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OPINIONS OF THE SOLICITOR

DECEMBER 24, 1942

sions contained in various lease forms under which leases now in force have been issued.

    These questions will be taken up in order:

    1. Is advance royalty required as a minimum payment under the following lease forms when the leasehold is producing oil or gas?

    (a) Lease form A approved April 20, 1908 (amended February 6, 1911 and June 29, 1911), used by the Five Civilized Tribes Indian Agency prior to 1925.

    (b) Lease form 5-154h, used prior to 1925 by Indian agencies other than the Five Civilized Tribes.

    (c) Lease form 5-154h, adopted December 24, 1924, and used by all Indian agencies in Oklahoma (except Osage) from 1925 to 1933.

    For convenience in answering the foregoing questions the lease forms involved will be referred to as forms (a), (b) and (c). Forms (a) and (b) provide for a period of 10 years and as long thereafter as oil and gas shall be found in paying quantities, a royalty on production of one-eighth of the gross proceeds of all crude oil extracted and a flat royalty of $300 per annum for each gas producing well. Form (c) provides for a period of 10 years and extensions beyond that period on certain conditions, one of which is the production of oil and gas in paying quantities, and also provides for a royalty of one-eighth of the proceeds or values of the oil and gas produced. All three forms contain what is known as a drill or pay clause, i.e., that a well must be drilled or rental paid in lieu thereof at the rate of $1 per acre per annum. In addition, all three leases contain a provision, upon which the answers to the above questions turn, requiring the payment of what is termed "advance royalties." In forms (a) and (b) this provision is couched in practically identical terms. In form (b) it reads (sec. 3):
    "Until a producing well is completed on said premises the lessee shall pay, or cause to be paid, to the officer in charge, for the use and benefit of the lessor, as advanced royalty, from the date of the approval of this lease, fifteen cents per acre per annum, in advance, for the first and second years; thirty cents per acre per annum, in advance, for the third and fourth years; seventy-five cents per acre in advance, for the fifth year; and one dollar per acre per annum, in advance, for each succeeding year of the term of this lease; it being understood and agreed that such sums of money so paid shall be a credit on stipulated royalties for the year for which the payment of advanced royalty is made, and the lessee hereby agree that said advance royalty when paid shall not be refunded to the lessee because of any subsequent surrender or cancellation thereof; nor shall the lessee be relieved from ________________ obligation to pay said advance royalty annually when it becomes due, by reason of any subsequent surrender or cancellation of this lease." l
    Form (c) was adopted in 1924 as a uniform type of lease designed to replace forms (a) and (b) and all other forms used in leasing allotted Indian lands for oil and gas mining purposes.2 Section 5, which deals with the payment of advance royalties, reads:
    "Commencing from the date of the approval of this lease, and continuing until lessee shall have drilled a producing well on said land, lessee shall pay to the officer in charge, for lessor, as advance royalty, 15 cents per acre per annum in advance for the first and second years, 30 cents per acre per annum in advance for the third and fourth years, 75 cents per acre per annum in advance for the fifth year, and $1 per acre per annum in advance for each succeeding year during the term of this lease: Provided, That should the producing well or wells on said land cease to produce during the fixed term hereof, then at the next succeeding advance royalty paying day, lessee shall resume the payment of advance royalty. . . ."
    Lease forms (a) and (b) provide in section 8 that the lease shall be subject to the regulations of the Secretary of the Interior then or thereafter in force, which regulations were to become "a part and condition" of the lease save that "No regulations made after the approval of this lease, affecting either the length of term of oil and gas leases, the rates of royalty or payment thereunder, or the assignment of leases, shall operate to affect the terms and conditions of this lease." Lease form (c) provides that during the period of supervision by the Secretary of the Interior, the lease "shall be subject to the supervisory regulations of said Secretary." With the record is a statement pre-

___________
    1 Form (a) differs slightly from form (b) in providing that the advance royalties shall be credited on the stipulated royalties without stating that the credit is for the year for which the payment of advance royalty is made.

    2 See the letter signed by the Commissioner of Indian Affairs November 21, 1942, approved by the Assistant Secretary of the Interior December 24, 1924.
 



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pared by the Geological Survey which contains excerpts from the applicable regulations in force during the periods here involved. An examination of this statement discloses that she regulations in force prior to the adoption of form (c) in 1924 follow closely the language of the lease forms then in force. They contained no specific provision indicating that the advance royalty payments were to be regarded as minimum payments. However, after the adoption of a uniform type of lease in 1924, the general regulations prescribed under the act of March 3, 1909 (35 Stat. 781, 783, 25 U.S.C. sec. 396), were, on July 7, 1925, revised to conform to the provisions of the now lease form. On the same date, special regulations governing leases on lands allotted to Indians of the Five Civilized Tribes, prescribed under the act of May 27, 1908 (35 Stat. 312), were revised to conform to the new lease form. The revised regulations provided in both cases that the advance royalties were to be paid "until the royalties on production exceed the advance royalty." 3 Subsequent revisions of the regulations were to the same general effect.4 The object of these later regulations undoubtedly was to fix the advance royalty as the minimum to be paid so that the leases would be obligated to continue to make the advance royalty payments notwithstanding the completion of a producing well at least until the time that the production royalties exceeded the advance payment.

    In my opinion, the revised regulations are without application to pre-existing leases executed on forms (a) and (b). Under the plain language of these lease forms advance royalties are not required to be paid under producing leases. The language is (sec. 3, above) that the advance payments are to be made "until a producing well has been completed." This is a definite time limitation operating to determine the obligation of the lessee to make she payment immediately upon the completion of a producing well. Termination of the obligation is not conditioned on the capacity of the well nor upon the amount in royalties it may produce so long as is does produce royalties. In oil and gas leases, the word "royalty" is used to denote the interest or share of the lessor in oil and gas production.5 Accordingly, the term "advance royalty" implies in itself that the payments so characterized were to be made only in advance of production. Thereafter, the obligation of the lessee would be met by payment of the stipulated royalties on production. Under a provision in lease form (a) all advance royalties paid up to the date of completion of a producing well are refunded to the lessee by the process of crediting the advance payments on the production royalties.6 Under lease form (b) the credit is allowed only for the year for which the payment of advance royalty is made. Both provisions forcibly illustrate that payment of the advance royalties was to cease with production. The conclusion is inescapable that this type of lease imposed no obligation upon the lessee to make any payment of advance royalty after a producing well has been completed on the leased premises. While the lease provides that subsequent regulations shall become a part of the lease (sec. 8), this provision is subject to the express limitation that no such regulations made after approval of the lease shall affect its terms with respect to the rates of royalty or payment thereof. The later revised regulations as applied to these leases, which leases contain no requirement for the payment of advance royalties after a producing well has been completed, would clearly have the forbidden effect.

    The administrative practice and interpretation with respect to lease forms (a) and (b) are in general accord with the foregoing view. By letter dated November 25, 1940, the Director of the Geological Survey reports that the oil and gas supervisor has not computed or charged advance royalties as a minimum requirement against the accounts of producing leases issued on form (a), and that this accords with the practice followed by the Five Civilized Tribes Agency. An Indian Office letter dated July 18, approved July 22, 1924, holds that advance royalties under this type of lease are not be considered minimum royalties. Another Indian Office letter, dated May 27, approved May 31, 1935, took the position that under a lease on form (b) the advance royalty payments represented minimums and that they should be made in advance as required until the production royalties exceeded the advance royalties. In three subsequent letters, however, approved on the respective dates of July 26, 1934, December 31, 1935, and July 15, 1936, the Department refrained from collecting advance royalties above production royalties on the ground that the liability of the lessee for this amount was too doubtful.

    With respect to lease form (c), the situation is quite different. Since the adoption of that form, the Department has consistently ruled that advance royalty payments required by section 5 are

____________
    3 Section 14, Regulations Governing the Leasing of Restricted Allotted Indian Lands for Mining Purposes, approved July 7, 1925; section 33, Regulations Governing Leasing and Removal of Restrictions on Land of Members of the Five Civilized Tribes, approved July 7. 1925.

    4 25 CFR 183.19 and 189.14.

    5 Summers, Oil and Gas, sections 571 572.

   6 See telegram November 11, 1942, from Superintendent Landman to Secretary of the Interior.
 



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minimum payments to be continued until the royalties on production exceed the advance royalties. See Indian Office letters approved June 6, 1932, and July 26, 1934, and The Texas Company, decided September 6, 1941, 57 I.D. ----. These
decisions are in my opinion correct.

    As hereinbefore pointed out the revised regulations plainly fix the advance royalty as the minimum to be paid so that the lessee is obligated to make the advance royalty payment until such time as the production royalties exceed the advance payment. It is true that the lease form provides (sec. 12) that the provisions of the lease embody all of the material and substantial terms and conditions of the contract between the parties and that during the period supervision is retained by the Secretary of the Interior the lease shall be subject to the supervisory regulations of the Secretary. But the revised regulations were in full force and effect at the time all leases on this form were executed and approved. As pointed out in the decision in the case of the Texas Company, supra, these regulations were prescribed under authority of Congress and have the force and effect of law. Accordingly, they must be deemed to be a part of all leases thereafter executed to the same extent as if written therein. The declaration in section 12 thus cannot be regarded as intended to exclude the application of such pre-existing regulations but rather to preclude the making of any change in the material and substantial terms and conditions of the lease by regulations adopted subsequent to the execution and approval of the lease.

    It should be pointed out, moreover, that the lease and regulations are not in conflict. Section 5 of the lease provides for the payment of advance royalty until the lessee shall have drilled "a producing well" on the premises. The regulations define and explain what is meant by "producing well." Reading the lease and regulations together, as they must be, it becomes plain that a well, to be producing within the contemplation of section 5, must produce in quantities sufficient to return to the lessors in stipulated royalties an income in excess of the advance royalty. At that time and at that time only may the lessee discontinue the payment of advance royalty.

    Questions 1 (a) and 1 (b) are answered in the negative. Question 1 (c) is answered in the affirmative.

    2. If the answer to questions 1 (a), 1 (b), or 1 (c) is in the affirmative, is the requirement.

    (a) Applicable both to the fixed and subsequent periods during which the lease is continued in force by production; or

    (b) Limited only to the fixed (or 10-year) term, and

    (c) Are such payments to be resumed at any time if production on the lease terminates?

