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1426

DEPARTMENT OF THE INTERIOR

DECEMBER 27, 1946

vance of production, since such funds have been made available in advance to the State of Washington. It is true that the rule against the augmentation of a specific appropriation from a general appropriation has no application to a State government. I believe, however, that it also has no application to Indian tribes. Although the premium payments would be made to the Secretary of the Interior, who would expend the funds in the additional production of timber, the Secretary would receive the funds only as agent of the Indian tribes. Ultimately the payments would increase the return to them, and this would occur when the proceeds, less the expenses of sale, are deposited in the United States Treasury f6r their benefit and to their credit.

    The rule against the augmentation of appropriations would not seem to apply. In this connection, it will be noted that the appropriation for "Management, Indian forest and range resources," has been made reimbursable, while the premium payments are not reimbursable. Moreover, the Secretary of the Interior, as agent of the Indian tribes, is not required under the appropriation item to produce any particular amount of timber or to accomplish any particular purpose, such as the furtherance of a housing program; whereas the Housing Expediter is authorized to promote an emergency housing program, and the premium moneys have been appropriated to enable him to carry out this program. Thus, the two appropriations are distinguishable from the standpoint of type and purpose. 

    I find no persuasive evidence in the legislative history of the Indian Office appropriation that the activities of the Department in the management of Indian timber resources could not be expanded under the provisions of the Veterans' Emergency Housing Act. The fact that Congress appropriated less money than had been requested by the Indian Office would not seem to bear upon this question, nor would the colloquy between Senator Hayden and Assistant Commissioner Zimmerman, which is quoted on page 3 of the opinion of October 28. This shows that Senator Hayden made the statement that a reduction in the appropriation for the management of Indian forest and range resources would be particularly unfortunate in view of the need for lumber to carry on the veterans' housing program. The Senator expressed his concern, however, prior to the enactment of the Veterans' Emergency Housing Act. The colloquy occurred on May 16, 1946, while the act was not approved until May 22, 1946. If in fact this subsequent legislation did make possible the expansion of the production of Indian timber, the limited amount of the Indian Office appropriation would seem to be immaterial. 

    It would seem to me that section 11 of the Veterans' Emergency Housing Act itself supplies direct evidence that the premium payments may be made to the Indian Office. Paragraph (c) of this section provides: 

    "Not more than $15,000,000 of the funds made available under this section may be used to the extent that other funds are unavailable for the construction of access roads to standing timber on lands owned by or under the jurisdiction of an agency of Government." 

This provision has been treated as an implied prohibition upon the use of premium moneys for any other purpose than the construction of access roads. It would seem clear, however, that the purpose of this provision was merely to limit the amount of the premium moneys that could be employed for the access roads program. The mere fact that access roads were to be built to stands of timber on lands under the jurisdiction of Government agencies would seem to suggest that premium payments could be made to governmental agencies. That Government appropriations were limited, and based upon activities already planned, must have been known to those who were shaping the veterans' housing program. The Housing Expediter has already made available to the Indian Office $1,518,000 to make possible the construction of access roads to additional stands of Indian timber. It is precisely a substantial portion of this timber which will not be cut unless further funds are made available to the Indian Office. Thus the construction of the access roads will have served no useful purpose in connection with the immediate objectives of the veterans' housing program. 

    I trust that you will reconsider the opinion in the light of these circumstances. If you still entertain doubts, may I suggest that you obtain the opinion of the Comptroller General.

                                                                                                                    MASTIN G. WHITE,
                                                                                                                                            Solicitor. 

RELOCATION OF INDIANS FOR CONSTRUCTION
OF DAM IN NORTH DAKOTA

M-34815                                                                                                             December 27, 1946.

Section 6 of the War Department Civil Function Appropriation Act, 1946, forbids the use of the funds therein appropriated for actual construction of Garrison Dam until lands "comparable in quality and sufficient in area" to compensate the 


 

1427

OPINIONS OF THE SOLICITOR

DECEMBER 27, 1946

Indian tribes, have been offered by the Secretary of War and accepted by the Secretary of the Interior. The section further directs that such offer and acceptance "shall be consummated before January 1, 1947." 

The offer of lieu lands made by the Secretary of War on November 21 should be accepted, if satisfactory, before January 1, 1947; if unsatisfactory, it should be rejected promptly to enable the Secretary of War to make a new offer.

Failure to consummate the agreement within the time set, however, will not invalidate the authority of the War Department to construct the Garrison Dam nor will it affect the validity of the appropriation for purposes other than the actual construction of the dam. 

COHEN, Acting Solicitor:  

The Honorable,
    The Secretary of the Interior. 

MY DEAR MR. SECRETARY:

    My opinion has been requested on the interpretation to be given to the time proviso contained in section 6 of the War Department Civil Appropriation Act, 1947. That Act provides an appropriation for flood control works, including Garrison Reservoir in North Dakota, and section 6, in limitation of the appropriation, reads as follows: 

    Sec. 6. No part of the appropriation fur the Garrison Reservoir herein contained may be expanded for actual construction of the dam itself until the Secretary of War shall have selected and offered, through the Secretary of the Interior, to the Three Affiliated Tribes, land which the Secretary of the Interim approves as comparable in quality and sufficient in area to compensate the said tribes for the land on the Fort Berthhold Reservation which shall be inundated by the construction of the Garrison Dam: Provided further, That said selection and offer by the Secretary of War and approval by the Secretary of the Interior shall be consummated before January 1, 1947, after which consummation actual construction of the dam itself may proceed: And provided further, That funds appropriated for the construction of said dam may be transferred to the Secretary of the Interior for use by him in acquiring title to the lands thus selected. 

    The specific questions raised are (1) whether the Secretary of the Interior is required, before January 1, 1947, to pass on the offer of lieu lands submitted by the War Department on November 21, (2) whether a failure of the Secretary of the Interior and the Secretary of War to agree, before January 1, 1947, on lands "comparable in quality and sufficient in area" would affect the authority of the War Department to build the dam, and (3) whether a failure so to agree would affect the validity of this appropriation for that purpose.

    I think it clear that the first question is to be answered in the affirmative. The Congress clearly indicated its desire that both of the departments come to an agreement prior to January 1, 1947, apparently with the idea that construction of the dam might begin in the spring of 1947.1 The War Department acted when it submitted its offer of November 21. The duty of action then devolved upon this Department and that duty is to be discharged with all promptness.

    If the War Department's offer is to be accepted it should be accepted before January 1, 1947, to meet the statutory requirement. On the other hand, if the War Department's pending offer is to be rejected, it becomes the duty of this Department to make known its rejection as soon as possible, so that the War Department may have as much time as possible in which to devise and submit an offer which can be accepted by this Department and the agreement so consummated before the year's end.

    As to the question whether a failure of the two Departments concerned to consummate an agreement, as they are directed to do by the Congress, will result in terminating the authority to build the Garrison dam, I am confident that no such result was intended. Construction of the Garrison Reservoir was authorized by section 9a of the Act of December 22, 1944 (58 Stat. 887) and there is nothing in the appropriation act under discussion which can be construed as a repeal, express or implied, of this authorization. The limitation under discussion, by its own terms, simply suspends the availability for dam construction purposes of the money provided. Inasmuch as this appropriation is specifically "to remain available until expended", compliance with the statutory injunction to provide suitable lands for the Indians, whenever consummated, would remove the limitation and render the appropriation available for use in construction work on the dam. 

    This conclusion is supported by the general rule that statutes which specify a time for the performance of an official duty are construed as merely 

____________________

    l Secretary Patterson's letter of November 21, 1946. 1428


 

1428

DEPARTMENT OF THE INTERIOR

DECEMBER 27, 1946

directory so far as the time for performance is concerned. (Crawford, Statutory Construction, sec. 269;
Cooley, Constitutional. Limitations, p. 154 et seq.) This is particularly true where the only interests involved are those of the public and where, as here, the specification of time is clearly intended in furtherance of the orderly administration of governmental affairs. Thus, when a highway board in Iowa fixed a date for the performance of certain conditions by interested landowners later than the one directed by statute to be fixed, the Supreme Court of that State nevertheless denied an application for an injunction to restrain the establishment of the highway, saying: 

    "The board might well have obeyed this statute, and upon failure of the petitioners to pay before its next meeting then fixed the time of compliance as at the end of litigation over the amount of damages to be allowed, But statutes requiring the fixing of a date of the doing something which may as effectually be done at any other time and merely for the orderly transaction of business are usually regarded as directory, and we are of opinion that the board still may enter the order if deemed necessary fixing the time within which the damages shall be paid. We discover no ground for interfering with the establishment of the highway as proposed."                                                                                         Yengel v. Allen (1917)
                                                                                            161 N.W. 631 at p. 634. 

Specifications concerning the time and manner of the performance of official functions have been held to be essential where a departure from the legislative direction would result in prejudice to private rights (Escoe v. Zerbst, 295 U.S. 490, Triangle Candy Co. v. U.S., 144 F. 2d 195). Where, however, although private rights may be involved, the principal purpose of the law is the guidance of public officials and failure to comply with the statutory direction would entail no substantial prejudice, it has been held that the statute is nevertheless merely directory and that a departure from its terms does not invalidate the action taken. (Erhardt v. Schroeder, 155 US. 124). A fortiori, where no private rights whatsoever are involved, unless time is otherwise of the essence of the statute, the legislative prescription of a particular time for Official action is properly to be interpreted as a direction to the public officials concerned and to be complied with if possible, but not resulting, in the case of a failure strictly to comply, in the invalidation of the statutory proceeding. 

    There remains the question of whether the failure to consummate an agreement prior to January 1, 1947 would invalidate the appropriation which includes the legislative direction to take action by that date. Examination of the legislative history of the Garrison Reservoir project and of the provision under consideration discloses no factor which would make the particular date January 1, 1947 of the essence in the provision for selection of lieu lands for the Indians.

    The problem of the Indians who would be dispossessed by Garrison Reservoir was first brought to the attention of the Congress during the hearings before the Senate subcommittee on the First Deficiency Appropriation Bill, 1946 (H.R. 4805, 79th Congress). Witnesses on behalf of the Indians stated, and Members of Congress present agreed, that the problem was larger than one which could be adequately met by mere payment of money to the Indians (Memorandum of the Acting solicitor, dated October 9, 1945, Cong. Rec., Dec. 15, 1945, p. 12297), but that, at the very least, they were entitled to an assurance of suitable lands to which they could remove. To safeguard the Indians, therefore, a limitation on the use of the appropriation was suggested to the subcommittee (Hearings, p. 337, et. seq.), was recommended by the full committee (S. Rept. 857) and was enacted as follows: 

    "Provided, That no part of the funds herein appropriated shall be available for the actual construction of the Garrison Reservoir Dam, North Dakota, itself: Provided further, That no part of the appropriation for the Garrison Reservoir herein contained may be expended for actual construction of the dam itself until suitable land found by the Secretary of the Interior to be equal in quality and sufficient in area to compensate the Three Affiliated Tribes shall be offered to the said tribes in exchange for the land on the Fort Berthhold Reservation which shall be inundated by the construction of the Garrison Dam." 

    The legislative intent in using the phrase "actual construction of the dam itself" in both the Deficiency Appropriation Act and in the Civil Functions Appropriation Act seems to me self-evident and the result of a studied effort to permit the Corps of Engineers to proceed with the preparatory work necessary before "actual construction of the dam itself" could be started. In this connection, and while the limitation contained in the Deficiency Appropriation Act was in force, an illuminating discussion occurred before the Senate subcommittee considering the War Department civil functions appropriation bill for the fiscal year 


 

1429

OPINIONS OF THE SOLICITOR

JANUARY 3, 1947

1947, which became law with the limitation pro vision under discussion. 

    "Senator O'Mahoney. It would be easy enough to write it (the limitation) into the appropriation. There will be appropriations on this from year to year. This is not the appropriation for the entire project.
    "Senator Gordon. But no appropriation that is made can be expended on any part of construction until this first and initial condition is met and the Secretary offers to the Indian tribes land equal in value and extent to this.
    Until that, you cannot expend a dollar in construction?
    "Senator O'Mahoney. It is my understanding that there is a lot of work to be done. The dam is not completely in the blueprint stage as yet.
    "Senator Gordon. May I ask Colonel Stratton (a member of the Staff of the Chief of Engineers) whether there is any thought at the present time as to when the dam will reach the point where construction can be started?
    "Colonel Stratton. I think it will be in the next appropriation. We will have foundation preparation, access road, a small part of the town and the necessary lands at the dam site, out of this appropriation.
    "Senator O'Mahoney. That was the reason, let me say, why in drafting the amendment that was adopted last year, I agreed to provide that the limitation should refer only to the funds for actual construction of the dam itself, so as to enable the War Department and the Army engineers to proceed with all of the preliminary work. 
    No obstacle is raised here, and Colonel Stratton has just testified that the funds for the actual construction of the dam will be contained in the next act. 
    Then why not enter the negotiations now?" 

