porting to represent the Indians of the Columbia Reservation. Under the provisions of the agreement, the Indians, in consideration of a sum of money, agreed to remove to another reservation and that the Columbia Reservation should be opened to settlement, except that any Indian who desired to remain might do so in which event lands not exceeding 640 acres to each family should be selected for them. The lands were thrown open to settlement before allotment selections had been made. The Indians who remained on the lands did not acknowledge the authority of Chief Moses to represent them. White men attempted to settle on the lands and were resisted by the Indians, where upon the Indians were forcibly removed by the United States troops and imprisoned. During their imprisonment, the white settlers seized their improvements, settled on the land and filed homestead declarations which were first accepted and later canceled. Suits were then brought by the United States to oust the settlers from possession. The court ruled that the President was without authority to open the lands to settlement under the homestead laws until after allotment selections had been made for the Indians; that the opening of the lands was premature; that the lands had not become a part of the public domain; and that the Indians who remained on the lands were not bound by the agreement entered into with Chief Moses "for the reason that they never gave their assent, and Moses had no authority to represent them". This ruling is without application here for the reason, first, that there has been no premature opening of the lands in the Yuma Reservation to settlement under the general land laws; second, no question is raised as to the validity of the agreement with the Yuma Indians; and third the stipulations of the agreement have been carried out by the United States and the Indians have received and accepted the allotments and other benefits promised them. In this situation, the question and it is one upon which the decision in the La Chappelle case has no bearing-is whether the Indian title to the remaining lands classed as non irrigable has been extinguished. The plain terms of the Yuma agreement requires that that question be answered in the affirmative.

    It follows from what has been said that the claims asserted on behalf of the Indians and listed above under Nos. 1, 4, 5, 6 and 7, all of which depend for recognition upon the establishment of the Indian title to the non-irrigable lands, cannot be sustained.

    Regarding the liability of the United States or that of the Imperial Irrigation District for damages caused by seepage, percolation, or breaks in the canal (see claim listed above as Nos. 2, and 3) , the law does not make the concern engaged in the carriage of irrigation water an insurer of others against damage from breaking, overflow, seepage or other escape of the water. The famous English case of Rylands v. Fletcher (1. R. 3 H. L. 330), declared that a man builds a reservoir or other works to hold water at his peril. This is not the law in the West. The ditch owner is not liable merely because the break or escape occurred, but only if it occurred through his negligence. Weidekind v. Tuolumnem etc., Company (12 Pac. 387); Walley v. Platt County (26 Pac. 129). In the operation of a canal the ordinary rule of negligence applies, namely, that there must be a failure to use the care which an ordinary prudent man would have taken under the circumstances. Parker v. Gregg, (136 Cal. 413, 69 Pac. 22). Until the All-American Canal is completed and used, it will be impossible to tell whether seepage will result. A break in the canal might occur if unprecedented conditions arise. If actionable damages occur for any reason while the canal is being operated and maintained by the Imperial Irrigation District, a judgment against the District could be satisfied under the California laws. In the meantime, I do not think the Secretary of the Interior has any authority to require the District to give bond in the amount of $200,000 or in any other amount guaranteeing the contingent liability of the District. No statutory provision of which I am aware empowers the Secretary to exact such a bond. In the absence of such a statutory provision. the District cannot be compelled to give bond unless the obligation so to do is imposed by its existing contract with the United States under which the United States is constructing the All-American Canal for the District at the expense of the District. That contract, which fixed in detail the rights and obligations of the parties both before and after the District takes over the operation and maintenance of the canal, contains no provision requiring the District to give bond, nor does it contain any reservation of power in the Secretary which may be invoked as authorizing him to exact a bond. The obligation to give bond, therefore, is one which the District has not agreed to assume and which cannot now, in view of the existing contract, be enforced without its consent.

                                                                                                                                            NATHAN R. MARGOLD,

602                                                          DEPARTMENT OF THE INTERIOR                             JANUARY 24, 1936

    The attached memorandum signed by Messrs. Marshall, Muck and Lamont, referring further to the proposed Resettlement Administration loan of $120,000 to the Colville Indians for the purpose of purchasing and operating a sawmill plant, reached me after my memorandum of January 17, in which was incorporated the conclusion reached at the conference before me on that date, had gone forward to you. While I understood the matter to have been concluded for the time being by that memorandum, I now understand that the application for loan is being held pending further advice from this office in the light of the additional in formation contained in the memorandum of Marshall et al.

    The memorandum of the Board of Appeals of January 15 pointed out first, that there is no authority of law under which the timber resources of the Colville Indian Reservation could be pledged as security for the proposed loan and second that the statutory requirement that the proceeds from sales of timber and other products of Indian reservations must be deposited in the Treasury of the United States for the benefit of Indian tribes (section 155, USC.), coupled with the inhibition against expenditure of tribal funds without specific appropriation by Congress (section 123 id.), precluded the use of the proceeds from sales of the timber or lumber products in repayment of the loan without specific authorization of appropriation by Congress.

    The memorandum of Marshall et al. concedes the validity of the first objection and points out in effect that no mortgage or pledge of the timber resources is to be made. As to the second objection the memorandum, as I read it, takes the position that the proceeds derived from the operation of the project to be financed by the loan falls within that class of miscellaneous revenues derived from Indian reservations which may be expended without specific appropriation under authority of the act of May 17, 1926 (44 Stat. 560), section 1 of which reads:

    "That hereafter all miscellaneous revenues derived from Indian reservations, agencies and schools which are not required by existing law to be otherwise disposed of, shall be covered into, the treasury of the United States under the caption 'Indian moneys, proceeds of labor.' and are hereby made available for expenditure, in the discretion of the Secretary of the Interior, for the benefit of the Indian tribes, agencies, and schools on whose behalf they are collected, subject, however, to the limitations as to tribal funds, imposed by section 27 of the Act of May 18, 1916 (Thirty ninth Statutes at Large, page 159)."

                                                                                                                                            NATHAN R. MARGOLD,

    The Commissioner of Indian Affairs having submitted to you for signature an order proposing to revoke all prior orders opening unallotted Indian lands to prospecting, location and lease under Section 26 of the act of June 30, 1919 (41 Stat. 31), as amended March 3, 1921 (41 Stat. 1231), and December 16, 1926 (44 Stat. 922-923), Sec. 399. Title 25, U.S.C., you have requested my opinion as to your authority in the premises.
 