    As I have answered questions 1 (a) and 1 (b) in the negative, it is necessary to consider questions 2 (a) and 2 (b) only under lease form (c). I have already concluded that under section 5 of this form the term "producing well" means a well producing in such quantities that the production royalties exceed the advance royalty. After such a well has been established, advance royalty payments are no longer required either during the fixed or subsequent periods of the lease because the obligation of the lessee is met by the payment of production royalties. As a well producing in quantities insufficient to return production royalties in excess of advance royalty is not a producing well within the meaning of section 5 of the lease, the advance royalty payments must be continued under that section "during the term of the lease." The term of the lease as used in the quoted provision plainly includes the fixed term of 10 years and any extension of that term beyond that period by fulfillment of the conditions specified in the habendum clause of the lease (sec. 2). My answer to questions 2 (a) and 2 (b) accordingly is that the advance royalty payment is required as a minimum both during the fixed and subsequent periods of the lease until such time as the lessee shall have drilled a well producing in quantities sufficient to return to the lessors an income in stipulated royalties in excess of the advance royalty.

    Question 2 (c) applies to all three types of leases and will be answered accordingly. This question, which deals with the resumption of advance royalty payments after production on the lease terminates, is answered by the provisions of the respective leases. Lease forms (a) and (b) do not provide for the resumption of advance royalty payments. The regulation, subsequently adopted, in so far as they purport to require that advance royalty payments be resumed, would run afoul of the provision in section 8 of these forms that no regulation made after the date of the lease shall affect the terms of the lease with respect to rates of royalty or payments thereunder.

    As to form (c), specific provision is made in section 5 for the resumption of the payment of advance royalties when the producing well or wells cease to produce. This provision is applicable in terms only during the fixed period. Cessation of production after the fixed term would, of course, terminate the lease unless other conditions speci-
 



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DEPARTMENT OF THE INTERIOR

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fied in the habendum clause (sec. 2) for extension of the lease beyond the fixed period are met.

    3. Are advance royalties under section 5 of lease issued on Form 5-154 required on a non-producing lease which is being maintained in force and effect by payment of non-utilized gas well rental under section 4 of such lease.
    This question, it appears, has arisen in connection with a lease on form (c) held by the LeFlore County Gas and Electric Company on 420 acres of land allotted to Nellie Jones, a full-blood Choctaw Indian. The lease was approved on September 19, 1927. Accordingly, its 10-year term expired September 18, 1937. The company drilled one well on the lease capable of producing a small quantity of gas. No gas has been produced from the well. Commencing in 1954 and continuing until 1940 the company has paid each year in advance $100 as rental for the retention of gas-producing privileges in the non-utilized well. The payments were made under section 4 of the lease and, the company contends, such payments were made in conformity with an understanding had with officials of the Five Civilized Tribes Agency that the payment of $100 per annum satisfied all obligations of the lessee under the lease. On June 22, 1940, the Assistant Superintendent of the Five Civilized Tribes Agency made demand on the company for payment of $1,920 representing the advance royalty for six years commencing in 1934 at $1 per acre per annum (the rate specified in the lease for the sixth and succeeding years of the lease term) less the rental payments of $100 per annum which the lessee had made for retention of gas-producing privileges in the non-utilized well. After a hearing had been accorded the company on this demand, the Assistant Superintendent declined to vacate his demand for additional payments. The company appealed. The brief and argument on appeal set forth three grounds: First, that the decision is contrary to and in the face of the plain provisions of the lease; second, that the ruling of the Superintendent will discourage development of minerals; and, third, that the ruling is inequitable and unjust because the company was led to believe that the payment of $100 per year was all that would be required. The second and third grounds are pleas for administrative relief rather than arguments in support of the legal rights of the company under the lease. I shall, therefore, address myself only to the first ground.

    Section 5 of this form of lease (form (c)) requires, as we have seen, that advance royalties be paid until the lessee shall have drilled a producing well on the leased land. Section 4, after providing for a royalty of 12 1/2 percent of the value of the gas in the field where produced, contains this further provision:

    ". . . Failure on the part of the lessee to use a gas-producing well which cannot profitably be utilized at the rate herein named shall not work a forfeiture of this lease so far as it relates to mining oil, but if the lessee desires to retain his gas-producing privileges he shall pay a rental of $100 per annum in advance, calculated from the date of the discovery of gas on each gas-producing well, the gas from which is not marketed nor utilized other than for operations under this lease . . ." (Emphasis supplied.)
    Where the only well drilled on the premises is a non-utilized gas well on which the lessee is paying the gas rental of $100 per annum for the retention of gas-producing privileges, the question is whether the condition that would terminate the lessee`s obligation to make advance royalty payments has been met. To meet this condition such a non-utilized gas well must be held to be a producing gas well within the meaning of section 5. A non-utilized gas well is not in my opinion such a producing well. Section 5 plainly contemplates actual production of either oil or gas on which the stipulated royalties of 12 1/2 percent are paid. In other words, the well must produce either oil or gas in paying quantities. This is plainly indicated by the requirement in section 5 that the advance royalties be credited on the stipulated royalties for the year for which the payment of the advance royalty is made. The payment made on a non-utilized gas well is in no sense a royalty on production. It is a rental exacted for the privilege of retaining gas-producing privileges. The tender of such a payment is in itself an admission that the well is not producing in paying quantities (Sol. Op. April 19, 1934, 54 I.D. 422, 425). As the lease contains no provisions for crediting advance royalties on rental payments, the rental of $100 on such a well is required not in lieu of, but in addition to, the advance royalty payments required by section 5.

    The demand of the Assistant Superintendent of the Five Tribes Agency covers advance royalty payments for three years of the fixed 10-year period of the lease and subsequent years down to the date of demand during which subsequent period the lease was continued in force by the payment of a non-utilized gas well rental of $100 per
 



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annum.7 Since paragraph 4 refers to the payment on a non-utilized well as a rental, the words "gas royalties" in the habendum clause are obviously mistakenly used for "gas rentals." Under the provisions of the lease the lessee's obligation to make the advance royalty payments is not confined to the fixed term of 10 years. In the absence of actual production returning stipulated royalties in excess of the advance royalty, the payments are required to be made throughout the "term of the lease." As already stated in the answers to questions 2 (a) and 2(b), this plainly embraces the fixed term of 10 years and any extension of that term by operation of the habendum clause. In urging a contrary interpretation, the LeFlore County Gas and Electric Company places reliance on the provision in section 5 to the effect that "should the producing well or wells on said land cease to produce during the fixed term hereof, then at the next succeeding advance royalty paying day, lessee shall resume the payment of advance royalty." This provision, however, deals only with the resumption of advance royalty payments when production, which originally resulted in the discontinuance of the payments, ceases. It is without application to a lease such as that here involved which has at no time produced oil or gas in paying quantities.

    Question 3 is accordingly answered in the affirmative. However, since the advance royalty payments are required in addition to the rental for a non-utilized gas well, the demand of the Assistant Superintendent on the LeFlore County Gas and Electric Company should be revised to cover the entire amount of the advance royalties during the period included in the demand.

    4. The Commissioner of Indian Affairs has also submitted a question concerning the apportionment of advance royalty payments as between assignor and assignee where after the expiration of the fixed term an oil and gas lease executed on lease form (c) was assigned in the middle of a lease year. This question can only present itself where the lease is being maintained by production. Where, as appears to be the case here, such production was sufficient to produce stipulated royalties in excess of the advance royalties, the obligation to make the latter payment terminated under section 5 of the lease. The provision in that section for the resumption of advance royalty payments upon the cessation of production applies in terms only to the fixed period of 10 years. After the fixed term has expired, neither section 5 nor any other section of the lease requires the lessee to resume the payment of advance royalty when production ceases or when it declines to the extent that production royalties are less than the advance royalties. The question of apportionment of advance royalties as between the assignor and assignee of such a lease cannot, therefore, arise.

                                                                                                                                            WARNER W. GARDNER,

Solicitor.
Approved: December 24, 1942.
OSCAR L. CHAPMAN, Assistant Secretary.

JURISDICTION-HUNTING AND FISHING ON THE
WIND RIVER RESERVATION

M-31480                                                                                                                                            February 12, 1943.

Synopsis of
Solicitor's Opinion

Re:

Jurisdiction to regulate hunting and fishing on the diminished and ceded portions of the Wind River Reservation, with particular reference to Bull and Ray Lakes on the diminished portion of the reservation and Ocean Lake on the ceded portion of the reservation.
Held:
(1) That the tribal councils may regulate hunting and fishing on the diminished portion of the reservation by Indians as well as non-Indians, and in particular that they may regulate fishing on Bull and Ray Lakes on the diminished portion of the reservation.

(2) That the State may regulate hunting and fishing on the ceded portion of the reservation, including fishing in Ocean Lake, except that the tribal councils may regulate hunting and fishing on such areas thereof as may be restored to tribal ownership pursuant to the provisions of the Shoshone Judgment Act (53 Stat. 1128; 25 U.S.C. secs. 571-77).

(3) That the requirement of State licenses to hunt or fish on the ceded portion of the reservation may not, however, be made a means of raising revenue.

(4) That section 216, 25 U.S.C., is applicable to the restored lands but that it may be invoked only against non-Indians who hunt upon the lands without a license.

_____________
  7 The habendum clause (sec. 2) provides, inter alia, that the lease shall continue in force as much longer after the 10-year period as the "gas royalties for wells capable of producing gas in paying quantities, but not utilized are paid, as provided in paragraph 4 hereof."
 



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DEPARTMENT OF THE INTERIOR

FEBRUARY 12, 1943

The Honorable,
The Secretary of the Interior.

My DEAR MR. SECRETARY:

    You have submitted to me a number of questions relating to the regulation of hunting and fishing on the Wind River Reservation in Wyoming. These questions have arisen as a result of the adoption by the Shoshone and Arapahoe Tribal Councils of regulations governing fishing on Bull Lake and Ray Lake, which are both within the diminished portion of the reservation, as well as on Ocean Lake, which is on the ceded portion of the reservation. These tribal regulations, apart from the measures of conservation which they embody, provide for the issuance of free permits to the enrolled members of the tribes and their immediate families but require all other persons to pay for tribal permits in addition to securing proper State licenses.