    Summing up the foregoing, therefore, it is my opinion that, while every effort should be made to reach an agreement as soon as possible on lands to be transferred to the tribes on the Fort Berthold Reservation to compensate them for the lands which will be inundated by the construction of the Garrison Dam, failure to do so before January 1, 1947 will not result in a termination of the authority for the project or in a forfeiture of the moneys appropriated therefore. 

                                                                                                                        FELIX S. COHEN,
                                                                                                                                 Acting Solicitor. 

JURISDICTION OF FLATHEAD TRIBAL COUNCIL
TO REGULATE HUNTING ON PABLO AND
NINEPIPE RESERVOIR SITES 

M-34739                                                                                                                 January 3, 1947. 

The Flathead Tribal Council does not have jurisdiction to regulate hunting within the Pablo and Ninepipe reservoir areas. The reservoir areas are part of the surplus lands opened to settlement and entry pursuant to the act of April 23, 1904 (33 Stat. 302), and the act of May 29, 1908 (35 Stat. 448) expressly authorized the reservation of lands within the Flathead Reservation chiefly valuable for reservoir sites. The selection of such sites and their use for reservoir purposes amounted to the taking by the United States of such an interest in the lands as to be inconsistent with the continued jurisdiction of the tribe to regulate hunting in the reservoir areas. 

Memorandum
To:            Commissioner of Indian Affairs.
From:        Solicitor.
Subject:     Authority of the Flathead Tribal Council to establish public shooting lane within the Pablo and
                 Ninepipe reservoirs on the Flathead Reservation.

    On August 23, 1946, the Tribal Council of the Confederated Salish and Kootenai Tribes enacted Resolution No. 574, authorizing the tribal field men and tribal secretary to mark off a public shooting lane at the Pablo and Ninepipe reservoirs for use by both Indians and non-Indians. This resolution was approved by Superintendent Wright on September 25 and transmitted to the Department for review. Assistant Secretary Gardner telegraphed Superintendent Wright on October 25 to advise the Council that, while the Department took the position that the resolution was not subject to departmental review, action by the members of the tribe in accordance with the resolution might subject them to the risk of prosecution. It was suggested, therefore, that the Council await the reconsideration of the legal question by the Department. Another resolution was adopted by the tribal council on October 24 to amend and modify the earlier resolution. It appropriated tribal funds to secure bonds or to meet other expenses in the event of an arrest arising from hunting on the refuges and limited the use of the shooting lane to Indians. You have requested my opinion on the question whether the tribal council has authority to regulate hunting in the Pablo and Ninepipe reservoir areas.

    The lands underlying the Pablo and Ninepipe reservoirs are part of the surplus lands of the Flat

 


 

1430

DEPARTMENT OF THE INTERIOR

JANUARY 3, 1947

head Indian Reservation, which was created by the treaty of July 16, 1855 (12 Stat. 975), ratified by the Senate and proclaimed by the President on April 18, 1859. The act approved April 23, 1904 (33 Stat. 302) directed the allotment of the Flathead Reservation and opened the surplus unallotted lands to settlement and entry. The United States was to act as trustee in the disposal of the surplus lands and to pay the net proceeds to the Indians as received, or use the proceeds for their benefit. Part of the proceeds were to be used in the construction of irrigation facilities. The act of May 29, 1908 (35 Stat. 448), provided that the white settlers were to pay irrigation charges but that the Indians were to have a "right to so much water as may be required" to irrigate their lands without cost to them. By the act of March 3, 1909 (35 Stat. 796), the Secretary of the Interior was expressly authorized to reserve any lands within the Flathead Reservation "chiefly valuable for power sites and reservoir sites," On February 19, 1910, the Bureau of Reclamation requested the Secretary to reserve and set aside certain sites for such purposes, including among them the sites of the Pablo and Ninepipe reservoirs. These reservations were approved by the Secretary on February 23, 1910. Both reservoirs had been constructed by 1912 (House Hearings on Indian Appropriations Bill for 1914, pp. 170-175) with funds appropriated by Congress (39 Stat. 139). By the act of May 18, 1916 (39 Stat. 123, 141), Congress refunded tribal funds which had been expended for a part of the construction of the project, and placed such funds to the credit of the tribes. Less than one fourth of the land in the project is now owned by Indians (Handbook of Federal Indian Law, p. 251). Although the Bureau of Reclamation constructed the project, it is now under the jurisdiction of the Office of Indian Affairs.

    In order to protect the bird life on these reservoir sites, the Department suggested to the Secretary of Agriculture that they be set aside as bird refuges. In its letter of April 24, 1915, the Department stated that the Flathead Tribe through its business committee had recommended such action In accordance with the wishes of the tribe, the Department of Agriculture was invited to investigate the advisability of establishing the refuges. Again in 1917 a similar letter was submitted to the Secretary of Agriculture indicating that the Flathead business committee had renewed its request that the reservoirs and lakes of the Flathead Reservation be established as bird refuges. The Superintendent of the agency had advised the Department that he believed bird life could be amply protected by the Indians and the members of the Indian and Reclamation Services. Accordingly, in 1921, two proposed Executive orders setting up such refuges on the Pablo and the Ninepipe reservoirs were submitted to the President. Both were established by Executive order on June 25, 1921. The orders state that the sites are within "the Flathead Irrigation Project, Montana," and that "with the surrounding lands now included within the Reclamation Ser vice reservations *     *     *, the same are hereby reserved, subject to Reclamation Service uses under the provisions of the act approved June 17, 1902 (32 Stat. 388), and to any other valid, existing rights *     *     *."

    It appears that the Flathead Indians have been attempting for several I decades to obtain compensation for the taking of the reservoir sites. In 1922 a bill was introduced for the relief of the Flathead Indians, but the Department recommended against its enactment on the ground, among others, that the claim for compensation for the reservoir sites could be satisfactorily adjusted between the tribes and the Department (letter of Acting Secretary Finney to the House Committee on Indian Affairs, dated April 13, 1922). A jurisdictional act was passed in 1924 for the relief of certain tribes in Montana, including ,the Flathead (43 Stat. 21), but the Flathead Tribes took no action thereunder, presumably on the ground that the scope of the act was too narrow. After several attempts to secure more satisfactory legislation, a bill was passed by the 79th Congress to enable these tribes to sue the United States, and it was approved by the President on July 30, 1946 (Public Law 566). The Department in its report on recent jurisdictional bills pointed out that the claims of the Flathead Tribes included one for the taking of lands for reservoir sites. (See Sen. Rep. No. 1325 and House Reps. Nos. 2050 and 2485, all in the 79th Cong., 2d sess.)

    While a jurisdictional act does not in itself have the effect of extinguishing Indian title, I think it is clear that there has been such a taking of the interest of the Flathead Tribes in the reservoir sites that the governing body of the tribes has been deprived of jurisdiction over them. The tribes undoubtedly still have an interest in the lands, since they have an interest in the proceeds of their disposition. By reason of this interest, the lands may be regarded as both public lands and Indian lands. Ash Sheep Co. v. United States, 252 U.S. 159. It may be also that the Government has not taken more than a flowage easement over the reservoir sites. This is, however, a question which need not be determined now, nor need it be considered whether the taking has given rise to a claim for compensation which may be asserted against the United States. Jurisdiction and title do not necessarily depend upon each other. The real question is whether the control which the Government has assumed

 


 

1431

OPINIONS OF THE SOLICITOR

JANUARY 8, 1947

over the sites is consistent with the exercise of regulatory jurisdiction by the tribes. It was pointed out in Solicitor's Opinion M. 31480, dated February 14, 1943, which considered the question whether the Shoshone Indians could regulate hunting and fishing on ceded portions of the Wind River Reservation, that the answer to such a question could not be derived from the Janus-faced concept of Indian trust lands, and that it was necessary to look at the realities of the situation. It was concluded that the Shoshone Tribe could not exercise jurisdiction over ceded lands because the purpose of the cession was to dispose of the lands to white settlers, and that this purpose was inconsistent with any assumption of continued Indian jurisdiction.

    The same reasoning applies to surplus lands. Such lands are opened to white settlement no less than ceded lands. The use of the surplus lands for reservoir purposes constitutes no less a termination of Indian jurisdiction. It is of some significance in this connection that although Congress in section 3 of the act of June 18, 1934 (48 Stat. 984, 25 U.S.C. sec. 463), authorized the Secretary of the Interior to restore to tribal ownership "the remaining surplus lands of any Indian reservation," it excepted "lands within any reclamation project heretofore authorized on any Indian reservation."

    It is true that this office held in a memorandum of July 30, 1942, that the Flathead Tribe had not lost jurisdiction over the Pablo and Ninepipe reservoirs. This conclusion was in accord with the prevailing view at that time which predicated jurisdiction upon Indian trust title. It is in conflict, however, with the premises of the later Shoshone opinion.

    I conclude, therefore, that the Council of the Flathead Tribe lacked authority to enact the resolutions of August 23 and October 24 in so far as they purport to establish shooting lanes within the Pablo and Ninepipe reservoirs on the Flathead Reservation. 

                                                                                                                MASTIN G. WHITE,
                                                                                                                                        Solicitor. 

APPLICATION OF FEDERAL TORT CLAIMS ACT
TO FEDERAL EMPLOYEE ON INDIAN
RESERVATION 

M-34583.                                                                                                            January 8, 1947. 

A claim for damage to privately-owned property caused by the negligence of an employee of the Bureau of Indian Affairs may not be paid under the act of February 20, 1929, out of funds available for Indian irrigation projects.

A claim for damages caused by the negligence of a Government employee while acting within the scope of his office or employment may be considered under the provisions of the Federal Tort Claims Act (Title IV, Public Law 601, 79th Congress).

Part 2 of the Federal Tort Claims Act authorizes the head of a Federal Agency, or his designee, to consider and settle claims which do not exceed $1,000.

Claims for amounts in excess of $1,000 may be asserted in the courts under Part 3 of the Federal Tort Claims Act.

MASTIN G. WHITE , Solicitor

Claim of R. L. Maddox.
                        : Administrative determination.
                        : under the act of February 20,
                        : 1929, and the Federal Tort
                        : Claims Act.

    R. L. Maddox, Blackfoot, Idaho, filed a claim in the amount of $1,218.47 against the United States for compensation because of the loss of part of his clover crop upon leased allotments 564 and 565 of the Fort Hall Indian Reservation within the irrigable area of the Fort Hall project.

    According to the information contained in the affidavits and reports before me, the facts are substantially as follows: On or about May 10, 1945, Everett L. Saulls, a ditch rider on the irrigation project, was engaged in burning the dead grass and weeds from the banks of the Enders Lateral where it passes along the south side of the allotments leased by the claimant. The fire broke over into the grain stubble and clover crop upon the leased land in two places and burned off approximately one-quarter acre. The ditch rider stated that he extinguished the fire on both banks of the lateral and on the leased lands before leaving the work. Sometime in the evening after he left, there occurred a fire which burned over approximately 10 acres of the leased lands. The claimant asserts that both fires and the resulting damage were due to negligence on the part of the ditch rider in failing to protect the claimant's lands.

    The field had been planted with red clover in 1944, together with a crop of grain to protect it during the hot summer months. The grain crop had been harvested, leaving a stand of dry stubble from 12 to 16 inches high at the time of 


 

1432

DEPARTMENT OF THE INTERIOR

JANUARY 3, 1947

 the fire. Subsequent examinations by employees of the Indian Service disclosed that the clover crop was not a total loss. Their estimates of the amount of the loss due to the burning are much less than the amount of the claim submitted.

    The second fire, which burned over the claimant's field, apparently resulted from the rekindling of smoldering embers after the ditch rider had left, despite his belief that the fire had been completely extinguished. There is no information which indicates that the fire was due to some other cause. It is evident that the precautions taken by the ditch rider were inadequate to protect the highly combustible stubble on the leased lands under the conditions prevailing at that time. In this state of the record, it would appear that the fire on claimant's land was caused by a negligent act or omission on the part of the employee of the Government.

