of the liens is established and the question of whether the fee simple patent sought to be canceled on the application made to the Secretary of the Interior was or was not regularly issued, is not one of the issues considered or decided, the application could then be by him properly considered and disposed of under the act in question. If in such suit the validity of the patent becomes an issue and the decision of the court is against its validity because issued "without the consent of an application therefor" by the patentee, the cancellation of such patent will follow as a matter of course.

    The question remains as to the authority of the Secretary of the Interior to cancel such patents in those cases where the patentee after receipt of the patent has sold or mortgaged the land, and the unencumbered title has subsequently revested in the patentee or his heirs.

    In my opinion the revesting of title to land conveyed or the release of a mortgage given thereon by the patentee in no way enlarges the jurisdiction of the Secretary under the statute, While it may be possible, cases of this kind will arise where the evidence offered tends to establish that the patent was originally issued without application therefor and that no valid consent to its issuance was later given, the proceedings looking to its cancellation should be confined to the Courts, and the evidence presented to you used as the basis of a recommendation to the Attorney General to institute a suit looking to a judicial declaration that the patent was invalid. It follows the question submitted must be answered in the negative.

                                                                                                                                                      E. O. PATTERSON,

M-24284                                                                                                                                                        May 9, 1928.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    Upon recommendation of the Commissioner of Indian Affairs my opinion is requested as to the rights of certain descendants of the Modoc Indians enrolled at the Quapaw Agency, in Oklahoma, in view of the provisions of Section 5 of the act of March 3, 1909 (35 Stat. 751, 752) , which reads in part as follows:

    That the Secretary of the Interior be, and is hereby, authorized and directed to restore to the rolls of the Klamath Agency, in Oregon, those Modoc Indians now enrolled at the Quapaw Agency, in Oklahoma, formerly Indian Territory, together with their descendants living at the date of the passage of this Act, and that upon the removal of any of said Indians to the Klamath Reservation, in Oregon, they shall be allotted as other Indians on said reservation, and that upon the passage of this Act they be accorded all the rights and privileges of other Indians enrolled at the Klamath Agency.

    In other words it is only those Modoc Indians enrolled at the Quapaw Agency in Oklahoma at the date of March 3, 1909, who are to be restored to the rolls of the Klamath Agency, in Oregon; and it is only those descendants of said Indians living at the date of the passage of said act who are to be enrolled at the Klamath Agency. Upon the restoration to the rolls and the original enrollment of these two classes respectively at the Klamath Agency, the Secretary will have accomplished the intention and mandate of the act of 1909, as they are the only classes expressly provided for in said act. In the foregoing view it is needless to add that Modoc Indians not enrolled at the Quapaw Agency at the date of the act can not be restored
 

202                                                            DEPARTMENT OF THE INTERIOR                                      MAY 9, 1928

to the rolls of the Klamath Agency and that their children born in Oklahoma who were not living at that date can not be enrolled at the Klamath Agency under the provisions of said act.

    The question is presented, however, as to whether children born to Modoc Indians after their restoration to the rolls of the Klamath Agency and removal to that reservation should not be enrolled there on the theory that they are born into the Klamath tribe, and, therefore, entitled to like rights as other Indians on said reservation. That, it is true, is the ordinary rule that might prevail under such circumstances. But the act of March 3, 1909, not only makes no provision for children born after its passage either at the Quapaw Agency, in Oklahoma, or at the Klamath Agency, in Oregon, but on the contrary limits the right of enrollment at the Klamath Agency to children or descendants of Modoc Indians enrolled at the Quapaw Agency, living at the date of the passage of said act. Therefore, to invoke the ordinary rule in behalf of this class of children would be directly in fact of an express limitation by Congress. Moreover if the children of Modoc Indians enrolled at the Quapaw Agency are not entitled to any rights of the Klamath Agency because not living at the date of the passage of the act of 1909, then the mere restoration of said Indians to the rolls of the Klamath Agency did not confer rights upon children born after the removal of said Indians to the Klamath Reservation. If the restoration to the Klamath rolls was intended by Congress to have that effect then in justice it ought to operate equally on all after-born children. But Congress did not so provide. It is only the two classes particularly described, namely, those enrolled at the Quapaw Agency, in Oklahoma, and to be restored to the rolls at the Klamath Agency, in Oregon, and their children or descendants living at the date of the act of 1909, that are provided for. It is not believed that it was the intention of Congress to create the necessarily anomalous situation whereby children born to Modoc Indians in Oklahoma after the passage of the act are to be excluded, while the children born to said Indians after their restoration to the rolls of the Klamath Agency are to the included for rights there although they are all equally children who were not living at the date of the passage of the act.

    It is my opinion that it was the intention of Congress to accord "all the rights and privileges of the other Indians enrolled at the Klamath Agency" only upon the two classes specifically set forth in the act of 1909, namely, those Modoc Indians then enrolled at the Quapaw Agency and their descendants living at the date of the passage of said act, and that the Secretary of the Interior is not authorized to invoke any other provisions of law under which the enrollment of any other classes of children might be justified.

                                                                                                                                                       O. H. GRAVES,

M-24358                                                                                                                                                      May 14, 1928.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    You have requested my opinion as to the authority of the Secretary of the Interior to exclude persons of other than Indian blood from operating boats for hire on the Queets River within the Quinaielt Indian Reservation, Washington.

    By treaty dated July 1, 1855, and January 25, 1856 (12 Stat. 971), with the Quinaielt and Quillehute Tribes, these Indians ceded to the United States all of their right, title, and interest in and to the territory formerly claimed by them. As a part of the consideration for that cession, however, it was agreed:

    Article II. There shall, however, be reserved, for the use and occupation of the tribes and bands aforesaid, a tract or tracts of land sufficient for their wants within the Territory of Washington, to be selected by the President of the United States, and hereafter surveyed or located and set apart for their exclusive use, and no white man shall be permitted to reside thereon without permission of the tribe and of the superintendent of Indian affairs or Indian agent. [Italics supplied.]

    Commencing on the Pacific coast at the southwest corner of the present reservation, as established by Mr. Smith in his survey under contract with Superintendent Miller, dated September 16, 1861; thence due east, and with

203                                                                OPINIONS OF THE SOLICITOR                                       MAY 14, 1928

the line of said survey, 5 miles to the southeast corner of said reserve thus established; thence in a direct line to the most southerly end of Quinaielt Lake; thence northerly around the east shore of said lake to the northwest point thereof; thence in a direct line to a point a half mile north of the Queetshee River and 3 miles above its mouth; thence with the course of said river to a point on the Pacific coast, at low-water mark, a half mile above the mouth of said river; thence southerly, at low-water mark, along the Pacific to the place of beginning.

    According to familiar doctrine, now well established, the title to and jurisdiction over lands underlying navigable waters in our public domain rested in the United States "in trust for the future State or States to be created out of such territory", and prior to the admission of a new State Congress has the power to dispose of the lands underlying such waters. Shively v. Bowlby (152 U.S. 1). In the absence of an express grant, however, the title to such lands can not be acquired by individuals, as legislation of a general nature relating to public lands does not extend to or include tide lands, Mann v. Tacoma Land Company (153 U.S. 273).

