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DECEMBER 21, 1972


To:            Assistant Secretary for Public Land Management
From:        Solicitor
Subject:     Title to accretion lands adjacent to the Cocopah Indian Reservation, Arizona

    This office has been requested to review an opinion of a former Solicitor, Solicitor's Opinion of April 15, 1955, M-36275, regarding title to accretion lands adjacent to the Cocopah Indian Reservation, Arizona.

    The Cocopah Indian Reservation was created by an Executive Order on September 27, 1917, which reads:

It is hereby ordered that the west half of the south-east quarter of section twelve and the west half of the north-east quarter of section thirteen, township ten south, lots two, four, five and six, together with such vacant, unsurveyed and unappropriated public lands adjacent to the foregoing described subdivisions and between the same and the waters of the Colorado River as would, upon an extension of the lines of existing surveys, constitute fractional portions of the northwest quarter of Section thirty, township nine south of range twenty-four west of the Gila and Salt River Meridian, Arizona, be, and the same are hereby withdrawn and set apart for the use and occupancy of the Cocopah Indians, subject to any valid prior existing rights of any person or persons thereto, and reserving a right of way thereon for ditches or canals constructed by the authority of the United States. (Emphasis added)

    Over the years there have been considerable differences of opinion regarding interpretation of the Executive Order. One interpretation to which the Executive Order is susceptible is that the Executive Order gave everything to the Cocopah Indians between the Colorado River and the subdivisions mentioned. The second interpretation is that the reference to fractional portions of the northeast quarter and the northwest quarter of section 30 are words not merely of description but of limitation, and that therefore the Indians could not claim any land west of section 30. In the Solicitor's Opinion of April 15, 1955, the interpretation that was followed was that the reference to fractional portions of the northeast quarter and the northwest quarter of section 30 were not merely words of description, but words of limitation.

    In the process of reviewing this matter I have been provided copies of numerous documents bearing on the intent of the original Executive Order, some of which documents the former Solicitor may not have had available to him at the time the 1955 opinion was rendered. One of these documents is a letter dated July 26, 1917, from the Commissioner of the General Land Office of this Department to the Commissioner of Indian Affairs. The significance of that letter arises from the fact that it contained the proposed wording of an Executive Order which in fact was used in the Executive Order of September 27, 1917. Thus the precise phraseology of the Executive Order that has resulted in differing interpretations over the years stems directly frown the General Land Office letter.

    The former Solicitor in his 1955 opinion indicates that prior to the date of the Executive Order establishing the reservation it was recognized that the river channel had already shifted westward leaving a considerable area of accreted land between the river and what would have been the western line of section 30 had the public survey lines been extended, and he therefore concluded that the reference to section 30 in the Executive Order operated to exclude the accreted land found to the west of section 30 from the reservation. My examination of the various documents and particularly the aforesaid letter of July 26, 1917, from the General Land Office, leads me to the opposite conclusion. While it seems clear that as a matter of fact prior to the date of the Executive Order the river channel had already shifted westward leaving a considerable area of accreted land between the river and what would have been the western line of section 30 had the public survey lines been extended, and it is also clear that the existence of accreted lands was known, it is not clear that the General Land Office in suggesting the wording of the Executive Order was aware that the river had shifted so far to the west that there were accreted lands between the river and what would have been the western line of section 30. As a matter of fact, there is some indication in the letter from the General Land Office that it was thought that the river was still at least partially within what would have been section 30. Even more significant, however, is the fact that the Commissioner of the General Land Office after discussing the existence of lands east of the river which were unsurveyed and contiguous to unapproved public lands of the United States which would in fact be the property of the United States if the lands were formed by accretion, then suggested:




DECEMBER 21, 1972

If you should be of opinion that withdrawal should be ordered now to preserve public possession and right to possession of such public lands as may exist in the locality mentioned, then I recommend that the language of the proposed order be altered by striking out all following the word "six" in line four and inserted in the place thereof the following: [suggested language which was actually adopted in the Executive Order].

    A fair reading of the above indicates to me that the Commissioner of the General Land Office was referring to all those lands east of the river contiguous to the unappropriated public lands of the United States, and that the legal description that he proposed was intended to cover whatever vacant, unsurveyed and unappropriated public lands were in existence between the river and the specifically described subdivisions upon an extension of the lines of the existing surveys to the river.

    I therefore conclude that the reference in the Executive Order to fractional portions of quarters of section 30 were words of description and not of limitation and that the reservation as created by the Executive Order of September 27, 1917, extended to the Colorado River. The Solicitor's Opinion of April 15, 1955, M-36275, is therefore reversed.

                                                                                                                    RAYMOND C. COULTER,
                                                                                                                                                Acting Solicitor.


                                                                                                                                                December 21, 1972.

Prosecuting Attorney of
    Snohomish County
Court House
Everett, Washington 98201


    This refers to your letter dated November 8, 1972, concerning the question of the application of local building codes to Indian trust property, located in a state which has assumed jurisdiction over Indian Country pursuant to the provisions of Public Law 83-280, 18 U.S.C. 1162, 28 U.S.C. 1360. As your letter points out, the Supreme Court of the State of Washington has held that a county zoning ordinance is an encumbrance and is therefore inapplicable to Indian trust land because of specific exemptory language in Public Law 280. Snohomish County v. Seattle Disposal Company, 425 P.2d (1967), cert. denied 389 U.S. 1016. As you may know, there is now pending, before the United States Court of Appeals for the Ninth Circuit, a case entitled Ricci v. County of Riverside, et al., No. 72-1256, in which questions the applicability of local building codes to Indian trust lands in Public Law 83-280 states. The United States has filed in that case a brief, amicus curiae, which takes the position that local building codes are inapplicable.

    It is our view that the provisions of 25 CFR 1.4 permit the Secretary to adopt, under his authority to approve leases of Indian land, state and local regulations governing the use of real property; however, we do not believe that the Secretary, under 1.4, has the authority to impose those regulations where an Indian, rather than leasing the land to a third party, is developing the land himself. We do, however, believe that the tribe has the inherent authority to regulate the use of both tribal and individually held trust land and that it could adopt regulations in conformity with those of Snohomish County.

    The tribe, therefore, may have broader authority in this area than that possessed by the Secretary of the Interior. In any event, this Department would be hesitant to apply local ordinances to Indian lands without the consent of the tribe. We do, however, recognize the serious nature of the problems raised in your letter and wish to consult further with the Bureau of Indian Affairs. The Bureau of Indian Affairs' headquarters will not be able to thoroughly review this matter in the immediate future. We are, however, sending a copy of your letter to our Regional Solicitor in Portland so that he can obtain the views of the local Bureau of Indian Affairs' office and of the tribe.

    We will correspond with you in the future in this matter.

                                                                                                                RAYMOND C. COULTER,
                                                                                                                                        Deputy Solicitor.


                                                                                                                                        January 16, 1973.

House of Representatives
Washington, D.C. 20515


    The Secretary has asked me to respond to your letter of October 18, 1972, concerning a tribally




JANUARY 16, 1973

owned mercantile store recently established on the Ak Chin Indian Reservation.. The store, called the Vekol Commissary, is a wholly owned tribal enterprise located on the reservation. The Department of the Interior has had no involvement in the establishment or the operation of the store. Therefore with respect to question number (1) in your letter, we can only surmise that the purpose of the tribe in establishing the store was to provide a service to its members who live in the area and also to engage in a profit making operation.

    There are currently pending before the United States Supreme Court three cases involving the applicability of state tax statutes to Indian tribes and to individual Indians. We believe that these cases (McClanahan v. Arizona State Tax Commission, No. 71-834; Mescalero Apache Tribe v. Jones, et al., No. 71-738; and Tonasket v. State of Washington, No. 71-1031) will do much to clarify law in the area of Indian tax immunities.

    Bearing in mind that these cases are pending, we offer the following opinions in response to your questions on the tax status of Indians.

    Question number (2). An Indian tribe is not required to pay federal income taxes since a tribe is not a taxable entity within the meaning of the Internal Revenue Code of 1954. See Rev. Rul. 67-284, 1967-2 Cum. Bull. 55, a copy of which is enclosed. In our opinion, this ruling applies to tribal income from whatever source derived.

    In Williams v. Lee, 358 U.S. 217 (1959), the United States Supreme Court held that a state, absent the consent of Congress, could not interfere with the right of reservation Indians to govern themselves. We believe that this decision bars a state from imposing a tax on a tribe for its on-reservation activities. The question of whether a state can tax a tribal off-reservation activity is involved in the Mescalero Apache case pending before the Supreme Court. In that case the United States filed an amicus brief arguing that the particular tribal enterprise should be exempt because of federal financial involvement in the enterprise and because of some specific statutory language which, in our opinion, rendered the land upon which the tribal business was conducted tax-exempt.

    Question number (3). It is our opinion, again based on the decision in Williams v. Lee, supra, that a state cannot force either a tribe to collect or pay state taxes on sales made by it on the reservation. The identity of the purchaser would be irrelevant from the standpoint of the tribe's liability. The question of whether an off-reservation tribal enterprise must collect state sales taxes will hopefully be clarified in the Mescalero Apache case.

    Question number (4 (a) ). The enclosed copy of Revenue Ruling 67-284 sets out the current stand by which the Internal Revenue Service determines whether an individual Indian must pay federal income tax. You will note that an individual Indian's income is exempt if it is "directly derived" from land which is held in trust for him by the United States. A non-Indian has no federal tax exemption merely because he operates his business on a reservation.

    Question number (4 (b) ). Under the provisions of the General Allotment Act, an Indian's allotment and the improvements constructed thereon are not subject to state taxation. United States v. Rickert, 188 U.S. 432 (1903). Whether an individual Indian is subject to state property taxes on real or personal property, which is neither trust property nor fixed to trust property, but is located on the reservation, would be, to a large extent, determined by the decision in McClanahan v. Arizona Tax Commission, which is pending before the Supreme Court. In that case, the United States, as amicus curiae, argued that there was a general absence of state jurisdiction over on-reservation Indians (see Williams v. Lee, supra) and, therefore, state tax laws were inapplicable.

    A reservation non-Indian would generally be subject to state property taxes to the same extent as if he lived off the reservation. One case holds that a non-Indian who leases Indian owned land is subject to state taxes on his leasehold interest. Agua Caliente Band of Mission Indians v. County of Riverside, 442 F.2d 1184 (Ninth Cir., 1971).

    Question number (4 (c) ). In our view an Indian merchant on a reservation is not subject to state sales taxes, whether his customers are Indian or non-Indian. This opinion is based on the lack of state jurisdiction over reservation Indians (see Williams v. Lee, supra) and will be affected by the decision in the McClanahan case.

    A non-Indian merchant is clearly exempt from taxes on sales to Indians if he is a licensed Indian trader and the sales are made on the reservation. Warren Trading Post v. Arizona Tax Commission, 380 U.S. 685 (1965). And since legal liability for a sales tax is generally placed on a purchaser, it is arguable that the sales tax is inapplicable to purchases by Indians, even if the merchant is not a licensed trader, since the state has no jurisdiction over reservation Indians. There is no general tax immunity on sales between one non-Indian and another.

    We are enclosing copies of two Solicitor's Opinions, published in 57 I.D. 124 and 58 I.D. 562, which more fully discusses the question of the exemption from sales taxes of on-reservation sales by or from Indians. These two opinions where




JANUARY 16, 1973

cited with approval by the United States Supreme Court in Warren Trading Post v. Arizona Tax Commission, supra.

    Congress can, of course, diminish or expand the tax immunity of individual Indians and tribes and the question of whether it has done so by enactment of Public Law 280 (18 U.S.C. §1160; 28 U.S.C. §1360) is one of the issues pending before the Supreme Court in the Tonasket case.

    Questions number (5) and (6). There is no federal funding of the store and we have no information on the amount and source of non-federal funds, although we assume tribal funds were used for establishing the store. Since there is no Bureau of Indian Affairs involvement in the Vekol Commissary, we have no jurisdiction over the store's pricing policy. We have been advised by the local Bureau agency office that the store's prices are probably comparable to non-Indian stores in the area but that the tribal store does not impose the state sales tax.

                                                                                                                    MITCHELL MELICH,


                                                                                                                                                April 8, 1974.