603                                                            OPINIONS OF THE SOLICITOR                                    MARCH 12, 1936

    By the enactments cited, the Secretary of the Interior is "authorized and empowered" to lease to citizens of the United States unallotted lands on Indian reservations in Arizona, California, Idaho, Montana, Nevada, New Mexico, Oregon, Washington, and Wyoming, for the purpose of mining metalliferous and nonmetalliferous minerals, including oil and gas, after mining claims have been located by such citizens in conformity with the mining laws of the United States. From the view point of the authority of the Secretary of the Interior it is significant to note that the lands of these Indian reservations were not thrown open to prospecting, location and lease by the statute. It is provided instead:

    "Unallotted lands, or such portion thereof as the Secretary of the Interior shall determine, within Indian reservations * * * may be declared by the Secretary of the Interior to be subject to exploration for the discovery of deposits of gold, silver, copper, and other valuable metalliferous minerals and nonmetalliferous minerals, not including oil and gas, by citizens of the United States, and after such declaration mining claims may be located by such citizens in the same manner as mining claims are located under the mining laws of the United States."

    In the attached papers Section 3 of the act of June 18, 1934 (48 Stat. 984), is referred to as having some bearing upon the authority to close these Indian reservations to prospecting by revoking the prior orders. The general language of that section authorizes the Secretary to restore to tribal ownership surplus lands of any Indian reservation opened to sale or other disposal under the public land laws. This provision is without application because the lands here involved have never passed from tribal ownership and still remain a part of the Indian reservation. A proviso to Section 3 revokes and rescinds an order issued by the Secretary of the Interior withdrawing lands within the Papago Reservation in Arizona from mineral entry, and prohibits the issuance of further orders of a like nature. That action, while effectively divesting the Secretary of any authority to withdraw the Papago lands from mineral entry, is confined to that particular reservation. The question here relates to the authority of the Secretary under the act of June 30, 1919, supra, as amended. That act does not now and never has applied to the Papago Reservation. The Indians of that reservation never owned the mineral rights. The reservation was created exclusive of any tribal right to the minerals, and the mineral lands were declared subject to entry and patent under the United States mining laws. See Executive Order of February 1, 1917, and the act of February 21, 1931 (46 Stat. 1202).

    In view of the foregoing it is my opinion that you have authority to revoke the prior orders opening to prospectors the lands of those Indian reservations subject to lease under the act of June 30, 1919, as amended, if in your judgment such action is necessary or advisable in the interests of the Indians. Rights acquired by locators during the period the lands were subject to prospecting, location and lease cannot, of course, be disturbed and such rights are preserved by the following declarations in the order presented for your signature:
 

604                                                          DEPARTMENT OF THE INTERIOR                                MARCH 12, 1936

"Where valid locations have already been made, however, they may be followed by application for lease under the regulations hereto fore prescribed by the Department for the granting of such leases; and existing leases in good standing now shall not be disturbed hereby."

M-28231                                                                                                                                                 March 12, 1936.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on the question whether tribal and individual Indian moneys held by the Indian Bureau may be deposited in checking accounts with banks paying no interest thereon.

    Section 28 of the act of May 25, 1918 (40 Stat. 591) reads in part as follows:

    "That no tribal or individual money shall be deposited in any bank until the bank shall have agreed to pay interest thereon at a reason able rate, etc."

    "No member bank shall, directly or indirectly by any device whatsoever, pay any interest on any deposit which is payable on demand: Provided, That nothing herein contained shall be construed as prohibiting the payment of interest in accordance with the terms of any certificate of deposit or other contract heretofore entered into in good faith which is in force on the date of the enactment of this paragraph; but no such certificate of deposit or other contract shall be renewed or extended unless it shall be modified to conform to this paragraph, and every member bank shall take such action as may be necessary to conform to this paragraph as soon as possible consistently with its contractual obligations:"

    It is clear that the Banking Act of 1933 did not repeal the statutory provision restricting deposits of Indian money to banks paying interest, but operated merely to exclude certain banks from the category of eligible depositories.

    The Banking Act of 1935 (49 Stat. 684, 714-715), however, contains a provision which seems to go further than this. Section 324 (c), amending section 19 of the Federal Reserve Act, reads in part as follows:

    "No member bank shall, directly or indirectly, by any device whatsoever, pay any interest on any deposit which is payable on demand:

            *                                *                                *                                *                                *

"* * * Provided further, That until the expiration of two years after the date of enactment of the Banking Act of 1935 this paragraph shall not apply (1) to any deposit made by a savings bank as defined in section 12B of this Act, as amended, or by a mutual savings bank, or (2) to any deposit of public funds made by or on behalf of any State, county, school district, or other subdivision or municipality, or to any deposit of trust funds if the payment of interest with respect to such deposit of public funds or of trust funds is required by State law. So much of existing law as requires the payment of interest with respect to any funds deposited by the United States, by any Territory, District, or possession there of (including the Philippine Islands), or by any public instrumentality, agency, or officer of the foregoing, as is inconsistent with the provisions of this section as amended, is hereby repealed." (Italics supplied.)
 
 

605                                                            OPINIONS OF THE SOLICITOR                                    MARCH 12, 1936

    The question turns upon the proper construction of the repealing clause in the act above cited. Does this clause operate to repeal a statutory repeal a statutory provision such as section 28 of the act of May 25, 1918, above quoted, which limits the class of eligible depositories to those paying reasonable interest? Can it be said that such a statutory provision "requires" the payment of interest and is "inconsistent" with a statute prohibiting certain banks from paying interest? Quite clearly the statutory provision limiting deposits of Indian moneys to banks which pay a reasonable interest rate "requires" the payment of interest as
a condition of the deposit. Is that enough to bring the provision under the knife of the Banking Act of 1935?

    From a strictly logical point of view there is no inconsistency between a statute providing that certain funds may be deposited in those banks which pay a reasonable rate of interest and a later statute providing that certain banks shall pay no interest at all. It is perfectly consistent with both statutes to make deposits in those banks which are still permitted to pay interest and not to make deposits in those banks which are not permitted to pay interest. But, if this narrow construction be put upon the repeal clause in the Banking Act of 1935, then it is doubtful whether that clause would have any meaning whatsoever. I know of no statutes requiring any bank to pay interest on any particular funds. Statutes such as the act of May 25, 1918, above quoted, or the Postal Savings Act of June 25, 1910, as amended, provide, in effect, that certain sums shall or may be deposited in those banks which agree to pay certain interest rates. These statutes limit the discretion of administrative officials but they do not impose an absolute duty on any bank since every bank is free to refuse a deposit of Government funds.

    The meaning of the repeal clause in question is not illuminated by any word of explanation in the hearings on the Banking Act of 1935, or in the discussion on the floor of either House of Congress concerning this act. The provision in question did not appear in the bill originally introduced or in the amended version of that bill as it first passed the House. It was inserted in the course of hearings by a Senate subcommittee, and the reasons for inserting the provision are nowhere disclosed. No comment on the intended scope of the provision is found in the conference report which accepted the clause found in the Senate bill.

