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1109

CANADIAN BORN OF AMERICAN INDIAN PARENTS--
CITIZENSHIP ACT OF 1924 AND NATIONALITY ACT
OF 1940

                                                                                                                                                                April 9, 1942.

MR. JOHN DANAY
2831 WEST SIXTEENTH STREET,
BROOKLYN, NEW YORK.

MY DEAR MR. DANAY:

The Commissioner of Indian Affairs has referred to me your recent letter in which you ask assistance in proving that you are a citizen of this country. You state that your father was born in New York City on March 31, 1895, of parents who were American Indians of the Iroquois Tribe and that your mother was born in Schenectady, New York, on January 31, 1902, of parents who were also Iroquois Indians. You also state that you were born in Caughnawaga, Province of Quebec, Canada, on September 24, 1922, at a time when your mother was temporarily out of the country and that you returned to the United States before you reached the age of one year.

    The act of February 8, 1887 (24 Stat. 388), as amended by the act of May 8, 1906 (34 Stat. 182) provides that every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is a citizen of the United States. If you can prove that your parents met the requirements of that act they would have been citizens at the time of your birth.

    By the act of June 2, 1924 (43 Stat. 253), Congress declared all noncitizen Indians born within the territorial limits of the United States to be citizens of the United States. Therefore, even if your parents were not among those made citizens by reason of the 1887 act, as amended, they acquired citizenship under the 1924 act.

    On October 14, 1940, by the act known as the Nationality Act of 1940 (54 Stat. 1137), Congress revised and codified the nationality laws of the United States. That act provides in part:

"Sec. 201. The following shall be nationals and citizens of the United States at birth: * * *

    "(b) A person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe:    * * *

    (c) A person outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has resided in the United States or one of its outlying possessions, prior to the birth of such person. * * *"

    By reason of this act, it is my opinion that your parents are considered to be citizens at birth, and that you are a citizen by reason of subdivision (c) set out above. It has been held that the congressional purpose in enacting subdivision (b) set out above was to make clear that such persons are born citizens of the United States, and thereby to resolve a controversy as to whether the 1924 act applied only to a citizen living at the date of its enactment Totus v. United States, 39 Fed. Supp. 7.

    Section 339 of the Nationality Act of 1940 provides that a person who claims to have derived United States citizenship through the naturalization of a parent may apply to the Commissioner of Immigration and Naturalization, Department of Justice, for a certificate of citizenship. I suggest that you write to the Commissioner, outlining your difficulties. I am not familiar with the regulations governing the issuance of such certificates but it may be that if your parents received their citizenship by reason of the 1924 act the Commissioner will issue a certificate to you. If such a certificate is unnecessary, as I believe it is in view of the Nationality Act of 1940, the Commissioner will so inform you and you will thereby obtain an authoritative statement as to your citizenship status.

    Of course, you understand that this Department has no authority to determine the citizenship status of anyone, and that the opinion expressed in this letter is my personal opinion.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor.


INDIAN EMPLOYEE OF U.S.--PURCHASE OF TRUST
LAND WITH FUNDS BORROWED FROM TRIBAL
LOAN FUND

April 10, 1942.
Syllabus

Re:

May Klamath Indian employed by the United States Government purchase land from another Klamath Indian with funds borrowed from the Klamath Loan Fund.
Held:
If the transaction complies with the regulations issued by the Secretary under the act of June 19, 1939 (53 Stat 840), it may be carried out because the purchase constitutes a "benefit * * * made available * * * to the members of * * * [a] particular tribe, under * * * [an] Act of Congress, * * *."




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DEPARTMENT OF THE INTERIOR

APRIL 10, 1942

Memorandum for the Commissioner of Indian Affairs.

    On December 15 there was submitted to this office a deed by which Bertha or Bircie John, full-blood Klamath allottee No. 531, attempted to convey her allotment to Harry Elmo Pearson and Josephine O'Donovan Pearson, husband and wife, one-quarter-blood Klamath Indians, in equal shares, for a consideration of $3,500. The deed and accompanying papers are returned to you for re consideration.

    Mr. Pearson is employed in the Indian Service as a stockman in the extension Service on the Klamath Reservation. He is as such subject to the restrictions imposed by section 14 of the act of June 30, 1934 (4 Stat. 738, 25 U. S. sec. 68). This section reads as follows:

    "No person employed in Indian affairs shall have any interest or concern in any trades with the Indians, except for, and on account of, the United States; and any person offending there in shall be liable to a penalty of $5,000, and shall be removed from his office."
It is clear that under this provision the proposed transaction could not be carried out. The incapacity embodied in the act of 1834 was, however, partly removed by the act of June 19, 1939, which reads as follows:
    "Anything contained in section 14 of the Act of June 30, 1834 (4 Stat. 738), or in section 10 of the Act of June 22, 1874 (18 Stat. 177), new sections 68 and 87, respectively, title 25; United States Code, to the contrary notwithstanding, employees of the United States Government, including those in the Indian Service, may, under such rules and regulations as the Secretary of the Interior shall prescribe, be permitted to purchase from any Indian or Indian organization any arts and crafts or any other product, service, or commodity, produced, rendered, owned, controlled, or furnished by any Indian or Indian organization: Provided, however, That no employee of the United States Government shall be permitted to make any such purchases for the purpose of engaging directly or indirectly in the commercial selling, reselling, trading, or bartering of said purchases by the employee: Provided further, That nothing contained in the Acts of Congress above referred to shall be construed as preventing Indian employees of the United States Government, of whatever degree of Indian blood, during their term of employment or otherwise, from obtaining or receiving any benefit or benefits made available to the Indians generally or to the members of any particular tribe, under any Act of Congress, nor to prevent such employees having Indian blood from being members of or receiving benefits by reason of their membership in Indian Tribes, corporations, or cooperative associations organized by the Indians, when authorized by the Secretary of the Interior under appropriate regulations to be promulgated by him."
The provision applicable to the instant case is that contained in the last proviso. The question is whether a land purchase by an Indian employee from another Indian can be considered as a "benefit * * * made available to the Indians generally or to the members of any particular tribe, under any act of Congress." In order to answer this question it is important to analyze fully the background and purpose of this legislation. The act of 1834 was passed in order to protect the Indian wards of the Federal Government from any attempts at over reaching on the part of Government agents employed in the Indian Service. At that time the Indian office in Washington was not in a position to supervise in every detail the work on the reservations and to control all the acts of the Indian agents. The only really effective safeguard against undue influence being exercised by these agents on the Indians under their supervision was, therefore, an outright prohibition of having any commercial dealings with them except "for and on account of the United States." At that time already there were Indians employed in the Indian Service, and the very act of 1834 provided, as a matter of fact, that they should be given preferential employment in the Service. On them the same general prohibition was imposed, as they were as likely as the white employees to hold and exercise special influence over the Indians under their administration.

    Since that time conditions have changed to a large extent. Because of better communications the Indian office is in a position to exercise more direct control over the actions of its field agents. As far as the Indians of the Service are concerned, the policy to give them preferential employment has been vastly extended and it is now an integral part of the general program of the Federal Government to train progressive members of the various tribes not only in agricultural trades but especially in leadership and administration preparatory to the development of more extensive self-government of
 



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OPINIONS OF THE SOLICITOR

APRIL 10, 1942

the tribes. This policy took precedence over the earlier policy of giving Indians employment simply for the sake of enabling them to earn a living. In view of this entire development it appeared desirable to the Department , to request Congress to relax the strict prohibitions imposed by the act of 1834. This was done by the above-mentioned act of 1939.

    With respect to employees of the Indian Service in general, both white and Indian, the purpose of the 1939 act is simply to enable them to engage in certain limited types of business transactions specifically referred to in the act. As to the Indian members of the Service a much broader policy was embodied in the act, substituting the supervision of the Secretary of the Interior for the general prohibition embodied in the 1834 act.

    There are, in effect, two conflicting policies involved: that of protecting the Indian wards and that of freeing Indian employees in the Service of any impediments to their free development. In the act of 1939, Congress decided to effect a compromise rather than to exclude the latter completely in favor of the former as did the act of 1834. That this was indeed the purpose of the act is shown by the letter written by the Acting Secretary of the Interior to the Speaker of the House of Representatives on April 10, 1939, with which he submitted the draft of S. 2154 which became the act of 1939. In that letter the Acting Secretary pointed out that:

    "* * * the construction placed on the statutes mentioned (25 U.S.C. secs. 68 and 87) is particularly burdensome on employees of the Government possessing Indian blood. * * * the employees of Indian blood are often outstanding leaders in their respective communities and their leadership is greatly needed to further the interests of such organizations."
The letter went on to point out that legislation was needed to enable Indians to take part in the economic life of their tribe, by joining cooperative associations, borrowing money from tribal loan funds in order to extend, for instance a cattle enterprise, and to take advantage of all the other benefits flowing to the Indians either by membership in their particular tribe or "generally under any act of Congress."  The Acting Secretary was, of course, aware of the continuing need for protection of the Indian wards under the supervision of these employees, but he pointed out: "It is believed that such benefits can be extended to them under appropriate regulations without in any way interfering with their official duties."

    Thus it must be assumed to have been the intention of the Department at the time, and of Congress when passing that bill, that the limitations which precaution required should continue to be imposed on the dealings of Indian employees with the Indian wards should be left to the determination of  the Secretary rather than be enumerated in the act itself. That is the reason why the act was couched in such general language referring to "any benefit or benefits made available to the Indians generally or to the members of any particular tribe, under any act of Congress."  It would seem to be difficult to read an arbitrary restriction into the word "benefit." Surely the meaning of this term cannot be restricted to benefits flowing from tribal membership, such as a right to borrow from tribal Ian funds, or join cooperative associations, for these benefits are already granted by the last part of the proviso which speaks of "benefits by reason of their membership in Indian tribes, corporations, or cooperative associations organized by the Indians."  Therefore the word "benefits" in the earlier part of the proviso must mean something in addition to benefits  flowing from membership.

    Such general interpretation is also required by the nature of the act. The act of 1834 is a penal statute providing for fines and removal from office. Such statutes must be construed strictly in favor of the defendant. The act of 1939 constitutes a remedial statute and therefore should be construed very liberally in favor of the defendant. In such a broad interpretation the term "benefit" refers naturally to all regular commercial dealings which are initiated for the purpose of improving the position of the parties participating therein.