    Following the adoption of these regulations, the Wyoming Game and Fish Commission requested this Department "to clarify and determine the exact status" of that Commission "with reference to the control of all the wild life and fish on what is known as the ceded portion of the Shoshone Reservation." The Commission states that it has, for a number of years, protected and restored a number of game species on the ceded portion of the reservation, but that, as the result of the recent purchases by .the Shoshone Indians of certain tracts of land within that area with tribal funds made available for the purpose by the act of July 27, 1939, known as the Shoshone Judgment Act (53 Stat. 1128, 25 U.S.C. secs. 571-577), confusion exists as to where jurisdiction lies to control hunting and fishing therein. While the Commission's request is limited to the status of the ceded portion of the reservation, its orders have nevertheless contained regulations governing fishing on Bull Lake and Ray Lake which are within the diminished portion of the reservation.

    After the reservation area, as established by the treaty of July 3, 1868 (15 Stat. 673), had been diminished by the act of March 3, 1905 (33 Stat. 1016), the Wyoming Game and Fish Commission appears also to have assumed full control over big game on the ceded lands. I am informed that during this whole period the entire area has been officially closed under State regulations except that open seasons were authorized in 1935-36. I am also informed that little hunting was done by Indians on the ceded lands until 1939. Since then, however, there has been a slight increase in Indian hunting activity.

    1. I shall first deal with the simpler questions, which are whether the tribal councils have authority to regulate hunting and fishing on the diminished portion of the reservation. I need say little to demonstrate the validity of the general proposition that Indians may hunt and fish on their reservations without conforming to State conservation laws. Insofar as the Indians are concerned State jurisdiction is excluded. It has been so decided by State as well as Federal courts. State v. Cooney, 80 N.W. 696 (Minn.); Cohen v. Gould, 225 N.W. 435 (Minn.); State v. Cloud, 228 N.W. 611 (Minn.); State v. Johnson, 249 N.W. 284 (Wisc.); Pioneer Packing Co. v. Winslow, 294 Pac. 557 (Wash.); United States v. Sturgeon, Fed. Cas. 16413, 6 Sawy. 29 (D.C.D. Nev.); In re Blackbird, 109 Fed. 139 (D.C.W.D. Wisc.); In re Lincoln, 129 Fed. 247 (D.C.N.D. Cal.); United States ex rel. Lynn v. Hamilton, 233 Fed. 685 (D.C.W.D.N.Y.). Indeed it has been said that the power of the State to apply its conservation laws to Indians on an Indian reservation is excluded by the mere fact that it is a reservation validly created under Federal authority. The treaty of July 3, 1868, which created the Wind River Reservation, contained no express recognition of hunting or fishing rights, but no such provision is necessary. The Indians retain such rights by the very nature of the grant. Such was the implication in United States v. Winans, 198 U.S. 371, 381, where the Supreme Court commented that the right of the Indians to fish was "not much less necessary to the existence of the Indians than the atmosphere they breathed."

    However, in all the reported cases the precise question involved has been the power of the State to punish Indians for hunting or fishing on their reservations, while the question now also presented to me is the power of the Indian tribes to regulate hunting and fishing on the reservation by non-Indians. However, this power too would seem to be undoubted. It is only an exercise of the well-established right of tribal sovereignty, as well as an exercise of the power of dominion which any owner has over his property. As the court pointed out in United States v. Sturgeon, supra: "It is plain that nothing of value to the Indians will be left of their reservation if all the whites who choose may resort there to fish." The court therefore held that white men who go upon the reservation to fish do so "contrary to law." An Indian tribe has also an inherent power to exclude trespassers upon its lands (Buster v. Wright, 135 Fed. 947 (C.C.A. 8th); 1 Op. Atty. Gen. 465, 17 Op. Atty. Gen. 134, 18 Op. Atty. Gen. 34), as well as power to exclude nonmembers from the reservation, and by virtue of this power it may impose license fees for the privilege of entering its domain,
 



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or remaining thereon. The tribal councils may therefore require that nonmembers of the tribe, including resident landowners, shall secure reservation fishing permits and observe conservation rules.

    The penalties imposed for violation of the fishing regulations are the forfeiture of the permit, and the confiscation of the fishing equipment in the possession of the violator at the time of his detection. The violator is also declared to be "subject to prosecution for trespass on Indian lands." The provision for forfeiture and confiscation is valid. James H. Hamilton v. United States, 42 Ct. Cl. 282. The threat of prosecution for trespass must, however, be regarded as partly vain. There is no State statute, nor any general Federal statute authorizing criminal prosecution for trespass on Indian lands. 25 U.S.C. sec. 216 imposes a penalty only for unlawful hunting on Indian lands.

    2. It remains to be considered whether there are any special circumstances affecting the rights of the tribal councils to regulate fishing in the waters of Bull and Ray Lakes. I am informed that Bull Lake was originally a natural lake entirely on tribal lands, but it has been somewhat modified through the construction of a dam at its lower end by the Bureau of Reclamation pursuant to the act of March 14, 1940 (54 Stat. 49). This act however, only granted easements to the United States over tribal and allotted lands of the Wind River Reservation for a dam and reservoir purposes in connection with the development of the Riverton Reclamation project. Not only did this act not extinguish the Indian title, but section 3 thereof expressly provided: "The easements herein granted shall not interfere with the use by the Indians of the Wind River or Shoshone Indian Reservation of the lands herein dealt with and the waters of Bull Lake Creek and the reservoir insofar as the use by the Indians shall not be inconsistent with the use of said lands for reservoir purposes." This express reservation of existing rights confirms the conclusion that Indian control of the lake for fishing purposes was not affected in any way. I am not informed, and I have no reason to suppose that fishing activities will be "inconsistent with the use of said lands for reservoir purposes." At most only the lower end of the lake has been modified by the Reclamation project.

    3. I proceed to consider the special status of Ray Lake, which should more properly be called Ray Lake Reservoir, since it is a wholly artificial rather than a natural lake. Construed by the Indian Irrigation Service as an Indian irrigation project, it is now part of the Wind River Irrigation Project, and irrigates non-Indian as well as Indian lands. Although not a natural lake, a depression existed once at the site of the present Ray Lake Reservoir forming pot holes which collected some water after the spring runoffs or heavy storms but these shallow pools would soon dry up and never contained any fish. Some time between 1910 and 1913 there was built at the site of the present dam a small dike, together with a lateral from the Ray main canal to supply water to the site. Enlargement of this small original development was authorized in 1923 and the work was completed in 1925. The Interior Department Appropriation Act of 1922 (act of May 24, 1922, 42 Stat. 552, 580), appropriated $10,000 for the acquisition of the necessary lands or rights-of-way. The present Ray Lake Reservoir, which is entirely within the reservation, covers an area of approximately 500 acres when filled but the whole project embraces an area of about 700 acres. Of these, 380 acres were unallotted tribal lands withdrawn as a reservoir reserve by departmental action on April 7, 1921; 21.4 acres, acquired with the funds appropriated consisted of two parcels of fee-patented land in non-Indian ownership; the remaining acres were Indian trust allotments similarly acquired from their Indian owners. The whole project includes not only the lake or reservoir bed but the dam and spillway, and there is a variable border around the lake that is above the high water elevation. The dam and control works are located on one of the fee-patented tracts. Other parts of the fee-patented lands are above the freeboard line of the reservoir at high water, and also do not therefore form part of the bed of Ray Lake Reservoir.

    Since Ray Lake was not in existence when the reservation was created, the tribe can hardly assert an implied right of an aboriginal character to fish in its waters. It is also true that the United States has acquired title to a portion of the bed of the lake by purchasing the Indian trust allotments, and the two small parcels of fee-patented land, a few acres of which may form part of the bed of the lake although this is not entirely clear from the submitted facts. Nevertheless, it is apparent from what was done that it must have been the intention to dedicate all lands constituting the Ray Lake Reservoir Project to Indian use, and thus to restore them to reservation status.1

    Ray Lake lies wholly within the exterior boundaries of the diminished portion of the reservation. The reason that a State may not apply its conservation laws to Indians on Indian reservations validly created under Federal authority is that

___________
  1 That an Indian reservation is merely land set apart for tribal use and occupancy, and that no particular formalities need be observed in making such a disposition, see the discussion, infra, in connection with the ceded lands.
 



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DEPARTMENT OF THE INTERIOR

FEBRUARY 12, 1943

the creation of such a reservation is the plainest and most unmistakable manifestation of the exclusive guardianship of the Federal Government over the Indians. It cannot therefore be readily assumed that the Federal Government by undertaking irrigation work upon the reservation intended either to enlarge State jurisdiction in any way, or to interfere with the normal exercise of tribal sovereignty. After all, Ray Lake was constructed as an Indian irrigation project within the exterior boundaries of the reservation. In making the appropriation for the project, Congress manifested no intention to interfere with the jurisdictional status quo. So far as concerns the tribal land, the intention could not have been more than to acquire a flowage easement. When the tribe was deprived of the agricultural use of these lands, it must have been intended to confer upon it the only use to which the lands might thereafter be put, and the new use was to be deemed a substitute for the old. As for the lands formerly in private ownership, the correspondence relating to their acquisition shows that when the project was first being considered the intention was simply to acquire a right-of-way over these lands, and the titles were acquired only because they would have had no other value. The fact that these lands were almost entirely Indian lands over which the State had never acquired jurisdiction makes it easier to assume that all of them were to be devoted to Indian use. In the case of Bull Lake, the modification of which was authorized many years later, Congress did, it is true, expressly provide that the rights of the Indians should not be affected 2 but this provision can most properly be deemed to have been made only out of an abundance of caution.

    This conclusion is not invalidated by the fact that the lands abutting upon the lake bed are for the most part in non-Indian private ownership. Since Ray Lake is not a natural but an artificial lake, and the title to the bed of the lake is not in the State, the abutting non-Indian proprietors cannot assert a right to fish in the lake waters.3 It may be that such proprietors can prevent access to the lake by others but this neither enlarges the right of the State to regulate nor diminishes the right of the tribes. Whoever does choose to fish in the lake, whether an abutting proprietor, a non-Indian outsider, or a member of the tribes, must abide by the regulations adopted by the tribal councils.

