Solicitor's Home

STATES HAVING CIVIL OR CRIMINAL JURISDICTION
OVER INDIANS ON THEIR RESERVATIONS

APPLICABILITY OF THE LIQUOR LAWS OF
THE STATE OF MONTANA ON THE
ROCKY BOY'S RESERVATION

M-36815                                                                                                                     February 3, 1971.

Indians: Criminal Jurisdiction--Indians: Law and Order--State Laws

The modification of the Federal Indian liquor laws, permitting the introduction, possession and sale of intoxicating beverages on the reservation with tribal consent (Act of August 15, 1953, 67 Stat. 586, 18 U.S.C. § 1161 (1964), does not make Montana liquor laws applicable to the Chippewa Cree Tribe or tribal members on the Rocky Boy's Reservation. Rather, this act requires the state liquor laws to be used as the standard of measurement to define lawful and unlawful activity on the reservation. Actions not in conformity with the provisions of applicable state law would subject a tribal member to prosecution only in the Federal courts, not in state courts. Non-Indians would be subject to prosecution in the Federal and state courts, assuming a double jeopardy question is not presented.

Indian Tribes: Generally--Indians: Law and Order--State Laws

A subordinate tribal entity or tribal member licensed by the Chippewa Cree Tribe to operate a liquor establishment on the Rocky Boy's Reservation does not have to obtain a state liquor license.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Sale of liquor--Rocky Boy's Reservation, Montana

    We have received your request for our opinion on the Montana Liquor Control Board's authority over the sale of intoxicating beverages by the Chippewa Cree Tribe on the Rocky Boy's Reservation in Montana.

    Before 1953, Congress, through the passage of the Federal Indian liquor laws, prohibited the introduction, possession or sale of intoxicating liquor in "Indian country." 18 U.S.C. §§ 1154, 1156, 3113, 3488, 3618 (1964). In 1953, Congress made the Federal Indian liquor laws inapplicable to:

*     *     * any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which each act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register. (Emphasis added). Act of August 15, 1953, 67 Stat. 586, 18 U.S.C. § 1161 (1964).

    The Chippewa Cree Tribe passed Ordinance I-70 which was certified by the Commissioner of Indian Affairs on June 16, 1970, and published in the Federal Register on June 25, 1970, authorizing the introduction, sale or possession of intoxicating beverages on the Rocky Boy's Reservation. 35 F.R. 10384 (1970). The tribe then requested a liquor license from the Montana Liquor Control Board. The Attorney General of Montana, in answer to inquiries from the administrator of the Montana Liquor Control Board held that 18 U.S.C. § 1161 requires the tribe to comply with all the liquor laws of Montana, including the licensing law and quota system prescribed in §§ 4-403 and 420, R.C.M. 1947. Vol. 33, Opinion No. 23, Attorney General of Montana, June 29, 1970. Since there are no licenses available under the aforementioned quota system, the tribe cannot receive a license from the Montana Liquor Control Board.

    The first issue presented is the interpretation of 18 U.S.C. § 1161, which makes Federal Indian liquor laws inapplicable to acts or transactions "*     *     * in conformity *     *     * with the laws of the State in which such act or transaction occurs *     *     *."

    We do not believe Congress, in enacting this law, intended to make state liquor laws applicable to the tribe or tribal members on a reservation when a tribe wished to terminate Federal prohibition. If Congress had intended to impose state law here with state enforcement jurisdiction, we think Congress would have expressly granted jurisdiction to the states under 18 U.S.C. § 1161, which it did not do. Rather, we believe the intent was merely to require the state liquor laws to be used as the standard of measurement to define lawful and unlawful activity on the reservation.¹

    If, for example, a tribe has terminated Federal prohibition, and a tribal member commits an act or engages in a transaction in intoxicating beverages which is not in conformance with state law, the member would be subject to prosecution in the Federal courts for violation of the applicable Federal Indian liquor law. See 18 U.S.C. § 1154 (1964). However, the tribal member is not subject to prosecution in state court since Montana has not assumed the requisite jurisdiction over the Rocky Boy's Reservation under either 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). In such a situation, state criminal law does not apply to an Indian in "Indian country." Federal Indian Law (1958) 319-322, 512-513.

    However, if a non-Indian does not conform with the liquor laws of Montana while on an Indian reservation, the Federal courts and the state courts may both have jurisdiction over him for violations of separate state and Federal law, assuming a question of double jeopardy is not presented. It is well settled that non-Indians are subject to state law when committing crimes within "Indian country." United States v. McBratney, 104 U.S. 621 (1881); Draper v. United States, 164 U.S. 240 (1896); New York ex rel. Ray v. Martin, 326 U.S. 496 (1946).

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    ¹ Warren Trading Post v. Arizona Tax Commission, 380 U.S. 685 (1965), contains dictum from Mr. Justice Black who, in discussing the applicability of state laws on Indian reservations, states in footnote 3 on page 687: "Compare. e.g.. 18 U.S.C. § 1161 (1958 ed.) (permitting application of state liquor law standards within an Indian reservation under certain conditions): 45 Stat. 1185, as amended, 25 U.S.C. § 231 (1958 ed.) (permitting application of state health and education laws within a reservation under certain conditions; *     *     *." (Emphasis added)

    The question remains as to whether the Montana liquor licensing laws apply to a liquor establishment on the Rocky Boy's Reservation. The power to license subordinate entities is one of the attributes of any sovereign body, including Indian tribes. Solicitor's Opinion, M-36781 (August 25, 1969); 42 C.J.S. Indians § 12 p. 665 (1944). We believe the tribe, in the exercise of its inherent powers of sovereignty, can license a subordinate entity or tribal member to operate a liquor establishment on the reservation. In such a case, where the liquor establishment is not owned by a non-Indian, a license from the state would not be required. A non-Indian, however, would be required to obtain a state license, whether licensed by the tribe or not, since state laws still apply to him even while on a reservation, United States v. McBratney, supra; Draper v. United States, supra; New York ex rel. Ray v. Martin, supra, unless the business being conducted is subject to exclusive Federal regulation, Warren Trading Post v. Arizona Tax Commission, supra. If the State of Montana insists that a subordinate tribal entity or tribal member obtain a state license, this would be an unlawful infringement on the right of reservation Indians to make their own laws and be ruled by them. Williams v. Lee, 358 U.S. 217 (1959); Organized Village of Kake v. Egan, 369 U.S. 60 (1962); Littell v. Nakai, 344 F.2d 486 (9th Cir. 1965), cert. denied, 382 U.S. 986 (1966); Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th Cir. 1969), cert. denied, 396 U.S. 1003 (1970).

    The legislative history of 18 U.S.C. § 1161 contains a letter from the Assistant Secretary of the Interior to the Director, Bureau of Budget, dated August 7, 1953, recommending passage of H.R. 1055 (which eventually was enacted as 18 U.S.C. § 1161), in which the Assistant Secretary stated:

If the Indians on a given reservation wish Federal prohibition to continue on that reservation, all they have to do is refrain from adopting an ordinance to the contrary. If, on the other hand, they wish to terminate Federal prohibition in whole or in part, they have only to adopt an ordinance specifying what transactions in intoxicating liquors they wish to permit on their reservation. These transactions will thereupon cease to be subject to the Indian liquor laws if, and only if, they are permitted by the liquor laws of the State where the reservation is situated. Thus, the bill recognizes the principle of tribal self-government, but requires that it be exercised in a manner consistent with the public policy of the state. (Emphasis added).

    It the tribe is required to obtain a license from the state, we do not think that the principle of maintaining tribal self-government in conjunction with supporting the public policy of the state would be recognized as contemplated by the Assistant Secretary in his letter. So it seems clear that the tribe would decide what transactions in intoxicating beverages would be permissible and those transactions alone would have to conform to state law standards. Thus, the policy of state laws covering such items as hours for sale of liquor and legal age limits for sale must be followed, and if they are not the offender would be subject to prosecution for violation of the Federal Indian liquor laws because the act or transaction would not be in the language of 18 U.S.C. § 1161, "in conformity with the laws of the State."

    We are aware of the Montana Attorney General's reliance on State ex Tel. Kennerly v. District Court, 466 P. 2d 85 (Mont. 1970), for the proposition that Montana has jurisdiction in certain instances over the affairs of Indians in Indian country. On January 18, 1971, the Supreme Court of the United States vacated the judgment of the Supreme Court of Montana in the Kennerly case and remanded it for further proceedings. Kennerly, et al. v. District Court, No. 5370, October Term, 1970.

    The petitioners in the Kennerly case were members of the Blackfeet Tribe and residents of the reservation, who purchased groceries on credit at a store located on patented land in the incorporated town of Browning, Montana, but within the exterior boundaries of the Blackfeet Indian Reservation. In a suit to collect the debt, filed in state court, the petitioners moved to dismiss on the ground that states had no jurisdiction because the defendants were members of the Blackfeet Tribe and the transaction took place on the reservation. The trial court overruled the motion and the State Supreme Court affirmed, relying in part on a tribal council enactment which purported to give state courts concurrent jurisdiction with the tribal court over all actions in which a tribal member is a defendant.

    The Supreme Court of the United States, in a per curiam opinion, held that the Montana courts had no jurisdiction because Montana had neither been given nor had assumed by affirmative legislation, with respect to the Blackfeet Reservation, the civil or criminal jurisdiction provided for by the Act of August 15, 1953, 67 Stat. 590, as amended, and Title IV of the Civil Rights Act of 1968, 82 Stat. 79, 25 U.S.C. §§ 1321-1326 (Supp. V, 1965-1969).

    Montana has not been given and has not assumed civil or criminal jurisdiction over Rocky Boy's Reservation and we are convinced that the

Kennerly case is authority for our conclusion that it may not require a state license for sales of intoxicating liquors by the tribe or an Indian tribal licensee within the boundaries of the reservation. Being convinced also that Federal law does not require that a state license be required, but only that the acts or transactions be "in conformity with" the standards prescribed by state law, we believe that the tribe can, under the circumstances here considered, permit the sale of liquor on its reservation without violating Federal law.

    We realize that the Chippewa Cree ordinance indicates that all laws governing the sale of intoxicating beverages in Montana apply on the Rocky Boy's Reservation. However, this tribal interpretation of law, with which the tribe now apparently disagrees, cannot confer jurisdiction on the State of Montana.

    In addition, we note that a former Solicitor, in a letter to Mr. John W. Stilley of the Arizona State Legislature, dated March 26, 1954, stated in answer to a hypothetical question that an Indian desiring to operate a bar on a reservation would have to obtain a state license. This letter, which does not purport to be an official opinion, was written before the landmark cases of the Supreme Court protecting the right of reservation self-government were decided and must be weighed in that context. See Williams v. Lee, supra, and Organized Village of Kake v. Egan, supra. In any event, the views expressed in the 1954 letter of the Solicitor will not be followed to the extent that they conflict with any of the statements and conclusions contained in this opinion.

