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1326

DEPARTMENT OF THE INTERIOR

MAY 31, 1945

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY :

    Reference is made to Commissioner Bashore's memorandum to you, dated December 15, 1944, in which he recommends that my opinion be obtained on the question of the general applicability of the excess-land provisions of the Federal reclamation law to the Coachella Valley County Water District lands in California.

    This question arises in connection with a proposed contract between the United States and the Coachella Valley County Water District to provide for the construction of a new distribution system to furnish irrigation water, and to cover re-payment of the increased costs of the All-American Canal and appurtenances. Previously, the construction of the All-American Canal, for the purpose, inter alia, of supplying irrigable water to the Coachella Valley, was undertaken pursuant to a contract entered between the United States and the Coachella Valley County Water District on October 15, 1934, contract symbol Ilr-781. This contract was made pursuant to the sot of Congress of June 17, 1902 (32 Stat. 388), and acts amendatory and supplementary thereto, commonly known and referred to as the Federal reclamation law, and particularly pursuant to the act of December 21, 1928 (45 Stat. 1057, 43 U.S.C. sec. 617), designated as the Boulder Canyon Project Act. The question whether the general excess-land provisions which are part of the Federal reclamation law, apply to the Coachella Valley Water District lands, depends on the construction and the interpretation of these statutes.

    It is my opinion that the excess-land provisions of the Federal reclamation law apply to the Coachella Valley County Water District lands and, accordingly, these provisions should be incorporated in the contracts presently under consideration.

    The Federal reclamation law is contained in the Reclamation Act of June 17, 1902 (32 Stat. 388), which, together with acts amendatory and supplementary thereto, forms a complete legislative pattern in the field. The Supreme Court describes this type of legislation succinctly in United States v. Barnes, 222 U.S. 513 (1912) at page 520:1

    "Much of our national legislation is embodied in codes, or systematic collections of general rules, each dealing in a comprehensive way with some general subject, such as the customs, internal revenue, public lands, Indians, and patents for inventions; and it is the settled rule of decision in this court that where there is subsequent legislation upon such a subject it carries with it an implication that the general rules are not superseded, but are to be applied in its enforcement, save as the contrary clearly appears. . . ." (Emphasis supplied.)

    Congress has followed precisely this type of legislative policy in enacting the Federal reclamation law.

    The excess-land provisions of general applicability in this law are the following:

    The Reclamation Act of June 17, 1902 (32 Stat. 388, 389, 43 U.S.C. sec. 431);

    Section 46 of the Omnibus Adjustment Act of May 25, 1926 (44 Stat. 636, 649, 43 U.S.C. sec. 423 (e));

    The Warren Act of February 21, 1911 (36 Stat. 925, 926, 43 U.S.C. secs. 523, 524);

    The act of August 9, 1912 (37 Stat. 265, 266, 43 U.S.C. secs. 543, 544);

    The Reclamation Extension Act of August 13, 1914 (38 Stat. 686, 689, 43 U.S.C. sec. 418).

    Since, in the opinion of the Bureau of Reclamation, "the excess land provisions of section 46 of the Omnibus Adjustment Act seem to be applicable to contracts made with the Coachella District" (see copy of undated letter attached from the Acting Commissioner to the Regional Director, Boulder City, Nevada), these provisions will be used, for illustrative purposes only, of this type of statute:

    "No water shall be delivered upon the completion of any new project or new division of a project until a contract or contracts in form approved by the Secretary of the Interior shall have been made with an irrigation district . . . organized under State law providing for payment by the district . . . of the cost of constructing, operating and maintaining the works during the time they are in control of the United States . . . Such contract or contracts with irrigation districts hereinbefore referred to shall further provide that all irrigable land held in private ownership by any one owner in excess of one hundred and sixty irrigable acres shall be appraised in a manner to be prescribed by the Secretary of the Interior and

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  1 This case held that certain procedures set out in section 3177 of the Revised Statutes, providing for the enforcement of the internal revenue laws, applied to the collection or enforcement of the specific tax imposed on oleomargarine by the act of August 2, 1886, c. 840, 24 Stat. 209.
 


 

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MAY 31, 1945

the sale prices thereof fixed by the Secretary on the basis of its actual bona fide value at the date of appraisal without reference to the proposed construction of the irrigation works; and that no such excess lands so held shall receive water from any project or division if the owners thereof shall refuse to execute valid recordable contracts for the sale of such lands under terms and conditions satisfactory to the Secretary of the Interior and at prices not to exceed those fixed by the Secretary of the Interior; . . ." (Emphasis supplied.)

    The language used in the other statutes listed is similar. As will be considered presently, section 5 of the Reclamation Act employs the term "sold" in connection with water rights, in contrast to the term "delivered" in the Omnibus Adjustment Act.

    Generally speaking, these excess-land provisions represent a firmly established, time-honored, and sound public policy which seeks to achieve the twofold purpose of preventing speculation and of spreading the benefits of a reclamation project among the larger group of smaller landowners rather than confining those benefits to the relatively smaller group of large landowners. These excess-land provisions are of general applicability to all reclamation projects in the 17 States enumerated in section 1 of the Reclamation Act of 1902, as amended.

    Whenever these general excess-land provisions did not fit the special circumstances of a project, or were found not to be adequate enough to check speculation, special excess-land provisions were enacted by Congress, applicable only to specific projects. Examples of this type of legislation are:

    Interior Department Appropriation Act of May 10, 1926 2 (44 Stat. 453, 465);

    Columbia Basin Antispeculation Act of May 27, 1937 3 (50 Stat. 208), as amended by the

    Columbia Basin Project Act of March 10, 1943 4 (47 Stat. 14, 16 U.S.C.A. App., sec. 835.

    Furthermore, Congress has waived the excess-land provisions of the Federal reclamation law, with regard to two projects, in view of the peculiar circumstances involved which threatened to make these projects economically unsound:

    Act of June 16, 1938 (52 Stat. 764, 43 U.S.C. sec. 386), with respect to the Colorado-Big Thompson project;

    Act of November 29, 1940 (54 Stat. 1219), with respect to the Washoe County Water Conservation District, Truckee storage project, and the Pershing County Water Conservation District, both in Nevada.

    In the act of June 16, 1938, supra, the language reads:

    "The excess-land provisions of the Federal reclamation laws shall not be applicable to lands which on June 16, 1938, had an irrigation water supply from sources other than a Federal reclamation project and which will receive a supplemental supply from the Colorado-Big Thompson project."

The exclusion is equally positive in the act of November 29, 1940, supra. 5

    The existence of the two foregoing types of statutes is of tremendous importance in the instant situation and has a direct bearing on the problem before me. Congress in enacting them has shown clearly that the excess-land provisions are the heart of the reclamation law. Where such provisions are not sufficiently drastic, Congress has enacted a special excess-land law designed to meet the particular situation, as in the Columbia Basin Anti-speculation Act. But where reasons of policy militate against the application of the excess-land provisions, Congress provides express exemptions, as in the Colorado-Big Thompson project.

    When the pertinent parts of the Boulder Canyon Project Act are analyzed, it becomes apparent that Congress incorporated therein neither special excess-land provisions nor exemption from the excess

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  2 This act contains the 160-acre limitation but provides the manner, peculiar to the statute, in which excess lands may be conveyed to the United States.

  3 This statute contains the following proviso: "That every such contract with any district shall further require that all irrigable land held in private ownership by any owner in excess of forty irrigable acres . . . shall be designated as excess land and as such shall not be entitled to receive water from said project." (Emphasis supplied.)

  4 The limitation here is to farm units containing not less than 10 nor more than 160 acres.

  5 "The excess-land provisions of the Federal reclamation laws shall not be applicable to land in the Washoe County Water Conservation District, Nevada, irrigated from the Boca Reservoir, Truckee River storage project, Nevada, nor to the Pershing County Water Conservation District. Nevada, irrigated from the Humboldt River Reservoir, and the Secretary of the Interior is authorized to enter into a contract with said districts, amending, in accordance with this Act, the contract of December 18, 1936, between the United States and the Washoe County Water Conservation District, and the contract of October 1, 1934, between the United States and the Pershing County Water Conservation District."
 


 

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MAY 31, 1945

land provisions generally.6 Instead, it showed clearly that it intended these provisions to be applicable to irrigable lands within the project. Section 14 reads:

    "This Act shall be deemed a supplement to the reclamation law, which said reclamation law shall govern the construction, operation, and management of the works herein authorized, except as otherwise herein provided."

    Section 12, which is definitive, reads in part:

    ". . . 'Reclamation law' as used in this Act shall be understood to mean that certain Act of the Congress of the United States approved June 17, 1902, entitled 'An Act appropriating the receipts from the sale and disposal of public land in certain States and Territories to the construction of irrigation works for the reclamation of arid lands,' and the Acts amendatory thereof and supplemental thereto. . . ."

    These sections will now be analyzed in the light of the general structure of the Boulder Canyon Act, its relationship to the reclamation law, its legislative history, and the few court decisions which have endeavored to interpret it.

    When Congress in section 14 made the Boulder Canyon Act "a supplement to the reclamation law," it incorporated into the former statute the 160-acre limitation of the act of June 17, 1902. Webster defines the word "supplement" as "that which completes, or makes addition to, something already organized, arranged, or set apart." (Webster's New International Dictionary, First Edition, 2083) Thus, the word "supplement," as used in the Boulder Canyon Act, means an addition to legislative enactments already existing.

    With the exception of one unpublished decision by an inferior State court in California-which will be analyzed in detail subsequently-the only case found in which the relationship between the Boulder Canyon Act and the reclamation law was considered in Six Companies, Inc. v. DeVinney, 2 F. Supp. 693 (D.C. Nev. 1933).

    The legal problem in this case may be stated simply. The Six Companies, Incorporated, sought to enjoin a county assessor in Nevada from collecting State taxes on its personal property and from demanding the payment of poll taxes from its employees. The plaintiffs principal contention for avoiding tax liability was that all of its property and the homes of its employees were inside the Boulder Canyon Project Federal Reservation, to which territory the State of Nevada was alleged to have ceded jurisdiction.

    In dismissing the bill, the Federal District Court for Nevada observed, in part:

    "The statutes referred to are the Reclamation Law and the Boulder Canyon Project Act. The latter act, as before pointed out, is supplementary to the Reclamation Law, except as otherwise therein provided . . . The Boulder Canyon Project Act clearly discloses that the dam and incidental works therein referred to are of a permanent character, and specifically provides that 'the title to said dam, reservoir, plant and incidental works shall forever remain in the United States.' . . . There is no specific provision in the Boulder Canyon Project authorizing the Secretary of the Interior to establish any reservation, and if such authority may be inferred it would be limited to the area covered by the expression last above quoted, including any additional area necessary for administrative purposes.

    "While, 'except as otherwise herein provided,' the Project Act is deemed a supplement to the Reclamation Law, a reference to the latter law . . . discloses nothing which the national government might be said to intend the retention of control beyond the consummation of the purposes of the law-the reclamation by means of irrigation of portions of the arid domain. This law comprehends the acquisition by citizens of the United States of the land and water rights. The law generally comprehends that its purposes will be carried out under national direction, but, subject thereto, always without relinquishment of state jurisdiction . . .

  "Only in the Reclamation Law is there any provision for the establishment of town sites within reclamation projects or under the authority of the Bureau of Reclamation. Sections 561-570 (43 USCA). These provisions of the law clearly indicate the intention of Congress that the towns so established will be and remain subject to local state jurisdiction, and lots therein acquired by individual residents, and parks, playgrounds, community centers,


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  6 A 160-acre limitation on lands for homesteads within the project is expressly stated in section 9 of the Boulder Canyon Act, as follows: "That all lands of the United States found by the Secretary of the Interior to be practicable of irrigation and reclamation by the irrigation works authorized herein shall be withdrawn from public entry. Thereafter, at the direction of the Secretary of the Interior, such lands shall be opened for entry, in tracts varying in size but not exceeding one hundred and sixty acres, as may be determined by the Secretary of the Interior, in accordance with the provisions of the reclamation law . . ."
 


 

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MAY 31, 1945

and school grounds acquired by the public." (Emphasis supplied)

In a word, then, the court, in order to find the answer to this question of tax liability, was required to revert to the reclamation law, of which the Boulder Canyon Act is a supplement. The answer clearly was not in the Boulder Canyon Act proper. Therefore, is it not logical to conclude that, if the provisions for the establishment of town sites carried over from the reclamation law to the Boulder Canyon Project Act, the excess-land limitation of 160-acres-one of the most basic provisions of the reclamation law7-carried over in like fashion?

    While the following State court decision concerns the original Homestead Act and the Enlarged Homestead Act rather than the reclamation law and the Boulder Canyon Project Act, it is sufficiently in point to merit discussion:

  First State Bank of Shelby v. Bottineau County Bank, 56 Mont. 363, 185 Pac. 162 (1919).