    It appears that a substantially similar question has been considered by the Attorney General in determining the effect of the Banking Act of 1935 upon the provisions of the Postal Savings Act. The Banking Act of 1935 contained, in addition to the general language above discussed, specific language authorizing postal savings depositories to deposit funds in member banks of the Federal Reserve System subject to regulations of the Board of Governors of that system concerning interest and other matters. Did this provision supersede and nullify the earlier statutory condition that banks receiving postal savings deposits must pay 2 1/4 percent interest? Or did the Banking Act of 1935 leave the statutory interest requirement intact and merely authorize supplementary regulations not inconsistent therewith?

    In his opinion dated December 26, 1935, the Attorney General declares:

    "* * * The 1935 statute in effect provides that postal savings funds may be deposited in member banks of the Federal Reserve System at whatever rate of interest such banks have been directed to pay by regulation of the Board of Governors. This necessarily repeals the earlier provisions to the effect that postal savings funds shall not be deposited with member banks of the Federal Reserve System unless they agree to pay interest at the rate of at least two and one-fourth per centum.

    "This conclusion is fortified by the consideration that section 341 (3) would add nothing to the pre-existing laws if not interpreted in this manner. Every statute should be so interpreted as to give it some effect. Under section 2 of the amendment of May 18, 1916, the duty was placed upon the Board of Trustees of the Postal Savings System to deposit postal savings funds with qualified member banks of the Federal Reserve System. Hence, if section 341 (3) were construed merely to authorize the deposit of such funds in member banks in case they were willing to receive the deposits under the terms of the Postal Savings Act, it would add nothing to the pre-existing legislation. It would seem to follow, therefore, that Congress must have intended section 341 (3) to authorize the deposit of postal savings funds in member banks at whatever rate of interest those banks were willing to pay."

606                                                          DEPARTMENT OF THE INTERIOR                                MARCH 12, 1936

without interest in banks which are prohibited, under the Banking Act of 1935, from paying interest on such deposits. Of course, there is no mandatory provision of law requiring deposit of Indian moneys in banks, and such deposits, it may be assumed, will be made only when special circumstances call for such action.

                                                                                                                                               NATHAN R. MARGOLD,

    At your request a careful examination of the attached file relating to S. 2908, a bill to authorize an appropriation for payment to the Delaware Tribe of Indians in the State of Oklahoma, has been made with a view to determining whether the adverse report heretofore made by the Department on the bill was justified.

    As the claim upon which the bill is based arises out of an agreement entered into under date of April 8, 1867, between the Delaware and Cherokee Nations, it becomes necessary before discussing the merits of the bill to refer at some length to the provisions of the agreement and the respective rights of the parties thereunder as they have been determined in the courts.

    After stating that its purpose is "a location of the Delaware on the Cherokee lands and their consolidation with the said Cherokee Nation", the agreement provides in substance that the Cherokee Nation, in consideration of certain payments and the fulfilment of certain conditions, will sell to the Delaware Indians "for their occupancy" a quantity of land in the aggregate equal to 160 acres for each individual of the Delaware Tribe who was then enrolled upon a certain register made in 1867, being a list of the Delawares who had elected to remove to the "Indian country", to which list there might be added with the consent of the Delaware Council the names of such other Delawares as might desire to be added thereto; that the selection of lands might be made by said Delawares in any part of the Cherokee Reservation east of a certain line, not already selected and in the possession of other parties, and in case the Cherokee lands should thereafter be allotted among the members of the Nation it was agreed that the aggregate amount of land provided for the Delawares should include their improvements according to legal subdivisions, that is to say, 160 acres for each individual Delaware; that the continued ownership and occupancy of the land by any Delaware so registered shall not be interfered with in any manner without his consent but the same shall be subject to the conditions and restriction as are imposed by the laws of the Cherokee Nation; that nothing in the agreement shall confer the right to alienate, convey or dispose of such lands except in accordance with the constitution and laws of the Cherokee Nation; that upon fulfilment of the agreement by the Delawares the individual members registered as aforesaid shall become members of the Cherokee Nation with the same rights and immunities and the same participation (and no other) in the national funds as native Cherokees, and that the children thereafter born to the Delawares incorporated into the Cherokee Nation shall in all respects be regarded as native Cherokees. In consideration of the benefits and privileges accruing to them under the agreement, the Delawares agreed to pay the Cherokees $1 an acre for the whole amount of 160 acres for each individual registered Delaware and also to pay an additional sum of money which shall sustain the same proportion to the existing Cherokee national fund that the number of registered Delawares removing to the Indian country sustains to the whole number of Cherokees residing in the Cherokee Nation.

    The agreement of 1867 came before the Supreme Court of the United States in Cherokee Nation v. Journeycake (1894), 155 U.S. 196. That case presented a controversy between the native Cherokees and the Delawares over the right of the latter to share in the proceeds derived from certain lands including the interest in general acquired by the Delawares in the Cherokee tribal property. The court held that in virtue of the agreement of 1867 the Delawares were incorporated into the Cherokee Nation as members and citizens thereof and that as such they were entitled to equal rights with the native Cherokees in the lands of the Nation and their proceeds. With respect to the title acquired by the Delawares under the agreement to the 160 acres of land to be provided for each registered Delaware-157,600 acres in the aggregate-the court said (pp. 212-213):

    "* * * So far as the provision in the agreement for the purchase of homes is concerned, it will be perceived that no absolute title to these homes was granted.

    We may take notice of the fact that the Cherokees in their long occupation of this
 
 

607                                                            OPINIONS OF THE SOLICITOR                                    MARCH 18, 1936

reservation had generally secured homes for themselves; that the laws by the Cherokee Nation provided for the appropriation by the several Cherokees of lands for personal occupation, and that this purchase by the Delawares was with the view of securing to the individual Delawares the like homes; that the lands thus purchased and paid for still remained a part of the Cherokee reservation. And as a further consideration for the payment of this sum for the purchase of homes the Delawares were guaranteed not merely the continued occupancy thereof, but also that in case of a subsequent allotment in severalty of the entire body of lands among the members of the Cherokee Nation, they should receive an aggregate amount equal to that which they had purchased, and such a distribution as would secure to them the homes upon which they had settled, together with their improvements. So that if, when the allotment was made, there was for any reason not land enough to secure to each member of the Cherokee Nation 160 acres, the Delawares were to have at least that amount, and the deficiency would have to be borne by the native Cherokees pro rata. In other words, there was no purchase of a distinct body of lands, as in the case of the settlement of other tribes as tribes within the limits of the Cherokee reservation. The individual Delawares took their homes in and remaining in the Cherokee reservation, and as lands to be considered in any subsequent allotment in severalty among the members of the Cherokee Nation. All this was in the line of the expressed thought of a consolidation of these Delawares with and absorption of them into the Cherokee Nation as individual members thereof."