    In summary, we believe that the Chippewa Cree Tribe may license a liquor establishment owned or controlled by the tribe or tribal members on the Rocky Boy's Reservation without obtaining a license from the State of Montana or abiding by the prescribed quota system. If a tribal member commits an act or engages in a transaction not in conformance with Montana law he may be subject to prosecution for violating the Federal Indian liquor laws. In the case of a violation by a non-Indian, the Federal courts and the state courts would have jurisdiction over him.

ALASKA NATIVE CLAIMS LEGISLATION:
COMPLIANCE WITH NATIONAL
ENVIRONMENTAL POLICY ACT

                                                                                                                                                March 25, 1971.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Alaska Native Claims Legislation: Compliance with National Environmental Policy Act

    Section 102 of the NEPA (42 U.S.C. §4332) authorizes and directs that, to the fullest extent possible, all Federal agencies shall:

. . . include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on--

    (i) the environmental impact of the proposed action,

    (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

    (iii) alternatives to the proposed action,

    (iv) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

    Examination of the legislation in question makes it apparent that the legislation is not within the purview of the Act. The Alaska Native claims legislation, irrespective of which particular bill is considered, has the following general provisions:

    (1) It would convey certain lands to Alaskan Natives;

    (2) It would extinguish existing Native claims;

    (3) It would provide income and funds for the Natives.

    Clearly, the latter two provisions have no impact whatsoever on the environment and, to that extent at least, the legislation is not such as "significantly affects the quality of the human environ-

ment." The first provision is actually a duality: first, it would confirm the Natives' claims to lands which they actually occupy at present, and, it would vest title in them to lands which they do not presently occupy. In either case, the legislation does not contemplate any use or exploitation of the environment beyond current levels. In effect, the legislation constitutes a legislative quiet-title adjudication or settlement. It is, of course, conceivable that after gaining title the Natives may devote the lands to some use having an impact on the quality of the human environment. However, any consideration of such a possibility would be mere speculation at the present time.

                                                                                                                    MITCHELL MELICH,
                                                                                                                                                Solicitor.

CRIMINAL JURISDICTION OF UTAH OVER
NON-INDIANS HUNTING ON THE UINTAH
AND OURAY RESERVATION IN VIOLATION
OF STATE LAW^*

M-36813                                                                                                                                March 29, 1971.

State Laws--Indian Lands: Generally--Indian Tribes: Generally

Utah game laws apply to non-Indians who hunt, even with the tribe's permission, on the Uintah and Ouray Indian Reservation. Thus, non-Indians cannot hunt on the reservation without procuring a state license, even though they may be licensed by the tribe to do so.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Elk--Ute Tribe, Uintah and Ouray Reservation, Utah

    We have received your request for our advice concerning the Ute Tribe's right to allow non-residents of Utah to hunt elk on the Uintah and Ouray Reservation. You indicate there were elk on the original Uncompahgre Reservation established prior to Utah's admission to statehood. In addition, the Ute Tribe recently obtained 100 elk from a herd at Yellowstone National Park, paying for their transportation and release on the reservation. We understand that the elk from Yellowstone were allowed to resume their wild state and were not kept in enclosures or attempted to be tamed or domesticated. They are, therefore, to be regarded the same as other wild elk for purposes of this memorandum.

    You cite the Act of April 11, 1968, 82 Stat. 78, 25 U.S.C. § 1321 (b), to support the proposition that the Indians have authority to control, license, or regulate hunting, trapping and fishing on their reservation. This provision applies only to states which have assumed some measure of jurisdiction over Indian reservations under this act. Since Utah has not assumed any such jurisdiction, 25 U.S.C. § 1321 (b) is not germane. Moreover, we do not believe this section gives tribes authority, exclusive or otherwise, to control non-Indian hunting and fishing on a reservation; it merely preserves whatever powers individual tribes may have in states which have been given or have assumed civil or criminal jurisdiction under the act.

    While we do not agree with your statement that the elk on the reservation are the property of the Ute Tribe, we concede there is some legal authority to support the proposition of tribal ownership of the fish and wildlife on a reservation. Mason v. Sams, 5 F.2d 255 (W.D. Wash. 1925); Pioneer Packing Co. v. Winslow, 294 F. 557 (Wash. 1930). However, these cases involved one tribe, the Quinaults, and were concerned with the interpretation of a treaty. Whatever the present validity of these two cases as applied to the Quinaults' or other Indians' rights to fish in the State of Washington, we do not consider them to be controlling, or even persuasive, legal authority in the situation considered here.

    Even a state does not hold possessory title to the wildlife within its jurisdiction, but rather holds them in trust for the benefit of the people. Geer v. Connecticut, 161 U.S. 519, 529 (1896); 71 I.D. 469, 476 (1964). If the tribe had captured and

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    ^* This opinion was withdrawn by the Solicitor July 15, 1976.

confined these elk, there can be no individual property in fish and game so long as they remain wild, unconfined, and in a state of nature. 35 Am. Jur. 2d Fish and Game § 2 (1967). Title to the game in its natural habitat belongs to the first person who, lawfully reduces it to possession. Geer v. Connecticut, supra; 4 Am. Jur. 2d Animals § 5 (1962) .

    We note in passing that Utah has a statute indicating that all game not held in private ownership legally acquired belongs to the state. 3 Utah Code Ann. § 23-l-10 (1969). However, it has been held that statutes like these are concerned only with the state's power of regulations, leaving the landowner's interest what it is. McKee v. Gratz, 260 U.S. 127, 135 (1922); 71 I.D. 469, 476 (1964).

    Utah requires all persons to obtain a hunting license before taking any game. 3 Utah Code Ann. § 23-l-12 (1969). This provision also applies to Indians who are wards of the Federal Government when outside an Indian reservation. 3 Utah Code Ann. § 23-l-8 (1969). Utah also has a statute prohibiting any person from shipping game out of the state without having a valid license or permit attached to it. 3 Utah Code Ann. § 23-10-4 (1969). The question thus becomes whether Utah can enforce these statutes against non-Indians hunting elk on the Uintah and Ouray Reservation.

    Without question, the tribe has authority to require non-Indians to secure reservation hunting and fishing permits and observe tribal conservation rules while on the reservation. 58 I.D. 331, 333, 346 (1943). It is also well settled that state game laws do not apply to Indians on trust lands within the Indian reservation. 54 I.D. 517, 520 (1934); In re Blackbird, 109 F. 139 (W.D. Wis. 1901); In re Lincoln, 129 F. 247 (N.D. Cal. 1904); United States v. Hamilton, 233 F. 685 (W.D.N.Y. 1915).¹

    However, it must be remembered that Indian country is not regarded as an area of exclusive Federal jurisdiction, but is politically and governmentally a part of the state in which state laws apply to the extent that they do not conflict with Federal Indian law. Federal Indian Law (1958) 510, 513-514; Surplus Trading Co. v. Cook, 281 U.S. 647, 650-651 (1930). It is also well settled that offenses committed by a non-Indian against a non-Indian in the Indian country are punishable by the state. United States v. McBratney, 104 U.S. G21 (1881); Draper v. United States, 164 U.S. 240 (1896); New York ex rel. Ray v. Martin, 326 U.S. 496 (1946).

    There is authority which indicates that a non-Indian hunting on the reservation has no immunity from state regulations. State ex rel. Napstad v. Danielson, 427 P.2d 689 (Mont. 1967); Ex parte Crosby, 149 P. 989 (Nev. 1915); see United States v. Sturgeon, 27 F. Cas. 1357 (no. 16, 413) (D. Nev. 1879).² In addition, various Attorneys General have taken the position that a state has jurisdiction over non-Indians who violate state game laws while on an Indian reservation. 1950-1952 Opinions of the Attorney General of Nevada p. 20; 1953-1954 Report of the Attorney General of New Mexico p. 511; 1960-1962 Opinions of the Attorney General of Oregon p. 11.

    In the Danielson case, supra, a non-Indian killed two elk on the Crow Reservation in violation of Montana law. The Supreme Court of Montana stated at page 692:

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*     *     * we conclude that the State of Montana has jurisdiction to enforce its fish and game regulations on Indian reservations contained within its boundaries with respect to persons who are not tribal Indians unless precluded from doing so by an Act of Congress or unless such enforcement would interfere with self-government on the reservation.

    In conclusion, we believe there is simple authority indicating that non-Indians are subject to state game laws while on an Indian reservation. Of course, Utah may not choose to prosecute nonresident non-Indians who may hunt on the Ute Reservation in violation of state law. If Utah decides to exercise jurisdiction over these non-Indians, however, we believe the state has both the power and the right to do so.

NEGOTIABILITY OF CONSTRUCTION CONTRACT
UNDER THE "BUY INDIAN" ACT
OF JUNE 25, 1910

M-36856                                                                                                               February 22, 1973.
                                                                                                                              (Date of opinion: April 27,197l)

Contracts: Formation and Validity: Negotiated Contracts--Contracts: Formation and Validity: Authority to Make--Contracts: Formation and Validity: Construction Contracts--Act of June 25, 1910, 36 Stat. 861, 25 U.S.C. § 47 (1970)--Indians: Contracts

If substantive authority otherwise exists, Section 23 of the Act of June 25, 1910, 36 Stat. 861, 25 U.S.C. § 47 (1970), conveniently referred to as the "Buy Indian" Act, authorizes the negotiation of contracts, as an exception to the otherwise applicable advertising requirements of the Federal Property and Administrative Services Act of 1949, as amended (41 U.S.C. § 252 (c) (15) (1970) ), for the "purchases of products of Indian industry," and including contracts for construction.

Words and Phrases--Act of June 25, 1910, 36 Stat. 861, 25 U.S.C. § 47 (1976)

"Products of Indian industry," as that phrase is used in Section 23 of the Act of June 25, 1910, 36 Stat. 861, 25 U.S.C. § 47 (1970), conveniently referred to as the "Buy Indian" Act, includes the end product of physical labor or intellectual effort and requiring skill or diligence of, by, and from Indians. This would include construction and repair of roads, bridges, buildings, and similar things, as well as supplies and services.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Negotiability of construction contract under the "Buy Indian" Act of June 25, 1910

    Your memorandum of March 23, 1971, requested our opinion concerning the use of Section 23 of the Act of June 25, 1910, 36 Stat. 855, 25 U.S.C. § 47, as authority to enter into negotiated construction contracts with Indians. 25 U.S.C. § 47 reads:

So far as may be practicable Indian labor shall be employed, and purchases of the products of Indian industry may be made in open market in the discretion of the Secretary of the Interior.

    We believe this will support negotiated construction contracts with Indians.

    In considering the scope and applicability of that part of Section 23 of the Act of June 25, 1910, 36 Stat. 861, codified as 25 U.S.C. § 47 and conveniently referred to as the "Buy Indian" Act, we must necessarily point out that it confers no substantive authority to contract for anything. See our memorandum of June 20, 1969, to the Assistant Secretary, Public Land Management. The codified language quoted above was actually a proviso in a section of the 1910 Act which in its entirety reads as follows:

That hereafter the purchase of Indian supplies shall be made in conformity with the requirements of section thirty-seven hundred and nine of the Revised Statutes of the United States: Provided, that so far as may be practicable Indian labor shall be employed, and purchases of the products of Indian industry may be made in open market in the discretion of the Secretary of the Interior. All Acts and parts of Acts in conflict with the provisions of this section are hereby repealed.