In that case, one Charles R. Wilbur, on July 25, 1913, made final proof upon 320 acres of land which he had entered under the Enlarged Homestead Act of February 19, 1909 (35 Stat. 639). On July 30 of the same year, the Bottineau County Bank recovered Judgment against Wilbur. In January 1914, Wilbur received his patent and on April 15, 1914, he conveyed the land by warranty deed to the First State Bank of Shelby, Montana. In November 1914, the Bottineau Bank attempted to levy execution on the land in satisfaction of its judgment, whereupon the First State Bank sought to restrain the sheriff from making the levy.

    The question was whether the provisions of the original Homestead Act of May 20, 1862 (12 Stat. 392), [containing a 160-acre limitation], exempting the land from the past debts of the patentee, carried over to the Enlarged Homestead Act, supra, [containing a 320-acre limitation]. The language in the original statute provided flatly that no land acquired thereunder could "in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefore." The "enlarged" statute was silent in the matter. If the provision of the original statute carried over to the latter act, the attempted levy of the Bottineau Bank was without legal sanction.

    The Supreme Court of Montana so held. It reviewed in detail the history and policy of the two statutes. It then summarized the six sections of the Enlarged Homestead Act and concluded:

    ". . . It will be seen at once that the Enlarged Homestead Act does not in terms change any of the provisions of the original act. The determination of the principal question before us, therefore, depends upon the proper construction of the Enlarged Homestead Act with reference to the original act.

    "Was it intended as an independent statute, or was it meant to become a part of the original homestead act as it existed at the time this new measure went into effect? Aside from any other consideration, the bare reading of the act of 1909 would seem to be sufficient to convince one that it could not have been intended as an independent act. . . .

    "If the Enlarged Homestead Act was intended as an amendment to the prior homestead laws, then the acts are to be construed as one as originally in the amended form. The history of this act is fairly conclusive that it was never intended to be construed otherwise than as a part of the original homestead law as it was then in force. Without quoting from the committee reports or the debates in the Congress, we think it is apparent from them that it was the intention of the lawmakers by this act to supplement the existing statutes-to improve the homestead laws and encourage the settlement of the vast areas of public lands in the semiarid regions, by increasing the amount of land subject to entry . . .

    "A supplementary act is one designed to improve an existing statute by adding something thereto without changing the original text. . . . Supplemental statutes include every species of amendatory legislation which goes to complete a legislative scheme . . .

    "Our conclusion is that the Enlarged Homestead Act is merely supplementary to the original homestead law, and is to be construed as a part of it. It follows that land acquired under it becomes subject to the provisions of section 2296 of the United States Revised Statutes . . . and that the land in controversy in this action could not in any event become liable to the satisfaction of any debt contracted by Wilbur prior to the date his patent was issued." (Emphasis supplied.)

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  7 How thoroughly the 160-acre limitation permeates both the homestead and the reclamation laws is emphasized in 34 Stat. 116, 43 U.S.C.. sec. 561, cited by the court, as follows: "The Secretary of the Interior may withdraw from public entry any lands needed for town-site purposes in connection with irrigation projects under the reclamation law, not exceeding one hundred and sixty acres in each case, and survey and subdivide the same into town lots . . ." (Emphasis supplied.)
 


 

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DEPARTMENT OF THE INTERIOR

MAY 31, 1945

    The answer to the question in the instant case is contained in the italic lines from the opinion of the Montana Supreme Court. If anything, our case is stronger. Section 14 of the Boulder Canyon Project Act makes that statute "a supplement to the reclamation law." There was no such express statutory connection between the original Homestead Act and the Enlarged Homestead Act. Yet the court found such a connection, even in the absence of express language, and enforced a limitation contained in the original act against land acquired under the supplemental act.8

    The Montana Supreme Court had a clear precedent for its decision. Three years earlier, Federal Judge Bourquin had so held in a bankruptcy case. In re Auge, 238 Fed. 621 (D.C. Mont. 1916). On that occasion the court observed:

    "The bankrupt's contention that all said land is exempt is based on section 2296, R.S. . . . which reads:

    " 'No lands acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefore.'

    "The chapter referred to is that of the federal original homestead law, providing for entries of 160 acres or less. Later homestead enactments . . . permit entries for as much as 320 acres enlarged homesteads-of public lands of certain quality :and subject to somewhat different conditions. These latter are but additions to and amendments of the original law, and upon settled principles all form a whole, to be taken and read together as though the later enactments were part of the original law from the beginning, so far as the protection extended by section 2296 is concerned. Said section provides protection; other sections define the area protected. Changes in the latter affect not the former. Hence enlarged homesteads are 'lands acquired under the provisions of this chapter,' within section 2296, and are entitled to its protection, even as lesser or ordinary homesteads are." (Emphasis supplied.)

    Even in the absence of the specific provision of section 14 of the Boulder Canyon Project Act, the general structure of this statute reveals that it was not meant to exist independently but rather as a part of the legislative scheme embodied in the Federal reclamation law. For instance, section 1 contains the authorization for the Secretary of the Interior to construct the All-American Canal. The act specifically provides "the expenditures for said main canal and appurtenant structures to be reimbursable, as provided in the reclamation law . . ." In order to determine the extent and mode of reimbursement, the pertinent provisions of the Federal reclamation law must be consulted. Other references to the Federal reclamation law are found in sections 4 (b),9 section 5,10 and section 911 of the Boulder Canyon Project Act. "It cannot be said that an act so absolutely dependent upon prior acts is an independent statute." First State Bank v. Bottineau County Bank, supra, at 164. Thus the intent of Congress, to make the Boulder Canyon Project Act part of the legislative pattern of the Federal reclamation laws, is clearly manifest.

    Furthermore, there is no language in the Boulder Canyon Project Act which expressly and directly repeals the excess-land provisions of the reclamation law. As laws are presumed to be enacted with deliberation and with a full knowledge of all existing statutes on the same subject, it is only reason

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   8 There are many cases which discuss the meaning of the word "supplement" in statutory construction. The prevailing opinion clearly is that the term signifies something which adds to, or completes, or extends that which is already in existence, without changing or modifying the original. McCleary v. Babcock, 169 Ind. 228, 82 N.E. 453 (1907); Lost Creek School Tp. 1, Vigo Co. v. York, 215 Ind. 636, 21 N.E. (2d) 58, 60 (1939). See also Loomis v. Runge, 66 Fed. 856, 859 (C.C.A. 5th, 1895); Swanson v. State, 132 Neb. 82, 271 N.W. 264, 268 (1937); Edwards v. Stein, 94 N.J. Eq. 251, 119 Atl. 504, 507 (1923); Bradley & Currier Co. v. Loving, 54 N.J.L. 227, 23 Atl 685, 686 (1892); Rahway Saving Institution v. City of Rahway, 53 N.J.L. 48, 20 Atl. 756, 757 (1890).
   9 "Sec. 4(b) . . . Before any money is appropriated for the construction of said main canal and appurtenant structures to connect the Laguna Dam with the Imperial and Coachella Valleys in California, or any construction work is done upon said canal or contracted for, the Secretary of the Interior shall make provision for revenues, by contract or otherwise, adequate in his judgment to insure payment of all expenses of construction, operation, and maintenance of said main canal and appurtenant structures in the manner provided in the reclamation law." (Emphasis applied.)

   10 "Sec. 5. That the Secretary of the Interior is hereby authorized, under such general regulations as he may prescribe to contract for the storage of water in said reservoir and for the delivery thereof . . . upon charges that will provide revenue which, in addition to other revenue accruing under the reclamation law and under this act, will in his judgment cover all expenses of operation and maintenance incurred by the United States on account of works constructed under this act and the payments to the United States . . ." (Emphasis supplied.)

   11 "Sec. 9. That all lands of the United States found by the Secretary of the Interior to be practicable of irrigation and reclamation by the irrigation works authorized herein shall be withdrawn from public entry. Thereafter, at the direction of the Secretary of the Interior, such lands shall be opened for entry, in tracts varying in size but not exceeding one hundred and sixty acres, as may be determined by the Secretary of the Interior, in accordance with the provisions of the reclamation law . . ." (Emphasis supplied.)

 


 

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OPINIONS OF THE SOLICITOR

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able to conclude that Congress, in passing the Boulder Canyon Project Act, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two should prove irreconcilable. United States v Noce, 268 U.S. 613 (1925) ; 12 United States v. Greathouse, 166 U.S. 601, 605 (1897);13  Frost v. Wenie, 157 U.S. 46 (1895) ;14 Henderson's Tobacco, 11 Wall. (78 U.S.) 652 (1870).15  The rule has been well stated in Red Rock v. Henry, 106 U.S. 596 (1882), 16 at page 601:

". . .when an affirmative statute contains no expression of a purpose to repeal a prior law, it does not repeal it unless the two acts are in irreconcilable conflict, or unless the later statute covers ,the whole ground occupied by the earlier and is clearly. intended as a substitute for it, and the intention of the legislature to repeal must be clear and manifest."

    Repeals by implication are not favored, and it will not be presumed that, by a subsequent enactment, the legislature intended to repeal former laws upon the general subject, and more especially in a case such as this where the existing reclamation law is referred to directly.  See decisions cited in notes 11 through 15 and State v. Bowker, 63 Mont. 6, 205 Pac. 961, 963 (1922);17  Jobb v. Meagher County, 20 Mont. 424, 51 Pac. 1034 (1898).18

      Nothing  in the legislative history of the Boulder Canyon Project Act indicates that it was the intention of Congress to abdicate the public policy embodied in the excess-land provisions of the reclamation law and thus open the door to the vicious real estate speculation which was all ready to take advantage of the Boulder Canyon project lands.  Congress was fully aware of this danger, and it was commonly assumed by Congress that the Boulder Project Act was subject to the excess-land provisions.19

    In the light of the foregoing authorities, it is my conclusion that the Boulder Canyon Project Act is supplementary to the reclamation law, except as otherwise therein provided, and, accordingly, the excess-land provisions are applicable to the Coachella Valley County Water District lands.

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    12 This case held that a provision in section 11 of the act of May 18, 1920 (41 Stat. 601). reading, "That hereafter longevity pay for officers in the Army, Navy, Marine Corps, Coast Guard, Public Health Service, and Coast and Geodetic Survey shall be based on the total of all service in any or all of said services," did not repeal section 6 of the act of October 24, 1912 (37 Stat. 569, 594), providing "That here after the service of a cadet who may hereafter be appointed to the United States Military Academy, or to the Naval Academy, shall not be counted in computing for any purpose the length of service of any officer of the Army."
    13
The proviso in the act of March 3, 1887, 24 Stat. 505, known as the Tucker Act, "That no suit against the Government of the United States shall be allowed under this act unless the same shall have been brought within six years after the right accrued for which the claim is made," did not repeal so much of section 1069 of the Revised Statutes as
provides, "that the claims of married women accrued during marriage, of persons under the age of twenty-one years first accrued during minority, and of idiots, lunatics, insane persons and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in the court or transmitted, as aforesaid, within three years after the disability has ceased; . . ."
    14
"This decision held that Congress, by enacting the act of December 15, 1880 (21 Stat. 311), opening for settlement certain lands in Kansas within the abandoned Fort Dodge military reservation, "in the absence of express words of
repeal;" did not impair the rights guaranteed to the Osage Indians by the treaty of 1865.
    15
The doctrine of repeal by implication was repudiated. The case held that the act of July 20, 1866, imposing taxes on distilled spirits and tobacco, did not repeal the proviso to the 25th section of the Internal Revenue Act of March 2,
1867. which limited to 20 days the time for commencing proceedings to enforce forfeitures.
    16
"The Minnesota statutes in question both concerned municipal financing.

    17
This case, which held that the procedure provided by a State prohibition statute, enacted in 1921, did not by implication supersede procedures established under a general statute, enacted in 1917, contains a comprehensive discussion of the subject.  The Montana Supreme Court said: "Repeals by implication are not favored, and will not be presumed that by a subsequent enactment the Legislature intended to repeal former laws upon the subject not mentioned. . .and more especially so in the case before us where the existing law appears to have been under consideration to the extent of direct reference thereto, both in the title and in the repealing clause." (Emphasis supplied.)
    18
Two Montana statutes concerning the appointment of deputy sheriffs were involved. The court refused to countenance any idea of repeal by implication.
    19
See, for example, the following discussion in the House of Representatives [69 Cong. Rec. 9626 (1928)].
    "Mr. Morton D. Hull. The language of the bill is not clear to me.
    "Mr. Douglas of Arizona. The bill authorizes the Secretary of the Interior to construct a canal to the Imperial and Coachello [sic] Valleys. The appropriation bill in specific terms is only for the all-American canal to the Imperial Valley. If the Coachello [sic.] Valley, where there are public lands, and if the areas in the vicinity of the Imperial Valley are to be brought in under cultivation, then the Congress must appropriate another $18,000,000.
    "Mr. Swing, Mr. Chairman, if the gentleman will permit, I think the gentleman from Illinois [Mr. Morton D. Hull] is referring to the limitation on the area that one person can hold after the canal is built, requiring that any large holding must be broken up, it must be turned over to the Secretary of the Interior, who may sell it for an appraised price, so that no one will hold over a maximum of 160 acres.
    "Mr. Douglas of Arizona. That is in the bill. I thank the gentleman. In this connection I might state also that the Imperial Valley and southern California is deluged with advertisements now 'Buy land in Imperial Valley now; speculate on Boulder Dam.'" (Emphasis supplied)

 


 

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    It now becomes necessary to examine and refute the principal arguments against the foregoing conclusion.

