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1651

OPINIONS OF THE SOLICITOR

OCTOBER 4, 1954

Provided, That the consent of the beneficial owner shall be obtained before the conveyance of title to land held by the United States in trust for an individual Indian or Indian tribe *     *     * ."

As the beneficial owner of the land in question appears to be the Lac du Flambeau Band, the consent required by the statute must be given by the Band or its authorized representative. You will note that the attached correspondence contains a resolution, dated June 22, 1953, of the Lac du Flambeau Tribal Council, whereby the Council purports to assign the tribal land in question to the School District.

    It is the opinion of this office that the Tribal Council lacks authority to give the necessary consent to the transfer of this land. Article VI of the Band's Constitution, which sets forth the powers and duties of the Tribal Council, states, in Section 1 (b) thereof, that "no tribal lands shall be sold or encumbered." Similarly, Section 2 of Article VII of this Constitution provides that "no part of [the unallotted tribal] land shall be mortgaged or sold." Again, Section 5 (b) (1) of the Band's Corporate Charter provides that:

    "No sale or mortgage may be made by the Tribe of any land *     *     * now or hereafter held by the Tribe within the boundaries of the Lac du Flambeau Reservation."

While it is true that none of the above provisions expressly prohibit gifts of tribal land, nevertheless, we believe that the prohibition of a gratuitous transfer such as is involved in the instant case may be reasonably inferred from the ban on sales, mortgages, and other encumbrances of tribal land. Accordingly, it is our opinion that the Tribal Council lacks authority to give the consent of the beneficial owner of the land in question and that the attached resolution of June 22, 1953 does not satisfy the requirements of the 1953 act, supra.

    Thus, it would appear that the effective transfer of the Lac du Flambeau tribe's interest in the land involved could be assured only by an amendment of the tribal constitution and charter or by popular referendum which would clearly reflect the tribe's concept to the transfer of lands in which it has the beneficial ownership.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

MINNESOTA SCHOOL ATTENDANCE LAWS--
JURISDICTION TO ENFORCE ON RED LAKE
RESERVATION

M-36231                                                                                                     October 4, 1954.

Legislation--Repeals by Implication.

Repeals by implication are not favored, and the act of August 4, 1946 (supra) was not repealed by the act of August 15, 1953 (67 Stat. 588) conferring on the State of Minnesota civil and criminal jurisdiction over Indian country within the State except over the Red Lake Indian Reservation.

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Whether the act of August 4, 1946 (60 Stat. 962) is in force on
                 the Red Lake Indian Reservation.

    You have requested my opinion as to whether the act of August 15, 1953 (67 Stat. 588) repealed the act of August 4, 1946 (60 Stat. 962; 25 USCA 231), with respect to the Red Lake Indian Reservation in Minnesota.

    The 1946 act permitted States under such rules and regulations as the Secretary may prescribe to enforce their compulsory school attendance laws against Indians on Indian lands but only with the consent of those tribes having a duly constituted governing body. The Red Lake Band of Chippewa Indians by its general council, pursuant to the act, adopted Resolution No. 1 on December 3, 1950, consenting that the State of Minnesota shall have concurrent jurisdiction with the tribe over the enforcement of State compulsory school laws against Indians on the reservation.

    It seems that the County attorney of Beltrami County, Minnesota, has declined to enforce the State compulsory school laws on the reservation because of his belief that the act of August 4, 1946, supra, is inoperative on the Red Lake Reservation by the enactment of August 15, 1953, which conferred on the State of Minnesota civil and criminal jurisdiction over Indian country within the State, and which specifically excepted the Red Lake Reservation. Since the purpose of this later legislation was to enlarge the State's jurisdiction, it hardly would seem possible that it intended also to terminate the State's jurisdiction on the Red Lake Reservation with respect to compulsory school attendance laws.


 

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DEPARTMENT OF THE INTERIOR

OCTOBER 4, 1954

    The two acts are independent and there is no conflict or inconsistency in their terms, or their scope of operation, and neither Is there any basis for a repeal by implication which, in any event, is highly disfavored by the courts. U.S. v. Note, 268 U.S. 613. Accordingly, the act of August 15, 1953, did not modify or repeal the 1946 act which became fully operative on the Red Lake Reservation, with the consent of the tribe by its Resolution of December 3, 1950.

                                                                                                            W. H. FLANERY,
                                                                                                                        Acting Solicitor.

WATER RIGHTS ON FLATHEAD
RESERVATION

                                                                                                                    October 25, 1954.