    The act of February 29, 1929 (45 Stat. 1252; 25 U.S.C. 388), authorizing the payment of certain claims arising from the operation of Indian irrigation works, does not extend to damages caused by the negligence of a Government employee (Nedgus Corporation, 57 I.D. 537; sec. 424, Public Law 601, 79th Cong.).

    The Federal Tort Claims Act (Title IV, Public Law 603, 79th Cong.) authorizes the head of a Federal agency, or his designee, to settle claims against the United States on account of damage to property caused by the negligent or wrongful act of omission of an employee of the Government, while acting within the scope of his employment. The authority granted by the act, however, is limited to claims which do not exceed $1,000. As the claim submitted by Mr. Maddox is in excess of the limit fixed by the statute, it cannot be considered under the Federal Tort Claims Act.

    For the foregoing reasons, the claim must be denied.

                                                                                                                MASTIN G. WHITE,
                                                                                                                                        Solicitor. 

DELEGATION OF AUTHORITY OF THE SECRETARY
TO COMMISSIONER--SALE OF TRUST OR
RESTRICTED INDIAN LANDS 

M-34829                                                                                                             January 10, 1947. 

The Secretary cannot properly delegate to the Commissioner of Indian Affairs the authority to waive the limitation imposed by Order No. 420, as modified by Order No. 498 (25 CFR 241.12a), upon the sale of trust or restricted Indian lands and to approve the sale of such lands in individual cases which do not fall within any of the categories specified in the modified order as being appropriate for such approval.

The Indian Delegation Act (Public Law 687, 79th Cong.) contemplates that the Secretary of the Interior will issue in regulation form various rules and standards which are to govern the administration of Indian affairs; and he cannot properly delegate to the Commissioner of Indian Affairs authority to issue regulations or authority to depart from or ignore the regulations issued by the Secretary of the Interior.

MASTIN G. WHITE, Solicitor:  

Memorandum

To:            Assistant Secretary Gardner.
From:        The Solicitor.
Subject:     Delegation of Authority to the Commissioner of Indian Affairs to Waive Order No. 420, As
                 Modified

    You have informally requested that this office consider the question whether the Secretary of the Interior may properly delegate to the Commissioner of Indian Affairs the authority to waive, in his discretion, the limitation imposed by Order No. 420, as modified by Order No, 498, upon the sale of trust or restricted Indian lands and to approve the sale of such lands in individual cases which do not fall within any of the categories specified in the modified order as being appropriate for such approval. Order No. 420, as originally issued, was in the form of a letter dated August 12, 1933, from the Commissioner of Indian Affairs to all Indian superintendents. The letter was approved by the Secretary of the Interior. It instructed the superintendents that "no more trust or restricted Indian lands, allotted or inherited, shall be offered for sale
*     *     * except in individual cases of great distress or other emergency where it appears absolutely necessary that a restricted Indian tract of land be offered for sale for relief purposes. *     *     *     " This order was subsequently modified by Order No. 498 (March 3, 1939; 4 F.R. 1260) so as "to permit the sale of taxable lands (a) which would otherwise be lost for nonpayment of taxes; and (b) whose sale, if allowed, would yield cash or commodities for the improvement of the Indian vendor's economic position. *     *     " The order, as thus modified, was incorporated in the Code of Federal Regulations (1939 Supp.) as section 241. 12a of Part 241, Title 25. 


 

1433

OPINIONS OF THE SOLICITOR

JANUARY 22, 1947 

    Prior to September 9, 1946, the Secretary of the Interior considered each proposal for the sale of trust or restricted Indian lands and determined whether the particular sale should or should not be approved under the provisions of 25 CFR 241.12a. However, on the date mentioned the Secretary, acting pursuant to Public Law 687, 79th Congress, delegated to the Commissioner of Indian Affairs authority to approve "sales and conveyances of original allotments and inherited lands pursuant to the provisions of 25 CFR, Part 241. *     *     *" (Par. (d) , section 4.713, Order No. 2252; 11 F.R. 10296, 10297.) The Commissioner, when called upon to approve the sale of trust or restricted Indian land, must determine whether the sale is or is not authorized by the provisions of 25 CFR 241.12a; and if the sale is not authorized by that section, he must withhold his approval.

    The Secretary is permitted by Public Law 687 to delegate his statutory powers and duties under the laws governing Indian affairs to the Commissioner of Indian Affairs "insofar as such powers and duties relate to action in individual eases arising under general regulations promulgated by the Secretary of the Interior pursuant to law. *     *     *" The statute contemplates that the Secretary of the Interior will issue in regulation form and in accordance with law the various rules and standards which are to govern the administration of Indian affairs, and permits the Secretary to delegate to the Commissioner of Indian Affairs the task of applying such rules and standards to individual cases and particular situations as they arise. It seems clear that the Secretary cannot properly delegate to the Commissioner authority to issue regulations or authority to depart from or ignore the regulations issued by the Secretary of the Interior.

    Accordingly, I conclude that the question stated in the first paragraph of this memorandum must be answered in the negative.

    I express no opinion as to whether the regulation (25 CFR 241.12a) which governs the sale of trust or restricted Indian lands should or should not be changed by the Secretary of the Interior in such a way as to liberalize its provisions. However, it is noted that the reason for the issuance of the regulation in its original form (Order No. 420) was stated to be the "existing economic conditions and the very poor market for Indian-owned restricted lands." As economic conditions have greatly changed since August 12, 1933, it might be well to reexamine the departmental policy relative to this matter in the light of present conditions.

                                                                                                                MASTIN G. WHITE,
                                                                                                                                        Solicitor. 

RIGHTS-OF-WAY ON YUMA RESERVATION 

M-34842                                                                                                             January 22,1947.

Where settlement for rights-of-way for canals across allotments on Yuma Reservation was held in abeyance pending Solicitor's opinion on right of Indians to compensation, in light of the act of August 30, 1890 (26 Stat. 391, 43 U.S.C. sec. 945), this cannot be regarded as a transaction consummated prior to the rendition of the opinion. The case is therefore governed by that portion of the opinion which lays down, as a prospective rule, the requirement that compensation must be paid to Indian allottees for such rights-of-way.

MASTIN G. WHITE, Solicitor. 

Memorandum 
To:            The Commissioner of Indian Affairs.
From:        The Solicitor.
Subject:     Letter to Superintendent Gensler concerning rights-of-way for All-American Canal on Yuma
                 Reservation.

    In your memorandum of August 9 you requested a reconsideration of the view expressed by this office in its memorandum of June 21 to the effect that allottees of the Yuma Reservation are not entitled to compensation by reason of the construction by the Bureau of Reclamation of various intercepting drains across their lands in connection with the operation of the All-American Canal. The view was based on the fact that all the intercepting drains across the Yuma Reservation lands had been completed by 1941. Reliance was placed on the conclusion in part II of Solicitor's Opinion M-31156, dated January 27, 1943, that the rule announced in that part of the opinion for the allowance of compensation should not be applied retroactively so as to recognize as valid any claims against the Federal Government based upon past takings of rights-of-way for ditches or canals across allotted lands where such takings were justified by contemporaneous construction of the act of August 30, 1890 (26 Stat. 391, 43 U,S.C sec. 945).

    Your memorandum of August 9, 1946, suggests, in effect, that the situation on the Yuma Reservation should be considered not as a transaction consummated prior to 1943 but as one not yet consummated, as to which the more liberal prospective rule put forward in the 1943 opinion with respect to future takings is applicable. In support of this contention, you point out that your office 

 


 

1434

DEPARTMENT OF THE INTERIOR

JANUARY 22, 1947

on December 18, 1940, asked that final settlement with the Yuma Indians for the taking of rights-of way "be held in abeyance pending a decision by the Department as to the proper application of that act of Congress [act of August 30, 1890]." You further point out that on January 6, 1941, the Bureau of Reclamation advised that pursuant to your suggestion these settlements would be held in abeyance. Furthermore, it is noted that on September 15, 1942, the Under Secretary approved purchase contracts which recognized that the question of the proper interpretation of the 1890 act was under consideration in the Department and provided that if the act were held inapplicable to the allotted lands involved in the contract, then the United States would "purchase said property outright on the basis of an appraisal approved by the Secretary of the Interior. In such event the sums paid pursuant to this contract shall be deducted from the approved appraisal for the fee title to the land."

    I am further advised that the Yuma Indians agreed to the actual construction operations necessitated by the All-American Canal, in reliance upon assurances given by members of your office and by a member of this office that the Department would fully protect whatever rights they had to compensation.

    If the Yuma Indians had managed to delay the actual construction until after the rendering of the 1943 opinion, they would now clearly be entitled to full compensation on the ground that the 1890 act was inapplicable to lands which had been in Indian possession since 1883. The Indians should not be in a worse position today because they relied upon the promises of the Department. Accordingly, in the light of the facts presented in your memorandum of August 9, 1946, I agree that the settlement of the Yuma case should be governed by the "prospective" rule of the 1943 opinion. Contrary advice rendered by this office on June 21, 1946, is withdrawn.

                                                                                                                MASTIN G. W HITE,
                                                                                                                                        Solicitor. 

OWNERSHIP OF MINERALS IN PATENTED LANDS
WITHIN THE UINTAH AND OURAY INDIAN
RESERVATION, UTAH

M-34836                                                                                                             January 27, 1947.

The order of August 25, 1945, restoring to tribal ownership "all lands which are now or may hereafter be classified as undisposed-of open lands of the Uintah and Ouray Reservation" includes minerals reserved to the United States under patents issued for the surface of the opened lands of the reservation. 

Memorandum
To:            The Secretary
From:        Solicitor
Subject:     Ownership of minerals in patented lands within the Uintah and Ouray Indian Reservation, Utah.

    By memorandum of May 7, 1946, the Acting Assistant Commissioner of the General Land Office, now the Bureau of Land Management, inquired whether the minerals reserved to the United States under patents issued for the surface of the opened lands of the Uintah and Ouray Indian Reservation, Utah, have been restored to tribal ownership or remain subject to disposal under the mining and mineral leasing laws. Because the Office of Indian Affairs had indicated that the Indians have a vital interest in the question presented, that Office was invited to present its views in the matter. Those views are embodied in the attached memorandum of August 16, 1946.

    The minerals in question are included in lands which were set apart as a reservation for the Indians of Utah.1 Allotments were made to the Indians entitled to allotment within the area, and the balance of the lands, with exceptions not here material, were restored to the public domain pursuant to the act of May 27, 1902, as amended.2 The amendatory act of March 3, 1905,3 authorized the disposition of the unallotted lands under the general provisions of the homestead and townsite laws of the United States. All lands undisposed of at the expiration of five years were to be sold for cash.

    The lands were opened to entry, settlement, and disposition under the general provisions of the homestead and townsite laws by Presidential proclamation of July 14, 1905,4 without the consent of the Indians having been formally obtained.5 The proceeds of the entries and sales of the lands restored to the public domain, after reimbursing the United States for money advanced to the Indians, were to be used for the benefit of the Indians.

    Although the lands were restored to the public 

____________________

    1 Presidential Proclamation of October 3, 1861 (1 Kappler 900); Act of May 5, 1864 (13 Stat. 63). 
    2 32 Stat. 245, 263, 264; 32 Stat. 982, 998; 33 Stat. 189, 207. 
    3 33 Stat. 1048, l069. 
    4 34 L.D. 1.
    5 See 34 L.D. 306, 311.

 


 

1435

OPINIONS OF THE SOLICITOR

JANUARY 27, 1947

domain, they were subject to disposition only under the act of May 27, 1902, as amended. Homestead entrymen, contrary to the usual custom, were required to pay for the land entered at $1.25 per acre, and the State of Utah was declared to have no right in the lands under its grant in support of schools.6

    Patents for at least some of the lands in the area which were disposed of contained reservations of minerals underlying the lands in favor of the United States.7 The question is whether these reserved minerals have been restored to tribal ownership.