    Washington, along with several other western States, was admitted into the Union pursuant to the enabling act of February 22, 1889 (25 Stat. 676). By section 4 (subdivision 2) of that act such new States were required to disclaim any interest in or jurisdiction over lands owned or held by the Indians. Conformably thereto, the constitution of the State of Washington, in Article XXVI, after declaring that the following ordinance shall be irrevocable without the consent of the United States, was further made to provide:

    Second. That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States.

    By the general allotment act of February 8, 1887 (24 Stat. 388), the President was authorized, in his discretion, to cause allotments in severalty to be made to the Indians of any reservation created by treaty, by act of Congress, or by Executive order. Pursuant to that act, as amended, including the act of March 4, 1911 (36 Stat. 1345), allotments in severalty have been made to some 1456 Indians within the Quinaielt Reservation, covering in the aggregate some 116,000 acres, and for the lands so allotted our usual 25-year trust patents have issued. Certain Indian villages there have also been surveyed into lots, and such lots conditionally patented to the Indians occupying the same under authority found in section 10 of the act of June 25, 1910 (36 Stat. 859). As to both the allotments and these town lots, however, the titles of individual owners, where the same border on navigable streams, runs, of course, only to highwater mark. Comparatively small tracts of land within this reservation have also been set aside for administrative or governmental use, such as lighthouse, Indian school, agency, and possibly other purposes. There has been no other "disposal" of the remaining lands within this reservation, however, and there has been no legislation by Congress under which the surplus or unallotted lands there can be disposed of: hence, the remaining areas within that reservation occupy the same status as
 

204                                                                DEPARTMENT OF THE INTERIOR                                MAY 14, 1928

when originally set apart for the exclusive use of these Indians.

    I see no occasion here for an extended discussion of the question of the title or ultimate "fee" in and to the lands underlying the navigable waters within this reservation. Undoubtedly, they are subject to such further legislation as Congress may enact. As to the question of jurisdiction, however, in view of the provisions of the enabling act and the constitution of the State, supra, concededly exclusive jurisdiction and control thereover rest in the United States.

    In Donnelly v. United States (228 U. S. 243) the Supreme Court of the United States discussed at considerable length the question whether the bed of the Klamath River, California, constitutes part of the Hoopa Valley Indian Reservation, created by Executive order of October 16, 1891, which withdrew for the benefit of these Indians "a tract of country one mile in width on each side of the Klamath River" from their then reservation to the Pacific Ocean. In disposing of that question the Supreme Court said, page 264: "From this it results that whether the river be or be not navigable in fact, the river bed is to be deemed as included within the extension of the Hoopa Valley Reservation." In the case just mentioned jurisdiction in the courts of the State for offenses committed against the Indians within the reservation, including the bed of the Klamath River, was expressly denied.

    In United States v. O'Brien (170 Fed. 508) the district court for the Western District of Washington had occasion to consider the rights of the Indians in and to the tide lands surrounding Squaxon Island, and in disposing of that question, held (Syllabus):

    Under the provision of Const. Wash. art. 26, by which the state forever disclaimed "all right and title * * * to all lands * * * owned or held by any Indian or Indian tribes," the state has no title, and can convey no right, to any of the shore lands surrounding Squaxon Island, which prior to the admission of the state had been set apart by treaty as a reservation for the Squaxon Indians and was then actually used and occupied by them, including the beach and shore.

  See also Corrigan v. Brown (169 Fed. 477).

    In view of the situation here at hand and the court decisions referred to, I am unable to see wherein the State of Washington has any right to regulate or control the use of boats on navigable bodies of water within the Quinaielt Reservation, and that such waters, as with any other part of the reservation, are under the exclusive jurisdiction of the United States, subject to use by outsiders only with the sanction or approval of the Secretary of the Interior. It follows, of course, that undesirables may be excluded therefrom under section 2147, et cetera, Revised Statutes.

                                                                                                                                                        O. H. GRAVES,

M-24293                                                                                                                                                     June 19, 1928.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    At the suggestion of the Commissioner of Indian Affairs you have requested my opinion on a question arising in connection with the determination of the heirs of Frances Pryor (An-to-op-py) deceased Osage allottee No. 570, the nature or extent of which question will more readily appear after a brief review of some of the salient facts at hand.

    The tribal lands of the Osage Indians were allotted in severalty, pro rata, among the enrolled members of that tribe pursuant to the act of June 28, 1906 (34 Stat. 539), as a result of which each of the 2229 enrolled members received in allotment approximately 660 acres of land. Under the terms of the act the underlying oil, gas, and other mineral deposits did not pass to the individual allottees but were reserved for the benefit of the tribe at large until April 8, 1931, subject to lease in the meantime by the tribal authorities under rules and regulations prescribed by the Secretary of the Interior. This communal period of ownership of the
 

205                                                                OPINIONS OF THE SOLICITOR                                     JUNE 19, 1928

underlying mineral deposits has since been extended to April 7, 1946, by the act of March 3, 1921 (41 Stat. 1249). Both of the statutes mentioned direct that the net proceeds (royalties, etc.) derived from these oil, gas, and other mineral deposits shall be distributed quarterly to the enrolled members of this tribe. Hence, each member receives exactly the same share of such royalties regardless of whether there has been any mineral development on the lands allotted to him or not. Owing to the large oil and gas deposits in the Osage country, this right to participate in the royalties derived therefrom,-commonly known as "an Osage head right,"-has become a very valuable property right. Up to a year or so ago when the price of oil dropped considerably the income flowing to each enrolled member of the Osage tribe from this source alone ranged around $10,000 per year.

    As to the descent of such property, section 6 of the act of June 28, 1906, supra, provides:

    That the lands, moneys, and mineral interests, herein provided for, of any deceased member of the Osage tribe shall descend to his or her legal heirs, according to the laws of the Territory of Oklahoma, or of the State in which said reservation may be hereinafter incorporated, except where the decedent leaves no issue, nor husband nor wife, in which case said lands, moneys, and mineral interests must go to the mother and father equally.

    Frances Pryor, the allottee with whose estate we are here primarily concerned, died March 17, 1910, at the age of about 24 years, apparently in or shortly after childbirth. She left surviving Antwine Pryor, husband; Julia Pryor, daughter; Susie Pryor, daughter; and an infant son "Amos" who outlived his mother by about two days only. On May 1, 1911, this Department approved a recommendation from the Indian Office wherein the heirs of Frances Pryor were stated as: Antwine Pryor, husband; JuliaPryor, daughter; and Susie Pryor, daughter. The share due each heir so found was not specifically set up but evidently this was understood to be a one-third interest each under the Compiled Laws of Oklahoma for 1909, section 8985. Subsequently the attention of the Indian Office became directed to the fact that apparently the infant son Amos had outlived his mother and if so this would call for a somewhat different distribution of this estate. Thereupon additional information was obtained from the field, including affidavits from Antwine Pryor, the husband of Frances, and Rosa Red Eagle, the midwife attending the birth of Amos. These are to the effect that the infant son had outlived his mother about two days. Accordingly, under date of February 2, 1914, the Indian Office directed the superintendent of the Osage Agency to distribute this estate to Antwine Pryor, husband, 5/9ths; Julia Pryor, daughter 2/9ths; and Susie Pryor, daughter, 2/9ths; evidently on the theory that at the death of Amos his 2/9ths interest in his mother's estate under the law went to his father, Antwine.