    4. There remains to be considered the more difficult question of the asserted rights of the tribal councils to regulate hunting and fishing on the ceded lands.

    a. At the time of the admission of the State of Wyoming into the Union the lands comprising what have come to be known as the "diminished" and "ceded" portions of the Shoshone or Wind River Reservation were held by the Indians with all the rights which use and occupancy could give. By the treaty of July 2, 1863 (18 Stat. 685), the United States expressly recognized the rights of the Shoshone to these lands. By the treaty of July 3, 1868 (15 Stat. 673), however, it was agreed between the Shoshone Indians and the United States that only the "district of country" definitely described therein, which included both the "diminished" and "ceded" portions of the present reservation, should be "set apart for the absolute and undisturbed use and occupation of the Indians," and that the Indians would make this reservation their permanent home. But again on March 3, 1905, after the admission of the State of Wyoming into the Union, Congress ratified the agreement with the Indians by which they ceded a portion of their lands ao the United States for disposition in the manner specified therein (33 Stat. 1016). There can be no doubt that a trust was thereby impressed upon the ceded lands, for the agreement expressly provided that "the United States shall act as trustee for said Indians to dispose of said lands and to expand for said Indians and pay over to them the proceeds received from the sale thereof only as received, as herein provided." See Ash Sheep Co. v. United States, 252 U.S. 159. In 1915, however, the sale of the ceded lands was postponed indefinitely. On September 27, 1918, moreover, certain lands within the ceded portion of the reservation were withdrawn from public entry under the provisions of section 3 of the act of June 17, 1902 (32 Stat. 388), known as the Reclamation Act.

    Article IV of the treaty expressly reserved to the Indians the right "to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts." So long as the lands ceded under the act of March 3, 1905, remained vacant, these, too, might be regarded as "unoccupied lands." But in Ward v. Race Horse, 163 U.S. 504, the Supreme Court of the United States held that the right granted in Article IV of the treaty of July 3, 1868, to hunt on the occupied lands of the United States was by its very nature terminated by the admission of the State of Wyoming into the Union upon an equality with all other States. It is necessary, however, to consider whether the

____________
  2 Section 3 of the act of March 14, 1940, supra.

  3 As indicated above, the United States acquired by purchase all of the lands constituting the bed of Ray Lake except the unallotted tribal lands.
 



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Indians retained hunting or fishing rights on the ceded lands free from State regulation by virtue of the trust character of the lands.

    The extent of State criminal jurisdiction over ceded Indian lands held in trust by the United States has long been uncertain. The leading case on Indian ceded lands, Ash Sheep Co. v. United States, supra, was not technically a criminal proceeding but a suit under section 2117 of the Revised Statutes by which a penalty was imposed for pasturing horses, mules, or cattle "on any land belonging to any Indian or Indian tribe." The court held .that because they were ceded in trust the lands remained "Indian lands" within the meaning of the statute, and that the Indians were entitled to the amount of the penalty. The court reasoned that since "any benefits which might be derived from the use of the lands would belong to the beneficiaries and not to the trustee," they "did not become 'Public lands' in the sense of being subject to sale, or other disposition, under the general land laws." (p. 166.) The court thus reaffirmed its earlier declarations to the same effect in Minnesota v. Hitchcock, 185 U.S. 373, and United States v. Mille Lac Band of Chippewa Indians in the State of Minnesota, 229 U.S. 498. See also 19 Op. Atty. Gen. 117. In consequence of these decisions this Department has always held that Indian lands ceded in trust are "Indian lands," in the sense that the Indians have an equitable interest in the proceeds derived from their disposition, and "public lands" in the sense that they are subject to disposition under the public land laws although only in limited ways and upon certain conditions. (56 I.D. 330.)

    In a number of State cases involving the question of the power of a State to apply its conservation laws to Indians on lands ceded by them outright rather than in trust so that they were in no sense Indian lands, the jurisdiction of the State has been upheld except when, as in State v. Cloud, supra, the game violation was committed by the Indian on an allotment held in trust for him by the United States on the ceded portion of the reservation, State v. Morrin, 117 N.W. 1006 (Wisc.); People v. Chosa, 233 N.W. 205 (Mich.); and State v. La Barge, 291 N.W. 299 (Wisc.). These decisions were based upon the authority of such cases as United States v. Winans, 198 U.S. 371, and Kennedy v. Becker, 241 U.S. 556, involving treaty rights to fish on ceded lands. While these cases are distinguishable,4 they necessarily assumed that a reserved treaty right to hunt or fish on non-Indian land was a right of property rather than of sovereignty. In, the Winans case, the court declared that the existence of the treaty right did not "restrain the State unreasonably, if at all, in the regulation of the right." In the recent case of Tulee v. State of Washington, 315 U.S. 681, while the court denied the power of the State to require Indians to obtain a State license before they could exercise a reserved treaty right of fishing on non-Indian lands, it pointed out that "the treaty leaves the State with power to impose on Indians, equally with others . . . restrictions of a purely regulatory nature . . ."

    If the existence of a treaty right to hunt on non-Indian lands is insufficient to manifest an exclusive interest in the United States, it may well be asked whether there is any reason of policy for denying State jurisdiction on lands ceded in trust under an agreement containing no express reservation of hunting or fishing rights, but which are nevertheless constituted "Indian" lands as a result of the agreement. The fact that such lands are also in a sense "public" lands complicates the question. To avoid confusion of thought it will be best to examine it in terms of the realities of the situation rather than in terms of this Janus-faced concept.

    When lands have been ceded by the Indians under an agreement contemplating the sale of the lands to non-Indian settlers with the proviso that the proceeds derived from the sale of the lands shall be held for or paid to the Indians, it is apparent that the latter still have certain property rights in the lands. They are the beneficial owners of the lands, and to protect their rights a trust is impressed upon the lands themselves. It would be difficult to deduce from such an agreement, however, that they intended to reserve any rights of sovereignty over such lands. Since the lands are to be sold, they could not intend to make their homes upon them, nor to employ them as game preserves ao the exclusion of any white settlers. The right of occupancy, as well as the title would be in the Federal Government, for a trustee has the right to possession as well as the legal title. If the Indians intended to reserve any rights which were not implied in the terms of the trust itself, it would have been easy to set them forth in the agreement. Indeed, in the case of the earlier land cessions, when the Indians ceded their lands outright, thy frequently made an express reservation of the right to hunt or fish on the ceded lands. No such express reservation however, is to be found in the act of March 3, 1905. I must, therefore, conclude that when the Indians agreed to the sale of their lands they necessarily surrendered rights of sovereignty over them.

__________
    In the Winans case the interference with the treaty fishing right was by private persons while in Kennedy v. Becker the cession was to Robert Morris, a private individual, rather than to the United States In both cases the court said that by virtue of the treaty the Indians acquired an easement but that this was subject to State regulation.
 



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    b. But it is still necessary to determine whether the United States had any such interest in the ceded lands that the State was barred from exercising its police power over them. Although the tribal councils no longer could regulate hunting and fishing on the ceded lands, such a power, it might be argued, was vested in the Secretary of the Interior as conservator of the public domain.

    There is no doubt, however, that the State can enforce its conservation laws on public lands. The Federal Government, to be sure, if necessary to protect its interests in such lands may disregard State conservation laws but in the absence of an overriding Federal interest, they remain applicable. Although it has been held that, under authority conferred by statute, Federal administrative officers could proceed to exterminate deer committing depredations in a national forest despite inhibitions of state conservation laws, it is implicit in this decision that the State conservation laws would normally have governed (Hunt v. United States, 278 U.S. 96). Federal jurisdiction over game in a national forest was based on an express cession of State jurisdiction in Chalk v. United States, 114 F. (2d) 207 (C.C.A., 4th). As said by Mr. Justice Brandeis in Omaechevarria v. Idaho, 246 U.S. 343, 346:

    ". . . The police power of the State extends over the federal public domain, at least when there is no legislation by Congress on the subject . . ." 5
    The crucial question in determining the applicability of State conservation laws to ceded Indian lands is whether the exercise of this jurisdiction will interfere with or embarrass the Federal Government in the execution of the purpose for which it holds the lands. Even if State jurisdiction over such lands be conceded, still it does not extend, as the court said in Utah Power & Light Co. v. United States, 243 U.S. 389, 404:
    ". . . to any matter that is not consistent with full power in the United States to protect its lands, to control their use and to prescribe in what manner others may acquire rights in them. . ."
See also Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525; Arlington Hotel Company v. Fant, 278 U.S. 439; Surplus Trading Company v. Cook, 281 U.S. 647; James v. Dravo Contracting Co., 302 U.S. 134; Stewart & Co. v. Sadrakula, 309 U.S. 94. The general rule was specifically applied to an Indian reservation in the Surplus Trading Company case.

    I fail to perceive, however, any overriding Federal interest which would justify regulation by the Secretary of the Interior of hunting and fishing on the ceded lands. Such lands, to be sure, are "public lands" in a qualified sense, but this qualification extends only to the manner of disposition of the ceded lands and the payment of the proceeds derived from their sale. Since the Indians in ceding their lands for disposition to white settlers terminated the sovereignty of the tribe over them, and the Federal Government in acquiring title to the lands acquired only such jurisdiction as would enable it to discharge the terms of the trust, I must conclude that the police power of the State attached to the ceded lands at the moment of cession. As conservator of the public domain, the Secretary of the Interior could not interfere with the exercise of the State Police power, and there was nothing in the nature of the cession which required that the Secretary should have any greater power over the ceded lands than he could exercise over public lands in general.

    This conclusion is in no way modified by the fact that when admitted into the Union the State of Wyoming by accepting the Enabling Act disclaimed "all right and title . . . to all lands lying within said limits owned or held by any Indian or Indian tribes," and promised that until the title to such lands had been extinguished by the United States, they should remain "subject to the disposition of the United States" and "under the absolute jurisdiction and control of the Congress of the United States." This language furnishes no sure guide to the power of the State over the ceded lands. The exercise of the police power of a State does not depend on "title" any more than the jurisdiction of the United States depends upon title (United States v. Thomas, 151 U.S. 577), but rests upon the sovereignty of the State. There would, moreover, also be the question whether ceded lands may be said to be "owned or held by any Indian or Indian tribes" since the legal title at least is in the United States. Wyoming also has a general statute authorizing the United States to acquire lands in the State "by purchase, condemnation or otherwise" for governmental purposes and ceding jurisdiction to the United States over the lands thus acquired, but it is doubtful, particularly in view of the rule that such cessions of jurisdiction by a State are to be strictly con-

___________
  5 See also H. R. Fields, "Jurisdiction Over Nationally Owned Areas and National Parks," 24 California Law Review 573-79; F. W. Laurent, "Federal Areas Within Exterior Boundaries of States," 17 Tennessee Law Review 328-54; M. N. Orfield. "extent of Federal Jurisdiction Over Wildlife," 16 Nebraska Law Bulletin 164-71.
 