    Section 3709 of the Revised Statutes, referred to in the quoted language, is codified as 41 U.S.C. § 5 and requires with certain exceptions that "purchases and contracts for supplies or services for the

Government may be made or entered into only after advertising a sufficient time previously for proposals." Its applicability was limited, in the purchase of Indian supplies pursuant to the 1910 Act, by a provision found in the Bureau of Indian Affairs Appropriation Act of May 18, 1916, 39 Stat. 123, 126, which reads as follows:

Provided further, that section thirty-seven hundred and nine, Revised Statutes, in so far as that section required advertisement be made, shall apply only to those purchases and contracts for supplies or services, except personal services, for the Indian field services which exceed in the amount the sum of $50 each, and section twenty-three of the Act of June twenty-fifth, nineteen hundred and ten (Thirty-sixth Statutes at Large, page eight hundred and sixty-one), is hereby amended accordingly.

    In legal effect, the $50 limitation of the 1916 amendment was raised to $100 by a provision found in the Act of January 25, 1927, 44 Stat. 934, 936.

    The part of Section 23 of the 1910 Act which was not codified as 25 U.S.C. § 47 was, as amended by the 1916 Act and modified by the 1927 Act codified as 25 U.S.C. § 93. The net result was a statutory requirement that all contracts in excess of $100 for the purchase of Indian supplies had to conform to the advertising requirements of Section 3709 of the Revised Statutes, except that "purchases of the products of Indian industry may be made in the open market in the discretion of the Secretary of the Interior."

    That portion of the amended and modified 1910 Act which was codified as 25 U.S.C. § 93, and which required compliance with Section 3709 of the Revised Statutes for non-Indian industry Indian supplies contracts in excess of $100, was repealed by Section 4 of the Act of October 10, 1940, 54 Stat. 1109, 1112. The 1940 Act was a substantive enactment of earlier exceptions to Section 3709 of the Revised Statutes, including that previously codified as 25 U.S.C. § 93, and permitted open-market purchasing of supplies by all bureaus of the Department where the aggregate amount of the purchase or service did not exceed $100 in any one instance. The 1940 exemption was in turn repealed by Section 9 (b) of the Act of August 2, 1946, 60 Stat. 809, which engrafted general exceptions on Revised Statutes § 3709 but left unaffected the provisions for open-market purchasing of "the products of Indian industry."

    Thus, there is no question of the survival of the authority for negotiated purchases of the products of Indian industry, at least until and, we believe, after, the enactment of the procurement provisions of the Federal Property and Administrative Services Act of June 30, 1949, 63 Stat. 393. For convenience that act, as amended, will be hereinafter cited to Title 41, United States Code.

    41 U.S.C. § 252 (a) provides in part that executive agencies shall, with certain exceptions not here material, make purchases and contracts for property and services in accordance with the provisions of the act and the implementing regulations of the Administrator of General Services. That being so, Section 252 (c) of Title 41 is applicable:

(c) All contracts for property and services shall be made by advertising, as provided in section 253 of this title, except that such purchases and contracts may be negotiated by the agency head without advertising if

*     *     *     *     *

(15) Otherwise authorized by law, except that section 254 of this title shall apply to purchases and contracts made without advertising under this paragraph.

    Section 260 of Title 41 provides that any provision of law which authorizes an executive agency to procure any property or services without advertising "shall be construed to authorize the procurement of such property or services pursuant to section 252 (c) (15) of the title [quoted above] without regard to the advertising requirements of sections 252 (c) and 253 of this title." Thus we have no difficulty in concluding that the open-market procurement authorized by 25 U.S.C. § 47 is, to the extent of its literal applicability and except as elsewhere limited by statute, "otherwise authorized by law" within the meaning of 41 U.S.C. §§ 252 (c) (15) and 260. In applying this exception to the advertising requirements of 41 U.S.C. § 252 (c) and 253, full compliance with 41 U.S.C. § 254 is mandatory. The same is true of the advance payments limitations of 41 U.S.C. § 255, and of the laws specifically made applicable by 41 U.S.C. § 258.

    If we are correct in our conclusion that the Federal Property and Administrative Services Act of 1949, as amended, is applicable to Bureau of Indians Affairs procurement, and we believe the literal and mandatory language of the act makes this conclusion inescapable, then 25 U.S.C. § 47 may have considerable significance as an exception to the advertising requirements of 41 U.S.C. §§ 252 (c) and 253. Before proceeding, however, it is necessary to examine the provisions of 41 U.S.C. § 252 (e):

(e) This section shall not be construed to (A) authorize the erection, repair, or furnishing of any public building or public improvement, but such authorization shall be required in the same manner as heretofore, or (B) permit any contract for the construction or repair of buildings, roads, sidewalks, sewers, mains, or similar items to be negotiated without advertising as required by section 253 of this title, unless such contract is to be performed outside the continental United States or unless negotiation of such contract is authorized by the provisions of paragraph (1)-(3), (9)-(11), or (13) of subsection (c) of this section.

    The language just quoted is in the form of an explanation or admonition, not a prohibition. It has been explained by the General Counsel of the General Services Administration in this way:

(e) No change in requirements regarding construction, repair, etc.--For clarity, this subsection provides that section [252] does not change the existing requirements for authorization for the erection or repair of buildings, roads, sidewalks, or similar items to be negotiated without advertising as required by section "253" except in the cases as specified in subsection.¹

    We observe that among the subsection's enumeration of paragraphs of 41 U.S.C. § 252 (c) which are excepted from the admonition that § 252 does not authorize negotiated construction and repair contracts, paragraph (15) ("otherwise authorized by law") is not listed. We do not believe the omission is critical to a determination that if negotiated construction and repair contracts are "otherwise authorized by law" they are not subject to the advertising requirements of 41 U.S.C. § 253, and we so hold.²

    This brings us back to the question presented, viz, does 25 U.S.C. § 47 authorize negotiated construction contracts with Indians? The basic question is whether roads, buildings, sewers, utility systems, and the like may be considered to be the "products of Indian industry." We have found no judicial or Departmental decision on the point. There is no meaningful legislative history to indicate the intention of the Congress. There are no qualifying words or phrases elsewhere in the underlying statute. There is no inherent inconsistency in the phrase itself. In short, we need only to define the language in its usual sense.

    "Product" is defined in Webster's Third Inter national Dictionary (1961) as:

*     *     * something produced by physical labor or intellectual effort: the result of work or thought *     *     *.

    In Great Western Broadcasting Corporation v. N.L.R.B., 310 F.2d 591, 595 (9th Cir. 1962), the court said:

In its broadest sense, the term 'product' denotes anything which is produced. Since economic activity includes the rendition of services, it is appropriate, where the context otherwise permits, to refer to a completed service as a 'product'.

    "Industry" in its usual sense is defined, again in Webster's Third International Dictionary (1961) as:

*     *     * a use or application of skill or cleverness *     *     * diligence in an employment or pursuit *     *     *.

    Putting these definitions together, we believe that 25 U.S.C. § 47 will permit the negotiation of contracts, where substantive authority exists, for the purchase by your Bureau of the end product of physical labor or intellectual effort and requiring skill or diligence, of, by, and from Indians. This would include construction and repair of roads, bridges, buildings, and similar things, as well as supplies and services.

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    ¹ Federal Properly and Administrative Services Act of 1949, as amended, with Analysis and Index, p. 71 (GC. GSA. Rev. 1958).
    ² This section "does not authorize or change the existing requirements for authorization for the erection or repair of buildings, roads, sidewalks, or similar items." (Emphasis added) See 1949 U.S. Code Cong. & Adm. News. 1457, 1498.
    ³ We also understand that the appropriations committees of the Congress have been informed of proposals to contract with Indians under the "Buy Indian" Act for Construction and maintenance. See e.g.. Hearings on H.R. 12781 before a Sub-Committee on Appropriations, 91st Cong., 1st Sess. Pt. 1, pp. 190-194 (1969).

States v. Jackson, 280 U.S. 183, 193; Udall v. Tallman, 380 U.S. 1 (1965). In addition, the views herein expressed are consistent with the present position of Assistant General Council, Division of Business and Administrative Law, Department of Health, Education and Welfare, as stated in his memorandum of September 25, 1970, to the Acting Director, Office of Procurement and Material Management, of that Department.

                                                                                                                    MITCHELL MELICH,
                                                                                                                                                Solicitor.

ELECTION OF PRINCIPAL CHIEF OF
SEMINOLE NATION

                                                                                                                                                May 4, 1971.

HONORABLE WILLIAM C. WANTLAND
Attorney General of the
    Seminole Nation of Oklahoma
P.O. Drawer 271
Seminole, Oklahoma 74868

DEAR MR. WANTLAND:

    We have considered your letter and brief of March 9, 1971, concerning the office of the Principal Chief of the Seminole Nation. We have also considered the letter sent to you by Representative Edmondson on March 22, 1971, of which we were provided a copy.

    You urge that the 1969 election of Mr. Terry Walker to the office of Chief is equivalent to the popular selection of a principal chief under Section 1 of the Act of October 22, 1970, 84 Stat. 1091, P.L. 91-495, and that he should be allowed to serve as such until the expiration of his term in 1973. We cannot agree. Section 1 contemplates that the popular selection of a principal chief shall take place after October 22, 1970. Prior to that date the exclusive method of filling that office and investing the principal chief with the power to execute deeds to Seminole land was appointment by the President or his delegate under Section 6 of the Act of April 26, 1906, 34 Stat. 137. Although we may agree that the 1970 Act affected an implied repeal, pro tanto, of so much of Section 6 of the 1906 Act as provides for Presidential appointment of the principal officers of the Five Civilized Tribes, such a conclusion does not permit a retroactive recognition of Mr. Walker's 1969 election as being the "popular selection" contemplated by Section 1 of the 1970 Act.

    We do, however, recognize Mr. Walker as the "principal officer" of the Seminole Tribe as that term is used in Section 4 of the 1970 Act. We understand that there has been no Presidentially appointed principal chief of the Seminoles for many years, and that none was extant when the 1970 Act was passed. Thus, Mr. Walker was the Seminole's "principal officer currently holding office at the date of enactment of" the Act and, under Section 4 thereof, "shall continue to serve for a period not to exceed twelve months" from October 22, 1970. The Associate Solicitor for Indian Affairs has held, quite properly, that Section 6 is applicable to the Seminole Tribe.

    We can only suggest that the Seminole Tribe submit to the Secretary of the Interior for consideration whatever procedures the Tribe feels will comply with Section 1 of the 1970 statute. In the alternative, as your letter indicates, the Tribe might seek legislative relief.