    In the meantime, that is between the finding of the heirs by this Department in 1911 and the supplemental instructions issued by the Indian Office in 1914, the act of April 18, 1912 (37 Stat. 86), came into existence. By it Congress directed, among other things (section 3), that the property of deceased and incompetent members of the Osage tribe, in probate matters, should be subject to the jurisdiction of the county courts of Oklahoma. This, of course, has rightly been construed as conferring jurisdiction to determine the heirs of deceased members of the Osage tribe on the courts of the State. On August 7, 1914, the County Court of Osage County entered its order in the matter of the estate of "Amos Pryor, not allotted" wherein it was found that Antwine Pryor, the father, was entitled to his entire estate. This, it will be observed, is in harmony with the construction placed on that situation by the Indian Office.

    Julia Pryor, Osage allottee No. 571, and one of the above-named daughters of Frances Pryor, died March 20, 1921, at the age of about 14 years, unmarried and without issue. On May 3, 1923, the County Court of Osage County, Oklahoma, in the matter of her estate found and determined that her father, Antwine Pryor, was entitled to all of her original allotment as a member of the Osage tribe; all of certain interests inherited by Julia from one Tsa-pah-ke-ah, Osage allottee No. 485 (relationship not given) but as to the one-third interests in the lands, moneys and mineral rights inherited by Julia from her mother, Frances Pryor, these were awarded to her sister, Susie, rather than to the father, Antwine.

    On February 16, 1927, the County Court of Osage County, Oklahoma, handed down a decree in that matter of the estate of Frances Pryor, deceased (who died in 1910), which decree reads in part:

    It is further ordered and found by the Court that the heirs of the estate of Frances Pryor, (An-to-op-py) , Allottee No. 570, deceased, are

206                                                            DEPARTMENT OF THE INTERIOR                                   JUNE 19, 1928

hereby found and declared to be: Antwine Pryor; husband, an undivided one-third interest; Edward Pryor, son, an undivided two ninths interest; Julia Pryor, daughter, an undivided two-ninths interest; Susie Pryor West, daughter, an undivided two-ninths interest; and that since the death of Frances Pryor (An-to-op-py) , Allottee No. 570, deceased; Julia Pryor, daughter and Edward Pryor, son, have died, during their minority, and that Susie Pryor West, daughter is entitled to the interest inherited by said Julia Pryor and said Edward Pryor; making a total of two-thirds interest that Susie Pryor West is entitled to in said estate of said Frances Pryor, (An-to-op-py), Allottee No. 570, deceased, her mother; and that Antwine Pryor, husband and Susie Pryor West, daughter, are entitled to the entire estate belonging to Frances Pryor (An-to-op-py) , Allottee No. 570, deceased, in the following proportions, to wit: Antwine Pryor, husband, an undivided one-third interest in said estate and to Susie Pryor West, daughter, an undivided two-thirds interest in said estate, and that the said Antwine Pryor and Susie Pryor West are the sole heirs of all the property, real and personal belonging to the said Frances Pryor (An-to-op-py) , Allottee No. 570, deceased.

    Seventh: If the decedent leave several children, or one child and the issue of one or more children, and any such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheritance from such decedent, descends in equal shares to the other children of the same parent, and to the issue of any such other children who are dead, by right of representation. [Italics supplied.]

    It will also be observed that the latter findings by the court as to the interests inherited by Julia and Edward (Amos) Pryor from their mother, Frances, are not in harmony with the findings of the same court on August 7, 1914, in the matter of the estate of "Amos Pryor not allotted," wherein such inherited interests were awarded to the father, Antwine, rather than to the sister, Susie.

    This brings forward for immediate considerations the difference in devolution of estates as called for by section 6 of the Osage allotment act of June 28, 1906, and the seventh cannon of the State Code, both supra, it being again recalled that under the former if the decedent, adult or minor, leaves no issue nor husband nor wife, his Osage property must be divided equally between his mother and father, while under the latter, if a minor, all of the estate that came to such minor by inheritance from either parent descends in equal shares to the surviving children of the same parent (brothers and sisters) and to the issue of any deceased brother or sister by right of representation. In other words, under given circumstances, the Federal statutes cast descent on the parents equally while under the State law it is cast on brothers and sisters and the issue of any deceased brothers or sisters by right or representation. The question at hand, therefore, is whether the courts of the State are properly applying the law in the descent of these Osage estates or are overlooking the direction of Congress in the matter.

    In my opinion there is no conflict between this action of the State courts and the Federal statute, nor has the latter been overlooked or ignored. The Federal statute deals with the estate of a deceased member of the tribe, and by the exception which gives rise to the question submitted in case of the contingency specified, operates upon such estate and passes it to the father and mother in equal shares. The State statute which fixes the succession in the brothers and sisters of deceased unmarried minors does not deal with the estate of such minor but concerns the original estate of the deceased ancestor. The estate which vests in the minor issue of such decedent is in its nature conditional in that if such issue dies during minority and unmar-
 

207                                                            OPINIONS OF THE SOLICITOR                           NOVEMBER 19, 1928

ried, the course of its devolution is continued from the ancestor and not commenced anew with the death of the unmarried infant. This is the condition upon which the infant receives the inheritance and the State statute which annexes the condition is not in conflict with the exception in the Federal statute. This condition fails with the marriage or attainment of majority of the infant, and the estate inherited from the parents then passes in the ordinary course, in which case if the conditions are present which bring its devolution within the terms of the excepting clause of the Federal statute, it would be governed by them.

                                                                                                                                                      E. O. PATTERSON,

M-24735                                                                                                                                            November 19, 1928.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    In connection with an application by the Franklin County Coal Company, of Chicago, Illinois, for an option or preferential right to purchase the mineral deposits underlying certain areas in the segregated coal and asphalt lands of the Choctaw Chickasaw Nation, Oklahoma, you have requested further consideration of an opinion by me dated January 15, 1927 (M-21310) in which it was held, briefly, that where such deposits had repeatedly been offered at public sale without bids therefor being received, sales could be effected at not less than the appraised price, without further advertising.