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strued,6 that the statute would be held applicable to Indian lands ceded to the United States in trust. In the Six Cos. case an almost identical statute was held inapplicable to a withdrawal of public lands in connection with the Boulder Canyon project.

    I must add, however, one qualification to the conclusion that the State may regulate hunting and fishing on the ceded lands. The decision in Ash Sheep Co. v. United States, supra, requires that in the absence of any congressional direction to the contrary all proceeds of ceded lands go to the Indians who ceded the lands. In this case this rule was even applied to a cash penalty which was, of course, not mentioned expressly in the act of cession as a possible source of income. I think that it is in accord with the spirit as well as the letter of this rule that the State should not be permitted to make its conservation program a means of obtaining revenue from .the ceded lands. An intention to do so need not be applied, however, from the mere fact that the State requires the payment of fees in issuing licenses to hunt or fish on the ceded lands. The collection of such license fee may be justified if it is necessary to finance a conservation program and if it does not go beyond what is reasonably necessary for this purpose. The distinction between a license as an incident of regulation and a license as a means of obtaining revenue had long been familiar in cases involving the power of a State to exert its police power in the realm of interstate commerce, and was expressly recognized in the opinion in the Tulee case.

    5. There are, however, special circumstances applicable to the Wind River Reservation that will complicate the problem of jurisdiction over hunting and fishing upon the ceded lands. Congress in 1939 enacted the Shoshone Judgment Act already mentioned. The act set aside $1,000,000 of the fund resulting from the judgment in U.S. v. Shoshone Tribe, 304 U.S. 111, for the acquisition of lands in the ceded as well as the diminished portion of .the reservation. Land-use districts were to be established in both portions of the reservation, and the Secretary of the Interior was authorized under such rules and regulations as he might prescribe "to effect the consolidation of Indian and privately owned lands within said districts" through a land acquisition program. Title to all lands so acquired was to be taken by the United States in trust for the Shoshone and Arapahoe Tribes of Indians of the Wind River Reservation. The statute further directed the Secretary of the Interior "to restore to tribal ownership all undisposed of surplus or ceded lands within the land-use districts which are not at present at lease or permit to non-Indians; and further to restore to tribal ownership the balance of said lands progressively as and when the non-Indian owned lands within a given land-use district are acquired by the Government for Indian use."

    Although the Shoshone Judgment Act did not, in any technical sense, repeal the act of March 3, 1905, it arrested the process of alienating the ceded lands. The sale of the lands under this act of cession had already been indefinitely postponed by the departmental action of 1915. Moreover, un like section 3 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984, 25 U.S.C. sec. 463 (a), which only authorized the Secretary of the Interior to restore to tribal ownership the remaining surplus lands of any Indian reservation "if he shall find it to be in the public interest," section 5 of the Shoshone Judgment Act contained an express directive requiring the restoration of the vacant ceded lands. The program of reacquisition and restoration has already been fulfilled in large measure.7

    So far as concerns the lands already restored to tribal ownership under the Shoshone Judgment Act, the jurisdiction of the tribal councils must be deemed to be the same as over other tribal lands within the exterior boundaries of the diminished portion of the reservation, and they may therefore regulate hunting and fishing on the restored lands. There would seem to be no basis for distinguishing between such lands and lands which have been formally designated as "reservations" by Executive order, treaty, or act of Congress. An Indian reservation is simply a part of the public domain set apart by proper authority for use and occupation by a group of Indians. Forty-three Cases Cognac Brandy, 14 Fed. 539 (C.C.D. Minn.). The United States holds the title, and the right of use and occupancy is in the Indians. This is precisely the state of the title under the Shoshone Judgment Act, since it provides that title is to be taken by the United States in crust for the Indians. It is true chat the Shoshone Judgment Act does not expressly provide for the formal incorporation of the restored lands in the reserva-

____________
   6 Six Cos. v. Vinney, 2 F. Supp. 693 (D.C.D. Nev.); State v. Mendez, 61 P. (2d) 300 (Nev.); Valley County v. Thomas, 97 P. (2d) 345 (Mont.).

   7 By the act of March 3, 1905, the Shoshone Indians ceded to the United States in trust 1,438,633 acres of land. Of the vacant ceded land 226,019.64 acres have already been restored to tribal ownership. Another order to restore an additional 7,500 acres is pending. Other tracts aggregating 63,503.49 acres have been repurchased, and 8,650 acres are under purchase contract; 345,760 acres have been withdrawn for reclamation purposes and are therefore no longer subject to private alienation. Before the purchase program began only 196,360 acres had been alienated.
 



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tion, but no particular form of words is necessary to create a reservation. "It is enough that from what has been done there results a certain defined tract appropriated to certain purposes." Minnesota v. Hitchcock, 185 U.S. 373, 390. See also Spalding v. Chandler, 160 U.S. 394; Northern Pacific Railway Company v. Wismer, 246 U.S. 283; United States v. Payne, 8 Fed. 883 (D.C.W.D. Ark.). In the Wismer case the court recognized as a reservation a tract of land that had been set aside for Indian occupancy by the Commissioner of Indian Affairs with the tacit approval only of the Secretary of the Interior rather than by an Executive order of the President. In the recent case of United States v. McGowan, 302 U.S. 535, the court applied the Federal Indian liquor laws to the Reno Indian Colony located on land purchased by the United States in order to settle the Indians upon them. The court held that it was immaterial that these lands were not designated as a "reservation."

    These cases establish that there is no peculiar virtue in the word "reservation," and that there is no magic formula nor special ceremony by which a reservation must be conjured into existence. It is no more necessary to deposit a piece of parchment in the archives :than to smoke a pipe of peace. To be sure, these cases do not establish that a reservation must necessarily be deemed to be created whenever the United States takes title to land in trust for Indians, or for their benefit. If the United States were to purchase isolated tracts for individual Indians, or a tract for a group of Indians who no longer maintained tribal relations, or were not subjected to the supervisory authority and guardianship of the United States, there might be no basis for contending that such lands constituted a reservation. Such is the purport of the decision in the case of State v. Shepard, 300 N.W. 905 (Wisc.), in which the State Supreme Court held that various non-contiguous tracts, purchased for the Pottawatomie Indians by the United States were not reservation lands and that, therefore, a tribal Indian could be arrested for violating the conservation laws of the State. The Court distinguished the McGowan case on the ground that these Indians were not subject to the supervision of the United States. Assuming the validity of this distinction, the case is entirely in harmony with the current of authority.

    When, however, looking to what has been done, it can be perceived that lands have been set apart for Indian tribal use and occupancy, and that the Indians for whom the lands have been acquired are to come or to remain under the superintendence of the United States, such lands are not distinguishable from any other reservation lands. Certainly this is true of the lands acquired for the Shoshone Indians. The moneys with which they were to be purchased were appropriated by way of compensation to the Indians for the wrong they had suffered when their tribal use and occupancy had been disturbed. By directing that the lands were to be restored to "tribal ownership," Congress indicated that they were to be open to tribal use and occupancy. By providing for the consolidation of Indian lands in both the diminished and coded portion of the reservation, Congress plainly indicated its intention of creating a solid reservation tract. A reservation so designed would, indeed, be superior to the checkerboarded reservations of other Indian tribes. Thus would needed lands be provided for the Shoshone Indians at the same time that the integrity of tribal life was restored. That such was the whole objective of the program appears clearly from the testimony of various representatives of the Indian Office before the Committee on Public Lands (Hearings, 77th Cong., 1st sess., pursuant to S. Res. 241, pp. 602 ff.)

    I can find no act of Congress, moreover, which is inconsistent with these general principles. Indeed, the act of February 14, 1923 (42 Stat. 1246, 25 U.S.C. sec. 335), provides that the provisions of the General Allotment Act, as amended, "are extended to all lands heretofore purchased or which may be purchased by authority of Congress for the use and benefit of any individual Indian or band or tribe of Indians." The Supreme Court has declared that the reference to Executive order reservations contained in section 1 of the General Allotment Act should be taken to confirm by implication the practice of establishing reservations by Executive order. In re Wilson, 140 U.S. 575; United States v. Midwest Oil Company, 236 U.S. 459; Mason v. United States, 260 U.S. 545. It may therefore be argued that by extending the provisions of the General Allotment Act to purchased lands the creation of reservations by purchase was sanctioned, at least when the purchase was specifically authorized by act of Congress. In any event, it could not be contended that, by subjecting purchased lands to the provisions of the General Allotment Act, Congress made the formal proclamation of a reservation, a sine qua non of reservation status.

    It is true that it is provided by section 4 of the act of March 3, 1927 (44 Stat. 1347, 25 U.S.C. sec. 398d), that "changes in the boundaries of reservations created by Executive order, proclamation or otherwise for the use and occupation of Indians shall not be made except by Act of Congress:" but any change in the boundaries of the Shoshone Reservation will result in this case from an act
 



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of Congress, namely, the Shoshone Judgment Act itself. I see no reason for assuming that the act of March 3, 1927, contemplated that any change in the boundaries of a reservation must be expressly authorized by an act declaring pro modo et forma that the change may be made, and describing the new boundaries by metes and bounds. Congress must be deemed to have been aware of the doctrine that no special form or ceremony was necessary to create a reservation.