    A similar question of interpretation may arise with regard to the remainder of the clause: "made available to the Indians generally or to the members of any particular tribe, under any act of Congress." Here again a narrow interpretation might authorize only dealings expressly permitted by a special act of Congress while prohibiting dealings generally permissible under general acts. Whether such a narrow interpretation is justified or not, the instant transaction would be authorized in either case, for, in the instant case, a special act of Congress can be shown authorizing the transaction in question. Mr. Pearson intends to purchase the land to be conveyed to him and his wife by Mrs. John with funds borrowed from the Klamath Revolving Loan Fund. This Fund was set up by the act of August 28, 1937 (50 Stat. 872). Among the purposes for which these funds were to be used there was enumerated in the act the following:

"* * * loans may be made to enrolled Klamath


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DEPARTMENT OF THE INTERIOR

APRIL 10, 1942

Indians for industrial and agricultural assistance and the construction and improvement of homes (including the purchase of land and interests in land, * * * necessary to enable such Indians * * * to engage in farming, the livestock industry, or such other industrial or agricultural pursuits or avocations as will enable them to become self-supporting) * * *."

This would cover the instant case where Mr. Pearson desires to acquire land in order to extend his livestock enterprise. It should be added that today two-thirds of the Loan Fund have been obtained from the Klamath Judgment Fund, $300,000 of which were paid into the Loan Fund pursuant to section 2 of the act of August 7, 1939 (53 Stat. 1253, 25 U.S.C. sec. 542). The Klamath Judgment Fund results from a judgment rendered in favor of the Klamath Indians by the Court of Claims. The Fund was to compensate the Klamath Indians for land taken from them by the United States against wholly inadequate compensation. The House Report No. 1080 accompanying H.R. 2738 which became the Klamath Judgment Fund Act stated in part as follows:
    "It is felt * * * that the addition of $300,000 to the revolving loan fund of the tribe * * * will enable Indians * * * to protect the capital improvements that they have made."
    And in your memorandum to Secretary Ickes reporting on that bill and dated February 3, 1939, you explained:
    "The second item to consider is the tribal loan fund. * * *  The average loan of $384.91 is obviously too small to be effective in the rehabilitation of a family. Our experience with the loan fund established by the Indian Reorganization Act indicates that the average loan should be no less than $1,000."
It would seem from the foregoing that Congress and the Department intended that the funds made available to the Indians through the Klamath Loan Fund should be used by them principally for the purpose of becoming economically independent, of creating, extending and preserving capital improvements. The transaction here involved is clearly one of those contemplated by the Klamath Loan Fund Act and the Klamath Judgment Fund Act. Thus in the instant case it would appear that even under the narrow interpretation the ability to purchase this land with funds obtained from the Klamath Loan Fund constitutes a benefit made available under an act of Congress to the Indians of this particular tribe.

    It may be argued, it is true, that the benefit made available under the Klamath Loan Fund Act is the ability to borrow money from the Revolving Loan Fund and not the purchase of land. This, however, would hardly constitute a reasonable interpretation of that act. In view of the above quoted language of the act it would clearly appear that the final benefits contemplated by the act consist in the uses to which the sums borrowed from the Loan Fund Act are to be put. In other words, the act of borrowing from the Loan Fund is merely a means toward obtaining the real benefit contemplated by the act which, among others, consists in the purchase of land. If such purchase of land is the benefit, or one of the benefits, contemplated by the Loan Fund Act, then transactions with Indians are permissible where they are carried out in order to obtain the land, that is, the benefit contemplated by the act. It should be stressed in this connection that in many, if not in most cases, the maximum benefit can only be obtained by the Indian employee if he can purchase the land of other Indians situated on the reservation and near his own land. Thus, to restrict him to white-owned land would often be tantamount to depriving the Indian employee of the benefit contemplated by the Loan Fund Act which the act of June 19, 1939, was passed to safeguard for him.

    If, then, this transaction is permissible under the act when authorized by the Secretary, it becomes necessary that the Secretary provide for regulations which will carry out in detail the intent of Congress to protect the Indian wards from any
possibility of undue influence being exercised by Indian employees engaging in transactions with them. Action on the instant case will therefore have to be postponed until such regulations have been promulgated and complied with.

    Such regulations under the 1939 act may fall into two parts. The first would concern all those simple everyday transactions which need not in each case be submitted to the Secretary for individual consideration. This would comprise such transactions as the purchase from Indians of arts and crafts and other consumers' goods by employees of the Indian Service, whether Indian or white. The other part of the regulations would deal with the more complicated transactions between Indian employees and Indians which probably should be submitted for the Secretary's approval in each case. These regulations should provide for the
information to be submitted with the application for approval. In the instant case such information should concern the value of the land, an assur-
 



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OPINIONS OF THE SOLICITOR

APRIL 21, 1942

ance that the employee did not take advantage of my special knowledge obtained by reason of his office nor exercise any undue influence in obtaining the grantor's consent to the sale and especially to the sale at this price, an assurance that the price offered by the Indian employee is the best the grantor could obtain, and such other general information as will show that the transaction is (a) beneficial to the grantor and (b) indispensable to the grantee for the purpose of the maintenance and development of his enterprise.

    A proposed set of regulations has been prepared in this office and is attached for your consideration. When regulations have been approved and all the information required by them has been submitted in connection with the instant case, the deed and accompanying papers may be resubmitted to the Department for approval.

    There is also attached a file dealing with grazing permits covering allotted and tribal land on the Blackfeet Reservation which have been issued to Mr. Don Hagerty and his brother, Mr. W. W. Hagerty. This case should also be resubmitted to the Department as soon as the regulations have been approved and complied with.

                                                                                                                                                NATHAN R. MARGOLD,

Solicitor.


TITLE 25--INDIANS
Subchapter Y--TRADING WITH INDIANS
Part 276-LICENSED INDIAN TRADERS

    Sec. 276.5 (b) , Part 276,  LICENSED INDIAN TRADERS is amended to read as follows:

    Sec. 276.5 (b) UNITED STATES EMPLOYEES, INDIAN BLOOD. Indian employees of the United States
Government, of whatever degree of Indian blood, may be members in the same manner as other Indian members of the tribe not so employed and receive benefits by reason of their membership in such tribes, in corporations or cooperative associations, organized by and operated for Indians. Such Indian government employees may engage in all lawful transactions with Indians, Indian tribes and such corporations or cooperative associations. None of the transactions authorized herein may be entered into by such employees for the purpose of engaging directly or indirectly in the selling, releasing, trading, bartering or passing on in any other way for profit the objects, rights, services or property thus acquired. Nothing herein shall prevent in proper cases the disposition of any such property when such transaction cannot be considered as actually engaging in any of the businesses herein prohibited. All transactions authorized herein to be valid must be approved by the Secretary of the Interior.

    Sec. 276.5 (c) LEASES OR SALES RESTRICTED INDIAN LAND. Leases or sales of trust or restricted Indian land by or from Indian employees of the United States Government must be made on sealed bids unless the Commissioner of Indian Affairs waives this requirement on the basis of a full report showing (1) the need for the transaction, (2) the benefits accruing to both parties, and (3) that public bids are not feasible and could not be expected to bring a higher price than the proposed private transaction. An affidavit as follows shall accompany each proposed land transaction:

I, ----------------------, ------------------,
            (Name)                         (Title)
swear (or affirm) that I have not exercised any undue influence nor used any special knowledge received by reason of my office in obtaining the (grantor's, purchaser's, vendor's) consent to the instant transaction.

WHETHER THE MIGRATORY BIRD TREATY WAS
APPLICABLE TO HUNTING BY INDIANS UPON
THEIR RESERVATIONS

April 21, 1912.


 Memorandum for the Secretary:

    After careful personal consideration of the memorandum sent to you by Director Gabrielson of the Fish and Wildlife Service under date of March 26, I have been forced to conclude that he has little, if any, cause for complaint. I hope that upon second thought he will come to the same conclusion. Indeed, I believe that the course of events in the handling of this matter demonstrates that if there is ground for complaint at all, it is I, not Dr. Gabrielson who has the better reason to urge it.

    The question whether the Migratory Bird Treaty Act was applicable to hunting by Indians upon their reservations was first considered by this Department in 1934, in a case involving rights of the Swinomish Indians. On June 15, 1934, the Acting Solicitor rendered an opinion in this case holding that the act was applicable. (54 I.D. 517.) It was upon the basis of this opinion that it was assumed in the Department that the Migratory Bird Treaty Act should be enforced against the Indians.

    After the creation of the Fish and Wildlife Service, it entered into an arrangement with the Office of Indian Affairs, dated August 7, 1941, under which it assumed responsibility for prosecutions
 



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DEPARTMENT OF THE INTERIOR

APRIL 21, 1942

under the act. This arrangement was never routed through my office for review. The agreement provided for cooperation between the two bureaus in conservation matters of common interest, and to implement it there was created a Section on Indian Reservation Wildlife in the Wildlife Research Division of the Fish and Wildlife Service. This section has been headed by Mr. Clifford C. Preznall, who, I am informed, acts as a liaison officer in the Office of Indian Affairs. Paragraph 4 of the cooperative agreement of August 7, 1941, provided as follows:

"Infractions of the Migratory Bird Treaty Act, as amended, will continue to be handled by the Fish and Wildlife Service."
    This last provision was written into the agreement despite the fact that almost 5 months prior thereto, i.e., on March 13, 1941, the District Court for the Eastern District of Idaho had handed down a decision, United States v. Cutler, 37 Fed. Supp. 724, holding that the Migratory Bird Treaty Act was not applicable to hunting by Indians on their reservations. If, prior to this decision, the Fish and Wildlife Service could find in the opinion of the Acting Solicitor in 1934, justification for initiating prosecutions under the act without consulting my office in each or any particular case, surely after this decision by a Federal court contrary to that opinion, the interested bureaus should have taken the matter up with the Solicitor himself before instituting new prosecutions contrary to the court's opinion or even before continuing to press pending prosecutions which had all been initiated without my knowledge. Not only was my advice, as chief law officer of the Department not sought, but the interested bureaus proceeded, without consulting my office at all, to make an agreement expressly providing for the continuance of prosecutions, as heretofore. More than 8 months after the Cutler decision the Fish and Wildlife Service was still actively seeking to enforce the Migratory Bird Treaty Act without consultation with my office. On November 8, 1941, Assistant Commissioner Zimmerman of the Office of Indian Affairs wrote to Director Gabrielson to ask if he was planning to take an appeal from the decision in the Cutler case. Director Gabrielson wrote in reply on November 18, 1941, to Assistant Commissioner Zimmerman, as follows:
    "The question may again be raised in the State of Washington and the Government, in order to be in a position to take an appeal in the event of an adverse decision, has suggested that the United States Attorney seek to obtain indictments against four Indians charged with violating the Federal statute."
    The Fish and Wildlife Service had in fact already proceeded to arrange a series of criminal prosecutions for violation of the Migratory Bird Treaty Act by Indians of the Yakima Reservation. Again this action was taken without my knowledge or consent. But Judge Schwellenbach, before whom the cases came, expressed doubt concerning the applicability of the act, and requested the United States Attorney to ascertain the views of the Commissioner of Indian Affairs. It is important to realize the precise nature of this request. The Attorney General, to whom it was transmitted by the United States Attorney, in complying therewith, on October 14, 1941, wrote to you to obtain not "the views of this Department" but the views of the Commissioner of Indian Affairs on the question of law involved, and the Commissioner's reply came to me for review in the normal course of departmental procedure. I see no just cause for complaint on the part of the Fish and Wildlife Service because I gave the Indian Office the benefit of my views on the legal question without asking Dr. Gabrielson, a layman, whether or not he thought my opinion correct.