    By the act of May 27, 1902, supra, as amended legal title to the opened lands passed to the United States. The beneficial title remained in the Indians. The United States merely held the lands, until final disposition thereof, as trustee for the Indians. Paul S. Hanson v. United States, 153 F. (2d) 162 (C.C.A. 10th, 1946); Ash Sheep Company v. United States, 252 U.S. 159 (1920). The act of 1902, as amended, contains no indication of an intent to extinguish the interest of the Indians in the mineral estate. The act contains no declaration that title to the minerals shall vest absolutely in the United States, nor does it make any provision for the payment of compensation to the Indians for their interest in the minerals. In the absence of such provisions, it would seem to be clear that the United States, after the enactment of the act, continued to hold the title to the SW face and to the underlying minerals in trust for the Indians. Since the beneficial interest of the Indians could be terminated only by or under authority of the Congress, the reservation of minerals to the United States by the patents must be regarded as inuring to the benefit of the Indians. In other words, legal title to the minerals underlying the patented lands remained in the United States and the beneficial title remained in the Indians.

    Large areas of the land opened to disposition under the 1902 act, as amended, as well as other large areas of opened Indian lands, remained undisposed of at the time of the passage of the act of June 18, 1934.8 Section 3 of that act contains the following provision: 

    "The Secretary of the Interior, if he shall find it to be in the public interest, is hereby authorized to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened, or authorized to be opened, to sale, or any other form of disposal by Presidential proclamation, or by any of the public-land laws of the United States: Provided, however, That valid rights or claims of any persons to any lands so withdrawn existing on the date of the withdrawal shall not be affected by this Act *     *     *."

    Shortly after the passage of the act of June 18, 1934, the Commissioner of Indian Affairs recommended that lands which the United States was holding as trustee for the Indians, but which had been opened to entry, sale, or other form of disposition under the public land laws, or which were subject to mineral entry and disposal under the mining laws of the United States, should be temporarily withdrawn to prevent their further disposition until such time as the matter of their permanent restoration to tribal ownership could be given appropriate consideration. The Commissioner made it clear that the intention was to with draw only lands the proceeds of which, if sold, would be deposited in the Treasury of the United States for the benefit of the Indians. Included in the recommendation for temporary withdrawal were the opened Uintah and Ouray lands. On September 19, 1934, the recommendation of the Commissioner was approved and the laws were temporarily withdrawn.9 The order restores "all lands which are now or may hereafter be classified as undisposed-of opened lands" of the reservation. The minerals in place are a part of the land. The fact that a lesser estate, the surface, has been carved off of the land and disposed of does not make that which is left, the mineral estate, any the less "lands." British-American Oil Producing Co. v. Board of Equalization of Montana et al., 229 U.S. l-59 (1936).

    One of the purposes of the order was to insure closer administrative control of the tribe's property in the interest of better conservation practices. As pointed out above, the beneficial title to the minerals has always been in the Indians. Certainly the Indians' mineral estate can be administered more effectively if the whole estate-the minerals under

____________________

    6 33 L.D. 610; 34 L.D. 306
    7 One patent which has been brought to my attention (Patent NO. 689923) contains a reservation in favor of the United States of "all oil and gas and all shale or other rock valuable as a source of petroleum and nitrogen in the lands so patented." The reservation was evidently inserted in the Patent pursuant to the act of July 17, 1914 (38 Stat. 509). which act authorized the appropriation, location, selection, entry or purchase under the non-mineral land laws of lands withdrawn or classified as phosphate, nitrate, potash, ail, gas or asphaltic minerals or which are valuable for those deposits with a reservation to the United States of the deposits on account of which the lands were withdrawn or classified.
    8 48 Stat. 984, 25 U.S.C. sec. 461 et seq. 
    9 54 I.D. 559.

 


 

1436

DEPARTMENT OF THE INTERIOR

JANUARY 27, 1947

lying the patented lands, as well as those underlying the undisposed-of lands--can be administered as a unit rather than by having the minerals under lying the patented lands administered under one set of laws and regulations and the minerals under lying the unpatented lands administered under another set of laws and regulations. 

    The order should be construed in such a manner as will result in the accomplishment of its broad purpose. That was to restore to tribal ownership all lands, or interests in lands, to which the superior rights of third parties had not attached. 

    Therefore, as previously indicated, it is my opinion that the minerals underlying the patented lands within the Uintah and Ouray Indian Reservation were restored to tribal ownership by the order of August 25, 1945. 

    A draft of a proposed memorandum to the Bureau of Land Management and the Office of Indian Affairs concerning this matter is attached for your consideration and signature, if you approve. 

                                                                                                                MASTIN G. WHITE,
                                                                                                                                        Solicitor. 

M-34814.                                                                                                           February 2,1947.

Memorandum  

From:         Director of Personnel. 
Subject:      The Solicitor. 
To:             Indian preference in employment. 

    On December 26, 1946, in connection with a proposed statement involving personnel policy affecting Indian employees, you requested my opinion on the following questions: 

(1) Under the Indian preference and the veterans' preference laws, does a qualified Indian who is not a veteran have preference in employment over a non-Indian veteran? 

(2) Is Indian preference applicable to other than appointment and separation actions? In other words, does Indian preference necessarily apply to promotion from grade to grade within the service? (The second question is understood to refer to cases of promotion to fill a vacancy which might occur either by establishment of a new position or the vacation of an already established position for any reason.)

    It is my opinion that affirmative answers are required to both questions. 

    Section 12 of the Wheeler-Howard Act, also known as the Indian Reorganization Act (48 Stat. 986, 25 U.S.C. sec. 472), provides that:

    "The Secretary of the Interior is directed to establish standards of health, age, character, experience, knowledge, and ability for Indians who may be appointed, without regard to civil-service laws, to the various positions maintained, now or hereafter, by the Indian Office, in the administration of functions or services affecting any Indian tribe. Such qualified Indians shall hereafter have the preference to appointment to vacancies in any such positions." (Emphasis supplied.) 

This provision implemented miscellaneous provisions contained in the acts of June 30, 1834 (4 Stat. 737, 25 U.S.C. sec. 45), May 17, 1882 (22 Stat. 88, 25 U.S.C. sec. 46), as amended by the act of July 4, 1884 (23 Stat. 97), August 15, 1894 (28 Stat. 313, 25 U.S.C. sec. 44), and April 30, 1908 (35 Stat. 71, 25 U.S.C. sec. 47), as amended by the act of June 25, 1910 (36 Stat. 861), all of which required preference employment of Indians in various circumstances. Its purpose, to accord a special employment preference for Indians, is reflected in the following statement of Congress man Howard, coauthor, made during the course of debate on the bill (S. 3645): 

    "In order that the Indian, after being educated in a practical way, may pursue his trade or vocation and be preferred in positions upon Indian reservations, we have set up in the bill reported a preference for him and we have provided and directed a special set-up without regard to the civil-service laws, whereby he can establish a rating for such reservation positions." (78 Cong. Rec. 12164 (1934) .)

    Section 18 of the Veterans' Preference Act of 1944 (58 Stat. 391, 5 U.S.C. sec. 869), provides that:

    "All Acts and parts of Acts inconsistent with the provisions hereof are hereby modified to conform herewith, and this Act shall not be construed to take away from any preference eligible any rights heretofore granted to, or possessed by, him under any existing law, Executive order, civil-service rule or regulation, of any department of the Government or officer thereof." (Emphasis supplied.)

 


 

1437

OPINIONS OF THE SOLICITOR

FEBRUARY 13, 1947

    Since all of the statutes granting preference rights were enacted prior to the Veterans' Preference Act of 1944, it is clear that such rights were not abrogated by the later act. Your first question is therefore answered in the affirmative.

    I think it is equally clear that the second question requires an affirmative answer. Section 12 refers to the "various positions maintained, now or hereafter, by the Indian Office." (Emphasis supplied.) While the excerpt quoted above refers to "positions upon Indian reservations," the language finally enacted extends to all positions in the Indian Service. This fact has been recognized by the Civil Service Commission by placing in an excepted status under Schedule A of the civil service rules, "Positions in the Bureau of Indian Affairs, Washington, D.C., and in the field, when filled by the appointment of Indians *     *     *." In its Minute No. 2, of October 29, 1942, the Commission ruled that these positions, if occupied by Indians, were not brought into the classified service by the Ramspeck Act and Executive Order No. 8743. See 78 Cong. Rec. 11123, 11126, 11127. 

    It therefore is my conclusion, under the foregoing statutes, that (1) a qualified Indian who is not a veteran has preference in employment over a non-Indian veteran, and (2) such preference extends to the filling of all vacancies within the service. 

                                                                                                                MASTIN G. WHITE,
                                                                                                                                        Solicitor. 

APPROVAL OF WILL OF DECEASED OSAGE INDIAN 

M-34857                                                                                                         February 13, 1947. 

Osage headrights disposed of by will pass to the recipients subject to the limitations imposed by Congress on the transfer of such headrights.

If the recipient is a non-Indian, he may sell, assign, or transfer the headright only with the approval of the Secretary of the Interior.

If the recipient is an Indian, the headright may not be alienated by him.

The Secretary of the Interior has no authority to remove the restrictions which exist against the alienation of Osage headrights by persons of Indian blood.

The approval by the Secretary of the Interior of a will executed by an Osage Indian, under which the Indian gives an interest in an Osage head right to persons of Indian blood "absolutely and free and clear of any conditions or restrictions whatever," will not remove the restrictions against alienation which exist when Osage headrights are owned by persons of Indian blood. 

MASTIN G. WHITE, Solicitor:  

Memorandum
To:            The Secretary
From:        The Solicitor 
Subject:     Will of Nettie Panther McKee, deceased. Osage Allottee No. 448.

    By the attached will, Nettie Panther McKee, deceased Osage Allottee No. 448, gives to her husband, Freeman McKee, a Cherokee Indian, the income from 29/75ths of an Osage headright during his lifetime, the remainder to vest in the heirs of the body of the decedent's son, Harry J. Carr. She makes a similar provision for her son, Harry J. Carr, and leaves the residue of her property to the heirs of the body of her son, Harry, "absolutely and free and clear of any conditions or restrictions whatever."

    The accompanying record shows that Mrs. McKee was of one-half degree Osage Indian blood and that the only restricted property which she possessed at the time of her death was her own headright and 9/50ths of another headright which she inherited from her father. All of the devisees under the will are persons of Indian blood. The Commissioner of Indian Affairs recommends that you approve the will "with the understanding that Osage headrights and mineral interests devised or bequeathed to persons of Indian blood shall remain restricted as provided by law." In my opinion, such a statement attached to your approval of the will is meaningless. It accomplishes nothing so far as the legal effect of the will is concerned.

    Although Congress has given to adult Osage Indians the right to dispose of their property by will, with the approval of the Secretary of the Interior,1 it has not given to such persons the right to remove the restrictions which exist against the alienation of Osage headrights. Osage headrights disposed of by will pass to the recipients subject to the limitations imposed by Congress on the transfer of such headrights. If the recipient is a non-Indian, he may sell, assign or transfer his interest only with the approval of the Secretary

____________________

l Sec. 8 of the Act of April 18, 1912 (37 Stat. 86). 


 

1438

DEPARTMENT OF THE INTERIOR

FEBRUARY 13, 1947

of the Interior.2 If the recipient is an Indian, his interest may not be alienated.3

    You have no authority to remove the restrictions which exist against the alienation of headright interests by persons of Indian blood. Therefore, your unconditional approval of the will will not remove such restrictions.

    It is therefore recommended that the will be approved pursuant to the provisions of the act of April 18, 1912 (37 Stat. 86), and that the above quoted words suggested by the Commissioner of Indian Affairs be not included in your approval of the will.

                                                                                                                MASTIN G. WHITE,
                                                                                                                                        Solicitor. 

STATUS OF OPERATION AGREEMENT--DENVER
PRODUCING AND REFINING COMPANY
INDIAN RESERVATION 

M-34572                                                                                                         February 18, 1947. 

1. Under a provision for the continuance in full force and effect for so long as oil or gas can be produced in commercial quantities of an agreement by which the Denver Producing and Refining Company undertook to operate, as a unit, a block of oil leases on restricted Indian land, the agreement remains fully effective so long as an oil well drilled within the unit area produces oil in quantities sufficient for operation at a profit even though the operation as a whole, including expenditures for development and equipment, results in a loss.

2. To produce oil in commercial quantities it is not essential that the returns from the well repay the drilling costs.

3. An obligation to exercise due diligence in drilling additional wells is not met by an operator who has drilled but one well in a period of ten years, and further drilling may be required upon written notice as provided in the agreement of the parties.