RIGHTS OF CANADIAN SIOUX INDIANS IN
DISTRIBUTION OF MISSISSIPPI SIOUX
JUDGMENT FUND--CLAIMS COMMISSION
LIMITATIONS

                                                                                                                                                May 6, 1971.

DEAR MR. CHAIRMAN:

    This is in answer to your letter of April 6, 1971, asking my opinion as to the right of certain Canadian Sioux Indians to participate in the distribution of the Mississippi Sioux Judgment Fund.

    On July 25, 1967, the Indian Claims Commission approved a compromise settlement in dockets numbered 142 and 359-363, except for the general accounting claim (Claim II) in docket numbered 363, and awarded $12,250,000 to the Eastern or Mississippi Sioux Indians. The awards represent additional payment for 29,423,900 acres of land in Iowa, Minnesota and South Dakota, taken from 1808 to 1859.

    Final judgments were granted to the aboriginal bands in the following amounts:

Sisseton and Wahpeton Bands                    $5,874,039.50
Medawakanton and
    Wahpakoota Bands                                  5,181,921.50
Medawakanton Band                                   1,194,039.00

    Funds to cover these awards were appropriated under H.J. Res. 1268 of June 19, 1968, 82 Stat. 239. The awards in these dockets go to the four aboriginal bands known collectively during treaty times as the Mississippi or Minnesota Sioux although they were separate land-owning entities.

    You ask whether these Canadian Sioux Indians have any right to share in the Mississippi Sioux Judgment Fund.

    The Indian Claims Commission is authorized to hear claims from American Indian tribes "residing within the territorial limits of the United States or Alaska." Section 2 of the Act of August 13, 1946, 60 Stat. 1050, 25 U.S.C. § 70a (1964). However, we find nothing in the Indian Claims Commission Act which specifically prohibits Indians who are not citizens of the United States from participating in a judgment awarded by the Commission.

    How an award is to be paid and precisely who can participate in the award, though, are questions, not for the Indian Claims Commission or the Court of Claims, but for congressional and administrative determination. Confederated Tribes of the Warm Springs Reservation v. United States, 177 Ct. Cl. 184, 210 (Ct. Cl. 1966); Peoria Tribe of Indians, et al. v. United States, 169 Ct. Cl. 1009, 1011-1012 (Ct. Cl. 1965); and Minnesota Chippewa Tribe v. United States, 315 F.2d 906, 914, n.11 (Ct. Cl. 1963). In addition, Congress has prohibited the expenditure of funds from appropriations to satisfy Indian Claims Commission awards until legislation has been enacted setting forth the purposes for which the funds will be used. See Act of July 26, 1968, 82 Stat. 425, 429; Act of October 29, 1969, 83 Stat. 147, 150; and Act of July 31, 1970, 84 Stat. 669, 672.

    In the past, Congress has enacted laws both allowing and disallowing participation by noncitizen Indians in various claims awards. In 1935, Congress enacted the Tlingit and Haida Jurisdictional Act which authorized the Tlingit and Haida Indians of Alaska to bring suit in the United States Court of Claims for claims against the United States. Act of June 19, 1935, 49 Stat. 388. Only Tlingit or Haida Indians living in the Territory of Alaska were entitled to share in any claims paid pursuant to the act. However, this act was amended in 1965 to allow participation in recoveries under the act by Tlingit and Haida Indians residing:

*     *     * in a local community or area in the United States or Canada who were legal residents of the Territory of Alaska on June 19, 1935, or prior thereto, or who are descendants of persons of Tlingit or Haida blood who were legal residents of the Territory of Alaska on June 19, 1935, or prior thereto. (Emphasis added) Act of August 19, 1965, 79 Stat. 543, 544.

    Conversely, in 1968, Congress specifically excluded those persons who were not citizens of the United States from participating in the disposition of a judgment awarded to the Delaware Nation. Act of September 21, 1968, 82 Stat. 861, 25 U.S.C. §§ 1181-1186 (Supp. V, 1965-1969).

    The bills introduced in the Congress last year relating to the distribution of the Mississippi Sioux Judgment Fund, H.R. 14984, S. 3174 and S. 3708, and the proposal before Congress this year, H.R. 796, all exclude persons who are not citizens of the United States from participation in the distribution of the judgment. Last year, the Department of the Interior indicated its position that individuals who are lineal descendants of ancestors in the four aboriginal bands but are not members of any of the modem entities should be included in the judgment distribution. However, the Department also stated that noncitizens of the United States should not participate in the distribution. H.R. No. 91-1150, 91st Cong., 2d Sess. 9 (1970); S. Rep. No. 91-1339, 91st Cong., 2d Sess. 9 and 25 (1970).

    We note in passing that the Canadian Indians who now claim a right to participate in this judgment distribution made no motion to intervene while this case was pending before the Indian Claims Commission.

    The liability of the United States is fixed as to the moneys granted in the Indian Claims Commission judgment to the four tribes comprising the Mississippi Sioux, whoever the eligible members may be. This judgment, when filed with the Congress, has the effect of a final judgment of the Court of Claims. 25 U.S.C. § 70 (u) (1964).

    The Department of the Interior has taken the position in this particular instance that as a matter of policy, noncitizens of the United States should not participate in the distribution of this judgment. The case law indicates that generally the method of disbursing the judgment and the means of establishing the qualifications of Indians, who may participate in a judgment award is for congressional determination. Congress has both allowed and dis-

allowed participation by noncitizen Indians in claims awards. Therefore, we respectfully submit that the question on whether these Canadian Indians should participate in the distribution of the judgment is now solely within the power of Congress to determine.

                                                                                                                    MITCHELL MELICH,
                                                                                                                                                Solicitor.

ALLOTTEE EASEMENT REQUEST SUBJECT TO
JURISDICTION OF ARMY CORPS OF ENGINEERS
--ALLOTTEE'S RIGHT TO WATER USE FOR
IRRIGATION PURPOSES

                                                                                                                                                May 11, 1971.

DEAR MR. GROSS:

    This is a response to your letter dated April 6, 1971, with regard to the letter from Eugene R. Trust, dated April 5, 1971.

    We have discussed the matter with the realty Division of the Pierre Agency of the Bureau of Indian Affairs at Pierre, South Dakota. They have informed us that the lands referred to in Mr. Trust's letter, except those contained within his own allotments, are subject to jurisdiction of the United States Army Corps of Engineers pursuant to the Big Bend Act of October 3, 1962 (76. Stat. 704). Hence, the Department of the Interior does not have the power to grant easements across the lands in question. Assistance in acquiring the desired easements can be obtained by Mr. Trust if he will contact the United States Army Corps of Engineers' field office in room 217 in the Federal Building in Pierre, South Dakota. The personnel of that office can advise him on the regulations and procedures involved in obtaining the easements Mr. Trust desires. In the event Mr. Trust desires further assistance, Mr. Brewer of the Bureau of Indian Affair' Realty Division in the Pierre Agency office at Pierre, South Dakota, will be available to render any assistance desired.

    In regard to the questions concerning his right to water for the purpose of irrigating his lands, Mr. Trust has been advised that he has a right to use water from the Missouri River for such purposes. The right to use water up to the amount necessary to irrigate all of his irrigable land has been established by the case of winters v. United States, 207 U.S. 564 (1908). That right has been recently clarified in the case of Arizona v. California, 373 U.S. 546 (1963). The right to water for the purpose of irrigation on this reservation was expressly confirmed in Section 14 of the Act of March 2, 1889 (25 Stat. 888) which provides as follows:

That in cases where the use of water for irrigation is necessary to render the lands within any Indian reservation created by this Act available for agricultural purposes, the Secretary of the Interior may be, and he is hereby, authorized to prescribe rules and regulations as may be deemed necessary to secure a just and equitable distribution thereof among the Indians residing upon any such Indian reservation created by this Act; and no other appropriation or grant of water by any riparian proprietor shall be authorized or permitted to the damage of any other riparian proprietor.

To our knowledge, his rights to the water have never been disputed. Further, to the best of our knowledge, there will not be any charges made for the use of the water from the reservoir.

    We hope that with this advice Mr. Trust will be able to proceed with his planned development.

                                                                                                                    RAYMOND C. COULTER,
                                                                                                                                            Deputy Solicitor.

TRIBAL DIRECTION OF FEDERAL EMPLOYEES--
EXPLANATION OF TERM "DELEGATION"

M-36803 (Supp.)                                                                                                                June 15, 1971.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Use of term "delegation" in Opinion M-36803, 77 I.D. 50 (1970)

    A question has been raised whether the use of the term "delegation" throughout the April 3, 1970, Opinion M-36803, 77 I.D. 50, places the conclusions of that opinion in jeopardy of violation of the constitutional doctrine against delegation of government authority enunciated in Schechter Corporation v.  United States, 295 U.S. 495, 537 (1935).

    The statute construed in that opinion, R.S. sec. 2072, 25 U.S.C. § 48, provides that direction of Federal Employees may be "given" to the proper trial authority. I do not regard the use of the

term "delegation" instead of the precise term used in the act, "given", to place the substance of the opinion in jeopardy of violation of the Schechter doctrine. Though there may be some semantic difference in these terms, the substance of the opinion was to construe authority conferred on the Secretary.

    The object of R.S. sec. 2072 was to authorize Indian tribes, in the discretion of the Secretary, to direct the performance of duties by certain Federal employees. Whether the conferment of such authority on a tribe is regarded as congressionally authorized "redelegation" as in O'Neal v. United States, 140 F.2d 908 (6th Cir. 1944) (see footnote 3 of our opinion) to an Indian tribe as an instrumentality of the Federal Government (see 59 I.D. 328 (1946) ), or as implementation of authority conferred directly on tribes by the Congress would not, in my opinion, make action taken pursuant to the act susceptible to successful attack as being in violation of the Schechter doctrine.

                                                                                                                    MITCHELL MELICH,
                                                                                                                                                Solicitor.

NON-AVAILABILITY OF CONFIDENTIAL AGREEMENT
OF INDIAN TRIBE UNDER PUBLIC INFORMATION ACT

M-36860                                                                                                                                 February 22, 1973.
                                                                                                                           (Date of opinion: Sept. 21, 1971)

Indians: Administrative Procedure Act: Public Information

The withholding, under 5 U.S.C. § 552 (b) (4), of a copy of an agreement between the Seneca Nation of Indians, the First Seneca Corporation, the United States Pillow Corporation, and certain individuals, and all drafts of the agreement, is warranted when the agreement was submitted in confidence to the Department for approval, the documents contain commercial or financial information, the fiduciary relationship between the Department and the Indian tribe was a sound ground for invoking the exemption under 5 U.S.C. § 552 (b) (4), and the party seeking the information failed to urge any reasons why the exemption should not be invoked.

HOGAN AND HARTSON
815 Connecticut Avenue, N.W.
Washington, D.C. 20006

Attention: SHERWIN J. MARKMAN, Esq.
                JOSEPH M. HASSETT, Esq.