    My views were expressed in the attached memorandum dated February 10, 1942. Thereafter, on March 17, 1942, the Attorney General was advised by the Acting Assistant Secretary that "this Department takes the position that the Migratory Bird Treaty Act is not applicable to members of the Yakima Tribe of Indians hunting on Indian lands within the exterior boundaries of the Yakima Indian Reservation." It is true that this letter was not routed through Dr. Gabrielson. You should
note, however, that it was prepared by Mr. Clifford C. personal, who by virtue of his connection with the Fish and Wildlife Service, as well as the Indian Office, is presumably charged with representing the interests of both. I have now been informed that Mr. Preznall did attempt to route the letter of March 17 through Dr. Gabrielson but that somehow the routing slip became detached in the course of the movement of the file through the Indian Office. Whether in point of fact the views which I expressed to the Indian Office in my memorandum of February 10 were subsequently discussed by that office, or by the representative of the Fish and Wildlife Service in that office, with Director Gabrielson before final departmental action was taken, is a matter of which I have no special knowledge, and over which I could have exercised no control.

    Dr. Gabrielson's protest is directed against the "disposition" of the pending prosecutions without
 



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MAY 11, 1942

reference to the Fish and Wildlife Service.  The disposition of these cases is, of course for Judge Schwellenbach, and I am .informed that he has not yet ruled on the demurrers.  No purpose certainly would have been served in seeking to ascertain Director Gabrielson's opinion of law concerning the applicability of the act.  Nor was it necessary for me to ask him for enlightenment as to his views on the question of administrative policy, i.e., whether the validity of the decision in the Cutler case should be tested by an appeal in one of the pending cases.  It was unnecessary because the underlying papers in the file made it  clear that Dr. Gabrielson was unwilling to recognize the binding character Cutler case and  did want to have it tested in the Circuit Court of Appeals. But it was and is premature to consider the question of appeal. Indeed, no recommendation was even made to the Attorney General that the United States Attorney move to have the suits dismissed; and in any event consideration of the question whether a test appeal ought to be taken should wait until it has been determined whether, the suits will be dismissed and the necessity for an appeal actually exists. Certainly while the cases are pending in the District Court I could not do anything else than express my own opinion of the applicability of the act to Indians, especially when the judge
trying the cases was simply seeking such an opinion.

    In conclusion, I cannot but help expressing my regret that Director Gabrielson should have decided to trouble you with this matter before he had made an attempt at least to ascertain from me whether there was some justification for the seeming disregard of his views. I also cannot refrain from taking the opportunity of pointing out that if I were inclined to complain I could justly  lodge a protest against the long-standing attempts to enforce the Migratory Bird Treaty Act without consulting my office. After all, under Order No. 639, issued by you under date of June 9, 1933, it is my understanding that the responsibility for the legal work of this Department rests with the Solicitor's Office.
 

Solicitor.


AUTHORITY OF THE DEPARTMENT OF THE
INTERIOR TO REFUSE TO ISSUE TRUST PATENTS

M-31552                                                                                                                                                     May 11, 1942.

Memorandum for the Acting Assistant Secretary:

    On February 21, 1940, the Assistant Secretary approved the dismissal of a protest filed on behalf of the State of Utah against the allowance of Indian allotment applications 049537, 049435, and 049495 to 049537, inclusive, Salt Lake City series, for land on the public domain in San Jun County, Utah.  He likewise authorized the issuance of trust patents covering these applications.  On April 6, 1940, he vacated his former decision and directed the register of the Salt Lake district land office to hold a hearing on April 29, 1940, at which evidence might be taken to determine whether there was any legal objection to issuance of the patents on the contested allotments by reason of the existence of any prior agreement with respect to them. The hearing was held as directed.

    The transcript of record of that hearing together with the brief filed by the State of Utah in support of its protest and certain files of the Department have now been examined.

    In its present state, the record presents two questions for consideration:

    1. Whether the declaration in the act of March 1, 1933 (47 Stat. 418) that "no further allotment of land to Indians on the public domain shall be made in San Juan County, Utah" prevents the issuance of patents for the lands covered by the pending applications.

    2. Whether any agreement which may have been entered into between the representatives of the State of Utah and employees of this Department prior to the passage of that act, providing that applications for allotment on the public domain then pending in the local land office would not be approved, may be given effect.

    The history of these allotment applications and the action previously taken with reference to them is set out in some detail in the letter to register of the Salt Lake City land office, signed by the Commissioner of the General Land Office and approved by the Assistant Secretary on February 21, 1940.  However, certain important features of these applications which have a bearing on the legal questions presented were no discussed in this letter.

    The applications under consideration were made under the fourth section of the General Allotment Act of February 28, 1891 (26 Stat. 794), and the act of June 25, 1910 (36 Stat. 855), which provide:

    "That were any Indian entitled to allotment under existing laws shall make settlement upon any surveyed or unsurveyed land of the United States not otherwise appropriated, he or she shall be entitled, upon application to the local land office for the district in which the lands are located, to have




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the same allotted to him or her and to his or her children in manner as provided by law for allotments to Indians residing upon reservations, and such allotments to Indians on the, public domain as herein provided shall be made in such areas as the President may deem proper, not to exceed, however, forty acres of irrigable land or eighty acres of nonirrigable agricultural land or one hundred sixty acres of nonirrigable grazing land to any one Indian; and when such settlement is made upon unsurveyed lands the grant to such Indian shall be adjusted upon the survey of the lands so as to conform thereto, and patent shall be issued to them for such lands in the manner and with the restrictions provided in the act of which this is amendatory. * * *"

The applications were filed with the register of Salt Lake City, Utah, during the months of September and October, 1930, at a time when the land was public land of the United States not otherwise appropriated and subject to allotment to Indians under the above provisions. So far as the record before me discloses, 41 of the 45 applications meet the requirements of the act and the regulations of the Department in every respect. The applicants were Indians entitled to allotments on the public domain. The adult applicants had settled on the land applied for and the applications made on behalf of minors show that the parents or persons standing in loco parentis to the minors had settled on public land. Four of the applications made on behalf of minors, Salt Lake City 049505, 049506, 049517, and 049518 fail to show that the parents of such applicants have or have made application for public domain allotments. The register of the land office certified to allotment two of these applications but took no action whatsoever on the remaining applications, because on January 10, 1931, the Secretary of the Interior had sent the following telegram to the register:
    "In view of pending legislation to add large area of public land in southern Utah to Navajo Indian Reservation, you are hereby directed to suspend action on Indian allotment applications for lands in San Juan County, Utah, until further notice."
    In view of the passage of the act of March 1, 1933, it becomes necessary to determine whether it contains any inhibition against the making of further allotments on the public domain in San Juan County, Utah, which would prevent the allowance of applications pending on the date of its enactment.

    It should be pointed out at the outset that there is a fundamental difference between section 4 of the General Allotment Act and its preceding sections. Section 4 has always been considered a settlement or public land law, administered by the General Land Office, while the other allotment provisions of that and other acts have been deemed to relate to the disposition of lands already in Indian ownership. This fundamental difference is readily discernible from a reading of the various provisions of the act itself. Section 1 of the act authorizes the President, in his discretion, to cause allotments to be made on reservations created for Indian use whenever the reservation may be advantageously utilized for agricultural and grazing purposes while section 4 provides that Indians: entitled to allotment who shall make settlement on the public domain shall be entitled "upon application to the local land office to have the same allotted to them. As members of the tribe occupying a reservation, individual Indians had an interest in the lands to be allotted. The rights of. Indians settling on the public domain, stemmed from the act of settlement. This rule, made in the early days of the administration of section 4, has been consistently followed by the Department. In the case of Lacy v. Grondorf et al., 38 L.D. 553, involving fourth-section allotments, it was said:

    "This act was designed to afford to Indian settlers upon public lands the same privilege of entering such lands as white settlers. While allotments made under said section are necessarily on the theory that the allottees are Indians, yet they are not in the same situation as are allottees of tribal lands where rights flow from some specific act for the division of tribal property in which each member of the tribe has an inherent individual interest. Indian settlers under the above section are on practically the same footing as white settlers on the public lands. It has been held that section 4 of the act of February 8, 1887, is in its essential elements a settlement law, and that 'to make such act effective to accomplish the purposes in view, it was doubtless intended it should be administered so far as practicable like any other law based upon settlement.' Indian Lands--Allotments, 8 L.D. 647; Instructions, 32 L.D., 17. So that the practice, rules, and decisions governing white settlers on the public lands are, with certain reasonable modifications due to the habits, character, and dis-


1117

OPINIONS OF THE SOLICITOR

MAY 11, 1942

position of the race, equally applicable to Indian settlers."

    Since Congress was considering a proposal dealing with the public domain in 1933 when the provision now under consideration was enacted, it must be assumed that Congress knew that the administration of this enactment would be undertaken in accordance with the settled public land law.

    The history of the enactment affords no help in determining the intention of Congress. True, Congress had before it an agreement entered into on July 15, 1952, providing that:

    "In consideration of the proposed addition to the reservation contemplated by the above bill, it was agreed that no more fourth section Indian allotments or Indian homesteads under the 1884 Act should be made in San Juan County, Utah, outside of said boundary lines."
    But this agreement, like the act, is silent as to whether pending applications such as those under consideration were intended to be affected. The State, in its brief, contends that since the decisions of this Department and the courts confirm the rule that an allotment under section 4 of the 1887 act is not made until approved by the Department--and departmental approval was not given in the instant case prior to the 1933 act-- the Department may not give its approval now. While it is true that there are departmental decisions containing statements to the effect that no vested rights are acquired by the mere filing of an application for allotment, most of these decisions deal with allotments of Indian lands, the authority of Congress to change the conditions under which allotments may be made and the power of Congress to include reservations in patents issued in pursuance of selections. While it is not necessary to discuss all of the departmental decisions cited by the State in support of its position, I desire to point out that some of the decisions cited have no bearing on the question here under consideration and that in some instances the statements relied on by the State are mere dicta. Other cases cited and quoted from, instead of bearing out the State's contention, give direct support to your action in approving these allotment selections after the pass age of the 1933 act.