Mr. John M. Cooper
Area Director
Bureau of Indian Affairs
804 North 29th Street
Billings, Montana

MY DEAR MR. COOPER:

    Since receipt of Area Office letter of May 20, an examination has been made of the records relating to the work of the committees which investigated and reported on the so-called Secretarial or private water rights on the Flathead Reservation. Reference therein is made to section 9 of the act of May 29, 1908 (35 Stat. 444) as the authority for the committees' work. This reference is contained in a report to the Commissioner of Indian Affairs dated December 10, 1919, signed by the three members of the committee, a copy of which was enclosed with the letter of May 20, and designated Exhibit "C". This report was approved with some modifications by the Department on November 25, 1921.

    In a letter from your office dated October 5, 1953, it was suggested that consideration be given to the institution of further court proceedings with a view to reopening questions raised by the decisions in the cases of United States v. McIntire, 101 F. (2d) 650 (1939), and United States v. Alexander, 13 1 F. (2d) 359 (1942). The then Chief Counsel of the Bureau of Indian Affairs in his letter dated March 12, 1954, pointed out that under the case of United States v. Powers, 305 U.S. 527 (1939), the successors in title to the lands of former Indian allotments were entitled to "some portion" of the tribal waters, essential for cultivation of their lands. The court pointed out that under section 7 of the act of February 8, 1887 (24 Stat. 390; 25 U.S.C. 381), the Secretary of the Interior was authorized to prescribe regulations to secure just and equitable distribution of the waters and that it did not appear that the Secretary ever undertook to do so. Section 7 itself clearly indicates Congressional recognition of equal rights among resident Indians.

    Section 9 of the act of April 23, 1904 (33 Stat. 304) as amended by section 15 of the act of May 19, 1908 (35 Stat. 444) authorizes the Secretary of the Interior to perform any and all acts and to make such regulations as may be necessary and proper for the purpose of carrying the provisions of the act into full force and effect.

    The Secretary did, however, in 1937 prescribe in the regulations a rate to be charged for the delivery annually of water to the so-called private water right lands served by facilities of the Flathead Irrigation Project. This is now covered by section 130.18 of 25 CFR, which was approved by the Secretary on March 19, 1938, and which has been subsequently amended. The original approval was prior to the decisions in the McIntire and the Alexander cases. The court in the Alexander case did not consider the regulations of the Secretary sufficient to comply with the regulation requirements of the 1887 act. The court ruled that "The so-called 'secretarial decrees' related to alleged 'private' rights and were not of the character required. There not being a rule or regulation, of course a violation thereof could not be shown." A footnote to the Alexander case on page 36 of 131 Fed. (2) indicates that the court was aware of the existing regulations applicable to the Flathead project.

    In view of the existing situation, your attention is particularly directed to that part of the March 12, 1954, letter appearing at the top of page 2 and the last paragraph of page 3, and you should comply therewith as soon as possible.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

STATE TAXATION OF TRIBAL ROYALTY
INTERESTS IN OIL AND GAS LEASES ON
BLACKFEET INDIAN RESERVATION

M-36246                                                                                                    October 29, 1954.

Blackfeet Indian Reservation--Tribal Oil and Gas Leases--State Taxation of Tribal Royalty Interests.

On the Blackfeet Indian Reservation, the Secretary of the Interior, consistently with the requirements


 

1653

OPINIONS OF THE SOLICITOR

OCTOBER 29, 1954

of the Act of May 29, 1924 (25 U.S.C. 398) may arrange for tribal oil and gas lessees to pay the net proceeds tax levied by the State of Montana against oil and gas royalty interests (Section 84--5409, Revised Codes of Montana, 1947, Annotated), to deduct the amount thus paid when remitting royalty payments to the tribe, and to support the reduction with properly supported tax bills.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Collection of Montana State tax on oil and gas royalty interests
                 in the Blackfeet Tribe

    There have been referred to this office for its consideration letters from your Billings Area Office, respecting the procedures for the collection of a net proceeds tax levied by the State of Montana against the oil and gas royalties due the Blackfeet Tribe from unallotted oil and gas produced by lessees on the Blackfeet Reservation. The authority of the State to levy such a tax has heretofore been considered and confirmed. British American Oil Producing Company v. Board of Equalization, 299 U.S. 159 (1936); Op. Sol. M-32093, September 20, 1943. The immediate question, therefore, relates not to the taxability of the tribal royalty interest but rather to the procedure by which the tax may be paid.

    The applicable Montana statute relating to the procedure for the payment of these taxes states in part:

    "*     *     * The operator or producer shall be liable for the payment of said taxes, and same shall be payable by and shall be collected from such operators in the same manner and under the same penalties as provided for the collection of taxes upon net proceeds of mines; provided, however, that after payment of such tax such operator may recover or withhold from any proceeds of royalty interest, either in kind or in money, coming into his hands, the amount of any tax paid by him upon such royalty or royalty interest." Sec. 84-5409, Revised Codes of Montana, 1947, Annotated.

