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tary and stated emphatically their intention to redraft the section so that there could be no doubt that the Secretary was to have no discretion to take into account the public interests in acting upon State applications for exchanges. ^l The Committee reports on the measure state that the purpose of the amendment of section 8 is to make mandatory the exchange of lands upon the application of a State.²

    Moreover, the Department has, since the 1936 amendment of the section, construed the section as requiring .the consummation of State exchanges, where the State has met the other requirements of the section. Thus, while the regulations relating to State exchanges under the original act stated that exchanges might be made when such ex changes were in the public interest (55 I.D. 200, 484), the regulations promulgated shortly after the passage of the amendatory act deleted any requirement that a benefit to the public interest must be shown. (55 I.D. 582; 43 CFR Part 147.)

    One of the first State applications to exchange lands to come before the Department after the passage of the act of June 26, 1936, was considered in State of Montana (A-20068, November 3, 1936, modified January 13, 1937). In reviewing a decision by the Commissioner of the General Land Office which had rejected the State's application made under the act of June 28, 1934, the Acting Secretary said:

    "The reason, however, assigned for this conclusion [that lands within a national forest may not be exchanged] was that the exchange of lands within a forest for lands within a grazing district would apparently not benefit the public interests. Public benefit was considered as a criterion for testing the validity of the application for exchange in the view that the authority of the Secretary of the Interior to make the exchanges of both private and  State-owned lands under the provisions of section 8 was governed by the clause therein contained reading 'when the public interests will be benefited thereby.' "

After referring to the amendment made to the section in 1936 and after quoting the first paragraph of subsection (c) , the Acting Secretary continued:

    "It will be noticed that the above-quoted portion of subdivision (c) contains no limitation or conditions on the right of exchange, except where the land selected is within a grazing district or without the State. No power is lodged in the Secretary of the Interior to determine whether the exchange will be a public benefit. The statute says, 'The Secretary of the Interior shall accept on behalf of the United States title to any State-owned lands etc.' It is, therefore, believed that this provision is mandatory and that the right of the State to select land not within a grazing district in exchange for land that it owns cannot be denied or abridged for the reason that the offered land lies within the exterior boundaries of a national forest."

    In several cases the Department, recognizing the mandatory language of section 8 (c), has held that a protest against the allowance of a State's exchange application, made by one who had the selected public land outside of a grazing district under lease pursuant to section 15 of the Taylor Grazing Act (43 U.S.C., 1946 ed., sec. 315m) must be dismissed so long as the State continued to assert its right to select the land. David Hunt v. State of Arizona, A-23246 (April 27, 1943); Secundino Cocio v. State of Arizona, A-23409 (January 30, 1943, February 23, 1943). Other instances of the Department's recognition that in processing State exchange applications, it is without discretion in the matter of determining whether an exchange application submitted by a State is in the public interest are to be found in Solicitor's Opinions M-31956 (October 26, 1942), and M-33608 (April 22, 1944), and in the case of State of California, A-25411 (June 2, 1949, supplemented on August 4, 1950). In discussing the two categories of exchanges provided for in section 8 of the amendatory act--private and State--the Department stated, on reconsideration of the case of Sidney B. Moeur, State of Arizona, and New River Land and Livestock Company, A-25548, 25570 (original decision dated November 9, 1949), on March 31, 1950:

    "Indeed, a belief upon the part of the Secretary that public interests would not be benefited by an exchange proposed by a State could not be regarded as an adequate reason for the rejection of the State's proposal."

    I agree with this statement and conclude that the Director of the Bureau of Land Management has no authority to reject an application made by a State to exchange lands outside of a grazing district under section 8 (c) of the Taylor Grazing Act, as amended, on the ground that the consummation of the exchange would seriously interfere with the

    ¹ See Hearings before the Committee on Public Lands and Surveys, United States Senate, on S. 2539, 74th Cong., 1st sess. pp. 47-49.
    ² See Senate Report No. 1005, 74th Cong., 1st sess., and Senate Report No. 2371, 74th Cong., 2d sess.

administration and disposal of the remaining public lands.

    In this connection, however, the Director's attention should be called to the provision in subsection (d) which authorizes either party to an exchange based on equal values to reserve easements or rights of use. It would appear that much of the difficulty envisioned by the Director could be eliminated, where land is selected along a highway, if the Government were to reserve the right of access to the highway across the selected land.

2.

    Section 7 of the Taylor Grazing Act, as originally enacted, authorized the Secretary, in his discretion, to examine and classify any lands within grazing districts which were more valuable and suitable for the production of agricultural crops than for native grasses and forage plants and to open such lands to homestead entry.

    Before any grazing districts, provided for by section 1 of the act (43 U.S.C., 1946 ed., sec. 315), were established, all of the vacant, unreserved, and unappropriated public lands in 12 of the western States were temporarily withdrawn from settlement, location, sale or entry and reserved for classification and pending a determination of the most useful purpose to which such lands might be put in consideration of the provisions of the Taylor Grazing Act (Executive Order No. 6910, dated November 26, 1934, 43 CFR 297.11). A similar order later withdrew and reserved the public lands in 12 other States (Executive Order No. 6964, February 5, 1935, 43 CFR 297.12). Executive Order No. 6910 was held in a Solicitor's opinion of February 8, 1935 (55 I.D. 205) to permit the establishment of grazing districts under section 1 of the act but to prevent the exchange of lands under section 8, the sale of isolated tracts under section 14, and the leasing of lands under section 15 of the act. The two general withdrawals were amended at various times during the years 1935 and 1936 to permit exchanges, sales and leases under the act. (Executive Order No. 7048, May 20, 1935, 43 CFR 297.14; Executive Order No. 7235, November 26, 1935, 43 CFR 297.15; and Executive Order No. 7363, May 6, 1936; 43 CFR 297.17.)

    However, all of the public lands in the named States having been withdrawn except from the operation of the Taylor Grazing Act, the operation of other public-land laws virtually ceased in those States. The initiation of rights to the public lands under those laws was prevented where the initiation of such rights depended upon the availability of vacant, unreserved, and unappropriated public lands. In addition, the withdrawals prevented the satisfaction of many rights which had previously been granted to the States and to private individuals by the Congress to select vacant, unreserved, and unappropriated public lands for various purposes. Many of these rights had been outstanding for years. Thus States which had unsatisfied school grants were precluded from selecting lieu lands for those lost to the States under the original grants because of settlement, because of their inclusion in Indian or other reservations, or because of their mineral character. (See 43 U.S.C., 1946 ed., sec. 851 et seq.)

    It is against this background that the amendment of section 7 on June 26, 1936, must be considered. As amended, section 7 (43 U.S.C., 1946 ed., sec. 315f), in so far as it is pertinent to this discussion, provides:

    "*     *     * the Secretary of the Interior is hereby authorized in his discretion, to examine and classify any lands withdrawn or reserved by Executive order of November 26, 1934 (numbered 6910), and amendments thereto, and Executive order of February 5, 1935 (numbered 6964) or within a grazing district, which are more valuable and suitable for the production of agricultural crops than for the production of native grasses and forage plants, or more valuable or suitable for any other use than for the use provided for under this Act, or proper for acquisition in satisfaction of any outstanding lien, exchange or script rights or land grants, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public-land laws *     *     *.."

    The section added to the category of lands which the Secretary might, in his discretion, examine and classify those lands withdrawn by the two general withdrawal orders and authorizes the examination, classification, and opening of those lands which he finds to be "more valuable or suitable for any other use than for the use provided for in this Act, or proper for acquisition in satisfaction of any outstanding lieu, exchange or script rights or land grants." Nothing in the section indicates that the exchanges provided for in section 8 (c) are within its scope.

    The section permits classification for the satisfaction of outstanding exchange rights. It thus embraces only those exchange rights which had previously been granted. It does not include the right not previously enjoyed by the States to exchange lands which they owned with the United States, conferred by Section 8 (c).

    A construction of section 7 to permit the classification of lands outside of grazing districts applied for by States under section 8 (c) of the act would be inconsistent with the stated purpose of section 8 (c). The power to classify in one's discretion implies the power to refuse to classify. Thus by a refusal to classify or by a classification for another purpose than a State exchange, a State's application could be defeated. Surely it cannot have been intended to permit, by means of the power to classify, the rejection of the privilege conferred under section 8 (c). A more reasonable construction of section 7 is that lands applied for under section 8 (c) are not within the scope of the classification power conferred.