    In the case of Clark, Jr. v. Bennally et al. (on rehearing, 51 L.D. 98) , the question involved was the applicability to fourth section allotments of the acts of Congress reserving minerals in the lands of the United States. The acts of Congress reserving the minerals were enacted prior to the filing of the applications for fourth section allotments and in fact prior to settlement by the Indian applicants on the lands applied for. No question of vested rights was, therefore, involved and the Department properly ruled that until such rights had vested it was competent for Congress to impose such conditions to the taking of the lands as it saw fit. A statement, unnecessary to the decision, was made to the effect that an applicant under the fourth section does not obtain a vested right by merely filing an application. The correctness of this statement may in general be conceded. An application without more confers no right on anyone. But an application by an Indian qualified under the statute and supported by settlement as required by the statute confers upon the applicant an absolute right to allotment and patent. The statute declares that such an Indian "shall be entitled upon application to the local land office for the district in which the lands are located, to have the same allotted to him * * * in manner as provided by law for allotments to Indians residing upon reservations." In the case of qualified applicants who have met all of the statutory requirements, this mandatory language not only deprives the administrative officers charged with the duty of administering the act of all discretion but also charges them with the duty, which must be regarded as purely ministerial, of confirming the allotment by patent as in the case of reservation allotments.

    The State likewise quotes from the decision of the Department in the case of Raymond Bear Hill, 52 L.D. 688, as tending to show that equitable rights attach at an earlier stage in the case of reservation lands than when public lands are involved. While I fail to see how this argument can aid the State, it should be pointed out that immediately preceding the quotation from the decision contained in the State's brief, the following significant language bearing on the question here presented is found:

    "In connection with the foregoing, it may be said generally that it is well settled that a claimant to public land who has done all that is required under the law to perfect his claim, acquires a right against the Government and that his right to a legal title is to be determined as of that time. This rule is based on the theory that by virtue of his compliance with the requirements, he has an equitable title to the land; that in equity it is his and the Government holds it in trust for him, although no legal title passes until patent issues. Wyoming v. United States (255 U.S. 489); Payne v. New Mexico (255 U.S. 367); Payne




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DEPARTMENT OF THE INTERIOR

MAY 11, 1942

v. Central Pacific Railway Company (255 U.S. 228) * * *"

    While dealing with the allotment of reservation land, that decision contains language which, to my mind, is particularly applicable to the present situation:
    "The filing and recording of an allotment selection by a qualified Indian in the field, operates to segregate the land from other disposal. It gives him a prior or preference right to the land as an allotment which, upon approval by the Department, vests in him an equitable right to a patent. By the filing and recording of the Indian selection, the land is necessarily withdrawn from the mass of tribal lands, and the right of the Indian becomes in its nature individual property. In this sense, that is, so long as the allotment selection remains of record and no occasion arises to disturb it, the land is `disposed of' in contemplation of the act of March 3, 1927, as it is no longer subject to other disposal of reservation. This right of the Indian is but further confirmed by approval of the department of his allotment selection, which vests in him the right to a trust patent, denominated by the courts to be an instrument or memorandum in writing to show that for a designated period the United States will hold the land allotted in trust for the benefit of the allottees or his heirs. United States v. Rickert (188 U.S. 432, 436). Under any other view than that expressed, the position would be that land taken by an Indian in ailment does not become `disposed of' or segregated from tribal status until issuance of final or fee patent, which could not have been the intention of the law, especially in view of numerous departmental and court decisions to the contrary. The rule applicable in this matter is the same as that applying to any qualified person who performs all conditions prescribed by law to secure entry of lands open thereto the law considers that as done and virtually views the entry made. By-Yu-Tse-Milkin v. Smith (194 U.S. 401). The personal property or private rights of Indians to particular lands are within the protection guaranteed by the Constitution. Choate v. Trapp (224 U.S. 665). All laws affecting or claiming to affect the rights of Indians are liberally construed in their favor." (Emphasis supplied.)
    Another misleading quotation from the decisions of the Department is taken by the State from the case of Martha Read et al., 48 L.D. 567. There an Indian had made an allotment selection for himself and his minor children under the fourth section of the 1887 act. The right to selection in behalf of one of his minor children was denied because the child was shown to have been born after the date of the father's application. On appeal it was argued that the Indian child had a vested right to an allotment under the fourth section of the act of February 8, 1887, and that such a right to allotment became vested at the time of the child's birth. In rejecting this argument, the Department rightly held that "an Indian no more has a vested right to an allotment on the public domain than has a homesteader under the general homestead laws prior to the performance of certain required conditions." (Emphasis supplied.) In 41 of the 45 cases before us it is conclusively shown that all required conditions have been met.

    The State points to the decision of the Department in the case of Louisa Walters, 40 L.D. 196, as support for its contention that where an act is repealed without a clause saving previously filed applications. such applications must be rejected. That decision was placed on the ground that the rights of the applicant were still inchoate. It should be pointed out, however, that the act under consideration in that case was an act authorizing the Secretary to allot Indians on the public domain. The Indians were not required to settle on the land prior to their application for allotment or did not have to be entitled to allotment under existing law as is required by the fourth section of the General Allotment Act.

    Likewise, in the decision involving the claim of . C. N. Cotton, 12 L.D. 205. cited by the State as authority for the proposition that an act of Congress would be necessary to save an Indian's right by occupancy only where the land occupied was included by Congress in an Indian reservation, Cotton, the claimant, was not an Indian and was a mere squatter on the public domain without any color of title whatsoever.

    Practically all of the other cases and decisions of the Department relied on by the State contained distinguishing characteristics such as the discretion vested in the Secretary to allot (which the Secretary does not possess in the case of public land allotments) or the form of trust patents by reason of intervening acts of Congress (not here involved).

    Where the Secretary has no discretion in the matter, the Department has held, in the case of reservation lands as distinguished from the public domain, that subsequent legislation does not prevent the issuance of patents covering unapproved allotment selections.
 



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OPINIONS OF THE SOLICITOR

MAY 11, 1942

In the case of Mineral Reservations in Trust Patents for Allotments to Fort Peck and Uncompahgre Ute Indians, 53 I.D. 538, the question was whether land selected for allotment prior to the act of March 3, 1927 (44 Stat. 140) but unapproved on that date, was undisposed of within the meaning of the 1927 act, which reserved oil and gas in undisposed of land for the benefit of Indians having tribal rights on the Fort Peck Reservation. The Department rejected the argument that the words "undisposed of" import a final disposition of the land and held that a person holding such an unapproved selection may be regarded as having acquired at least a valid inceptive right prior to the passage of the act and that patent, without a mineral reservation, should issue covering such unapproved selection.

    The State points to the opinion of the Department regarding allotment selections on the Fort Belknap Indian Reservation (55 I.D. 295), in which the meaning of the world "allot" and its derivatives is discussed at some length. The question there was whether patents could issue covering approved and unapproved allotment selections on the Fort Belknap Reservation in view of the provisions of the first section of the act of June 18, 1934 (48 Stat. 984), providing that thereafter no land on Indian reservations should be allotted in severalty to any Indian. It was remarked in that case that

     "* * * the courts consider an 'allotment' as an assignment of the right of occupancy to an individual Indian; and that under allotment laws providing for patents an `allotment' is made when .the allottee becomes entitled to a patent as evidence of the allotment and promise of a fee title; and that, as will be shown more fully later, an allottee may become entitled to a patent even before the approval of his allotment selection wherever the applicable allotment law makes such approval mandatory after the showing of certain prescribed conditions, and such conditions have been shown."
    After pointing out that the Fort Belknap act made every enrollee conclusively entitled to an allotment, it was held that section 1 of the 1924 act did not forbid the approval of allotment selections which under the particular allotment act were equitably vested in the allottee.

    That opinion cites many cases wherein the courts have laid down the principle, particularly applicable to the present case, that where an Indian has done all that is necessary and that he can do to become entitled to land, and fails to attain the right through the negligence or misconduct of public officers, the courts will protect him in such right. Where the Indian claimant does all that is required of him, he acquires a right against the Government to have his title perfected. The date when it should have been perfected governs the existence of such a right.

    The State argues that the opinion involving the Fort Belknap allotments, supra, is limited to the facts of the case and further that such limitation has been recognized by the Department in its opinion involving the constitutional power of Congress to repeal existing legislation relating to the allotment of lands to the Mission Indians in California (56 I.D. 102). The opinion was expressed in the latter case that the proposed repeal was constitutional because the individual Mission Indians had not acquired rights under the legislation sought to be repealed, which provided that allotments should be made to the individual Indians when, in the discretion of the Secretary of the Interior, such Indians were so advanced in civilization as to be capable of owning and managing lands in severalty. There the Secretary had discretionary authority to make allotments and until he exercised his discretion no rights vested in the individual Indians. In distinguishing the legislation affecting the Mission Indians from the legislation affecting the Fort Belknap Indians, it was pointed out that the Fort Belknap opinion rested primarily on the premise that the inhibition against further allotments was not intended to prevent the completion of allotments. Under the Fort Belknap allotment act, adopted for the benefit of certain unallotted Indians whose rights to allotment be came fixed long prior to the passage of the prohibitory legislation, the allotments were mandatory. The opinion concludes:

    "* * * Neither that opinion nor any of the numerous decisions cited therein is authority for the proposition that an unapproved allotment selection confers an absolute property right in the selector to the extent of precluding Congress from forbidding that mode of disposition of tribal property."
    The unapproved allotment selections now under consideration are not tribal property but are on the public domain and no discretionary power is vested in the Secretary of the Interior to approve or disapprove the selections of the Indians, provided they have met the requirements of the 1887 act. As stated above, the principles followed in the Fort Belknap case are equally applicable to the present situation.