GENTLEMEN:

    First, the documents were actually tribal business records and not agency records subject to the provisions of the Freedom of Information Act; second, the documents were received in confidence from the Seneca Nation and were being held by the Federal Government as trustee; third, a specific statutory exemption for the documents was claimed pursuant to the provisions of 5 U.S.C. § 552(b) (4).

    On August 19, 1971, you appealed that decision to the Solicitor and on September 8, 1971, Mr. Hassett and counsel for the Seneca Nation, Mr. Lazarus, were afforded an opportunity to present their respective views orally.

    At the outset we note that your original request sought the "agency agreement." The Bureau of Indian Affairs is not a party to the agreement, which in fact was prepared by or on behalf of the tribe and title to which is vested in the tribe. It should also be noted that the final agreement is merely submitted to the Secretary for approval because it involves the expenditure of funds made available to the Seneca Nation pursuant to Public Law 88-533, 78 Stat. 738. The agreement is not required to be filed with the Secretary, although a copy is retained as evidence of Secretarial approval.

    Section 552 (b) (4) of Title 5 U.S.C. provides:

    " (b) This section does not apply to matters that are *     *     * (4) trade secrets and commer-

cial or financial information obtained from a person and privileged or confidential *     *     *."

    The basis of the Bureau's reliance on this important exemption is, of course, the unique fiduciary relationship between the Department of the Interior and Indians. This fiduciary and confidential relationship has been aptly described by the Supreme Court in Seminole Nation v. United States, 316 U.S. 286, 296-297 (1942):

    "In carrying out its treaty obligations with the Indian tribes, the Government is something more than a mere contracting party. Under a humane and self-imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with Indians, should therefore be judged by the most exacting fiduciary standards."

    In the discharge of this fiduciary obligation it is essential that a confidential relationship be established and maintained. It has been long understood that documents such as these are submitted to the Department in confidence and we would be remiss in discharging this fiduciary obligation if these documents were released unilaterally with out the concurrence of the tribe. As you are aware, the tribes has not consented to the release and, in fact, has urged that the Department reject your request. We are led to the conclusion that the documents requested clearly are encompassed within the scope of the exemption of 5 U.S.C. § 552 (b) (4).

    Departmental regulations require that upon a determination that the requested records fall within one or more of the categories exempted under the Public Information Act, there be a further determination that sound grounds exist which require the invocation of the exemption, 43 CFR 2.2. While we feel that the fiduciary and confidential relationship between the Department of the Interior and Indians is a sufficient ground in and of itself requiring invocation of the exemption, we also point out that when Mr. Hassett was afforded an opportunity to state the interest of your client in the documents he declined to do so, and even disclaimed any knowledge of the litigation pending in the state courts of New York between the First Seneca Corporation and its construction contractor, in which, we are advised, the contractor unsuccessfully sought to obtain the documents.

    Thus Mr. Hassett declined to urge any grounds on behalf of your client why the exemption should not be invoked. Accordingly, the decision of the Bureau of Indian Affairs of February 11, 1971, is hereby affirmed.

REVOCATION OF INDIAN ALLOTMENTS IN
ALASKA

                                                                                                                                                October 15, 1971.

HON. HENRY M. JACKSON
United States Senate
Washington, D.C. 20510

DEAR SENATOR JACKSON:

    In response to your inquiry regarding the "legal consequences of revocation of Indian Allotments in Alaska" we have prepared the following memorandum. In your letter of September 21, 1971, you stated that the Alaska Native Land Claims bills "propose to, in effect, repeal the Allotment Acts." While the bills do propose to repeal the Act of May 17, 1906, 43 U.S.C. §270--1 et seq. (1970), we assume that with respect to any other allotment act you mean only that Alaskan Natives will hereafter be precluded from availing themselves of these other acts, (assuming a court would hold that an Alaskan Native could avail himself of allotment acts other than the Act of May 17, 1906). The bills do not prevent non-Alaskan Indians from availing themselves of the allotment acts not repealed by the bills. (25 U.S.C. §§334, 336, 337). Therefore, the bills would not affect the Department's practice of allowing non-Alaskan Indians to avail themselves of the other allotment acts in any of the States including Alaska. See Bertha Mae Tabbytite, 72 I.D. 124 (1965). In addition, we would like to point out that the citation to the Act of June 25, 1910 as 36 Stat. 363 should be changed to 36 Stat. 863. Also, the Act of May 17, 1906, cited in H.R. 10367 as 48 U.S.C. 357 should be changed to reflect its most current citation, 43 U.S.C. §270--1 et seq. (1970).

    With regard to your first question concerning the number, date, location and legal status of filings under the Act, we are able to supply the following information:

Under the 1887-1891 Act:
Only one application-on appeal as to acreage

Under the 1906 Act:
1. By year filed:
                    Prior to 1956      12
                    during 1956        11
                              1957         9
                              1958        12
                              1959        21
                              1960        110
                              1961        144
                              1962        71
                              1963        63
                              1964        46
                              1965        90
                              1966        59
                              1967        64
                              1968        108
                              1969        78
                              1970        346
                              1971        998 (thru 9/21)
                                            _____
                                             2230

2. Awaiting Action:
    (a)    Ready for issuance of
             certificate, but suspended.        48
    (b)    Awaiting Survey                     185
    (c)    Rights not yet determined--
             awaiting action by applicant
             or BIM                                2088
                                                        _____
                                                         2321
             (Difference between this total and total in item 1 is sue to splitting of cases containing separated parcels)

3. Location by Resource Areas (see map)
    Arctic Resource Area                         80
Fortymile                                              137
Kobuk                                                  486
Yukon                                                   427
Glenallen (Copper River)                       152
Bristol Bay                                            360
Cook Inlet (Anchorage)                          98
Southeastern (Juneau)                             18
McGrath                                               349
                                                           _____
                                                           2107

The above does not include the 125-150 allotment cases for which Allotment Certificates have been issued.

It should be pointed out also that there are approximately 2500-3000 cases under process by the Bureau of Indian Affairs that have not ye been filed with the Bureau of Land Management.

    In the second question of your letter you inquire as to "The point in the administrative process at which vested legal rights are created in an individual filing under the Act."

    We assume that "the Act" you refer to in your question is the Act of May 17, 1906. We do not believe any legal rights vest under the Act against the Government until the issuance of an allotment certificate. In other words, there is no point prior to the issuance of a certificate at which an applicant could compel issuance. The language is quite different from the mandatory language of the other allotment acts at 25 U.S.C. §§334, 336, 337 (1970). The Act states, in section 270-1, that:

The Secretary . . . is authorized and empowered, in his discretion and under such rules as he may prescribe, to allot not to exceed one hundred and sixty acres . . . to any Indian, Aleut, or Eskimo . . . who resides in and is a native of Alaska, and who is the head of a family, or is twenty-one years of age; and the land so allotted shall be deemed the homestead of the allottee . . . (Emphasis added)

    As the language indicates, Congress has left the allotment of lands in Alaska to the discretion of the Secretary. It is not a "mandatory type act" whereby one can acquire parts of the public domain merely by compliance with certain conditions with the Secretary only given a judicial type role to see that the Act's conditions are met. On the contrary, we believe the Act to be a "permissive type act" with all the legal ramifications that that type of act carries.

    Our research discovered no cases construing the Act on the permissive mandatory question. However, there are cases discussion this issue in terms of other statutes dealing with the public lands and the acquisition of rights under than. One such case is Ferry v. Udall, 336 F. 2d 706 (9th Cir. 1964), in which the appellants argued that the obligation to convey lands became complete when the land manager accepted and gave receipts for the bid price paid by them. They asserted that where the applicant for a patent to public lands performs prescribed conditions and pays the price, the equitable title thereto passes to the applicant and the United States holds mere legal title subject to a trust. The court disagreed, stating, at 710, that:

[T]he cases upon which appellants rely are those involving statutes which made it mandatory for the Secretary to transfer the land to those who complied with the statutory requirements, and which limited the Secretary's

discretion to that of determining that the requirements had been met. Sale of property under the Isolated Tracts Act involves an entirely different method of disposing of public property. Under this Act, Congress has left entirely to the Secretary's discretion whether to dispose of the land or not. Accordingly, this is not a case where a member of the public can acquire parts of the public domain merely by the compliance with (sic) or paying a price. In this case, no right to the land arises until the Secretary accepts a bid by issuing a certificate. (Emphasis added.)

    That the Act of May 17, 1906, is a permissive type statute such as the Isolated Tracts Act seems fairly certain. The court held, in Ferry, that the language "in his judgment, it would be proper" indicated that Congress had left to the Secretary's discretion the choice of whether or not to issue a certificate under the Isolated Tracts Act. The court stated, at 709, that "absent the issuance of the certificates" the appellants were "not entitled to any property or contractual rights in the land in question." The language quoted from the Act of May 17, 1906, supra, especially the language "authorized . . . in his discretion . . . to allot" likewise indicates that the decision whether to allot in any instance was one left to the Secretary by Congress and, as in Ferry, absent the issuance of a certificate, an applicant does not hold any property right assertable against the Government under the Act of May 17, 1906.

    A similar result, also dealing with the Isolated Tracts Act, is Willcoxson v. United States, 313 F. 2d 884 (D.C. Cir. 1963), cert. denied, 373 U.S. 932 (1963), in which the court stated at 888:

Congress entrusted to the Secretary's discretion the initial decision whether or not to sell isolated tracts of the public domain. The distinction is "between a positive mandate to the Secretary and permission to take certain action in his discretion."

    The court then pointed out, at 888, note 9, that:

Similar to the Isolated Tracts Act in this regard are §17 of the Mineral Leasing Act of 1920, as amended, 30 U.S.C. §226; the Small Tracts Act, 43 U.S.C. §682a; and the grazing lease provision of the Oregon and California Railroad Grant Land Act, 43 U.S.C. § 1181d.

    In conclusion then, our understanding of this Act is that no vested right accrues against the Government prior to the issuance of a certificate signifying the approval of the Secretary.

    In response to your third question, we believe the legal effect of H.R. 10367 to be that any application pending on the date that bill becomes law gives the applicant the option of either having the pending application approved or electing to take the rights conferred by the bill. The Senate bill and the administration bill, not having a similar provision regarding choice, would cut off any rights of those applying under the Act of May 17, 1906, 43 U.S.C. §270-1 et seq. (1970).

    Should any other questions arise, we would be most happy to assist the Committee.

THE EIGHTEEN YEAR OLD VOTE AMENDMENT OF
U.S. CONSTITUTION AS APPLIED TO TRIBES

M-36840                                                                                                                                November 9, 1971.

Indian Tribes: Sovereign Powers--Indians: Civil Rights -- Indian Reorganization Act -- United States--Voting

The Twenty-Sixth Amendment to the Constitution, providing, inter alia, that "the United States" shall not deny or abridge the right of eighteen-year-olds to vote, applies to Indian tribes' elections called by the Secretary pursuant to the Indian Reorganization Act or other act, but, because of the fundamental right of a tribe to govern itself, the amendment does not apply to Indian tribes in purely tribal elections.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     The eighteen-year-old vote amendment as applied to Indian tribes

    The Twenty-Sixth Amendment reads:

Section 1. The right of citizens of the United States, who are eighteen years of age or older,

to vote shall not be denied or abridged by the United States or by any State on account of age.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.