    I conclude, therefore, that the authority of the Secretary of the Interior under section 7 of the Taylor Grazing Act, as amended, to classify lands does not extend to lands outside of a grazing district which are applied for by a State under section 8 (c) of the Taylor Grazing Act.

March 11, 1954

Approved:  ORME LEWIS
Assistant Secretary of the Interior

TRIBAL BOARD OF HEALTH--ADOPTION OF NEVADA
STATE LAWS BY TRIBE

                                                                                                                    January 19, 1954.

Memorandum

To:            Assistant Secretary Lewis
From:        The Solicitor
Subject:     Adoption of Nevada State Health Codes by Shoshone-Paiute Tribe

    On October 21, 1953, the Shoshone Pauite Business Council enacted an ordinance adopting the Nevada State Health Code.

    In the Bureau of Indian Affairs this tribal enactment has been interpreted as an exercise of the power of the Council under section 1 (k) of Article VI of the tribal constitution, which empowers the council to adopt ordinances on the subject of law and order, and a letter has been prepared for departmental signature in which the enactment is rescinded on the ground that it would require the tribal council to set up a tribal Board of Health similar to the State board to enforce the State Health law. On this theory, the time for rescission would expire today.

    It is believed, however, that the tribal enactment has been misconstrued. It would appear to make provision for the enforcement of the State health laws on the reservation by the State Board of Health pursuant to the act of February 15, 1929 (45 Stat. 1185), as amended (25 U.S.C., 1946 ed., sec 231), which permits State health laws to be adopted by tribal governing bodies with the approval of the Secretary of the Interior under such rules and regulations as he may prescribe. Under the statute, however, the State health law may not be applied on a reservation where "a duly constituted governing body exists until such body had adopted a resolution consenting to such application." Section 84.78 of 25 CFR, which regulates the hospital and medical care of Indians, permits tribes organized under the Indian Reorganization Act to adopt State health laws, subject to the approval of the Secretary of the Interior. Any resolution adopted pursuant to the act of February 15, 1929, and the regulation, is thus not subject to rescission within 90 days as provided in the tribal constitution. It may be approved at any time.

    It is recommended that you sign the substitute letter prepared in this office for your signature. In this letter the tribal resolution is approved.

YELLOWTAIL DAM--CONDEMNATION
OF INDIAN LANDS

M-36148 (Supp.)                                                                                        February 3, 1954.

Crow Indian Tribe--Indian Tribal Lands--Yellowtail Project.

Section 9 of the act of June 28, 1946 (60 Stat. 333, 336) which prohibits "further construction work on the Crow reservation without the consent of the Crow tribe and the irrigation districts affected" applies only to the extension of an existing irrigation system on the Crow reservation and is not applicable to the construction of the Yellowtail dam.

The congress has specifically authorized the Yellowtail dam as a reclamation and power development and has provided that in undertaking the project and carrying out his plans, the Secretary shall be governed by the Federal Reclamation Law (Flood Control Act of 1944, 58 Stat. 887). Section 7 of the organic Reclamation Act of June 17, 1902 (32 Stat. 388) gives the Secretary of the

Interior express authority to condemn lands needed for a reclamation project.

Memorandum

To:            The Secretary
From:        The Solicitor
Subject:     Condemnation of Indian lands needed for the Yellowtail Dam and Reservoir Site

    On October 27, 1952, this office released an opinion (M-36148) to the Secretary in which the conclusion was reached that because of section 9 of the act of June 28, 1946 (60 Stat. 333, 336), the United States is without power to construct the Yellowtail dam and reservoir on Crow Indian tribal lands, and that despite specific authorization of the dam in the Flood Control Act of 1944, it cannot be built.

    An extensive examination of this entire situation has been made by this Department and the following conclusions arrived at:

    a. The Yellowtail dam and reservoir was specifically authorized and approved by the Congress as a part of the Flood Control Act of 1944.
    b. The previous opinion of this Department is largely based upon a provision of the act of June 8, 1946, which said:

    "No further construction work on the Crow Indian Reservation shall be undertaken by the United States without the prior consent of (1) the Crow Tribe, (2) the irrigation district or districts affected, and (3) the Congress of the United States."

    Taken alone and by itself, this language might be construed to prevent the construction of the Yellowtail dam on the Crow Indian reservation. An examination of that act and of its history, however, gives a different meaning to the language above set forth.

    To understand the act, it is necessary to recall that there is an already existing Crow Irrigation project on the reservation, and that the Crows had previously complained to the Congress that they were not in favor of the extension of that project; that they were being given irrigation systems which they did not want, to irrigate lands which they did not wish to irrigate, etc.

    Attention should first be directed to the title of the act of 1946, which is "To provide for adjustments in connection with Crow Irrigation project, Crow Indian Reservation, Montana." The act, therefore, obviously was intended to apply to the existing irrigation project, and no mention of the Yellowtail dam is made in the title or the body of the act. Furthermore, this Department in its reports on the bill stated:

    "Section 9 of the bill would prevent new construction on the Crow project without the prior consents and replacement contracts required thereunder."

    Still further, the committee reports of the House and Senate indicate clearly that the Yellowtail dam was not in the contemplation of the Congress in connection with the 1946 act.

    It is considered most unlikely that this language, primarily relating to another matter, was intended, without any specific reference to it, to prohibit construction of the Yellowtail dam, which Congress had just specifically authorized at the previous session. Certainly it is not to be lightly inferred that an act with this background and with no reference to the specific previous authorization of the Yellow tail dam was intended, by language which is at least ambiguous, to repeal a specific authorization of the Congress.

    c. There can be no question that the United States possesses the inherent right of eminent domain in the lands required for the construction of this project, even though they be tribal lands of the Crows. To hold otherwise is to say that the Crow nation holds land in a more sacred title than do any other landowners in the United States, including the States themselves and their political subdivisions.
    d. It also seems apparent that the United States has the authority to condemn the Indian tribal lands of the Crows and that further congressional action is not required. The Congress has specifically authorized the Yellowtail dam as a reclamation and power development and has provided that in undertaking such projects the Secretary of the Interior shall be governed by the Federal Reclamation Laws (Flood Control Act of 1944, 58 Stat. 887). Section 7 of the Reclamation Act of 1902 (32 Stat. 388) grants specific authority to the Secretary of the Interior to acquire property in the name of the United States by condemnation when needed for a reclamation project. It is also pertinent that the Yellowtail dam was one of the dams in the Missouri Basin for which appropriations for that general Basin program have been made. It might be true that congressional action specifically reciting that the act of 1946 was not intended to affect the Yellowtail dam would clear up the supposed ambiguity in the situation, but in my opinion such an ambiguity does not actually exist when proper evaluation of the background and purposes of the 1946 act is taken into consideration.

    e. If there is any validity in the views previously expressed by this Department to the effect that this 1946 act prohibits the construction of the Yellowtail dam, it will be very simple indeed to plead that fact in an answer to the first condemnation suit that is brought, and the matter can then be judicially determined, a procedure which would probably result in any event, no matter what legislation the Congress might enact.

    For all of the foregoing reasons, therefore, it is my opinion that there is authority in the Department to proceed with the construction of the Yellowtail dam and to bring such condemnation actions as may be necessary under the provisions of the existing reclamation laws to acquire possession and title thereto.

COLORADO RIVER INDIAN
RESERVATION DEVELOPMENT

M-36200                                                                                                 February 12, 1954.

Tribal Ownership of Lands--Ordinances Constituting Enforceable Contract on the Part of the Government.

Subject to judicial determination in pending litigation, it is believed that the lands of the Colorado River Reservation are held in trust by the United States for the benefit of the members of all tribes of the Colorado River and its tributaries who have or who may be located thereon under Federal authority.

The ordinance of the Colorado River Indian Tribal Council permitting the settlement by the Navajo and Hopi on the reservation constitutes an enforceable agreement on the part of the United States Government.

Memorandum

To:            Assistant Secretary Lewis
From:        The Solicitor
Subject:     Colorado River Indian Reservation Development

    This is responsive to your letter of January 5, 1954, requesting my opinion on five specific questions regarding the legal status of the development of the Colorado River Indian Reservation.