    Subsequent to the opinion of the Department
 



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DEPARTMENT OF THE INTERIOR

MAY 11, 1942

involving the Mission Indians, certain of these Indians holding unapproved allotment selections instituted suit for the purpose of compelling the United States to recognize their selections of lands as allotments and to compel the issuance to them of trust patents. St. Marie v. United States, 24 F. Supp. 237 (D.C.S.D. Cal. 1938), aff'd 108 F. (2d) 876 (C.C.A. 10th, 1940); cert. denied 61 Sup. Ct. 35. The court, after pointing out that the certificates of selection bore the legend "not valid unless approved by the Secretary of the Interior" and that such approval had never been given, reviewed the legislation affecting these Indians and determined that before a vested right accrued to the individual Indians their allotment selections must have been approved as provided in the act. The court said:

    "* * * And a study of the Act under which the selections were made leads to the conclusion that it was not the intention of the Congress, to make the act of selection the source of a vested right, of which the Indian could not be deprived by the failure of the Secretary to approve it. The cases in which the act of selection called for compulsory action, were under acts in which the Congress had directed certain things be done, or in which certificates of allotment were given the effect of muniments of title. * * *

    "However, where as here, discretion is lodged in the Secretary and the elector is not entitled to a patent until certain conditions precedent, dependent upon the action of  the Secretary, are complied with, he cannot assert any rights until he has shown compliance with them.

            *                                *                                *                                    *                                *

    "So here the Palm Springs Indians having acquired no vested right, and the power of the Secretary to withhold approval being discretionary, we cannot compel action that would give to the Indians the benefit of a right which they did not possess. * * *"

    The State has not pointed to any decision either of this Department or the courts, and I know of none, whereby a person who has done everything required of him under the law may be deprived of his rights by the mere failure or refusal of a Government official or employee to perform his duty. It has been established by a subsequent investigation that with the exception of the four applications mentioned above the parties making these applications had complied in every respect with the law. If the Secretary had not temporarily suspended action on the pending allotments by means of his telegram of January 10, 1931, these applications would long since have been approved and patents would have been issued. To hold that the act of March 1, 1933, prevents the patenting of the lands applied for would be to give to the act retrospective operation contrary to the familiar rule that a statute should not be construed to operate retrospectively or to affect rights existing prior to its passage unless the language is so clear as to admit of no other construction. That this particular act was not intended to be retroactive is clear from its language. The declaration is that no further allotments on the public domain in San Juan County shall be
made. This language obviously looks to the future and not to the past. It indicates a plain purpose on the part of Congress to prevent the initiation of new rights rather than to strike down or impair rights existing on the date of the enactment.

    All of the applications under consideration were filed long prior to March 1, 1933. It has been conclusively shown that 41 of the applicants had by that time complied with all statutory requirements. The fact that subsequent investigation was necessary to establish compliance with the statutory requirements is immaterial. Such investigation merely resulted in the ascertainment of facts existing at the time of the filing of the applications. With those facts established, the right to allotment, under the mandatory language of section 4 of the General Allotment Act, can no longer be denied. The United States now holds the title subject to the right which the Secretary of the Interior is obligated to recognize and confirm by the issuance of patent in the manner provided by Congress. As to the four applications filed on behalf of minors without the necessary showing that the applications are based upon valid applications or allotments of patents, I suggest that a further investigation be made. The need for this further investigation arises from the identity of family name between these applicants and the applicant under Salt Lake City 049501. If the necessary family connection is shown between these applicants, these four applications should be allowed, Otherwise they should be rejected.

    Disposing of my first question, it is my opinion that the inhibition against the making of further allotments on the public domain in San Juan County, Utah, has no application to applicants such as those under consideration whose rights to allotments were fully perfected prior to the enactment of that legislation. Indeed, if the statute should be interpreted to forbid the patenting of the lands applied for, a serious question of con-
 



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OPINIONS OF THE SOLICITOR

JUNE 4, 1942

stitutionality would be presented. Where a statute is susceptible of two interpretations, one of which might permit successful assault upon its constitutionality, the other interpretation should, of course, be chosen. See United States v. Delaware and Hud son Railroad Co., 213 U.S. 365, 407.

2.

    The State contends that, prior to the passage of the act enlarging the Navajo Reservation, certain officials and agents of the Office of Indian Affairs promised that if the proposed bill were enacted the particular applications then pending in the local land office would be rejected or canceled. The Office of Indian Affairs insists that no such promise was made and that the only promise regarding the land in San Juan County was that embodied in the agreement of July 15, 1932, set out above, which contains no reference to pending applications. I deem it unnecessary, however, for the purpose of disposing of the present applications, to decide whether or not any such agreement was concluded. No representative of this Department had any authority to make any disposition of these lands in any manner which would defeat the rights of these Indians. Cramer et al. v. United States, 261 U.S. 219, definitely establishes this principle. In that case it was held that lands occupied by individual Indians were excepted from a grant under which lands "reserved *  *  * or otherwise disposed of" were excepted. There the only rights which the Indians had were possessory rights, not recognized by any statute or other formal governmental action. The court held that such possessory rights were protected by the settled policy of the Government. Are the Indian applicants in the present case no less entitled to that protection where it is shown that their rights arose under a statute? The courts in the Cramer case in disposing of the contention that the Government was estopped by the action of its agents, said:
 

    "Neither is the Government estopped from maintaining this suit by reason of any act or declaration of its officers or agents. Since these Indians with the implied consent of the Government had acquired such rights of occupancy as entitled them to retain possession as against the defendants, no officer or agent of the Government had authority to deal with the land upon any other theory. The acceptance of leases for the land from the defendant company by agents of the Government was, under the circumstances, unauthorized and could not bind the Government; much less could it deprive the Indians of their rights. See and compare Lee v. Munroe & Thorn ton, 7 Cranch, 366; Whiteside v. United States, 93 U.S. 247, 257; Dubuque & Sioux City R.R. Co. v. Des Moines Valley R.R. Co., 109 U.S. 329, 336; Pine River Logging Co. v. United States, 186 U.S. 279, 291."
    The Supreme Court of the United States on December 8, 1941, reaffirmed this principle in United States v. Santa Fe Pacific R. Co., 62 Sup. Ct. 248.

    Even if the alleged agreement that the pending applications would not be allowed to proceed to patent were to be proved, I am of the opinion that this Department would be without authority to refuse to issue the patents for which applications have been made. It is well established that "the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit." Utah Power and Light Co. v. United States, 243 U.S. 389; United States v. City and County of San Francisco, 310 U.S. 16.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.


Approved: May 12, 1942.
W. C. MENDENHALL, Acting Assistant Secretary.

AUTHORITY OF THE SUPERINTENDENT OF
THE OSAGE AGENCY TO MAKE DISTRIBUTION
OF OSAGE PROPERTY IN ACCORDANCE WITH
ORDERS OF THE COUNTY COURTS OF OKLAHOMA

June 4, 1942.


 Memorandum for the Acting Assistant Secretary:

    The two attached cases have been presented for department approval by the Superintendent of the Osage Agency. Both request authorization to make distribution of Osage property in accordance with orders of the county courts of Oklahoma. Neither of these cases is accompanied by a report on the proceedings in the State court or a recommendation by the Special Attorney for the Osage Indians that distribution be made in accordance with the court decrees.

    On June 9, 1933, the Secretary, by Order No. 639, vested in me direct supervision of and responsibility for all legal work of the Department and its several bureaus and offices. On February 25 the Assistant Secretary approved a letter signed by me and concurred in by the Assistant Commissioner of Indian Affairs to Mr. G. B. Fulton, Spe-
 
 



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DEPARTMENT OF THE INTERIOR

JUNE 4, 1942

cial Attorney for the Osage Indians, wherein Mr.Fulton's duties and responsibilities were defined. It was stated therein that recommendations of the Superintendent involving the approval or disapproval of Osage wills and the payment of attorneys' fees and compensation of fiduciaries must be accompanied by a report by Mr. Fulton. It was also stated therein that, in accordance with existing practice in matters requiring departmental action, where Mr. Fulton had advised the Superintendent of his views on a matter, such opinion must be submitted to Washington together with the recommendation of the Superintendent for consideration. The existing practice was for the Superintendent to submit to the Special  Attorney for his recommendation all matters involving legal questions. This procedure resulted in my staff in Washington having the benefit of the Special Attorney's views on such matters and particularly the assurance of the Special Attorney that the proceedings in the State courts were regular in all respects.

    The Superintendent has apparently construed the instructions of February 25 to mean that his recommendations must be accompanied by those of the Special Attorney only in those instances specifically set out in that letter and in other instances when the Superintendent sees fit to request the advice of the Special Attorney. This was not the idea I intended to convey. That letter was written on the assumption that the existing practice of referring legal matters to the Special Attorney for recommendation would be followed. The present practice, if continued, would result in the loss of a great measure of the Special Attorney's effectiveness and in my office losing the benefit of the Special Attorney's recommendations in a great many cases wherein his views on the matter would be of great assistance to my Washington staff.

    Illustrative of this situation, the Superintendent recently presented a matter of some complexity involving, among other problems, the question of priority of various and sundry liens, including several judgment liens in favor of the United States. The only statement contained in the Superintendent's report concerning the particular question of priority of liens refers to an opinion expressed by the United States Attorney. The record contained no opinion by Mr. Fulton concerning any of the problems involved and the urgency of the matter precluded reference of the matter to him for his views.

    While the distribution proposed to be made the two cases attached appears to be proper, I should prefer to have the advice of the Special Attorney thereon.

I therefore request that you direct the Commissioner of Indian Affairs to instruct the Superintendent to refer all legal matters and particularly those involving the determination of heirs of intestate Osage Indians and all matters involving the distribution of Osage headrights to the Special Attorney for his recommendation. If you approve this suggestion the attached cases should be returned to the Osage Agency.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
June 8, 1942.

Approved: The matter of the estate of George Pettit, Osage Allottee No. 1669, and the matter of the estate of Lewis J. Whitney are returned to the Commissioner of Indian Affairs with instructions to require all legal matters involving Osage Indians or restricted Osage property requiring departmental approval to be accompanied by a report by the Special Attorney for the Osage Indians.

OSCAR L. CHAPMAN, Assistant Secretary.

POWER OF THE SECRETARY TO APPROVE
TRANSFER OF A TRACT OF LAND BELONGING
IN PART TO MINORS

                                                                                                                                                                July 8, 1942.
Memorandum for the Commissioner of Indian Affairs:

Attention: Mr. Woehlke.

    As you are aware, the Lizzie Cantrell Youngman matter has been long pending. Mrs. Youngman and her six children have inherited restricted land appraised at $1,200. The mother has a one-half interest in this property, while each of the six children has a one-twelfth interest. The mother owes a reimbursable obligation to the tribe of  $1,201.84, which, it is alleged, she incurred in order to make possible the support and maintenance of the family, and she now wishes to transfer the whole of this property to the tribe to discharge the debt. Four of the children, Otto, William, John and Wallace, are willing to consent to the transfer but two of the children, Archie and Betty, are minors. The value of the `minors' interests are approximately $100 apiece. The question is whether the Secretary should approve the transfer despite the existence of the interests of the minors.