I

    Two important aspects of tribal sovereignty are: (1) the power of a tribe to govern itself;¹ and (2) the applicability to Indian tribes of the United States Constitution and general acts of Congress, unless Congress manifests an intent to include them.² First: A tribe's power to govern itself must include "the right to define the powers and duties of its officials, and the manner of their appointment or election *     *     *." Solicitor's Opinion, 55 I.D. 14, 30 (1934). Second: On its face, the Twenty-Sixth Amendment does not purport to limit the power of Indian tribes to determine for tribal elections³ the age qualifications of voters, and there is nothing in the legislative history of the amendment that would indicate that Congress intended that the amendment should apply to tribal elections.⁴

    In other words, even if a tribe's constitution includes a clause such as the following, for example, from that of the Confederated Salish and Kootenai Tribes of the Flathead Reservation, that the tribes:

*     *     * secure to ourselves and our posterity the power to exercise certain rights of self government not inconsistent with Federal, State, and local laws, *     *     *

it is clear that the Twenty-Sixth Amendment was not intended to constitute, and does not constitute, such an "inconsistent" law; the Twenty-Sixth Amendment is not inconsistent because it was not intended to speak, and does not speak, to the basic right of tribal self-government possessed by all recognized tribes.

II

    Actions of "the United States" under the amendment would include not only acts of Congress, but also judicial action and administrative action. See e.g., for definitions of "state action" under the Fourteenth Amendment, Shelley v. Kraemer, 334 U.S. 1, 14 et seq. (1948), and cases therein cited; Smith v. Allwright, 321 U.S. 649 (1944); Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 343 (1938); Virginia v. Rives, 100 U.S. 313, 318 (1880).

    The provisions in the Indian Reorganization Act that limit the right to vote in Secretarial elections⁵ to those persons 21 years of age or older constitute acts of "the United States" which "den[y] or adridg[e]" the right to vote of those Indians between 18 and 21. Such provisions, and any others that would operate with similar effect, are therefore unconstitutional as applied in such elections to otherwise qualified Indians of at least 18 years of age. The right to vote should therefore be extended to 18-year-olds in elections called to adopt new Indian Reorganization Act constitutions or amendments to existing constitutions, even though that particular existing constitution may impose a 21-year-old voting requirement, and to all other Secretarial elections.

    In other words, the Twenty-Sixth Amendment is self-executing,⁶ which means that all laws and regu-

____________________

    ¹ See, e.g., Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965); Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959); Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th Cir. 1956); Solicitor's Opinion, 55 I.D. 14, 30-32 (1934).
    ² Elk v. Wilkins, 112 U.S. 94, 100 (1884); McCandless v. United Slates ex rel. Diabo, 2.5 F.2d 71 (3rd Cir. 1928), aff'g sub nom. United States ex rel Diabo v. McCandless, 18 F.2d 282 (E.D. Pa. 1827); 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 F.2d 614, 617 (9th Cir. 1959). But see F.P.C. v. Tuscarora Indian Nation, 362 U.S. 99 (1960).
    ³ Tribal elections refer to those that are authorized under tribal constitutions or other organic documents. For tribes organized under the Indian Reorganization Act (48 Stat. 984, 25 U.S.C. §§461 et seq.) or other act, this would include elections of officials and referenda concerned with domestic and internal business, but not referenda adopting or amending a constitution. For tribes organized traditionally (those not organized under the Indian Reorganization Act or other act) this would include all elections of officials and all referenda, concerning not only domestic and internal business, but also the adoption of tribal constitutions and amendments thereto.
    ⁴ See, for an analogous example, Groundhog v. Keeler, 442 F.2d 674 (10th Cir. May 5, 1971), in which the court observes that the Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U.S.C. §§ 1301, 1302, "is much narrower than the language of the Fourteenth Amendment, and it omits entirely the suffrage provisions of the Fifteenth Amendment." The court thus assumes, as we do, that an amendment restricting only "the United States" does not, without more (such as a congressional act), restrict also tribal rights of self government.
    ⁵ Secretarial elections refer to those that are authorized pursuant to statute and conducted by the Secretary under his regulations. The primary examples are those authorized by the Indian Reorganization Act, which provides that any Indian tribe residing on a reservation may adopt or amend its constitution and bylaws, which shall become effective when ratified by a majority vote of adult members of the tribe (25 U.S.C. § 476). Adult members are defined as those who have attained the age of twenty-one years (25 U.S.C. § 479). Secretarial elections would thus also include elections such as Osage elections, pursuant to the Act of June 28, 1906, 34 Stat. 539, as amended, and 25 CFR Part 73.
    ⁶ United States v. Amsden, 6 F. 819, 822 (D. Ind. 1881) (regarding the self-executing nature of the Fifteenth Amendment).

lations contrary to it are changed without other action on the part of the Congress or federal agencies. Thus, for example, the definition of adult Indian in 25 CFR §52.1 (e) must be read: "Adult Indian means any Indian who has attained the age of 18 years." And 25 U.S.C. §479 is, in effect, changed to read:

The words 'adult Indians' wherever used in said sections shall be construed to refer to Indians who have attained the age of twenty-one years, except that in reference to voting in Secretarial elections, it shall be construed to refer to Indians who have attained the age of eighteen years.

    Regarding Secretarial elections concerned with issuing charters of incorporation, 25 U.S.C. §477 provides:

The Secretary of the Interior may, upon petition by at least one-third of the adult Indians, issue a charter of incorporation to such tribe: provided, That such charter shall not become operative until ratified at a special election by a majority vote of adult Indians living on the reservation.

    May 18-year-olds sign such petitions, and thus be counted among the "adult Indians" for the purpose of this statute? We think that the petition is a sufficiently integral part of the Secretarial election process that the 18-year-old vote requirement of the Twenty-Sixth Amendment must apply. See, e.g., Smith v. AIlwright, supra.

                                                                                                                    MITCHELL MELICH,
                                                                                                                                                Solicitor.

ALLOWANCE OF ATTORNEY FEES AND EXPENSES
UNDER THE ALASKA NATIVE CLAIMS
SETTLEMENT ACT

                                                                                                                                                February 22, 1972.

Memorandum

To:            Secretary
From:        Solicitor
Subject:     Allowance of attorney fees and expenses under the Alaska Native Claims Settlement Act

    We offer the following background information relative to the February 2, 1972 letter from the Chief Commissioner of the United States Court of Claims requesting that you advise him of the person on whom service of notice of claims for attorney fees and expenses may be made pursuant to Section 20 of the Alaska Native Claims Settlement Act.

    Under Section 20 of the Act, the Chief Commissioner is authorized to receive, determine and settle claims for attorney and consultant fees and out-of pocket expenses for services rendered Native tribes, bands, groups, villages or associations before December 18, 1971 in connection with the preparation of the Act and previously proposed Federal legislation and in connecting with claims pending before any Federal or State court or the Indian Claims Commission that are dismissed pursuant to the Act. Bona fide associations of Natives may also submit to the Chief Commissioner claims for actual costs incurred in filing protests, preserving land claims, advancing land claims settlement legislation, and presenting testimony to the Congress on proposed Native land claims.

    The Act limits the allowance of attorney and consultant fees and expenses to $2,000,000 and the allowance of actual costs to Native associations to $600,000.

    In handling the claims, the Chief Commissioner is directed by the Act to forward copies of them to the Attorney General of the United States, the Attorney General of the State of Alaska, to the Secretary of the Interior and to any other person who appears to have an interest in the claims. Such persons have 90 days within which to file an answer contesting a claim.

    The procedure established by the Act for obtaining the views of the Secretary of the Interior on the allowance of fees and expenses under the Alaska Native Claims Settlement Act is similar to that followed, largely pursuant to regulation and practice, in obtaining the Secretary's views with respect to the allowance of attorney fees and expenses by the Indian Claims Commission.

    The reasons for desiring the views of the Secretary of the Interior on such fees and expense claims grow out of the Secretary's approval of tribal attorney contracts pursuant to 25 U.S.C. §81 and 476. Because of duties imposed upon the Secretary by these statutes, the Department ordinarily receives information relating to the allowance of fees and expenses under tribal attorney contracts. It should be noted, however, that in the case of the attorney contracts entered into with Alaska Native associations, as distinguished from those made with tribes, bands, villages or other recognized tribal entities, the Solicitor's office concluded that association contracts were not subject to Secretarial approval under Federal law requiring the approval of tribal attorney contracts. How-

ever, even where there is no Secretarial approval of a contract between attorneys and an association of Alaska natives, it is anticipated the Department may well have information and therefore views to express concerning fees and expenses requested under the Alaska Native Claims Settlement Act for services performed for the association.

                                                                                                                    MITCHELL MELICH

REIMBURSEMENT OF UTE TRIBAL FUNDS FOR
CONSTRUCTION, OPERATION AND MAINTENANCE
OF IRRIGATION PROJECT

                                                                                                                    May 5, 1972.

HONORABLE FRANK E. MOSS
United States Senate
Washington, D.C. 20510

DEAR SENATOR MOSS:

    Secretary Morton has asked me to provide the report you requested April 14, 1972 on the correspondence you received from Mr. Parker M. Nielson, which is enclosed, concerning this office's actions pursuant to the Act of September 18, 1970, 84 Stat. 843. That act provides for the reimbursement of the Ute Indian Tribe of the Uintah Reservation for tribal funds used for the construction, operation and maintenance of the Uintah Indian Irrigation Project.

    The gist of Mr. Nielson's complaint seems to be that the Solicitor's office is improperly assuming authority to determine the heirs of deceased mixed blood former members of the tribe entitled to receive payments under the 1970 Act.

    Under Section 3 of the act the Secretary of the Interior is directed to pay 27.162 percent of the funds provided by the statute to the mixed-blood former members or "to their heirs or legatees under such rules as the Secretary may prescribe." Our office in Salt Lake City is assisting the Bureau of Indian Affairs in ascertaining the identity of those heirs and legatees. As is customary in making payments to heirs and legatees of persons entitled to receive payments from the Government, we have followed the practice here of paying directly to the heirs or legatees the amounts to which they are entitled under the act. The reason for delay in the case involving Mrs. Letha Wopsock about which Mr. Nielson specifically wrote are set forth in the letter of April 5, 1972 from our Salt Lake City office. A copy of that letter is included with Mr. Nielson's correspondence to you.

    We assure you that the direct payments to heirs and legatees are not the result of assuming any probate jurisdiction over the estates of the mixed bloods but because Congress has directed us to pay such persons. Where probate proceedings have determined the heirs and legatees of a deceased mixed-blood we have, of course, paid on the basis of such determinations. But as indicated in the April 5, 1972 letter Cram our Salt Lake City office the probate on the estate involved in Mrs. Wopsock's case is incomplete, necessitating the procedures set forth in that letter.