    A brief recourse to the legislative history of this matter will prove helpful to a better understanding of the situation now here. Pursuant to earlier treaties, unnecessary to extensively consider at this time, a rather large area in the former Indian Territory was patented in fee by the United States to the Choctaw Nation under date of March 23, 1842. Later, by agreement, the Chickasaw tribe was incorporated in or became consolidated with the Choctaws: (11 Stat. 513). Under the Atoka agreement with these two tribes, found in section 29 of the act of June 28, 1898 (30 Stat. 505), as modified by supplemental agreement ratified by the act of July 1, 1902 (32 Stat. 601) the lands previously Patented to the Choctaw Nation were allotted in severalty in specific areas to individual members of both tribes and the Secretary of the Interior was authorized to withhold from allotment or "segregate" for the common tribal benefit not to exceed 500,000 acres valuable chiefly for the coal and asphalt deposits therein. Pursuant to this authority, in round numbers, some 450,000 acres were so segregated or reserved and thereafter became known as the segregated Choctaw and Chickasaw coal and asphalt lands. Under the agreement of 1898, supra, and other appropriate statutory authority, long term mineral leases had been executed covering some 100,000 acres of these segregated lands, under which leases stipulated royalties were payable for the benefit of the consolidated tribal membership. The Indians, however, being desirous of seeing these tribal assets more quickly reduced to cash expressly stipulated in their supplemental agreement of 1902 (sections 56 et seq.) that all of these segregated lands, both leased and unleased, should be sold within three years from date of ratification of that allotment; that is prior to July 1, 1905. Before the later date transpired, however, Congress directed that the leased lands be withheld from sale, thus leaving the unleased areas only to be disposed of: act of April 21, 1904 (33 Stat. 209). During the year 1905, an effort was made to dispose of the unleased areas but all bids therefor were rejected by the Secretary of the Interior as being too low. By the act of April 26, 1906 (34 Stat. 142), Congress further directed that all of these segregated lands, both leased and unleased, be with held from sale until the existing leases expired (about 1932) or "until otherwise provided by law." Matters stood thus, legislatively, until 1912, when by act of February 19 of that year (37 Stat. 67), the Secretary of the Interior was authorized to appraise and sell the surfaceof these segregated lands, both leased and unleased, giving to the lessees preferential rights to purchase at the appraised value such parts of the surface as might be required for future operating purposes. In the aggregate, however, the underlying mineral deposits were of far more value than the surface, hence the Indians were still not satisfied with this disposition of the matter but continued to urge an early disposal of the underlying mineral deposits in accordance with the understandings had in their earlier agreements of 1898 and 1902, supra. Bills with this end in view were introduced in several successive sessions of the Congress but failed of enactment. Finally the act of February 8, 1918 (40 Stat. 433) came into existence. By section 1 of that act, the Secretary of the Interior was directed to appraise and sell these mineral deposits on or within both the leased and the unleased areas. Sections 2 and 3 of that act being of considerable materiality here are reproduced below.
 

208                                                            DEPARTMENT OF THE INTERIOR                      NOVEMBER 19, 1928

    Sec. 2. That the sale of such deposits shall be thoroughly advertised, and shall not later than six months from the final appraisement be offered for sale to the highest bidder at public auction in tracts to conform with such appraisement at not less than the appraised value so fixed, except that isolated tracts of less than nine hundred and sixty acres may be sold separately under like provisions: Provided, That twenty per centum of the purchase price shall be paid in cash, and the remainder shall be paid in four equal annual payments from the date of the sale, and all deferred payments on all deposits sold under the provisions of this Act shall bear interest at the rate of five per centum per annum, and shall mature and become due before the expiration of four years after the date of such sale.

    Sec. 3. That immediately after the expiration of one year after the coal and asphalt deposits shall have been offered for sale, or forfeited for nonpayment under the terms of the sale, the Secretary of the Interior, under rules and regulations to be prescribed by him, shall readvertise and cause to be sold to the highest bidder at public auction, in tracts to conform to the descriptions of the legal subdivisions heretofore designated by the Secretary of the Interior, and at not less than said appraised value, retaining the right to reject any or all bids, all coal and asphalt deposits remaining unsold and all coal and asphalt deposits forfeited by reason of such nonpayment of any part of the purchase price: Provided, That at the expiration of six months thereafter the Secretary of the Interior may again readvertise and offer the same for final sale to the highest bidder at public auction, upon such terms as he may prescribe and at such valuation, independent of the appraised value, as he may fix.

    By the act of February 22, 1921 (41 Stat. 1107) , the Secretary of the Interior was authorized to reappraise and sell the remainder of the segregated coal and asphalt deposits in the Choctaw and Chickasaw Nations in the State of Oklahoma, under rules and regulations to be prescribed by him in accordance with the Act of February 8, 1918 (United States Statutes at Large, 40,page 433), as to terms and conditions of payment; and the unexpended balance appropriated by said Act of February 8, 1918, is hereby authorized to be appropriated out of the Choctaw and Chickasaw tribal funds for this purpose. [Italics supplied.]

    Under the circumstances hereinabove set forth, I am of the opinion that the requirements of the statute that these mineral deposits be advertised and offered for sale at public auction have been complied with and hence I see no legal reason why the bids now here may not be accepted.

209                                                                 OPINIONS OF THE SOLICITOR                       NOVEMBER 19, 1928

the further fact that the act of February 8, 1918, clearly contemplated that these deposits would be disposed of at the earliest practicable date. Certainly it can not be said that the Secretary failed to complywith the statute in this respect, and as above shown even after passage of the act of February 22, 1921, the unsold deposits were again widely advertised without substantial results being obtained. Concededly the language of the act of February 22, 1921, supra, is not as clear or as specific as might be desired, particularly with respect to the matter of further advertisement, but assuredly that legislation did authorize the Secretary of the Interior to reappraise and sell the remainder of these mineral deposits under such rules and regulations as he might prescribe in accordance with the act of February 8, 1918, "as to terms and conditions of payment." It may reasonably be argued that the only limitation thus placed on the authority of the Secretary of the Interior in the premises runs to the terms and conditions of sale that is, these he could not vary, being 20 percent down and the remainder in four equal installments as called for by the earlier act. As to all other details, however, the Secretary was free to use his own discretion and dispose of these deposits under such rules and regulations as he might prescribe. That was my prior view of this situation and I am not now convinced but that such view may be entirely sound. This does not mean to say, of course, that the Secretary could not resort to further advertising if and when he saw fit so to do, and as a matter of fact, as above shown, the fourth offering of these deposits after extensive advertisement produced no substantial results.

    It can be contended, of course, and not without at least some force that the Secretary is limited by the act of February 22, 1921, to a sale of these deposits only upon a compliance with all of the conditions or requirements of the earlier act of 1918, and hence that no sales were to be effected without further advertisement. While I am not convinced that this is the true view of this situation yet the property rights here involved are large, meaning much both to the Indians and to the purchasers, particularly that the title acquired by the latter should be unquestioned. Under these circumstances it may be advisable to place the matter before Congress for such further legislation as may be necessary to remove any vista of doubt about your authority in the premises.

    While it may have no direct bearing on the question now here, yet the Choctaw and Chickasaw Nations have recently filed suit against the United States in the Court of Claims (No. 620 J.) for something over eight million dollars arising out of the failure on the part of the Government to more promptly dispose of these coal and asphalt deposits in accordance with the earlier agreements with these tribes as hereinabove referred to.

    As to the request of the Franklin County Coal Company now here, it may be said that this does not involve or contemplate an actual sale at this time, but-quoting in part from the company's application-is:

an option of one year on the coal and asphalt deposits underlying tracts 15 and 16 of the unleased, segregated area of the Choctaw-Chickasaw Nations in the Howe-Poteau District for the purpose of prospecting for coal upon the condition that the Franklin County Coal Company, its successors and assigns * * *, be entitled to purchase said above-described coal tracts 15 and 16, or either of them, at any time within the period of this option, at $42.50 per acre, amounting to $40,800 for tract 15 and $39,705 for tract 16.