To:            Royston C. Hughes
                 Assistant to the Secretary
From:        Acting Solicitor
Subject:     Request by the National Indian Youth Council for a Legal Opinion
                 as to Whether Non-Indian Students Can Attend the Southwest
                 Indian Polytechnic Institute

    This responds to your memorandum of March 11, 1974, wherein you ask if the language in Interior's annual appropriation act, as well as our authorizing legislation, would allow the Bureau of Indian Affairs to use appropriate funds to educate non-Indian students in federally-funded schools. In this connection, you point out that a letter from Mr. Gerald Wilkinson, Executive Director of the National Indian Youth Council forwarded a copy of an article from the Albuquerque Journal of February 1, 1974, which indicates there was some type of commitment made with the State of New Mexico calling for an interchange program between state public schools and the Southwest Indian Polytechnic Institute (SIPI). You specifically asked the legal ramifications of those commitments and how they relate to the language of our authorizing and appropriation legislation.

    Our examination of the Interior appropriation acts and hearings and reports thereon for the period, 1967-1969, when we understand that appropriations were obtained for the construction of SIPI, reveal no consideration of an interchange program for SIPI. Indeed, the only apparent reference to SIPI we found in the appropriation acts and their legislative history was in the general statement of the Commissioner of Indian Affairs set out in the Hearings on the Department of the Interior and Related Agencies Appropriations for 1968 before a Subcommittee of the Committee on Appropriations, House of Representatives, 90th Cong., 1st Sess., Part 1 at 743:

Our construction budget for the fiscal year 1968 would be reduced by $15.6 million in the overall--although we are planning to construct a new school at Albuquerque, New Mexico, which will fill a serious training gap in the region. The new school--a vocational-technical complex unparalleled in the Southwest--will help meet the increasing demand for skilled workers in the burgeoning Southwest.

    There is, however, permanent legislation which authorizes non-Indian children to attend Indian day schools (25 U.S.C. §288) and Indian boarding schools (25 U.S.C. §289). Section 288 reads:

White children may, under rules and regulations prescribed by the Commissioner of Indian Affairs, be admitted to any Indian day school: Provided, That the tuition fees charged for such children shall in no case exceed the tuition fees allowed or charged by the State or county in which such school is situated for the children admitted in the common schools of such State or County: And provided further, That all tuition fees paid for white children enrolled in Indian day schools shall be deposited in the United States Treasury to reimburse the funds out of which the schools last mentioned are maintained.

    Section 289 reads:

White children may, under rules prescribed by the Commissioner of Indian Affairs, be admitted to Indian boarding schools on the payment of tuition fees at a rate to be fixed in said rules; Provided further, That all tuition fees paid for white children so enrolled shall be deposited in the United States Treasury to




MAY 29, 1974

reimburse the fund out of which the school is supported.

    The implementing regulations for 25 U.S.C. §§288 and 289 are in 25 CFR §31.3. That section reads:

Indian and non-Indian children who are not eligible for enrollment in Bureau-operated schools under §31.1 may be enrolled in such schools under the following conditions: (a) In boarding schools upon payment of tuition fees, which shall not exceed the per capital [sic] cost of maintenance in the school attended, when their presence will not exclude Indian pupils eligible under §31.1. (b) In day schools in areas where there are no other adequate free school facilities available, tuition fees may be charged for such enrollment at the discretion of the superintendent or other officer in charge provided such fees shall not exceed the tuition fees allowed or charged by State or county in which such school is located for the children admitted in the public schools of such State or county.

    While we could find no consideration by Congress of an operational plan for SIPI when funds were appropriated for the school, there does not appear to be any question but that the Bureau of Indian Affairs planned for an interchange program at SIPI. This is clear from a letter dated December 28, 1967, from Charles N. Zellers, then Assistant Commissioner of Indian Affairs, to Congressman Thomas G. Morris. A copy of that letter is attached for your information. As you will note on page 2 of the letter, it states that it is generally agreed, as regards the then planned SIPI, that the Bureau of Indian Affairs and the public school system should cooperate in offering a vocational technical curriculum which will benefit both Indians and non-Indians. Also on page 4 of the letter, it is pointed out that a special programs director will be needed to implement the cooperative arrangement with the public schools and special programs for Indian and non-Indian youth and adults. Also, the attached copy of an article in the Albuquerque Journal on February 10, 1968, indicates the Bureau of Indian Affairs advised the public SIPI would have non-Indian as well as Indian students.

    As far as we are aware, however, no actual contractual arrangements were made for the admission of non-Indian students to SIPI. Therefore, under the existing statutes and regulations discussed above, we conclude it as permissible to enroll non-Indians at SIPI. Absent an actual contract, however, there is no legal obligation to do so.

                                                                                                                    DAVID E. LINDGREN,
                                                                                                                                        Acting Solicitor.


                                                                                                                                        April 15, 1974.

To:            Regional Solicitor, Anchorage
From:        Solicitor
Subject:     Acquired lands as "public lands"

    Among the requests for opinions referred to in your memorandum of March 29, 1974, was one dated March 6, 1972, inquiring whether lands acquired by the United States and used by the Bureau of Indian Affairs for reindeer operations or for Native schools are "public lands" within the meaning and scope of the Alaska Native Claims Settlement Act.

    The definition of "public lands" in Section 3 (e) of the Settlement Act makes no distinction between lands held in original ownership by the United States and lands held by virtue of reconveyances from a patentee or their successors. Similarly, the selection regulations (33 CFR §2650.0-5 (g) ) made no distinction. Thus, "public lands" subject to Native selection may be either public domain lands or acquired lands, so long as they are not within the limited exceptions set forth in the statutory or regulatory definitions.

    If, however, acquired lands are in Federal use, their disposition is subject to and governed by a memorandum of understanding between the Department of the Interior signed February 14, 1974, and the General Services Administration (signed March 7, 1974), copy enclosed.

                                                                                                                    DAVID E. LINDGREN,
                                                                                                                                        Deputy Solicitor.


M-36876                                                                                                                        May 29, 1974.

Statutory Construction: Generally

Although there may be no general rule for distinguishing between mandatory and directory provisions, a statute should be construed ac-




MAY 29, 1974

cording to its subject matter and the purpose for which it was enacted, and the intention of the legislature should be controlling.

Statutory Construction: Administrative Construction

Where a statute directs that administrative action be taken within a stated time frame, but indicates no consequences for failure to comply with the time limit provided, it is necessary to distinguish between the action and the time frame.

Statutory Construction: Generally--Statutory Construction: Legislative History

To deny status as an eligible village to persons in fact entitled to that status would be an unjust and unfair denial of a right specifically granted by Congress, as evidenced in the legislative history.

Act of December 18, 1971 (43 U.S.C. Secs. 1601-1624)

To deny a legislative determination of village eligibility because of a delay caused by the very magnitude of the problem that Congress felt necessary to confront would be contrary to the essence of the settlement itself.

Statutory Construction: Administrative Construction

The timetable set forth by Congress in the Act of December 18, 1971, is at best an estimate of time reasonable enough to accomplish the basic purposes of the act.


To:            Secretary
From:        Solicitor
Subject:     Authority to determine eligibility of Native Villages after June 18, 1974

    There is no universal rule by which directory provisions may, under all circumstances, be distinguished from those which are mandatory. Sutherland, Statutory Construction, Section 25.0., Volume 1 A, 4t,h Edition. If the legislature considers the provisions sufficiently important that exact compliance is necessary, then the provision is mandatory. But if the statute is merely a guide for the conduct of business and for orderly procedure, rather than a limitation of power, the provision will be construed as directory only. French v. Edwards, 13 Wall. 506, (1871), John C. Winston Co. v. Vaughan, 11 F.Supp. 954, (1935), affirmed 83 F.2d 370 (1936).

    Subsection 11 (b) (2) of the Alaska Native Claims Settlement Act (ANCSA) provides:

"Within two and one-half years from the date of enactment of this Act, the Secretary shall review all of the villages listed in Subsection (b) (1) hereof, and a village shall not be eligible for land benefits under subsections 14 (a) and (b), and any withdrawal for such village shall expire, it the Secretary determines that. . . ."

    Subsection 11 (b) (3) provides:

"Native villages not listed in subsection (b) (1) hereof shall be eligible for land and benefits under this Act and lands shall be with drawn pursuant to this section if the Secretary within two and one-half years from the date of enactment of this Act, determines that. . . ."

    The language of these two subsections dealing with determinations by the Secretary of the eligibility of both listed and unlisted villages does not dictate that the two and one-half year time provision is mandatory or directory.

    Although there may be no general rule of thumb for distinguishing between mandatory and directory provisions, a statute should be construed according to its subject matter and the purpose for which it was enacted, and the intention of the legislature should be controlling. Sutherland, supra. "Consideration must be given to the legislative history, the language of the statute, its subject matter, the importance of its provisions, their relation to the general object intended to be accomplished by the act, and finally, whether or not there is a public or private right involved." Wilcox v. Billings, 200 Kan. 654.

    Before any conclusions can be drawn on whether or not the two and one-half year provision is mandatory or directory, it is necessary to distinguish between the action which the Secretary is directed to complete under subsections 11 (b) (2) and (3) and the time period during which he must complete such action. There can be little argument that the Secretary must complete a review of all the listed villages, and that such a review is mandatory and essential to the purposes of the legislation. Furthermore, the Secretary is directed to make determinations of the eligibility of both listed and unlisted villages. The question at hand, however, is whether or not June 18, 1974, is in fact, a "dead-




MAY 29, 1974

line" after which the Secretary can make no further determinations of village eligibility.

    The legislative history makes it clear that it was the intent of Congress "to see that all villages--whether listed in the Act or not--which meet the requirements are granted lands under this Act." Senate Report No. 92-405, pages 138-9. Furthermore, lands surrounding the villages, whether listed or unlisted, are withdrawn "to insure that these lands are protected from disposition to other parties pending a determination of the villages' eligibility for benefits under the Act." supra, at 136.

    Congress intended that all villages eligible for benefits should be granted these benefits and specifically insures their protection before final determination through the withdrawal procedures. At the same time, however, Congress intended that only those villages which meet the requirements of subsections 11 (b) (2) and (3) can receive these benefits and insured that result by requiring the Secretary to make a final determination of the eligibility of each listed and unlisted village before the benefits are conferred upon these villages.

    While it may be difficult to distinguish between the action directed and the time frame provided, it is necessary to make that distinction here. Be cause the statute may be classified for some purposes as directory does not mean that for all purposes it can "be ignored at will." Borough of Pleasant Hills v. Carroll, 182 Pa. Super. 102. The Secretary must complete certain actions under sub sections 11 (b) (2) and (3); the question is whether or not he can exceed a time frame which may be directory only. It should be noted at this point that the differences between mandatory and directory, between the imperative and the permissive, represent a continuum involving matters of degree instead of separate, mutually exclusive characteristics, Sutherland 25.04, and that the distinctions may not be as finely drawn as wished.

    As a rule, a statute prescribing the time within which public officers are required to perform an official act regarding the rights of others, and enacted with a view to the proper, orderly and prompt "conduct of business", is directory unless it denies the exercise of the power after such time, or the phraseology of the statute, or the nature of the Act to be performed and the consequence of failing to do it at that time are such that the designation of time must be considered a limitation on the power of the officer. When the legislature prescribes the time when an official act is to be performed, the broad legislative purpose is to be considered in deciding whether the time prescribed is directory or mandatory. If the statute is directory, the legislative intention is to be complied with as nearly as practicable. Therefore, a statute requiring a public body, merely for the orderly transaction of business, to fix the time of performance of certain acts which may as effectively be done at another time is usually regarded as directory. 67 C.J.S. Officers, Section 114 (b).

    Statutory provisions fixing the time for performance of acts may be either mandatory or directory, in accordance with the legislative intent and will ordinarily be held directory where there are not negative words restraining the doing of the act after the time specified, and no penalty is imposed for delay. On the other hand, such provisions are to be taken as mandatory where consequences attach to the failure to comply; and where the act concerns vested rights, procedure or other similar matters, the statute is generally mandatory. 82 C.J.S. Statutes, Section 379.

    In the determination of whether time provisions should have mandatory or directory effects there is an outstanding example of statutory construction not on the basis alone of ascertaining the actual intent of the legislature, but on the grounds of policy and equity to avoid harsh, unfair or absurd consequences. Although these considerations may be couched in terms of legislative intent, it is apparent that the decision rests on an inference of what the legislature can be presumed to have intended had it anticipated a situation that may have arisen in a particular case. Sutherland, supra, at Section 57.19.