    Question No. 1 calls for an opinion of the tribal ownership by the Colorado River Indian Tribes. Solicitor Margold wrote a series of three opinions for the Commissioner of Indian Affairs in 1936, copies of which are among the attached papers. It was stated at that time, although the reservation was legislatively created in 1865 for the Indians of the Colorado River and its tributaries, the lapse of a period of over 70 years without the location of any other tribes thereon, coupled with subsequent legislation and Executive orders creating separate reservations for each tribe within the Colorado River watershed, has had the effect of abandonment of the original purpose for which the reservation was created. He concluded that the members of the Mohave and Chemehuevi Tribes who had been in actual occupancy of the lands of the Colorado River Reservation had succeeded to the ownership under a Federal trust to the exclusion of the other Indian tribes along the Colorado River and its tributaries.

    The argument of Solicitor Margold in 1936 was possibly strengthened by the Supreme Court in United States v. Santa Fe Pacific R. Co. in 1941 (see 314 U.S. 339), which considers to some extent the act of March 3, 1865 (13 Stat. 559), creating the Colorado River Reservation for the benefit of the Indians of said river and its tributaries. The Court observed that although the purpose of locating Indians of the Colorado River watershed was expressed in that act it only amounted to an offer of lands to those Indians. In other words, the creation of the Colorado River Reservation did not per se extinguish any Indian title which the Indians claimed to lands outside that reservation as it did not vest any title in them, at least in their failure to locate thereon. However, in 1881, the Walapais requested that a separate reservation be created for them and in 1883 an Executive order creating the Walapai Indian Reservation was signed by President Arthur. As to this reservation for the Walapais, the Court said:

    "*     *     * But in view of all the circumstances, we conclude that its creation at the request of the Walapais and its acceptance by them amounted to a relinquishment of any tribal claims to lands which they might have had outside that reservation and that that relinquishment was tantamount to an extinguishment by 'voluntary cession' within the meaning of section 2 of the Act of July 27, 1866. *     *     * In terms of this historical setting, it can not now be fairly implied that tribal rights of the Walapais in lands outside the reservation were preserved."

In the light of this case, it can be argued that the Navajo, the Hopis, and all the other tribes along the Colorado River and its tributaries for whom

separate reservations have been crested must be deemed to have relinquished their claims to all lands lying beyond the boundaries of their separate reservations. Therefore, their acceptance of other reservations has divested them of their right to share in the ownership of the Colorado River Indian Reservation.

    There is another side to the argument, however, having in mind the following sentence expressed by the Court: "But an extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards."

    It appears in the Santa Fe Pacific case that the Walapais were attempting to quiet title in lands outside the Walapai Reservation which the rail road claimed under the act of July 27, 1866 (14 Stat. 292), which provided: "The United States shall extinguish, as rapidly as may be consistent with public policy and the welfare of the Indians, and only by their voluntary cession, the Indian title to all lands falling under the operation of this act and acquired in the donation to the road named in the act." It is at once apparent that Congress expressed its intent in the act of 1866 to extinguish Indian titles to certain railroad lands. To the contrary, however, Congress created the Colorado River Reservation for the benefit of all Indians of the Colorado River watershed, and the plain intent was to create rather than to extinguish Indian titles to those lands. The 1865 act was construed to be an offer. It is fundamental that an offer may be accepted at any time until it is withdrawn. There was never a withdrawal of the offer expressed by the 1865 act. It stands today as it originally stood. To illustrate further, let us assume arguendo that the Navajos never claimed any title or right to the lands which are now in the Colorado River Reservation. When they entered into a treaty in 1868 (15 Stat. 667-672), expressly relinquishing their claims to all lands not within the Navajo Reservation, can it be said that they relinquished for all time the right to accept an offer of new lands which they had never claimed? Clearly, if the offer were made subsequent to their treaty there was no relinquishment. Likewise, where the offer has been kept open after all tribes affected had obtained separate reservations in one form or another, there is a very serious doubt that Congress intended them to be foreclosed from ever occupying the Colorado River Reservation. This matter deserves far more direct consideration than was given in the Santa Fe Pacific case. Indeed, Congress might at any time take some further action which will greatly enlighten the question, and perhaps it already has in recent years.

    The question of ownership of the Colorado River Indian Reservation is further complicated. As you apparently suspected, the ownership of the Colorado River Indians is very definitely in litigation and the ultimate outcome can by no means be predicted at this time. Case No. 283, in the Indian Claims Commission, and Case No. 424-52, in the Court of Claims, both involve claims filed by the Colorado River Indians arising out of the colonization of other Indians on the Colorado River Indian Reservation. In its answer to each claim, the Department of Justice has taken the position that the Colorado River Reservation was created for the benefit of a class of Indians; that the purpose has never been abandoned; and that the words of the act of 1865 did not operate to convey any compensable title to any of the Indian tribes.

    Passing now to Question No. 2, former Solicitor White in a memorandum to the Secretary dated February 26, 1952, stated that Ordinance No. 5 of the Colorado River Indian Tribes was contractual in its nature, and was not subject to the referendum provision of the tribal constitution.

    While Ordinance No. 5 is not by its terms an express agreement between the Colorado River Indian Tribes and the Government, it can easily be said to constitute an offer which was accepted by an overt act on the part of the Government. Congress has appropriated money which has been used on the projects required under Ordinance No. 5. Whether Congress has an unqualified right to relocate Navajos and Hopis on the Colorado River Reservation without making any contract with the Colorado River Indian Tribes will be judicially determined for nothing appears in the legislative history of the Navajo-Hopi Rehabilitation Act of 1950 (64 Stat. 44-47), which indicates the precise intent of Congress. However, the Colorado River Indian Tribes offered more than lands on the reservation by Ordinance No. 5. In addition, they offered to adopt the Indians colonized.

    On the Government's side of the bargain, the consideration expressed was to be the subjugation of 15,000 acres of land within the Northern Reserve (occupied entirely by the Colorado River Indians) and supplying them with adequate irrigation and drainage facilities at no cost to the tribes. This project is substantially completed at this time. As near as I can conclude from information supplied by the Bureau of Indian Affairs, about 13,350 acres out of 15,000 have been completed at this time. 

    In conclusion, although the question of ownership of the unallotted lands of the Colorado River Reservation is unsettled at this time, Congress has in the Navajo-Hopi Rehabilitation Act of 1950 certainly indicated its intent to carry out a policy of relocation of Navajo and Hopi Indians there.
 

Therefore, until it is declared to be illegal, the Secretary of the Interior is bound to carry out the policy of Congress as an administrator, and in doing so to approve further expenditures for that purpose.

                                                                                                    CLARENCE A. D AVIS ,
                                                                                                                                 Solicitor.

ISSUANCE OF FEE PATENT--
LEGAL AND JURISDICTIONAL
RAMIFICATIONS

M-36184                                                                                                    February 15, 1954.

Indian Lands--Allotted and Heirship Lands--Issuance of Patents in Fee--Necessity for applications---Discretion of Secretary of the Interior--Effects of Issuance of Patents in Fee--Termination of Indian Trusteeship--Civil and Criminal Jurisdiction over Patent in Fee Indians.

The statutes authorizing the Secretary of the Interior to issue patents in fee to Indian allottees or to the heirs of such allottees do not permit him to issue such patents unless the allottee or his heirs have made an application for the issuance of such patents. As the issuance of a patent in fee abrogates the tax exemption of the land covered by the patent, the requirement of an application by the allottee or his heirs must be implied.

The issuance of patents in fee to Indian allottees or their heirs do not result in extinguishing Indian guardianship or trusteeship, since the restrictions on the alienation of allotted lands are in the nature of covenants with the land, and are not personal to the allottee. As long as a patent-in-fee Indian maintains his tribal relations, he is entitled to the same consideration and services as other members of his tribe.

Under the statutes authorizing the Secretary of the Interior to issue patents in fee to Indian allottees or their heirs, he has a wide area of discretion, and the issuance of such patents may not be compelled by mandamus even if a showing of competency can be made, for the Secretary may legitimately consider other factors than competency, such as the effect of the issuance of a patent in fee upon the consolidation of Indian lands.