    The Act of May 29, 1924 (25 U.S.C. 398), by which the Congress consented to the taxability of such royalty interests, states in part that:

    "*     *     * the production of oil and gas and other minerals on such [unallotted] lands may be taxed by the State in which said lands are located in all respects the same as production on unrestricted lands and the Secretary of the Interior is authorized and directed to cause to be paid the tax so assessed against the royalty interests on said lands *     *     *."

    From the letters received from the Area Office, it appears that the problem of devising an administratively convenient procedure for the payment of the Montana tax is complicated by a past ruling of this Department that the 1924 Act requires the Secretary to pay the tax and does not permit oil and gas lessees, as contemplated by the quoted Montana statute, to pay the tax to the State and deduct the amount thereof from the royalty payments made to the tribe. This ruling is contained in a letter dated March 20, 1945, addressed to the Superintendent of the Navajo Agency and signed by Mr. Walter V. Woehlke, for the Commissioner, and approved by then Assistant Secretary Chapman on April 3, 1945, which dealt with a New Mexico statute similar to the Montana statute and its application to the payment of taxes on the royalty interests of the Navajo tribe in its tribal oil and gas leases. In the course of that letter it was stated:

    "It is believed that your office should submit to the New Mexico Bureau of Revenue a statement based on information available from the records of the Geological Survey supervisory office, showing the amount of royalties received to the credit of the Navajo tribe during the current year, and that you should suggest to the Revenue Bureau that it submit to you a separate tax bill for each tax the State is levying against the Indian royalty interest, citing on each bill the State statutory provision pursuant to which the tax is being levied. Upon receipt of the tax bills they should be carefully examined by your office and by the Supervisor's office, and if found to be correctly computed and to cover the taxes referred to in the Solicitor's opinion, the bills may then be paid by your office. It might be advisable for you to point out to the New Mexico Bureau of Revenue that while such a procedure is apparently not the normal procedure for collection of the taxes on production from non-Indian lands, where the operators make deductions for taxes on landowner's royalty share, some variation is necessary with respect to restricted tribal lands inasmuch as the act of May 29, 1924 (43 Stat. 244, 25 U.S.C. sec. 398), and the Comptroller General's rulings of September 21, 1932, and November 9, 1932, A--


 

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DEPARTMENT OF THE INTERIOR

OCTOBER 29, 1954

44569, make it the function and duty of the Secretary of the Interior to pay such taxes as come within the authorization contained in the said act of May 29, 1924."

    It appears from the records that for the past several years the procedure outlined in the letter of March 20, 1945 has not been pursued in the case of the Blackfeet Reservation because, pursuant to the provisions of the tribe's oil and gas leases, oil and gas royalties have been paid by lessees directly to the tribe and not to the Superintendent. Moreover, it is represented that the tribe has not promptly paid the taxes due with the consequence that various lessees are being billed by the State and are becoming apprehensive of their legal rights in the situation. In the circumstances, reexamination of the basis for the conclusion reached in 1945 that the Secretary of the Interior must pay such taxes seems warranted.

    The rulings of the Comptroller General, upon which the 1945 conclusion is based, related to the procedures for the collection of an Oklahoma State tax of 3 per cent on the gross production of oil and gas from restricted Indian lands of the Five Civilized Tribes. The Comptroller General held that it was the obligation of the Indian Service to collect the royalties in full and to remit the taxes to the State rather than to direct the lessee to remit the taxes and deduct them from the royalties. The Comptroller General's rulings were specifically posited upon Section 3 of the Act of May 10, 1928, 45 Stat. 496, which provides in part:

    "*     *     * The Secretary of the Interior is hereby authorized and directed to cause to be paid, from the individual Indian funds held under his supervision and control and belonging to the Indian owners of the lands, the tax or taxes so assessed against the royalty interests of the respective Indian owners of such oil, gas, and other mineral production."

It is readily observed that the 1928 Act explicitly required the taxes to be paid out of specified funds in the custody of the Secretary. The Comptroller General's rulings in the case of the Five Civilized Tribes, therefore, would not seem to be controlling in the case of the 1924 Act, which merely authorizes and directs the Secretary to cause the tax to be paid without indicating in any way whatsoever the manner in which it is to be paid or the source of the funds to be used therefore. Indeed, under the 1924 statute, the Secretary would seem to have filled the obligation imposed upon him by the Congress when, through suitable arrangements, he causes the tax to be paid either by the tribe or by the lessees.

    The Billings Area Office has suggested that, subject to various administrative controls, the lessees be asked to pay the tax directly to the State, to deduct the amount thus paid when remitting their royalty payments to the tribe, and to support the deduction with properly receipted tax bills. Such an arrangement, it seems to me, is permissible under the 1924 Act and would not impair the obligations under the lease contract between the lessees and the tribes. Forbes v. Mid-Northern Oil Company, 45 Pac. (2d) 673, 679.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

CONTRACTS FOR LUNCHES FOR CHILDREN
IN INDIAN SCHOOLS UNDER
JOHNSON-O'MALLEY ACT

M-36247                                                                                             November 5, 1954.