    It may be difficult to conceive of anything more absolute than a time limitation. And yet, for obvious reasons, founded in fairness and justice, time provisions are often found to be directory merely, where a mandatory construction might do great injury to persons not at fault, as in a case where slight delay on the part of a public officer might prejudice private rights or the public interest. It has been aptly stated that "when there is no substantial reason why the thing by statute required to be done might not as well be done after the time prescribed as before; [when there is] no presumption that, by allowing it to be done, it may work an injury or wrong; [when there is] nothing in the act itself . . . indicating that the legislature did not intend that it should rather be done after the time prescribed than not done at all--the courts will deem the statute directory merely." State v. Industrial Corn mission, 233 Wis. 461.

    A statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered a limitation on the power of the officer. Sutherland, supra.




MAY 29, 1974

    The language of the two and one-half year provision contained in both subsections 11 (b) (2) and 11 (b) (3) is neither directory nor mandatory on its face. With respect to listed villages the two and one-half year provision would appear to limit the time within which the Secretary must review all the listed villages and make a determination of the eligibility of each village listed. With respect to unlisted villages, the same provision would limit the time within which the Secretary may determine an unlisted village eligible for benefits under the Act.

    The mere language of these subsections can in no way resolve the ambiguity of the time provision. A time provision cannot be mandatory "unless it both expressly requires an agency or public official to act within a particular time period and specifies consequences for failure to comply with the time provision." Fort Worth Nat. Corp. v. Federal Savings and Loan Inc., Corp., 469 F.2d 47 (1972). No "express requirements" can be read into either of these provisions.

    It is necessary, therefore, to determine the legislative intent relating to this particular provision and to the Act as a whole. Whether the language of a statute is imperative or merely permissive depends on the intention as disclosed in the nature of the Act. Ballou v. Kemp, 92 F.2d 556 (1937). The intent of the act controls, and when the spirit and purposes of the act require the words to be construed as permissive, it will be done. Antonopulos v. Aero-General Corporation, 295 F. Supp. 1390 (1968). "Whether a statutory requirement is mandatory in the sense that failure to comply therewith vitiates the action taken, or directory, can only be determined by ascertaining the legislative intent," Vaughn v. John C. Winston Co., 83 F.2d 370 (1936).

    The legislative history on this particular provision is in no way helpful, as there is no mention made either of the two and one-half year provision, or of mandatory or directory time requirements in general. It may only be said that, if there is no substantial reason why the determinations by the Secretary might not well be done after June 18 as before, there is nothing in the legislative history to indicate that the legislature did not so intend, and therefore the provisions will be deemed directory. Diamond Match Company v. United States, 181 F. Supp. 952 (1960).

    In order to determine legislative intent of the Act and in order to put the subsections 11 (b) (2) and (3) in perspective, it is necessary to examine language relating to these subsections and to other provisions in the Act which contain time limits.

    The definition of "Native Village" in Section 3 (c) contains no requirement that the Secretary make his determination of eligibility within two and one-half years; the only prerequisite under the definition is that the group "meets the requirements of this Act," and that "the Secretary determines [it] was, on the 1970 census enumeration date (as shown by the census or other evidence satisfactory to the Secretary, who shall make findings of fact in each instance), composed of twenty-five or more Natives."

    The Alaska Native Claims Settlement Act does, however, contain language which clearly contains mandatory time requirements. These express requirements require the Secretary to act within a particular time period and specify a consequence for failure to comply with such time limit. These requirements are clearly mandatory. Fort Worth Nat. Corp., Id.

    Paragraph 17 (d) (2) (B) provides that:

"Lands withdrawn pursuant to paragraph (A) hereof must be withdrawn within nine months of the date of enactment of this Act. All unreserved public lands not withdrawn under paragraph (A) or subsection 17 (d) (1) shall be available for selection by the State and for appropriation under the public land laws." (Emphasis added)

    Unmistakably the time period imposed here is mandatory. The Secretary must act within a certain time or a penalty is imposed.

    Likewise, paragraph 17 (d) (2) (C) provides:

"Every six months, for a period of two years from the date of enactment . . . , the Secretary shall advise the Congress . . . and submit his recommendations. . . . Any lands withdrawn pursuant to paragraph (A) not recommended for addition to or creation as units of the National Park . . . Systems at the end of the two years shall be available for selection by the State and the Regional Corporations, and for appropriation under the public land laws." (Emphasis added).

    Paragraph 17 (d) (2) (D) provides:

"Areas recommended by the Secretary pursuant to paragraph (C) shall remain withdrawn from any appropriation. . . . until such time as the Congress acts on the Secretary's recommendations, but not to exceed five years from the recommendation dates. The withdrawal of the areas not so recommended shall terminate at the end of the two year period. (Emphasis added)




MAY 29, 1974

    It is obvious that Congress is explicit when it intends that a particular time provision be mandatory. Not only is the requirement expressly set forth; a consequence for failure to abide by such a schedule is specified.

    Furthermore, the withdrawals which are accomplished for purposes of village eligibility do not automatically expire two and one-half years from date of enactment if the Secretary fails to make his determinations of eligibility. Paragraph 22 (h) (1) provides that all withdrawals shall terminate within four years of date of enactment, except that withdrawals for the Southeast villages (Section 16) shall terminate three years from date of enactment. Therefore, the fact that such withdrawals run substantially past the two and one-half years period and that such withdrawal does not terminate automatically indicates that the two and one-half year period is directory. Furthermore, the Secretary is given the authority in paragraph 22 (h) (4) to terminate any withdrawal when he determines that the withdrawal is no longer necessary to accomplish the purposes of the Act. Such authority is discretionary and not triggered by the lapse of a two and one-half year period.

    Paragraph 22 (h) (3) specifically states that the terminations of withdrawals set forth in Section 22 do not apply to Section 17, which is the one section of the Act where the Secretary is burdened with mandatory time schedules and specific penalty provisions. The failure of Section 22 to make any provisions for the withdrawals authority contained in subsections 11 (b) (2) and (3) is therefore significant. If the two and one-half year period were intended to be mandatory, section 22 would have stated that the withdrawal provisions which call for termination in three or four years would specifically not apply to subsections 11 (b) (2) and (3).

    The Act does set forth a definite time schedule and a series of guidelines for purposes of precipitating an orderly and prompt settlement. The Secretary is, for example, directed to divide Alaska into 12 regional corporations within one year, to complete enrollment within two years, to make a (2) (c) study within three years, to convey lands immediately after selection by patent, to submit annual reports. And it is clear that Congress intended that the settlement be completed in as prompt and orderly a fashion as possible. 2 (b) provides that "the settlement should be accomplished rapidly, with certainty, . . . without litigation . . ." But it is important to note that the only provisions relating to acts by the Secretary which are expressly mandatory and which contain a penalty clause are those contained in Section 17.

    When no consequences attach to failure to comply, when no penalty is imposed for delay, and when there are no negative words restraining the doing of the Act after the time specified as contained in paragraphs 17 (d) (2) (B) , (C) and (D), the courts will deem the statute directory merely. Diamond Match, Id.; Fort Worth, Id.

    Where there is no substantial reason why the determination required by subsections 11 (d) (2) and (3) might not well be done after June 18 as before June 18 and where there is no indication that the Congress did not so intend, then the designation of time shall not be considered a limitation on the power of the Secretary. His power to exercise such determinations is not denied after June 18. If the determinations of village eligibility are made after June 18, the purpose of the statute will have been substantially complied with and no substantial rights jeopardized. Sutherland, 25.03.

    7 (a) provides that:

". . . the State of Alaska shall be divided by the Secretary within one year after the date of enactment of this Act into twelve geographic regions . . ."

    Although the Secretary was directed to complete his division of the State within one year, he was unable to complete this task within the time frame set forth by Congress. Stipulations were made by the Regional Corporations and the Secretary after the time period had passed. These agreements were approved by the Counts in Arctic Slope v. Doyon and Morton, Civil No. A-38-73 (D. Alaska, April 1973), Ahtna, Inc. v. Doyon and Morton, Civil No. A-198-72 (D. Alaska, August 1973), thereby giving express judicial approval of a Secretarial determination after the time period set forth by Congress in the Act itself.

    Furthermore, 5, which directs "the Secretary [to] prepare within two years from the date of enactment of this Act a roll of all Natives . . .," requires that the roll "show for each Native the region in which he resided on the date of the 1970 census enumeration." In order for the Secretary to undertake the preparation of the roll, he needed to ascertain the regional boundaries. The one determination is dependent on the other; similarly, a delay in the former necessarily caused a delay in the initiation of the latter. But the courts, realizing the complexities of the problems involved and the necessity for a certain and just determination at each step in this long procedure leading to final resolution of the settlement, recognized that the time frame cannot be imposed in such a manner that the very interests protected by the Act would




MAY 29, 1974

suffer because of a slight delay in the implementation of its provisions.

    The preparation of the roll was completed by December 18, 1973, as provided in 55. The magnitude of that undertaking caused many administrative difficulties. The possibility of error, through fraud or mistake, in preparation of the roll cannot be denied. The Secretary has the power, after notice and an opportunity to be heard, to strike from the roll names placed thereon through fraud or mistake, Garfield v. Goldsby, 211 U.S. 249 (1908), Campbell v. Wadsworth, 248 U.S. 169 (1918). This power exists even though the roll has been made "complete," Lowe v. Fisher, 223 U.S. 95 (1911).

    Under 12 (a) (1), the Village corporations are given a period of three years in which to select, in accordance with rules established by the Secretary, the acreages to which the village is entitled under 14 (b) and provides that the villages shall make additional selections for land which the Regional Corporations shall reallocate from acreage included in the difference between twenty-two million acres and the total area selected by the eligible villages pursuant to 12 (a). No time period is set by the Act for this differential selection by the villages, but the Secretary has construed 12 (b) as allowing the villages four years to make such selections and has provided in 43 CFR 2651.4 (f), the villages a four year period in which to file their applications for these selections. The Secretary further provides in. 2651.4 (f) that villages may file applications in excess of their total entitlement.

    Again the statute has set a three year period for land selections by Village Corporations. The Secretary has required that the filing of appropriate applications be within this three year period, and the applications for differential acreage within four years, but has made allowance for the settlement and adjudication of these crucial rural land selections for a later time. Land selections can be made contemporaneously with determinations of the village eligibility and the Secretary has so provided in order to facilitate the quickest solution to a tremendously complex situation. The end result is that the land selection process moves forward contemporaneously but separately from the determinations of village eligibility. Furthermore a delay in determination of village eligibility will neither delay nor interfere with the selection of lands by the villages.

    There is nothing to indicate that Congress did not intend that the determination should be made by the Secretary after June 18 rather than not done at all. If Congress had intended to dissolve the Secretary's authority to make such determinations of village eligibility after June 18, it would have been explicit in denying him the exercise of that authority after the two and one-half year period. The Secretary retains his authority over the withdrawals for either three or four years, or until such time as he determines that the withdrawal is no longer necessary to accomplish the purposes of the Act. And it is settled Departmental policy that the Secretary may exercise his authority over lands that are still within his control as part of the public domain. B. E. Burnaugh, 67 I.D. 366.

    Where the time or manner of performing the action directed by statute is not essential to the purpose of the statute, provisions in regard to time or method are generally interpreted as directory only. Sutherland, Section 25.04. It cannot be said that Congress intended that the time frame set forth in the Act is to be disregarded or to be taken lightly. Such a framework was imposed for the purposes of orderly and prompt processing of the settlement package. In the one sense, the time frame must be considered an essential part of the statute; at the same time, however, the time limits do not dictate strict compliance where the broad purpose of the legislation would be sacrificed. The particular time provision in question does not go to the substance of the act to be completed, namely the determination of those villages eligible for benefits under the terms of the settlement, and therefore is directory. Vaughn, Id.