    We note with respect to Mr. Nielson's comment in his letter dated March 30, 1972 to you wherein he suggests that our handling of these matters has been designed to prevent him and other attorneys from earning any fees for legal services that Section 4 of the 1970 Act provides: "No part of any of the funds appropriated in accordance with the provisions of this act shall be subject to attorneys' fees."

    Finally, in regard to the above-described handling of the distribution of funds under the 1970 Act, we see no basis for any implication that we are attempting to exercise supervision over the mixed bloods in violation of the provisions of the Ute Termination Act of 1954, 25 U.S.C. Section 677 et. seq. In this connection I think it sufficient to observe that on April 24, 1972 the Supreme Court in Affiliated Ute Citizens of Utah v. United States ruled in favor of the Governor's unequivocal position that the United States has no responsibility for the mixed-bloods as Indians having a special relationship with the United States.

    If there is any further information which you would like to have from us in respect to this matter please let me know.

                                                                                                                    MITCHELL MELICH,
                                                                                                                                                Solicitor.
Enclosures

LITIGATION BEFORE COURT OF CLAIMS--
AUTHORITY OF SECRETARY TO APPROVE
SETTLEMENT PROVISION IN ATTORNEY CONTRACTS

M-36855                                                                                                                                June 2, 1972.

As secretarial approval of compromise settlements of tribal claims against the United States are not required by statute, tribal claims attorney contracts which provide for such secretarial approval should be modified so as not to require secretarial approval of compromise settlements

in which the Secretary is a "real party defendant" since in those situations it would be a clear breach of his fiduciary obligation to counsel a tribe in the prosecution and settlement of its claim while at the same time defending against the claim.

Memorandum

To:            Assistant Secretary, Public Land Management
From:        Solicitor
Subject:     Tribal Claims Attorney Contracts; "Approval of Settlement" Provisions

    Sections 81 and 476 of Title 25, United States Code, require Secretarial approval of contracts between a tribe and its attorney. There is no statutory requirement, however, for Secretarial supervision over the conduct of that Litigation or approval of any settlement proposal. Such provisions have an administrative origin and were designed for attorney contracts under which tribal claims were prosecuted under the Indian Claims Commission Act of 1946, 25 U.S.C. §70 et seq., or under prior special jurisdictional acts.

    These claims--essentially historical in nature--were and are being defended by the Department of Justice without the assistance or participation of this Department. No litigation report is prepared, no consultation occurs and no recommendations as to the course or disposition of the litigation are made. Under such circumstances, the Secretary thus remains free to counsel the tribe and approve any proposed settlement, in his trust capacity.

    However, tribal claims arising subsequent to 1946 which are asserted against the Government in the Court of Claims, present an entirely different problem for the Department. First, these claims are of current vintage and essentially charge the Secretary with a breach of his trust responsibilities. Second, this Department actively assists the Justice Department in the defense of such claims and, in essence, the Secretary is a "real party defendant."

    The difference in roles played by the Department in Court of Claims cases (handled by the General Litigation Session of the Land and Natural Resources Division) as opposed to Indian Claims Commission cases (handled by the Indian Claims Section) appears to be largely due to the nature of the claims. It is this difference which prevents the Secretary from counseling a tribe in the prosecution and settlement of its claims while at the same time defending against the claim. To do so would constitute, in our opinion, clear breach of his fiduciary obligation.

    Thus, in the pending Court of Claims cases, such as Klamath and Modoc Tribe v. United States, the Department should avoid counseling a tribe in the prosecution of its claims and should avoid reviewing a proposed settlement for the purpose of recommending to the tribe its acceptance or rejection. The settlement approval provision of the attorney claims contract can be waived by the Secretary (as has been done in the case of an unpractical provision for the supervision and direction of such litigation by the Secretary), and, in any event, as a matter of law the trustee is discharged of his fiduciary obligations with regard to the conduct of the litigation.

    Of course, use of the current settlement approval provision in tribal claims attorney contracts should be discontinued and, where practicable, existing contracts should be amended. We suggest use of the following substitute provision, which provides for continued approval by the Secretary of settlements of the Indian Claims Commission cases but eliminates such approval for pending Court of Claims cases:

That any compromise or settlement of the matters in controversy shall be subject to the approval of both the tribe and the Secretary, except that his approval shall not be required where the Secretary actively assisted in the defense of the claim against the United States, in which case the Secretary will determine only that the approval by the tribe of any compromise or settlement has been made in accordance with tribal law.

ADVISORY RESPONSIBILITIES OF LAND USE
PLANNING COMMISSION UNDER ALASKA NATIVE
CLAIMS SETTLEMENT ACT

                                                                                                                                                June 28, 1972.

To:            Secretary
From:        The Solicitor
Subject:     Land Use Planning Commission for Alaska

    This memorandum responds to your request concerning the role of the Land Use Planning Commission for Alaska in the Department's decision making process in the finalization of making withdrawals under Sec. 17 (d) (2) of the Alaska Native Claims Settlement Act 85 Stat. 688,709.

    The legislative history of the Alaska Native Claims Settlement Act makes it clear that the Commission has no regulating authority but has important advisory responsibilities.

    With respect to the final decision to make withdrawals of up to 80 million acres, the statute provides (Sec. (17) (a) (7) ) that the Commission shall, among other actions:

(A)    undertake a process of land-use planning, including the identification of and the making of recommendations concerning areas planned and best suited for permanent reservation in Federal ownership as parks, game refuges, and other public cases, --;
(E)    establish procedures, including public hearings, for obtaining public views on the land-use planning programs of the State and Federal Governments for lands under their administration;
(F)    establish a committee of land-use advisers to the Commission, made up of representatives of commercial and industrial land users in Alaska, recreational land users, wilderness users, environmental groups, Alaska Natives, and other citizens;
(I)    make recommendations to insure that economic growth and development is orderly, planned and compatible with State and national environmental objectives, the public interest in the public lands, parks, forests, and wildlife refuges in Alaska, and the economic and social well-being of the Native people and other residents of Alaska;
(J)    make recommendations to improve coordination and consultation between the State and Federal governments in making resource allocation and land use decisions;

    It is recognized that the Commission is getting a very late start in performing its tasks. Fortunately, in Sec. 17 (a) (3) of the Act, provision is made for only six members to constitute a quorum, and the existence of a vacancy does not affect the powers of the Commission. Sec. 17 (a) (6) A permits a sub-committee of the Commission, or even a single member, to hold hearings and take testimony. The failure of the Commission to make timely recommendations places the entire justification of the Commission in serious question. From the quoted sections it is clear that the Commission has duties in the field of recommending lands for conservation and in the area of minimizing Federal and State conflicts. Obviously, both these objectives are extremely important. A failure on the part of the Commission to perform these duties may very well precipitate more litigation to compel it to do so. If the Commission takes advantage of the provisions of 17 (a) (3) and 17 (a) (6) A, it should be able to meet its obligations. The burden will then shift to you to seriously consider those recommendations.

    It is my judgment that your decision under Sec. 17 (d) (2) of the Act must take into consideration any recommendations timely received by you from the Commission on the aforementioned withdrawal, keeping in mind that these withdrawals must be completed by September 18, 1972. Additionally, it is my opinion that the Commission should hold public hearings on these 80 million acres prior to their advice to you.

IRRIGATION AND RECLAMATION

HONORABLE KENT FRIZZELL,
Assistant Attorney General
Land and Natural Resources Division
Department of Justice
Washington, D.C. 20530

DEAR MR. FRIZZELL:

    This letter is in response comments on a memorandum to your request for of your office (Your Ref. DRW:GAE 90-1-2-868) concerning the Classification and Multiple Use Act, 43 U.S.C. §§1411-18 (1970), and whether classifications under that Act have had the effect of reserving water.

    Specifically, the memorandum points out that the Classification and Multiple Use Act provides that it is "consistent with and supplemental to" the Taylor Grazing Act and the memorandum then sets forth language in the Taylor Grazing Act which appears inconsistent with any intention that water was reserved under the Taylor Grazing Act. The memorandum then examines some cases in which the courts have limited, to some extent, the effect of water clauses similar to that contained in the Taylor Grazing Act where these clauses were in conflict with other specific provisions in the relevant acts.

    The language in the Taylor Grazing Act which appears to negate any intention that water was to be reserved under the Taylor Grazing Act, reads as follows:

. . . [N]othing in this Act shall be construed as or administered as in any way to diminish or impair any right to the possession or use of water for mining, agriculture, manufacturing, or other purposes which has heretofore vested or accrued under existing law validly affecting the public lands or which may be hereafter initiated or acquired and maintained in accordance with such law. (43 U.S.C. §315b (1970).)

    Assuming, as your memorandum does, that the Taylor Grazing Act water clause does have the effect of precluding reservations of water under that Act and its related withdrawals, and assuming, as you have, that the language of the Classification and Multiple Use Act, "consistent with and supplemental to," refers to the entire Taylor Grazing Act (including the water clause in §315b), and not just to the classification section of the Taylor Grazing Act (§315f), we do not feel the cases discussed in your memorandum adequately support the argument that classifications under the Classification and Multiple Use Act have had the effect of reserving water.

    For example, in Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 291 (1958), the Court was faced with the issue of whether the water clause in § 8 of the Reclamation Act of 1902 was to be interpreted so broadly as to nullify the 160-acre limitation provision in § 5, since state water law made no such limitation.

    The water clause in § 8 of the Act (43 U.S.C. § 383 (1970) provides as follows:

Nothing in . . . this title shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder. . . .

    In reaching its conclusion that § 8 could not be read in such a way as to require the Secretary to violate the 160-acre limitation in § 5, the Court had the following comment regarding the water clause:

As we read § 8, it merely requires the United States to comply with state law when, in the construction and operation of a reclamation project, it becomes necessary for it to acquire water rights or vested interests therein. But the acquisition of water rights must not be confused with the operation of Federal projects. (Emphasis added.)

    Thus, while the Court did, to some extent, limit the applicability of the water savings clause in §8, it also specifically held that the clause would require the Government to comply with State law if the Government needed to acquire water rights.

    In State of California v. Federal Power Commission, 345 F. 2d 917 (9th Cir. 1965) cert denied, 362 U.S. 941 (1965), the court was presented with the issue of whether, in light of § 27 of the Federal Power Act of 1920 (16 U.S.C. § 821), which contains a water clause similar to § 8 of the Reclamation Act of 1902, the Federal Power Commission had the authority to attach to a license to operate an irrigation project on public land a condition which could operate to impair two irrigation districts' full use of their irrigation water rights in some future year. The condition concerned the release of waters to maintain salmon runs below a proposed dam. The court stated, at 923, that under § 10 (a) of the Act of the Federal Power Commission is required to "consider all beneficial public uses including recreational uses. Under that section, and under section 4 . . . the Commission is made the 'guardian of the public domain.' . . . The issuance of a license can be justified only on the theory of a resulting benefit to the public." The court concluded that such a condition was within the scope of § 10 (a) of the Act and the court refused to interpret § 27 as precluding what § 10 (a) authorized.

