend to crimes committed by one Indian against the person or property of another; thus evidently proceeding on the supposition that, under the treaties in relation to the Indian country west of the Mississippi, the Indian laws would be applicable to Indians themselves.

See also 7 Op. Arty. Gen. 174, (1855) at page 179:

*     *     * the Choctaws express a wish in the treaty that Congress would grant to the Choctaws the right of punishing, by their own laws, "any white man" who shall come into the nation, and infringe on any of their regulations, (Art. 4). But Congress did not accede to this request. On the contrary, :it has made provision, by a series of laws, for the punishment of crimes affecting white men, committed by or on them in Indian country, including that of the Choctaws, by the courts of the United States. (See act of June 30, 1834, iv Stat. at Large, p. 729, and act of June 17, 1844, v Stat. at Large p. 680). These Acts cover, so far as they go, all crimes except those committed by Indian against Indian.

    Section 2146 was incorporated in Section 1152 of Title 18, United States Code.⁴

    Where the provisions of a statute are carried forward and embodied in a codification in the same, or substantially the same words, the latter provision is considered a continuance of the former statute and of the policy and the interpretations given that statute. 82 C.J.S. Statutes § 276. It is my conclusion, therefore, that unless there still remains in force a treaty provision whereby a tribe acquired "exclusive jurisdiction over such offence" as provided by Section 1152, Indian tribes generally do not possess criminal jurisdiction over non-Indians.

    Though the statute, 18 U.S.C. § 1152, retains that reference to exclusive tribal jurisdiction acquired by treaty it is doubtful that any such jurisdiction which may have been vested in a tribe has survived. It is interesting, in this regard, to note that the Cherokee treaty of 1791, 7 Stat. 39, included this provision:

If any citizen of the United States, or other person not being an Indian, shall settle on any of the Cherokees' lands, such person shall forfeit the protection of the United States, and the Cherokees may punish him or not, as they may please.

    That provision was amended by the treaty of February 27, 1819, 7 Stat. 195, which provided that "white intruders" were to be proceeded against by the United States in accordance with the provisions of the Trade and Intercourse Act of 1802, 2 Stat. 139. Similarly, though by the provisions of some early treaties criminal jurisdiction was granted Indian tribes, provisions in later treaties required tribes to seize and surrender trespassers or "badmen" to designated Federal officials. While we have not made an exhaustive survey of treaties with respect to provisions granting crim-

___________________

    Sec. 25. And be it further enacted: That so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the Indian country: Provided, The same shall not extend to crimes committed by one Indian against the person or property of another Indian.

    ⁴ Set reviser's note. Section 1152. Title 18. U.S. Code provides:

    Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.

This section shall not extend to offences committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.

inal jurisdiction over non-Indians, and therefore subject to the possibility that in a rare instance such jurisdiction may have survived, the answer to the question posed by the members of the National Council on Indian Opportunity must be that Indian tribes do not possess criminal jurisdiction over non-Indians, such jurisdiction lies in either the state or Federal governments.

USE OF COLORADO RIVER WATER ON LANDS
DETERMINED TO BE WITHIN THE COLORADO
RIVER INDIAN RESERVATION

                                                                                                                                                January 21, 1971.

Memorandum

To:            Regional Solicitor, Los Angeles
From:        Solicitor
Subject:     Use of Colorado River water on lands determined to be within the Colorado
                 River Indian Reservation under the Secretary's order of January 17, 1969,
                 affirmed by Secretary's order of June 2, 1970

    This is in response to your memorandum to the Associate Solicitor, Indian Affairs, dated December 7, 1970.

    We understand that the lands in question are trust lands on the Indian reservation held by the United States for the use and benefit of the Colorado River Tribe of Indians. Further, that the tribe intends to issue the proposed permits to present occupants after obtaining the approval of the permits from the Bureau of Indian Affairs. It appears that the Indian tribes wish to apply water decreed to them under the terms of Arizona v. California, 373 U.S. 546 (1963) and 376 U.S. 340 (1964) to these lands. This use would be made for a temporary period of time pending the time when the entire boundary of that reservation is established and the Supreme Court rules on the amount of water reserved for all those lands as provided for in Arizona v. California, 376 U.S. 340, at 345 (1964).

    An issue similar to that raised by your memorandum was considered by this office in a memorandum to the Secretary of the Interior, dated February 1, 1964. A copy of that memorandum is attached pursuant to your telephone request of December 28, 1970. Therein, this office stated, with respect to this particular reservation as follows:

*     *     * We know of no reason for holding that the Indians' water rights must be used only for agriculture any more than for holding that their lands themselves must be so used. The water right itself is but a special type of real property which is a part and parcel of the Reservation.