When an Indian to whom a trust patent has been issued under the General Allotment Act receives a patent in fee for the whole of his allotment, he becomes subject to the laws, both civil and criminal, of the State of his residence, notwithstanding the fact that he may subsequently come into the possession of other trust lands by inheritance, or devise, or further allotment of surplus lands, subject to the qualification, however, that he does not become amenable to State jurisdiction with respect to those matters which are reserved to Federal jurisdiction by Federal statutes.

The death of an Indian allottee does not in itself terminate the trust to which the allotment is subject, and while the Secretary of the Interior may issue patents in fee to his heirs, he is not compelled to do so, and may not do so unless the competent heirs have applied for the same.

Memorandum

To:            Assistant Secretary Lewis
From:        The Solicitor
Subject:     Letter from Paul L. Fickinger relating to issuance of patents in fee

    This responds to your memorandum of September 8 relating to a letter dated September 17, 1952, from Mr. Paul L. Fickinger, Area Director of the Billings Area Office of the Bureau of Indian Affairs, to Mr. Dillon S. Myer, who was then Commissioner of Indian Affairs.

    This office has been advised that while no response was ever formally made to the letter, the questions raised therein were informally discussed with Mr. Fickinger when he came to Washington shortly after the letter was received, and it was explained to him that his impression that Indian trusteeship could be extinguished by exercising the powers conferred upon the Secretary of the Interior by existing legislation was not well founded. I believe that the explanation so given him was correct.

    Mr. Fickinger in his letter called attention to two statutes which, he believed, would make it possible to issue patents in fee to competent Indians, whether or not they made application for the issuance of such patents. He refers to the acts of May 8, 1906 (34 Stat. 182, 25 U.S.C., 1946 ed., sec. 349), amending section G of the General Allotment Act of February 8, 1887 (24 Stat. 390), which provided that the Secretary of the Interior "may, in his discretion, and he is authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple *     *     * " and to the act of May 29, 1908 (35 Stat. 444, 25 U.S.C., 1946 ed., sec. 404), which
 

provided that the Secretary of the Interior "shall ascertain the legal heirs" of deceased allottees, and "if satisfied of their ability to manage their own affairs shall cause to be issued in their names a patent in fee simple" for their lands.

    It is true that neither the act of May 8, 1906, nor the act of May 29, 1908, in terms requires that an application for a patent in fee must be made by the allottee or heirs of an allottee, but the courts have nevertheless held that a patent in fee may not properly be issued by the Secretary of the Interior under authority of the cited acts without the application or consent of the allottee. It had previously been held in Choate v. Trapp, 224 U.S. 665 (1912), that the tax exemption of allotted lands was a vested right of the allottees, and could not constitutionally be abrogated even by Congress. As the issuance of a patent in fee would abrogate the tax exemption, the courts held that a requirement of an application by the allottee must be implied.¹ Most of the court contests were an outgrowth of the issuance by the Department of thousands of fee patents in 1918 and the following years without the application or consent of the allottees in an effort to hasten their emancipation.² After the courts had held that the issuance of the forced fee patents was not authorized, Congressional recognition of that principle was given in legislation authorizing their cancellation by the Secretary of the Interior in cases in which the lands had not been mortgaged or sold.³

    The act of May 8, 1906, in so far as it applies to the issuances of patents in fee to the heirs of deceased allottees, was virtually superseded, moreover, by the act of May 29, 1908,⁴ which in turn was practically superseded by sections 1 and 2 of the act of June 25, 1910 (36 Stat. 855, 856), as amended by the act of February 14, 1913 (25 U.S.C., 1946 ed., sets. 372 and 373). This act authorized the Secretary of the Interior to deter mine the heirs of deceased allottees, and permitted allottees to make wills disposing of their allotments with the approval of the Secretary of the Interior; and also authorized the Secretary to issue patents in fee to competent heirs or devisees, or to cause their lands to be sold or partitioned under certain circumstances.⁵ Although the 1910 act, like the preceding legislation, was silent on the question whether a patent in fee could be issued to the heirs of a deceased allottee without their application or consent, it has been held that a patent in fee could not be issued to an heir of an allottee unless he had made application for the same.⁶

    Moreover, even if patents in fee could be issued to allottees or the heirs of allottees without their application or consent, such action would not result in extinguishing Indian guardianship, or trusteeship. A patent in fee Indian, who maintains his tribal relations, is entitled to the same consideration and services as other members of his tribe. The reason for this is that the restrictions on the alienation of allotted lands are in the nature of covenants running with the land, and are not personal to the allottee. Thus, the issuance of a patent in fee to an Indian does not betoken complete emancipation but merely enables the patentee freely to alienate the particular tract of land covered by the patent. If he inherits other land, he cannot alienate such land, unless another patent in fee is issued to him.⁷

    On the basis of Mr. Fickinger's letter, you have formulated three particular legal questions relating to the issuance of patents in fee and their effect.

    The first of these questions is whether under existing law the Secretary of the Interior has the power to issue patents in fee to the heirs of an allottee, and whether he must do this in the event that he ascertains that an heir has the ability to manage his own affairs. This question has already been partly answered; the Secretary does have the power under existing law, namely, the act of June

____________________

    ¹ See United States v. Chehalis County 217 Fed. 28 (D.C. Wash., 1914); Morrow v. United States, 243 Fed. 854 (C.C.A. 8th, 1917); United States v. Benewah County, 290 Fed. 628 (C.C.A. 9th, 1923); United States v. Dewey County, 14 F. (2d) 784 (D.C.S.D., 1926); United States v. Comanche County, 6 Fed. Supp. 401 (DC. Okla., 1934); Board of Commissioners of Caddo County v. United States, 87 F. (2d) 55 (C.C.A. 10th. 1936) ; United States v. Board of Commissioner of Pawnee County, 13 Fed. Supp. 641 (D.C. Okla., 1936); United States v. Ferry County, 24 Fed. Supp. 399 (D.C. Wash.. 1938); United States v. Nez Perce County, 95 F. (2d) 232 (C.C.A. 9th. 1938); United State v. Lewis County, 95 F. (2d) 236 (C.C.A. 9th. 1938); Glacier County v. United States, 99 F. (2d) 733 (C.C.A. 9th, 1938); Board o/ Commissioners of Jackson County v. United States, 100 F. (2d) 929 (C.C.A. 10th. 1938).
    ² For a history of this episode, see H. Rep. No. 669, 76th Cong. 1st sess.
    ³ Act of February 26, 1927 (44 Stat. 1247), as amended by the act of February 21, 1931 (46 Stat. 1205); United States v. Nez Perce County, Idaho, 95 F. (2d) 232, 236 (C.C.A. 9th, 1938). 
    ⁴ See case of Joseph Black Bear, 38 L.D. 422 at 424.
    ⁵ Under section 1 of the 1910 act, the Secretary could cause the lands to be sold if he found one or more of the heirs to be incompetent.
    ⁶ See United States v. Ferry County, 39 F. Supp. 1007 (D.C. Wash., 1941) and United States v. Nez Perce County, Idaho, 95 F. (2d) 232 (C.C.A. 9th. 1938).
    ⁷ See Johnson v. United States, 283 Fed. 954 (C.C.A. 8th. 1922); United States v. Kilgore, 111 F. (2d) 665 (C.C.A. 10th, 1940).
 

25, 1910, as amended, ⁸ to issue patents in fee to the heirs of an allottee, provided that they have made application for the issuance of such patents, and are found to be competent to manage their own affairs. As to the further question whether the patents in fee must be issued by the Secretary to such heirs as he finds to be competent, it may be said that the Secretary has under the act of June 25, 1910, as amended, a wide area of discretion, notwithstanding the language of the statute which is that if "the Secretary of the Interior decides the heir or heirs of such decedent competent to manage their own affairs, he shall issue to such heir or heirs a patent in fee for the allotment of such decedent." In the context of the whole statute, the purpose of which appears to be to confer large discretionary powers on the Secretary, it is clear that the word "shall" is not mandatory. In law, the words "shall" and "may" are often convertible terms, and the almost identical language of the act of May 8, 1906, has been construed by the Department and by the courts as permissive rather than mandatory.⁹ Since the Secretary must be "satisfied" of the competency of an applicant for a patent in fee, it is apparent that he has discretion. Indeed, there are other factors than competency that may legitimately be considered, and have been considered, by the Secretary in deciding whether to issue a patent in fee. Thus, it has been established policy to consider whether the issuance of the patent would adversely affect the consolidation of Indian lands. 25 CFR sec. 241.2 (a) expressly declares that "the issuance of a patent in fee to any Indian holding land under a trust patent is discretionary," and subdivision (c) of the same section of the regulations provides that a patent in fee may be denied "when the land applied for lies within an area largely occupied and used by Indians whose lands are held in a trust or restricted status."