    It has been contended, for example, that in view of the language of section 14 of the Boulder Canyon Project Act the reclamation law applies only to the "construction, operation, and management of the works." This contention must, by necessity, be based either on the doctrine of ejus dem generis or on the doctrine of expressio unius est exclusio alterius. These doctrines belong more properly in the field of contract construction than statutory construction. The courts have repeatedly held that these doctrines are not of universal application, but serve only as an aid in the ascertainment of the meaning of the law, and must yield whenever a contrary intention of the lawmaker is apparent. Springer v. Philippine Islands, 277 U.S. 189, 206 (1928) ; Helvering v. Stockholm Enskilda Bank, 293 U.S. 84, 89 (1934). The contrary intent of Congress is apparent in section 14 of the Boulder Canyon Project Act.

    The unreported decision of the Superior Court for Imperial County, California in Hewes v. All Persons (May 24, 1932), has been cited as precedent for the nonapplicability of the excess-land provisions. The Superior Court held that the contract between the United States and the Imperial Irrigation District, dated December 1, 1932, providing for the construction of the All-American Canal, and all proceedings leading to its execution, are valid in all particulars. The jurisdiction of the court was invoked pursuant to the following provision of the contract:

    "Article 31. The execution of this contract by the District shall be authorized by the qualified electors of the District at an election held for that purpose. Thereafter, without delay, the District shall prosecute to judgment proceedings in court for a judicial confirmation of the authorization and validity of this contract. The United States shall not be in any manner bound under the terms and conditions of this contract unless and until a confirmatory final judgment in such proceedings shall have been rendered, including final decision, or pending appellate action if ground for appeal be laid. . . ."

The court made the following finding No. 35:

    "That under said Contract between the United States and Imperial Irrigation District, dated the 1st day of  December, 1932, the delivery of water will not be limited to 160 acres in a single ownership and that the lands of the defendant Charles Malan in excess of 160 acres will be denied water because of the size of said ownership, and that water service to lands regardless of the size of ownership will not be in any manner affected by said contract, so far as the size of individual ownership is concerned."


The court amplified this finding in its decision as follows:!

    "Use of Water not Limited by Reclamation Law.

    "Defendant Malan, the owner of 210 acres of land in Imperial Irrigation District, asserts that the contract is void because section 5 of  the Reclamation Law provides that no right to the use of water for land in private owner ship shall be sold for a tract exceeding 160 acres in any one landowner, thus preventing him from obtaining water for all of his land, that he will be required to pay water assessments upon all of his land but will be able to get water for only 160 acres, and that the contract takes from him, without compensation, his water right for all of his land in excess of 160 acres.

    "The water right of neither the defendant Malan nor of any other person in the Imperial Irrigation District may be taken by the district or by the government without compensation. Furthermore, section 5 of the Reclamation Law does not apply in these proceedings. The Boulder Canyon Project Act provides a complete scheme for the construction of the Boulder Dam, the All-American Canal, and the dam diverting water from the Colorado River into the canal. Section 1 of the Boulder Canyon Project Act provides that the expenditures for the main canal and appurtenant structures shall be 'reimbursable, as provided in the Reclamation Law', and in section 4 (b) it is required, that before any money is appropriated for the construction of the main canal and appurtenant structures, the secretary shall make provision for revenues adequate in his judgment to secure payment of all expenses of construction, operation, and maintenance 'in the manner provided in the Reclamation Law'. Section 14 provides that the Boulder Canyon Project Act 'shall be deemed a supplement to the Reclamation Law, which said Reclamation Law shall govern the construction, operation, and management of the works herein authorized, except as otherwise herein provided'. The act does not adopt the Reclamation Law or any of its provisions, except

 

 


 

MAY 31, 1945

OPINIONS OF THE SOLICITOR

1333

as above stated, and the authority of the secretary with reference to the delivery of water must be found in the Boulder Canyon Project Act and not in the Reclamation Law. Section 5 of the Boulder Canyon Project Act authorizes the secretary to contract for the delivery of water 'under such general regulations as he may prescribe' and provides that 'contracts respecting water for irrigation and domestic uses shall be for permanent service'. Article 30 of the contract reads as follows: 'Except as provided by the Boulder Canyon Project Act, the Reclamation Law shall govern  the construction, operation and maintenance of the works to be constructed hereunder'. There is nothing in the statute or in the contract limiting the acreage to which water may be sold and delivered."

    The reading of Article 31 of the contract shows that the jurisdiction of the court was invoked solely "for a judicial confirmation of the authorization and validity of the contract." Since the court was not called upon to determine the applicability of section 5 20 of the Reclamation Act to the contract, it thus clearly exceeded its authority. Accordingly, its finding No. 35, and that part of the opinion referring to it, must be regarded as dictum. This dictum is narrowly confined to the question of the applicability of section 5 of ,the reclamation law. Even assuming for purposes of discussion that the California court might be right as to the nonapplicability of section 5, this decision completely disregards the whole legislative scheme of the Federal reclamation laws on the subject of excess-land laws, e.g., section 46 of the Omnibus Adjustment Act, supra; the Warren Act, supra.

    Appeal was instituted by the Imperial Water District and by stipulation of the parties, the appeal was dismissed by the Supreme Court of California on February 26, 1934. The outcome of this action was of utmost importance to the United States because the construction of the All-American Canal was delayed because of a decision of the Comptroller General who held (A-32702, December 6, 1933) that no funds might be expended for construction until the contract had been found valid by the State court of last resort.

    These circumstances furnish the background and explanation for a letter of former Secretary of the Interior, Hon. Ray Lyman Wilbur dated February 24, 1933. In this letter the Secretary stated:

     "Early in the negotiations connected with the All-American Canal contract the question was raised regarding whether and to what extent the 160 acre limitation is applicable to lands to be irrigated from this canal. Upon careful consideration the view was reached that this limitation does not apply to lands now cultivated and having a present water right. These lands, having already a water right, are entitled to have such vested right recognized without regard to the acreage limitation mentioned. Congress evidently recognized that these lands had a vested right when the provision was inserted that no charge shall be made for the storage use, or delivery of water to be furnished these areas."

    A study of the letter reveals that it completely disregards all other excess-land provisions except section 5 of the Reclamation Act of 1902. 21 This construction of the congressional intention is not borne out by a review of the proceedings of Congress. Senator Pitman introduced, on December 14, 1928, the following amendment:

    "That no charge shall be made for water or for the use, storage, or delivery of water for irrigation or water for potable purposes in the Imperial or Coachella Valleys." 22

The following discussion ensued:

    "Mr. Pittman .  .  .  .

    "I will state that originally I entered a motion to strike out that whole proviso. However, as the representatives of Imperial Valley desired [sic.] to stay in, and are willing to limit its effects entirely to that valley, I defer to their wishes.  

    "Mr. Johnson. I have no objection to the amendment that is suggested.

    "Mr. King. Mr. President, may I inquire of the Senator from Nevada whether that is similar to the amendment which, was offered yesterday? I have just entered the Chamber, and did not hear the entire statement of the Sen-

_____________________
 

    20This section provides: "No right to the use of water for land in private ownership shall be sold for a tract exceeding one hundred and sixty acres to any one landowner unless he be an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of such land, and no such right shall permanently attach until all payments therefore are made." (Emphasis supplied.)
    21While this section, set out in footnote 20, supra, limits the sale of water rights to tracts of 160 acres or less, section 46 of the Omnibus Adjustment Act, set out previously in the text of this opinion, uses the term "delivered" instead of "sold."

    2270 Cong. Rec. 575 (1928) ; the amendment was accepted and appears in exactly the same wording as the last proviso of section 1 of the Boulder Canyon Project Act.

 


 

1334

DEPARTMENT OF THE INTERIOR

M AY 31, 1945

ator. The purpose, as I understand, of the amendment, is to relieve Imperial Valley from any charges whatever, except such as would be imposed under the reclamation act.

    "Mr. Pittman. That is .the opinion of the representatives of Imperial Valley, and that is the reason why it is put in that form. They feel that in some way that paragraph is more in harmony with the reclamation act. There is some doubt in my mind as to that; but, as they are willing to limit its effect entirely to their own valley, it is not a matter of such great concern to me.

    "Mr. King. Let me ask the Senator, in my own time, if he does not have the time, whether in his opinion the new lands which it is expected will be brought under cultivation in the Coachella or Imperial Valleys ought to be exempted from contribution to the construction of the dam?

    "Mr. Pittman. There is no charge in this bill whatever on the Imperial Valley land or the Coachella Valley land for .the construction of the dam or power house.

    "Mr. King. I know that, but inquire whether the Senator believes the users of water should exempt [sic.]. Under the reclamation projects, as the Senator knows, those who make contracts for the purchase of land or the purchase of water are required to pay for both water and the construction of canals and dams, and the amount which they pay includes all of the expenses of the Government. Here we are asking the settlers to pay only for the canal, and exempting them from paying anything whatever toward .the construction of the dam.

    "Mr. Pittman.. I admit this is an exception to the practice under the reclamation act in that it relieves this land from the payment of any part of the cost of the dam. It simply limits it to the cost of the canal. In this particular case the Senate has allocated $25,000,000 toward the cost of the dam. It is true that the $25,000,000 must be paid back, but the payment may be postponed until the end of the period of amortization. I think that in view of the fact that this dam has to be built for flood-control purposes, and in view of such allocation, we should exempt those lands in Imperial Valley from the payment of any part of the cost of that dam.

    "Mr. King.. Then it is apparent that the residents of Imperial Valley will have the benefits of flood control, storage water, the certainty of getting an equated flow, and will be required to pay for nothing except the cost of the All-American canal.

    "Mr. Pittman.. That is the fact; but I think the circumstances warrant it.

    "Mr. King. Does the Senator think there should be no distinction between those who have vested rights, who have already appropriated water in the Imperial Valley, and those who have no vested rights, and have never appropriated any water?

    "Mr. Pittman.. No;  I do not think we can have a successful reclamation project if we attempt to draw that distinction, because undoubtedly even those with the vested rights will have to pay a part of this cost if the Government is to be repaid--"

    Although the language of the letter of Secretary Wilbur seems broad enough to include the Coachella Valley district lands, the letter was clearly intended only to apply to the Imperial Irrigation lands. It apparently assumes that all privately owned land in the District was under irrigation and had a vested water right. Nothing in the files indicates whether such is the factual situation, and  there is strong indication that the Coachella Valley lands are to a very large degree as yet not irrigated.

    Furthermore, an examination of the files reveals that the letter of the former Secretary was written at the request of counsel of the Imperial District who wanted a ruling on the application of the excess-land provisions "provided, that such ruling would be that the 160-acre limitation did not apply."  Purposely, the letter of Secretary Wilbur never took the form of a formal decision. It was written solely for the purpose of giving partisan help to the Imperial Water District, as the delay of the final confirmation of the contract held up the construction of the All-American Canal. Besides, the time of the Hoover Administration was near its close. In less than ten days after the date of Secretary Wilbur's letter (February 24, 1933), President Roosevelt was inaugurated.

In summary, then, I reach the conclusion that in view of section 14 of the Boulder Canyon Project Act, which makes that act supplementary to the Federal reclamation law, the excess-land provisions contained therein are carried into operation with respect to the Coachella Valley water lands and should be incorporated in ,the contracts presently under consideration.

Fowler Harper,
Solicitor.

Approved: May 31, 1945.

H. L. I.,  Secretary of the Interior.

 


 

1335

OPINIONS OF THE SOLICITOR

MAY 31, 1945

ELECTRIC TRANSMISSION RIGHTS-OF-WAY
ACROSS TRIBAL LANDS--DISCUSSION OF
BOULDER CANYON PROJECT ACT AND
OTHER ACTS

 

May 31, 1945.
 

Memorandum for Assistant Secretary Chapman:

    The Office of Indian Affairs has submitted for your consideration a proposed letter addressed to the Superintendent of ,the Mission Indian Agency relating to a request by the Southern California Edison Company for permission to construct a transmission line across tribal lands on the Agua Caliente and Morongo Indian Reservations and across allotted lands on the latter reservation. The transmission line is for the purpose of transmitting power generated at Boulder Dam from the terminus of the Metropolitan Water District's transmission line at Hayfield, California, to Chino, California. The company intends to submit its application for a right-of-way across these lands in the near future but because of the urgent need for additional energy in the advancement of the war effort in Southern California it requests temporary permission to cross the lands.
 