Bureau of Indian Affairs--Educational Contracts--Johnson-O'Malley Act

The Johnson-O'Malley Act of April 16, 1934, as amended by the Act of June 4, 1936 (49 Stat. 1458, 25 U.S.C. 452), does not authorize the award of a negotiated contract to a private corporation for the furnishing of lunches to the children attending and the staff of an Indian Bureau school.

A contract with a private corporation to furnish lunches to the children attending and the staff of an Indian Bureau school may be awarded after competitive bidding.

Memorandum

To:            Commissioner of Indian Affairs
From:        Acting Solicitor
Subject:     Proposed contract with The Cleaves Food Service Corporation, Md.

    In his memorandum of November 3, 1954, the Acting Assistant Commissioner of Indian Affairs requested my opinion as to whether there is authority to enter into a negotiated contract with The Cleaves Food Service Corporation, Md., under the Johnson-O'Malley Act of April 16, 1934, as amended by the act of June 4, 1936 (25 U.S.C. 452). Under the proposed contract Cleaves, in general, would operate the kitchens in certain Indian Bureau schools and furnish and serve noon meals to students and staff at those and other nearby


 

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OPINIONS OF THE SOLICITOR

NOVEMBER 29, 1954

schools. Attached to the Acting Assistant Commissioner's memorandum was a rough, preliminary draft of the proposed contract; because of the apparent urgency of the matter and the very preliminary nature of the draft, my opinion has been requested solely upon the issue mentioned above, and, therefore, no opinion is expressed or intended with regard to any other aspect of the proposed contract.

    The Johnson-O'Malley Act authorizes the Secretary of the Interior to enter into contracts with States or Territories or "with any State university, college, or school, or with any appropriate State or private corporation, agency, or institution, for the education, medical attention, agricultural assistance, and social welfare, including relief of distress, of Indians."

    The question presented for consideration seems, in the light of the statutory provisions, to narrow to the issue of whether the service proposed to be rendered by Cleaves can be deemed to fall in the category of education or social welfare, as those terms are used in the Act.

    An examination of the legislative history of the Act indicates rather clearly that contracts relating to the education of the Indians were intended to be of a type which would in effect arrange for the placement of Indian children in schools other than those operated by the Bureau of Indian Affairs, and contracts relating to social welfare were intended to arrange for the furnishing of such types of service as "foster home placement for neglected and orphaned children, institutional care of defectives, mothers' pensions, probation work with pre-delinquents, and special supervision of relief programs." H. Rept. 864, 83d Cong., 2d Sess. The service which it is proposed that Cleaves furnish under the prospective contract does not fall within the scope of the term "education" or "social welfare" as used in the applicable statute. It is recognized, of course, that if children are to attend school they must have food and to this extent it has been in formally suggested by members of your staff that the proposed contract relates to education. But the reason behind such a conclusion would seem also to support a proposition that the construction of school buildings and school dormitories, the acquisition of pencils and school desks, all could be achieved through negotiated contracts under the Johnson-O'Malley Act rather than under contracts let by competitive bidding in pursuance of the usual Government procurement procedures. Such a proposition is obviously untenable.

    This is not to suggest, however, that existing contracts entered into by the Indian Bureau for the placement of children in schools, with provision in such contracts that incidentally the children are also to be fed, are not within the scope of the Johnson-O'Malley Act. In such instances, the feeding of the children is undertaken by the Agency which is to do the educating and the feeding is merely incidental to the primary function of the contractor to educate the children. The proposed arrangement with Cleaves, however, contemplates only that Cleaves will perform in essence a catering service.

    For the foregoing reasons it is my opinion that a contract of this kind should be let out after competitive bidding, and in conformity with the normal procedure applicable to transactions of this nature.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

SALES TO CHURCH ORGANIZATION OF SURPLUS LANDS
IN THE SIOUX SANITARIUM FARM, RAPID CITY
SOUTH DAKOTA

M-36252                                                                                             November 29, 1954.

Statutory Interpretation--Act of May 20, 1948 (62 Stat. 248)--Words and Phrases--Reasonable Value.

As used in section 1 of the Act of May 20, 1948 (62 Stat. 248), the term "reasonable value", for which certain lands in the Sioux Sanitarium Farm, Rapid City, South Dakota, may be sold to church organizations, is substantially synonymous with the term "fair market value".

Under the provision of section 1 of the Act of May 20, 1948 (62 Stat. 248) which permits sales of certain lands to church organizations "upon receipt of the reasonable value" of such lands, the price received upon such a sale should be not less than that which competent appraisers would be of the opinion such lands would bring if sold in a voluntary transaction at arms' length by private persons.