    Your second specific question is whether an Indian, having received a patent in fee to his allotment becomes subject to the laws, both civil and criminal, of the State in which he resides, notwithstanding the fact that he may later come into the possession of other trust lands. The answer to this question would seem to depend upon how section 6 of the General Allotment Act of February 8, 1887, as amended by the act of May 8, 1906, is read in the light of various circumstances under which the question might arise. Section 6, as amended, declares that at the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee "then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside *     *     *." In the first place, the allotment for which the patent in fee has been issued must have been made pursuant to the General Allotment Act, or some other allotment act which embodies its provisions by reference.¹⁰ There are, however, many allotments which have not been so made. In the second place, the patent in fee must have been issued to the original allottee rather than to an heir of the allottee. The Department has held that an Indian who holds an allotment by inheritance or devise does not become subject to the criminal laws of the State of his residence when a patent in fee has been issued to him,¹¹ and the same conclusion would seem to hold with respect to the civil laws of the State of his residence.¹² In the third place, it would seem logical to hold that as long as part of an original allotment is still held in trust by the United States for an allottee, he is not subject to the civil or criminal laws of the State of his residence even though a patent in fee has been issued to him for the remainder of his allotment.¹³ In the fourth place, the allottee to whom a patent in fee has been issued for the whole of his original allotment may subsequently receive another allotment in trust by neither inheritance nor devise but by virtue of the enactment of a statute providing for additional allotments from the surplus lands of the tribe. In State v. Munroe, 274 Pac. 840 (Sup. Ct. Mont., 1929), the court held that a Blackfeet Indian who had been allotted under the act of March 1, 1907 (34 Stat. 1035), and received a patent in fee for this allotment, was subject to State criminal jurisdiction, notwithstanding the fact that he had subsequently received a trust allot-

____________________

    ⁸ In Sol. Op. M-36003, dated June 7, 1950 the Department held that the Secretary also has the power to issue patents in fee under the act of May 14, 1948 (62 Stat. 236, 25 U.S.C., 1946 ed., sec. 483). This statute expressly provides that the patent in fee may be issued "upon application of the Indian owner."
    ⁹ See cases of Joseph Black Bear, 38 L.D. 422 at 424, and Ex Parte Pero, 99 F. (2) 28, 34 (C.C.A. 7th. 1938).
    10 See Celestine v. United States, 215 U.S. 278 (1909), and Eugene Sol Louie v. United States, 274 Fed. 47 (C.C.A. 9th, 1921).
    ¹¹ See 58 I.D. 455.
    ¹² A contrary conclusion was reached in People v. Pratt, 80 P. (2d) 87 (Cal.). However, the court based its decision on the provisions of the General Allotment Act, as amended, relating to the issuance of patents in fee to "allottees." The act of 1910, as amended, which authorizes the issuance of patents in fee to heirs, and which contains no declaration that the issuance of the patent shall subject the patentee to the laws of the State, was neither mentioned nor discussed.
    ¹³ There appear, however, to be neither departmental nor judicial decisions on this point, possibly because the issuance of a patent in fee for part of an allotment has not been too frequent.
 

ment of surplus lands under the act of June 30, 1919 (41 Stat. 16).

    While, on the basis of the decided case, it is my conclusion that when an Indian to whom a trust patent has been issued under the General Allotment Act receives a patent in fee for the whole of his allotment he becomes subject to the laws, both civil and criminal, of the State of his residence, notwithstanding the fact that he may subsequently come into the possession of other trust lands by inheritance, devise, or further allotment of surplus lands, an important qualification must be attached to this conclusion, namely, that he would not be subject to State jurisdiction with respect to those matters which are reserved to Federal jurisdiction by Federal statutes. For example, if such an Indian inherited an interest in a trust allotment, the interest would still be subject to probate by the Secretary of the Interior under the act of June 25, 1910, supra. Moreover, such an Indian, if he committed in the Indian country against the person or property of another Indian, or other person, one of the crimes specified in the so-called Major Crimes Act (now 18 U.S.C., sec. 1153), would be subject to prosecution in the Federal courts.¹⁴

    Such complexities and distinctions as these have rendered the grant of State jurisdiction over Indians contemplated by the General Allotment Act largely ineffective. The sponsors of that legislation assumed that the allotment of the Indians in severalty, would be but the prelude to the termination of their tribal relations and the liquidation of Federal supervision over them. When that program failed to be carried out, and the Indians, despite the fact that they were now citizens, continued to maintain their tribal relations and the Government continued its guardianship over them, the subjection of the Indians to the jurisdiction of the States ceased to have much reality. State law enforcement officers could not, after all, go around with tract books in their pockets, and being unable to distinguish a patent in fee Indian from a ward Indian, they did not commonly concern themselves with law violations by Indians,¹⁵ and the theoretical jurisdiction of the States thus fell into innocuous desuetude. Thus, when it has been desired to confer on particular States criminal or civil jurisdiction over Indians, it has been accomplished by general statutes conferring such jurisdiction irrespective of the tenure by which Indians held their lands.¹⁶

    Your final question is whether an Indian who, after he has obtained a patent in fee to his allotment, receives other trust lands must be given those lands in trust, or whether the Secretary of the Interior may or must convey such other lands to him without restriction. It is assumed that the patent-in-fee Indian would receive the trust lands by inheritance or devise. Such being the case, it is apparent that the question has already been answered in the comments which have been made on the acts of June 25, 1910, and February 14, 1913, which are the foundation of the probate jurisdiction of the Secretary of the Interior. The death of the owner of the lands does not in itself terminate the trust under the 1910 act, and the 1913 act expressly declares that "the death of the testator shall not operate to terminate the trust or restrictive period *     *     *." Of course, the Secretary may under these statutes issue patents in fee

____________________

    ¹⁴ Prior to the revision of the Federal criminal code by the act of June 25, 1948 (62 Stat. 757), the governing provision on major crimes by Indians was 18 U.S.C., sec. 548 which was not entirely clear on the question whether an Indian who committed one of the major crimes against the person or property of another Indian on fee patented lands within the exterior boundaries of an Indian reservation was subject to prosecution in the Federal rather than the State courts. Federal jurisdiction was denied in the cases of Eugene Sol Louie v. United States, supra, and State v. Johnson, 249 N.W. 284 (Wis., 1933), and upheld in United States v. Frank Black Spotted Horse, 282 Fed. 349 (D.C.S.D., 1922). The Department, in a letter dated November 20 1942, to the Attorney General of the United States, espoused Federal jurisdiction. Whatever doubt existed seems to have been removed in the revision of the criminal code, which provides for Federal jurisdiction in such cases. 18 U.S.C., sec. 1151, defines the term "Indian country" as including all lands within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent *     *     * ." See State ex rel. Irvine v. District Court, 239 P. (2d) 272 (Sup. Ct. Mont., 1951).
    ¹⁵ This at least is the impression gathered from the reported cases. There are relatively few cases in which Indians have been subjected to State jurisdiction for the violation of State criminal laws because they were patent in fee Indians. See, in addition to the cases already mentioned. In re Now-ge-zhuck, 76 Pac. 877 (Kans. 1904), involving a breach of the peace; Kitto v. State, 152 N.W. 380 (Nebr., 1915), involving assault; State v. Big Sheep, 243 Pac. 1067 (Mont., 1926), involving unlawful possession of peyote: State v. Bush, 263 N.W. 300 (Minn., 1935), involving trapping muskrat in closed season; People v. Pratt, 80 P. (2d) 87 (Cal., 1938), involving illegal possession of metal knuckles; United States ex rel. Marks v. Brooks, 32 F. Supp. 422 (D.C.N.D., Ind., 1940), involving unlawful possession of raccoon.
    ¹⁶ See the acts of June 8, 1940 (54 Stat. 249), applicable to Kansas; May 31, 1946 (60 Stat. 229), applicable to the Devils Lake Reservation, North Dakota; June 30 1948 (62 Stat. 1161), applicable to the Sac and Fox Reservation in Iowa; July 21, 1948 (62 Stat. 1224), applicable to New York; October 5, 1949 (63 Stat. 705), applicable to the Agua Caliente Reservation. California; and finally the act of August 15, 1953 (Public Law 280, 83d Cong.), applicable to California as a whole. Minnesota (except Red Lake), Nebraska, Oregon (except Warm Springs), and Wisconsin (except Menominee). The last-mentioned statute also contains a general provision giving the consent of the United States to the assumption by any other State of the Union of civil and criminal jurisdiction over Indians.

to the heirs for these trust interests but the mere fact that a patent in fee has already been issued to one of the heirs for other lands would not oblige the Secretary to issue a patent in fee for the inherited lands, or otherwise terminate the restrictions. This follows from what has already been said concerning the effect of the issuance of a patent in fee, the discretionary nature of the Secretary's power, and the necessity for an application for a patent in fee by an heir or devisee.