    The proposed letter states that a right-of-way over Indian lands is authorized by section 5 (d) of the act of December 21, 1928 (45 Stat. 1057, 43 U.S.C. sec. 617 (d), known as the Boulder Canyon Project Act. The provision referred to reads:
 

    "The use is hereby authorized of such public and reserved lands of the United States as may be necessary or convenient for the construction, operation, and maintenance of main transmission lines to transmit said electrical energy."

    In my opinion the Boulder Canyon Project Act does not authorize the crossing of tribal and allotted Indian lands by transmission lines erected pursuant to that act. The act is a supplement to the reclamation 1aw.l It authorized the Secretary of the Interior to withdraw from public entry all lands of the United States found to be practicable of irrigation and reclamation and, therefore, it must be assumed, that the words "reserved lands of the United States" include all public lands which have been withdrawn from entry and not  Indian lands which were not, at the time of the passage of the Boulder Canyon Project Act, lands of the United States. Nothing in the legislative history of that act indicates that Indian lands were intended to be included within its terms, and, under the well-established rule, that Indian lands are not lands of the United States, this Department has no authority to permit the use of such lands pursuant to that act.

    Consideration has been given to other acts under which the requested rights-of-way may be granted. The acts of February 15, 1901,2 and March 4, 1911,3 authorize the Secretary to permit the use of rights-of-way across reservations of the United States for transmission lines, and these acts have been construed by the Department to be applicable to regularly established Indian reservations and allotted lands within such reservations.These acts, however, only authorize rights-of-way to the extent of 50 and 20 feet, respectively, on each side of the transmission lines and poles. The company in this case states that a right-of-way 150 feet wide across the lands within the Aqua Caliente Reservation and one 300 feet wide across the lands within the Morongo Reservation will be necessary.

    It is suggested that rights-of-way across the allotted lands within the Morongo Reservation could be obtained by means of easement deeds given by the allottees and approved by the Secretary or by means of revocable permits issued by the Secretary with the consent of the allottees. With respect to the tribal lands within the two reservations, revocable permits could be issued by the Secretary with the approval of the tribal councils of the respective tribes.

    The letter submitted by the Office of Indian Affairs has been rewritten in this office to delete reference to the Boulder Canyon Project Act. As rewritten, the letter will authorize the applicant to enter upon the tribal and allotted lands at its own risk upon obtaining the consent of the owners of the allotted lands and the consent of the tribal representatives of the two tribes and upon making a deposit of double the estimated damages.

    It is suggested that the Office of Indian Affairs be instructed to inform the Superintendent and the company that the rights-of-way may not be granted under the Boulder Canyon Project Act but that the company may obtain revocable permits or, in the

___________________


    1Section 14.
  
  231 Stat. 790, 43 U.S.C. sec. 959.
     336 Stat. 1253, 43 U.SC. sec. 961.
     4Memorandum for the Assistant Secretary dated April 13, 1946, approved April 16, 1943.


 

1336

DEPARTMENT OF THE INTERIOR

MAY 31, 1945

case of allotted lands, easement deeds, in the manner outlined above.

                                                                                                                                                      FOWLER HARPER,

Solicitor.


Approved and returned to the Office of
Indian Affairs with instructions to proceed
in the manner outlined by the Solicitor.

OSCAR L. CHAPMAN, Assistant Secretary.

June 4, 1945.

COUNTY PERSONAL PROPERTY TAXES--
IMMUNITY OF SEVERED CROPS FROM
LEVY ON TRUST LAND--WINNEBAGO

 


June 11, 1945.


The Honorable, The Attorney General.

SIR:

    This is with reference to your letters of January 17 and June 2 relating to the attempt of the sheriff of Thurston County, Nebraska, to levy upon the crop of Charles J. Springer, a Winnebago Indian, to satisfy a personal property tax (your file REM-HP 90-2-5-298). Your Department wished to be advised whether it was the practice at the Winnebago Agency ao require Indians to obtain specific permission to sell severed crops.

    The Department regrets the delay in replying to your letter of January 17 but it has taken considerable time to secure the information necessary to dispose of this matter and to consider the questions of law and policy involved.

    It appears that it has not been the practice to require Indians to secure permission to sell severed crops. To justify such a practice, it would be necessary to assume that the restrictions on the alienation of the land extended even to the disposition of the severed crops but the Department doubts that such a proposition could successfully be maintained even if it was deemed wise policy to do so.

    If any case can be made at all in support of the immunity of the severed crop from levy, it could probably be done only by arguing that the express tax exemption of the trust land extends also to the crop as long as it remains clearly identifiable on the theory that the crop represents the income of the tax exempt land. This is probably not a very promising view because of the overruling of the case of Gillespie v. Oklahoma, 257 U.S. 501, in Helvering v. Mountain Producers Corp., 303 U.S. 376, and the position taken by the majority of the court in Oklahoma Tax Commission v. United States, 319 U.S. 598, which may be interpreted as based on the assumption that income would be taxable not only in a case involving an Indian lessee but also in the case of an Indian himself. However, even this view could not be advanced with any prospect of success if the levy which the sheriff is attempting to make is not based on a tax due by reason of the ownership of the crop itself but is based upon the ownership of other property that may be validly taxed, and the purpose of the levy is to satisfy such a tax.

    The Department has now been advised that the latter is the case, and it believes therefore that it would be hopeless to attempt to take any legal action to prevent the levy on the crop of Charles J. Springer.

                                                                                                                                                       FOWLER HARPER,

Solicitor.


DEFAULT ON TRIBAL LOAN TO TRIBAL MEMBER--
COLLECTION--TRIBE NEED NOT ASSIGN DEBT TO
U.S. IN ORDER TO SUE

July 3, 1945.

Memorandum for Assistant Secretary Chapman:

    In your memorandum of May 9 you asked me to consider the suggestion made by Commissioner Brophy in his memorandum of April 28 that tribes should not assign the debt and security to the United States upon default of a loan to one of its members. Commissioner Brophy says that he sees no practical reason for such assignment because "the tribe could and should sue the debtor directly without the intervention of the United States as a party plaintiff." He states that the United States Attorney "would have ao handle the case for the tribe anyway."

    It is true that there is a statute on the books (27 Stat. 631, 25 U.S.C. sec. 175) which provides: "In all States and Territories where there are reservations or allotted Indians the United States district attorney shall represent them in all suits at law and in equity." While the scope of the statute seems very broad, the Department of Justice has not adopted a consistent policy as to when it will authorize or require United States District Attorneys to appear on behalf of the Indians pursuant to this act. (See Cohen: Handbook of Federal Indian Law, pp. 252-253.) In any event, it would certainly be necessary to secure the coopera-
 


 

1337

OPINIONS OF THE SOLICITOR

JULY 7, 1945

tion of the Attorney General before any steps could be taken to change the existing practice with respect to the collection of loans from tribal members. I should be loath to make such a suggestion to the Attorney General except on very persuasive grounds, which, however, do not appear to exist.

    The interest of the United States is very real when a member of a tribe is in default on his debt to the lending tribe. I believe that in order to protect its own investment it is advisable for the United States to require an assignment of the individual debt in such situations. Moreover, the tribe itself might be in default, in which case the United States would certainly desire to supervise the collection of all outstanding loans. Thus the practice in collecting loans would not be uniform. Indeed the practice could not be made uniform without modification of existing loan agreements under which a general assignment has already been made to the United States of all present and future instruments of indebtedness and security.

    As revolving credit loans are made to unorganized as well as to corporate tribal entities, there is another practical consideration involved in allowing the tribe to sue directly. It is doubtful whether a tribe as such may bring suit in the absence of statutory authorization, express or implied. This question has never been clearly settled. (See Handbook of Federal Indian Law, pp. 283-285.) While it is clear that the incorporated tribes could sue, in any suit by a tribe against one of its members, there would not ordinarily be any basis for Federal jurisdiction. Suit would have to be brought in the State courts. It must also be remembered that even if a tribe should handle the collection of loans itself it would still be necessary for the Department to participate in the litigation to the extent at least of certifying various documents.

    I think therefore that it would not be practically feasible or desirable to authorize tribes to sue debtors directly without the intervention of the United States as a party plaintiff. I, too, feel that all steps should be taken to turn over more of the handling of loans to the tribes wherever possible. From the creation and maintenance of a debtor-creditor relationship, a tribe itself as well as its individual members have much to learn and to profit. But, when efforts at collection short of suit become hopeless, there remains merely a disagreeable, technical job to be performed as efficiently and expeditiously as possible. There is neither joy nor profit in litigation, which whether it is instituted at the request of the tribe or the United States will still be conducted by the United States Attorney. In the conduct of such litigation, I fail to see any genuine issue of tribal autonomy or self-government. In any event, no action should be taken by the Department until the tribes themselves come to insist that the existing practice be changed.

                                                                                                                                                     FOWLER HARPER,

Solicitor.


REQUIREMENT FOR INDIAN COMMERCIAL
FISHING LICENSE AND PAYMENT OF
POUNDAGE FEE-OREGON

 


July 3, 1945.


Memorandum for the Commissioner of Indian Affairs:

    This office has studied the questions submitted by you concerning the fishing rights of the Indians in the State of Oregon with the purpose of preparing an opinion as requested in your memoranda of October 12 and December 15, 1944. Careful consideration has been given to those questions by attorneys in this office, and it is our opinion that the position taken in the Department's letter to Mr. Simmons of October 17, 1944, is correct, i.e., that it would be far preferable to defend an Indian who is prosecuted for violation of the State law with regard to the requirements of a commercial license and the payment of poundage fees. In connection with the question of the right of the State to prohibit the use of the bag-dip net, the file does not contain sufficient factual information to make a positive answer.

    When Mr. Simmons was last in Washington, this matter was discussed with him, and he agreed that an opinion should not be written. He suggested that he would communicate with your office so that the request for an opinion could be withdrawn. Would you, please have this matter investigated and inform this office whether you still desire to have an opinion written.

                                                                                                                                                      FOWLER HARPER,

Solicitor.


TAXING POWERS OF VILLAGE OF
SAXMAN

July 7, 1945.


George W. Folta, Esq.,
Counsel at Large,
Juneau, Alaska.

MY DEAR MR. FOLTA:

    I have reviewed your memorandum to Superintendent Foster, dated February 15, concerning the taxing powers of the Village of Saxman. I believe that some of the statements made in that memorandum are subject to misinterpretation.
 


 

1338

DEPARTMENT OF THE INTERIOR

JULY 7, 1945

    There is evidence that the inhabitants of the town consider themselves a band or division of the Tlingit Tribe, known as the Saneaquan Indians. For example, a petition was filed on July 7, 1944, alleging these facts. If the village has continued its aboriginal character as a tribe or a band, the rule stated in the Handbook of Federal Indian Law that a tribe has the right to impose taxes on its members would be applicable in this situation. The constitutional provision authorizing the village council "to levy dues, fees, assessments, and fines on the members for Village purposes" includes the power to impose and collect property taxes. It has often been held that the function of levying assessments has that connotation. Johnson City v. Clinchfield R. Co., 43 S.W. (2d) 386, 387, 163 Tenn. 232 (citing Bouvier's definition of "Assessment"); Milwaukee v. Taylor, 282 N.W. 448, 454; In re Dormer-Hanna Coke Corp., 209 N.Y.S. 62, 212 App. Div. 338; Adams, Meldrum & Anderson Co. v. Shelbyville, 57 N.E. 114, 154 Ind. 467; Roesch v. State, 56 So. 562, 564, 565, 62 Fla. 263; Orr v. Allen, 245 Fed. 486, 498; People v. Foster, 295 N.Y.S. 891, 895, 251 App. Div. 65; Alder v. Whitbeck, 9 N.E. 672, 677, 44 Ohio St. 539; Weeks v. Milwaukee, 10 Wisc. 242, 259; People v. Taylorville Sanitary Dist., 20 N.E. (2d) 576, 578, 371 Ill. 280; New York C. & St. L. Ry. Co. v. City of Hammond, 83 N.E. 244, 245, 170 Ind. 493.

    Of course, the authority to collect taxes is limited by any pertinent statutory provisions, as pointed out in your memorandum in connection with the act of May 25, 1926 (44 Stat. 629, 48 U.S.C. sec. 355).

    On the second page of your memorandum, you refer to the authority of the village to grant a right-of-way to the City of Ketchikan for a transmission line. Your statement of law in this connection appears to be correct except that you might point out to the council that in accordance with the charter provision the approval of an easement or permit may be given by the Secretary of the Interior or his duly authorized representative.

                                                                                                                                                    FELIX S. COHEN,

Acting Solicitor.