608                                                           DEPARTMENT OF THE INTERIOR                               MARCH 18, 1936

and descendants of such Delawares took only the rights of other citizens of the Cherokee Nation as the same were regulated by its laws."

    While the foregoing case was pending before the courts, the Cherokee allotment agreement of July 1, 1902, became law. 32 Stat. 716. Section 23 of the agreement provided for the segregation of the lands claimed by the Delawares pending judicial determination of the amount of land to which the Delawares were entitled in allotment. (See also section 25 of the act of June 28, 1898, supra.) Section 31 of the allotment agreement prohibits the making of any allotment of land or other tribal property to any person or to the heirs of any person who died prior to the first day of September 1902 and declares that the right of any such person to any interest in the land or other tribal property shall be deemed to have been extinguished and to have passed to the tribe in general, that is the Cherokee Nation, upon his death before said date. At the commencement of the suit brought by the Delawares under the act of 1898, but 212 of the original 985 registered Delawares survived. Of these 197 survived September 1, 1902, and received the allotments provided for in the treaty of 1867. The remaining 15 died after commencement of the suit but, it is understood, prior to September 1, 1902.

    Turning now to the provisions of S. 2908, we find that its stated purpose is to authorize an appropriation of $20,400, with interest at 4 percent, "to compensate the Delaware Tribe of Indians in the State of Oklahoma for 2,560 acres of land for which a judgement was awarded them in the case of the Delaware Indians against the Cherokee Nation (193 U. S. 127) ." Other provisions of the bill deal with the distribution of the moneys, the preparation of a roll, etc., and need not be discussed. As gathered from the attached papers, this bill is predicated upon the theory that the Supreme Court in the case of Delaware Indians v. Cherokee Nation, supra, found that the 212 Indians living at the time of the commencement of the suit were vested with an absolute right to allotment of 160 acres of land each, and that the interest of any such Indian who thereafter died reverted not to the Cherokee Nation but to the Delaware Tribe of Indians. The record before me indicates that 15 of the Indians living at the commencement of the suit failed to receive allotments but the acreage set forth in the bill is computed on the basis of 160 acres for each of 16 Indians.

    The theory of this bill is not supported by anything contained in the Cherokee-Delaware decision. That decision and the decision in the Journeycake case established definitely and clearly that the Delaware Tribe acquired no interest whatsoever in these lands and hence there could in no event be a reversion to that tribe of any interest upon the death of a registered Delaware. The two decisions further established definitely and clearly that the rights conferred by the agreement of 1867 on the registered Delawares in the lands in the Cherokee Nation were individual rights which, under the laws of the Cherokee Nation, terminated with the death of the individual. Where such death occurred, the lands remained as before, Cherokee tribal lands and were subject to disposition as such. If, as I am informed is the case, the 15 registered Delawares referred to above died prior to September 1, 1902, then under the allotment agreement of 1902 any interest they might have had in the land was extinguished and passed to the Cherokee Nation. This agreement not only was a Federal law but also a law of the Cherokee Nation by which the Delaware were bound equally with the native Cherokees. The making of allotments to or in the rights of these 15 Delawares would have been to extend to them greater rights than native Cherokees themselves enjoyed or possessed. Such action would have been in plain contravention of the agreement of 1867, the laws of the Cherokee Nation, the decisions of the Supreme Court, and the Cherokee allotment agreement of 1902.

    It is clear from the foregoing that the claim upon which this bill rests is without legal foundation. Not only so but no moral obligation owing to these Indians by the United States which would warrant a making of this appropriation is found. As pointed out by the Supreme Court in the Delaware-Cherokee case this was not an agreement negotiated between the representatives of the United States and those of the Indians, where the disparity of the contracting parties in education and knowledge of law and use of language is obvious, but was an agreement negotiated between representatives of Indian nations meeting on equal terms. The rights of the parties to such an agreement having been defined by the Supreme Court of the United States and having been enforced accordingly, no just cause for complaint exists as against each other, much less against the United States. Moreover, there is no indication that the Delawares were overreached in the agreement. The value of the rights purchased on behalf of the registered Delawares and their descendants will be appreciated when it is considered at the time of the execution of the agreement of 1867 the land holdings of the Cherokee Nation aggregated more than 13 million acres, including 400,000 acres in Kansas. The Delawares acquired equal interest with the Cherokees in this vast domain including the right to share in the distribution from all proceeds in the
 

609                                                            OPINIONS OF THE SOLICITOR                                    MARCH 18, 1936

sales of lands. It is significant to note in passing that the Cherokees in the Journeycake case disputed the right of the Delawares to share in these lands and distributions and strongly urged that the Consideration paid by the Delawares was grossly inadequate.

    I recommend that the prior departmental action adversely reporting on this measure be not disturbed.

                                                                                                                                            NATHAN R. MARGOLD,

M-28316                                                                                                                                                  March 18, 1936.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on various questions of construction of the Presidential Letter No. 1323, dated January 11, 1936, allocating emergency funds to the Office of Indian Affairs for the purpose of financing "the rehabilitation of Indians in stricken rural agricultural areas by means of loans or grants", etc. The President's letter reads as follows:

"To finance the rehabilitation of Indians in stricken rural agricultural areas by means of loans or grants or both, to enable them to construct or repair houses, barns, outbuildings, and root cellars; to develop wells and springs for domestic water, to clear and improve lands for gardens and small farms, and to purchase land for such purposes when necessary; to make furniture and other hand-craft products; and to establish, maintain, and operate other self-help projects. Subject to the application of Title III of the Treasury and Post Office Appropriation Act, fiscal year 1934, to the acquisition of articles, materials and sunppies for use in carrying out such projects. (6. P. 5-236 to 5-303)"

    "1. Does the Presidential letter above set forth require that all loans or grants shall be made directly to individual Indians or may such loans or grants be made to Indian tribes?

    "2. May an Indian Tribe which has received a loan for authorized purposes sell, rent or otherwise dispose of products and improvements made or developed through the use of such loan funds, repay the amount of the loan, and use or distribute among its members any balance?

    "3. May an Indian tribe which has received a grant of funds for purposes authorized in the letter above cited, and has expended such funds for the purposes set forth on lands owned by the tribe, proceed to lease or assign such land, or interests therein, to individual Indians, members of the tribe?