Approximately 100 years has passed since the Colorado River Reservation was first established. During this time there have been marked changes all over the country in the types of uses to which land and related resources are put. Indian land and water may bring larger return, or other benefits to their owners if used for commercial or industrial purposes than if cultivated for crops. Where circumstances warrant the use of Indian lands for recreational, commercial, or industrial purposes rather than for agriculture, we believe that the reserved water rights remain available for those other purposes. *     *     *

    Circumstances appear to warrant the use of the land in question for purposes other than agricultural. Hence, it is our opinion that the permits as approved by the Bureau of Indian Affairs may properly contain appropriate language covering the source of the permittee's water rights authorizing the use of water decreed for the benefit of this reservation to be applied to those lands located within the reservation. The amount and place of use is a matter in the control of the tribe subject to the approval of the Bureau of Indian Affairs.

    We suggest that it would be appropriate for the tribe and the Bureau of Indian Affairs to coordinate all of the activities for the release of the water with the Bureau of Reclamation rather than require each permittee to do so individually because the decreed right is based upon the water decreed for the benefit of the reservation and control of the amount and place of use properly rests with the tribe and the Bureau of Indian Affairs. The balance of your suggested provisions as changed appears unobjectionable.

                                                                                                                    MITCHELL MELICH,
                                                                                                                                                Solicitor.

Attachment

APPLICABILITY OF THE WHOLESOME MEAT ACT
OF 1967 ON INDIAN RESERVATIONS

M-36811                                                                                                                            February I, 1971.

Indian Lands: Generally--Statutes--Act of December 15, 1967.

The Secretary of Agriculture is not authorized or required to conduct meat inspection programs on Indian reservations under the provisions of the Wholesome Meat Act of 1967, 81 Stat. 584, 21 U.S.C. §§ 601-691 (Supp. V. 1965-1969).

Indians: Civil Jurisdiction--Indians: Criminal Jurisdiction--Indian Lands: Generally--Statutes Act of August 15, 1953--Act of December 15, 1967--Regulations: Generally--Act of February 15, 1929.

States which have assumed the requisite jurisdiction over Indian country under Public Law 280 (Act of August 15, 1953, 67 Stat. 588, as amended, 18 U.S.C. § 1162 and 28 U.S.C. § 1360) or under the Civil Rights Act of 1968 (Act of April 11, 1968, 82 Stat. 77-81, 25 U.S.C. §§ 1321 1322 (Supp. V., 1965-1969), are required by the Wholesome Meat Act of 1967 to enforce their meat inspection laws on Indian reservations if the enforcement does not involve the regulation of property held in trust by the United States for the benefit of the Indians. States which have not assumed the aforementioned jurisdiction over Indian country are not authorized or required by the Wholesome Meat Act of 1967 to enforce their meat inspection laws on Indian reservations unless the Secretary of the Interior were to enact regulations authorizing such enforcement under the authority granted him by the Act of February 15, 1929, 45 Stat. 1185, as amended, 25 U.S.C. § 231.

Mr. Edward M. Shulman
General Counsel
United States Department
    of Agriculture
Washington, D.C. 20250

DEAR MR. SHULMAN:

    We have considered your letter of February 25, 1970, requesting our opinion on the applicability on Indian reservations of the Wholesome Meat Act of December 15, 1967, 81 Stat. 584, 21 U.S.C §§ 601-691 (Supp. V. 1965-1969) (originally enacted as the Act of March 4, 1907, 34 Stat. 1260-1265, as amended, 21 U.S.C. §§ 71-91). You raise two questions which for convenience we shall consider in reverse order.

    1. Does the Wholesome Meat Act of 1967 require the Secretary of Agriculture to conduct meat inspection programs on Indian reservations?