CONTRACTUAL EMPLOYMENT OF ATTORNEY BY
ALASKAN VILLAGE WHERE REPRESENTATIVE
BEFORE COURT OF CLAIMS IS NOT
CONTEMPLATED

July 28, 1945.

Memorandum for the Commissioner of Indian Affairs:

    I am returning for further consideration the proposed letter to Mr. William L. Paul, Jr., declining to approve a proposed contract for the representation of the Tlingit Indians of Saxman, Alaska.

    The letter assumes that the Indian party to the contract is an unorganized tribe of Indians whose contract must meet the requirements of Section 2103 of the Revised Statutes (25 U.S.C., sec. 81). But it appears from the contract and the resolution attached thereto that the contract is made with the residents of the Village of Saxman. Since the residents of this village are organized under the Act of May 1, 1936 (49 Stat. 1250) on a residential basis I believe that their employment of an attorney should be by contract executed in conformity with the provisions of their constitution, Article V, Section 1 (b) of which empowers the Council to employ legal counsel subject to the approval of the Secretary of the Interior as to the choice of counsel and the fixing of fees. Since all of the residents of this community are members of the Organized Village of Saxman the situation may be distinguished f that referred to in my memorandum to you of August 24, 1944, in which it was pointed out that a village organized on an occupational basis did not comprise the entire community, and that for this reason it would be improper for such a village to employ counsel who purported to represent the entire community.

    If the parties desire to comply with the provisions of Section 2103 of the Revised Statutes it is believe that we should interpose no objection to execution of the contract before a United States Commissioner. By virtue of the provisions of 48 U.S.C., sec. 108, the United States Commissioners in Alaska are vested with certain judicial powers, and the execution of the contract before one of those commissioners should be regarded as a sufficient compliance with Section 2103.

    The proposed letter also takes the position that the contract, by providing for representation of the Indians in matters "arising out of tribal ancestral possessory rights to land and water of a legal or equitable nature," may conflict with a contract now receiving consideration in your Office which was executed by representatives of the Tlingit and Haida Indians to prosecute their claims against the United States under the Jurisdictional Act of June 19, 1935 (49 Stat. 388), as amended. The jurisdictional act provides that the attorney or attorneys employed by the Indians to prosecute their claims thereunder shall be selected by a committee chosen by the Tlingit and Haida Indians under the direction and approval of the Secretary and the Commissioner. All of the arrangements heretofore made for the employment of counsel by the Tlingit and Haida Indians to represent them before the Court of Claims under that act have proceeded on the theory that counsel would be
 


 

1339

OPINIONS OF THE SOLICITOR

AUGUST 17, 1945

chosen by a committee representing all of the Tlingit and Haida communities. Since counsel employed in any manner other than that contemplated by the jurisdictional act would have no standing in the Court of Claims I believe that we need not be concerned with a possible conflict between the two contracts.

    Unless your Office has administrative reasons for limiting the contract to the representation of the Indians in matters arising under the Alaska Fishery Regulations (50 C.F.R. 201.21b), I suggest that Mr. Paul be advised that the Department would be willing to consider a contract on the enclosed form which was entered into with the residents of the Village of Saxman in conformity with the provisions of their constitution.

                                                                                                                                                      FOWLER HARPER,

Solicitor.


 

TITLE SEARCH REQUIREMENTS WHEN
INDIANS CONTRIBUTE LAND AS GIFT TO
TRIBE

August 14, 1945.


Memorandum for the Commissioner of Indian Affairs:

Attention: Mr. Zimmerman.

    Your memorandum of August 7, answering mine of November 2, indicates that apparently Indians who offer to contribute land to the tribe are being required to finance title searches incident to the gift. (I use the word "apparently" because of Superintendent McBride's curious statement: "It is not the policy of this office to require Indians desiring to convey individual Indian lands to the tribe to finance title searches. However, it is the policy to require Indians to finance title searches in the form of abstracts etc. and for the actual cost necessary to clear the title.") Your memorandum goes on to say that the policy of not accepting quitclaim deeds from Indian donors "originated and grew out of the refusal of your office to accept or approve such conveyances, especially as it relates to the conveyance of unrestricted Indian lands."

    The foregoing views involve a misapprehension of legal and departmental requirements. The Secretary's Order No. 1696, dated May 16, 1942, expressly declares that conveyances to the United States need not contain covenants of general warranty if "donors are unwilling to execute deeds containing covenants of general warranty." Certainly no stricter rule should be applied in the case of a gift to an Indian tribe. Of course, where the Indian donor has an abstract of title he should be requested to furnish it. And of course, to the extent that the tribe or the Government can secure abstracts of title for lands so conveyed the position of the tribe with respect to its land holdings would be that much stronger. I feel that whenever financially possible and particularly when improvements are contemplated on the donated land, evidence of title prepared by your office or an abstract company should be submitted but without expense to the donor. It seems to me ungracious, to say the least, to refuse a gift of land where the Indian donor is not in a position to provide the Government with legal advice on the validity of his title, and I very much regret that this legal position has been unjustifiably ascribed to this office by Superintendent McBride. Incidents of this sort, in which fallacious legal technicalities, invoked by non-lawyers, are ascribed to the Solicitor's Office, help to create an impression that the Solicitor's Office is a source of obstruction. I trust that you will see to it that any erroneous advice that has gone to Indians or to Members of Congress as to the position of this office in objecting to gifts of land unaccompanied by warranties is corrected, so far as possible.

    On the second point covered in my original memorandum of November 2, I note that the matter of land acquisition programs being carried out without consultation with the Indian Service has received your attention and that appropriate steps are apparently being taken to reform this practice.

    The third point raised in your memorandum of August 7, in connection with the validity of certain claims for back taxes, is receiving further consideration in this office.

                                                                                                                                                       FOWLER HARPER,

Solicitor.


 

COSTS OF SUBJUGATION WORK ON
SALT RIVER INDIAN IRRIGATION
PROJECT AS DEFERRABLE CONSTRUCTION
COST UNDER LEAVITT ACT OF JULY 1,
1932 (47 STAT. 564)


 

August 17, 1945.


 The appropriation of $30,000 for "construction, repair and rehabilitation" on the Salt River Project made by the act of June 28, 1944 (Public Law 369, 78th Cong.) may be used for subjugation of Indian lands under the project. In view of the legislative history of this item, the general practice in recent years in performing subjugation work in Indian projects, and the somewhat
 


 

1340

DEPARTMENT OF THE INTERIOR

AUGUST 17, 1945

artificial character of the distinction between "construction" costs and other types of cost, the funds expended for construction work on the Salt River Project may be treated as deferrable construction cost under the Leavitt Act of July 1, 1932 (47 Stat. 564, 25 U.S.C. sec. 386a).

HARPER, Solicitor:

Memorandum for the Assistant Secretary:

    The Commissioner of Indian Affairs has submitted to the Department a letter dated June 2 directing the Superintendent of the Pima Agency to proceed with subjugation work on lands under the Salt River irrigation project as soon as he has obtained the consent of the Indian owners of the land. A form of consent to this subjugation work is attached to the letter and is also submitted for departmental approval. The subjugation work is to be performed with the funds appropriated by the Appropriation Act for the fiscal year 1945, approved June 28, 1944 (Public Law 369, 78th Cong.). The sum of $30,000 was appropriated by this act under the heading "For the construction, repair and rehabilitation of irrigation systems on Indian Reservations." It is assumed in the Indian Office letter that the subjugation work performed with this appropriation will be part of the construction cost of the project, and as such will be deferrable under the Leavitt Act of July 1, 1932 (47 Stat. 564, 25 U.S.C. sec. 386a), so long as the lands remain in Indian ownership. In view of a difference of opinion on this question in the Indian Office, the Commissioner has expressly requested that I give it consideration.

    I am of the opinion that the funds to be expended on subjugating the lands under the Salt River project may be treated as "construction costs," the repayment of which is deferred under the Leavitt Act. In a memorandum from Mr. E. R. Moose to Mr. E. C. Fortier, dated April 27, 1945, the legislative history of the appropriations for the Salt River project, as well as the appropriations for a number of other projects, is set forth, and it appears clearly that the appropriations subcommittees of the House were informed that part of the funds appropriated would be expended in subjugating the lands under the Salt River project.1 Indeed it seems to have become a general practice for the Indian Irrigation Service to secure appropriations or subjugating Indian lands under Indian irrigation projects.

    However, it is not the mere appropriation for subjugation work that is decisive. In the first place, in some cases while the appropriation committee was informed that subjugation work was planned, the appropriation actually made for the particular year did not contemplate that subjugation work would be one that year.2 In the second place, subjugation work could conceivably be regarded as "operation and maintenance" rather than "construction work ," and thus might be subject to cancellation rather than deferment under the Leavitt Act. To be able to find that the cost of subjugation work may be treated as a deferrable construction cost, it must appear that the funds appropriated were necessarily treated as construction costs in the
appropriation itself. In other words the question of the applicability of the Leavitt Act to an appropriation for subjugation work is a distinct question.

    On the last page of the April 27 memorandum from Mr. Moose to Mr. Fortier a statement made by Mr. Wathen at the 1938 hearings to a member of the appropriations committee is quoted to demonstrate that the subjugation work to be done on the Salt River project is a deferrable construction cost under the Leavitt Act. Actually this statement does not establish such a proposition. The item under discussion was not for the Salt River project but for "Improvement and maintenance" on the Hopi Reservation. The member in question did not ask directly whether subjugation work was a construction cost. He asked merely whether construction costs in general would be returned by the Indians. The question put and the answer were as follows:

    "Mr. O'Neal: It is not expected that the construction costs will be returned by the Indians eventually, is it?

    "Mr. Wathen: No; it is not contemplated that the construction costs will be returned. The Leavitt Act of 1932 provides that no construction assessment shall be made so long as the Indians retain title of the land, and there is no question but that they will retain title to that land indefinitely."

____________
   1 The following items of legislative history have been found, some of which are not cited in the Moose memorandum: Senate Hearings on Interior Department Appropriation Bill, 1937, p. 121; House Hearings on Interior Department Appropriation Bill, 1938, pp. 1070-1072; 1939, p. 287; 1940, p. 271; 1942, p. 275; 1945, p. 123.

   2 See, for instance, House Hearings on Interior Department Appropriation Bill, 1938, p. 1064, where a detailed justification of the Colorado River Project is made. Subjugation work is listed as item 7 in the program but no such work was actually to be done in 1938. In fact in the hearings on the appropriation bill for the fiscal year 1939 at page 282, it was made plain that no subjugation work would be done until 1940.
 


 

1341

OPINIONS OF THE SOLICITOR

AUGUST 17, 1945

    At another point in the 1938 hearings3 this statement was made to the committee about the plans for the Salt River project:

    "The completion of the irrigation system for the increased area and the subjugation of the additional acreage will require an expenditure of approximately $315,000. It is proposed to spread the work over a five year period. The first year's work contemplates performing the major part of (the work of constructing the irrigation system. The second year's work contemplates completion of the irrigation system and the beginning of land subjugation work. The remainder of the program would then consist of land subjugation, estimated to cost $25 per acre for 6,310 acres. The total irrigable area eventually will be about 9,758 acres."

Again Mr. O'Neal asked in general terms: "What percentage of the construction cost is reimbursable?" and Mr. Wathen replied similarly: "No part of the construction cast is reimbursable so long as the land is in Indian ownership."

    It must be remembered, too, that a legal opinion expressed by a witness at a hearing could hardly change the meaning of a prior act of Congress if in fact such opinion is erroneous. This must be especially true when the opinion is expressed by a witness who is not a lawyer.

    However, there are several statements in the hearings from 1938 to 1940, which clearly indicate that subjugation work was accepted by the appropriation subcommittees as part of construction cost. While these statements were not made in connection with the Salt River project, they must nevertheless be regarded as significant of the general current of thought at the time. Thus it was stated in 1938 4 with respect to the Colorado River project: "It is proposed that the construction work, including subjugation of the land shall be spread over a period of approximately 10 years . . ." Again it was stated at the same hearing5 with reference to the Uncompahgre project: "The construction program for this division of the former Uintah Indian Reservation contemplates the following work," and in this work was included "land subjugation." Finally, in 1940,6 in discussing the Colorado Riven: project, a member of the committee, Mr. Leary, asked: "What will it cost when it is completed?" and on this occasion Mr. Wathen replied: "Including subjugation, which we propose to take care of in our construction, it will cost in the neighborhood of $100 an acre." (Emphasis supplied in various quotations.)

    In the hearings on the 1945 appropriation bill,7 it was explained that the Salt River project item was intended principally as an appropriation for subjugation but it was not expressly stated that it was to be treated as an item of construction cost. However, this appears from the appropriation itself, since it is for "construction, repair and rehabilitation."8 Subjugation work could be a form of "repair and rehabilitation" if it consisted of leveling and bordering land once already irrigated, and there is no indication that this may be true of some of the land in the Salt River project9 which is now to be subjugated. But this apparently can be true of only a small part of the acreage. The new land subjugated could be treated only as part of the construction work, and in view of the fact that the appropriation committees in recent years had been advised that such would be the practice on various other projects, it is fair to assume that the whole appropriation for subjugation should be regarded as a construction item.