MASTIN G. WHITE, Solicitor:

Memorandum
To:             The Commissioner of Indian Affairs.
From:         The Solicitor.
Subject:      Status of unit operation agreement, Denver Producing and Refining Company.

    You have requested my opinion as to whether an agreement approved by the Department on October 23, 1935, by which oil and gas leases on 67 tracts of restricted allotted Indian lands under the jurisdiction of the Kiowa Indian Agency in Oklahoma were to be developed as a unit by the Denver Producing and Refining Company, has terminated. Fifty of the leases were subsequently surrendered by the company, so that the agreement now covers only 17 tracts of Indian land.

    It is my opinion that the agreement is now in full force and effect.

    On the date of the approval of the agreement, the operator had completed a producing well on what is known as its No. 1 Adah Noe lease, and was engaged in the drilling of a second well on what is known as its No. 1 Sah Cam lease, which well it undertook to, and did, complete to a depth of 13,842 feet. The second well was nonproductive.

    Section VIII (b) of the agreement provides that the completion of a well "either heretofore or hereafter anywhere in said unit area as a commercial producer shall continue this agreement in force, as provided in section XV hereof." Section XV provides that the agreement 

"shall remain in effect until the completion of a well producing oil and/or gas in commercial quantities upon the unit area, except as provided in paragraph VIII hereof, and so long thereafter as oil and/or gas can be produced in commercial quantities from the unit area."

Under these provisions of the agreement, it is clear that if the well which had been completed at the time of the approval of the agreement was then producing oil or gas in commercial quantities, the existence of that well made the agreement effective and continued it in effect so long as the well was capable of producing oil or gas in commercial quantities.

    It is not open to question that the well did in fact produce oil in commercial quantities at the time of its completion. Later, in 1936, the operator reported that the well was producing about 50 barrels of oil per day. That the well was a commercial producer, thus continuing the agreement in effect, received departmental recognition in the granting of permission to suspend further drilling operations from year to year down to and including 1942. The status of the agreement seems not to have been questioned until August 25, 1945, on which date the Department notified the operator to show cause why the agreement should not be declared to have terminated. The notice was occasioned by information from the field indicating 

____________________

    2 Act of April 12, 1924 (43 Stat. 94).
    3 Taylor v. Tayrien, 51 F. (2d) 884; Taylor v. Jones, 51 F. (2d) 892.


 

1439

OPINIONS OF THE SOLICITOR

FEBRUARY 26, 1947

that the well had ceased to produce and that efforts to restore its production had failed. In responding to the notice, the operator, by letter dated November 13, 1945, called attention to the fact that repairs to the well and the installation of a pumping outfit would enable it to produce an average of 10 to 12 barrels of oil per day and expressed the view that although the operation as a whole, taking into account the cost of drilling and equipment, might result in a loss, a profit would nevertheless be realized over the nominal operating cost, which profit could be applied in recoupment of its expenditures for development and equipment. The operator also called attention to the fact that termination of the agreement would result in a loss to the Indians of rentals from the date of termination, amounting to $2,902.67 a year. The statement of the operator with respect to restoration of production through pumping operations is confirmed by a report dated December 10, 1946, from the Acting Director of the Geological Survey. That report shows a gradual increase in production from 6.14 barrels per day in February of 1946 to 19.6 barrels in September of that year.

    To produce oil in commercial quantities, it is not essential that the returns from the well repay the drilling costs. If the returns exceed the cost of operation after completion of the well, that is sufficient, even though the operation as a whole results in a loss.1

    The report of the Geological Survey confirms the judgment of the operator in the present case that the well in question can be operated at a profit. It follows that the agreement, unless otherwise lawfully terminated, will continue in full force and effect so long as that condition exists.

    In reaching the conclusion stated above, I deem is advisable to call attention to the fact that the unit agreement not only required the operator to complete the well that was being drilled, but it also expressly obligates the operator to drill with reasonable diligence additional wells looking to the recovery of the maximum yield of oil and gas underlying the unit areas. As the operator has drilled but one well in a period of more than ten years, it seems obvious that this covenant on the operator's part has not been met.2 Section VIII (d) of the agreement obligates the operator to commence drilling operations within 90 days after the receipt of notice so to do, if the drilling requirements are not being conducted with reasonable diligence. I suggest that you serve such notice on the operator immediately. 

                                                                                                                MASTIN G. W HITE,
                                                                                                                                        Solicitor. 

FISH TRAP LOANS AND USE OF STATISTICS
RELATING TO ALASKA SALMON FISHERY

                                                                                                                        February 26, 1947.

Although there is no legal bar to the granting of a loan to a native group in Alaska for the installation and maintenance of a fish trap, it is too late for the Department to take favorable action on such an application for the 1947 season. Nor should the Office of the Secretary make a decision upon the abstract question without an opportunity to examine the specific loan application.

The Secretary is not prohibited as a matter of law from making available to any bureau of the Department the fisheries data furnished by members of the industry pursuant to section 10 of the act of June 26, 1906 (34 Stat. 478, 48 U.S.C. 238). However, since this data has been obtained with the understanding that it would be used only for the purpose of regulating Alaska fisheries and of compiling public statistics, they should not be released for the benefit of native groups who are potential competitors of the persons furnishing the data.

MASTIN G. WHITE, Solicitor:  

Memorandum
To:            Assistant Secretary Gardner. .
From:        The Solicitor.
Subject:     Fish Trap Loans and Use of Statistics Relating to Alaska Salmon Fishery.

    In response to your informal request, the questions presented in the memorandum dated February 5 from Assistant Commissioner Provinse, of the Office of Indian Affairs, relative to the matters mentioned above have been considered both from the legal and the policy standpoints.

    Assistant Commissioner Provinse first inquires concerning the possibility of making loans to the native villages of Hydaburg, Klawock, and Kake in Alaska for the installation and maintenance of fish traps set sites previously used by other per- 

____________________

    1 See Denker v. Mid-Continent Petroleum Corporation, 56 (2d) 725, 727 (C.C.A. l0th, 1932), in which the Court ruled that three barrels a day constitute paying production, stating: "Such wells usually continue to produce for a long pried of time. it is common knowledge that three-barrel web under normal conditions can be operated at a profit." 
   
2 See Sauder v. Mid-Continent Corporation, 292 U.S. 272 (1934).


 

1440

DEPARTMENT OF THE INTERIOR

FEBRUARY 26, 1947

sons under claims of right based upon local custom among Alaska commercial fishermen but where the tailholds of the traps have been attached to lands claimed by the native villages upon the basis of aboriginal occupancy and use. Under the applicable law (25 U.S.C. 470, 473a, 501-509; 57 Stat, 459; 58 Stat. 463, 472) and the credit regulations issued December 18, 1945 (25 CFR Pt. 21), the money in the revolving credit fund of the Indian Office is available both to the organized and unorganized groups in Alaska to the same extent as it is available to similar groups in the continental United States. There is no legal bar, therefore, to the granting of a loan to any of the three village groups for the installation and maintenance of a fish trap. This would clearly be a loan "to promote the economic development of the borrower" (25 CFR 21.1).

    On the other hand, the matter of the advisability of making such a loan presents a difficult administrative problem. It is my understanding that the Department has heretofore taken the position that these native villages should be encouraged to install and maintain traps at sites where possessory rights with respect to the adjacent beaches are believed to be vested in the native groups and that, if they were to do so, the Department would endeavor to protect their right to the use of the sites. However, in view of the likelihood of litigation if the native villages should attempt to utilize sites which have heretofore been used by other persons under claims of right based upon local custom, and in view of the uncertainty of the position that would be taken by the local courts concerning the legal validity of the rights asserted by the respective parties as to the use of the sites, any program of the Department designed to assist the native groups in the establishment of fish traps should be carefully planned in advance of a particular fishing season. It seems to me, therefore, that the proposal from the Indian Office comes too late and is too incomplete to warrant favorable action upon it with respect to the 1947 fishing season.

    In the absence of an opportunity to examine specific loan applications, it is not feasible, in my judgment, for the Office of the Secretary to make a decision upon the abstract question as to what the Department should do if applications for loans for the purpose of installing and maintaining traps were to be submitted by native groups in Alaska. Whether a loan should be granted to a particular group would depend, among other things, upon the nature of the security which might be offered. As the Assistant Commissioner's memorandum does not furnish any information regarding the details of the suggested loan transactions, it seems to me that it would be inadvisable for the Department, upon the basis of this submission, to act favorably upon the proposal.

    Assistant Commissioner Provinse also raises a question concerning the release by the Fish and Wildlife Service to the General Superintendent of the Alaska Native Service of information obtained by the Fish and Wildlife Service from the operators of fish traps in Alaska relative to the productivity of such traps. Section 10 of the act of June 26, 1906 (34 Stat. 478; 48 U.S.C. 238) requires fishing operators to make detailed annual reports to the Department regarding their operations, "covering all such facts as may be required with respect thereto for the information of the Department." The word "Department," as originally used in section 10, meant the Department of Commerce and Labor, but it now means the Department of the Interior. As these data are obtained under the law "for the information of the Department," and not merely for the information of the Fish and Wildlife Service, I do not believe that the Secretary of the Interior is prohibited, as a matter of law, from making available to the several bureaus of the Department, including the Indian Office, fisheries data furnished by members of the industry pursuant to section 10.

    However, I understand from the General Counsel of the Fish and Wildlife Service that the information assembled under section 10 from the members of the Alaska fishing industry has always been obtained with a clear understanding upon the part of both the Fish and Wildlife Service and the members of the industry that it would be treated as confidential and would be used by the Department only for the purpose of regulating the Alaska fisheries and of compiling the public statistics relating to them. It seems to me that this understanding places the Department under an obligation of good faith not to use the information for the benefit of native groups or others who are potential competitors of the persons furnishing the data. As the information desired by the General Superintendent of the Alaska Native Service apparently would be used for the benefit of Alaska native groups in connection with the controversy between the natives and the operators over fish trap sites, it seems to me that the Department could not make the information available to the General Superintendent without committing a breach of the under standing with the operators.

    Assistant Commissioner Provinse has requested an opportunity to discuss the departmental policy concerning the use of the Fish and Wildlife Service reports. It would certainly be appropriate to afford

 


 

1441

OPINIONS OF THE SOLICITOR

MARCH 6, 1947

the Indian Office an opportunity to state its position more fully. Mr. Provinse's memorandum is attached. 

                                                                                                                MASTIN G. WHITE,
                                                                                                                                        Solicitor. 

COOPERATIVE UNDERTAKINGS 

M-34863                                                                                                               March 6, 1947.  

A person employed under a cooperative agreement to which the United States is a party should be regarded as an employee of the United States if, and only if, the following factors are present: (a) the person holds an appointment from an official of the Government who is authorized by law to make appointments; and (b) the activities of the person in the performance of the work are supervised and controlled by Federal officials.

Under the agreement of August 14, 1944, between the Department and the Society for Applied Anthropology, a coordinator of research selected by a committee on administrative research established by the society, and responsible to the committee, is not an employee of the Department.

Appropriated funds may be used to provide an office in the Interior Building and secretarial services for the coordinator of research under the cooperative agreement of August 14, 1944.

MASTIN G. WHITE, Solicitor:

Memorandum
To:            The Acting Secretary.
From:        The Solicitor.
Subject:     Status of coordinator of research under agreement with Society for Applied Anthropology.

    In your memorandum of February 17 you requested my opinion on two questions submitted to you by the Acting Commissioner of Indian Affairs concerning the status of Dr. Laura Thompson, Coordinator of Research under the agreement of August 14, 1944, between the Department and the Society for Applied Anthropology.

1. Is Dr. Thompson an employee of the Department?

2. If she is not an employee of the Department, may appropriated funds be utilized in providing her with an office in the Interior Building and in furnishing her with secretarial service?

    The agreement of August 14, 1944, is based upon the ac of April 16, 1934, as amended (48 Stat. 596, 49 Stat, 1458; 25 U.S.C. 452 et seq.). This statute authorizes the Secretary, among other things, to contract with any private corporation, agency, or institution for the education and social welfare of Indians and to expend under such contract moneys appropriated by the Congress for such purposes. The agreement is for a 5-year term. The other party contracting with the Department, namely, the Society for Applied Anthropology, is a "private agency located at Cambridge, Massachusetts." The agreement was made in order that the Department and the Society might engage "in a cooperative program of research into Indian policy and administration," following the completion of a basic study of Indian culture made by the Department in cooperation with the University of Chicago.