                                                                                                                                                      E. O. PATTERSON,

210                                                                DEPARTMENT OF THE INTERIOR                          MARCH 25, 1929

52 L.D. 591                                                                                                                                              March 25, 1929.

  Funds inherited by an unenrolled member of the Osage Tribe, born subsequent to July 1, 1907, from the estate of an enrolled member of that Tribe not having a certificate of competency, do not lose their restricted or trust character but continue under the supervision and control of the Secretary of the Interior subject to expenditure as provided by existing law.

  Authority is conferred upon the Secretary of the Interior by section 6 of the act of February 27, 1925, to pay from the funds of a member of the Osage Tribe not having a certificate of competency, a claim incurred by such member or by his heir by reason of unlawful acts of carelessness or negligence, but that authority is discretionary and payment of the claim is a matter resting in the sound judgment of that officer.

FINNEY, Solicitor.

    My opinion has been requested as to the authority of the Secretary of the Interior to pay or cause to be paid from funds inherited by Anna St. John from her father, Pierce St. John, a deceased member of the Osage tribe of Indians, a claim founded upon a judgment of the District Court of Osage County, Oklahoma, in favor of one Florence Ivers in the amount of $6,000. This requires a consideration of whether the funds so inherited are subject to the supervision of the Secretary of the Interior and if so whether Congress has conferred upon the Secretary authority to pay therefrom a claim of the nature involved. Any discussion of these questions may well be prefaced by a brief statement of the legislative policy of Congress with respect to the Osages and their property.

    The act of June 28, 1906 (34 Stat. 539) directed the preparation of a final roll of the Osage Indians among whom the tribal lands and funds were to be divided per capita. By the terms of that act children born since July 1, 1907, were excluded from participating in such distribution in their own right. The oil, gas, and other minerals underlying Osage lands from which most of the tremendous wealth of these Indians is derived was to remain the common property of the tribe, the income from which was to be distributed quarterly per capita to the enrolled members, the shares of deceased members to be paid to their heirs. Provision was made for the issuance of certificates of competency, the general effect of which was to remove the members from the supervision and control of the Government. Later legislation as found in the act of March 3, 1921 (41 Stat. 1249) as amended by the act of February 27, 1925 (43 Stat. 1008) directed a different disposition of the income of these Indians particularly as to minors and adults not having certificates of competency. The payments to be made to the Indians were limited to specified amounts payable quarterly which were deemed by Congress as sufficient to meet the current needs of the members. The balance of the income due each member, commonly referred to as the "surplus," was to remain under the supervision and control of the Secretary of the Interior as a restricted or trust fund, to be expended under the Secretary's direction as provided in the statute. With these preliminary observations we turn to a consideration of the status of the funds inherited by Anna St. John from her deceased ancestor.

    The ancestor, Pierce St. John, was a full-blood Osage allottee not having a certificate of competency. He died leaving an estate of considerable value including some $43,000 surplus funds in the hands of the superintendent of the Osage Indian Agency and 1 17/21 shares in the Osage tribal income. The heir, Anna St. John, who it appears will be entitled to a one-sixth interest in the decedent's estate was born since July 1, 1907, the date fixed for the closing of the tribal roll and under the terms of the act of 1906, was excluded from participating in the tribal income in her own right. Some question was at one time raised as to whether Indians such as she, who names do not appear upon the final Osage roll, but who had come into the possession of shares of deceased enrolled members, were entitled to the benefit of the laws enacted by Congress relating to the Osages and their property (Solicitor's opinions of January 4, 1922, M-4017, and September 30, 1922, D-46929). However, no extended discussion of this question is necessary in view of the recent act of Congress approved March 2, 1929 (45 Stat. 1478), section 5 of which declares-

    The restrictions concerning lands and funds of allotted Osage Indians, as provided in this Act and all prior Acts now in force, shall apply to unallotted Osage Indians born since July 1, 1907, or after the passage of this Act, and to their heirs of Osage Indian blood.

211                                                                OPINIONS OF THE SOLICITOR                                MARCH 27, 1929

ject to expenditure as provided by existing law.

    The authority of the Secretary to pay the Ivers judgment from such funds is equally clear, such authority being expressly conferred by section 6 of the act of February 27, 1925, supra, reading in part as follows:

* * * In addition to the payment of funds heretofore authorized, the Secretary of the Interior is hereby authorized in his discretion to pay, out of the funds of a member of the Osage Tribe not having a certificate of competency, any indebtedness heretofore or hereafter incurred by such member by reason of his unlawful acts of carelessness or negligence.

    Presented with the record, however, is a memorandum prepared by the Osage tribal attorney wherein he expresses some doubt as to whether section 6 of the act of 1925, as reproduced above, is sufficiently broad to repeal by implication section 7 of the act of April 18, 1912 (37 Stat. 86) by which the restricted lands and funds of members of the Osage tribe were protected against claims arising prior to the issuance of a certificate of competency, inheritance, or removal of restrictions. It is, of course, well settled that repeals by implication are not favored, but it is likewise well settled that a later statute repeals a former one where clearly inconsistent with the earlier enactment (United States v. Tynen,11 Wall. 88; United States v. Yuginovich, 256 U. S. 450, 463). In so far as the authority of the Secretary of the Interior is concerned it would thus matter little whether the two statutes conflict or not, as the later law by which the authority is conferred would prevail as the last expression of the legislative will.

    The matter of paying the claim of Florence Ivers, which does not appear as yet to have been filed with the department, involves a question of administrative policy upon which I express no opinion other than to point out that the statute is not mandatory. The authority conferred is discretionary and payment of the claim if and when filed is a matter resting in the sound judgment of the Secretary.

Approved: JOHN H. EDWARDS, Assistant Secretary.

52 L.D. 594                                                                                                                                               March 27, 1929.

  The broad authority conferred upon the Secretary of the Interior by section 5 of the act of June 7, 1924, to perform any and all acts and to make such rules and regulations as may be necessary in connection with the construction of the Coolidge Dam, does not warrant the waiver of the statutory limitation fixed by Congress in the earlier statutes relating to rights of way for railroad purposes through Indian reservations.

FINNEY, Solicitor:

    In connection with an enforced relocation of the right of way of the Arizona Eastern Railroad Company, a subsidiary of the Southern Pacific System, through part of the San Carlos Indian Reservation, Arizona, you [Secretary of the Interior] have requested my opinion as to whether the railroad company may be permitted to exceed the limits of widths for such a right of way fixed by the act of March 2, 1899 (30 Stat. 990), as amended.

    Briefly the facts at hand are: The Gila Valley, Globe and Northern Railroad Company, predecessor in interest to the Arizona Eastern, obtained a right of way through the San Carlos Indian Reservation, pursuant to the special act of February 18, 1895 (28 Stat. 665), the statutory limitations for such right of way being not to exceed 50 feet on either side of the center line of the road and not to exceed 200 feet in width by 3000 in length for station grounds. By the subsequent act of January 13, 1898 (30 Stat. 227), the time for completing construction of this road was extended to February 18, 1900.

