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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:

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.

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.

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:

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

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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:

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:

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

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OPINIONS OF THE SOLICITOR

JANUARY 3, 1947

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.

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

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

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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.

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

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.

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

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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.

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

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.

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.

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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.

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.

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

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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.

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

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.

    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.

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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:

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.

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DEPARTMENT OF THE INTERIOR

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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.

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:

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:

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):

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

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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.

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.

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

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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.

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

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.

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

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.

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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.

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.

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).

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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

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OPINIONS OF THE SOLICITOR

MARCH 6, 1947

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

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.