    "4. May an Indian tribe use the proceeds of rentals of land improved through rehabilitation grants to finance additional construction projects or to meet general tribal expenses or to make per capita payments?"

    The questions presented by the Indian Office are answered seriatim as follows:

    1. The letter of the President does not specify that loans or grants shall be made to individuals. No legal objection is seen to the making of loans or grants to Indian tribes, whether or not such tribes are organized under the act of June 18, 1934 (48 Stat. 984). The only requirement is that the money shall finally be used for the purposes expressly authorized.

    2. It is the essence of a loan as distinguished from a stock purchase or other agreement for participation in management and profits, that the
 

610                                                           DEPARTMENT OF THE INTERIOR                               MARCH 18, 1936

borrower is obligated to return only the amount of the loan, plus any agreed rate of interest. There is nothing in the letter of the President above set forth which in any way restricts what the tribe may do with the products, improvements or profits resulting from an enterprise financed thereunder, so long as the enterprise itself is one authorized by the Presidential letter above set forth. Any restrictions upon such disposition of profits, products or improvements can be derived only from the tribal constitution, bylaws, charter, or other agreement.

    3. I see no possible legal objection to this procedure, particularly in view of the fact that many Indian tribes sadly in need of the aid proposed reside on unallotted reservations, all of the land thereof being held in tribal ownership. It would appear to be perfectly proper to construct houses, to develop wells and springs for domestic water, to make hand-craft products, and do any other of the things authorized by Presidential Letter No. 1323-1 on tribal land. It is one of the inherent powers of tribal sovereignty that the tribe may levy assessments or charges upon its members for the use of tribal land. (Solicitor's Opinion approved October 25, 1934, "Powers of Indian Tribes", pages 51 to 54, 59 to 68.) Nothing in the letter above referred to restricts this tribal power. Of course, the tribe may not use funds granted under the authority here considered to engage in any enterprise which does not promote "the rehabilitation of Indians in stricken rural agricultural areas". Thus it is reasonable to infer that housing projects developed on tribal land, if rented, must be rented to Indians in such areas who are in need of rehabilitation. Beyond this restriction of purpose, the power of the tribe to lease land to its own members is subject only to such restrictions as may be imposed by the tribal constitution, bylaws, charter, or ordinances, or by Federal legislation prohibiting im proper uses of land.

    4. When money has been granted to an Indian tribe to be used for a particular purpose, e. g., the development of springs on tribal land or the construction of houses, the Presidential letter above set forth imposes no duty on the tribe when once the money has been properly expended. The fact that such expenditures may increase tribal income from the issuance of leases or permits on tribal land, or tribal income from other enterprises, does not subject a part of that income, or all of it, to any lien on the part of the Federal Government. Such income may, therefore, be received and disbursed by the Indian tribe in any manner not prohibited by Federal law or by the constitution, by laws, or charter of the tribe, unless the tribe has specifically agreed to use such rentals or income for a specific purpose. It is, of course, within the power of a tribe to agree, through its representative council or other officers, that certain income available to the tribe shall be used only for designated purposes not inconsistent with law.

                                                                                                                                             NATHAN R. MARGOLD,

M-28108                                                                                                                                                  March 18, 1936.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    The United States pursuant to the act of June 7, 1924 (43 Stat. 636) is purchasing certain land within the Middle Rio Grande Conservancy District. The land in question is non-Indian land as determined in accordance with the procedure set out in the act of June 7, 1924, supra. This land while in non-Indian ownership has been assessed for irrigation construction charges by the Conservancy District.

    Indian lands in the Conservancy District are being reclaimed by the District, the cost thereof being paid by the United States pursuant to a contract between the United States and the District entered into under the authority of the act of March 13, 1928 (45 Stat. 312). The parties to this contract anticipated certain changes in ownership between whites and Indians during construction and provided in Article 22 of the contract for an adjustment of construction charges on such lands. By such adjustment, payment is to be made to the District by the United States for construction charges on certain land passing into Indian ownership.

    You have asked for my opinion as to whether the non-Indian lands now in question purchased or to be purchased as above set out become Pueblo Indian lands within the meaning of the act of March 13, 1928 so as to permit the payment of construction charges out of the funds there made available, and if so, whether lands so purchased fall within the purview of Article 22 of the contract of December 14, 1928.

    The act of March 13, 1928 provides in part as follows:
 

611                                                             OPINIONS OF THE SOLICITOR                                   MARCH 18, 1936

"That the Secretary of the Interior is hereby authorized to enter into an agreement with the Middle Rio Grande Conservancy District, a political subdivision of the State of New Mexico, providing for conservation, irrigation, drainage and flood-control for the Pueblo Indian lands situated within the exterior boundaries of the said Middle Rio Grande Conservancy District, as provided for by plans prepared for this purpose in pursuance of an Act of February 14, 1927 (Forty-fourth Statutes at Large, page 1098). The construction cost of such work, conservation, irrigation, drainage, and flood-control work apportioned to the Indian lands shall not exceed $1,593,311, * * * Provided further, that in determining the share of the cost of the works to be apportioned to the Indian lands there shall be taken into consideration only the Indian acreage benefited which shall be definitely determined by said Secretary and such acreage shall include only lands feasibly susceptible of economic irrigation and cultivation, and materially benefited by this work."

    Whether a particular parcel meets the last two requirements is a factual matter which can readily be determined. The term "Pueblo Indian lands" as used in the first requirement is, however, subject to interpretation.

    In my opinion the proper interpretation is that Congress intended it to include all Indian lands owned as of the date of the act, and such other land as might thereafter be acquired for the Indians under the authority of the act of June 7, 1924. There is no restriction in the act based on the manner or time of acquiring title and this want of restriction is significant to the conclusion above stated because Congress had theretofore authorized the purchase of land adjudged to be non-Indian. That Congress intended the general plan of reclamation undertaken under the act of March 13, 1928, to include land then authorized to be purchased is entirely reasonable and to construe the term "Pueblo Indian lands" to exclude land acquired by purchase is to defeat this intention.

    There is, however, a limitation on the purchase of water rights for such lands. This limitation is the amount of money made available by the act of March 13, 1928. The total construction charge applicable to all Indian lands must not exceed $1,593,311. When the purchase of new water rights or the adjustment of construction charges on non Indian lands purchased brings the total above this amount there will have to be further authority from Congress.