    Doctor Thompson is the Coordinator of the program set up under paragraph 2 of the agreement, which provides:

    "The operation of the program will be directed by the Society through a Committee on Administrative Research, hereafter referred to as the Committee. The participation of the Indian Service, at headquarters and in the field jurisdictions, will be made definite through the formation of appropriate committees, which shall cooperate with the Committee but without infringing upon its independence of action or judgment. The work of persons who may be employed by the Committee and the work of the Indian Service personnel as above referred to shall be coordinated and, in behalf of the Committee, supervised, by a Coordinator versed in the problems of the Indian and experienced in research and administrative procedure, who shall be selected by the Committee with the advice and consent of the Commissioner and who shall be responsible to the Committee. The Coordinator shall be appointed for one year from September 23, 1944. Renewal of the appointment of the Coordinator from year to year shall be subject to the approval of the Commissioner of Indian Affairs." (Emphasis supplied.)

    Paragraph 3 of the agreement provides that "The Society through the Committee will undertake the direction and supervision of the research program, and the Secretary in consideration will provide annually to the Society, at the expense of the United States, a sum not to exceed $6,000, dur-

 


 

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DEPARTMENT OF THE INTERIOR

MARCH 6, 1947

ing each year in which adequate funds for research are not made available from other sources, public or private." This amount is to be used "to reimburse the Society for all expenditures for services, for the purchase of research materials, for travel of the Coordinator and the members of the Committee, and for all other direct expenses incurred in connection with this project."

    It is my understanding that Doctor Thompson's salary is paid with a check drawn on the Society, and that the Society is reimbursed from the $6,000 specified in the contract, which is charged against the funds provided for in the annual appropriation act of the Department for the "Education of Indians" and the "Welfare of Indians."

    A person employed under a cooperative agreement to which the United States is a party should be regarded as an employee of the United States if, and only if, the following factors are present: (a) the person holds an appointment from an official of the Government who is authorized by law to make appointments; and (b) the activities of the person in the performance of the work are supervised and controlled by Federal officials. 17 Comp. Gen. 362; 16 Comp. Gen. 49; also see 22 Comp. Gen. 718; 24 Comp. Gen. 384. 

    As Doctor Thompson was selected and appointed the Society for Applied Anthropology, acting through the Committee on Administrative Research, and not by the Secretary of the Interior, and as she is responsible to the Committee, and not to the Secretary or any other official of the Department, it is clear that she is not an employee of the United States.

    Although Doctor Thompson is not an employee of the United States, she is the coordinator of  a project which is closely knit with the program of the Bureau of Indian Affairs. Paragraph 4 of the agreement provides for the employment of "Indian Service personnel to be engaged in the research program." While such personnel "shall continue to serve and be paid as employees of the Indian Service," nevertheless, "they shall report to the Committee through the Coordinator in all matters concerning the research program *     *     *." Clearly, the contract intends that Federal personnel shall be engaged on the project and shall be paid from funds other than the $6,000 specified in the agreement. Accordingly, the furnishing of secretarial services to Doctor Thompson is within the terms of the agreement.

    The supplying of office space in the Interior Building to Doctor Thompson is clearly incidental to the purpose of the agreement. If she is to coordinate successfully the operations of the Committee on Administrative Research with those of the Bureau of Indian Affairs, a convenient place to work is a necessary adjunct. Furthermore, the use of the Interior Building appears to be authorized expressly by the governing statute, the act of April 16, 1934, which, in section 2 (25 U.S.C. 453), makes specific provision for the use of Government "school buildings, hospitals, and other facilities" by non-Government agencies that are parties to cooperative agreements. 

                                                                                                                MASTIN G. WHITE,
                                                                                                                                        Solicitor. 

RESERVATION OF RIGHTS-OF-WAY ON
INDIAN PATENT LANDS 

59 I.D. 461
M-31156 (Supp.)                                                                                                 March 24, 1947.

As it is not certain whether Congress intended for the Department to reserve rights-of-way for ditches or canals in patents to lands which were in the public domain as of August 30, 1890, but which were subsequently incorporated in Indian reservations and are being distributed by allotment to individual Indians, there is leeway for a reasonable administrative construction of the right-of-way provision in the act of August 30, 1890.

The previous administrative construction of the right-of-way provision, to the effect that when an Indian reservation has been carved out of the public domain since August 30, 1890, and is to be distributed by allotment to individual Indians, such land is subject to the right-of-way for ditches or canals reserved by the Government, is not unreasonable and, if adhered to in the future, would not be upset by the courts.

The legislative history of the right-of-way provision in the act of August 30, 1890, indicates that Congress probably intended for it to relate only to patents issued in recognition of rights acquired in public domain lands through occupation, entry, or settlement, and not to the distribution of Indian reservation lands among individual Indians. Hence, the Department could properly adopt such an administrative construction of the legislation at the present time for application in the issuance of future patents, notwithstanding the contrary construction heretofore followed by the Department. 
 


 

1443

OPINIONS OF THE SOLICITOR

MARCH 6, 1947

MASTIN G. WHITE, Solicitor:

Memorandum
To:             The Secretary.
From:         The Solicitor.
Subject:      Reservation of Rights-of-Way for Ditches and Canals in Patents to Indians.

    A memorandum dated October 31, 1946, to the Secretary from the Director of the Bureau of Land Management submits a question concerning the right-of-way provision in the act of August 30, 1890. (26 Stat. 391, 43 U.S.C. 945), as construed by the Solicitor's opinion of January 27, 1943 (M-31156). 

    The statutory provision mentioned above, as it appears in the United States Code, provides that:

    "In all patents for lands taken up after August 30, 1890, under any of the land laws of the United States or on entries or claims validated by the Act of August 30, 1890, west of the one hundredth meridian, it shall be expressed that there is reserved from the lands in said patent described a right of way thereon for ditches or canals constructed by the authority of the United States."

    The Solicitor's opinion of January 27, 1943, passed upon the question as to whether, under the right-of-way provision in the act of August 30, 1890, the Department of the Interior could construct ditches or canals across the tribal lands of the Indians located on the Flathead Reservation in Montana, and across lands allotted to individual Indians out of that reservation, without paying compensation to the tribe or to the individual owners of the allotted lands. The Solicitor held that ditches or canals could not be constructed by the Department across the tribal or allotted lands without the payment of compensation. The grounds of the decision were that, by virtue of a treaty between the Indians and the United States, all the Flathead lands were in a tribal status as of August 30, 1890; that such lands were not subject to the reservation of the right-of-way provided for in the act of August 30, 1890; and that the allotted lands did not become subject to such reservation by reason of their distribution among individual Indians subsequent to August 30, 1890.

    During the course of his opinion, the Solicitor stated by way of dictum that the statutory provision under consideration "applies *     *     * to allotments made and patented from land of Indian reservations created out of the public domain by statute or Executive order subsequent to 1890." With respect to this dictum, the Director of the Bureau of Land Management points out that a serious administrative burden is involved in the attempt to determine, when patenting to individual Indians or their successors allotments out of Indian reservations, whether such reservations were in existence as of August 30, 1890, or were created out of the public domain subsequent to that date.

    The question as to whether the Congress intended for the Department to reserve rights-of-way for ditches or canals in patents to lands which were in the public domain as of August 30, 1890, but which were subsequently incorporated in Indian reservations and are being distributed by allotment to individual Indians, cannot be answered with certainty, in my judgment. There would seem to be no question as to the power of Congress to provide for the retention by the Government of rights-of-way in such a situation, without compensating the Indians for whose benefit the reservation was originally created, where the reservation was created after August 30, 1890, by Executive action. (See Sioux Tribe v. United States, 316 U.S. 317; The Confederated Bands of Ute Indians v. United States, decided by Supreme Court Feb. 17, 1947.) However, it is not clear whether Congress, in the act of August 30, 1890, intended to legislate with respect to this point. Consequently, I believe that there is leeway for a reasonable administrative construction of the right-of-way provision.

    On the one hand, it can be argued with considerable persuasiveness that when an Indian reservation has been carved out of the public domain since August 30, 1890, and is to be distributed by allotment to individual Indians, such land has been "taken up after August 30, 1890, under *    *     * land laws of the United States" and, consequently, is subject to the right-of-way mentioned in the statute. Certainly, the administrative construction of the statute to this effect in the past cannot be regarded as unreasonable, and an adherence to this construction in the future would not, in my judgment, be upset by the courts if subjected to attack in judicial proceedings.

    On the other hand, I believe that an equally convincing argument can be made for the proposition that land which is part of an Indian reservation as of the time of its distribution by allotment to individual Indians is not subject to the right-of-way provision in the act of August 30, 1890, irrespective of the status of the land as of August 30, 1890. The legislative history of this statutory provision is set out in considerable detail in the Solicitor's opinion of January 27, 1943. As indicated in that opinion, the provision originally appeared as a proviso to an item in an appropriation act. In connection with the appropriation of money for topographic surveys, Congress provided that: 
 


 

1444

DEPARTMENT OF THE INTERIOR

MARCH 24, 1947

" *     *     * so much of the act of October second, eighteen hundred and eighty-eight *     *     * as provides for the withdrawal of the public lands from entry, occupation and settlement is hereby repealed, and all entries made or claims initiated in good faith and valid but for said act shall be recognized and may be perfected in the same manner as if said law had not been enacted, except that reservoir sites heretofore located or selected shall remain segregated and reserved from entry or settlement as provided by said act, until other-wise provided by law, and reservoir sites hereafter located or selected on public lands shall in like manner be reserved from the date of the location or selection thereof.
    "No person who shall after the passage of this act, enter upon any of the public lands with a view to occupation, entry or settlement under any of the land laws shall be permitted to acquire title to more than three hundred and twenty acres in the aggregate, under all of said laws, but this limitation shall not operate to curtail the right of any person who has heretofore made entry or settlement on the public lands, or whose occupation, entry or settlement, is validated by this act: Provided That in all patents for lands hereafter taken up under any of the lands laws of the United States or on entries or claims validated by this act west of the one hundredth meridian it shall be expressed that there is reserved from the lands in said patent described, a right of way thereon for ditches or canals constructed by the authority of the United States." 

    When the proviso is considered in its proper legislative setting, it appears to relate to patents issued in recognition of rights acquired in public domain lands through occupation, entry, or settlement. It does not seem to pertain to the distribution of Indian reservation lands among individual Indians, irrespective of when the reservation was created. Accordingly, it would have been reasonable for the Department at the outset to construe the right-of-way provision as inapplicable to patents covering allotments to individual Indians out of Indian reservations, without regard to whether the reservations were created prior or subsequent to August 30, 1890. I do not believe that the Department would be subject to valid criticism from the legal  if, upon the basis of the factors mentioned in the memorandum from the Director of the Bureau of Land Management, it were to adopt such an administrative construction of the legislation at the present time for application in the issuance of future patents.

    Specifically answering the first phase of the inquiry contained the in Director's memorandum, it is my view that the Department is not required as a matter of law to reserve a right-of-way for ditches or canals in patenting to an individual Indian or his successor an allotment out of an Indian reservation created from the public domain since August 30, 1890. This answer obviates the necessity of considering the second phase of the Director's inquiry.

    A memorandum of instruction to the Director of the Bureau of Land Management is attached for your signature if you concur in his view that the administrative inconvenience of ascertaining the status, as of August 30, 1890, of Indian reservation lands, which may be allotted to individual Indians in the future outweighs the advantage to the Government of retaining rights-of-way for ditches or canals in those situations where such retention could be justified under the statutory construction suggested by the Solicitor's dictum in the Opinion of January 27, 1943. 

                                                                                                                MASTIN G. WHITE,
                                                                                                                                        Solicitor. 

SALE OF CEDED CROW LANDS

M-34393                                                                                                             March 26, 1947.

Ceded Crow lands on the Huntley Reclamation Project, Montana, cannot be sold under the act of May 16, 1930 (46 Stat. 367; 43 U.S.C. 424 et seq.), since the provisions for the disposition of the proceeds of sale under that act are incompatible with the proper discharge of the Government's duties to the Indians under the act of April 27, 1904 (33 Stat. 352), and since the ceded lands did not, by virtue of their cession, become public lands.

MASTIN G. WHITE, Solicitor:

Memorandum
To:            The Commissioner, Bureau of Reclamation
From:        The Solicitor.
Subject      Sale of ceded Indian lands on the Huntley Reclamation Project, Montana.