    In 1906 the company which evidently had then become the Arizona Eastern, filed application for a right of way through this reservation under the act of March 2, 1899, supra, which application was approved by this department on April 13, 1906. No construction appears to have been had under this application, however, within the period prescribed by section 4 of the act of 1899, and on August 3, 1909, the company filed a new application for a right of way through this Indian reservation, in-
 

212                                                            DEPARTMENT OF THE INTERIOR                              MARCH 27, 1929

cluding the so-called San Carlos Reservoir site (40 L.D. 470). After extended investigations and hearings the latter application was denied by this department under date of February 17, 1912, without prejudice to the company filing an amended application "at such an elevation as will avoid interference with the reservoir site" (40 L.D. 472) . Apparently the company failed to avail itself of this privilege as no record of a renewal of this application is at hand. The company continued, however, to operate its line through this reservation constructed under the earlier act of February 18, 1895.

    Earnest efforts made with a view to utilizing the reservoir site at this point culminated in the act of June 7, 1924 (43 Stat. 475), which authorized the Secretary of the Interior, through the Indian Service, to construct a dam across the canyon of the Gila River near San Carlos, Arizona, at a limit of cost of $5,500,000, which dam by the subsequent act of March 3, 1925 (43 Stat. 1152), was designated "The Coolidge Dam." Section 5 of the act of June 7, 1924, reads:

    The Secretary of the Interior is hereby authorized to perform any and all acts and to make such rules and regulations as may be necessary and proper for the purpose of carrying the provisions of this Act into full force and effect; and the money hereby authorized to be appropriated shall be available for the acquiring of necessary right of way by purchase or judicial proceedings and for other purposes necessary in successfully prosecuting the work to complete the project.

    1. The railroad shall release to the United States that part of its present right of way of its Arizona eastern branch and its rights to its station and yard grounds and any and all other rights which it may have within the site of the so-called Coolidge Reservoir, which is to be constructed under the aforementioned act of Congress on the Gila River in Arizona.

    2. The United States shall provide the railroad, free of cost an adequate and complete right of way for its road as it shall be relocated around said reservoir site, and shall also provide adequate and complete station and yard grounds for said relocated line, all as the Secretary of the Interior may be authorized to do by existing law and in conformity with the rules, regulations, and practices thereunder.

    Section 2 of the act of March 2, 1899, as amended by the act of June 21, 1906 (34 Stat. 325,330), reads:

    That such right of way shall not exceed fifty feet in width on each side of the center line of the road, except where there are heavy cuts and fills, when it shall not exceed one hundred feet in width on each side of the road, and may include grounds adjacent thereto for station buildings, depots, machine shops, sidetracks, turnouts and water stations, not to exceed two hundred feet in width by a length of three thousand feet, and not more than one station to be located within any one continuous length of ten miles of road.

    The limitations prescribed by the act of March 2, 1899, as amended, supra, are statutory and hence
 

213                                                             OPINIONS OF THE SOLICITOR                                           MAY 4, 1929

can not be waived by this department. In this connection see L.D. 338 and 30 L.D. 599. It is fundamental, of course, to say that administrative officers by regulation or otherwise are without power to alter or amend existing law: Morrill v. Jones (106 U.S. 466), United States v. Eaton (144 U.S. 677, 687). The broad authority conferred upon the Secretary of the Interior by section 5 of the act of June 7, 1924, supra, to perform any and all acts and to make such rules and regulations as may be necessary in connection with the construction of the Coolidge Dam is not deemed sufficient authority for you to waive the statutory limitation fixed by Congress in the earlier statutes herein referred to relating to rights of way for railroad purposes through Indian reservations.

    As a matter of fact, in the agreement with the Southern Pacific Company hereinbefore referred to covering the relocation of this line it is expressly stipulated that such relocation shall be "* * * all as the Secretary of the Interior may be authorized to do by existing law and in conformity with the rules, regulations, and practices thereunder."

    Under the circumstances at hand I am of the opinion that you would not be justified in permitting the railroad company to exceed the maximum widths prescribed by the act of March 2, 1899, supra, as amended.

Approved:
JOHN H. EDWARDS, Assistant Secretary.

M-25107                                                                                                                                                         May 4, 1929.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    My opinion has been requested as to whether the cash and securities hereinafter referred to held by the legal guardian of John Bruce, restricted full blood Osage Allottee No. 820, are restricted, that is subject to the supervision and control of the Secretary of the Interior, or unrestricted.

    Several years ago Bruce was adjudicated an incompetent under the laws of the State of Oklahoma and has been under the guardianship of various persons since that time. One of these guardians Ray K. Chappell, recently resigned and on December 21, 1928, the County Court of Osage County appointed Hugh C. Jones to succeed her, which appointment, however, has not yet been approved by the Secretary of the Interior as required by the act of February 27, 1925 (43 Stat. 1008). Thereafter on January 17, 1929, the court approved the final account of Ray K. Chappell covering the period from January 31, 1928, to December 22, 1928. During this period the guardian received on behalf of the ward $9,777.73 and in addition thereto had on hand a balance from the last account of $5,729.24, making the total amount to be accounted for $15,506.97. The guardian expended for the benefit of the ward $11,778.97, leaving a balance in cash of $3,728. In addition to the cash the guardian held securities consisting of real estate mortgages and certificates of deposit aggregating $69,102. The order of the court approving the account found that the property both cash and securities, was unrestricted and directed that the same be delivered to the incoming guardian. The correctness of this finding and direction by the court which is called into question by the present inquiry depends primarily upon certain provisions contained in the act of February 27, 1925 (43 Stat. 1008), a proper understanding of which necessitates a brief statement of the facts and conditions leading up to that enactment.

    The act of June 28, 1906 (34 Stat. 539) directed the preparation of a final roll of the Osage Indians among whom the tribal lands and funds were to be divided per capita. The oil, gas, and other minerals underlying the lands from which most of the wealth of these Indians is derived remained the common property of the tribe, an equal distribution of the income from which was to be made quarterly to the enrolled members to be expended by them free from departmental control or supervision. Due to increased oil production, the income accruing annually to these Indians reached such substantial proportions that Congress, by the act of March 3, 1921 (41 Stat. 1249), directed that $1,000 per quarter be paid to incompetent adults and $500 per quarter be paid in behalf of minor members, the remainder of the shares due such members to be invested and conserved for their future benefit. It was also therein directed that "the income of such incompetents shall be paid to their legal guardians" where such have been appointed. Prior to the decision of the Supreme Court of the United States in Work v. Lynn (266 U.S. 171) holding among other things that the amounts payable to legal guardians of incompetents were limited by the statute to not exceeding $1,000 quarterly, the Department, under a misconception of the scope or intent of the law, paid the entire income due incompetent members, adults and minors, to the guardian. Large sums of money were thuspaid to guardians which should have been retained under the supervision and control of the Department. This resulted in the passage of
 

214                                                            DEPARTMENT OF THE INTERIOR                                      MAY 4, 1929
 

the act of February 27, 1925, supra, section 1 of which, so far as material, reads:

    All moneys now in the possession or control of legal guardians heretofore paid to them in excess of $4,000 per annum each for adults and $2,000 each for minors under the Act of Congress of March 3, 1921, relating to the Osage Tribe of Indians, shall be returned by such guardians to the Secretary of the Interior, and all property, bonds, securities, and stock purchased, or investments made by such guardians out of said moneys paid them shall be delivered to the Secretary of the Interior by them, to be held by him or disposed of by him as he shall deem to be for the best interest of the members to whom the same belongs. All bonds, securities, stocks, and property purchased and other investments made by legal guardians shall not be subject to alienation, sale, disposal, or assignment without the approval of the Secretary of the Interior. Any indebtedness heretofore lawfully incurred by guardians shall be paid out of the funds of the members for whom such indebtedness was incurred by the Secretary of the Interior. All funds other than than as above mentioned, and other property heretofore or hereafter received by a guardian of a member of the Osage Tribe of Indians, which was theretofore under the supervision and control of the Secretary of the Interior or the title to which was held in trust for such Indian by the United States, shall not thereby become divested of the supervision and control of the Secretary of the Interior or the United States be relieved of its trust; and such guardian shall not sell, dispose of or otherwise encumber such fund or property without the approval of the Secretary of the Interior, and in accordance with orders of the county court of Osage County, Oklahoma. In case of the death, resignation, or removal from office of such a guardian, the funds and property in his possession subject to supervision and control of the Secretary of the Interior or to which the United States held the title in trust shall be immediately delivered to the superintendent of the Osage Agency, to be held by him and supervised or invested as hereinbefore provided. Within thirty days after the passage of this Act such guardian shall render and file with the Secretary of the Interior or the superintendent of the Osage Agency a complete accounting, fully itemized, under oath, for the funds so paid to him and pay to the said Secretary or superintendent any and all moneys in his hands at the time of the passage of this Act, which have been paid him in excess of $4,000 per annum each for adults and $2,000 each for minors. The said guardian shall at the same time tender to said Secretary or superintendent all property of whatsoever kind in his possession at the time of the passage of this Act, representing the investment by him of said funds. The Secretary or superintendent is hereby authorized to accept such property or any part thereof at the price paid therefor by said guardian for the benefit of the ward of such guardian, if in his judgment he deems it advisable, and to make such settlement with such guardian as he deems best for such ward. Failing to make satisfactory settlement with said guardian as to said investments or any part thereof, the Secretary is authorized to bring such suit or suits against said guardian, his bonds, and other parties in interest as he may deem necessary for the protection of the interests of the ward and may bring such action in any State court of competent jurisdiction or in the United States district court for the district in which said guardian resides.

    From the record at hand it appears that the funds and property in the hands of the guardian of John Bruce were derived from two principal sources; first, from the ward's pro rata share of the
 

215                                                             OPINIONS OF THE SOLICITOR                                           JUNE 7, 1929

tribal income received by the guardian both prior and subsequent to the act of 1921; second, by inheritance from his mother, Tom-pah-pe, deceased full-blood Osage Allottee No. 819.

    With respect to the funds derived from the source first mentioned, it appears that a complete accounting of all moneys paid to the guardians of this Indian in excess of the quarterly allowance of $1,000 fixed by the act of 1921, has been made and settlements pursuant thereto were duly approved by the Department on December 8, 1925. Under these settlements, the guardians were allowed certain expenditures for the benefit of the ward and the balance, $6,012.47, was returned to the superintendent of the Osage Indian Agency as required by the act of 1925. Obviously, therefore, such funds and property as remained in the hands of the guardian coming from the source mentioned can not be considered as subject to the supervision and control of the Secretary of the Interior but are for disposition by the guardian under order of the court having jurisdiction of the guardianship, regard being had, of course, to the provision in section 1 of the act of 1925, that "all payments to legal guardians of Osage Indians shall be expended subject to the joint approval in writing of the court and the superintendent of the Osage Agency." See in this connection decision of the Comptroller General rendered June 4, 1928 (7 Comp. Gen. 774) holding that certain funds and property in the hands of the legal guardian of Kate Wilcox nee Albert, Osage Allottee No. 2164, were not such as properly may be considered under the supervision and control of the Secretary of the Interior; also Work v. Lynn, supra, wherein it was said with respect to moneys lawfully paid to the guardian that the Secretary can exercise no direct control over the use and investment thereof.

    As to the funds inherited by John Bruce from his deceased ancestor, the situation is not so clear. It appears that the decedent in her lifetime had also been adjudicated an incompetent under the laws of the State of Oklahoma and was under the guardianship of one W. E. Schwaba. Excess funds were likewise paid to him and for which he duly accounted. Examination of that account, however, discloses that the sum of $19,878.26, representing excess funds properly subject to the supervision and control of the Secretary of the Interior, was delivered by the guardian to the administrator of the estate of the decedent. What thereafter became Of this money is not disclosed by the present record. Inquiry should, therefore, be made for the purpose of determining the facts, particularly with respect to the disposition made by the administrator of the excess funds received by him from the guardian of the decedent and whether or not an accounting of such funds as required by the act of 1925, has been made and accepted. If it be found that such moneys were delivered by the administrator to the guardian of the heir, John Bruce, and that no accounting thereof has been made either by that guardian or his successors, then it is obvious that funds and property to that extent in the hands of the guardian, Ray K. Chappell, at the time of her resignation and final accounting, are restricted and should be delivered to the superintendent of the Osage Agency in accordance with the act of 1925.

                                                                                                                                                              E. C. FINNEY,

M-25214                                                                                                                                                        June 7, 1929.

The Honorable,
The Secretary of the Interior.

DEAR MR. SECRETARY:

    In connection with the use of water for irrigation purposes from Ahtanum Creek, Washington, you have requested my opinion as to the law in the matter based on the facts disclosed by the record at hand.

    During earlier times extensive areas in the Territory of Washington were claimed by various bands or tribes of Indians. By treaty dated June 9, 1855 (12 Stat. 951) with the Confederated Yakima tribes these Indians ceded to the United States a considerable part of their former claimed territory, retaining, however, for their exclusive use and benefit approximately one million acres described in Article 2 of that treaty thus:

    Commencing on the Yakama River, at the mouth of the Attah-nam River: thence westerly along said Attah-nam River to the forks; thence along the southern tributary to the Cascase Mountains; thence southerly along the main ridge of said mountains, passing south and east of Mount Adams, to the spur whence flows the waters of the Klickatat and Pisco rivers: thence down said spur to the divide between the waters of said rivers; thence along said divide to the divide separating the waters of the Satass River from those flowing into the Columbia River; thence along said divide to the main Yakama, eight miles below the

216                                                        DEPARTMENT OF THE INTERIOR                                         JUNE 7, 1929

mouth of the Satass River; and thence up the Yakama River to the place of beginning.

    "Attah-nam River", or according to the more modern version Ahtanum Creek, which as will be observed from the calls of the treaty, forms part ofthe northern boundary of the diminished reservation retained by the Indians, flows in an eastwardly direction and discharges into the Yakima River, the latter stream constituting the eastern boundary of the reservation. The precipitation in this locality, occurring mostly during the winter season, is around 7 to 9 inches annually and the irrigable lands there are arid or at best semi-arid, successful crop production not being feasible without water for irrigation purposes. As the soil is fertile and the climatic conditions favorable where water for irrigation can be made available, these lands otherwise without great value are highly productive.