    In the absence of direct evidence of legislative intent with regard to this particular provision, it is appropriate to ascertain what Congress would have intended had it anticipated the situation at hand. It is difficult to imagine that Congress would have intended that the determinations of village eligibility should suffer because the Secretary could not meet the tremendous statutory burden imposed upon him within a certain time frame. Neither should persons be denied or granted village status by default, nor should decisions of eligibility be made in such a cursory fashion that the rights of all parties to the settlement should suffer. Congress did not intend that a slight "overrun" should prejudice private rights or the public interest. Because a delay in the determination of village eligibility is allowed under the overall framework of the Act, because a delay would not hamper the working of the other provisions, because proper allowances can be made for such a delay without prejudicing the interests of those party to the settlement, it would seem inconceivable to precipitate deliberation by forfeiture or by hasty procedures at the expense of one of the most basic provisions of the Act, namely, the determination of village eligibility. To impose any other solution would be contrary to the spirit of the Act.




MAY 29, 1974

    It has been argued repeatedly that the Settlement Act must be liberally construed in favor of the Natives at all points. It should be noted, however, that the cases cited for this proposition deal with a concept and a relationship that is distinctly different from that involved in this Act. The court in Squire v. Capoeman, 35 1 U.S. 1 (1955) discusses "the traditional guardian-ward relationship between the United States and the Indians" and quotes from Carpenter v. Shaw, 280 U.S. 363 (1929) as follows:

"Doubtful expressions are to be resolved in favor of the weak and defenseless people who are wards of the nation, dependent upon its protection and good faith. 'The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of, which are susceptible of a more extended meaning than their plain import as connected with the tenor of the treaty, they should be considered as used only in the latter sense' " [quoting in turn from Worcester v. The State of Georgia, 6 Pet. 515 (1832)].

    As is emphasized time and time again in the legislative history of the Settlement Act, Congress intended the Act to be "a more just and, hopefully, a wiser resolution than has been typical of our country's history in dealing with Native people in other times and in other states." Senate Report 92405, pages 61-62. "The settlement of Alaska Native land claims is to be final and complete and the present legislation intends to avoid prolonged legal or property distinctions or implications of wardship based upon race.' supra, at 80, Furthermore, the Declaration of Policy in 2 (b) states that:

"The settlement should be accomplished rapidly, . . . without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship."

    This settlement is unique and the Natives are party to this settlement in a manner that makes their relationship with the Federal Government distinct and distinguishable from their traditional wardship status in the Lower-48.

    Although the argument that legislation dealing with Natives must be liberally construed in favor of the Natives does not apply to the Settlement Act because the Act is a settlement among three parties, is a unique piece of legislation designed to solve a unique problem, and is intended by Congress expressly to be a completely different solution to a separate and distinct problem, it must be kept in mind that if an improper village is considered eligible because of a hasty determination by the Secretary, that village will unjustly benefit at the expense of the other valid villages. The few will benefit undeservedly, and at the expense of the many. Under 14 (a) of the Act, the qualified villages will receive patent to the lands selected under 12 (a) and (b). The total amount of land allocated to the villages is 22 million acres and villages that would qualify because the Secretary was unable to make a proper determination of eligibility would be depriving valid, qualified villages of their differential land under 12 (b). The Native villages are entitled to 22 million acres of land, period. It would be unfair for the Secretary to distribute land to a village that, in fact, should not qualify as a village at the expense of those villages which Congress intended be granted specific benefits apart from those associations of people who could qualify only as groups under the Act (3 (d) ).

    It is obvious that the converse, to wit, the denial of status as an eligible village to a number of persons in fact entitled to that status, would be an unjust and an unfair denial of a right specifically granted to those qualified by Congress.

    Furthermore, under 12 (a) (1) , an improperly qualified village may select lands from within National Wildlife Refuge Systems, National Forests and from lands tentatively approved to Alaska under the Statehood Act. If these selections were ultimately conveyed to an unqualified village, the State, a specific party to the settlement, would suffer unjustly. In addition, if lands were improperly conveyed from within National Wildlife Refuges and National Forests, such a conveyance would be in direct conflict with the purposes of paragraphs 17 (d) (2) (A) and 22 (e) which specifically provide for additions to such systems. These additions were considered necessary by Congress in providing for the public interest and the interests of the Federal Government as the third party to this settlement.

    The settlement must be accomplished rapidly and without litigation. It is clear by the very nature of the Act that Congress intended "the certainty, the flexibility and the detail of a legislative settlement rather than a judicial settlement." Senate Report, 92-405, supra, at 62. To deny legislative determination of village eligibility because of a delay caused by the very magnitude of the problem that Congress felt necessary to confront would be contrary to the essence of the settlement itself. Congress would not have intended that the proper determination of something as basic as village




MAY 8, 1974

eligibility be thwarted by a slight delay in the implementation procedures.

    The settlement is unique. Years of effort and study created this complex but final solution to an insoluble problem. It is certain that Congress did not intend that the implementation procedure be so precise that the very rights of those it had labored to protect be subject to the vagaries of the judicial process. It is inconceivable that Congress could have considered that the complexities and magnitude of the problem would vanish in the face of orderly procedural guidelines. In those instances where Congress felt that time periods must be imposed, it provided the appropriate penalties for failure to meet such deadlines. But where guidelines were imposed for the purposes of activating the most rapid procedures possible under the burdensome circumstances, Congress did not see fit to bridle the Secretary beyond any reason.

    In United States v. Morris, 252 F.2d 643 (1958), a migrant labor agreement between the United States and the Republic of Mexico whereby United States guaranteed that employers would pay the prevailing wage rate or contact rate, whichever was higher, required that a "joint determination" that the United States agricultural employer had failed to pay the prevailing wage rate be concluded within ten days. The court held that the ten-day requirement was directory only and that a determination concluded some 23 days later was a valid determination.

    The court's discussion of the Agricultural Act of 1949 and its legislative intent is appropriate to the Settlement Act and the question at hand.

    "This procedure for joint determination covered many areas of possible controversy in addition to this simpler question of the actual wage paid in comparison to the administratively determined "prevailing wage." With workers scattered over the wide geographical area of this agricultural employment, the scheme of adjustment calling for adjudication by the two sovereigns through selected representatives, each of whom had other governmental duties to perform, and the nature of potential disputes comprising many of substantial complexity and controversy, it is not reasonable to believe that these two governments intended, by this language, to establish a procedural remedy that would fail altogether for any case, no matter how serious or aggravated, which was incapable of resolution within ten days. On the contrary, these considerations suggest strongly that the ten-day limitation was directory and not mandatory, and prescribed out of recognition that two independent sovereigns with no coercive sanctions available were pledging each other to handle these complaint proceedings with dispatch, that neither would needlessly delay them, and as a specific target, the period of ten days would normally be sufficient."

    "Whether construed as a statute, or a treaty, or a statutorily authorized contract, we discern no intention to adhere to literalism. It is not decisive and must give way to the purpose otherwise so clearly revealed."

    The problems confronted by the Secretary in administering the Alaska Native Claims Settlement Act are of substantial complexity and controversy. It is unreasonable to believe that Congress intended for determinations of village eligibility either to fail or be hastily made because they were incapable of resolution within two and one-half years. Congress intended that the Secretary proceed with dispatch in administering the Act, within the time framework set forth by Congress. Needless delays must be avoided and the schedule must be used as a guideline, but not at all costs.

    The timetable set forth by Congress is at best an estimate of time reasonable enough to accomplish the basic purposes of the Act. Two and one-half years was the specific target date set forth by Congress, but it cannot be blindly met, at the expense of the basic purposes of the act, namely a proper and reasoned settlement for once and for all of long-standing disputes between the Natives, the State of Alaska and the Federal Government.

                                                                                                                    KENT FRIZZELL,


To:            Secretary of the Interior
From:        Solicitor
Subject:     Opinion on the boundaries of and status of title to certain lands within the
                 Colville and Spokane Indian Reservations

    This opinion sets forth my conclusions with respect to the following issues: (1) the present boundaries of the Colville and Spokane Indian Reservations in the reservoir area created on the Columbia River by Grand Coulee Dam; (2) the




JUNE 3,1974

nature of title to certain portions of the original riverbed within those reservations and to the so called "Indian zone" established in the reservoir area within lands taken in aid of construction of the dam; and (3) the jurisdiction of the Confederated Colville Tribes and Spokane Tribe to regulate hunting, fishing, and boating in that Indian zone.

    The Colville and Spokane Indian Reservations were established in 1872 and 1877 respectively, on lands which were later included within the state of Washington. The Colville Reservation was created by an executive order issued by President Grant. Executive Order of July 2, 1872. Some confusion regarding creation of the Spokane Reservation has existed, but the Supreme Court has specifically held that that reservation was established on August 18, 1877, the date of an agreement between agents of the United States and certain Spokane chiefs. Northern Pac. Ry. v. Wismer, 246 U.S. 283 (1918). A subsequent executive order issued by President Hayes was held by the Court merely to have confirmed the earlier reservation. Executive Order of January 18, 1881.1

    The Columbia River, taking a westerly turn from its initially southward flow, forms first the eastern and then the southern boundary of the Colville Reservation. The Spokane Reservation lies eastward across the Columbia from the Colville Reservation, just before the river turns west and just north of the Spokane River, a tributary of the Columbia; the Spokane River, flowing essentially from east to west at this point, forms the southern boundary of the Spokane Reservation.

    In 1940 construction of Grand Coulee Dam, a federal reclamation project, was completed on a portion of the Columbia where it forms the southern boundary of the Colville Reservation. In an Act dated June 29, 1940 (54 Stat. 703), 16 U.S.C. 835d, Congress required the Secretary of the Interior to designate the Indian lands to be taken in aid of the project, and granted "all right, title, and interest" in such designated lands to the United States, "subject to the provisions of this Act."2 The following is the full text of this portion of the Act as originally passed by Congress:

"In aid of the construction the Grand Coulee Dam Project, authorized by the Act of August 30, 1935, 40 Stat. 1028, there is hereby granted to the United States, subject to the provisions of this Act, (a) all the right, title, and interest of the Indians in and to the tribal and allotted lands within the Spokane and Colville Reservations, including sites of agency and school buildings and related structures and unsold lands in the Klaxta town site, as may be designated therefore by the Secretary of the Interior from time to time: Provided, that no lands shall be taken for reservoir purposes above the elevation of one thousand three hundred and ten feet above sea level as shown by General Land Office surveys, except in Klaxta town site; and (b) such other interests in or to any such lands and property within these reservations as may be required and as may be designated by the Secretary of the Interior from time to time for the construction of pipelines, highways, railroads, telegraph, telephone, and electric-transmission lines in connection with the project, or for the relocation or reconstruction of such facilities made necessary by the construction of the project."

    The area designated by the Secretary pursuant to this provision and thus taken by the United States in aid of the project extends from the original bed of the river (which was not designated) to the nearest contour line indicating an elevation of 1310 feet above sea level.3

    Another provision of the Act requires the Secretary to set aside approximately one-fourth of the reservoir area above the dam for the "paramount" use of the Colville and Spokane Tribes for hunting, fishing, and boating. (The reservoir, Lake Roosevelt, extends approximately 150 miles up stream from the dam into Canada, or about twice as far as the northern boundary of the Colville Reservation.) This provision of the Act reads as follows:

"The Secretary of the Interior, in lieu of reserving rights of hunting, fishing, and boating to the Indians in the areas granted under this Act, shall set aside approximately one-quarter of the entire reservoir area for the paramount use of the Indians of the Spokane and Colville Reservations for hunting, fishing,


    1 The 1945 Solicitor's opinion referred to infra (59 I.D. 147), dealing with certain of the subjects considered herein, refers only to the 1881 executive order.
    2 Grand Coulee Dam was authorized to be constructed by the Rivers and Harbors Act of August 30, 1935 (49 Stat. 1028, 1039), but no provision was included therein authorizing the taking of Indian lands. Some Indian lands were actually inundated prior to the 1940 Act. See 59 I.D. 147, 155 (1945).
    3 The 1940 Act was amended by the Act of December 16, 1944 (58 Stat. 813), to authorize a taking of some of the Indians' interest in the lands above the 1310 contour line to protect against the danger of slides in the areas around the reservoir.




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and boating purposes, which rights shall be subject only to such reasonable regulations as the Secretary may prescribe for the protection and conservation of fish and wildlife; Provided, That the exercise of the Indians' rights shall not interfere with project operations. The Secretary shall also, where necessary, grant to the Indians reasonable rights of access to such area or areas across any project lands."