    Finally, I think that no unfavorable implication is to be drawn from the fact that section 7 of the Indian Reorganization Act (48 Stat. 984, 986, 25 U.S.C. sec. 467) gives the Secretary of the Interior express authority to proclaim new Indian reservations on lands acquired pursuant to the provisions of the act, while the Shoshone Judgment Act contains no such formal provision. The Indian Reorganization Act was designed to apply to every type of reservation, wherever located, and whether the lands purchased were within or without existing reservations. It was, no doubt, thought desirable that there should be express authority for the incorporation of purchased lands which conceivably in some cases might not be contiguous to existing reservation lands. In any event a provision for formal incorporation in one case does not necessarily rule out the possibility of informal incorporation in another. Moreover, in view of the uncertainty regarding the status of ceded lands which is apparent from the very request for this opinion, it may have been assumed that such lands were a part of the reservation over which the tribes was entitled to maintain jurisdiction, and that therefore no formal reincorporation would be necessary.8

    I must finally point out also that to some extent the question whether the restored lands are to be deemed part of the reservation is academic in the circumstances of the present case. If the tribal councils have no rights of sovereignty over the restored lands, they have the right of dominion always possessed by a landowner. By virtue of this dominion they can exclude nonmembers of the tribe from hunting or fishing on the restored lands, or may permit such activities upon prescribed conditions. The tribal councils by a resolution adopted April 9, 1941, have indeed expressly required that nonmembers of the tribe to whom tribal fishing permits are issued shall also obtain proper State licenses. However, it is true that if the tribal councils do not possess rights of sovereignty, members of the tribes would also be obliged to comply with the State conservation regulations in addition to their own.

    6. I have been asked to pass on a subsidiary question whether section 216, 25 U.S.C., would be violated by any non-Indian who hunted without proper authorization upon the restored lands. This section subjects to a penalty "Every person, other than an Indian, who, within the limits of any tribe with whom the United States has existing treaties, hunts, or traps, or takes and destroys any peltries or game, except for subsistence in the Indian country . . ." From what I have already said concerning the incorporation of the restored lands in the reservation, it follows that any hunting within the prohibition of the statute would be within the "limits" of the tribe. The condition of the statute that it shall apply only to lands of tribes "with whom the United States has existing treaties" is satisfied by the treaties of the United States with the Shoshone Indians made July 2, 1863, and July 3, 1868. If it is necessary under the statute that the treaties be of a kind which in effect guarantee the tribe against trespass, this condition, too, is mot by the treaty of July 3, 1868, which provided for "the absolute and undisturbed use and occupation" of the country described therein by the Shoshone Indians, and forbade all other persons to "pass over, settle upon or reside in" this territory. It is true that the treaties were with the Shoshone and not the Arapahoe Indians, but the interests of the tribes in the lands of the reservation are undivided, and hence the statute would apply to the reservation as a whole.

    It would seem also that the prohibition of the statute is not absolute and that the tribal councils may authorize hunting on their lands. The statute was for the protection of the Indians, and cannot therefore be violated with their consent (Cook v. Hudson, 103 P. (2d) 137, 147 (Mont.)). This same opinion holds that statutes of the type of section 216, 25 U.S.C., "are directory in form and not mandatory," and that consequently: "Whether any action be taken or not appears to be at the discretion of those upon whom the duty is imposed to protect Indian rights from invasion." The statute may therefore be invoked when necessary and

____________
   8 My conclusion makes it unnecessary to consider the possibility that the ceded lands never ceased to be part of the reservation, despite the fact that the police power of the State attached to such lands, so that for this reason alone no reincorporation is necessary. It may in this connection be noted that the Supreme Court has declared in general terms that allotment in severalty does not have the effect of withdrawing the land from a reservation and that it remains a part thereof until Congress has excluded it (United States v. Celestine, 215 U.S. 278. 284), although it did not pass on the precise question whether the issuance of a patent in fee would have this effect. In fact a reservation is not a grant and has nothing to do with title (Alaska Pacific Fisheries v. United States, 248 U.S. 78, 88). Lands ceded in trust can hardly be regarded in a worse position than lands patented in fee.
 



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desirable as a penalty against those who hunt without proper authority upon the restored lands. But this would mean that the statute could be invoked only against persons who hunted without first obtaining a permit or license. I do not think that the statute could be made into a mechanism of enforcing violations of particular conservation regulations, since it plainly was designed to punish trespass and not to implement conservation regulations. (Cf. United States v. Hunter, 21 Fed. 615
(C.C.E.D. Mo.).)

    7. In view of the conclusion that the tribal councils are without power to regulate hunting or fishing on the ceded lands which have not been restored to tribal ownership, it must follow that Ocean Lake on the ceded portion of the reservation is also subject to the jurisdiction of the State, and it is unnecessary to consider the special circumstances that as presently constituted it is an artificial lake constructed partly on fee-patented lands, and located entirely within an area withdrawn for reclamation purposes under the Reclamation Act. It is clear that the reclamation withdrawal in no way enlarges the power of the United States, for lands withdrawn for reclamation purposes have always been held to be subject to the police power of the States to the same extent as all other public lands. It is apparent, too, that under existing law State jurisdiction over Ocean Lake must continue in view of the provision of section 5 of the Shoshone Judgment Act prohibiting the restoration to tribal ownership "of any lands within any reclamation project." I am not informed whether Ocean Lake is completely surrounded by a solid belt of restored lands, and so there is no need to determine whether the tribal councils would be in a position to exercise any indirect degree of control over fishing in Ocean Lake by denying access to the lake shores.

8. Thus the jurisdiction of the tribal councils and the State of Wyoming conservation authorities over the ceded portion of the reservation will be of a mixed character, with each having jurisdiction over a part of the lands involved. Inconveniences may, however, readily be avoided by cooperative agreement. I note that the State conservation authorities are expressly authorized to "enter into cooperative agreements with Federal agencies . . . and landowners for the development of State control of wildlife management and demonstrations projects." (1931 Wyo. Stats., 1940 Supp., Title 49, sec. 111, subsec. (i) .) The tribal councils have, of course, a corresponding power to undertake cooperative action.

    To summarize, I am of the opinion:

    (1) That the tribal councils may regulate hunting and fishing on the diminished portion of the reservation by Indians as well as non-Indians, and in particular that they may regulate fishing on Bull and Ray Lakes on the diminished portion of the reservation.

    (2) That the State may regulate hunting and fishing on the ceded portion of the reservation, including fishing in Ocean Lake, except as to such ceded areas as may be restored to tribal ownership pursuant to the provisions of the Shoshone Judgment Act on which the tribal councils may regulate hunting and fishing.

    (3) That the requirement of State licenses to hunt or fish on the ceded portion of the reservation may not, however, be made a means of raising revenue.

    (4) That section 216, 25 U.S.C., is applicable to the restored lands but that it may be invoked only against non-Indians who hum upon the lands without a license.

                                                                                                                                            WARNER W. GARDNER,

Solicitor.


Approved: February 12, 1943.
OSCAR L. CHAPMAN, Assistant Secretary.

BUREAU OF MINES-CONSTRUCTION-
NAVAJO INDIAN RESERVATION

58 I.D. 351
M-32071                                                                                                                                              February 19, 1943.

Syllabus

Re:

Whether the Bureau of Mines is legally authorized to construct a helium plant on land leased from the Navajo Tribe of Indians and within the Navajo Indian Reservation, New Mexico.
Held:
1. When the fee simple title to land is in the United States with the right of use and occupancy in the Navajo Indians, the United States may enter into a lease with the Navajo Tribe, with the consent of the tribe and approval of the Secretary.

2. The Secretary is legally authorized to erect a permanent structure on leased lands, so long as the interest acquired is sufficient to protect the rights of the United States.

3. Rev. Stat. sec. 355 is not applicable to this acquisition.




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OPINIONS OF THE SOLICITOR

FEBRUARY 19, 1943

Memorandum for the Director, Bureau of Mines:

    Reference is made to the informal request of Mr. R. A. Cattell, Chief, Petroleum and Natural Gas Division, for an opinion as to whether the Bureau of Mines may expend public funds for the construction of a helium plant on lands leased from the Navajo Indian Tribe within the Navajo Reservation in New Mexico for the purpose of processing helium from natural gas. The plant is to be constructed on a part of the reservation not covered by an oil or gas lease owned by the United States.

    The treaty with the Navajo Tribe of Indians, approved June 1, 1868 (15 Stat. 667), set aside certain designated lands in New Mexico and Arizona for the use and occupancy of the Navajo Indians. The United States, under the treaty, retained the fee title to the lands, subject to the right of the use and occupancy thereof by the Navajo Indians. The land under consideration is within the reservation as established by the treaty of June 1, 1868.

    The act of September 1, 1937 (50 Stat. 885, 50 U.S.C. sec. 161), authorizes the Secretary of the Interior, for the purpose of conserving, producing, and selling helium gas:

    "To acquire by purchase, lease, or condemnation, lands or interests therein or options thereon, including but not limited to sites, rights-of-way, and oil or gas leases containing obligations to pay rental in advance or damages arising out of the use and operation of such properties; . . .

            *                                *                                *                                *                                *

    "To construct or acquire plants, walls, pipe lines, compressor stations, camp buildings, and other facilities, for the production, storage, repurification, transportation, and sale of helium and helium-bearing gas; . . ."

    The 1943 Interior Department Appropriation Act (Public Law 645, 77th Cong., 2d sess.) contains an appropriation for the acquirement by purchase, lease or condemnation of lands or interests therein.

    The question whether the Secretary is legally authorized to lease from the Navajo Tribe sufficient lands for a plant site for such length of time as the United States shall operate the plant, must be considered (a) from the standpoint of the lessee and (b) from the standpoint of the lessor. From the standpoint of the lessee, it is sufficient that the act of September 1, 1937, supra, authorizes the acquisition of a leasehold interest. Such interest is sufficient to permit the contemplated use of the land for a plant site. Memorandum of November 18, 1939, from the Attorney General to the Assistant Attorney General, Lands Division, Department of Justice. See also 28 Op. Atty. Gen. 414.

    From the standpoint of the lessor, the problem derives from the fact that there is no general legislation authorizing leases of tribal lands for purposes other than farming, grazing and mining. Tribal lands have been actually utilized under permits or under tribal leases of doubtful validity, for many other purposes, such as trading posts, power sites, summer cottages, and ordinary commercial development. Cohen, Handbook of Federal Indian Law, page 329. Existing departmental regulations, (25 CFR 171.12) purport to authorize the lease of tribal lands for farming, grazing or business purposes for stated periods or through permits revocable in the discretion of the Commissioner of Indian Affairs.