    There remains for consideration the question as to whether the lands under consideration are with in the purview of Article 22 of the contract of December 14, 1928. This Article provides as follows:

    "It is mutually understood and agreed that as to any lands within any of the Pueblo Grants now claimed to be in Pueblo Indian ownership but which may hereafter be held under the Pueblo Lands Act or other laws relating to such titles not to belong to said Pueblos, thereby rendering such lands subject to District operation and control, the said District shall then assess the benefits thereto as provided by the said Conservancy Act, and refund to the United States any payments previously paid for said disputed lands, and as to lands now claimed to be in non-Indian ownership but which may hereafter be ad judged to belong to said Pueblo Indians, any assessments collected by the District for improvements thereon shall inure to the benefit of the United States upon adjustment being made therefor as for other lands improved under the terms of this contract, it being the intent of the parties hereto that equitable adjustments shall be made in all cases where land titles are subsequent to the date hereof adjudged to be in ownership otherwise than now recognized between the Indians and non Indians where such lands are subject to adjustment under the provisions of the said Pueblo Lands Act."

    That the contract is so narrowly phrased does not, however, preclude its alteration within the limits of the broader authority existing under the act of March 13, 1928 as above pointed out. Thus, if non-Indian lands are purchased and meet all of the requirements above set out, an actual ad-
 

612                                                           DEPARTMENT OF THE INTERIOR                               MARCH 18, 1936

justment by payment under the act of March 13, 1928 may be made, such a settlement being to that extent a valid alteration of the contract of December 14, 1928. Such in effect is the solution suggested in the Solicitor's opinion of August 4, 1932,
No. M. 27145.

    There is, however, a more satisfactory plan now available. There is now before me for approval a contract to be entered into between the United States and the Conservancy District covering operation and maintenance charges on newly reclaimed Indian land. This contract is authorized to be made by the act of August 27, 1935, (49 Stat. 887), but it is in the nature of a supplement to the contract of December 14, 1928. The act of August 27, 1935, in no wise curtails the authority existing under the act of March 13, 1928. I suggest, therefore that the operation and maintenance contract now before me be altered by including a provision covering the adjustment, in accordance with this opinion, of construction charges on land of the
kind now in question.

                                                                                                                                            NATHAN R. MARGOLD,

 Approved: March 18, 1936.
T. A. WALTERS, First Assistant Secretary.

 Memorandum to the First Assistant Secretary:

    The revised order determining heirs of the estate of Yellow Hair, unallotted member of the Navajo Tribe, is still objectionable as it requires the Examiner of Inheritance to apply State law in determining the inheritance of the remaining personal property of the decedent. The original order in this case prepared by the Probate Division of the Indian Office required that the entire estate be distributed according to State law and that the major portion of the estate which had already been distributed according to tribal custom by a tribal judge be recovered for redistribution. This order was the subject of a memorandum addressed to the Assistant Secretary and signed by the Solicitor, which pointed out that the inheritance of personal property of an unallotted member of the Navajo Tribe is not governed by the laws of Arizona. The memorandum proposed that "instead of returning this case for the purpose of redistributing in accordance with Arizona law the personal property which has been distributed in accordance with tribal custom, it should be returned so that the entire estate may be distributed in accordance with tribal custom" and that "The Examiner of Inheritance should take testimony as to such customs of inheritance, in their application to the facts of this case, and submit a revised order determining heirs for departmental approval." The remaining estate consists of cash held in the agency office, which is apparently the proceeds of the sale of sheep belonging to the decedent and which does not appear from the facts submitted to be trust property.

    The Probate Division makes its present recommendation on the ground that the Examiner of Inheritance has not the time nor facilities to determine tribal custom and that disposition by the Examiner of Inheritance under State law will assure rapid and efficient disposition of the property to the needy heirs. It is not necessary however, that the Examiner of Inheritance take part in the disposition of the property. In fact, the matter is more properly handled by tribal authorities since the Secretary of the Interior has no statutory authority for the determination of heirs of unallotted Indians. In recognition of this fact, the Department has approved in the revised Law and Order Regulations, November 27, 1935, Chapter 3, section 5, the making of a determination of heirs in accordance with tribal custom or State law if no custom is proved, by the Courts of Indian Offenses in cases where other than trust property is involved. These regulations apply to the Navajo Reservation as there are such courts already maintained there. (See "Application of Regulations", page 1, Law and Order Regulations.) Moreover it appears that the Navajo Courts of Indian Offenses are in a position to perform this function. If additional facilities are needed, this should be undertaken as part of the obligation to equip the court as provided in the Regulations. The proper functioning of these courts should then relieve the Examiners of Inheritance and the Probate Division of some of their overburden of work. It is therefore suggested that the Superintendent in possession of the property in question be instructed to turn over the property to those persons determined by the Court of Indian Offenses in his jurisdiction to be the heirs of Yellow Hair. Moreover it is suggested that the claimants be informed of their privilege of bringing the case before the court.

                                                                                                                                            NATHAN R. MARGOLD,

613                                                            OPINIONS OF THE SOLICITOR                                    MARCH 20, 1936

 Memorandum for the Commissioner of Indian Affairs:

    The attached letter and memorandum relative to the purchase of lands under section 5 of the Indian Reorganization Act of June 18, 1934, for the benefit of the Fort Belknap Indians raise the question of the proper description of the beneficiaries under the deed.

    The letter as drafted proposes that the deed shall run in favor of the United States of America in trust for the Assiniboin, Gros Ventre, and other Indian tribes of the Fort Belknap Reservation. In my opinion this is an improper designation.

    The Indians of the Fort Belknap Reservation are, ethnologically, of two tribes. Neither of these tribes is restricted to the Fort Belknap Reservation. The Assiniboins are located as well on the Fort Peck and perhaps other reservations. The Gros Ventre are located not only on the Fort Belknap Reservation but also on the Fort Berthold Reservation. Neither the Assiniboin nor the Gros Ventre tribes have any separate tribal organization.

    The Assiniboin and Gros Ventre of the Fort Belknap Reservation have been recognized politically as a single tribe for many years. These Indians have had a single tribal council since at least 1922. The tribal land of the reservation is owned by the "Fort Belknap Indians" as a tribe and not by the Assiniboin and Gros Ventre tribes as such. Tribal funds are likewise owned by the Fort Belknap Indians as a tribe. In short, those portions of the Assiniboin and Gros Ventre tribes located on the Fort Belknap Reservation have actually amalgamated to form a united or confederated tribe as has been the case historically with the Cherokees and Delawares, with the Confederated Salish and Kootenai Tribes of the Flathead Reservation, with the three affiliated tribes of the Fort Berthold Reservation, and with many other Indian groups. It is, therefore, entirely proper to treat the Indians of this reservation as a single tribe for which land may be acquired and which may, through its elected council, participate in the administration of such land.