    The act provides that the Secretary of Agriculture must appoint inspectors to conduct ante-mortem and post-mortem examinations and inspections of various animals and meat food products prepared for "commerce" in any slaughtering, meat-canning, salting, packing, rendering or similar establishment. 21 U.S.C. §§ 603, 604 and 606. In the definition, section 21 U.S.C. § 601 (h) provides:

The term 'commerce' means commerce between any State, and Territory, or the District of Columbia, and any place outside thereof; or within any Territory not organized with a legislative body, or the District of Columbia. (Emphasis added)

____________________

    ¹ Elk v. Wilkins, 112 U.S. 94. 100 (1884); McCandless v. United States ex rel. Diabo, 25 F.2d 71 (3rd Cir 1928) aff'g sub nom, [United States ex rel. Diabo v. McCandless,] 18 F.2d 282 (ED. Pa. 1927); United States v. 5,677.94 Acres of Land, 162 F. Supp 108, 110-111 (D. Mont. 1958); Seneca Nation of Indians v. Brucker, 162 F. Supp. 580, 581-582 (D. D.C. 1958), aff'd; 262 F.2d 27 (D.C. Cir 1958), cert. denied, 360 U.S. 909 (1959); and Nicodemus v. Washington Water Power Co, 264 F2d 614, 617 (9th Cir. 1959).
    ² The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1870); Choteau v. Burnet, 283 U.S. 691 (1931); Superintendent v. Commissioner, 295 U.S. 418, 420 (1935); Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 115-118, 120 (1960); Navajo Tribe v.  N.L.R.B., 288 F.2d 162, 164-165n.4, (D.C. Cir. 1961), cert. denied, 366 U.S. 928 (1961); Commissioner v. Walker, 326 F.2d 261, 263 (9th Cir. 1964); Colliflower v. Garland, 342 F.2d 369, 376 (9th Cir. 1965); Holt v. Commissioner, 364 F.2d 38, 40 (8th Cir. 1966), cert. denied, 386 U.S. 931 (1967); and Mann v. United States, 399 F.2d 672, 673 (9th Cir. 1968).

    The act defines "Territory" in 21 U.S.C. § 601 (g), which states:

The term 'Territory' means Guam, the Virgin Islands of the United States, American Samoa, and any other territory or possession of the United States, excluding the Canal Zone. (Emphasis added)

    We do not read these definitions as including Indian reservations. Ex Parte Morgan, 20 F. 298, 305-306 (W.D. Ark. 1883); In re Lane, 135 U.S. 443, 447-448 (1890). Since an Indian reservation is not included within the definition of "Territory" under 21 U.S.C. § 601 (g), the definition of "commerce" in 21 U.S.C. § 601 (h) as "*     *     * commerce between any *     *     * Territory *     *     * and any place outside thereof *     *     * " cannot mean commerce flowing from or to an Indian reservation and any place within the same state but outside the reservation.

    For these reasons, we conclude that the Secretary of Agriculture is not authorized or required to conduct meat inspection programs on Indian reservations under the provisions of the Wholesome Meat Act of 1967, except as hereinafter provided.

    2. Does the Wholesome Meat Act of 1967 require the states to conduct meat inspection programs on Indian reservations within their borders?

    If the state subsequently established a system equal to Federal standards, the designation could be revoked. 21 U.S.C. § 661 (c) (1). After the initial period, the Federal system could be made applicable or inapplicable as required by the adequacy or inadequacy of the state system.

    As far as the breadth of the state inspection is concerned, the crucial wording is contained in the first part of 21 U.S.C. § 661 (c) (1):

If the Secretary has reason to believe, by thirty days prior to the expiration of two years after enactment of the Wholesome Meat Act, that a State has failed to develop or is not enforcing, with respect to all establishments within its jurisdiction (except those that would be exempted from Federal inspection under subparagraph (2) ) *     *     * requirements at least equal to those imposed under subchapters I and IV of this chapter, he shall promptly notify the Governor of the State of this fact. If the Secretary determines, after consultation with the Governor of the State, or representative selected by him, that such requirements have not been developed and activated, he shall promptly after the expiration of such two-year period designate such State as one in which the provisions of subchapters I and IV of this chapter shall apply to operations and transactions wholly within such State: *     *     * . (Emphasis added)

    Since a State must develop and enforce requirements at least equal to the Federal standards on all establishments within its jurisdiction, the question is whether such an establishment, if located on an Indian reservation, is within the jurisdiction of the state? A categorical answer cannot be given.