    In a memorandum of February 11, 1946, you asked my opinion as to the authority of the Bureau of Reclamation to dispose of certain ceded Crow lands on the Huntley Reclamation Project, Montana, under the act of May 16, 1930 (46 Stat. 367; 43 U.S.C. 424 et seq.).

    The lands in question were withdrawn for recla-

 


 

1445

OPINIONS OF THE SOLICITOR

APRIL 2, 1947

mation purposes in connection with the Huntley Project pursuant to the provisions of the act of April 27, 1904 (33 Stat. 352). The 1904 act modified and adopted an agreement between the Crow Indians and the United States for the cession of certain lands to the latter and inter alia made the ceded lands "subject to withdrawal and disposition under the reclamation Act of June seventeenth, nineteen hundred and two." (Section 5, 33 Stat. 360.) Lands withdrawn for reclamation purposes were required by the 1904 act to be disposed of within five years, but later, by the act of March 3, 1909 (35 Stat. 781, 797), such lands were made "subject to disposal under the provisions of the reclamation act until otherwise directed by the Secretary of the Interior."

    Subsequently, as authorized by section 4 of the act of December 5, 1924 (43 Stat. 672, 703; 43 U.S.C. 466), the Secretary of the Interior caused a survey to be made of various reclamation projects, including the Huntley Project, to determine what lands were unproductive and whether adjustments should be made in charges on the lands. A classification of lands temporarily and permanently unproductive on the various projects was contained in the report of a Board of Survey and Adjustments (H. Dot. 201, 69th Cong., 1st sess.), and the act of May 25, 1926 (44 Stat. 636; 43 USC. 423 et seq.), authorized certain adjustments pursuant to the classification.

    Section 1 of the act of May 16, 1930 (46 Stat. 367; 43 U.S.C. 424); authorizes the Secretary of the Interior "in connection with Federal irrigation projects to dispose of vacant public lands designated under the Act of May 25, 1926, as temporarily or permanently unproductive to resident farm owners and resident entryman on Federal irrigation projects in accordance with the provisions of this Act." If the 1930 act contained only those provisions found in section 1, it could be argued that such ceded Crow lands on the Huntley Project as have been found to be unproductive are to be regarded as falling within the category of "vacant public lands" and as subject to sale under this statute. However, section 5 of the 1930 act provides that the proceeds derived from sales, with an exception not relevant here, shall "inure to the Reclamation Fund" as credits against specified items. The application of this provision to the proceeds derived from the sale of lands ceded by the Crow Indians would be wholly incompatible with a proper discharge by the United States of its duties to the Indians under the act of April 27, 1904, previously mentioned in the second paragraph of this memorandum. The provisions of the 1904 act and of the agreement between the Crow Indians ratified by that act make it clear that the United States placed itself in the position of a trustee for the Indians with respect to the ceded lands and the revenues derived from their disposition. Specifically, section 5 of the 1904 act (33 Stat. 360) provides that "the amounts to be paid for the land" disposed of under the reclamation act "shall be credited to the funds herein established for the benefit of the Crow Indians."

    Furthermore, the Supreme Court has said that these lands ceded by the Crow Indians did not, by virtue of their cession, become public lands. (Ash Sheep Co. v. United States, 252 U.S. 159, 166.)

    Only an express statutory provision, or more persuasive evidence of Congressional purpose than is present here, would warrant the conclusion that the act of May 16, 1930, was intended to supersede the act of April 27, 1904, to the detriment of the Indians. (Minnesota v. Hitchcock, 185 U.S. 373.)

    I am of the opinion, therefore, that the act of May 16, 1930, has no application to the ceded Crow lands on the Huntley Project. 

                                                                                                                MASTIN G. WHITE,
                                                                                                                                        Solicitor. 

APPLICABILITY OF OKLAHOMA COMMUNITY PROPERTY
ACT TO RESTRICTED INDIAN
PROPERTY 

M-34899                                                                                                                  April 2, 1947.  

The restricted property of Indians is subject to the plenary control of the Federal Government. The States cannot prevent the application of acts of Congress to wards of the Federal Government domiciled therein.

Any conflict between the laws of a State and the laws of Congress relating to the Indians and their restricted property must be resolved against the State.

The Oklahoma Community Property Act of 1945 vests in each spouse an undivided one-half interest in property acquired subsequent to marriage or subsequent to July 26, 1945, whichever is later. It likewise vests in each spouse an undivided one-half interest in all income accruing after the marriage or after July 26, 1945, whichever is later.

With respect to the Indians of Oklahoma, the laws of Congress determine in whom an interest in restricted property shall vest, to whom the income from restricted property shall belong and

 


 

1446

DEPARTMENT OF THE INTERIOR

APRIL 2, 1947

whether such income shall be subject to State income taxation. 

The Oklahoma Community Property Act conflicts with Federal laws relating to the Indians and their restricted property. 

The Oklahoma Community Property Act does not apply to the restricted property of Indians or to the income from such property. 

As a division of income between husband and wife for Federal income tax purposes is not permissible unless that division is based upon a State law which vests in each spouse an undivided one half interest in the income, the Indians in Oklahoma should be notified that each Indian must report all his income from restricted property on his own return and that it would be improper for one-half of that income to be reported by his spouse. 

The income of married Indians from unrestricted sources may be reported to the Federal Government as community income because as to that income the Indian is as much subject to the law of the State as are its non-Indian citizens. 

Memorandum
To:             The Commissioner of Indian Affairs 
From :        The Solicitor
Subject:      Applicability of Oklahoma Community Property Act to restricted Indian property.

    This will refer to the memoranda of February 11 and February 28 from Mr. Fred H. Daiker, Director of Welfare, with which he submitted certain questions presented by superintendents of Indian agencies in Oklahoma relating to the applicability of the Oklahoma Community Property Act of 19451 to the restricted property of the Indians of Oklahoma. The questions are presented primarily in connection with the filing of Federal income tax returns for the Indians and their non-Indian spouses.

    This office has heretofore instructed the Superintendents of the Quapaw and Five Civilized Tribes Agencies that, where a saving in Federal income taxes can be effected, married Indians should file returns of their income in such a manner; LS to take advantage of the Community Property Act, i.e., the husband should file a return for one-half of the income and the wife should file a return for the other half of the income. These instructions were based on informal advice from the Bureau of Internal Revenue that, in view of the recently enacted Oklahoma Community Property Act of 1945, it would permit Oklahoma spouses to divide community income equally between them.

    The superintendents call attention to the fact that, while considerable savings could be effected by married Indians in their Federal income taxes if a separate return is filed for each spouse, the filing of returns in this manner might result in the violation of acts of Congress enacted for the protection of the Indians and their property. The following questions are presented in connection with this point: (1) whether, where one-half of the restricted income is reported by a non-Indian spouse, the superintendent has authority to pay the Federal income taxes of the non-Indian spouse out of the restricted funds of the Indian spouse; (2) whether, after a Federal income tax return has been filed for a non-Indian spouse covering one-half of an Indian's restricted income, the portion of the income included in such return may be considered unrestricted for State income tax purposes: (3) whether a superintendent has authority to pay, out of the restricted funds of an Indian, the State in come taxes of a non-Indian spouse, where that in come is derived from restricted Indian property which the Congress has declared to be exempt from State income taxes; (4) whether property purchased with restricted funds subsequent to the Community Property Act, where one of the spouses is a restricted Indian and the other spouse is a non-Indian, becomes community property; and (5) whether one-half of the property mentioned in subdivision (4) becomes unrestricted in the event of the dissolution of the marriage by divorce or by the death of the Indian spouse.

    The first community property law of Oklahoma was enacted in 1939.2 Its terms were substantially the same as those of the 1945 act. The 1939 law provided, however, that it should apply only to husbands and wives and to their property after the filing by the parties of a written election to come under its terms. The Supreme Court of Oklahoma, in the case of Harman v. Oklahoma Tax Commission, 118 P. (2d) 205, held that the income derived by the husband from his separate property after the effective date of his election to come within the scope of the act was community property and should ,be treated as such for State income tax purposes. In 1944, the question whether, upon Oklahoma's adoption of the optional community property law, a husband and wife who elected to come under that law were entitled thereafter to divide the community income equally between

____________________

    1 Session Laws of Oklahoma, 1945, p. 118, 32 Okl. stats., Annotated, Sections 66-82 (1946 Cumulative Annual Pocket Part). 
   
2 Session Laws of Oklahoma, 1939, p. 356. 


 

1447

OPINIONS OF THE SOLICITOR

APRIL 2, 1947

them for purposes of Federal income tax was considered by the United States Supreme Court. In the case of Commissioner of Internal Revenue v. Harman, 323 U.S. 44, the Court held that the Oklahoma statute was ineffective to confer on a husband and wife the legal right to divide their income equally between them for purposes of Federal income taxes where that income consisted of the husband's salary, dividends from stock held by the husband and wife as their separate property, distribution of profits from a partnership of which the husband was a member, and oil royalties due to each of them.

    Thereafter, the Oklahoma Community Property Act of 1945 was enacted. As stated above, it is substantially the same as the earlier act, with the elective feature of the 1939 act eliminated. The courts of Oklahoma have not yet construed the 1945 act. However, it seems reasonable to assume that they will follow Harman v. Oklahoma Tax Commission insofar as it holds that income accruing from the separate property of either spouse is to be considered as community income for State tax purposes. The Bureau of Internal Revenue has already ruled that the 1945 Community Property Act of Oklahoma establishes a community property system which, for Federal income tax purposes, satisfies the test prescribed by the Supreme Court in Poe v. Seaborn, 282 U.S. 101, and that a husband and wife who are domiciled in the State of Oklahoma are entitled to include in their separate Federal income tax returns one-half of their community income received or accrued on and after July 26, 1945, the effective date of the new act.3

    The test prescribed by Poe v. Seaborn was that of ownership or of interest in the community property. The Court found that, under the State statute there under consideration, all property acquired after marriage by either husband or wife, or by both, except that acquired by gift, bequest, devise, or inheritance, was community property.

    The Oklahoma Community Property Act likewise provides that property acquired by either the husband or wife during marriage and after July 26, 1945, shall be deemed to be the community or common property of the husband and wife and vests in each spouse an undivided one-half interest therein. It excepts, however, property owned or claimed by either the husband or wife before marriage or before July 26, 1945, whichever is later, and that acquired afterwards by either the husband or wife by gift, devise, or descent, or received by either as compensation for personal injuries. All debts created by either the husband or wife after marriage or after July 26, 1945, whichever is later, are to be regarded as community debts unless the contrary is satisfactorily proved. In the event of the dissolution of the marriage by degree of any court of competent jurisdiction, the husband and wife are each vested with an undivided one-half interest in the community property as tenants in common. Upon the death of the husband or the wife, the surviving spouse is to administer all community property in the same manner and with the same duties, privileges, and authority as are vested in a surviving partner to administer and settle the affairs of a partnership upon the death of the other partner. The surviving husband or wife is required to pay out of the community property all debts of the community, whether created by the husband or the wife; and when all debts of the community have been fully satisfied, the survivor is to transfer and convey to the administrator or executor of the deceased one-half of the community property remaining, to be administered and distributed as other property of the estate. Thereafter, the interest of the surviving spouse in the community property is that of a tenant in common.

    The question for determination is whether restricted Indian property comes within the scope of the Oklahoma Community Property Act.

    It is well settled that the restricted property of Indians is subject to the plenary control of the Federal Government and that the States cannot, by acts of their legislatures, prevent the application of acts of Congress to wards of the Federal Government domiciled in their States.4 Any conflict between the laws of a State and the laws of Congress relating to the Indians and their restricted property must be resolved against the State.

    With respect to the Indians of Oklahoma, the laws of Congress determine in whom an interest in restricted property shall vest, regardless of whether that interest is acquired prior to or subsequent to marriage or prior to or subsequent to the date of the enactment of the Oklahoma Community Property Act. Those laws likewise determine, in many instances, that the income from the restricted property shall belong to the individual Indian as his or her separate property rather than to the community estate; that such income shall be expended under supervision of the Secretary of the Interior; that such income shall not be subject to State income taxes; and that, upon the death of the individual in whom title is vested, certain persons shall be barred from inheriting the estate.