    It is true that when the Leavitt Act was passed, it was not the practice to subjugate land for Indians, and such work would therefore not have been a construction cost. But there is no reason to suppose that Congress intended to confine the term "construction cost" to those types of construction which were the included within the meaning of the term. As Justice Holmes once said: "A word is not a crystal, transparent and unchanged."10 The Leavitt Act was intended to defer the repayment of construction costs which should occur in the future. Since the act was to have a prospective operation, it is only reasonable to suppose that the concept of "construction" should not be regarded as immutable and unchanging. It must be realized that to a certain extent the distinction between "construction costs" and other types of costs such as "operation and maintenance" costs, or "repair and rehabilitation" costs is conventional

_____________
  3 Pages 1070-1072.
  4 House Hearings on Interior Department Appropriation Bill, 1988, p. 1064.

  5 Ibid., p. 1088.

  6 House Hearings on Interior Department Appropriation Bill, 1940 p. 296.

  7 House Hearings on Interior Department Appropriation Bill, 1945. Part 2, p. 123.
  8 The appropriations were also for other purposes but these are clearly irrelevant since they were for "the purchase and rental of equipment, tools and appliances; for the acquisition of rights-of-way; and payment of damages in connection with such irrigation stems; for the development of domestic and stock water and water for subsistence gardens; for the purchase of water rights, ditches and lands needed for such projects; and for drainage and protection of irrigable lands from damage by floods or loss of water rights."

  9 See a statement to this effect in House Hearings on Interior Department Appropriation Bill, 1942, p. 275.

 
 10 Towne v. Eisner, 245 U.S. 418, 425.

 


 

1342

DEPARTMENT OF THE INTERIOR

AUGUST 17, 1945

and artificial, and even arbitrary. It seems to be the practice during the period of construction of irrigation projects to carry even operation and maintenance charges into construction costs," and legislation governing the Flathead irrigation project, for instance, has expressly provided for covering operation and maintenance charges into construction costs.12 It would be wholly unprofitable to debate as a general question whether in the nature of things the construction of a drainage ditch is to be regarded as a "construction cost" rather than an "operation and maintenance" charge. The answer to such a question must depend upon the circumstances of the particular case in the light of applicable legislation.

    It has been pointed out that this office raised the question some time ago13 whether there was authority under section 1 of the act of June 22, 1936 (49 Stat. 1803, 25 U.S.C. sec. 389), which is the non-Indian analogue to the Leavitt Act, to cancel the charges arising from inadequate drainage facilities. But this doubt arose only by reason of the fact that section 2 of the same act, which permitted lands to be declared temporarily non-irrigable, expressly referred to a lack of proper drainage facilities. In other words, it arose by reason of the particular provisions of the act. There certainly was no intention to consider, let alone decide, the abstract question whether the cost of drainage facilities could be regarded as a construction cost.

    Attention has been called to the provision of the act of June 22, 1936 (49 Stat. 1757, 1772), which is the appropriation act for the fiscal year 1937, making specific provision for land subjugation in the expenditure of certain funds. Thus it was provided: "That where necessary the foregoing amounts may be used for subjugating lands for which irrigation facilities are being developed." This provision was dropped the following year with the explanation that it had been inserted because subjugation work is especially desirable in the development of garden tracts" but that it was no longer necessary in view of the omission of any funds for the development of garden tracts.14 In point of fact, an appropriation of $60,000 for the development of garden tracts was subsequently suggested to the Senate Subcommittee15 and enacted.16 But this change of plan does not affect the validity of the explanation nor would it be affected even by the fact that it was logically wrong and unpersuasive. The mere fact that the explanation was made establishes that the abandonment of the express provision was not intended to terminate the appropriation of funds for subjugation as part of the construction cost. Moreover, all the appropriations for the development of garden tracts were expressly made nonreimbursable.17 Ever since the fiscal year 1938 the appropriation acts have also carried an appropriation for "continuing subjugation and for cropping operations on the lands of the Pima Indians in Arizona." But this appropriation is made in connection with the conduct of a tribal pasturing enterprise18 from the proceeds of the enterprise, and thus represents an appropriation of tribal funds. The Leavitt Act, however, has no application to tribal funds. In any event, it does not seem to me that the omission of an express provision once made with reference to subjugation is decisive. As I have indicated, such omission may occur because of various reasons including inadvertence, and even the mistaken conviction that it was no longer necessary. Common designs are not to be attributed to diverse Congresses.

    The reason for subjugating Indian lands as part of the construction of an Indian irrigation project was excellently stated during the hearings on the Interior Department Appropriation Bill for 1941 in explaining an item for subjugation work on Navajo lands, but it is equally applicable to any Indian lands. The statement is as follows:19

    "Subjugation of Indian lands by the Government is necessary for many reasons. The Indian as a rule does not have the money or equipment with which to do this work, nor is he skilled in this specialized field. In many instances in the past his land has been placed under constructed works without subjugation,

_____________
  11See the statement to this effect in House Hearings on Interior Department Appropriations Bill, 1939, p. 246.
  12 See acts of March 7, 1928 (45 Stat. 200, 213); April 22, 1932 (47 Stat. 91, 101); and May 9, 1935 (49 Stat. 176, 188).
   13 Memorandum Sol. I.D. March 30, 1943.

   14 See House Hearings on Interior Department Appropriation Bill, 1938, p. 1063.

   15 See Senate Hearings on Interior Department Appropriation Bill, 1938, p. 245.

   16 See Act of August 9, 1937 (50 Stat. 564, 580).

   17 Thus the relevant provision of the act of June 22, 1936, reads in its entirety: "That when necessary the foregoing amounts may be used for subjugating lands for which irrigation facilities are being developed: Provided further, That the cost of the foregoing irrigation projects and of operating and maintaining such projects where reimbursement thereof is required by law, but not including the cost of domestic and stock water projects and for the development of water for garden tracts, shall be apportioned on a per acre basis against the lands under the respective projects . . ." (Emphasis supplied.) The $60,000 item in the act of August 9, 1937, was also made non-reimbursable.

   18 The nature of this enterprise is explained in some detail in House Hearings on Interior Department Appropriation Bill, 1938, p. 1031.

   19 Page 275.

 


 

1343

OPINIONS OF THE SOLICITOR

AUGUST 20, 1945

and his attempts to irrigate raw land that is rough, without properly located farm ditches and structures necessary to control the water, has resulted in failure. In many places the low ground is drowned trying to force water onto the high spots. This has resulted in the water logging of large areas, making them unfit for future cultivation, and the crops on the high spots do not mature due to lack of water. The Indian farmer has become discouraged, and as a result full benefits from the utilization of the project have never been realized.

    "In order that the Indians can place their lands under cultivation and mature crops where irrigation is necessary, it is necessary to subjugate areas according to the available water supply. This work includes clearing, leveling, and construction of farm ditches and the necessary structures."

    In concluding the discussion of the problem, I think it is necessary, however, to enter a caveat. While I pave little reason .to suppose that appropriations obtained for subjugation work on other Indian projects do not represent construction costs that are also deferrable under the Leavitt Act, it follows from what I have said that this may not always and invariably be true, and hence I do not wish to be understood as deciding actually more than the precise question that has been submitted to me which relates to the Salt River project. I should emphasize, too, the importance of restricting subjugation work to exclusively Indian projects, so long as such work is undertaken only on behalf of Indians. In the case of mixed projects, it would not be possible to justify subjugation work for Indians that would not also be undertaken for non-Indians. Since existing law contains the general provision that construction costs must be prorated on an equal per acre basis against all the lands of a project, it would be obviously inequitable to perform subjugation work for Indian landowners that was not also performed for non-Indian landowners. Even in the case of a wholly Indian project, the same amount of subjugation work would not be required on every parcel of land, but the resulting inequities would be rather slight, and the individual Indian would have no cause to complain in view of the deferment provision of the Leavitt Act.

    I note that in the Indian Office letter of June 2 the Superintendent of the Pima Agency is instructed that he is authorized to proceed with the subjugation work without obtaining the consent of absent owners, or if there is other adequate reason for dispensing with the consent of the owners. I am not taking exception to this instruction in view of the long-standing practice of performing irrigation construction work on Indian reservations without obtaining the consent of the Indians.20 I am not, however, expressing any opinion at this time as to the legality of any debt or lien in the case of a nonconsenting landowner. You may therefore wish to modify the proposed direction contained in your letter to Superintendent Robinson, authorizing him to proceed with subjugation work without obtaining consent of landowners, so as to permit consideration of the legal consequences of such action if it appears necessary.

                                                                                                                                                      FOWLER HARPER,

Solicitor.


August 17, 1945.

Approved and referred to the Commissioner of Indian Affairs.

OSCAR L. CHAPMAN, Assistant Secretary.

DEPOSIT AND USE OF MONEYS
COLLECTED AS FEES FOR SERVICES
PERFORMED FOR INDIANS

August 20, 1945.


Under the Act of March 1, 1933 (47 Stat. 1417, 25 U.S.C. sec. 413), moneys collected as fees for services performed for Indians or Indian tribes must be covered into the Treasury of the United States as miscellaneous receipts unless the expenses of the work for which the fees are charged are paid out of funds belonging to an Indian tribe, in which event the fees must be credited to the tribal fund. The fund "Indian Moneys, Proceeds of Labor, Agency" is not a tribal fund but belongs to the United States and consists of miscellaneous revenues derived from an Indian agency which are not the result of labor of a member of an Indian tribe and which are not required by law to be otherwise deposited. Fees collected for work performed and paid for out of the fund "Indian Moneys, Proceeds of Labor, Agency" are required by the 1933 act, supra, to be covered into the Treasury as miscellaneous receipts, and in view of this statutory requirement as to their disposition such fees are not within the class of funds subject to deposit as "Indian Moneys, Proceeds of Labor, Agency."

HARPER, Solicitor.

_____________
   20 See Op. Sol., M. 14051, November 17, 1924.
 


 

1344

DEPARTMENT OF THE INTERIOR

AUGUST 20, 1945

Memorandum for the Commissioner of Indian Affairs:

    I am returning for further consideration the proposed regulation which would authorize the Superintendent of the Quapaw Agency to deduct a fee of 10 percent of all moneys collected as rentals or income from trespass on restricted Quapaw town lots.

    The proposed regulation provides that the fees collected shall be deposited in the Treasury as miscellaneous receipts to reimburse the Government for the expenses of collection, "except that when the expenses are paid from a trust fund the fee shall be credited to such fund." By this language it is intended to authorize the deposit of the fees in the fund. "Indian Moneys, Proceeds of Labor, Agency," and use the fund thus established to pay the salary and expenses of a collector.

    In my opinion there is no authority of law for the deposit and use of the fees in the manner intended. The act of March 1, 1933, reads:

"That the Secretary of the Interior is hereby authorized, in his discretion, and under such rules and regulations as he may prescribe, to collect reasonable fees to cover the cost of any and all work performed for Indian tribes or for individual Indians, to be paid by vendees, lessees, or assignees, or deducted from the proceeds of sale, leases, or other sources of revenue: Provided, That the amounts so collected shall be covered into the Treasury as miscellaneous receipts, except when the expenses of the work are paid from Indian tribal funds, in which event they shall be credited to such funds." 1

Under the plain language of this statute all of the fees therein authorized must be covered into the Treasury of the United States as miscellaneous receipts unless the expenses of the work for which the fees are charged are paid out of funds belonging to an Indian tribe, in which event they must be credited to the tribal fund.

    The fund "Indian Moneys, Proceeds of Labor, Agency" consists of miscellaneous revenues derived from an Indian Agency which are not the result of labor of a member of an Indian tribe and which are not required by law to be otherwise deposited. Under the provisions of 25 U.S.C. sec. 155, moneys properly credited to that fund are available for expenditure, in the discretion of the Secretary, for the benefit of the agency involved, and there is no doubt that moneys properly credited to that fund may be used to pay the salary and expenses of a collector employed at the agency. But ownership of the fund "Indian Moneys, Proceeds of Labor, Agency" is in the United States rather than an Indian tribe. Since it is not a tribal fund it would be improper to credit thereto fees collected under the 1933 act, supra, for work performed and paid for out of that fund. All such fees are required by the 1933 act, supra, to be covered into the Treasury as miscellaneous receipts, and in view of this statutory requirement as to their disposition they are not within the class of funds subject to deposit under authority of 25 U.S.C. sec. 155, as "Indian Moneys, Proceeds of Labor, Agency."