    The Act of August 15, 1953, 67 Stat. 588, as amended, 18 U.S.C. § 1162 and 28 U.S.C. § 1360 (commonly referred to as Public Law 280), invested those states which were granted or have assumed jurisdiction thereunder, with civil and criminal jurisdiction over the persons and private

(non-trust) property of Indians within the Indian country.³

    This Department has recently held that Public Law 280 invested the State of California with jurisdiction to enforce its health and sanitation laws and regulations against the person of Indians in the Indian country. However, we concluded that the State of California does not have authority, directly or indirectly, to enforce such laws against property held in trust by the United States for the benefit of the Indians. See Solicitor's Opinion M-36768 (February 7, 1969), two copies of which are enclosed. On page 2 of that opinion we stated:

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).⁴

    Accordingly, those states which have assumed jurisdiction over Indian country under Public Law 280 or under the Civil Rights Act of 1968 are required by the Wholesome Meat Act to enforce their meat inspection laws on Indian reservations, if the enforcement does not involve the regulation of trust property in any significant way." In these states, and these states only, we conclude that the operation of meat processing establishments on Indian reservations is within that state's jurisdiction as contemplated by 21 U.S.C. § 661 (c) (1).

    What if a state, which has jurisdiction over Indian reservations, refuses to enforce its meat inspection laws on the reservations? Section 661 (c) (1) makes it clear that the Secretary of Agriculture can designate that state as one in which the provisions of 21 U.S.C. ch. 12, subchs. I and IV would then become applicable. Since subchs. I and IV require affirmative action on the part of the Secretary of Agriculture, he would have jurisdiction over the Indian reservations in these states to the extent specified in the aforementioned subchapters. To hold otherwise would mean that there would be no penalty for a state which refused to enforce its laws on a particular Indian reservation.

    What about states which have not assumed the requisite jurisdiction over Indian country?

    We, therefore, conclude that the Secretary's authority under 25 U.S.C. § 231 controls in those states which have not assumed the essential jurisdiction over Indian country under Public Law 280 or under the Civil Rights Act of 1968. Since the Secretary has not adopted any regulations implementing the provisions of this section, these states are without authority to inspect meat processing establishments on Indian reservations within their borders. We could, however, recommend that the Secretary of the Interior adopt such regulations authorizing state agents to enforce such meat inspection standards on Indian reservations as the Secretary of Agriculture deems necessary. Your Department's jurisdiction over those states would then be equivalent to that possessed over states which have assumed jurisdiction under Public Law 280 or under the civil Rights Act of 1968.

Conclusion

    In summary, we are of the opinion that the Secretary of Agriculture, except as hereinafter provided, is not authorized or required to conduct meat inspection programs on Indian reservations under the provisions of this act. States which have

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    ³ States can no longer unilaterally assume jurisdiction over Indian country under Public Law 280 since this power was repealed by the Act of April 11, 1968, 82 Stat. 77, 79, 25 U.S.C. § 1323(h) (Supp. V. 1965-1969) (commonly known as the Civil Rights Act of 1968) However, this act does grant states the right to assume civil and criminal jurisdiction over Indian country, but only with the consent of the Indian tribe. 25 U.S.C. §§ 1321, 1522.
    ⁴ See also Snohomish County v. Seattle Disposal Co., 425 P. 2d 22 (Wash. 1967), cert. denied, 389 U.S. 1016 (1967).
    ⁵ A caveat is in order here. Both Public Law 280 and the Civil Rights Act of 1968 provide for partial as well as full assumption of state jurisdiction over Indian country. A state which has only assumed partial jurisdiction may not have obligated itself to enforce meat inspection laws or laws of a similar nature on the reservations. These states must be treated in the same manner as those which have not assumed jurisdiction under the aforementioned acts.

assumed jurisdiction over Indian country under Public Law 280 or under the Civil Rights Act of 1968 are required by 21 U.S.C. § 661 (c) (l) to enforce their meat inspection laws on Indian reservations, but only if the enforcement does not, directly or indirectly, involve the regulation of trust property in any significant way. The Secretary of Agriculture can enforce the provisions of 21 U.S.C. ch. 12, subchs. I and IV, in any of these states which may refuse to enforce their laws on the reservations.

    States which have no assumed the aforementioned jurisdiction over Indian country are not authorized or required, by the Wholesome Meat Act, to enforce their meat inspection laws on Indian reservations within their borders. However, we could, if your Department so desires, recommend that the Secretary of the Interior enact regulations authorizing state agents to enforce such meat inspection standards as the Secretary of Agriculture deems necessary.

    For your convenience, we have enclosed a list of the states which have assumed some measure of jurisdiction over Indian country under Public Law 280. This list must be reviewed periodically, however, as retrocessions of and additions to state jurisdiction may occur at any time.

                                                                                                                    RAYMOND C. COULTER,
                                                                                                                                                Deputy Solicitor.

STATES HAVING CIVIL OR CRIMINAL JURISDICTION
OVER INDIANS ON THEIR RESERVATIONS