Memorandum

To:            Commissioner of Indian Affairs
From:        Acting Solicitor
Subject:     Meaning of phrase "Reasonable Value" as used in Section 1
                 of the Act of May 20, 1948 (62 Stat. 248).

    In his memorandum dated October 29, 1954, the Associate Commissioner of Indian Affairs requested my opinion as to the meaning of the phrase "reasonable value" as used in Section 1 of the Act of May 20, 1948 (62 Stat. 248).


 

1656

DEPARTMENT OF THE INTERIOR

NOVEMBER 29, 1954

    The relevant portion of Section 1 of that Act reads in part as follows:

    "*     *     * the Secretary of the Interior is authorized in his discretion to convey without compensation any lands contained in the Sioux Sanitarium Farm at Rapid City, South Dakota, not necessary for the administration and operation of the Sioux Indian Sanitarium, to the city of Rapid City for municipal purposes, or to any public school district for educational purposes, or to the State of South Dakota for use of the South Dakota National Guard *     *     *. The Secretary may also in his discretion convey to any church organization for religious purposes, upon receipt of the reasonable value of such lands, any of such lands not conveyed for any of the purposes above named." [Italics supplied]

    As originally introduced in the 80th Congress, the bill (H.R. 5651) which became the Act of May 20, 1948, would have authorized the Secretary of the Interior to convey the lands involved either to the city of Rapid City for municipal purposes, to any public school district for educational purposes, to the State of South Dakota for use of the state National Guard, or to any church organization for religious purposes. Any such disposal would have been without compensation. In reporting on the Bill to the Chairman of the House Committee on Public Lands the then Under Secretary of the Interior, by letter dated April 2, 1948, stated that it was the departmental practice generally to approve proposals to donate lands under its jurisdiction to states or localities for public purposes where the donation would be to the benefit of the United States. He noted that several of the various purposes enumerated in the bill would directly or indirectly benefit Federal activities. The letter further stated however:

    "With regard to the conveyances to the churches for religious purposes, it is less clear that any such transfers should be made without reasonable compensation to the Government for lands originally obtained by cash outlay."

In its report on the bill the House Committee on Public Lands stated:

    "The bill as originally introduced provided that conveyance of any portion of the land to any church organization for religious purposes shall be without compensation. This has been amended at the request of the Secretary of the Interior to provide that conveyance to any church organization shall be for a reasonable compensation." (H. Rept. 1690, 80th Cong., 2d sess.)* 

The Committee then adopted as an amendment to Section 1 of the bill the language which had been proposed by the then Under Secretary of the Interior and such language was subsequently enacted as Section 1 of the Act of May 20, 1948.

    From the foregoing it is clear that donation of the lands involved to church organizations is not contemplated by the statute. Likewise it does not appear that the conveyance of such land to church organizations for a mere nominal value would satisfy the statutory requirements. It is apparent that the amendment to the bill was not adopted merely to satisfy the form of compensation rather than the substance.

    It is believed that Congress intended the words "reasonable value" as used in Section 1 of this statute to have their usual, customary meaning. As used in other statutes and in a variety of circumstances the term "reasonable value" is understood to be substantially synonymous with the term "fair market value". Montesano Lumber and Manufacturing Co. v. Portland Iron Works, 186 Pac. 428, 432 (Ore.); Elder Manufacturing Co. v. United States, 10 F. Supp. 125, 130 (Court of Claims, 1935).

    Accordingly, if it is proposed that such lands be sold to church organizations, it is suggested that the price therefore should be not less than that which competent appraiser's would be of the opinion such lands would bring if sold in a voluntary transaction at arms' length by private persons.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

FEDERAL ESTATE TAX EXEMPTION
OF OSAGE ALLOTTEE

                                                                                                                    December 6, 1954.

Mr. T. COLEMAN ANDREWS
Commissioner of Internal Revenue
Internal Revenue Service
Washington 25, D. C.

MY DEAR MR. ANDREWS:

    The Superintendent of the Osage Indian Agency at Pawhuska, Oklahoma, has informed this Office that there has been pending with your Bureau the

____________________

    * The Senate Committee on Interior and Insular Affairs adopted the House Committee report. (S. Rept. 1233, 80th Cong., 2d sess.)
 


 

1657

OPINIONS OF THE SOLICITOR

DECEMBER 6, 1954

question of the taxability, under the Federal estate tax, of certain lands owned by three deceased Osage Indians. The decedents, and the property in question, are as follows:

    1. Clarence Daniels, Osage allottee No. 855, who died December 5, 1950, owning Lots 17 and 18 and the south 12 1/2 feet of Lot 19 in Block 2, Tallchief Addition to the Town of Fairfax, Osage County, Oklahoma, acquired September 23, 1929.
    2. John Wagoshe, Osage allottee No. 549, who died January 14, 1952, owning the SE l/4 NW 1/4 and NE 1/4 SW 1/4 Sec. 15, T. 25 N., R. 8 E., Osage County, Oklahoma, acquired July 16, 1928.
    3. Dan G. West, Osage allottee No. 835, who died February 29, 1952, owning the E 1/2 SW 1/4 and W 1/2 SE 1/4 Sec. 6, T. 23 N., R. 9 E., Osage County, Oklahoma, acquired November 10, 1931.