    The loan agreement with Mrs. Youngman does not appear in the file, nor does it contain other
 
 



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OPINIONS OF THE SOLICITOR

JULY 9, 1942

 direct evidence that the money  loaned was in fact expended for the support and' maintenance of the Youngman family. These questions of fact should be verified but, assuming that they are, as alleged, there would be no obstacle to the proposed transfer.

    Two objections to the approval of the transfer have been raised in the course of the consideration of this matter. It has been thought that perhaps a court order was necessary to empower Lizzie Cantrell Youngman to transfer the property to the
tribe. Then it has been contended that even a court would not be able to sanction the transfer because there would be no "consideration" moving to the minors.

    If the Secretary has jurisdiction over the restricted land, as he has, then certainly it is unnecessary to apply to a court for the appointment of a guardian. The transfer may be made by the mother as the natural guardian. As the Supreme Court of the United States said in Henkel v. United States, 237 U.S. 43, 51-52:
 

"* * * The references to the regulations of the Interior Department, which are called to our attention by the Government, show that that Department has uniformly required the interest of minors to be represented by the natural guardian, which in this case was the mother. There is no court to which they could have applied for the judicial appointment of a guardian, and we see no reason to question the legality of the practice of the Department in this respect. A communication from the Acting Commissioner of Indian Affairs, attached to the Government's brief, declares that that office and the Interior Department have uniformly held that the natural guardian could execute vain relinquishments in behalf of minor children, and we see no reason why this authority should be questioned."
    It is also beside the point to question whether the minors would receive a "consideration" in the sense in which this term is understood in the law of contracts. Courts of equity, and in many States various other courts by statute, have exercised jurisdiction to determine whether guardians may transfer the real property of minors. The question considered in all such cases is not whether the minors will receive a "consideration" but whether they may be said to be "benefited" by the transfer (sec. 28 C.J. 1172-73, and 25 Am. Jur. 78-79, and numerous cases there cited). Even natural guardians have been permitted to convey the real property of minor children when they would otherwise have been unable to provide proper maintenance and support for them. It seems to me that the minor children certainly have derived a benefit from the loan in the past, and that they will be benefited in .the future by reason of the fact that their mother, who is responsible for their support, will be freed of the burden of debt, and can start anew. To say that the mother is in any event legally obligated to support her minor children is to take an extremely unrealistic and even pettifogging view. I think that there can be no doubt of the
Secretary's power to approve the transfer of this restricted land, and it would seem also to be a proper case for the exercise of his discretion.

                                                                                                                                                            FELIX S. COHEN.

Acting Solicitor.


CONSTRUCTION CHARGES--INTERPRETATION
OF RECLAMATION ACTS--CROW IRRIGATION
PROJECT

                                                                                                                                                            July 9, 1942.

Kenneth H. L. Simmons, Esq.,
District Counsel, Indian Irrigation Service,
Billings, Montana.

MY DEAR MR. SIMMONS:

    Careful thought has been given in this office to your letter of June 23, concerning Crow Irrigation construction charges, and to the letter of Mr. Burke enclosed therewith. I cannot follow the contention that the acts of May 31, 1939 (52 Stat. 792), and August 4, 1939 (53 Stat. 1187, 1198), permit the (granting of moratoria on construction charges on the Crow Irrigation project,) pending the enactment of remedial Legislation by Congress. The construction put upon the statutes by the Indian Office appears to me to be correct.

    The statement in the report of the Acting Secretary, dated June 9, 1939, relating to the act of August 4, 1939, that "the draft makes no provision for Indian reclamation projects" is supported by the language of section 2 of the act which defines a "project" as one authorized by the Reclamation Act of 1902, as amended, or one constructed by the United States Bureau of Reclamation. This conclusion is in no way invalidated by the further language of the report which was omitted from the Indian Office letter. This additional language, in my opinion, is only a description of the character of the act of May 31, 1939, and not a grant of authority. This act was undoubtedly one "which authorizes further relief to water users on United States and Indian reclamation projects." Section
 
 



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DEPARTMENT OF THE  INTERIOR

JULY 9, 1942

17(b) of the act of August 4, 1939, however, extended the authority of the Secretary to grant relief from any obligation to pay construction charges only when a modification of the obligation was not covered by sections 3 or 4 of the act. These two
sections, however, relate only to the modification of repayment contracts on projects under the jurisdiction of the Bureau of Reclamation. Neither section 3 nor 4 of the act, nor the act as a whole, deals with the Indian irrigation projects. Permanent provision had already been made for the adjustment of charges on non-Indian owned lands within Indian irrigation projects by the act of June 22, 1936 (49 Stat. 1803).

    Even if the proper construction of section 17 (b) of the act of August 4, 1939, were doubtful, there still would be no authority to grant moratoria to water users on the Crow Irrigation project under the act of May 31, 1939. Section 1 of the latter act permits the Secretary to grant extensions of payment of construction charges only when water users on a project "are unable, due to partial crop failure attributable to a water shortage or due to other causes beyond the control of the water users, to pay without great hardship or undue burden the full amount of the construction charges. * * * The exercise of the Secretary's power is thus clearly made dependent upon the existence of economic distress. The only reason for the deferment of charges that is alleged by the water users on the Crow Irrigation project is the pendency of legislation to adjust payments of construction charges.

    I am even less able to perceive how the water users on the Crow Irrigation project can assert that they are entitled to deferments as "a matter of good faith between the government and them." A charge of bad faith would be justified if a pledge has been made and broken. So far as I have been able to learn, however, not a word was said at the conferences in Washington concerning deferment during the consideration of the proposed legislation by Congress. It is true that it was understood that no refunds were to be made to any water user who paid more than the amount stipulated in the proposed legislation. Far from supporting any charge of bad faith, however, this understanding, if it is at all permissible to put any interpretation upon it beyond its literal terms, would negative any implication that payments were to be suspended until it was determined whether remedial legislation would be enacted. Moreover, it is not strictly accurate to speak of such an understanding as was reached as a "settlement." Only Congress can settle the matter. We can only make recommendations to Congress. The water users on the Crow Irrigation project can hardly have an equitable claim to a present suspension of valid
and existing obligations by mere reason of the fact that Congress is considering the advisability of lightening the burden of these obligations for the
future.

                                                                                                                                                        FELIX S. COHEN

Acting Solicitor.


UNCOLLECTED ASSESSMENTS AGAINST
LANDS WITHIN IRRIGATION PROJECTS--
LIENS

M-31684                                                                                                                                                        July 27, 1942

Synopsis of
Solicitor's Opinion

Re:

1. Whether the uncollected portions of the annual departmental assessments against lands in the Mission, Jocko Valley and Flathead Irrigation Districts of the Flathead Indian Irrigation Project, Montana, constitute a first lien in favor of the United States against the lands for which the payments are delinquent; and

2. Whether such delinquencies are subject to the interest penalty provided in 25 CFR 100.8.

Held:
1. The departmental assessments constitute a first lien in favor of the United States. The lien is clearly established by statute and by contract, and the assessments are the proper basis for the collection of the lien because they, rather than the expenditures, represent the true cost. to the United States and because all of the funds expended on the project are funds of the United States. The funds collected on the assessments become the funds of the United States and their use is an expenditure by the United States rather than by the landowners.

2. The imposition of the interest penalty provided by 25 CFR 100.8 was agreed to by contract and it is a necessary and proper means of enforcing collection of obligations due the United States.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

My opinion has been requested

"* * * as to whether the uncollected portions of the annual departmental assessments against
 



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OPINIONS OF THE SOLICITOR

JULY 27, 1942

lands of these Irrigation Districts (Mission, Jocko Valley and Flathead Irrigation Districts of the Flathead Indian Irrigation Project,  Montana] constitute a first lien in favor of the United States against the lands for which the payments are delinquent under the provisions of the Act of March 7, 1928 (45 Stat. 210); also whether such delinquencies are subject to the penalty as provided in CFR Title 25, Section 100.8."

    It is my opinion that the annual departmental assessments do constitute a first lien in favor of the United States against the lands for which the payments are delinquent and that such delinquencies are properly subject to the interest penalty provided by 25 CFR Section 100.8.

    The United States, through the Bureau of Reclamation of the Department of the Interior, originally built the ditches, flumes and other irrigation works that supplied the Flathead Irrigation Project, Montana. In 1924, the operation and maintenance of this irrigation system were transferred to the United States Indian Irrigation Service of the Department of the Interior. This Service has been responsible for several million dollars worth of construction on this project. The Flathead Indian Irrigation Project, Montana, now operates and maintains this irrigation system. Most of the individual non-Indian landowners served by this irrigation project organized themselves into districts under the laws of Montana. These are the Mission, Jocko Valley and Flathead districts. Other non-Indian owners deal directly with the project administration which assesses their individual lands and collects the individual assessments.

    The organized districts under statutory authority of the act of May 10, 1926 (44 Stat. 464) , the act of March 7, 1928 (45 Stat. 210) and other legislation 1 have made contracts with the United States of America acting by the Secretary of the Interior. Under these contracts, the project administration makes up a lump sum assessment against all lands within the district for construction and for operation and maintenance charges. The assessment of the district by the project is the act of the Secretary of the Interior. The contracts between the United States and each of the above mentioned districts provide:

"Operation and maintenance charges not consolidated with construction charges as hereinabove provided for shall be paid as now provided by law and by rules made or to be made thereunder by the Secretary of the Interior.  Operation and maintenance charges shall be determined and apportioned by the Secretary of the Interior, and in apportioning the same, the said Secretary, if he deems it wise, may make different charges for lands in different parts of the project . . . or for any part thereof."2
    After the United States has levied the assessment against the district, the district makes up the assessments against the individual landowners and adds thereto an amount to cover the cost of the administration of the district.  The contracts provide:
        "Each of the said Irrigation Districts promises and agrees that it will levy annual assessments against the lands within its borders, designated by the Secretary of the Interior as assessable as hereinabove provided, in such amounts that the total thereof shall not be less than the aggregate amount of the obligations due or estimated by the Secretary of the Interior or his agents to become due the United States, and from time to time as occasion may require will cause to be done whatever may be legally necessary to be done by it or its officers and agents in order to procure and insure in each year the due assessment, levy and collection of amount sufficient to discharge all obligations of this contract, and will comply promptly with all provisions of the laws of the State of Montana for the assessment, levy and collection of taxes necessary to carry out this contract." 3
The individual assessments are collected by the

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    1Act of April 23, 1904 (33 Stat. 302) ; May 18, 1916 (39 Stat. 140) : May 10, 1926 (44 Stat. 464, 466); January 12, 1927 (44 Stat. 945); March 7, 1928 (45 Stat. 212, 213); March 4, 1929 (45 Stat. 1574, 1639); May 14, 1930 (46 Stat.291); February 14, 1931 (46  Stat. 1127); March 4, 1931 (46 Stat. 1567); April 22, 1932 (47 Stat. 101); February 17, 1933 (47 Stat. 830) ; May 9, 1935 (49 Stat. 176, 187); June 18, 1940 (54 Stat. 420); June 28, 1941 (55 Stat. 318).