    While the court did not specifically state what the Supreme Court said in Ivanhoe, namely that the water clause requires that when the United States needs to acquire water rights it must comply with state law, nevertheless such a conclusion is implied. As the Court in Ivanhoe said: "The acquisition of water rights must not be confused with the operation of Federal projects." Furthermore, the Supreme Court made the effect of § 27 clear in Federal Power Commission v. Oregon, 349 U.S. 435, 444-45 (1955), when the Court said in reference to that section that:

There thus remains no question as to the constitutional and statutory authority of the Federal Power Commission to grant a valid license for a power project on reserved lands of the United States, provided that, as required by the Act, [a footnote reference to § 27 is made here] the use of water does not conflict with vested rights of others. (Emphasis added.)

    Accordingly, under tile assumptions posited above, we do not feel these cases would support any argument that classifications under the Classification and Multiple Act reserved any water.

STATE OF NORTH DAKOTA CANNOT TAX INDIANS
WITHIN THE STANDING ROCK SIOUX INDIAN
RESERVATION

                                                                                                                                            September 7, 1972.

Honorable Milton R. Young
United States Senate
Washington, D.C. 20510

DEAR SENATOR YOUNG:

    This is in response to your August 24, 1972, letter concerning the recent ruling of the Honorable W. C. Lynch that the state of North Dakota cannot tax Indians within the Standing Rock Sioux Indian Reservation.

    I am enclosing a copy of the opinion, dated August 7, 1972, entered by Judge Lynch in White Eagle v. Dorgah, et al., Civil No. 21397, District Court, Fourth Judicial District, County of Burleigh, State of North Dakota. Since the United States was not a party to the suit, we do not have copies of the pleadings. It appears from the decision, however, that the issues raised were those mentioned in the second paragraph of your letter.

    In response to the specific questions raised in your letter, I offer the following:

    1. The ruling would, in my view, cover Indians of less than full blood if they were members of the Standing Rock Sioux Tribe. Current membership ordinances of the tribe require that all applicants possess at least one-quarter Indian blood.

    2. The Federal Government, in determining which reservation Indians shall be eligible for federal Indian programs, generally requires only that the applicant be a member of the tribe.

    3. In my view the ruling applies only to tribal members (and perhaps to members of other tribes who happen to be on Standing Rock Sioux Reservation). A person with Indian blood who was not a member of a recognized tribe would be subject to state jurisdiction.

                                                                                                                    MITCHELL MELICH,
                                                                                                                                                Solicitor.

HUNTING, FISHING, RICING REGULATIONS--
JURISDICTION OF LEECH LAKE BAND OF
CHIPPEWA INDIANS

M-36864                                                                                                                                October 10, 1972.

To Regulate Hunting, Fishing and Ricing by its Members within tile Boundaries of the Leech Lake Reservation, and to enforce those regulations against its members

Indian Tribes: Hunting and Fishing: On Reservation. The Leech Lake Band of Chippewa Indians, as a constituent element of the Minnesota Chippewa Tribe, possesses such powers of self-government, under the Indian Reorganization Act of 1934, as have been delegated to it by the parent tribe. These include the authority to regulate hunting, fishing, and ricing within the Leech Lake Reservation. The band also possesses the authority to enforce its tribal hunting, fishing and ricing regulations against its own members within the reservation.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Jurisdiction of the Leech Lake Band of Chippewa Indians to regulate hunting,
                 fishing, and ricing by its members within the boundaries of the Leech Lake
                 Reservation, and to enforce those regulations against its members

cision by the United States District Court of Minnesota in the companion cases of Leech Lake Band of Chippewa Indians v. Herbst, 3-69-Civ-65, and United States v. Minnesota, 3-70-Civ-228. In an opinion dated December 10, 1971, the court in those cases declared:

*     *     * that Plaintiff Indians have the right to hunt and fish and gather wild rice on public lands and public waters of the Leech Lake Reservation free of Minnesota game and fish laws. Defendants are enjoined from enforcing such laws.

    Subsequent to formal entry of judgment in the case in January, 1972, the parties entered into an agreement by which, inter alia, (1) the band is to adopt a Conservation Code with provisions, spelled out in the agreement, acceptable to the State of Minnesota; (2) the band is not to exercise its right to fish commercially within the boundaries of the reservation; (3) the band is to receive, through the State of Minnesota, a $1.00 fee from non-Indians for the right to hunt and fish within its reservation. The last point will require state legislative approval, which cannot occur before the next legislative session in 1973; until then, the defendants have agreed to ask the Court of Appeals for the Eighth Circuit to hold their appeal of the case in abeyance.

    Certain first principles of Indian law should, perhaps, be set forth at the outset. Unless its status is changed by appropriate authority, an Indian tribe is a distinct political community occupying its own territory. Williams v. Lee, 358 U.S. 217 (1958); Turner v. United States, 248 U.S. 354 (1919); Montoya v. United States, 180 U.S. 261 (1901); United States v. Kagama, 118 U.S. 375 (1886); Worcester v. Georgia, 6 Pet. 515 (1832). An Indian tribe's powers of self-government are limited only to the extent that it has been expressly required to surrender them by the superior sovereign, the United States. Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965); Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959); Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th Cir. 1956); Solicitor's Opinion, 55 I.D. 14 (1934).

    The status of Indian tribes generally is succinctly stated in Federal Indian Law 398 (Interior Dept. 1958):

The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles:
(1) An Indian tribe possessed, in the first instance, all the powers of any sovereign State. (2) Conquest rendered the tribe subject to the legislative power of the United States and, in substance, terminated the external powers of sovereignty of the tribe, e.g., its power to enter into treaties with foreign nations, but did not by itself terminate the internal sovereignty of the tribe, i.e., its powers of self-government. (3) These internal powers were, of course, subject to qualification by treaties and by express legislation of Congress, but save as thus expressly qualified, many powers of internal sovereignty have remained in the Indian tribes and in their duly constituted organs of government.

    The Leech Lake Band of Chippewa Indians is organized as a constituent clement of the Minnesota Chippewa Tribe, which in turn is organized under the Indian Reorganization Act of 1934, U.S.C. §§ 461 et seq. As such, it possesses such powers of self-government as have been delegated to it by the parent tribe. These include, under Resolution No. 12-73, the:

*     *     * authority to regulate, license or other wise [sic] control all Hunting, Fishing, Trapping or Wild Ricing Treaty Rights on Leech Lake *     *     * Reservation *     *     *.

    The band's right to hunt, fish, and gather wild rice within the boundaries of its reservation was reserved by it in treaties with the United States. Leech Lake, supra. It derives its powers to regulate the exercise of that right by its members from its inherent powers of self-government, as delegated to it by the above-quoted resolution of its parent tribe. Tribal power to regulate members' treaty-secured right to hunt and fish has been previously affirmed by this office. In Solicitor's Opinion, 69 I.D. 68 (1962), involving tribal power to regulate off-reservation fishing rights in Washington and Oregon, the Solicitor stated, at 70:

In our opinion it is clear *     *     * that a tribe may define and regulate treaty fishing rights. Furthermore, in so doing the tribal group may adopt ordinances to preserve and protect such fishing rights, since the tribe is not bound to sit idly by while individual members commit acts amounting to confiscation or destruction of the tribe's treaty rights.

    See also Whitefoot v. United States, 293 F.2d 658, 663 (Ct. Cl. 1961), cert. denied, 369 U.S. 818 (1962).

    Jurisdiction to enforce tribal hunting, fishing, and ricing regulations against its own members

within the reservation would also rest with the band. Its inherent power to establish a tribal court for such a purpose was recognized by the parent tribe in its Resolution No. 91-72, giving the band:

*     *     * the right, authority, and jurisdiction to establish a Conservation Court for the purpose of enforcing the provisions of the Leech Lake Reservation Conservation Code, which judicial system shall exercise jurisdiction over all members of the Minnesota Chippewa Tribe within the exterior boundaries of the Leech Lake Reservation.

    See Williams v. Lee, supra; Federal Indian Law 369-71, 444-45 (Interior Dept. 1958). The power of such a court would reach only members of the band. See Id. 314-19; Solicitor's Opinion, 77 I.D. 113 (1970). That Minnesota was granted civil and criminal jurisdiction over events and offenses occurring within Indian country (outside of the Red Lake Reservation) by the Act of August 15, 1953, 67 Stat. 588 ("P.L. 280") is not germane to the present question. For that act specifically provided that it was not to:

*     *     * deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.

    Klamath & Modoc Tribes v. Maison, 139 F. Supp. 634 (D. Ore. 1956), held that P.L. 280 prevented state conservation laws from applying within a reservation in a state that had assumed jurisdiction under P.L. 280. Indeed, the import of the holding in Leech Lake itself is to the same effect. See also Solicitor's Opinion, 63 I.D. 253 (1956).

ALASKA NATIVE CLAIMS SETTLEMENT ACT,
STAT. 688, 714--VILLAGE CORPORATIONS AND
REGIONAL CORPORATIONS

                                                                                                                                                October 13, 1972.

DEAR TED:

    This is in response to your inquiries of July 26 and September 7, 1972. I have examined Section 22 (c) of the Alaska Native Claims Settlement Act, 85 Stat. 688, 714, and have reached certain conclusions about its construction. First, the section is applicable to mining claims on lands conveyed to Village Corporations and Regional Corporations. Second, the special privileges of the section inure to the benefit of mining claimants who have made a valid discovery of a valuable mineral deposit and who have recorded notice of their location on or before August 31, 1971. These mining claimants may continue in their possession for a period of 5 years commencing December 18, 1971, and ending December 18, 1976, if they comply with all the requirements of the mining laws. This means, in effect, that the mining claimants must do their annual assessment work. The claimants will not be disturbed in their possession by the United States for failure to have performed assessment work prior to December 18, 1971, but individuals asserting the benefit of this act may be challenged on the basis of not having initiated a valid mining claim or not having properly recorded a notice of their location. Individuals who are entitled to the benefits of Section 22 (c) may proceed to patent.

    It is hoped that these statements sufficiently answer your inquiries.

                                                                                                                    MITCHELL MELICH,
                                                                                                                                                Solicitor.

TITLE TO ACCRETION LANDS

M-36867                                                                                                                                December 21, 1972.

Indian Tribes: Reservations

Where an Executive Order establishing an Indian reservation on public lands of the United States included a reference to unsurveyed and unappropriated public lands adjacent to specifically described subdivisions and between said specifically described subdivisions and the waters of an adjacent river as would, upon an extension of the lines of existing surveys, constitute fractional portions of specifically named quarter sections of a named section, the reference to portions of the section shall be deemed to be words of description and not words of limitation so that the Indians would have rights as riparian owners to the accreted lands found to lie between such projected section lines, when established, and the waters of the adjacent river.