    Even if these tribes had not amalgamated prior to the adoption of their present constitution, it must be held that under that constitution they constitute a single tribe.

    Section 16 of the Indian Reorganization Act specifies that tribes residing on the same reservation may organize together, adopt a single constitution, and as a tribe exercise certain powers. The Fort Belknap Indians have in fact organized as a single tribe and adopted the name "Fort Belknap Indian Community". Title to any land acquired for this tribe should be vested in "The United States of America in trust for the Fort Belknap Indian Community."

                                                                                                                                            NATHAN R. MARGOLD,

 Memorandum for Mr. Zimmerman:

    Further consideration, based on your memorandum of January 24, has been given to the matter of enrollment of Patricia Gameil Peron and Donna Peron, children of Mrs. Leona Leslin Peron, with the Red Lake Band of Chippewa Indians in Minnesota.

    By memorandum of May 14, 1935, the Acting Solicitor returned these applications for the reason, first, that the Red Lake Band of Indians in general council assembled had rejected the applications and, second, that the mother of these children had abandoned her tribal relations prior to birth of the children. This latter conclusion was based upon the record then submitted showing that the mother had long been absent from the reservation and while so absent had married a white man to which union the children were born. The information now at hand, obtained upon further investigation, shows that the absence of the mother from the reservation was comparatively short after her marriage. For this reason and as abandonment of tribal relations is not to be imputed to trifling circumstances, I should be inclined to agree with you that the enrollment of these children should be approved were it not for the adverse action of the Red Lake Tribal Council. This tribal action, while subject to the supervisory authority of the Secretary, in enrollment matters, where the distribution of tribal funds and other property under the supervision and control of the Federal government are involved, nevertheless should I think, be regarded as controlling in doubtful cases. If, as your memorandum indicates, the action of the tribal council was induced by a misunderstanding of the attitude of the Department in these particular cases, I suggest that consideration be given to resubmission of the application to the tribal council with the statement of your views in the matter.

                                                                                                                                            NATHAN R. MARGOLD,

614                                                         DEPARTMENT OF THE INTERIOR                                 MARCH 25, 1936

 Memorandum for the Assistant Commissioner of Indian Affairs:

    The attached letter relative to the authority of the Special Disbursing Agent for the Navajo Agency to collect the savings account of a deceased Navajo Indian, prepared in your office for the signature of the Acting Chief, Division of Appointments, is returned to you for further consideration.

    The only authority under which a Special Disbursing Agent may collect such accounts is that conveyed by the act of February 25, 1933 (47 Stat. 907) which provides:

"That any money accruing from the Veterans' Administration or other governmental agency to incompetent adult Indians or minor Indians, who are recognized wards of the Federal Government, for whom no legal guardians or other fiduciaries have been appointed may be paid, in the discretion of the Administrator of Veterans' Affairs, or other head of a governmental bureau or agency, having such funds for payment, to such superintendent or other bonded officer of the Indian Service as the Secretary of the Interior shall designate, for the use of such beneficiaries, or to be paid to or used for, the heirs of such deceased beneficiaries, to be handled and accounted for by him with other moneys under his control, in accordance with existing law and the regulations of the Department of the Interior."

    The proposed answer to that letter, however, fails to conform to the requirements of the above statute. It should be limited, as the statute requires, to the contingency that "no legal guardians or other fiduciaries have been appointed." Under the revised law and Order Regulations approved by the Secretary of the Interior on November 27, 1935, courts of Indian offenses may provide for the disposition of decedents' estates which do not involve allotted lands and may presumably, in the exercise of this power, appoint "legal guardians or other fiduciaries." (Macky v. Coxe, 18, Howe, 100, and other cases cited in Solicitor's Opinion on powers of Indian tribes, approved October 25, 1934, pages 45-50).

    Accordingly, any authority conferred upon the Special Disbursing Agent of the Navajo Agency to receive funds accruing from any Government agency covered by the statute above quoted, should be expressly limited to cases where the court of Indian Offenses having jurisdiction over the estate has failed to appoint an administrator or other fiduciary.

    I recommend that a statement expressly authorizing the said employees to receive such funds be prepared for the signature of the Secretary and that a copy of such statement be forwarded to the Third Assistant Postmaster General.

 Memorandum for the Commissioner of Indian Affairs:

    Your letter of February 24 to the Superintendent of the Kiowa Indian Agency regarding the validity of mortgages of growing crops given by Indians who farm their trust allotments, is returned.

    In deciding this question your letter fails to distinguish between growing crops prior to severance and crops which have been severed or harvested. I am aware of no restriction which prevents an Indian who farms his own land from harvesting and disposing of the crop as he deems best. Growing crops, however, are a part of the land and are held in trust by the Government the same as the land and neither a sale nor mortgage thereof prior to severance is valid without the consent of the Government. United States v. First National Bank 282 Fed. 330. I suggest that this distinction with respect to the capacity of the allottee to deal with his crops prior to and after severance be brought out clearly in your letter. There should be added, of course, the further statement that the authority conferred upon the allottee to sell the land with the approval of the Secretary of the Interior (act of March 1, 1907, 34 Stat. 1018), includes the lesser authority to sell or mortgage growing crops with like approval.

                                                                                                                                            NATHAN R. MARGOLD,

615                                                            OPINIONS OF THE SOLICITOR                                    MARCH 31, 1936

M-28317                                                                                                                                                     March 31, 1936.

The Honorable,
ThE Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on the questions (1) whether loans under section 11 of the act of June 18, 1934 (48 Stat. 984), and the provisions of the appropriation act pursuant thereto may be made to students in a special course of technical study maintained under the auspices of a Government Indian school and on a Government school campus although separate from the regular school, and (2) whether the loans may be extended to pupils at such a school in excess of their actual expenses at the school to enable them to support their families while in training.

    The Commissioner of Indian Affairs has reported that a need has arisen for technical instruction of Indian personnel engaged in road work on Indian reservations in the operation and repair of road machinery. Lack of such training is an obstacle to the effectuation of the express policy of Congress and the Interior Department to stimulate Indian employment and advancement in the Indian services. It is proposed that a short course in mechanics be established under the Phoenix Indian School and on its campus for road men recommended from each of the road districts by the various superintendents. A number of these young men will be married and will be unable to take the course unless financial support is provided for their families during the period of the course. The superintendents will be prepared to contract for the reemployment of the students with the assurance that a proportion of their educational loans will be repaid monthly until the entire amount is amortized from their wages.