    Pursuant to this provision, the Secretary in 1946 designated an area--the so-called "Indian zone"--which comprises essentially all of the "freeboard," "drawdown,"4 and water area inside the original boundaries of the reservations (except immediately around the dam).5 The zone extends to the center line of Lake Roosevelt from the Colville side except where the Colville and Spokane Reservations are adjacent to one another across the Lake. There, the zone includes the entire reservoir with the exception of a strip in the center of the Lake half a mile wide, which was preserved by the Secretary as a navigation lane. In addition, the zone extends from the Spokane side to the center line of a separate arm of the Lake formed by the backup of the Spokane River. The Colville Reservation does not border this arm of the Lake.

    Pursuant to a tri-party agreement among the National Park Service, the Office of Indian Affairs, and the Bureau of Reclamation, dated December 18, 1946, the Bureau of Reclamation has primary responsibility for overseeing administration of the reservoir area.6 The general public is presently permitted to have equal use of the Indian zone with the Indians, under the supervision of the National Park Service.

    The 1946 tri-party agreement reflects the views expressed a year earlier in an opinion by Solicitor Gardner, dealing with, inter alia, certain of the questions considered herein. 59 I.D. 147 (1945). Solicitor Gardner indicated in that opinion that portions of the original, pre-1940 riverbed in this area had been within the boundaries of the reservations, which had not been altered by the taking pursuant to the 1940 Act; and he appeared to suggest that since the original riverbed was not designated by the Secretary, title to the bed was unaffected by the Secretarial designation made pursuant to the Act. 59 I.D. at 152, 166-67, 175 n.60.

    I adopt these conclusions, and hold that the tribes do in fact hold the equitable title to those portions of the original riverbed within the boundaries of their reservations. I differ, however, with the 1945 opinion insofar as it dealt with the extent of the tribes' additional interests in the reservoir area. I hold that the tribes' hunting, fishing and boating rights in the zone set aside by the Secretary for their paramount use are reserved rights, preserved by Congress in the 1910 Act, and that those rights are exclusive of any such rights of non-Indians in that zone, although they do not encompass interference with project purposes and are subject to regulation by the Secretary to conserve fish and wildlife. In addition, I hold that the tribes have the power to regulate hunting, fishing, and boating by non-Indians in the Indian zone (which is almost entirely within the boundaries of the reservations).7 To the extent that the 1945 opinion conflicts with any of these conclusions, it is hereby overruled.

1. The Boundaries of the Colville and Spokane Reservations along the River

    A public land decision dated May 29, 1914, J. H. Seupelt, 43 I.D. 267, held that the Colville Reservation boundary was located at the middle of the channel of the Columbia River where it bordered the reservation. In my view this issue was correctly decided in Seupelt (which was followed in the subsequent 1945 Solicitor's Opinion, see 59 I.D. at 152).

    An apparent conflict between the boundaries established for the Spokane and Colville Reservations along the Columbia should be noted, however. The boundary of the Spokane Reservation is described in the executive order ratifying crea-


    4 "Freeboard" area is that land within the area taken for reservoir purposes which is above the high water mark of the reservoir and must be crossed to gain access to the water area. "Drawdown" area comprises the exposed land between the high-water mark and the actual water level.
    5 The zone is really two zones--one including lands taken from within the Colville Reservation, and the other including areas taken from within the Spokane Reservation. For convenience, however, these areas are referred to jointly as the "Indian zone."
    6 It was the tri-party agreement (which was approved by the Assistant Secretary) that formally set aside the Indian zone. The agreement speaks of a "Colville Indian Zone" and a "Spokane Indian Zone," and the map annexed as an exhibit to the agreement shows the navigation lane referred to above as being a separate area not included within either zone.
    7 The only locations in which the boundaries of the Indian zone might extend beyond those of either reservation would appear to be in places where, because of the meander of the original river or a difference in elevation on the two sides of the river, the center line of the original riverbed differs perceptibly from the center line of Lake Roosevelt. Such differences in fact have relevance only to the Colville Reservation, since the presence of the navigation lane in the middle of the Lake prevents the Spokane portion of the zone from approaching the center line of the original riverbed. (In addition, as set forth in the text infra, the Spokanes claim--not without support--that their reservation includes the entire riverbed.)




JUNE 3, 1974

tion of the reservation as being located on the west bank of the Columbia River, thus evidently overlapping with the Colville boundary. While I am cognizant of this conflict and of the consequent possibility that an area of joint rights may have been created in the area of overlap, I do not resolve this question herein, because both tribes, by a joint resolution dated September 17, 1973, have requested that I refrain from doing so. In their resolution, the tribes agree that the Secretary may establish a boundary line between the Colville and Spokane portions of the Indian zone at the center of the reservoir despite the overlap,8 and that the question of title to the underlying riverbed should be reserved for future determination. Determination of that narrow question is not necessary for decision of the remaining issues considered herein.

    With respect to the effect of the 1940 Act, it is my conclusion that the boundaries of the reservations along the Columbia (and, in the case of the Spokanes, along the Spokane River), wherever their precise location, were unchanged by the Act. It is clear from the line of authority founded on United States v. Celestine, 215 U.S. 278, 285 (1909), that once the boundaries of an Indian reservation are established, neither those boundaries nor the status of title to the tracts included within them may be changed, except upon a clear statement of an intent by Congress to change them. See Mattz v. Arnett, 412 U.S. 481 (1973); City of New Town v. United States, 454 F.2d 121, 125, 126 (8th Cir. 1972); 25 U.S.C. 398d. The Supreme Court concluded in Seymour v. Superintendent, 368 U.S. 351 (1962), that the boundaries of the Colville Reservation have not been affected by allotments, patents and other dispositions of land within the reservation made subsequent to its establishment. The current boundaries of that reservation thus remain as discussed in J. H. Seupelt, supra, and for similar reasons the boundaries of the Spokane Reservation remain unchanged by the Act.9 This holding is in accord with the position taken in the 1945 Solicitor's opinion. See 59 I.D. at 175 n.60.

2. The Indians' Interest in the Original Riverbed and the Indian Zone10

    Congress has recognized the Colville Confederated Tribes' full equitable title to tribal lands within the Colville Reservation, both in the 1940 Act and in prior legislation, see United States v. Pelican, 232 U.S. 442, 445 (1914); and similar recognition has been extended with respect to the Spokane Reservation.11 Such title, having vested in the tribes, cannot be taken except as clearly and specifically authorized by Congress.12 The following two subsections of this opinion deal, in light of this principle, with the nature of the tribes' interest in


    8 The Secretary is directed by the 1940 Act to set aside "approximately one-quarter of the entire reservoir area" as an Indian zone. Thus the zone must at a minimum be close to that one-quarter standard. If, however, in the exercise of his discretion the Secretary should decide to expand the present zone-which may well encompass less than one quarter of the entire reservoir area--it would appear that he could do so; and an expansion of the zone in the area where the Colville and Spokane Reservations are adjacent to one another could raise the problem of delineating the Colville and the Spokane portions of the zone.
    9 An argument against the conclusion set out above conceivably could be based on United States v. Oklahoma Gas and Elec. Co., 318 U.S. 206 (1943); Ellis v. Page, 351 F.2d 250 (10th Cir. 1965); and Tooisgah v. United States, 186 F.2d 93 10th Cir. 1950). Oklahoma Gas and Tooisgah, however, were decided prior to the Supreme Court's decisions in Seymour v. Superintendent, supra, which reaffirmed the analysis of Celestine and applied it to a statute opening the Colville Reservation to white settlement and ownership, and Mattz v. Arnett, supra, in which the Court indicated that a congressional intent to alter reservation boundaries can be found only if such an intent is made express in the language of the statute in question or can be clearly perceived from its legislative history and other surrounding circum stances. (DeMarrias v. South Dakota, 319 F.2d 845 (9th Cir. 1963), a case similar to Tooisgah, was explicitly overruled in United States ex rel. Feather v. Erickson, 489 F.2d 99 (8th Cir. 1973), on the ground that its rationale had become untenable in light of recent decisions such as Seymour and Mattz.) And in any event, all three cases--Oklahoma Gas, Ellis, and Tooisgah--involved statutes which, unlike the 1940 Act, conveyed to the United States all of the lands within the reservations in question. The courts in those cases professed to perceive in such circumstances a clear congressional intent to dissolve tribal governments on those reservations. Plainly, no such intent can be imputed to Congress in connection with the 1940 Act. Indeed, as to that Act, Seymour clearly governs; for if, as Seymour holds, continued tribal jurisdiction is not inconsistent with ownership by non-Indians of certain lands in fee within a reservation, then such jurisdiction is a fortiori not inconsistent with similar ownership, for purposes of a reclamation project such as the one involved here, by the Indians' trustee.
    10 The bed of a river is that area covered by water during flood stage up to the normal high water mark. With most rivers, much of this area is dry during the greater portion of the year, during which time it must be traversed to obtain access to the stream for fishing, hunting, boating, or other purposes. United States v. Kansas City Life Ins. Co., 339 U.S. 799 (1950). See also United States v. Cress, 243 U.S. 316 (1917).
    11 Congressional enactments concerning the Colville Reservation such as the Act of June 21, 1906 (34 Stat. 325, 378), which provided for the payment of $1.5 million compensation for the lands taken by virtue of the Act of July 1, 1892 (27 Stat. 62), and the Act of March 22, 1906 (34 Stat. 80), which provided compensation for lands taken by settlement and entry, were statutes in which Congress recognized tribal ownership of the equitable title to reservation lands. With respect to the Spokane Reservation, see, in addition to the 1940 Act, the Act of May 29, 1908 (35 Stat. 458), authorizing, inter alia, the allotment of land within that reservation.
    12 Mattz v. Arnett, 412 U.S. 481, 504 (1973); Seymour v. Superintendent, 368 U.S. 351 (1962); United States v. Celestine, 215 U.S. 278 (1909).




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(a) the pre-1940 riverbed, and (b) the Indian zone.

a. Title to the pre-1940 Riverbed.

    The bed of the river (i.e., of the Columbia and of its tributary the Spokane) was not designated by the Secretary pursuant to the 1940 Act, and the tribes were not compensated for any taking with respect to the riverbed. Accordingly, the action taken by the Secretary pursuant to the 1940 Act has not changed the tribes' title, and I hold that each tribe has full equitable title to that part of the riverbed which is within the exterior boundaries of its reservation.13

    It could conceivably be argued that the lands in the riverbed are owned by the state of Washington because lands underlying navigable waters in territories of the United States are, as a general rule, held by the United States for the benefit of future states under the "equal footing" doctrine; and both the Colville and Spokane Reservations were created while what is now the state of Washington was still a territory. Some authority in this regard for a claim of ownership by the state might be found in United States v. Holt State Bank, 270 U.S. 49, 55 (1925), which indicates that "disposals by the United States during the territorial period are not lightly to be inferred." Holt State Bank held that the bed of Mud Lake had not been reserved for the use of the Indians on the Red Lake Reservation, land that title thereto consequently had passed to the state of Minnesota when that state entered the union. The Supreme Court has recently made clear, however, that Holt State Bank turned on its particular facts, and has indicated that the focal question is the intent of the United States with respect to the land in question. In Choctaw Nation v. Oklahoma, 397 U.S. 620 (1969), the Court held that the bed of the Arkansas River in Oklahoma had been conveyed to the Cherokees, Choctaws, and Chickasaws prior to Oklahoma's becoming a state. The opinion emphasized that

"nothing in the Holt State Bank case or in the policy underlying its rule of construction . . . requires that courts blind themselves to the circumstances of the grant in determining the intent of the grantor." 397 U.S. at 634.

    Thus if the intent of the United States in administering lands now comprising a state was clearly to reserve the bed of a river for some particular purpose, then that intent, if embodied in an appropriate legislative or administrative act, would result in an exclusion of the riverbed from the lands passing to the state.

    I find that the executive order creating the Colville Reservation and the agreement and executive order establishing the Spokane Reservation sufficiently embody such an intent. Particularly on point in this respect is a recent decision by the Court of Appeals for the Ninth Circuit. In United States v. Alaska, 423 F.2d 764 (9th Cir. 1970), that court held that although Alaska was admitted on an equal footing with other states, the state did not own a lakebed within a wildlife refuge previously created by executive order. The court stated that the equal footing doctrine

"does not mean that the President had no power to previously promulgate the executive order here under scrutiny. If, as we now hold, the language of the order is sufficiently clear to withdraw the water of the lake and the submerged land the state's rights, if any, are subsequent in time and inferior in right. . . . [T]he United States had all the powers of a sovereign and, if it saw fit, it might even grant rights in and titles to lands which normally would go to a state on its admission. . . ." 423 F.2d at 768.