    The act of June 30, 1834 (4 Stat. 729, 25 U.S.C. sec. 177), reads as follows:

    "No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. . . ."
While this statute would, on its face, prohibit a lease of tribal land even to an agency with general statutory power to acquire leasehold interests, consideration must be given to the rule that if a statute prohibits the doing of a certain thing and no specific mention of the United States is contained in the statute, the prohibition does not (with exceptions not here pertinent) extend to the sovereign. 26 Op. Atty. Gen. 415, 417; United States v. California, 297 U.S. 175, 176 (1936).

    In an unreported opinion dated February 7, 1935, the Attorney General interpreted the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), with particular reference to the statute of the title to restricted lands being conveyed by individual Indians to the United States for various school purposes, including the erection of day school buildings for use of the Indian Service. The question whether the restrictions against alienation of the land would apply to the United States after it acquired title was considered in connection with the provisions of section 4 of the act of June 18, 1934, supra. The Attorney General held that:
 



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    "To hold that a sale of restricted Indian lands to the United States, needed by the Government for the purpose of carrying out its policy of promoting the educational advancement, of the Indians is within the ban of the statute, would, to that extent, abrogate that policy. It is a familiar rule that a general statute which takes away or limits any right, title or interest does not bind the sovereign unless the sovereign is expressly named therein (United States v. Knight, 14 Pet. 301, 315; Dollar Savings Bank v. United States, 19 Wall. 227, 239)."

    The right of the Secretary of the Interior to grant permission to the Presbytery of North Arizona to occupy a certain designated tract of land within the Navajo Treaty Reservation for religious mission purposes was presented to the Attorney General in 1921 (32 Op. Atty. Gen. 586). The Attorney General held that since the United States is the guardian and protector of the Indians, the Secretary has discretionary power to grant the use of the land to the church on the theory that it would be spiritually beneficial to the Indians. The construction of the helium plant on reservation lands will be a direct pecuniary benefit to the Navajo Tribe because the tribe will receive royalty from the helium processed in the plant that otherwise would not enure to their benefit. Therefore, the Secretary may in his discretion approve the lease in question.

    It is my opinion that should the Navajo Tribal Council authorize a lease to the Government of certain designated land within the reservation for a helium plant site for so long as it is needed in connection with the processing of helium, and a lease be executed by the proper officers on behalf of the Navajo Tribe, and the Secretary approve the lease, the United States would hold a valid lease to the reservation land. The United States is authorized to pay a reasonable rental for the land in accordance with the provisions of the act of September 1, 1937, supra, and of the 1943 Interior Department Appropriation Act, supra.

    In my opinion Rev. Stat. sec. 355, as amended (40 U.S.C. sec. 255), is not applicable to this lease-hold acquisition as the fee simple title, subject to the Indians' right of occupancy, is in the United States, and the Attorney General's opinion as to the validity of the title to the land in question is unnecessary. Cohen, Handbook of Federal Indian Law, page 289, citing 6 Comp. Dec. 957.

                                                                                                                                           WARNER W. GARDNER,

Solicitor.


ALASKAN NATIVES SUBJECT TO
TERRITORIAL SCHOOL TAX

 

February 24, 1943.
George W. Folta, Esq.,
Counsel at Large, Juneau, Alaska.

MY DEAR MR. FOLTA:

    You have inquired in two letters, written December 10, 1941, and January 14, 1942, as to the basis of rulings by this office on the questions whether natives of Alaska are subject to the Territorial school tax and whether Indian Chartered Corporations are subject to the provisions of acts of Congress imposing license taxes on certain businesses and occupations in Alaska.

    The basic question concerns the nature of Territorial legislation passed by the Congress or by the Legislature of Alaska. The basic distinction to be made here is, I believe, one between intent and jurisdiction.

    1. There is no doubt, that Congress has authority to pass legislation for Alaska which extends to natives as well as to whites living in the Territory. It is true that the District Court for the Western District of Washington held in Ex parte Krause, 228 Fed. 547, that Congress when enacting legislation for the Territory was sitting as a Territorial legislature rather than as a Federal legislature and that therefore crimes defined as such in the Alaska Criminal Code adopted by Congress were to be considered as offenses against the Territory and not as offenses against the United States and were therefore to be tried in the Territorial rather than in the Federal courts. I do not believe that this case has any direct application to the instant problem. The decision that certain legislation passed by Congress is limited to the Territory rather than general Federal legislation cannot be used to diminish the jurisdiction which Congress has under the Constitution no matter in what capacity it may be sitting. Under the Constitution, the Congress has jurisdiction to impose taxes on the native residents of the Territory.

    Whether, on the other hand, Congress intended that a certain statute should be applicable to the natives, is a matter for specific inquiry, in each case. As to the acts of Congress imposing license taxes on certain businesses and occupations in Alaska, this inquiry was made in an opinion by this office dated August 27, 1941, M. 29914, and it was there concluded that that act was indeed in-
 



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tended to apply to Indian Chartered Corporations.

    2. (a) When considering legislation enacted by the Territorial Legislature of Alaska, the same two questions of jurisdiction and intention arise. The authority of the Territorial Legislature of Alaska to enact such taxes as the Territorial school tax is derived from section 3 of the Organic Act of August 24, 1912 (37 Stat. 512). That section and that act are silent as to the extent to which the Territorial legislature may take jurisdiction over the native population of the Territory. Unless it can be shown that in passing that act Congress intended to delegate part of its own reserved jurisdiction over the natives in the Territory to the Territorial legislature created by that act, the jurisdiction of the Territorial legislature over these natives cannot be held to be broader than that of the several States over Indians living within their borders.

    Such a delegation of legislative functions in principle should be made by express language. A delegation may be implied only where strong reasons can be shown why such implication is necessary to effect the purpose of the enactment. For the reasons hereinafter stated it is my conclusion that no such delegation was intended, nor would it be reconcilable with the general purpose of the act.

    The debates preceding the passage of the act of 1912 showed that the sponsors of that act had to overcome a considerable amount of suspicion and hesitancy on the part of those who doubted whether the residents of Alaska were settled and reliable enough to be entrusted with even limited self governmental functions. In view of this feeling of Congress, it is hardly likely that the act which was finally passed should have granted to the citizenry of Alaska the responsible task of full Indian guardianship which the Congress has never granted to any of the States which have been admitted to the Union after having passed through the preparatory stage of Territorial government on which Alaska was then only to enter.

    As a matter of fact, the question of Indian guardianship was mentioned by Judge Wickersham in his great speech before the House on April 24, 1912. Referring to the adverse report of the then Governor of Alaska, Judge Wickersham pointed out:

    "Many objections upon this score are made by the governor of Alaska in his recent report to the Secretary of the Interior and in his testimony before the various committees of Congress. He assumes that if Congress shall create an elective legislative body for Alaska it will therefore necessarily withhold many appropriations which it now makes for public uses there and thereby put such burdens upon its people that their government could not exist. For instance, he says:
    'A territorial legislature being installed and a separate territorial treasury being established, if the National Government should decide to leave the care and education of the native people to the local legislature, the present appropriations for schools, reindeer, suppression of liquor traffic, and relief of destitution and medical relief would either have to be abandoned or supplied by the territorial treasury. These appropriations now amount to $224,000 per annum.'
    "Of course, that result would follow 'if the National Government should decide to leave the care and education of the native people to the local legislature.' Notice the assumptions: First, that 'a separate territorial treasury being established,' when there is nothing in the bill about it; and, second, that if a separate territorial treasury is established, 'if the National Government should decide to leave the care and education of the native people to the local legislature, when there is no such provision in the bill and no precedent in more than a hundred years' legislation to justify the assumption. Congress never did put the burden upon a Territory, having an elective legislature or not, to care for and educate the Indian tribes within its borders." (Italics supplied.) (48 Cong. Rec., pt. 6, p. 5274, 62d Cong., 2d sess.)
    Clearly then the man who wrote this bill and the Congress who passed it never intended to delegate by implication to the legislature of the Territory any part of the specific jurisdiction over Indian affairs which the Constitution has reserved to the Congress.

    It is therefore my conclusion that insofar as the Alaskan natives continue to live in tribal organizations on lands reserved to them, acts of the Territorial legislature can no more extend to their activities and to their property than can acts of the
legislatures of the various States.

    (b) The remaining question, then, as far as the Territorial school tax is concerned is whether the Indians of the Annette Island Reserve form an organization held together by a common government and a common purpose, thus forming a quasi-public organization which, taken together with the
 



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fact that they live on a reservation under Federal jurisdiction, would be sufficient to exempt them from the tax in question.

    In two decisions quoted in the Handbook of Federal Indian Law, chapter 14, page 70, the Supreme Court set forth the common characteristics as well as the differences of the terms, "tribe" and "band." In the case of Montoya v. United States,
180 U.S. 261, the Court stated:

    ". . . By a 'tribe' we understand a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory; by a 'band' a company of Indians not necessarily, though often of the same race or tribe, but united under the same leadership in a common design. While a 'band' does not imply the separate racial origin characteristic of a tribe, of which it is usually an offshoot, it does imply a leadership and a concert of action. How large the company must be to constitute a 'band' within the meaning of the act it is unnecessary to decide. It may be doubtful whether it requires more than independence of action, continuity of existence, a common leadership and concert of action."
    In the parallel case of Conners v. United States, 180 U.S. 271, 275, the Supreme Court declared:
    "To constitute a 'band' we do not think it necessary that the Indians composing it be a separate political entity, recognized as such, inhabiting a particular territory, and with whom treaties had been or might be made. These peculiarities would rather given them the character of tribes. The word 'band' implies an inferior and less permanent organization, though it must be of sufficient strength to be capable of initiating hostile proceedings."
From these definitions it will be seen that what is important in considering the liability to the Territorial school tax, namely, the semi-public organization by common government and common acts, is a characteristic to be found in both "tribes" and "bands."

    Thus, it should be concluded that the Indians of the Annette Island Reserve do, indeed, live in such tribal organization, and should therefore be exempt from paying the Territorial school tax in question.

                                                                                                                                            WARNER W. GARDNER,

Solicitor.


HANDLING OF TRIBAL FUNDS
BY AGENCY ACCOUNTANTS

 

February 25, 1943.