    It is apparent from the foregoing that Indian trusteeship cannot be terminated by invoking the powers available under existing law, and that if this objective is to be accomplished, additional legislation will be necessary.

                                                                                            WILLIAM J. BURKE,
                                                                                                             Acting Solicitor.

STATE EXCHANGES--PUBLIC
INTEREST CLASSIFICATIONS--
TAYLOR GRAZING ACT

M-36178 Supp.                                                                                     March 4, 1954.

State Exchanges--Classification.

An application made by a State, pursuant to section 8 (c) of the Taylor Grazing Act, as amended, to select lands withdrawn by either of the two Executive orders mentioned in section 7 of the Taylor Grazing Act, as amended, or within a grazing district may not be rejected merely because the lands may have been classified pursuant to section 7 as being suitable for disposition under another of the public-land laws.

Unless rights have been initiated in the classified lands, any prior classification thereof must be disregarded in considering a State's exchange application.

Memorandum

To:            Assistant Secretary Lewis 
From:        The Solicitor
Subject:     State applications to exchange lands under section 8 of the Taylor Grazing Act

    This responds to your memorandum dated January 18, 1954, in which you requested my opinion whether, in view of the opinion expressed in my memorandum dated January 5, 1954, the Secretary has authority to reject a State application to exchange lands under section 8 (c) of the Taylor Grazing Act, as amended (43 U.S.C., 1946 ed., sec. 315g (c) ), if the lands have been classified before the receipt of the State's applications and, if so, what classification is necessary in order that such authority exist.

    I shall assume for the purposes of this discussion that your question is directed to the classification of lands which were withdrawn by either of the two Executive orders¹ mentioned in section 7 of the Taylor Grazing Act, as amended (43 U.S.C., 1946 ed., sec. 315f), or which are now or may hereafter be included in grazing districts and that it does not relate to the Secretary's authority with respect to lands which may otherwise have been with drawn for classification ² or which may have been classified under some other authority.³

    In my opinion, and speaking generally without regard to the particular facts which may exist in a given case, the fact that lands may have been classified under section 7 of the Taylor Grazing Act before the filing of a State application under section 8 (c) of the act provides no basis for rejecting a State's application. The mere classification of lands under section 7, without more, does not remove the lands from the operation of section 8. It would seem that if the lands selected by a State under an exchange application meet the requirement of section 8 (c), the fact that the selected lands may have been classified as suitable for some other use is immaterial.

    There is nothing binding about a classification. While it may represent the considered judgment of the classifier based upon the best evidence available at the time of the classification, it is subject to revocation at any time or !to revision upon a showing of changed conditions, additional facts, or other factors indicating error in the classification.

    Since I have already concluded that the authority of the Secretary under section 7 to classify lands does not extend to lands outside of grazing districts which are applied for by a State under section 8 (c), I am of the opinion that it would not 

____________________

    ¹ Executive Order No. 6910, dated November 26, 1934 (43 CFR 297.11), and Executive Order No. 6964, dated February 5, 1935 (43 CFR 297.12).
    ² E.g., all lands containing oil shale deposits have been temporarily withdrawn for investigation, examination and classification (Executive Order No. 5327, dated April 15, 1930, 43 CFR 297.8). Such lands are, however, subject to oil and gas leasing under the terms of the Mineral Leasing Act (Executive Order No. 6016, February 6, 1933, 43 CFR 297.10).
    ³ Lands classified as power sites, for example, may be disposed of only after a determination by the Federal Power Commission that the value of the lands for the purposes of power development will not be injured or destroyed by location, entry or selection under the public-land laws and then only subject to such conditions as the Commission may impose. 16 U.S.C., 1952 ed., sec. 818.

be incumbent upon a State to disprove a classification already assigned to the selected land. Since lands applied for under section 8 (c) are not within the scope of the power of classification conferred upon the Secretary by section 7, it follows that any classification which may have been assigned to lands prior to the receipt of a State's exchange application must be disregarded in considering the State's application.

    Section 7, after authorizing the Secretary to classify lands "which are *     *     * more valuable or suitable for any other use than for the use provided for under this Act *     *     * ", provides:

    "*     *     * Such lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry: *     *     * Where such lands are located within grazing districts reasonable notice shall be given by the Secretary of the Interior to any grazing permittee of such lands. The applicant, after his entry, selection, or location is allowed, shall be entitled to the possession and use of such lands: Provided, That upon the application of any applicant qualified to make entry, selection, or location, under the public land laws, filed in the land office of the proper district, the Secretary of the Interior shall cause any tract to be classified, and such application, if allowed by the Secretary of the Interior, shall entitle the applicant to a preference right to enter, select, or locate such lands if opened to entry as herein provided."

    Of course, if the lands selected by the State have, in addition to being classified, been opened to entry and if, as a result of such opening, rights in the classified lands have been initiated, the State's selection must be rejected. In such a case, however, the rejection would not be because the lands have been classified but because prior rights have been initiated and the lands selected do not meet the test prescribed in section 8 (c) that the selected lands must be surveyed grazing district lands not otherwise reserved or appropriated or unappropriated and unreserved surveyed public lands.

    A question arises whether, in view of the provision in section 7 granting a preference right to a qualified applicant to enter land classified as the result of his application, such an application would require the rejection of a subsequent State application to select the same land under section 8 (c). In my opinion, if the application has not been allowed, the selected land is still available for acquisition by the State. This is so because an application to enter land subject to classification under section 7 confers no right in the land upon the applicant. It merely gives the applicant a preference right to enter the land if it is opened to entry as the result of his application. Thus, if a State's application under section 8 were filed after the receipt of an application under section 7 to enter lands under the homestead laws and after the lands were classified pursuant to the homestead application, but before the allowance of the entry, the State's application could not properly be rejected merely because of that classification. Until the application to enter has been allowed, no rights have been initiated in the lands which could defeat the State's application. The Secretary would be compelled in such a situation, under the mandatory language of section 8 (c) , to allow the State's application, if the State otherwise met the requirements of section 8.

    I conclude, therefore, that the Secretary does not have authority to reject a State's application to exchange lands under section 8 (c) of the Taylor Grazing Act, as amended, merely because the lands may have been classified under section 7 of the act prior to the filing of the State's application, and that until rights have been initiated in the classified land by the allowance of a preference right application under section 7 or, following the opening of classified lands, by the entry on the opened land by qualified applicants, any such classification which may have been assigned to the lands selected by a State for exchange purposes must be disregarded in considering the State's exchange application.

    I do not wish it to be understood by what has been said above that I hold the opinion that a State's application to exchange lands under section 8 (c) of the Taylor Grazing Act, as amended, must be allowed in every case. No such application is, of course, subject to allowance unless and until the State has met all of the applicable requirements of section 8.

                                                                                            WILLIAM J. BURKE,
                                                                                                             Acting Solicitor.

CRIMINAL SANCTIONS AGAINST NON-MEMBERS--
FISH AND GAME VIOLATIONS

                                                                                                                 May 7, 1954.

Memorandum

To:            Commissioner, Bureau of Indian Affairs
From:        The Solicitor
Subject:     Lac du Flambeau fish and game ordinance of November 9, 1953

    I am returning for your further consideration the proposed letter to your Acting Area Director at Minneapolis, Minnesota, discussing a penal ordinance providing for the prosecution of Indian nonmembers who are guilty of violating any law, rule or ordinance for the protection of game and fish on the reservation.