    The firstirrigation work undertaken on the Yakima Reservation was about 1860, along Toppenish Creek near the old agency or Army post at Fort Simcoe, and the next development appears to have been on Ahtanum Creek under the auspices of the Catholic Indian Mission at that place. Under appropriate statutes not necessary here to discuss, some 400,000 acres within this reservation have been allotted in severalty to individual members of the Confederated Yakima tribe, for which allotments the usual 25-year trust patents have been issued. A considerable part of the lands so allotted has since passed into private (white) ownership by sale from the heirs of deceased allottees or by issuance of patents in fee to competent Indians who subsequently parted with the title. Shortly after the passage of the Reclamation Act of June 17, 1902, the Reclamation Service made the first comprehensive survey looking to the development of irrigation works in the valley of the Yakima River, including the areas on the Yakima Indian Reservation. This is reflected in the act of March 6, 1906 (34 Stat. 53) which authorized the Secretary of the Interior to exclude from disposition under an earlier statute dealing with thisreservation any surplus or unallotted lands susceptible of irrigation with a view of disposing of such lands under the reclamation law. That Service also had under active consideration at that time the development of extensive areas of irrigable lands lying north and east of the Indian Reservation, all dependent for irrigation purposes mainly on available waters in the Yakima River and its tributaries. Chief among such development may be mentioned the Sunnyside and Tieton units of the Yakima reclamation project. In furtherance of that work, and with a view of compromising litigation then pending or threatened, the Secretary of the Interior on March 26, 1905, approved an apportionment of available waters from the Yakima River among the various units of the projects in the Yakima valley and in such apportionment the Indians of the Yakima Reservations were awarded 147 cubic feet per second from the low water flow of the Yakima River. Such action caused considerable complaint from the Indians, and by the act of June 30, 1913 (38 Stat. 100) Congress authorized a joint committee consisting of two members of the Senate and two members of the House to investigate and report on the situation. The report of that committee will be found in Senate Document No. 337, 63d Congress, 2d session. This was followed shortly by the act of August 1, 1914 (38 Stat. 604) which after declaring that the Indians of the Yakima Reservation had been unjustly deprived of the portion of the natural flow of the Yakima River to which they were equitably entitled, directed the Secretary of the Interior to deliver at the northern boundary of that reservation in perpetuity sufficient water in addition to the 147 cubic feet per second, previously allotted them, so as to give the Indians during the low water irrigation season at least 720 cubic feet per second "this quantity being considered as equivalent to and in satisfaction of the rights of the Indians in the low water flow of Yakima River and adequate for the irrigation of 40 acres on each Indian allotment." So much with respect to the situation generally.

    Ahtanum Creek rises in a spur of the Cascade range and has a drainage area of approximately 57,000 acres. The average maximum flow of this stream is around 250 cubic feet per second and the minimum about 25 feet per second. During excessive floods and periods of extreme drought these limitations, of course, do not prevail and in extremely dry years the minimum flow has fallen as low as 7 cubic feet per second. Ordinarily, however, during the winter season and even during the earlier months of the irrigating season,-i.e. March, April, May and June,-sufficient water is at hand to meet all reasonable requirements of land owners, both Indian and white. No storage having been provided, however, in July of each year, and sometimes earlier, the diminishing run-off of Ahtanum Creek becomes inadequate and during the midsummer season the shortage of water is so acute
 

217                                                            OPINIONS OF THE SOLICITOR                                            JUNE 7, 1929

as to give rise to serious conflict between the Indians and the whites. In fact, ordinarily sufficient water is not at hand either for the Indians or for the white land owners on the north side of this stream. As early as 1907, it was reported that there were 105 separate ditches diverting water from the north side of Ahtanum Creek for use on land in white ownership, the area then under irrigation being given as 4,542 acres. As the duty of water in this locality is 80 acres to the cubic foot per second it will readily be seen that when the available supply in Ahtanum Creek falls below 50 cubic feet per second, sufficient water is not at hand even for the irrigation of the areas in white ownership and necessarily some interests must suffer. This is entirely aside from the rights of the Indians in the premises. The records further show that in 1907, there were then 10 ditches on the Indian Reservation side of Ahtanum Creek diverting water for use on some 1,224 acres of Indian land then being irrigated. The conflict between the Indians and the whites over the use of water from this stream became so acute that litigation appeared imminent. To obviate this, the then chief engineer in charge of the Indian Irrigation Service was directed to investigate the situation and endeavor to reach an agreement with the white land owners in the matter. This resulted in a contract dated May 9, 1908, between the United States of America on the one hand and some 225 white land owners on the other, pursuant to which the waters of Ahtanum Creek were divided, 25 per cent for use of the Indians on the Yakima Reservation and 75 per cent for the use of white land owners on the north side of this stream. This agreement was duly approved by the then First Assistant Secretary of the Interior on June 30, 1908.

    It has recently been suggested that there may be some question about the authority of the Secretary of the Interior to thus limit by agreement the rights of the Indians of the Yakima Reservation, particularly in view of decisions by the courts in the cases of Winters v. United States (207 U.S. 564) and Conrad Investment Company v. United States (161 Fed. 829). Briefly these decisions are to the effect that the establishment of a reservation by agreement with the Indians impliedly reserved to the Indians a prior right to sufficient water for the irrigation of their lands, which right is paramount to that of other appropriators of such water Pursuant to State laws.

    While fully recognizing the soundness of the doctrine laid down in the cases referred to yet the matter now here turns on a somewhat different situation. In those cases no effort had been made and no action had been taken by this Department defining or attempting to define the rights of the Indians in the premises. Section 7 of the general allotment act of February 8, 1887 (24 Stat. 388) expressly authorizes the Secretary of the Interior to prescribe such rules and regulations as he may deem necessary to secure an equitable distribution of water for irrigation purposes within any Indian reservation. Again, as Ahtanum Creek discharges into the Yakima River at the northern boundary of this Indian Reservation, it may seriously be contended that the provisions made by Congress in the act of August 1, 1914, supra, directing the Secretary of the Interior to deliver at such northern boundary 720 cubic feet of water per second, was in full satisfaction of the rights of the Indians in and to the low water flow of both the Yakima River and Ahtanum Creek. This is particularly true in view of the fact that the joint committee of Congress which investigated this matter had full in formation as to all preexisting agreements and undertakings of this kind. It may further be pointed out that the agreement as to the division of water from Ahtanum Creek has stood practically unquestioned for a period of over twenty years and undoubtedly equitable and valuable property rights founded thereon have become established in third parties. According to a familiar rule vested rights thus created can not thereafter be disturbed at least by administrative officers of the Government. Hence, under the circumstances here at hand, I am of the opinion that you would not now be justified in ignoring or attempting to repudiate the agreement entered into in 1908 involving the division of waters of this stream.

    In connection with this matter I observe from the records at hand several reports from engineers who have investigated this matter indicating that storage may be provided on the upper reaches of Ahtanum Creek, particular attention being invited to the report of September 10, 1920, of L. M. Holt, wherein it was recommended that a storage project on Ahtanum Creek be undertaken. This may prove a feasible solution of the whole difficulty, particularly if sufficient storage can be made available for the lands in both Indian and white ownership, it appearing that the annual run-off of the Ahtanum watershed is around 70,000 acre-feet which is ample for the irrigation of upwards of 17,000 acres of land.