    This office has no objection to the use of any moneys available in the fund "Indian Moneys, Proceeds of Labor, Quapaw Agency" to pay the salary and expenses of a collector at the Quapaw Agency. For the reasons stated above, however, reimbursement of that fund in the manner proposed by your office is not authorized by existing law. Any regulation promulgated to govern the collection and deposit of fees for such services should provide for the deposit of the fees in the Treasury as miscellaneous receipts, "except when the expenses are paid from a tribal fund, in which event the fees shall be credited to such fund."

                                                                                                                                                      FOWLER HARPER,

Solicitor.


 

QUESTION OF LOSS OF TREATY
FISHING RIGHTS WHEN SEPARATED
FROM BAND BY CREATION OF
EXECUTIVE ORDER RESERVATION--
NISQUALLY


 

August 24, 1945.


 Memorandum for the Commissioner of Indian Affairs:

    There is returned to you for further consideration your letter of July 11 to the Superintendent of the Taholah Agency which discusses the question whether the Indians residing upon the Nisqually Reservation have fishing rights in the reservation to the exclusion of all other affiliated

_____________
   1 47 Stat. 1417, 25 U.S.C. sec. 413. This statute amended the act of February 14, 1920 (41 Stat. 415), which required that the fees therein authorized be deposited in the Treasury as miscellaneous receipts. The only other statutory authorization for the collection of fees for general services performed for Indians and Indian tribes is the item contained in each Interior Department Appropriation Act since 1938 (see 25 U.S.C. sec. 561), which requires that the fees be covered into the Treasury of the United States.
 


 

1345

OPINIONS OF THE SOLICITOR

AUGUST 29, 1945

nonresident bands that were parties to the treaty of December 26, 1854 (10 Stat. 1132), otherwise known as the Medicine Creek Treaty.

    You assume that this treaty gave a right to fish at the "usual and accustomed places" (among which was the Nisqually River flowing through the reservation) to all members of the signing tribes and their descendants, and that this right still exists. The right in question if it exists would be based upon Article III of the treaty which provides:

    "The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall not take shell fish from any beds staked or cultivated by citizens, and that they shall alter all stallions not intended for breeding horses, and shall keep up and confine the latter."

    It is apparent, however, that this right was a right to fish at the usual and accustomed places on the lands surrendered by the treaty and on other public lands. The right to fish on the lands retained by the Indians was a reserved right which did not need to be expressly recognized by the treaty. United States v. Winana, 198 U.S. 371; Seufert Bros. Co. v. United States, 249 U.S. 194; Tulee v. State of Washington, 315 U.S. 681. It is true that the treaty was made not only with the Nisqually Indians but all the other Indian bands mentioned in the treaty "who, for the purpose of this treaty, are to be regarded as one nation." But the tracts of land reserved for these affiliated bands under Article II of the treaty were various, and Article VI of the treaty expressly provided that the President might create lieu reservations if in his opinion the interests of the Territory and the welfare of the Indians required such action. Subsequently a separate reservation was created for the Nisqually Indians by the Executive order of January 20, 1857, and other reservations were also subsequently created for other bands who had been parties to the Medicine Creek Treaty.

    It appears that the Nisqually Reservation contained 4,717 acres and was irregular in shape-4 miles long by 23, miles wide at its widest part. The Nisqually River traversed the length of it for 4 miles, dividing it into two parts, one on the east in Pierce County containing 3,353.43 acres, and the other on the west in Thurston County containing 1,364.47 acres. In 1918, two-thirds of the reservation, apparently all on one side of the Nisqually River, were condemned in connection with the war operations. See Senate Document No. 243, 66th Gong., 2d sess. As a result of this condemnation many of the original Nisqually allottees were dispossessed, and further compensation was provided for them by the act of April 28, 1924 (43 Stat. 111). There was included in this compensation an amount sufficient to make good the loss of the allottees' fishing rights in the Nisqually River.

    Ordinarily the members of one band have no rights in the reservations created for another band. Even though some of the Indians who were parties to the Medicine Creek Treaty may have fished in the Nisqually River, their rights were lost when separate reservations were established for them. This result would follow from the fact that these Indians would thereupon become separate bands residing on separate reservations. The descendants of other Indians who were parties to the treaty could have rights on the Nisqually Reservations if they were affiliated with this band. The mere fact that they did not reside on the Nisqually Reservation would not bar them from fishing or other rights if they were still recognized members of the band. The right to enjoy tribal privileges depends on membership, and when this is lost, the privileges cease. Halbert v. United States, 283 U.S. 753, 762.

    If you wish the Department to consider this matter further, it is suggested therefore that you provide more specific information concerning the affiliation, status and membership of the Indians not residing on the Nisqually Reservation who are claiming the fishing privileges. The Department should be particularly informed whether any of the dispossessed allottees are included among them.

                                                                                                                                                       FOWLER HARPER,

Solicitor.


 

ISSUANCE OF FEE PATENTS-
AUTHORITY TO RESERVE SUBSURFACE
MINERAL RIGHTS IN FAVOR OF
INDIAN ALLOTTEES

M-33967                                                                                                                                                    August 29, 1945.

The Secretary of the Interior is authorized to sell the allotted lands of deceased Indians by the act of June 25, 1910 (36 Stat. 855) as amended (25 U.S.C. secs. 372 and 373).

The Secretary of the Interior may sell such allotments without the consent of the heirs or dev-
 


 

1346

DEPARTMENT OF THE INTERIOR

AUGUST 29, 1945

isees under such rules and regulations and upon such terms as he may prescribe.

    The authority of the Secretary of the Interior to cause the entire allotment of a deceased Indian to be conveyed by patent  necessarily includes the authority to cause a lesser interest therein, the surface only, to be conveyed by patent.

    Upon payment of the purchase price, he may direct the Commissioner of the General Land Office to issue patents in fee to the purchasers of the lands, such patents to contain reservations of the minerals in favor of the heirs or devisees of the deceased allottees.

HARPER, Solicitor.

The Honorable, The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    For the past several years !the State of New Mexico has been attempting to acquire certain allotted Indian lands within that State. It is my understanding that the lands sought to be acquired will eventually be turned over to the National Park Service for inclusion in the proposed Manuelita National Monument near Gallup, New Mexico.

    The Office of Indian Affairs has insisted that, for the protection of the Indians, any minerals underlying the allotments be reserved to the Indian owners. In all, eleven Indian allotments are involved and, on May 21, 1941, deeds conveying portions of nine of the allotments to the State, with mineral reservations in favor of the Indian owners, were approved. The owners of the other two allotments--that of Attisidi Tsossini Biye and Bitanitso-no-Biye first refused to sell but later reconsidered and executed deeds conveying portions of each allotment to the State. These deeds were not presented for departmental approval because of certain technical deficiencies. They were returned to the Superintendent of the Navajo Agency on August 29, 1942. In addition to the technical deficiencies in the execution of the deeds, attention was called to the fact that, while one of the deeds contained a mineral reservation in favor of the grantors, the other did not. Since the return of the deeds to the Agency, certain of the original grantors have died and their heirs have not yet been determined. Other parties owning undivided interests in the allotments are reported to be working in California and to date their signatures on the corrected and amended deeds have not been obtained.

    Because conveyance by the State to the United States of other land for the National Monument Project is being delayed by the difficulty in obtaining completed and satisfactory deeds covering these two allotments, the Office of Indian Affairs has requested my opinion as to whether fee patents for the lands involved may be issued to the State, reserving to the Indians the mineral rights now owned by them.

    For the reasons hereinafter stated, it is my opinion that, should you deem it advisable administratively, you may cause patents to be issued to the State of New Mexico for the desired portions of these two allotments, reserving to the Indians the minerals underlying the lands sold to the State.

    Both of the allotments are in an heirship status. Section 1 of the act of June 25, 1910 (36 Stat. 855), as amended (25 U.S.C. sec. 372), the statute governing the sale of restricted heirship lands by the Secretary of the Interior, provides:

    "That when any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive. If the Secretary of the Interior decides the heir or heirs of such decedent competent to manage their own affairs, he shall issue to such heir or heirs a patent in fee for the allotment of such decedent; if he shall decide one or more of the heirs to be incompetent, he may, in his discretion, cause such lands to be sold: Provided, That if the Secretary of the Interior shall find that the lands of the decedent are capable of partition to the advantage of the heirs, he may cause the shares of such as are competent, upon their petition, to be set aside and patents in fee to be issued to them therefor. All sales of lands allotted to Indians authorized by this or any other act shall be made under such rules and regulations and upon such terms as the Secretary of the Interior may prescribe, and he shall require a deposit of 10 per centum of the purchase price at the time of the sale. . . . Upon payment of the purchase price in full the Secretary of the Interior shall cause to be issued to the purchaser patent in fee for such land. . . ."

    Section 2 of that act, as amended (25 U.S.C. sec. 373), authorizes any Indian 21 years of age having any right, title, or interest in any al1otmen.t held in trust to dispose of such allotment by will, sub

 

 


 

1347

OPINIONS OF THE SOLICITOR

SEPTEMBER 6, 1945

ject to the approval of the Secretary of the Interior. However:

". . . the approval of the will and the death of the testator shall not operate to terminate the trust or restrictive period, but the Secretary of the Interior may, in his discretion, cause the lands to be sold. . . ."  

That statute has been construed by this office, in a memorandum to the Commissioner of Indian Affairs of August 14, 1937, as authorizing the Secretary of the Interior to sell a decedent's estate for the benefit of heirs without requiring the consent of the heirs or any number of them to validate the transaction. The act authorizes sales to be made under such rules and regulations as the Secretary of the Interior may prescribe and, except for the requirement of a 10 per cent deposit at the time of the sale, the statute authorizes the sale upon such terms as the Secretary may prescribe. All details of the sale are left to the discretion of the Secretary. The Attorney General has said that it would be difficult to conceive of a broader authority than this statute confers (33 Op. Atty. Gen. 25).

    There is no requirement that the entire interest in any allotment shall be sold. If 40 or 80 acres of a 160 acre allotment can be sold, patent therefor issued to the purchaser, and the balance retained in trust for the Indians, it is difficult to see why the surface only cannot be patented and the minerals underlying the surface retained in trust for the Indians. The authority of the Secretary of the Interior to cause the entire allotment of a deceased Indian to be conveyed by patent necessarily includes the authority to cause a lesser interest therein, namely the surface only, to be conveyed by patent. Cf. United States v. Gypsy Oil Co., 10 F. (2d) 487 (C.C.A. 8th 1925) ; Terrell v. Scott, et al., 262 Pac. 1071 (Okla. 1928), cert. den. 277 U.S. 596.

    The allotments involved were made pursuant to section 4 of the General Allotment Act of February 8, 1887 (24 Stat. 388), as amended (25 U.S.C. secs. 334 and 336). The patent to Bitanitso-noBiye was issued on March 29, 1920. It contained a reservation of all coal in the land to the United States pursuant to the act of March 3, 1909 (35 Stat. 844, 30 U.S.C. Sec. 81). However, it is my understanding ,that the lands covered by the patent were classified as noncoal on September 13, 1921. The act of April 14, 1914 (38 Stat. 335, 30 U.S.C. 82), authorizes and directs the Secretary of the Interior, in cases where patents for public lands have been issued under the terms of the act of March 3, 1909, supra, and where the lands so patented are subsequently classified as noncoal in character, to issue new or supplemental patents without the reservation of the coal to the United States. Application by the patentee for a corrected patent is not necessary. The regulations of the Department require the General Land Office to issue new patents with as much expedition as may be possible (43 CFR 108.5). There is nothing in the attached file of the General Land Office to indicate that a new patent, without the reservation, was ever issued to the allottee or his heirs. If I am correct in my assumption that a new patent has never been issued, the General Land Office should be directed to take appropriate steps to remedy the situation.

    If, in the exercise of your discretion, you deem it advisable to sell to the State of New Mexico portions of the allotments in question, I can see no legal objection to your directing the Commissioner of the General Land Office, upon the payment of the agreed purchase price by the State, to issue patents to the State of New Mexico for the requested portions of the allotments with reservations in the patents of all underlying minerals to the heirs or devisees of the allotments.


FOWLER HARPER,
Solicitor.

Approved: August 29, 1945.

OSCAR L. CHAPMAN, Assistant Secretary.

 

OSAGE HEADRIGHTS--NON-RESIDENT DECEDENT--
ANCILLARY ADMINISTRATION

M-33564                                                                                                                September 6, 1945.

An Osage headright, owned by a non-Indian, represents the non-Indian's right to participate in the             distribution of the bonuses and royalties accruing from the mineral estate owned by the Osage Tribe.

The right to receive the payments accruing to an Osage headright, after they have been segregated from the tribal funds, is analogous to any debt due from the United States.

The payments accruing to the headright have no situs in Oklahoma.

Ancillary administration in Oklahoma of the estate of a deceased non-Indian owner of an Osage headright is unnecessary.

The Secretary of the Interior may recognize a decree of a court of competent jurisdiction of the State of domicile of a non-Indian owner of an Osage headright as vesting title to the head right in the heirs or beneficiaries under a will found by that court to be entitled thereto.