    This ordinance reveals that it was adopted pursuant to Article VI, Section 1, Subsection (a) of the constitution. Subsection (a) does empower the tribe to enact ordinances for the protection and conservation of fish and game but neither that nor any other provision of the constitution confers jurisdiction on the tribe to enforce criminal sanctions against nonmembers of the tribe. Subsections (1) and (n), after close scrutiny, do not appear to authorize the tribe to impose punitive provisions on nonmembers for fish and game violations subject to the review of the Secretary, for they transcend the ordinary scope of authority of the Indian tribe. Therefore, one basic reason why the ordinance is ineffective, rather than that it has failed to be approved and ratified by the Superintendent and Secretary, is that it was beyond the constitutional power of the tribe.

    I concur in your further discussion of the matter in view of the situation created by the enactment of Public Law 280 (67 Stat. 588), and that the treaty of September 30, 1854 (10 Stat. 1109) did not grant any right, privilege or immunity with respect to hunting or fishing on the reservation which would take this matter out from under the purview of Public Law 280.

                                                                                            WILLIAM J. BURKE,
                                                                                                             Acting Solicitor.

APPOINTMENT OF INDIANS TO
RESTRICTIVE POSITIONS--
VETERANS' PREFERENCE
ACT OF 1944

M-36205                                                                                                    June 4, 1954.

Federal Employees--Bureau of Indian Affairs--Positions Restricted to Veterans--Noncompetitive Service--Indian Appointment Preference.

The provision in section 3 of the Veterans' Preference Act of 1944, as amended, that examinations for the positions of guard, custodian, elevator operator, messenger, and, until December 31, 1954, apprentices, be restricted to veterans when veterans eligibles are available, applies only to the competitive civil service. The restriction in no way affects the superior appointment preference of an Indian of one fourth or more of Indian ancestry in the Bureau of Indian Affairs, as prescribed by regulations of the Civil Service Commission under Schedule A governing the noncompetitive service. A non-veteran Indian of one fourth or more of Indian ancestry has a superior appointment preference over a non-Indian veteran for excepted appointment to the positions enumerated in section 3 of the Veterans' Preference Act of 1944, as amended.

Memorandum

To:            The Director of Personnel
From:        The Solicitor
Subject:     Appointment of Indians to positions restricted to veterans

    You have requested my opinion on the following question:

    "May the Bureau of Indian Affairs appoint a non-veteran Indian to a position restricted to veterans by excepted appointment if no Indian veterans are available, even though non-Indian veteran applicants may be available?"

For the purpose of this opinion an Indian will be considered to be a person of one-fourth or more Indian blood.

I.

    Your question is prompted by the restriction imposed in the proviso to section 3 of the Veterans' Preference Act of 1944 (5 U.S.C., 1952 ed., sec. 852), as amended, which reads as follows:

    "In all examinations to determine the qualifications of applicants for entrance into the service ten points shall be added *     *     * Provided, That in examinations for the positions of guards, elevator operators, messengers, and custodians competition shall be restricted to persons entitled to preference under this *     *     * [act] as long as persons entitled to preference are available and *     *     * for such other positions as may from time to time be determined by the President." ^l

    It is clear from the language quoted immediately above, and from the legislative history of the act, that the restriction contained in section 3 relating to examinations for positions applies only to posi-

____________________

    ¹ Apprentices were added to the restricted category of positions by the act of August 14, 1953 (67 Stat. 581).

tions in the competitive service, that is, positions for which the applicants or incumbents first must qualify by taking a competitive civil-service examination.²

II.

    Section 12 of Chapter X-l-Filling Competitive Positions, of the Federal Personnel Manual, provides under the heading "Filling Restricted Positions by Noncompetitive Actions," that the restrictions in section 3 of the Veterans' Preference Act of 1944, as amended, " *     *     * applies only to competition in examinations of applicants for entrance into the service; that is, to competitive examinations." ³

    Under 5 CFR 6.1, 6.100, 6.110 (c) (1), there have been excepted from the competitive civil service: "Positions in the Bureau of Indian Affairs, Washington, D. C., and in the field when filled by the appointment of Indians who are of one-quarter or more Indian blood."

    5 CFR, Part 21, prescribes regulations with respect to appointment to positions excepted from the competitive service, but section 21.11 provides in part as follows:

    " (b) Procedural modifications. In view of the circumstances and conditions surrounding employment in the following cases of positions the agency concerned will not be required to apply to such positions the appointment procedures of the regulations in this part: Provided, That the principles of veteran preference shall be followed as far as administratively feasible and the reasons for his non-selection shall be furnished upon request to any qualified and available preference applicant: *     *     *

*     *     *     *     *

    " (6) Such positions as are included in Schedule A (Part 6 of this chapter) and similar types of positions, whenever the Commission agrees with the agency that such position shall be included hereunder." ⁴

    On October 25, 1950, Civil Service Commission Letter No. 50-173 was issued by the Executive Director of the Commission to "Regional Directors, Managers of Branch Regional Offices and Central Office Division Chiefs and Staff Officials of the Civil Service Commission." Its subject was "Clarification of instructions relating to the temporary appointment of Indians in the Bureau of Indian Affairs." ⁵

    The portions of Letter No. 50-173 pertinent to the question here under consideration are as follows:

    "1. A review of inspection reports, correspondence with several regions and with the Bureau of Indian Affairs has indicated some misunderstanding concerning the manner in

____________________

    ² In explaining the purpose of the bill (H-R. 4115) which became the Veterans' Preference Act of 1944, with reference to section 3 of the House Committee on the Civil Service stated, on March 27, 1944, that "Section 3 *     *     * provides that so long as persons entitled to preference are available civil-service examinations for positions of guard, elevator operator, messenger, and custodian are to be limited to competition among persons entitled to preference. *     *     * " (Emphasis added.) (H. Rept. No. 1289, 78th Cong., 2d sess.) The Senate Committee on the Civil Service stated, on March 25, 1944, with respect to section 3, that "*     *     * In addition, competition for the positions of guards, elevator operators, messengers, and custodians would be restricted to veterans as long as veteran applicants are available." (Emphasis added.) (S. Rept. No. 907, 78th Cong., 2d sess.) Both reports stated, in the discussion of section 3, that until the expiration of 5 years following the end of the war, the President would be authorized to add other positions to the restricted list. In the House debate on the bill, Mr. Ramspeck, the Chairman of the House Committee on the Civil Service, made the following statement: " *     *     * It also gives absolute preference to veterans in examinations for the position of guard, elevator operator, messenger, and custodian, as long as preference eligibles are available. It also gives the right to assign other groups of positions for a period of 5 years, to veterans only; which is a rather important provision in view of the situation that has prevailed. It strengthens the law as to passing over veterans so that a veteran himself, or his designated representative, may know what the reason is. That is one of the things the veterans themselves have been very much interested in." 90 Cong. Rec. 3505 (April 17, 1944).
    ³ The remainder of section 12 imposes limitations upon the filling of restricted positions through noncompetitive actions, but it is clear from the opening paragraph of section 1 of the chapter that these limitations do not apply to positions excepted from the competitive service.
    ⁴ Chapter R3 of the Federal Personnel Manual, governing "Reductions-in-force." includes in its list of retention preferences that of "Indian Preference," with the following comment:

    "A number of laws enacted by Congress, the most recent of which is the act of June 18, 1934 (48 Stat. 984), conferred upon persons of Indian descent preference in employment in the Bureau of Indian Affairs. The Commission construes such preference in appointment as conferring preference in retention in the Service superior to the preference of competing non-Indian employees. Such preference in retention is recognized by placing Indian preference employees above competing non-Indians in the same retention subgroup." (P. R3-6)

    ⁵ The instructions referred to appear to be those contained in letters dated August 3 and August 23, 1950, from the Executive Director, Civil Service Commission, to the Director of Personnel, Department of the Interior, and letters dated July 24, 1947, and August 23, 1947, from the President, Civil Service Commission, to the Secretary of the Interior.

which Indian and veterans' preference are observed in temporary appointment procedures in this Bureau. The misunderstanding seems to result from the fact that two appointment procedures are used by the Bureau. An appointment made under Schedule A, Regulation 6.110 (c) (1), to a position that would otherwise be in the competitive service, removes such position from the competitive service. In effecting these excepted appointments, the Bureau follows the following priority order:

    10-point Indian veterans
      5-point Indian veterans
    Indian non-veterans

    "2. Since these are excepted appointments, this priority order is not subject to Commission jurisdiction. *     *     *" ⁶

    It is clear from the foregoing considerations that whenever positions in the Bureau of Indian Affairs are filled by Indians, as defined, the positions automatically become positions which are excepted from the competitive service and which are therefore not subject to laws or regulations applicable to positions in the competitive service. Inasmuch as the proviso in section 3 of the Veterans Preference Act of 1944 is applicable only to the competitive service, it has no effect upon positions in the Bureau of Indian Affairs when filled by the appointment of Indians, as defined.⁷

III.