    Similarly, I conclude that the bed of the Columbia and Spokane Rivers in the area presently being considered were reserved for the use and benefit of the Colville and Spokane Tribes and therefore were not acquired by the state of Washington when it entered the union. This Department determined in J. H. Seupelt, supra, that the land out to the middle of the Columbia River had been reserved to protect the fishing interests of the Colville Indians, who relied upon the fish as a source of subsistence. This aspect of the opinion in Seupelt, which was cited with approval in the 1945 Solicitor's opinion, 59 I.D. at 152, is now reaffirmed. Nor is there any basis for distinguishing in this regard between the Colville and Spokane Tribes,14 or between the Columbia and Spokane Rivers.


    13 But see page 7, supra. That title of course confers no rights conflicting with the provisions of the 1940 Act.

The principle articulated at page 8, supra, seems to me clearly to overcome the possible argument to the contrary noted by Solicitor Gardner in his 1945 opinion. See 59 I.D. at 167 n.48. That argument is based on the "ordinary rule" that absent the expression of a contrary intention, "the con veyance of title to the upland carries with it the title to the bed of the stream." As the 1945 opinion acknowledged, however, in the present instance title was taken rather than conveyed. And in any event, the broad principles underlying United States v. Celestine, 215 U.S. 278 (1909), and its progeny would make inappropriate the application of any such rule here, since title to the riverbed was not clearly and specifically taken.

    14 See 59 I.D. at 153.




JUNE 3, 1974

Indeed, by placing the boundary of the Spokane Reservation on the far (west and south) banks of those rivers, the executive order confirming creation of that reservation makes it doubly clear that the lands reserved for the use of the Indians included the river bed.15

    b. The Tribes' Interest in the Indian Zone

    As outlined above, the Secretary designated all lands between the original riverbed and the nearest 1310-foot contour line to be taken in aid of the Grand Coulee project. Under the Act, accordingly, the United States was granting all of the "right, title, and interest" of the Indians in and to all Indian lands so designated and taken, "subject to the provisions of this Act. . . ." And one of those provisions specified that the Secretary should "set aside" approximately one-quarter of the reservoir area for the "paramount use of the Indians" for hunting, fishing, and boating purposes.

    The question to which I now turn concerns the precise nature of the Indians' interest in the so called Indian zone designated by the Secretary pursuant to that provision. Solicitor Gardner concluded in 1945 that that interest was not necessarily an exclusive one. I am constrained to disagree with this position in view of my conclusion with respect to an issue not specifically considered in the 1945 opinion. In my view the Indians have a reserved and therefore exclusive interest in the Indian zone under the 1940 Act.16

    Solicitor Gardner viewed the word "paramount" in the Act as reflecting a congressional purpose to create a "flexible scheme" giving the Secretary discretion to determine whether exclusive use of the zone by the Indians is "necessary to ensure the realization of their privilege." 59 I.D. at 170. Standing alone, however, the term "paramount" clearly does not determine :the issue of whether exclusivity was intended. As Solicitor Gardner himself pointed out, congressional "reliance upon the adjective 'paramount' alone in this context was probably unfortunate," id, at 169, since the word is ambiguous with respect to connotations of exclusivity. The relevant legislative history, however, while not altogether consistent, serves in my view to resolve the question along lines somewhat different from those articulated the 1945 Solicitor's opinion.

    The legislative history of the Act concededly does not point unequivocally in a single direction. In its report to Congress with regard to the proposed legislation, for example, the Department suggested that "the rights of the Indians to use this area for hunting, fishing, and boating will not necessarily be exclusive rights." H.R. Rep. No. 2350, 76th Cong., 3d Sess. 2 (1940). This suggestion represents the strongest support for the position taken in the 1945 opinion. On the other hand, the bill which became the 1940 Act was drafted in its final form by the Office of Indian Affairs jointly


    15 The outcome of Holt State Bank was in large part dependent on the fact that the Red Lake Reservation, which was involved in that case, had been created by means which did not constitute an "express" setting aside of the lands in question. See United States v. Pollman, 364 F. Supp. 995, 999 (D. Mont. 1973). As the opinion in Holt pointed out,

"The reservation came into being through a succession of treaties with the Chippewas whereby they ceded to the United States their aboriginal right of occupancy to the surrounding lands. . . . There was no formal setting apart of what was not ceded, nor any affirmative declaration of the rights of the Indians therein, nor any attempted exclusion of others from the use of navigable waters. The effect of what was done was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory; and thus it came to be known and recognized as a reservation. . . . There was nothing in this which even approaches a grant of rights in lands underlying navigable waters; nor anything evincing a purpose to depart from the established policy . . . of treating such lands as held for the benefit of the future State." 270 U.S. at 58-59 (footnote omitted).

The Court in fact noted in Holt that "[o]ther reservations for particular bands were specially set apart, but those reservations and bands are not to be confused with the Red Lake Reservation and the bands occupying it." Id. at 58 n. These aspects of Holt, which distinguish that case from United States v. Alaska, supra, and from the situation now before me, were emphasized in the Pollman decision, supra. That decision held that title to the bed of the south half of Flathead Lake, within the Flathead Reservation, did not pass to Montana when that state joined the union; instead, the court concluded, since the reservation clearly had been set aside for Indian use prior to Montana's becoming a state, the bed continued to be equitably owned by the tribes in question. See also Montana Power Co. v. Rochester, 127 F.2d 189 (9th Cir. 1942).

It should also be noted that in United States v. Big Bend Transit Co., 42 F. Supp. 459 (E.D. Wash. 1941), the court held that the bed of the Spokane River was part of the Spokane Reservation. The opinion observed that "[t]he State of Washington specifically disclaimed all title to all lands held by any Indian or Indian Tribes provided that the Indian lands should remain under the absolute jurisdiction and control of the Congress." 42 F. Supp. at 467 (citing Enabling Act, Rem. Ret. Stats. of Wash. Vol. 1. pp. 332, 333; 25 Stat. 676, 677, sec. 4, par. 2).
    16 This opinion concerns only the boundaries of the Colville and Spokane Reservations in the reservoir area, the title to certain portions of the riverbed in that area, the right of tribal members to use the Indian zone designated by the Secretary pursuant to the 1940 statute for hunting, fishing. and boating purposes, and the power of the tribes under that statute to control the use of that zone for those purposes by others. The opinion does not affect or change any of the governmental and institutional arrangements under which Grand Coulee Dam and the Third Power plant connected therewith are now being operated and maintained.




JUNE 3, 1974

with the Bureau of Reclamation shortly after the Assistant Commissioner of Indian Affairs had indicated that he contemplated the "setting aside of a particular part or parts of the reservoir for the exclusive use of the Indians in exercising their rights, subject, of course, to the primary use of the reservoir for reservoir purposes." 59 I.D. at 157 (Emphasis added). Indeed, the very memorandum which set forth that contemplation of "exclusive" use expressed the notion in proposed statutory language utilizing the word "paramount." Id.

    Early drafts of the Act prepared within the Department provided that the title to be granted to the United States should be "subject to the reservation for the Indians of an easement to use such lands for hunting, fishing, boating, and other purposes." 59 I.D. at 156. The Bureau of Reclamation resisted this approach, not only out of opposition to the open-ended reservation of easements for unspecified "other purposes," but also on the basis of a concern that administration of the project should not be made unduly complicated. The Indian lands to be taken were not contiguous, but rather were arranged in a "checkerboard" pattern extending, in fact, upriver beyond the boundaries of the reservations.17 This situation obviously would have rendered the simple reservation of an easement with respect to the particular lands taken difficult to oversee and administer. Indeed, it was feared that a scheme under which the Indians retained scattered "rights in all parts of the reservoir area . . . would interfere with the proper development of its recreational facilities." Id.

    Thus the scheme of the Act was modified, and the present statutory language, authorizing the creation of a contiguous Indian zone, was agreed upon. There is no persuasive evidence of any determination at the time of this modification that the nature of the Indians' rights was to be different than had originally been contemplated when the reservation of an easement was specified, nor is there any apparent reason or basis for such a determination. In this context, given the background outlined above and the limited purpose that the change in approach evidently was designed to accomplish, the soundest inference is that only the location of the areas to which such rights were applicable was changed.18 It is the failure of Solicitor Gardner to draw this inference, or even to deal with the question of whether the Indians' rights were reserved rights, which represents the chief point of departure between his analysis of the Act and mine.

    This view of the Act also comports more closely with an agreement dated June 14, 1940, between the Office of Indian Affairs and the Bureau of Reclamation, relating to acquisition of Indian lands for the project. Paragraph 7 of that agreement, which was concluded only fifteen days prior to the date of the Act, reflects an understanding that "existing" rights of hunting and fishing in the areas to be taken were to be "satisfied" by the Act, thus arguably, at least, suggesting a reservation of preexisting rights.19

    The above analysis is reinforced by the language of the Act. The Secretary is directed to "set aside" an Indian zone from the lands taken for project purposes--terminology that at least is consistent with, and may well be indicative of, a contemplation that already existing Indian rights to the lands designated were being preserved. More-


    17 Congress had opened both the Spokane and Colville Reservations to entry and settlement by non-Indians. See the Acts of June 19, 1902 (32 Stat. 744) (Spokane), March 22, 1906 (34 Stat. 80) (Colville), and May 29, 1908 (35 Stat. 458) (Spokane). See also the title opinion dated May 2, 1973, issued by the Title Plant, Portland Area Director's Office, Bureau of Indian Affairs, which includes 11 color-coded maps depicting the boundaries of the Colville Reservation and the source of title for each parcel of land in the designated area. That title opinion and all related documents are on file in the above office.

As for the area upriver from the reservations, the Colville Reservation originally extended considerably north of its present northern boundary but was diminished by the Act of July 1, 1892 (27 Stat. 62), which provided for allotments to Indians living in the severed portion. See 59 I.D. at 151.
    18 Since the Indian zone is located almost totally within the exterior boundaries of the Colville and Spokane Reservations, there is no geographical anomaly involved in the conclusion that the Indians' rights in the zone are reserved rights.
    19 The 1945 Solicitor's opinion includes the following passage:

"It is important to realize that the acquisition of Indian allotted lands for the reservoir began long in advance of the passage of the act of June 29, 1940, and that some of these lands were inundated prior to their acquisition. The plan at this time was to reserve easements to the Indian owners which would enable them to make use of the reservoir without any limitation upon these uses, and therefore the riparian factor of severance damage was not taken into consideration in appraising the Indian lands, either at this time or subsequently, the lands of the Indians and non-Indians alike being appraised upon the same basis. The Indian allotted lands were acquired under memoranda of understanding between the Indian Office and the Bureau of Reclamation approved by the Department on April 6, 1939, and June 14, 1940. Paragraph 7 of the latter memorandum of understanding provided: 'Nothing in this agreement shall affect existing hunting and fishing rights of the Indians in the Columbia River Reservoir area intended to be satisfied by the enactment into law of the provisions of the second paragraph of Section 1 of S. 3766 and H.R. 9445, *     *     * (76th Congress, 3d Session).' " 59 I.D. at 155 (emphasis added; footnotes omitted).




JUNE 3, 1974

over, the directive is to set aside the zone "in lieu of" reserving to the Indians hunting, fishing, and boating rights "in the areas granted under this Act"--language which would appear to suggest the notion outlined above, to the effect that the Act merely imposed a geographical shift of those preexisting rights. Indeed, the Indians are specifically said to have "rights" in the zone set aside, which rights are "subject only" to (a) the Secretary's authority to promulgate conversation regulations, and (b) the overriding proviso that the rights "shall not interfere with project operations."20 The implication thus is that those rights are not "subject" to any concurrent rights of other persons in the Indian zone.21

    The conclusion that the Act contemplates retention by the Indians of preexisting (and therefore reserved and exclusive) right is, in addition, strongly supported by the principle that enactments permitting a taking of Indian property are to be construed narrowly, as giving congressional consent only to the most limited extinguishment of Indian proprietary rights necessary for fulfillment of the purpose of the taking. Mattz v. Arnett, supra, 412 U.S. at 504; Menominee Tribe v. United States, 391 U.S. 404 (1968); United States v. Santa Fe Pac. R. Co., 314 U.S. 339 (1941); Seymour v. Superintendent, supra; United States v. Nice, 241 U.S. 591 (1916); United States v. Celestine, supra. There is no provision in the 1940 Act for any non-Indian use of areas included within the Indian zone.