    Section 2 of the Act of June 20, 1936, as amended (49 Stat. 1542, as amended; 25 U.S.C. 412a) provides that:

    "All homesteads, heretofore purchased out of the trust or restricted funds of individual Indians, are hereby declared to be instrumentalities of the Federal Government and shall be nontaxable until otherwise directed by Congress: Provided, That the title to such homesteads shall be held subject to restrictions against alienation or encumbrance except with the approval of the Secretary of the Interior: And provided further, That the Indian owner or owners shall select, with the approval of the Secretary of the Interior, either the agricultural and grazing lands, not exceeding a total of one hundred and sixty acres, or the village, town, or city property, not exceeding in cost $5,000, to be designated as a homestead."

All the above lands were purchased with restricted funds, and each deed contains the following clause:

    "Subject to the conditions that while the little is in the grantee or his heirs, the lands herein described shall not be alienated or encumbered without the consent of the Secretary of the Interior."

The Secretary of the Interior approved certificates designating as tax-exempt all the Wagoshe and West property described above. The purchase price of the Daniels property was $10,038.50, and thus in excess of the $5,000 cost figure prescribed by the above statute. Accordingly, a certificate designating a 100/201 interest in the Daniels property as tax exempt was approved by the Secretary.

    The Osage Agency prepared the estate tax return on the Daniels estate, and included the 100/201 interest in the land described above. The estate tax was paid, and subsequently a claim was made for refund of the tax on this 100/201 interest, but the refund has not been allowed by your Bureau. Estate tax returns on the Wagoshe and West estates were also filed by the Osage Agency, but exclusions of the values of the above described land of these decedents were claimed on the ground that the property is exempt under the Federal estate tax. We are advised that your Tulsa, Oklahoma, office has maintained that this property is not exempt.

    It is our opinion that the above described interests in these deceased Indians' estates are not subject to the Federal estate tax, in view of the express language of the Act of June 20, 1936, as amended, supra, declaring that such lands "shall be nontaxable until otherwise directed by Congress." In the case of Landman v. United States, 103 Ct. Cl. 199, 58 F. Supp. 836 (1945), the Court of Claims considered Section 4 of the Act of May 10, 1928 (45 Stat. 495, 496) which provided that Indians of the Creek Tribe of Oklahoma might select 160 acres of restricted land to remain exempt from taxation and file with the Indian agency a certificate designating the tracts so selected. Section 4 further provided for the recording of the certificate and stated that:

    "*     *     * said lands, designated and described in the approved certificate so recorded, shall remain exempt from taxation while the title remains in the Indian designated in such approved and recorded certificate, or in any full blood Indian heir or devisee of the land *     *     *"

In view of this specific tax exemption, the Court concluded that such lands were not subject to the Federal estate tax. The same result was reached in Landman v. United States, 109 Ct. Cl. 1, 71 F. Supp. 640 (1947). In the latter case the Court declined to follow the conclusion reached in Landman v. Commissioner of Internal Revenue, 123 F. 2d 787 (10th Cir. 1941), which had held that certain Creek lands were taxable for Federal estate tax purposes, despite the fact that they were expressly designated as tax exempt by Congress. The Court of Claims stated that the rationale of Landman v. Commissioner, supra, was in conflict with the rationale of the later decision of the Supreme Court in Oklahoma Tax Commission v. United States, 319 U.S. 598 (1943), which held that such lands were immune from the Oklahoma estate tax. The Court of Claims concluded that:

    "If immunity from the imposition of a State excise tax on the right to inherit or succeed
 


 

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DEPARTMENT OF THE INTERIOR

DECEMBER 6, 1954

the nontaxable property is to be found in the early treaties, agreements and acts of Congress culminating in the Act of May 10, 1928, under the rule of liberal construction employed by the Court, notwithstanding it may be argued that the tax falls upon the transfer of the economic benefits rather than upon the property of which the estate is composed, no valid reason appears for withholding such immunity from similar land sought to be burdened with a Federal tax identical in character." (71 F. Supp. 640, 647).

It would appear that the above decisions of the Court of Claims are clear authority for holding that the Osage lands here in question are also exempt from the Federal estate tax.

    We trust that you will concur in our conclusion on this question. Should you not concur, we should appreciate it if, prior to your making a final determination of the issue, you would advise us of your reasons in order that we may have a further opportunity to discuss the matter.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

APPLICABILITY OF ALASKAN TERRITORIAL LAW
TO NATIVES DYING TESTATE OR INTESTATE

                                                                                                                    January 4, 1955.