    Section 11 of the act of June 18, 1934 (48 Stat. 984), reads as follows:

    "There is hereby authorized to be appropriated, out of any funds in the United States Treasury not otherwise appropriated, a sum not to exceed $250,000 annually, together with any unexpended balances of previous appropriations made pursuant to this section, for loans to Indians for the payment of tuition and other expenses in recognized vocational and trade schools: Provided, That not more than $50,000 of such sum shall be available for loans to Indian students in high schools and colleges. Such loans shall be reimbursable under rules established by the Commissioner of Indian Affairs."

"For loans to Indians for the payment of tuition and other expenses in recognized vocational and trade schools, in accordance with the provisions of the Act of June 18, 1934 (48 Stat., p. 986), $175,000, reimbursable: Provided, That not more than $35,000 of such sum shall be available for loans to Indian students in high schools and colleges."

    (2) The question of whether loans may be extended to pupils at such a school in excess of their actual expenses at the school cannot be answered with any degree of confidence upon the basis of the language of the statute or the legislative history of the relevant provisions. On this point no relevant opinions of the Comptroller General have been brought to my attention. An opinion of the Interior Department on such a question could give no reasonable assurance to disbursing agents of the Department that their accounts would not be subject to exceptions with respect to such loans. I must
 

616                                                          DEPARTMENT OF THE INTERIOR                                MARCH 31, 1936

therefore decline to rule on the second question presented.

                                                                                                                                            NATHAN R. MARGOLD,

 Approved: March 31, 1936.
T. A. WALTERS, First Assistant Secretary.

M-28120                                                                                                                                                   March 31, 1936.

Re: Title to island in the Missouri River within the Fort Berthold Indian Reservation.

Held: An island formed in a navigable stream within an Indian reservation is a part of the reservation if the river bed was part of an area reserved for Indian use prior to the admission of the State in which the reservation is located.
That a certain island in the Missouri River within the boundaries of the Fort Berthold Indian Reservation is part of the Indian reservation.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on the question of the ownership of part of an island in the Missouri River lying within the boundaries of the Fort Berthold Indian Reservation.

    The land in question has been formed out of the bed of the Missouri River since 1889, according to the findings of the Commissioner of the General Land Office. Prior to the formation of this island, North Dakota had been admitted to statehood. Act of February 22, 1889 (25 Stat. 676). The question arises: "Did the island, upon its formation, become the property of the State of North Dakota, or did it become a part of the reservation held by the United States in trust for the Fort Berthold Indians."

    As a general rule, islands formed in navigable streams belong to the sovereign state which owns the river bed. Section 5475 of the Compiled Laws of North Dakota, 1913, provides:

    "Islands and accumulation of lands formed in beds of streams which are navigable belong to the State, if there is no title or prescription to the contrary."

    The question in each case is whether prior to the admission of the territory to statehood the land has been made part of an Indian reservation, or otherwise reserved for some public purpose of the Federal Government. In United States v. Holt Bank (270 U.S. 49, 55), the court declared:

    "It is settled law in this country that lands underlying navigable waters within a State belong to the State in its sovereign capacity and may be used and disposed of as it may elect, subject to the paramount power of Congress to control such waters for the purposes of navigation in commerce among the States and with foreign nations, and subject to the qualification that where the United States, after acquiring the territory and before the creation of the State, has granted rights in such lands by way of performing international obligations, or effecting the use or improvement of the lands for the purposes of commerce among the States and with foreign nations, or carrying out other public purposes appropriate to the objects for which the territory was held, such rights are not cut off by the subsequent creation of the State, but remain unimpaired, and the rights which otherwise would pass to the State in virtue of its admission into the Union are restricted or qualified accordingly. Barney v. Keokuk, 94 U.S. 324, 338; Shively v. Bowlby, 152 U.S. 1, 47-48, 57-58; Scott v. Lattig, 227 U.S. 229, 242; Port of Seattle v. Oregon & Washington R. R. Co., 255 U.S. 56, 63; Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 83-95. But, as was pointed out in Shively v. Bowlby, pp. 49, 57-58, the United States early adopted and constantly has adhered to the policy of regarding lands under navigable waters in acquired territory, while under its sole dominion, as held for the ultimate benefit of future States, and so has refrained from making any disposal thereof, save in exceptional instances when impelled to particular disposals by some international duty or public exigency. It follows from this that disposals by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain."

617                                                            OPINIONS OF THE SOLICITOR                                    MARCH 31, 1936

    The ownership of the island in question, therefore, turns upon the narrow issue: "Was the bed of the Missouri River a part of that territory which was reserved to the Fort Berthold Indians prior to the admission of North Dakota to the Union?"

    The steps in the creation of the present Fort Berthold Reservation are traced in detail in the case of Fort Berthold Indians v. United States (71 Ct. Cl. 308). The court's special findings of fact show that by the treaty of Fort Laramie, dated September 17, 1851 (11 Stat. 749), a large tract of land, of which the Missouri River at the point in question was a northeastern boundary, was recognized as "territory of the Gros Ventre, Mandan, and Arickaree Nations" and that "in making this recognition and acknowledgement, the aforesaid Indian Nations do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described". Subsequently, by Executive order dated April 12, 1870, new boundaries were fixed for the Reservation of the Arickaree, Gros Ventre and Mandan Indians, since known as the Fort Berthold Reservation. These boundaries included territory on both sides of the Missouri River, at the point now in controversy. The Executive order made no express reference to the bed of the river. In this respect the facts here presented are different from those presented in United States v. Stotts, supra, where tide lands were expressly reserved to the Lummi Tribe, or in Taylor v. United States, supra, where the river bed had been transferred to the State of Washington prior to the creation of a reservation.

    Again, the facts presented in the instant case are distinguishable from those involved in Haight v. City of Keokuk (4 Iowa 199), and Barney v. Keokuk (94 U.S. 324), where the grant of land was made to individual Indians rather than to a political body, and was therefore construed to run to the river edge rather than to the medium filum aquae. In the instant case the grant of territory runs in favor of a political body, with which the United States dealt by treaty and which could, with entire propriety, receive a grant of title to the bed of a navigable stream. See Taylor v. United States, supra, at 534; Fort Berthold v. United States, supra; Solicitor's Opinion (M. 27781) on Powers of Indian Tribes, approved October 25, 1934, at pp. 5-23.

    Finally the case is distinguishable from United States v. Holt Bank, supra, in which the court found the bed of Mud Lake had not been included as a part of the Red Lake Reservation. The court summarized the facts leading to this conclusion as
follows:

"* * * 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. Minnesota v. Hitchcock,185 U.S. 373, 389. There was nothing in this which even approaches a grant of rights in lands under lying navigable waters; nor anything evincing a purpose to depart from the established policy, before stated, of treating such lands as held for the benefit of the future State." (At page 58.)

    On the question