    Similar support for this view of the Act stems from the well-established principle that statutes affecting Indian interests are, where ambiguous, to be construed most favorably to the Indians involved. E.g., Squire v. Capoeman, 351 U.S. 1, 6-9 (1956); Carpenter v. Shaw, 280 U.S. 363, 367 (1930); United States v. Santa Fe Pac. R. Co., supra, 314 U.S. at 353-54; Choate v. Trapp, 224 U.S. 665, 675 (1912); Cherokee Inter-marriage cases, 203 U.S. 76, 94 (1906).

    Accordingly, although neither the Act nor the legislative history underlying it is crystal clear, I am compelled by the above considerations to hold that the Indians' rights to "paramount use" of the Indian zone are reserved rights held by the United States in trust for them, and that those rights are therefore exclusive (except as limited by the prohibition against interference with project operations and by the Secretary's explicitly conferred power to prescribe conservation regulations). Those rights are a condition to and a burden upon whatever title the United States received pursuant to the 1940 Act. Cf. Seufert Bros. v. United States, 249 U.S. 194 (1919).

3. The Jurisdiction of the Tribes to Regulate Fishing, Hunting, and Boating in the Indian Zone

    Given my holding in the preceding section, the question arises whether in addition to having exclusive hunting, fishing, and boating rights in the Indian zone, the tribes also have the authority to regulate the use of that area by others for such purposes. It is my conclusion that they do.

    With respect to hunting and fishing, such a right is clearly inferable from 18 U.S.C. 1165, which, as was held in Quechan Tribe v. Rowe, 350 F. Supp. 106, 110 (S.D. Cal. 1972), "makes it a crime for any person to enter an Indian Reservation for the purpose of hunting, fishing, or trapping unless such person has tribal permission to do so."22 Quechan held that section 1165 "confirmed" the right of tribes to "control, regulate and license hunting and fishing" within their reservations.23 See also United States v. Pollman, 364 F.


    20 The existence of these two limitations on the Indians' rights may well explain why the term "paramount" rather than "exclusive" was used in the Act, and may also perhaps underlie the comment in the Department's report quoted on page 15, supra.
    21 I do not mean to suggest that this analysis of the language of the Act is conclusive of the questions considered herein; indeed, my construction of that language is not the only plausible construction. I do, however, believe that my reading of the language is the soundest of the various possible readings, and that in combination with the analysis of the history and purposes of the Act set out above and the rules of statutory interpretation referred to in the text infra, it provides a sound basis for my ultimate conclusions.
    22 Section 1165 reads as follows:

"Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined not more than $200 or imprisoned not more than ninety days, or both, and all game, fish and peltries in his possession shall be forfeited."

    23 In theory there may be some question about whether the tribes enjoy regulatory power in those few portions of the Indian zone which are not within the boundaries of the reservations, and whether 18 U.S.C. 1165 would be applicable to those areas in view of the general principle that criminal statutes are to be strictly construed. I am inclined, on the basis of the reasoning set out in the text at note 26, infra, toward the view that the tribes do have jurisdiction in those areas; and I am similarly inclined to conclude that the language of section 1165--which speaks of "lands of the United States that are reserved for Indian use"--is applicable to all portions of the Indian zone, in light of my holding above that the tribes' hunting, fishing, and boating rights in the zone are reserved rights. (With respect to the latter point, I note that section 1165 requires that the substantive terms of the statute be violated "knowingly and willfully," so that my view of the statute would not operate to ensnare the unwary. See United States v. Pollman, supra.) These questions probably are of no realistic significance, however, in view of the minimal extent of such geographical discrepancies and the practical difficulty of ascertaining their location.




JUNE 3, 1974

Supp. 995, 1001-02 (D. Mont. 1973). Thus any tribal ordinances properly enacted to regulate hunting and fishing in the Indian zone must be regarded as valid and may be enforced by the Colville and Spokane tribal courts so long as the requirements of all pertinent federal statutes, such as 25 U.S.C. 1301 et seq., are observed.24 See Alaska Pac. Fisheries v. United States, 248 U.S. 78 (1916); Morris v. Hitchcock, 194 U.S. 384 (1904); Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th Cir. 1956). Such ordinances may also, of course, in effect be enforced in the federal courts through application of section 1165.

    The right to regulate boating in the Indian zone is not specifically conferred upon the tribes by section 1165, which speaks only of hunting and fishing. In my view, however, the tribes' regulatory authority in the zone extends to boating as well.

    It has long been settled that Indian tribes, bands, and nations originally possessed all aspects of sovereignty, and that those groups today retain such sovereignty, at least in terms of power over their internal affairs, except as limited by act of Congress. Williams v. Lee, 358 U.S. 217, 220, 223 (1959); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965); Iron Crow v. Oglala Sioux Tribe, supra, 231 F.2d at 91-94, 98; Oliphant v. Schlie, --F. Supp. --, No. 51 l-73C2 (W.D. Wash., filed March 21, 1974); see 55 I.D. 14 (1934). In McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172-73 (1973), the Supreme Court recently emphasized the pertinence of these principles to questions such as the one now before me:

"The Indian sovereignty doctrine is relevant, then, not because it provides a definitive resolution of [such] issues . . ., but because it provides a backdrop against which the applicable treaties and federal statutes must be read. It must always be remembered that the various Indian tribes were once independent and sovereign nations and that their claim to sovereignty long predates that of our own Government. Indians today are American citizens. They have the right to vote, to use state courts, and they receive some state services. But it is nonetheless still true, as it was in the last century, that '[t]he relation of the Indian tribes living within the borders of the United States [is] an anomalous one and of a complex character. . . . They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, nor as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they reside.' United States v. Kagama, 118 U.S. at 381-382." (Footnotes omitted.)25

    On the basis of this approach, the 1940 Act's reservation of exclusive boating rights to the tribes provides in my view a sufficient basis for tribal jurisdiction to regulate that activity in the Indian zone."26 The conferral of such exclusive rights would be futile unless there existed some appropriate means of enforcing those rights. It is reasonable, therefore, especially absent any other clearly effective mechanism for the enforcement of such rights, to conclude that a concomitant enforcement authority rests in the tribes themselves.

    The Indian zone is, as I have noted, almost entirely within the boundaries of the reservations. A properly drafted tribal ordinance could provide that anyone entering the reservation subjects himself to tribal regulations dealing with activities as to which the Indians have exclusive rights, and to the jurisdiction of the tribal courts in such respects. See, e.g., Buster v. Wright, 135 F. 947 (8th Cir. 1905), app. dismissed, 203 U.S. 599 (1906); cf. Oliphant v. Schlie, supra, --F. Supp. at --:

"[A]n Indian tribe's powers of local self-government originally included the power to enact


    24 The Colville Constitution, which has been approved by the Secretary, provides in Article V, section I (a), that the elected tribal council has the responsibility and authority "to protect and preserve the tribal property, wildlife and natural resources. . . ." A similar provision appears in Article VII, Section I (c) of the Spokane Constitution.
    25 While decisions concerning the recognition and preservation of tribal sovereignty have basically dealt with reservations established by treaty, I can perceive no reason for any different conclusion where an executive order reservation is involved, at least so long as the executive order does not clearly and specifically indicate that the reservation was created for an exceptional purpose incompatible with ordinary notions of tribal sovereignty.
    26 I see no sound basis or reason for distinguishing commercial navigation from pleasure boating in this regard. The Act is not in terms limited to rights of the latter sort; indeed, excessive or unregulated commercial navigation might well interfere with the Indians' hunting and fishing as well as boating rights. In this connection I note that navigation rights exist from one end of the Lake to the other in the non-Indian zone (including the "navigation lane" established by the Secretary between the Colville and Spokane portions of the Indian zone).




AUGUST 15, 1974

criminal laws pertaining to non-Indians and to confer upon its tribal court jurisdiction over the person of a non-Indian to enforce such laws on those lands reserved for such Indians within the established boundaries of their reservation. Such jurisdiction continues to this day, save as it has been expressly limited by the acts of a superior government, i.e., the United States Government."27

    Nor is the tribal authority outlined above undercut by the regulatory authority of the State of Washington under its criminal law and Public Law 280, 18 U.S.C. 1162. It is immaterial, in fact, whether the state has full jurisdiction over the Colville and Spokane reservations in the respects authorized by that statute; for 18 U.S.C. 1162 (b) in any event precludes state regulation of Indian trust property "in a manner inconsistent with any Federal . . . statute," and likewise prevents the state from

"depriv[ing] . . . any Indian tribe, band or community of any right, privilege, or immunity afforded under any federal . . . statute with respect to hunting, trading, or fishing or the control, licensing, or regulation thereof."

    Such rights are granted both by the 1940 Act and by 18 U.S.C. 1165, so that state regulatory law of the sort referred to above can in no way undermine the Indians' exclusive right to hunt, fish, or boat in the Indian zone or their right to regulate those activities there. Any state law conflicting with tribal ordinances in these areas, or purporting to undercut such tribal jurisdiction, would be invalid. See United States v. Pollmann, supra, 364 F. Supp. at 1002; Quechan Tribe v. Rowe, supra. 28

                                                                                                                    KENT FRIZZELL,


                                                                                                                                        August 15, 1974.


To:            Secretary of the Interior
From:        Solicitor
Subject:     Correction of Designation of Lands Within the Chemehuevi Indian Reservation
                 Taken in Aid of Construction of Parker Dam

    A dispute concerning the ownership of approximately twenty-one miles of shoreline along the Lake Havasu portion of the Colorado River in California is pending before this Department. The Chemehuevi Tribe of Indians claims to be equitable owner of the shoreline down to the minimum water level of Lake Havasu. Since construction of the Parker Dam, however, which created Lake Havasu, the riparian lands have been administered in part by the Bureau of Land Management as public lands and in part by the Bureau of Sport Fisheries and Wildlife as a portion of the Havasu National Wildlife Refuge.

    The legal question to which this memorandum is addressed is whether the Secretary has authority to take action which determines, establishes and confirms that the Chemehuevi Tribe has equitable title to the lands in question (subject to the right of the United States to raise the water level of the Lake in connection with the operation of the Parker Dam). For the reasons that follow, it is my conclusion that the Secretary does have authority to determine, establish and confirm that the tribe has title and that such Secretarial action could successfully be defended as a matter of law.

I. Factual Background

    The Chemehuevi Reservation was established in 1907 on the ancestral homelands of the Chemehuevi Indians; it included "a deep low valley [made] by the Colorado River [which] has been occupied from time immemorial" by the Tribe. 57 I.D. 87, 89 (1939). Lands in this valley were allotted to and resided upon by a number of Indian families until 1940, when the valley was flooded by the reservoir created by operation of Parker Dam. 57 I.D. at 92-93.

    In 1933, the Secretary of the Interior entered into a cooperative contract with the Metropolitan Water District of Southern California (hereafter "Metropolitan") whereby the United States agreed


    27 The court in Oliphant restricted its holding to offenses "occurring on land held in trust by the United States Government for the benefit of Indians within the exterior boundaries of the . . . Reservation. Jurisdiction . . . over non-Indians on fee patent lands within the reservation is not presently before the Court, and the Court expresses no views on the question. "____F. Supp. at ____.

Similarly, I deal above only with tribal authority to regulate activities as to which the Colville and Spokane Tribes have exclusive and reserved rights, in areas to which such rights are applicable.
    26 As noted above, there are in reality two Indian zones--a Colville zone and a Spokane zone--rather than one. Consistent with this fact and with the 1945 Solicitor's opinion, 59 I.D. at 159-60, each tribe in effect has jurisdiction as described above over its portion of the zone.




AUGUST 15, 1974

to build and operate the Parker Dam with funds provided by Metropolitan. The State of Arizona resisted construction of the project, claiming that the contract between the Secretary and Metropolitan was not authorized by existing reclamation laws. At one point, the state mobilized a portion of its national guard to impede construction on the Arizona side, and in 1935 the United States filed a bill in equity in the Supreme Court to enjoin such interference. The Court dismissed the bill, finding that the United States had not complied with section 9 of the Act of March 3, 1899, 33 U.S.C. 401, forbidding the construction of any dam in a navigable river unless consented to by Congress. United States v. Arizona, 295 U.S. 174 (1935).