    I shall cite only a few examples of the conflict which exists between the Oklahoma Community 

____________________

    3 Bul. 4 (1946), I.T. 3782 (a), p. 6. 
    4 Board of Commissioners of Creek County v. Seber, 318 U.S. 705; Tiger v. Western Investment Co., 221 U.S. 286; Brader v. James, 246 U.S. 88; United States v. Boyd, 83 Fed. 547. 


 

1448

DEPARTMENT OF THE INTERIOR

APRIL 2, 1947

Property Act and the Federal laws, insofar as restricted Indian property is concerned:

    (1) The State law vests in each member of the community an undivided one-half interest in the accruing income. Under that law, the income from separate property becomes community property. If real estate is purchased out of the income from separate property, a one-half interest in the real estate would vest in each member of the community. Thus, under the Oklahoma Community Property Act, if real estate were acquired for an individual Indian out of that Indian's restricted income, accruing after marriage and after July 26, 1945, an undivided one-half interest in that property would automatically vest in the spouse of the Indian. The Federal act of January 27, 1933,5 authorizes the Secretary of the Interior to expend funds and other securities held under supervision "for the use and benefit of the individual Indians to whom such funds and securities belong *     *     * ." The Federal act obviously contemplates that the entire interest in any real estate acquired with such funds shall vest in the individual Indian whose funds are used for the acquisition. The act of January 27, 1933, also provides that

    "*     *     *     where the entire interest in any tract of restricted and tax-exempt land belonging to members of the Five Civilized Tribes is acquired by *     *     * purchase, with restricted funds, by or for restricted Indians, such lands shall remain restricted and tax-exempt during the life of and as long as held by such restricted Indians *     *     *."

Under the State law, if restricted funds, accruing after marriage or after July 26, 1945, were used to acquire restricted and tax-exempt lands, one-half thereof would immediately become unrestricted and taxable, contrary to the law of Congress, unless the spouse were also a restricted Indian.

    (2) Under the State law, each spouse has an equal interest in all income. However, Congress has declared that Osage allottees or their heirs shall be paid their pro rata shares of the interest on trust funds, the bonus received from the sale of oil or gas leases, and the royalties therefrom received during each fiscal quarter.6 By the act of June 24, 1938,7 the amount paid to Osage Indians who have not received certificates of competency shall not exceed $1,000 a quarter, except in certain circumstances. If the non-Osage spouse of an Osage Indian had an equal interest with the Osage in the income from these sources, under the State community property law, the spouse could demand one-half of the accrued income, regardless of the limitation placed by act of Congress upon Osage Indians without certificates of competency.

    (3) The act of April 17, 1937,8 authorizes the State of Oklahoma to levy and collect a gross production tax upon all lead and zinc produced from the lands allotted to the Quapaw Indians. The act contains the following significant language:

    "In accordance with the uniform policy of the United States Government to hold the lands of the Quapaw Indians while restricted and the income therefrom free from State taxation of whatsoever nature, except as said immunity is expressly waived, and, in pursuance of said fixed policy, it is herein expressly provided that the waiver of tax immunity herein provided shall be in lieu of all other State taxes of whatsoever nature on said restricted lands or the income therefrom, and the Secretary of the Interior is hereby authorized and directed to cause to be paid out of the individual Indian funds held under his supervision, belonging to the Indian owner of the land, the gross production tax so assessed against the royalty interest of the respective Indian owner *     *     *." (Emphasis supplied.)

Thus, Congress has specified that that income from these lands shall be free from State taxation. The income from these lands would not be free from State taxation if one-half thereof vested in a non-Indian spouse of the owner of the land under the Oklahoma Community Property Act.

    (4) Section 7 of the act of February 27, 1925,9 provides that none but heirs of Indian blood shall inherit from those who are of one-half or more Indian blood of the Osage Tribe of Indians any right, title, or interest to any restricted lands, moneys, or mineral interests of the Osage Tribe. The prohibition does not apply, however, to spouses under marriages existing as of the date of the passage of that act. Under the Oklahoma Community Property Act, the surviving spouse is automatically vested with an undivided one-half interest in all community property, after the debts of the community are paid. Since that community property consists of all income accruing subsequent to marriage or subsequent to July 26, 1945, which ever is later, and all property purchased with such income, a non-Indian spouse would take under the State statute a one-half interest in a deceased Osage's estate, in derogation of the law of Congress. 

____________________

    5 47 Stat. 777.
    6 Act of June 28, 1906 (34 Stat. 539). 
    7 52 Stat. 1034.
    8 50 Stat. 68.
    9 43 Stat. 1008. 


 

1449

OPINIONS OF THE SOLICITOR

APRIL 8, 1947

    No useful purpose would be served by additional references to conflicts between the Oklahoma Community Property Act and the laws of Congress. Enough has been said to show that, if the Oklahoma law were applied to the restricted property of Indians, the will of Congress would be frustrated.

    Therefore, as the Federal law is paramount in the field of Indian affairs, I conclude that the Oklahoma Community Property Act does not apply to the restricted property of Indians or to the income from such property.

    As a division of income between husband and wife for Federal income tax purposes is not permissible unless that division is based upon a State law which vests in each spouse an undivided one-half interest in the income, the instructions formerly issued to the Superintendents of the Quapaw and Five Civilized Tribes Agencies must be modified. The superintendents, in assisting Indians hereafter in the filing of Federal income returns, should notify them that each Indian must report all his income from restricted property on his own return, and that it would be improper for one-half of that income to be reported by his spouse.

    Of course, the income of married Indians from unrestricted sources, e.g., salaries and other income derived from the efforts of Indians and their spouses, income from real and personal property held by Indians without restriction or held by their spouses, etc., may be reported to the Federal Government as community income, because as to that income the Indian is as much subject to the law of the State as are its non-Indian citizens.

    A copy of this memorandum is being sent to the superintendents of the Quapaw, Five Civilized Tribes, Pawnee, and Osage Agencies, as requested by you. 

                                                                                                                MASTIN G. WHITE,
                                                                                                                                        Solicitor. 

ARREST OF CHIPPEWA INDIAN BY STATE
FOR CRIME AGAINST NON-INDIAN 

                                                                                                                                 April 8, 1947. 

The Honorable, 
    The Attorney General.

SIR:

    This is in reply to your letter of December 19 (Your file TLC:HDB 90-2-7-012), inviting the comment of this office upon a letter dated November 29 from Mr. H. P. Davis to the United States Attorney at St. Paul, Minnesota. Mr. Davis' letter, which was forwarded to your Department by the United States Attorney, contains a series of numbered questions with respect to the interpretation of Article VIII of the treaty dated March 19, 1867, between the United States and the Chippewa Indians of the Mississippi (16 Stat. 719). The article in question provides that "in case of the commission by any of the said Indians of crimes against life or property, the person charged with such crimes may be arrested, upon the demand of the agent, by the sheriff of the county of Minnesota in which said reservation may be located, and when so arrested may be tried, and if convicted, punished in the same manner as if he were not a member of an Indian tribe."

    Comments will be made upon Mr. Davis' questions in the order in which they have been put, as follows:

    (1) The treaty limits the application of State law to "crimes against life and property." While it must be recognized that these categories are extremely comprehensive, they would not, in my judgment, include such offenses as violations of the State's fish and game laws.

    (2) I believe that, under the treaty, only the Superintendent may authorize the arrest of an Indian. It must be remembered that when the treaty was made, the State had no jurisdiction over offenses committed by Indians on the reservation, and it is still the general policy of the Federal Government to exclude such jurisdiction. The exception created by the treaty must, therefore, be narrowly construed. In effect, it instituted a procedure analogous to extradition, and the treaty makers apparently contemplated that the agent would decide certain preliminary questions of fact and policy (such as the nature of the offense and the competency of the offending Indian, particularly the degree of his advancement in the arts of civilization) in determining whether to demand or consent to an arrest. This responsibility was placed specifically upon the agent (i.e., the Superintendent), and I do not believe that it can properly be delegated by him to other persons.

    (3) Once the Superintendent has directed an arrest under the treaty, it may be made by an Indian Service officer if, and only if, he has been deputized by the sheriff to make arrests.

    (4) If the crime charged is one against life or property and the arrest has been authorized by the Superintendent, the State court would have jurisdiction to apply State law, even though the offense was committed on reservation lands.

    (5) The Sheriff would have no authority, in the absence of consent by the Superintendent, to serve a warrant issued by a Justice of the Peace with re-


 

1450

DEPARTMENT OF THE INTERIOR

APRIL 8, 1947

spect to an offense allegedly committed by an Indian on the reservation.

    (6) The answer to this question must be in the negative, in so far as any genera1 authority is concerned.

    (7) Whether an arresting officer would subject himself to a civil suit for false arrest if the arrest were unauthorized would depend on the circumstances, and, therefore, this question cannot be answered categorically. If he acted under a warrant, he would doubtless be protected, unless the warrant were void on its face.

    (8) It is improbable that a Justice of the Peace who imprisoned an Indian offender brought before him by an Indian Service police officer would be held liable in an action of false imprisonment. .Judicial officers, including the judges of inferior courts and courts of limited jurisdiction, can be held liable in such actions only in cases in which they have acted wholly without jurisdiction. There is no liability where the judge has jurisdiction of the subject matter, and he errs in assuming that he has jurisdiction of the person.

    The answers to the foregoing questions are based upon the provisions of the treaty. I think it is necessary to point out, however, that State courts have jurisdiction over many Indians apart from Article VIII of the treaty of 1867. Indians who were allotted under the provisions of the General Allotment Act of February 6, 1887 (24 Stat. 388), and Indians who have received patents in fee for their allotments since the act of May 8, 1906 (34 Stat. 182), which amended section 6 of the General Allotment Act, are subject to the criminal jurisdiction of the State courts by virtue of this legislation. A large number of Indians under the jurisdiction of the Consolidated Chippewa Indian Agency in Minnesota have been allotted under this legislation but this source of jurisdiction has apparently been overlooked.

    It is realized that the extent of the criminal jurisdiction of the State courts under the treaty of 1867, as well as under the General Allotment Act, as amended, is not wholly satisfactory. This jurisdiction might be supplemented by tribal jurisdiction, but it has been many years since courts of Indian offenses have been maintained for the Indians of the Consolidated Chippewa Indian Agency of Minnesota. Most of the Chippewa Indians have adopted the habits and customs of civilized life and are quite generally treated in the same manner as the non-Indian citizens of the State.

    It is expected that there will be submitted to the present Congress some form of legislation which will give the Chippewa Indians of Minnesota an opportunity to vote on the question of making the law of the State applicable to them to the same extent that it is applicable to other citizens of the State. 

                                                                                                                MASTIN G. WHITE,
                                                                                                                                        Solicitor. 

RESTORATION OF LAND TO TRIBAL OWNERSHIP
UNDER INDIAN REORGANIZATION ACT

 M-34912                                                                                                                 April 11, 1947.

The Secretary of the Interior was authorized to restore to tribal ownership, pursuant to section 3 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984, 25 U.S.C. sec. 463), ceded lands of the Uintah and Ouray Reservation, not withstanding the fact that specified tracts of such land were also subject to sale for certain purposes to the town of Myton, Utah, under the act of July 26, 1916, since that act is not mandatory. The Secretary, having a choice between two alternatives, restored the land to tribal ownership, and his choice is irrevocable. Moreover, the town of Myton has not yet filed a valid application to purchase the lands, and it wishes to acquire them for use as an airport site--a use not permitted by the act of July 26, 1916. 

MASTIN G. WHITE, Solicitor:

Memorandum
To:             Director, Bureau of Land Management.
From:         The Solicitor.
Subject:      Right of Town of Myton, Utah, to acquire certain lands.

    In your memorandum of March 26 you requested that I render an opinion on the question whether certain lands desired by the town of Myton, Utah, may now be patented to the town pursuant to the act of July 26, 1916 (39 Stat. 389), notwithstanding the withdrawal order of September 19, 1934, as amended (54 I.D. 559, 563), and the order of restoration of August 25, 1945 (10 F.R. 12409).

    The act of July 26, 1916, provides that "the Secretary of the Interior be, and he is hereby authorized, upon the payment of $1.25 per acre, to issue patents to the town of Myton, Utah," for certain lands described in the statute. On November 21, 1921, the town received a patent for the S1/2 S1/4 sec. 30, T. 3 S., R. 1 W., which is one of the tracts mentioned in the statute. However, the town expressed no interest in any of the other lands until May 8, 1944. The lands covered by the statute are part of the opened, ceded lands of the Uintah and Ouray


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