Mr. William L. Paul, Sr.
Box 81
Juneau, Alaska

MY DEAR MR. PAUL:

    This refers to your letter of November 17, 1954, stating again your conclusion that the Alaskan Territorial law pertaining to wills should be applied by the Department in the probate of restricted Alaska. You also question again the propriety of the Department's action in casting the descent of intestate property pursuant to the Alaskan Territorial law instead o the custom of the tribe or clan.

    As stated in recent correspondence to you, the probate of restricted property belonging to deceased Indians or natives of Alaska is governed by the same law and Departmental regulations as those applied to the Indians of the several States (Act of June 25, 1910, 36 Stat. 855, as amended, 25 U.S.C. 373. See also 54 I.D. 15). The statute provides that in the absence of a valid will, the property shall descend in accordance with the law of the state or territory. Testamentary disposition of restricted property is governed by the Departmental regulations, and in such cases the courts have recognized that the Department is not bound or limited by the state or territorial law. See Blanset v. Cardin, 256 U.S. 319 (1921), and Homovich v. Chapman, 191 F. (2d) 761 (1951).

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

TIMBER SALES AND TRIBAL LOANS, KLAMATH
RESERVATION, OREGON

M-36257                                                                                            January 14, 1955.

Indian Lands: Timber--Indian Tribes: Terminal Legislation

The enactment of the act of August 13, 1954 (68 Stat. 712), does not prevent the sale of timber on the Klamath Indian Reservation where the timber sale contract will be completed within the 4-year limitation period fixed by the act and the sale will not interfere with the purposes of the act.

Indian Tribes: Tribal Personalty: Tribal Funds

Permissive authority continues under section 12 of the act to make loans from tribal funds pursuant to the acts of August 28, 1937, and August 7, 1939.

Memorandum

To:            Commissioner of Indian Affairs
From:        Acting Solicitor
Subject:     Sale of timber and the handling of loans on the Klamath Indian Reservation

    In view of the act of August 13, 1954 (68 Stat. 718) , which provides for the termination of Federal supervision over Indians of the Klamath Reservation in Oregon, there have been referred for advice by your memorandum of November 9 and Assistant Commissioner Greenwood's memorandum of December 10 two questions: (1) the authority to sell timber within an area on the Klamath Reservation known as the Upper Williamson River Logging Unit, and (2) the authority to approve loans to members of the tribe under the acts of August 28, 1937 (50 Stat. 872; 25 U.S.C., 531-535), and August 7, 1939 (53 Stat. 1253; 25 U.S.C. 542 (a) ).
 


 

1659

OPINIONS OF THE SOLICITOR

JANUARY 17, 1955

I

    Numerous conditions are imposed by the act of August 13, 1954, including, after consultation with the tribe at a general meeting called for that purpose, the selection of qualified management specialists to cause an appraisal to be made of all tribal property, and to perform the other duties imposed by section 5 of the act.

    Immediately after the tribal property has been appraised, the adult members of the tribe for themselves, and the heads of families for the members of their families who are minors, may withdraw from the tribe and have their interests in the tribal property converted into money and paid to them. The tribal property of those members of the tribe who elect to remain in the tribe shall be managed through a trustee, corporation, or other legal entity created for that purpose pursuant to a plan to be prepared in form and content satisfactory to the tribe and the Secretary of the Interior. Alter the creation of such entity, the Secretary is authorized and directed to transfer all other tribal property of such tribal members to such entity for management under the plan prepared pursuant to section 5 (a) (5) of the act.

    At the present time, no trustee or other entity has been created and accordingly no conveyance of tribal property to such an entity has taken place. The various requirements of the act, and particularly the allowance by Congress of a 4-year period in which to accomplish its purposes, indicate clearly that Congress recognized that a certain amount of time would elapse before all the requirements provided for could be accomplished. Although no specific provision is contained in the act dealing with the performance of necessary tribal or reservation functions pending the effectuation of the purposes of the act, it is hard to believe that Congress intended to create a vacuum during the transition period which would result in a complete stoppage of the ordinary business affairs of the Klamath Tribe.

    The proposed contract is of short duration, and the contract will be fully performed before the expiration of the 4-year transition period. No change in the status of the tribal property has as yet taken place under the act. In these circumstances, it does not appear that this particular sale would be inconsistent with the provisions of the act of August 13, 1954, or that such a sale would in any way interfere with the purposes of the act. Accordingly, I am of the opinion that there is no legal objection to the approval of this particular sale. However, this opinion is not to be construed as giving legal sanction to additional sales, and if any such sales are contemplated, their validity must be determined in the light of the facts presented in each case.

II

    Section 12 of the act of August 13, 1954, continues the authority for making loans under the acts of August 28, 1937, and August 7, 1939. This authority is permissive, however, and the question whether such loans should continue to be made is a matter for administrative determination.