    On August 30, 1935, Congress passed an Act generally authorizing construction of Parker Dam and ratifying previous contracts made in aid of its construction. 49 Stat. 1039. The Act, however, did not specifically authorize the taking of any Indian land for the project. Solicitor Margold subsequently determined that the Chemehuevi Indians were entitled to payment by the United States "for damages to certain lands . . . which will be flooded by the Parker Reservoir," 57 I.D. 87, and an appraisal committee was created to set a fair valuation on those Chemehuevi Reservation lands to be taken in connection with the construction of Parker Dam. The Committee submitted both a majority and a minority report appraising certain lands within the Reservation; these reports agreed as to what lands would be taken, but differed as to their proper value. In July 1940, a statute was enacted authorizing the taking, "in aid of construction of the Parker Dam Project," of such lands within the Chemehuevi Reservation "as may be designated by the Secretary of the Interior," 54 Stat. 744. On October 9, 1940, Acting Secretary Wirtz approved payment to the Chemehuevis of $108,104.95, essentially adopting the valuation contained in the minority report submitted by the appraisal committee. And on November 25, 1941, Secretary Ickes approved a description of the reservation lands to be taken.

    The source of the present controversy is that Lake Havasu, the reservoir behind Parker Dam, does not cover all the lands encompassed by the 1941 description and appraised by the committee. Most of the designated but non-inundated lands have been treated as reclamation withdrawn lands. Additionally, on January 22, 1941, President Roosevelt included the northern five-and-a-half miles of this shoreline within Havasu National Wildlife Refuge. Executive Order No. 8647.

    The construction of Parker Dam concededly would have benefited the Chemehuevis if they had retained their ownership of riparian lands, since Lake Havasu has considerable recreational value. But the result of the taking and the subsequent federal administration of the shoreline property has been to deprive the Tribe of possession of any lands riparian to Lake Havasu. As a consequence, the purpose for which the Chemehuevi Reservation was created--to provide a lasting homeland for the Chemehuevi Indians--has been frustrated to a great degree. Most of the Reservation remaining in Indian control after the construction of Parker Dam is desert and mesa land unsuitable for habitation; in fact, I am advised that only one Chemehuevi family has resided there in recent years. The only land of substantial value in the area is the shoreline property.

II. Legal Analysis

    If the power to designate the Chemehuevi lands to be taken in aid of the Parker Dam project is a continuing power rather than one which terminated when the original designation was made in 1941, then the Secretary may modify that original designation. There are convincing arguments for the conclusion that the power of designation is indeed a continuing one.

    If the original taking had been geographically insufficient, so that some inundated lands were not taken, it seems clear that the Secretary could have modified his original designation so as to include the inundated areas. No return to Congress for any additional authority would have been necessary, since the modification would merely have aided in accomplishing the existing statutory objective--i.e., it would have done what Congress had authorized the Secretary to do, namely, to effectuate the taking of those lands required for the project. Much the same reasoning would apply similarly to the converse situation where the Secretary at first designated more land than turned out to be required for purposes of the project--e.g., where certain of the designated lands extended so far beyond the Lake itself (or even beyond the adjacent designated lands) that sound administration of those lands was perhaps made unduly difficult. In this situation as well, the Secretary would appear to need no additional grant of authority to modify his designation so as to accomplish the statutory purpose. And this latter situation is, of course, in essence the present situation: there are compelling arguments to the effect that the Secretary's 1941 designation encompassed more territory than was required or desirable. Fee title in the United States to the shoreline is not truly required for project purposes;1 and the undesirability of depriving the




AUGUST 15, 1974

Chemehuevis of the only property of any real value within their reservation is obvious.

    In these circumstances it may be concluded that the Secretary may modify his original designation by correcting the 1941 description of lands taken, deleting from it the lands not permanently flooded, as to which the Chemehuevis' equitable title is to be determined, established, and confirmed.2 In order to allow for situations in which the water level of Lake Havasu would rise above its minimum level, however, the Secretary's order would specify that the title is subject to a flowage easement in the United States.3 Specification of the easement--the minimum interest which the United States could take consistently with fulfillment of the purposes of the project--would accord with the principle that infringements on Indian property rights should be minimized wherever possible. Cf. Mattz v. Arnett, 412 U.S. 481, 504-505 (1973); United States v. Santa Fe Pac. R.R., 314 U.S. 339, 353-54 (1941); United States v. Celestine, 215 U.S. 278, 285 (1909); United States v. 2005.32 Acres of Land, 160 F. Supp. 193 (D.S.D. 1958); Confederated Tribes of the Umatilla Reservation v. Froehlke, Civ. No. 72-211 (D. Ore. 1972).4

    Such Secretarial action would not be barred by statutes such as 25 U.S.C. 398d or 43 U.S.C. 150, which impose restrictions with respect to actions affecting Indian reservations. The first of these statutes, 25 U.S.C. 398d, prohibits making any change in the boundaries of reservations except by Act of Congress. But just as the original designation affected only title to land within the Chemehuevi Reservation and did not change the Reservation's boundaries, see United States v. Celestine, 215 U.S. 278, 285 (1909), so too the redesignation would work no boundary change; it would merely confirm equitable title in the Chemehuevis to the lands in question. Under the other statute referred to, 43 U.S.C. § 150, executive action "with draw[ing]" public lands "for or as an Indian reservation" is prohibited. But the Secretary would not be "withdrawing" lands; he would merely be exercising his authority to correct his designation of the lands needed for the Parker Dam project. The transaction would have to do with title, as indicated above, and would not affect the existence or extent of the Reservation.

    In any event, 25 U.S.C. 465 explicitly authorizes the Secretary "to acquire . . . any interest in lands . . . within or without existing reservations . . . for the purpose of providing land for Indians." (Emphasis added.) And despite the possible argument that the term "acquire" as thus used refers only to the acquisition of land from third parties, a recent


    1 The legislative history of the 1940 Act is entirely consistent with this view. The House and Senate Reports with respect to the 1940 statute, S. Rep. No. 1807, 76th Cong., 3d Sess. (1940); H.R. Rep. No. 2684, 76th Cong., 3d Sess. (1940), contain virtually identical letters from Secretary Ickes and Acting Secretary Burlew to the chairmen of the congressional committees involved. Each letter includes the following statements:

"The construction of Parker Dam will cause the reservoir created by the dam to flood certain lands within the Fort Mohave Indian Reservation in Arizona and the Chemehuevi Reservation in California. The lands flooded will include tribal lands and lands which have been allotted to individual Indians. . . .

"[The bill], if enacted . . . , will grant to the United States the right, title, and interest of the Indians in and to such lands and will provide a method for compensating the Indians for their interests in the land." (Emphasis added.)

Thus, Congress was not apprised that any lands would be taken above the pool level of Lake Havasu; indeed, this Department indicated to Congress that only "flooded" lands were to be taken.
    2 The Secretary would in effect be reviewing an earlier decision of the Department. His authority to review the actions of his predecessors is clearly in West v. Standard Oil Co., 278 U.S. 200, 210 (1929):

"If at the time of Secretary Work's order the Department still had jurisdiction of the land, he possessed the power to review the action of his predecessor and to deal with the matter as freely as he could have done if the dismissal of the proceedings had been his own act or that of a subordinate official. For, so long as the Department retains jurisdiction of the land, administrative orders concerning it are subject to revision."

See also Lane v. Darlington, 249 U.S. 331 (1919); Beley v. Naphtaly, 169 U.S. 353, 364 (1898); New Orleans v. Paine, 147 U.S. 261 (1893); Aspen Consol. Mining Co. v. Williams, 27 I.D. 1 (1898); Parcher v. Gillen, 26 I.D. 34 (1898); cf. Louisiana v. Garfield, 211 U.S. 70, 75 (1908). In the present case the lands have continued within the jurisdiction of the Department, so that there is no question as to the Secretary's authority.
    3 It might be argued that the 1940 Act does not authorize the taking of an easement, since the terms of the statute speak of taking "all right, title and interest" of the Indians. While that argument is not convincing--since in my view the authority to take "all" of the Indians' interest necessarily includes within it the authority to take a part of that interest, especially where a limited taking is indicated by the principle of construction outlined above to be appropriate--I do believe that it would be prudent to request the Tribe to confirm the flowage easement by grant.
    4 An argument might be made that the Secretary's redesignation should result in a refund to the Government of some portion of the money paid to the Chemehuevis as compensation for the original taking. The redesignation would be made unilaterally by the Secretary; however, the transaction would not be in the nature of a bilateral agreement. And there is considerable question whether such action, in effect vesting title to property in another, can properly be deemed to impose a liability upon the party benefited. Such a result would seem especially inappropriate in this case, where a fiduciary would be imposing an obligation on his beneficiary.




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Supreme Court decision has given the term an extremely liberal construction, one which would appear to make section 465 applicable to "intra governmental transfers" to trust status of land already owned by the United States. In Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973), the Court indicated that section 465 was applicable to a tribe's leasehold interest in National Forest lands despite the fact that that interest had "not [been] technically 'acquired' " for the tribe by the Government. "It would have been meaningless," the Court stated, "for the United States, which already had title to the forest, to convey title to itself for the use of the Tribe." 411 U.S. at 155 n.11. Thus, since the lands now in question are "within . . . [the] existing reservatio[n]," section 465 (which postdates 43 U.S.C. 150 by fifteen years) would appear to provide additional authority for the Secretary's action.

                                                                                                                    DAVID E. LINDGREN,
                                                                                                                                        Acting Solicitor.




MAY 18, 1923


49 L.D. 592                                                                                                                        May 18, 1923.


By article III of tile treaty of March 30, 1867, under which the Territory of Alaska was ceded to the United States, and by subsequent acts providing for their education and support, Congress has recognized the natives of Alaska as wards of the Federal Government, thus giving them a status similar to that of the American Indians within the territorial limits of the United States.


While there is no specific statute relating to the subject, yet the inherent power conferred upon the Secretary of the Interior by section 441, Revised Statutes, to supervise the public business relating to the Indians, includes the supervision over reservations in the Territory of Alaska created in the interest of the natives and the authority to lease lands therein for their benefit.

EDWARDS, Solicitor:

    By the Executive order of February 27, 1915, the President "withdrew from disposal, and set apart for the use of the Bureau of Education" 25,000 acres, including both land and water, surrounding the village of Tyonek near the north end of Cook Inlet in Alaska.

    The primary object of this reservation was to enable your Department through the Bureau of Education to maintain a school and otherwise care for, support and advance the interests of the aboriginal natives who are practically the only inhabitants of the village mentioned, and who support themselves mainly through hunting, trapping, and fishing. In view of the fact that these natives live in an isolated locality and are remote from any place where they can readily and advantageously dispose of their fish, the officers of the Bureau of Education have concluded that it would be both wise and helpful to induce the installation and maintenance of a salmon cannery at or near the village.

    There can be no doubt but that such a plant would be very beneficial to the natives because it would not only furnish them employment in and about the cannery itself but would encourage them to more extensively engage in fishing since the superintendent in charge of the schools for the Eskimos, Aleuts, and other aboriginal people, all of whom I shall hereafter refer to as natives, has reported in a telegram addressed to the Bureau of Education that a "small cannery on the reserve means eight to twelve thousand dollars to village. Without it sale of salmon will net them two or three thousand dollars" only.

    In furtherance of this helpful object, the superintendent has entered into negotiations with Joseph A. Magill "for the erection of a cannery and for fishing privileges within the reserve for the period of five years," and by his letter of April 4, 1923, addressed to this Department, the Commissioner of Education asks--

    Information is desired from the Department as to whether or not the Commissioner of Education is authorized to issue to Mr. Magill a permit to operate a cannery and to fish within said reserve, conditioned on the execution of a lease between Mr. Joseph A. Magill and the Tyonek Native Store.

    In response to your request for my opinion on the question thus presented, I have the honor to inform you that in my judgment you are authorized by law to enter into such a lease, either through the Commissioner of Education or otherwise; but that the lease should not be made by the native store.

    In view of the fact that this question has not