Memorandum for the Commissioner of Indian Affairs:

    Your letter to Dr. Aberle, Superintendent of the United Pueblo Agency is returned for further consideration. It is not believed to be entirely responsive to the comments made by the accountants in their report, or to go into the questions raised by them with sufficient detail. On the one hand, the implied criticism of Agency methods in depositing funds is unjustified since, as you correctly assume, the power of the Secretary, in approving agreements, to determine the destination of funds from the same source, prevents uniformity of practice with respect to the deposit of funds. On the other hand, no mention is made, for instance, of the undoubted inconsistency in handling funds under the same agreement in different years; or of the reason for the failure to maintain proper lease records; or of the special status of the Santa Clara Pueblo as the only organized pueblo; or of the alleged irregularities in administering the regulations governing trading with the Indians.

    Your attention is particularly called to the following statement in the accountants' report:

    "The agency is very desirous of obtaining clarified instructions as to the proper manner of handling the various types of collections made for the benefit of the pueblos and has asked that the Indian Office be specifically requested through this report to furnish the desired information in the necessary detail."
    The report of the accountants raises legal questions concerning the proper method of depositing funds derived from (1) Business leases, (2) Mining leases, (3) Highway crossing permits, (4) Sale of hay produced on the Zuni Sub Agency Farm, (5) Stock-crossing permits, and (6) Fishing permits issued by the Santa Clara pueblo. Before considering each of these questions, however, some observations need to be made concerning the handling of funds derived from tribal resources in general.

    The basic statute to be considered is the act of March 3, 1883, as last amended by the act of May 29, 1928 (45 Stat. 991, 25 U.S.C. sec. 155 suppl.), which required the deposit in the Treasury of the United States of "miscellaneous revenues" derived from "Indian reservations, agencies and schools.. . ." Following the enactment of the Indian Reorganization Act, this Department held that the statute
 



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governing the handling of miscellaneous revenues did not limit the power of an Indian tribe organized but not incorporated under the act to receive payments for the use of tribal land and deposit the same in its treasury. This conclusion was concurred in by the Comptroller General in an opinion dated June 30, 1927 (A-86599) but rather upon the narrow ground that the Indian Reorganization Act impliedly repealed any existing limitations upon the handling of revenues derived from resources over which Indian tribes had been given control by the said act. Nevertheless the Comptroller General did not reject, either expressly or by implication, the contention of this Department that the act of March 3, 1883, as amended was only intended to govern "the use of revenues received by officials or employees of the Interior Department." It may be assumed, therefore, that his opinion did not foreclose the question whether there are not revenues which may lawfully be received by an unorganized tribe.

    The recent consideration of the question of tribal control of revenues derived from tribal resources in connection with the administration of the Indian Reorganization Act has tended to obscure the fact that organization and incorporation of a tribe are nonessential elements of the problem. They are only the plainest indications that it is intended that the tribe shall have control of those revenues which are derived from property which, under its constitution or charter, it may administer. There are, or course, a considerable number of statutes that provide for the deposit in the Treasury of the United States to the credit of the tribes of the proceeds derived from the disposition of various interests in or resources of tribal lands. (See the table of such statutes printed on p. 342 of the Handbook of Federal Indian Law.) But these revenues constitute "tribal funds" in the strict and narrow sense of the term. In the case of miscellaneous revenues within the meaning of the act of March 3, 1883, as amended, there are necessarily involved funds concerning which there is no specific direction that they shall be deposited in the Treasury. The act itself does not determine what revenues the officials or employees of the Department are entitled or required to receive, and does not regulate or prohibit payments made directly to tribal officers.

    Long before the Indian Reorganization Act, various Indian tribes did, of course, receive miscellaneous types of revenue although they were not of great importance in their economics. Thus a tribe might obtain funds by holding a fair or dance, or charge fees for enjoying various tribal facilities, or privileges. In a memorandum of November 18, 1936, the Solicitor of this Department held that there was no authority in the Department, when it was not given such power by statute, to prohibit the collection by the Indians of the Palm Springs Reservation, who were unorganized, of any fees, dues, or charges for the enjoyment of various privileges on the reservation.

    It is necessary to consider in every case whether the tribe itself has been deprived by treaty or act of Congress of the power to make a particular disposition of its resources. If the Department rather than the tribe has been given power to dispose of certain rights in tribal property, the funds so obtained are subject to the control of departmental officials, and come within the scope of the act governing the deposit of miscellaneous revenues, if there is no other specific provision for their deposit. Such power is usually granted to the Department with the proviso that it shall be exercised, subject to such rules and regulations as the Secretary may prescribe. It would seem that such a proviso would not in itself empower the Secretary to pay the receipts over directly to the tribal officials for such use as they might determine. To hold otherwise would in effect detract greatly from the effect of the statute governing the deposit of miscellaneous revenues. This statute would also seem to be applicable in cases in which the Secretary is given power to dispose of rights in tribal property but subject to the consent of the tribe itself. Such a limitation must be deemed to have been made only for the purpose of giving the tribe a veto power over proposed Secretarial action. It is still the Secretary who exercises the power of disposition. It is true that under either type of statute the property is that of the tribe but it is the Secretary rather than the tribe who has been given power to initiate the process of disposition.

    Another situation is presented, however, where a statute merely provides that certain dispositions of tribal property shall be made only with the approval of the Secretary. The origin of the disposition then lies in tribal action, and it is apparent that the provision for Secretarial approval has been made to enable him to exercise a veto power over unwise, improvident or otherwise undesirable tribal action. A statute of this type is intended for the protection of the Indians, and does not have as its purpose the diminution of tribal powers. To be sure the requirement of Secretarial approval would give the Secretary power to insist that payment be made to departmental rather than tribal officials. But this is only because, having power to approve, he may make this a condition of his approval. It is clear in any event that whenever the Secretary approves any agreement permitting the disposition of rights in tribal property there is nothing to prevent him from approving it because it stipulates
 



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that the proceeds shall be paid to tribal rather than departmental officials.

    These considerations are particularly important in relation to the pueblos because section 17 of the Pueblo Lands Act of June 7, 1924 (43 Stat. 636, 641) is an "approval" type of statute. It provides that "no sale, grant, lease of any character, or other conveyance of lands, or any title or claim thereto, made by any pueblo as a community, or any Pueblo Indian living in a community of Pueblo Indians, in the State of New Mexico, shall be of any validity in law or in equity unless the same be first approved by the Secretary of the Interior." Since this provision was adopted to set at rest past controversies concerning the rights of Pueblo Indians to alienate their lands, which are held by a communal fee title except for such lands as have been added to the pueblos by Executive order, it is particularly clear that the right of disposition has its source in the original rights of ownership of the Indians rather than in the statute, and that the requirement of approval was intended only as a safeguard. It is true that despite the nature of the title by which the communal Pueblo lands are held they do not differ from other Indian lands so far as concerns the power of Congress to deal with them. Nevertheless Congress has dealt with them in a somewhat different fashion in section 17 of the Pueblo Lands Act by permitting every type of alienation if the Secretary approves. While the old provision of section 2116 of the Revised Statutes (now 25 U.S.C. sec. 177), prohibiting any transfer of Indian lands except by an exercise of. the treaty making power, which is no longer in use so far as the Indians are concerned, has been held applicable to Pueblo lands in United States v. Candelaria, 271 U.S. 432, 441, and Pueblo of Santa Rosa v. Fall, 273 U.S. 315, 320, it is to be presumed that what the Court meant was that it would govern except for the provision of section 17 of the Pueblo Lands Act which is specially applicable to pueblo lands. This provision in effect may offer an alternative method of disposing of interests in Pueblo lands even when there is a separate statute contemplating a particular form of disposition, which need not therefore be regarded as exclusive.

    I now proceed to note the particular dispositions that should be made of the various revenues derived from pueblo lands.

    (1) Business leases: There is no express statutory provision conferring on the Secretary authority to make business leases. However, such a lease may be made under the Pueblo Lands Act, but to be valid must be approved by the Secretary. The general regulations governing tribal land leased for farming, grazing and business purposes (Code of Federal Regulations, title 25, part 171) do not specify to whom lease rentals shall be paid. Consequently it will be necessary in every case to look to the provisions of the lease. If the lease requires that payment be made to any particular official, whether a pueblo, or reservation official, the amounts received should be turned over to the designated official. If the lease is silent in this respect, the amounts received should be paid over to the pueblo officials since the source of the revenue lies in their action rather than in Secretarial approval.

   (2) Mineral leases: It is not stated whether the mineral lease in question here, which contains a provision that the rents and royalties shall be paid to the pueblo, was approved under the act of May 11, 1938 (52 Stat. 347, 25 U.S.C. sec. 396 a-f), or under the Pueblo Lands Act. Under both statutes, the leasing procedure would be precisely the same. Under the 1938 act, the lease may be made "by authority of the Council or other authorized spokesman for such Indians" subject only to the approval of the Secretary, but this is also the method to be followed under the Pueblo Lands Act. It would seem, however, from the provision for direct payment of rents and royalties to the pueblo that the lease must have been approved under the Pueblo Lands Act, since the applicable regulation under the 1928 act (25 CFR 186.12) provides for payment "to the Superintendent or to such other person as may be designated by the Secretary of the Interior for the benefit of the lessors," and there is nothing in the report to indicate that the pueblo officials were specially designated under this regulation. The provision for direct payment is, of course, valid under the Pueblo Lands Act. But even the applicable regulation under the 1938 act, which would require payments of rents and royalties to the Superintendent, does not rule out the designation of a pueblo official to receive the payments. Such a designation would be entirely in harmony with the act of March 3, 1883, as amended, since the 1938 act itself is of the type which does not confer the power of leasing upon the Secretary.

    (3) Highway crossing permits: The opening of highways on reservations is governed by the act of March 3, 1901 (31 Stat. 1084, 25 U.S.C. sec. 311), which was made applicable to pueblo lands by the act of April 21, 1928 (45 Stat. 442, 25 U.S.C. sec. 322). The act of March 3, 1901, confers upon the Secretary power to grant highway permits but the practice until 1934 was for the pueblo officials to execute a right-of-way deed subject to approval by the Secretary. In this year the procedure was changed, under instructions of your office, to require the filing of applications under the right-of-way statute and the applicable regulations. 25 CFR
 


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