 


 

1348

DEPARTMENT OF THE INTERIOR

SEPTEMBER 6, 1945

The payments accruing after the death of the non-Indian owner and during the course of administration of his estate should be paid to the administrator or executor duly appointed and qualified under the laws of the State of domicile.

HARPER , Solicitor:

 

The Honorable, The Secretary of the Interior.
MY DEAR MR. SECRETARY:

    You have referred to me for an opinion the question of whether ancillary administration in Oklahoma must be required in order to pass good title to an interest in an Osage headright owned by a non-Indian domiciled at the time of his death in a State other than Oklahoma.

    The question arises in connection with the administration of the estate of George B. Mathews, a white man, who at the time of his death owned a one-sixth interest in an Osage headright as signed to him by Frank M. Keane. Keane acquired his interest by assignment from Remington Rogers who acquired it, also by assignment, from C. O. Durrett, who inherited the interest from his deceased wife, Clemintine Roussin Durrett, Osage allottee No. 1640. All of the assignors were white men and the assignments were approved by the Secretary of the Interior under the provisions of the act of April 12, 1924 (43 Stat. 94).l Mr. Mathews died testate. His estate is being administered according to the laws of New York, the State of his domicile.

    In my opinion ancillary administration in Oklahoma is unnecessary to effect transfer of the title to an interest in an Osage headright owned by a non-Indian. An Osage headright, owned by a non-Indian, represents the non-Indian's right to participate in the distribution of the bonuses and royalties arising from the mineral estate owned by the Osage Tribe.

    The act of June 28, 1906 (34 Stat. 539), provided that the surface of the lands belonging to the Osage Tribe of Indians should be divided among the individual members of the tribe, according to a roll authorized to be made by that act.2 After directing the manner in which the lands should be allotted, Congress reserved the oil and gas and other minerals underlying the Osage lands to the use of the Osage Tribe for a stated period, the royalties thereon to be paid to the tribe.3 It further directed that all funds of the tribe should be segregated as soon as practicable after January 1, 1907, and placed to the credit of the individual members of the Osage Tribe on a basis of a pro rata division among the members of said tribe or their heirs, said credit to draw interest, which interest was directed to be paid quarterly to the members entitled thereto.4 Congress further directed that the royalty received from the oil, gas, coal and other mineral leases should be placed in the Treasury of the United States and be distributed to the individual members of the tribe, in the manner and at the same time that payments were made of interest on the moneys held in trust for the Osages by the United States.5

    The period of tribal ownership of the minerals has been extended from time to time by act of Congress. The act of June 24, 1938 (52 Stat. 1034), extends the tribe's interest in the mineral estate to April 8, 1983 "unless otherwise provided by act of Congress," and provides that "all royalties and bonuses arising therefrom shall belong to the Osage Tribe of Indians, and shall be disbursed to members of the Osage Tribe or their heirs or assigns as now provided by law." 6

The heirs of Osage Indians are determined by the county courts of Oklahoma according to the laws of Oklahoma7 and their wills, when approved by the Secretary of the Interior,8 are likewise probated in the county courts of Oklahoma. Many heirs and devisees of the Osage Indians have been persons of no Indian blood and in this manner they have succeeded to the right to share in the distribution of the income from the tribal mineral estate.

    This right does not, however, give such persons any interest in the minerals. Title to the minerals

_______________________

1"That any right to or interest in the lands, money, or mineral interests, as provided in the Act of Congress approved June 28, 1906 (Thirty-fourth Statutes at Large, page 539), entitled 'An Act for the division of lands and funds of the Osage Indians in Oklahoma, and for other purposes,' and in Acts amendatory thereof and supplemental thereto, vested in, determined, or adjudged to be the right or property of any person not an Indian by blood, may with the approval of the Secretary of the Interior and not otherwise be sold, assigned, and transferred under such rules and regulations as the Secretary of the Interior may prescribe."
2The Osage Tribe of Indians v. The United States, 102 Ct. Cl. 545 (1944).
3Section 3.
4Subsection 1 of Section 4.
5Subsection 2 of Section 4.
6Section 3.
7Section 6 of the act of June 28, 1906 (34 Stat. 539), and
section 3 of the act of April 18, 1912 (37 Stat. 86).
8Section 8 of the act of April 18, 1912 (37 Stat. 86).
9Osage Tribe of Indians v. United States, 102 Ct. Cl. 545
(1944), cited supra footnote 2.


 

1349

OPINIONS OF THE SOLICITOR

SEPTEMBER 6, 1945

is now in the Osage Tribe.9 Title will remain in the tribe until Congress directs otherwise.10

     It would be futile to speculate as to what disposition Congress will ultimately make of this mineral estate. It may be that Congress will determine that title to the minerals shall vest in those persons who may happen to be the owners of the allotted lands at the expiration of the trust period,11 that title shall vest in the original allottees or their heirs,12 that title shall vest in those persons who are members of the Osage Tribe when the tribal estate terminates. It seems obvious from the fact that the minerals have been retained in communal ownership for so much longer than originally contemplated that Congress will not individualize the mineral estate so long as it produces a substantial source of income to the members of the tribe.

     In any event those persons who now have the right to share in the income of the tribe from its mineral estate have nothing more than a hope that they may some day share in the distribution of the minerals.

    The right which those persons now have is the right to receive money--a right to personalty. That right may, as indicated above, be terminated at any time by Congress but until it is terminated it should be treated as any other right to personal
property.

    The right to share in the Osage tribal income has always been transmissible through descent or devise. However, since no specific provision of law authorized the sale or transfer of the right in any other manner, the Solicitor for this Department in 1924 expressed grave doubt that the Department would be justified in recognizing assignments of prospective distributive shares in these tribal funds by persons of other than Indian blood.13 Thereafter the act of April 12, 1924, supra, was passed. That act, in my opinion, has no bearing on the present question it was evidently intended to apply to transfers inter vivos only.

    It has been suggested that because the Osage mineral estate is located in Osage County, Oklahoma, and because .the headright income is derived in Osage County and distributed through the Indian Agency in Osage County, the Oklahoma courts must determine who is entitled to succeed to the interest of a deceased non-Indian owner of an Osage headright. In my opinion none of these factors is material.

    The fact that the minerals are located in the State of Oklahoma does not give the courts of that State jurisdiction over them. Congress is the only agency which can vest the courts of Oklahoma with jurisdiction over the tribal property and this Congress has not done.14

    Neither does the fact that the income from the mineral estate is derived and distributed in Osage County give the courts of Oklahoma jurisdiction to determine who shall be entitled to receive that income. The income itself belongs to the tribe. When it is received it is placed in .the Treasury of the United States and the individual interest of the owner of the headright does not vest until the Secretary of the Interior has segregated the pro rate share of the individual from the tribal funds.15 The segregation is made in Washington and the distribution of the checks to the individual owners could very well be made here. The fact that for the purposes of administrative expediency the disbursement is made in Oklahoma is not sufficient to require ancillary administration in Oklahoma to determine who shall succeed to the right of a non Indian domiciled elsewhere.

    The right of a non-Indian to receive the payments due him, after the amounts thereof have been segregated, is analogous to the right of any creditor of the United States. The duty of the Secretary with respect to these payments is purely the ministerial one of making them to the per-

_____________________________

    10Adams et al. v. Osage Tribe of Indians et al, 59 F. (2d) 653 (C.C.A. l0th, 1932). cert. denied 287 U.S. 658.
    11See section 2 (7) of the act of June 28, 1906 (34 Stat. 539). where, after authorizing the granting of certificates of competency permitting adult Indians to sell certain of their allotted lands, Congress provided:

"That nothing herein shall authorize the sale of the oil, gas, coal, or other minerals covered by said lands, said minerals being reserved to the use of the tribe for a period of twenty-five years, and the royalty to be paid to said tribe as hereinafter provided:  And provided further, That the oil, gas, coal and other minerals upon said allotted lands shall become the property of the individual owner of said land at the expiration of said twenty-five years, unless otherwise provided for by Act of Congress."
12See section 5 of the act of June 28, 1906, supra:

    "That at the expiration of the period of twenty-five years from and after the first day of January, nineteen hundred and seven, the lands, mineral interests, and moneys, herein provided for and held in trust by the United States shall be the absolute property of the individual members of the Osage tribe, according to the roll herein provided for, or their heirs, as herein provided, and deeds to said lands shall be issued to said members, or to their heirs, as herein provided, and said moneys shall be distributed to said members, or to their heirs, as herein provided, and said members shall have full control of said lands, moneys, and mineral interests, except as hereinbefore provided."

    13Opinion of March 12, 1924. M. 9541.
    14"The Supreme Court of Oklahoma has recently reiterated its former holdings that it has no jurisdiction over the tribal property of the Osage Indiana Mashunkashey v. Mashunkashey, 134 P. (2d) 976 (1942).

    15 Memorandum for the Commissioner of Indian Affairs approved April 2, 1943 relating to the estate of Frances Brunt.


 

1350

DEPARTMENT OF THE INTERIOR

SEPTEMBER 6, 1945

sons entitled thereto. He must satisfy himself that those persons asserting the right to receive the payments are lawfully entitled thereto.

    Upon the death of a non-Indian owner of an interest in an Osage headright, the right of his estate to receive the payments is the same as the right of the estate of any other creditor of the United States. It is a well established principle that:

    "The debts due from the government of the United States have no locality at the seat of government. The United States, in their sovereign capacity, have no particular place of domicile, but possess, in contemplation of law an ubiquity throughout the Union: and the debts due by them are not to be treated like the debts of a private debtor, which constitute local assets in his own domicile. On the contrary, the administrator of a creditor of the government, duly appointed in the State where he was domiciled at the time of his death, has full authority to receive payment and give a full discharge of the debt due to his intestate, in any place where the government may choose to pay it." 16

    Under the above mentioned rule, the requirement of ancillary administration in Oklahoma would be unnecessary.

    The Department has always recognized a final decree of distribution of the court of the State of domicile of a non-Indian owner of an Osage headright interest having jurisdiction over the decedent's estate as vesting in the heirs or beneficiaries under the will of the deceased non-Indian the right to receive payments accruing to the head right interest. It has made payment of all subsequent income from the headright interest to those persons found to be entitled thereto by the court of the domiciliary State upon presentation to it of a certified copy of the final decree.

    In my opinion, if the Secretary is convinced by the evidence presented to him that the headright interest is lawfully vested in the heirs or legatees of the decedent under a decree of a court of competent jurisdiction of the domiciliary State, he may recognize that decree as vesting title in those persons and he need not require ancillary ad ministration of the estate by the Oklahoma courts.

    The payments accruing after the death of a non-Indian owner and during the course of administration of his estate should be paid to the duly appointed and qualified administrator or executor in accordance with the accepted practice of the General Accounting Office17 and of this Department.18

    Certain attorneys interested in the estate of George B. Mathews have indicated that the estate cannot be closed until the conclusion of certain litigation in which Mr. Mathews was involved at the time of his death. They state that the estate is heavily indebted and they request to be advised whether the executrix can sell the headright interest while ,the estate is pending administration in New York in the same way in which she can sell other assets of the estate under the laws of the State of New York.

    While I express no opinion as to the right of an executrix of an estate pending administration in the State of New York to sell the assets of that estate, I can see no legal objection to the approval by the Department of such a sale, if made in accordance with the laws of that State. If you, as Secretary of the Interior, are convinced by the evidence presented at the time approval is sought that the headright interest was sold pursuant to the New York law, I believe that you may approve the sale pursuant to the act of April 12, 1924, supra, and thus give the sale validity.


FOWLER HARPER,
  Solicitor.

Approved: September 6, 1945.

OSCAR L. CHAPMAN, Assistant Secretary.

CERTIFICATES OF COMPETENCY--ISSUANCE TO
NON-INDIAN HEIRS NOT REQUIRED OR
AUTHORIZED

September 20, 1945.

The policy of the Federal Government to protect the Indians against their own improvidence does not         extend to white persons.

Restrictions against alienation contained in patents to Indians do not apply to non-Indian heirs of such Indians.

The authority of the Secretary of the Interior under section 1 of the act of June 25, 1910 (36 Stat. 855, 25 U.S.C. sec. 372), to issue certificates of competency to Indians, or in case of their death

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    16 Vaughan v. Northrup, 15 Pet. 1, 6; Mackay v. Coxe, 17 How . 100, 105; Wyman v. Halstead, 109 U.S. 654, 657.
    17See 15 Comp. Gen. 236; 15 Comp. Gen. 441; 18 Comp.
Gen. 716; 19 Comp. Gen. 987.
    18 See letter to the Superintendent of the Osage Agency approved on May 6, 1942. authorizing the Superintendent to pay the accrued and accruing income to the duly appointed executrix of the will of Worchester Bouck, a deceased non Indian owner of a fractional interest in an Osage headright.


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