    2The original contracts (supplementary contracts are not cited in this opinion) between the United States and the irrigation districts as follows:

        Flathead Irrigation District contract dated May 12, 1928, approved November 24, 1928, found in Office of Indian Affairs file no. 294825--1921, part 4 Flathead file No. 377.

      Mission Irrigation contract dated March 7, 1931, approved November 24, 1928, found in Office of Indian Affairs file 29485-1921, part 9, Flathead file No. 377.

        Jocko Valley Irrigation District contract dated November 13, 1934, approved February 26, 1935 found in Office of Indian Affairs file 29485-1921, part 11, Flathead file No. 377.

        Citations for these contracts will hereafter be made as follows: (above quotation) Flathead contract, item 15, p. 16: Mission contract, item 19, p. 13; Jocko contract, item 26,p. 16.

  3Flathead contract, item 17. p. 17; Mission contract, item 21, p. 13; Jocko contract, item 28, p. 17.
 



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DEPARTMENT OF THE INTERIOR

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county in the same way that county taxes are collected.

     The assessments for operation and maintenance charges levied by the United States against these irrigation districts are made on the basis of estimates of cost determined well in advance of the irrigation season and according to the contracts must be paid in advance of each irrigation season.4

    Some time after the irrigation season is over the project is able to determine the actual amount spent in operating and maintaining the irrigation works for that season. If this amount is greater or less than the estimate upon which the assessments were based, an adjustment is made in the assessments for the following season or perhaps the adjustment is spread over several seasons. Over a period of time an attempt is made to keep assessments for operation and maintenance approximately equal to actual costs.

    There is no question but that the United States has a first lien by statute for construction, operation and maintenance costs. The act of May 10, 1926 (44 Stat. 465) provides:

". . . Provided further, That all construction, operation, and maintenance costs, except such construction costs on the Camas Division held and treated as a deferred obligation herein provided for, on this project shall be, and are hereby, made a first lien against all lands within the project, which lien upon any particular farm unit shall be released by the Secretary of the Interior after the total amount charged against such unit shall have been paid, and a recital of such lien shall be made in any instrument issued prior to such release by the said Secretary. The contracts executed by such district or districts shall recognize and acknowledge the existence of such lien:
. . ." (Italics supplied.)
The act of May 7, 1928 (45 Stat. 210) provides:
. . . Provided further, That the costs of the irrigation projects and of operating and maintaining such projects where reimbursement thereof is required by laws shall be apportioned on a per acre basis against the lands under the respective projects and shall be collected by the Secretary of the Interior as required by such law, and any unpaid charges outstanding against such lands shall constitute a first lien (thereon which shall be recited in any patent or instrument issued for such lands." (Italics supplied.)
    This statutory lien is further established by the provisions of the contracts between the United States and the irrigation districts which provide:
    ". . . All construction, operation and maintenance costs, except such construction costs on the Camas Division held and treated as a deferred obligation herein provided for, on said project, shall be and are hereby made a first lien against all lands within the project, which lien upon any particular farm unit shall be released by ,the Secretary of the Interior after the total amount charged against such unit shall have been paid, and a recital of such lien shall be made in any instrument issued prior to such release by the said Secretary. The said districts do hereby recognize and acknowledge the existence of such lien . . ." 5
The contracts also provide:
    "The United States retains in full force all obligations and liens of, against or upon all and any lands in said project whether contained in any of said Districts or not, and of and against the owners thereof for construction and operation and maintenance charges, which it has by virtue of any and all laws, contracts or agreements heretofore made, or otherwise, and retains and shall have the full right to enforce the same by shutting off water or otherwise as it shall see fit." 6
    Although it is clear that the United States has both a statutory and contract first lien for construction, operation and maintenance costs, the problem arises that if the United States attempts to foreclose its lien and collect its assessments, it is met with the contention that the assessments for operation and maintenance are not and can not be the basis of a lien since they are made up in advance of the irrigation season and are estimates of cost. The real question to be determined, however, in this opinion is whether the basis of the lien for operation and maintenance charges is the assessment made by the Secretary of the Interior pursuant to authority vested in him by Congress, which is an estimate of cost made annually in advance of each irrigation season, or whether the actual expenditures for such season which can only be determined definitely after the

__________

     4 Flathead contract, item 13, p. 13; Mission contract, item 15. p. 10; Jocko contract, item 19, p. 11.

      5Flathead contract, item 14, p. 14; Mission contract, item 16. p. 11; Jocko contract, item 20, p. 12.

      6Flathead contract, item 8, p. 7; Mission contract, item 10. p. 8; Jocko contract, item 14. p. 9.
 



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OPINIONS OF THE SOLICITOR

JULY 27, 1942

irrigation season is over are the true costs and therefore the basis of the lien of the United States.

    The annual order of the Secretary of the Interior fixing the assessments is the basis of the lien. The assessment of necessity is based on estimates of the cost of the operation and maintenance of the project for a particular year. The cost may include inventory, depreciation of machinery and equipment, and expenditure of money appropriated by Congress or authorized by Congress from collections from the water users. The assessment representing cost of operation and maintenance is not based solely on collections as indicated by the districts. In fact the Secretary's estimates are not dissimilar to the sums making up the county and state tax rolls. Where a county or state failed to collect all of the assessed taxes, so that their budgets could not be carried out, it would hardly be contended that the taxes were valid liens on the property taxed only to the extent of the actual expenditures by the county and state.

    In addition to the foregoing the contracts between the United States and the districts provide:

    "Each of the said Irrigation Districts promises and agrees that it will levy annual assessments . . . in such amounts that the total thereof shall not be less than the aggregate amount of the obligations due or estimated by the Secretary of the Interior or his agents to become due the United States . . ." 7 (Italics supplied.)
The contracts further provide:

    "Operation and maintenance charges not consolidated with construction charges as hereinabove provided for shall be paid as now provided by law and by rules made or to be made thereunder by the Secretary of the
Interior. . . ." 8

Although neither the statutes nor the contracts define "cost" the contracts clearly contemplate following the established practice and existing rules under which the amount levied as an assessment is to be estimated and paid for in advance of the irrigation season. The district therefore accepted  this practice. The contracts make no provision for any readjustment on the basis of expenditures. In fact, in one provision of the contracts noted on pages 4 and 5, above the term charges is used instead of costs, as though the words were interchangeable.

    The expenditures by the project for any fiscal year are limited by law to actual collections. The appropriation act of June 19, 1940 (54 Stat. 406,420) for the fiscal year ending June 30, 1941, is typical:

.  . . expenditures shall not exceed the aggregate receipts covered into the Treasury in accordance with section 4 of .the Permanent Appropriation Repeal Act, 1934; . . ."
    As has already been pointed out, expenditures do not necessarily represent costs for a particular year. If the collections are delinquent it may mean that some things that should have been done for a particular season may not be performed. The estimated assessments of necessity more nearly represent actual costs because they take into consideration depreciation on equipment and the use of inventories which may have been purchased in a prior year but not then carried into costs because the equipment or supplies were not actually used during the particular year when purchased. Furthermore, from season to season adjustments are made so the assessments over a period are equivalent to true costs.

    It is argued that the United States does not have a lien for operation and maintenance charges on the Flathead Irrigation project because the principal portion of the money for operation and maintenance comes from the collections from the land owners rather than from the United States Treasury. The United States operates the project. The collections received represent the payments of a debt due the United States for a service performed for all of the landowners of the project and any unpaid assessments are accordingly a proper basis for a lien in favor of the United States. The payment of these assessments when received become the funds of the United States and it is necessary before the project can spend them that the expenditure be authorized by appropriation. The Appropriation Act for the fiscal year ending June 30, 1941, act of June 18, 1941 (54 Stat. 406, 420) provides:

    "For operation and maintenance of the irrigation and power system of the Flathead Reservation, Montana, $7,000, reimbursable, together with $120,000 (operation and maintenance collections) and $80,000 (power revenues), from which amounts of $120,000 and $80,000, respectively, expenditures shall not exceed the aggregate receipts covered into the Treasury in accordance with section 4 of the


_________

  7Flathead contract, item 17, p. 17; Mission contract, item 21, p. 13; Jocko contract, item 28, p. 17.

    8Flathead contract, item 15, p. 16; Mission contract, item 19, p. 13; Jocko contract, item 26, p. 16.
 



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DEPARTMENT OF THE INTERIOR

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Permanent Appropriation Repeal Act, 1934; in all, $207,000."

    The Second question of the opinion remains. This is the question of the legality of the interest penalty provided for in 25 CFR 100.8, which states that:
"100.8. Penalty for nonpayment of assessment. All assessments duly authorized shall be paid on the due date to the properly designated officer of the Indian Irrigation Service at St. Ignatius, Montana, and on all such assessments not paid on the due date the irrigation district shall pay a penalty at the rate of six per centum per annum during the period of delinquency."
The contracts between the United States and the irrigation districts provide that the operation and maintenance charges should be paid as provided by law and by rules made and to be made there under by the Secretary of the Interior.9 At the time these contracts were executed the above regulation on a similar one was in force and effect and the parties to the contract therefore accepted such practice.

    Further, the contracts provide that the United States "shall have the full right to enforce [its liens and obligations] by shutting off water o otherwise as it shall see fit."10 (Italics supplied.) The contracts also provide specifically that the right to refuse to deliver water is not an exclusive remedy "and shall not in any manner hinder the United States from exercising any other remedy to enforce collection of any amount due" under the contracts.11

    The imposition of a 6 per cent interest charge against delinquent irrigation charge payments has been the regular administrative practice of the Indian Irrigation Service on this project and on all other projects for many years. One of the most effective methods of enforcing the payment of obligations to the United States is the imposition of an interest penalty on delinquent payments. This is made all the more necessary by the statutory provision that expenditures cannot exceed collections. Therefore, it seems that this provision has been agreed to by the districts and is a necessary measure for the proper operation of the project.