    Therefore, in my judgment, the categories of positions which would otherwise be covered by the proviso in section 3 of the Veterans Preference Act are to be regarded in so far as the appointment of persons of one-fourth or more Indian blood is concerned as positions excepted from the competitive service to which the proviso is inapplicable and to which section 12 of the Indian Reorganization Act respecting preference for Indians applies. Accordingly, even though a non-Indian veteran is available for a position that would otherwise fall within the scope of the proviso in section 3, the Bureau of Indian Affairs may make an excepted appointment (under Schedule A, Civil Service Rule VI) of a non-veteran Indian to the position.

                                                                                            WILLIAM J. BURKE,
                                                                                                             Acting Solicitor.

COMPETENCE OF SENECA NATION TO SUE NON-
INDIANS IN STATE AND FEDERAL COURTS

                                                                                                                June 21,1954.

The Honorable,
The Attorney General

SIR:

    This is a belated response to your Department's letter of February 11, 1954 your reference: (REM:FLF 90-2-10-294), concerning the claim of tribal officials of the Seneca Nation that a portion

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    ⁶ The letter stated, also: "2. *     *     * When the excepted appointment procedure is not used, and temporary appointments are made through the competitive process, the Commission's regulations governing priority order of selection become effective. This order is as follows:

    "I. Qualified 10-point veterans
        A. Qualified 10-point veteran Indians
        B. Qualified 10 point veteran non-Indians
    "II. Qualified 5-point veterans
        A. Qualified 5-point veteran Indians
        B. Qualified 5-point veteran non-Indians
    "III. Qualified non-veterans
        A. Qualified non-veteran Indians
        B. Qualified non-veteran non-Indians   

    ⁷ The act of June 18, 1984 (48 Stat. 984, 25 U.S.C., 1952 ed., sec. 461 et seq.), is also known as the Wheeler-Howard Act and the Indian Reorganization Act. Section 12 of the act 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 position." (25 U.S.C., 1952 ed., sec. 472.) There were several earlier Indian preference laws, viz., acts of June 30, 1834 (4 Stat. 737, 25 U.S.C., 1952 ed., sec. 45); May 17, 1882 (22 Stat. 88. as amended by the act of July 4, 1884 (23 Stat. 97. 25 U.S.C., 1952 ed., sec. 46); August 15, 1894 (28 Stat. 313, 25 U.S.C., 1952 ed., sec. 44), and April 30, 1908 (35 Stat. 71, as amended by the act of June 25, 1910 (36 Stat. 861, 25 U.S.C., 1952 ed., sec. 47). The Civil Service Commission placed 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. 1123, 11126, 11127, 11137 (1934).                    

of the Oil Springs Reservation in the State of New York is now occupied by non-Indians.

    The records of the Bureau of Indian Affairs appear to contain no information concerning the merits of the claim of the officials of the Seneca Nation. However, the Commissioner of Indian Affairs, upon consideration of the matter, has taken the following position as a matter of policy:

    "As you know, we closed our agency in New York several years ago, and our functions with respect to the New York Indians at present are limited to the purchase of cloth for the Six Nations under a treaty of 1794, and the distribution of a small annuity to the Seneca Indians under a statute of 1831. The Indians look to the State for assistance in health, education. and welfare. The criminal and civil jurisdiction acts were a part of an over-all plan to withdraw Federal services to the Indians in New York and place the Indians in the same status as other citizens there. As a matter of policy, therefore, we would prefer to have the Indians seek their remedy in the State courts the same as other citizens as we feel that action by the United States to represent the Indians in this matter would be regarded as a retrogressive step and it might tend to affect adversely the relationships which have been established in the State."

    Although the act of September 13, 1950 (64 Stat. 845), would not of itself appear to confer jurisdiction on the courts of the State of New York in this matter, inasmuch as it is quite probable that the non-Indians, who are allegedly in the unlawful possession of the lands, took possession long prior to the effective date of that act, the Seneca Nation would nevertheless appear to be competent, without the presence of the United States, to maintain an action against the non-Indians in the State or Federal courts under the rule laid down by the Supreme Court in the case of the Choctaw & Chickasaw Nations v. Seitz, et al. (193 F. (2d) 456).

                                                                                            WILLIAM J. BURKE,
                                                                                              Acting Deputy Solicitor.

NAVAJO-HOPI REHABILITATION ACT--PROPOSED
CONSTITUTION FOR NAVAJO TRIBE

                                                                                                                June 21,1954.

Memorandum

To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Proposed constitution for Navajo Tribe

    There is returned to you for further consideration your proposed redraft of the constitution submitted to the Department by the Navajo Tribe.

    The members of the Navajo Tribe were authorized to adopt a constitution by the Navajo-Hopi Rehabilitation Act of April 19, 1950 (64 Stat. 44, 46; 25 U.S.C., 1946 ed., sec. 631 et seq.). This act as is suggested by its title, outlines in section 1 a broad program for the conservation and development of the resources of these tribes for the purpose of rehabilitating them. Fourteen different projects are enumerated in section 1 of the act. Section 2 of the act provides, in so far as relevant:

    "The foregoing program shall be administered in accordance with the provisions of this Act and existing laws relating to Indian affairs, shall include such facilities and services as are requisite for or incidental to the effectuation of the projects herein enumerated, shall apply sustained-yield principles to the administration of all renewable resources *     *     *."

Section 6 of the act provides:

    "In order to facilitate the fullest possible participation by the Navajo Tribe in the program authorized by this Act, the members of the tribe shall have the right to adopt a tribal constitution in the manner herein prescribed. Such constitution may provide for the exercise by the Navajo Tribe of any powers vested in the tribe or any organ thereof by existing law, together with such additional powers as the members of the tribe may, with the approva1 of the Secretary of the Interior, deem proper to include therein. Such constitution shall be formulated by the Navajo Tribal Council at any regular meeting, distributed in printed form to the Navajo people for consideration, and adopted by secret ballot of the adult members of the Navajo Tribe in an election held under such regulations as the Secretary may prescribe, at which a majority of the qualified votes cast favor such adoption. The constitution shall authorize the fullest possible participation of the Navajos in the administration of their affairs as approved by the Secretary of the Interior and shall become effective when approved by the Secretary. The constitution may be amended from time to time in the same manner as herein provided for its adoption, and the Secretary of the Interior shall approve any amendment which in the opinion of the Secretary of the Interior advances the development of the Navajo people toward the fullest realization and exercise of the rights, privileges,

duties, and responsibilities of American citizen ship."

    The chief problem presented by the constitution proposed by the Navajo Tribe has to do with the scope of the powers which may be conferred by the Secretary of the Interior upon the governing body of the Navajo Tribe pursuant to section 6 of the Navajo-Hopi Rehabilitation Act. In Article IV, subdivision I, of the draft of the constitution submitted by the Navajo Tribe, it was provided:

    "In addition to the general governing powers vested in the Navajo Tribal Council and without limiting such powers, it shall have the following powers, subject to any limitations embodied in the law or the Constitution of the United States."

    There were then enumerated thirteen specific powers which were to be exercised by the Navajo Tribal Council, and none of these enumerated powers was directly made subject to the approval of the Secretary of the Interior. In your proposed revision of the tribal draft, the general governing powers of the tribal council are made subject to any limitations embodied in the "regulations" of the United States, and six of the enumerated powers are expressly made subject to the approval of the Secretary of the Interior. In the second paragraph on page 2 of your proposed covering letter to the Chairman of the Navajo