    The departmental decision of November 15,1921 (48 L.D. 475), is not applicable. It holds that the Secretary of the Interior did not have authority to impose an interest penalty upon land owners in the Flathead Reservation under authority of the acts of August 13, 1914 (38 Stat. 686), or February 14, 1920 (41 Stat. 408), The opinion was rendered before the Flathead irrigation system was transferred from the Reclamation Service to the Indian Irrigation Service. Most important, however, there was at that time no acceptance of the practice by contract between the United States and the landowners represented by their districts.
 

FELIX S. COHEN,
  Acting Solicitor.

 Approved: July 27, 1942.

OSCAR L. CHAPMAN, Assistant Secretary.
 
 

AUTHORITY OF DIRECTOR, FISH AND WILDLIFE
SERVICE--NATIONAL WILDLIFE REFUGES WITHIN
INDIAN RESERVATIONS


 
July 30, 1942.

 Memorandum for the Director, Fish and Wildlife Service.

        (Through the Commissioner of Indian Affairs.)

    The Commissioner of Indian Affairs in his memorandum of September 16, 1940 referred to me for consideration regulations prepared in your office to control fishing in the Nine-Pipe and Pablo National Wildlife Refuges, within the Flathead Indian Reservation in Montana, which regulations were being transmitted to the Secretary with a memorandum dated August 14, 1940, from the Acting Director of the Fish and Wildlife Service. The Commissioner of Indian Affairs expresses the view, in which I concur, that these regulations conflict with the fishing rights of the Indians within the reservation.

The proposed regulations are to be issued under authority of section 10 of the Migratory Bird Conservation Act, being the act of February 18, 1929 (45 Stat. 1224, 16 U.S.C.A. sec. 715). They would permit noncommercial fishing in the waters of both refuge areas in accordance with the regulations governing the administration of national wildlife refuges upon the condition that the fishing

_________

        9Flathead contract, item 15, p. 16; Mission contract, item 19, p. 13: Jocko contract, item 26, p. 16
      10Flathead contract, item 8, p. 7; Mission contract, item10, p. 8; Jocko contract, item 14, p. 9.
       11Flathead contract, item 19, p. 18; Mission contract, item23 p. 14; Jocko contract, item 30, p. 17.
 



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OPINIONS OF THE SOLICITOR

JULY 30, 1942

occur only during the prescribed open season and that persons fishing comply with the fishing laws and regulations of the State of Montana and obtain fishing licenses issued by the State of Montana and by the Flathead Indian Agency.

    The two wildlife refuges in question are within the Flathead Indian Reservation created by the treaty of July 16, 1855 (12 Stat. 975), for the exclusive use of the Indians settled thereon. Article III of that treaty guarantees to the Indians the exclusive right of taking fish in all the streams of the reservation. By the act of April 23, 1904 (33 Stat. 302) the United States assumed to act as trustee for the disposal of the lands of the reservation not needed for allotment. Then, by the acts of March 3, 1909 (35 Stat. 795), April 12, 1910 (36Stat. 296), June 25, 1910 (36 Stat. 858), and March 3, 1911 (36 Stat. 1066), Congress authorized the Secretary of the Interior to reserve from the lands available for disposal reservoir and power sites and made appropriations available for irrigation works on allotted and unallotted lands within the reservation. After the Flathead irrigation project was established under these acts, two of the reservoir sites, with the surrounding lands included within the Reclamation Service reservations, were set aside as bird refuges, subject to Reclamation Service use and to valid existing rights, by Executive Orders Nos. 3503 and 3504, of June 25, 1921. Since 1922 there has been negotiation for payment to the Indians for the reservoir reserves but the offers of the United States have been rejected by the tribe.

    On these facts the reservoir sites are, and have continuously been recognized to be, tribal land and part of the Flathead Indian Reservation. Under the decision in the case of Ash Sheep Co. v. United States, 252 U.S. 159, there is no doubt that the lands have remained Indian lands and that the tribe is entitled to the benefits arising from the use of the areas. Therefore, unless the rights of the Indians have been modified by Congress, the Indians retain the exclusive right to fish within these areas. Pioneer Packing Co. v. Winslow,159 Wash. 655, 294 Pac. 557; Sol. Op. M. 28107, June 30, 1936. In the exercise of these rights, the Indians are not subject to the fish and game laws of theState. United States v. Kagama, 118 U.S. 375; In re Blackbird, 109 Fed. 139; In re Lincoln, 129 Fed. 247; United States v. Hamilton, 233 Fed. 685; State v. Campbell, 53 Minn. 354, 55 N.W. 553; State v. Johnson, 249 N.W. 284, 289; Pioneer Packing Co. v. Winslow, supra; cf. Tulee v. State of Washington, 315 U.S. 681. Under the provisions of the Indian Reorganization Act of June 18, 1934(48 Stat. 984, 25 U.S.C. sec. 476), and the constitution of the Confederated Salish and Kootenai Tribes of the Flathead Reservation adopted thereunder, the tribes, through their tribal council, are given the power to promulgate and enforce regulations relating to the conservation and protection of wildlife. Article VI, section 1 (a), constitution and bylaws approved October 28, 1935.

    The proposed regulations do not appear to have been presented to the Flathead tribal council for consideration or approval. Moreover, the regulation propose to subject the Indians to the fishing laws of the State of Montana and to require the Indians as well as non-Indians to obtain licenses in conformity with the laws of the State. In these respects, the regulations are plainly in disregard of the rights of the Indians as established by the decisions cited above.

    The regulations cite as authority for their issuance section 10 of the Migratory Bird Conservation Act of February 18, 1929 (45 Stat. 1222, 16 U.S.C. sec. 715c), as amended, the administration of which act was transferred to the Secretary of the Interior on July 1, 1939 by Reorganization Plan No. II (53 Stat. 1431). This may have been appropriate under the ruling of this office in force at the time, the regulations were prepared(54 I.D. 617). but the Solicitor has since reconsidered the matter and has ruled that the Migratory Bird Conservation Act is without application to treaty reservations such as the Flathead Reservation. Solicitor's memorandum of February 10, 1942, to the Commissioner of Indian Affairs.

    The basic statutory authority for the establishment of bird refuges on these Indian lands does not clearly appear. If, as I assume to be the case, the Executive orders establishing  the refuges were issued under authority of the Migratory Bird Conservation Act, as amended and supplemented by subsequent acts (see 50 CFR Part II sec. 11.1) , a serious question as to the validity of the Executive orders arises. Under the Solicitor's ruling of February 10, 1942, none of these acts would be applicable and so far as I am advised no other statutory authority exists for the creation of such refuges on Indian lands.

    In the situation set forth above it seems to me that whatever regulations are promulgated for the regulation of fishing in the Nine-Pipe and Pablo reservoir areas should be prepared in cooperation with the Flathead Tribe. Under section 4 of the act for the protection and conservation of wildlife (March 10, 1934, 48 Stat. 402, 16 U.S.C. sec. 664), the Indian Office and the Fish and Wild life Service would be authorized to prepare regulations of this nature. Although there are no provisions in the act for the enforcement of the regulations, they could, after preparation and
 



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DEPARTMENT OF THE INTERIOR

JULY 30, 1942

cooperation with the tribe be promulgated by the tribe as its regulations and enforced in that way.
 

                                                                                                                                                    W.H. Flannery,
Acting Solicitor


VOLSTEAD ACT OF 1908--STATE LIENS FOR DRAINAGE
CHARGES ON PUBLIC AND INDIAN CEDED LANDS
IN MINNESOTA

M-30851                                                                                                                                                    August 12, 1942

Synopsis of
Solicitor's Opinion

Re:

1. Minnesota liens for drainages charges  imposed on public and Indian ceded lands in Minnesota under the Volstead Act of  May 20, 1908 (35 Stat. 169).

2. Certain Minnesota statutes enacted to aid distressed drainage districts by establishment  of State conservation projects on lands situated in said forfeited to the State for unredeemed drainage charges; requiring classification of the forfeited lands as agricultural or non agricultural; and directing disposition of agricultural lands at "forfeited" sales and reservation of nonagricultural  lands for State use in the conservation project.

3. Whether these statutes constitute legislature  authorization for certain administrative officers of the State to release liens on those drained public and Indian ceded lands which they classify as nonagricultural and therefore as not suitable for sale.

4. Conversely, whether the liens continue to be quick and to prevent withdrawal of these lands from homestead entry.

Held:
1. The Minnesota drainage relief statutes concerning which the Commissioner of the General Land Office has inquired neither waive the State's liens imposed on United States lands under the Volstead Act nor apply at all to these lands.

2. The State authorities erroneously regard the United States lands as forfeited to the State for nonpayment of she drainage charges.

3. The only form of disposition of public and Indian ceded lands to which the State and those claiming under it acquire rights under the Volstead Act is Volstead dispositions and Volstead patent.

4. The Executive order of February 5, 1935, and the departmental orders of September 19 and November 2, 1934, withdraw, respectively, the public and the Indian ceded lands here concerned from homestead entry and every other form of disposition under the public land laws subject only to valid rights to Volstead patent existing in the State of Minnesota and the qualified persons claiming under it.

5. Any previous contrary determination is hereby overruled.

The Honorable,
The Secretary of the Interior

My Dear Mr. Secretary:

    At the suggestion of the Commissioner of the General Land Office you have inquired my opinion as to whether in consequence of her passage of statutes the State of Minnesota can be considered to have authorized relinquishment of State liens for drainage charges on certain public and Indian ceded lands in Minnesota.  These lands the act of Congress of May 20, 1908 (35 Stat. 169), commonly known as the Volstead Act, declared subject to the State laws relating to the drainage of swamp or overflowed lands for agricultural purposes to the same extent and in the same manner as similar lands in private ownership, thus permitting the State to drain, assess and sell lands for delinquent charges.

    The lien-burdened lands in question, commonly described as "drainage homestead lands," are extensive numbering about 231,537 acres. Of these, 97,265 acres have been offered at tax judgment sales for unpaid drainage charges and, purchasers failing, are said to have been bid in by the State. The remaining 134,272 acres, while not reported as having been offered for sale, have nevertheless been assessed and therefore are likewise subject to Volstead liens.

     These lands are found in nine counties in north Minnesota,-Beltrami, Clearwater, Koochiching, Lake of the Woods, Marshall, Pennington, Polk, Red Lake and Roseau, possibly in some in some others as well. But most of them lie in Beltrami, Koochiching and Lake of the Woods. By far the part of the acreage consists of Indian ceded lands. Under the statutes of cession 1 all lands

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    1The Nelson Act of January 14. 1889 (25 Stat. 642); the Morris Act of February 20, 1904 (33 Stat. 46, 48).


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