                                                                                                            W. H. FLANERY,
                                                                                                                        Acting Solicitor.

DISPOSAL OF PUBLIC LANDS--WITHDRAWALS
AND RESERVATIONS

M-36248                                                                                                     January 17, 1955.

Public lands that were withdrawn and permanently reserved pursuant to Act of Congress for schools, hospitals, and other purposes necessary for administration of affairs of Natives of Alaska may either be sold under the provisions of the Federal Property and Administrative Services Act of 1949 (63 Stat. 377, 40 U.S.C. 471, et seq.), or restored to the public domain for disposition under the public land laws.

Memorandum

To:            Commissioner of Indian Affairs
From:        Acting Solicitor
Subject:     Authority to revoke a permanent reservation made under the Act
                 of May 31, 1938 (52 Stat. 593; 48 U.S.C. 353a)

    You have asked whether in my opinion the withdrawal and permanent reservation of a tract of land near Klukwan, Alaska, by the Secretarial Order dated April 27, 1943, may be revoked and the land restored to the public domain.

    The Secretarial Order dated April 27, 1943, provides: "subject to any valid existing rights or claims acquired prior to the date hereof, there is hereby withdrawn and permanently reserved for school, health, and other purposes the following described land near Klukwan, Alaska.
 


 

1660

DEPARTMENT OF THE INTERIOR

JANUARY 17, 1955

Township 28 South, Range 56 East,
Copper River
Meridian, Alaska.

N 1/2 of Section 33--containing 320 acres."

    The withdrawal order was issued pursuant to the Act of May 31, 1938 (52 Stat. 593; 48 U.S.C. 353a), which provides:

    "the Secretary of the Interior be, and he is hereby, authorized, in his discretion, to withdraw and permanently reserve small tracts of not to exceed six hundred and forty acres each of the public domain in Alaska for schools, hospitals, and such other purposes as may be necessary in administering the affairs of the Indians, Eskimos, and Aleuts of Alaska: Provided, That such withdrawals shall be subject to any valid existing rights."

    It is my opinion that under the provisions of the Federal Property and Administrative Services Act of 1949 (63 Stat. 377) as amended (40 U.S.C. 471 et seq.), the Commissioner may declare the land in question to be excess to the needs of the Bureau and the land may thereupon either be disposed of in accordance with the provisions of that Act to be restored to the public domain by concurrent action of the Administrator of the General Services Administration and the Secretary of the Interior for disposition under the general land laws.

    For the purposes of the Federal Property and Administrative Services Act property is defined in section 3 (d) (40 U.S.C. 472 (d), as follows:

    "The term 'property' means any interest in property of any kind except (1) the public domain (including lands withdrawn or reserved from the public domain which the Administrator, with the concurrence of the Secretary of the Interior, determines are suitable for return to the public domain for disposition under the general public land laws because such lands are not substantially changed in character by improvements) and lands reserved or dedicated for national forest or national park purposes; *     *     *"

    The parenthetical clause was added to the definition by the Act of July 12, 1952 (66 Stat. 593), and the House Committee on Expenditures in the Executive Departments explained the addition as follows:

    "This subsection refines the definition of the term 'property' as used in the act. Under the present definition the public domain is not property within the meaning of the act. The subsection would provide that lands previously withdrawn or reserved from the public domain for other governmental use should also be treated as public domain and not as property under the act when the Administrator, with the concurrence of the Secretary of the Interior, determines that they are suitable for return to the public domain for disposition 'under the general public land laws. Lands so reserved or withdrawn would be treated as property subject to the act in the absence of such a determination. It is believed that excess lands, originally withdrawn or reserved from the public domain, which are unimproved or contain only minor improvements, can more effectively be disposed of under the public land laws, which operate with respect to the balance of public domain lands. More extensively improved lands can probably be better disposed of under the subject act. This subsection will allow the two land-disposal agencies concerned to determine and select the more suitable method of disposal. Similar authority was contained in section 3 (d) of the Surplus Property Act of 1944 (58 Stat. 767)." (H. Report No. 1524, 82d Congress). (Italics supplied.)

    A reservation of land from the public domain pursuant to the Act of May 31, 1938, even though termed permanent, is subject to revocation or modification by Congress, and the Federal Property and Administrative Services Act of 1949, as amended, is a Congressional authorization to dispose of any land reserved for Governmental use or to restore it to the public domain in accordance with the provisions of that Act whenever the land becomes excess to the needs of the Agency.

                                                                                                            W. H. FLANERY,
                                                                                                                        Acting Solicitor.

FEE PATENTS--FORT PECK

M-36267                                                                                                     February 11, 1955.

Indian Lands: Patents

The oil and gas rights granted by the Act to the Fort Peck allottees or their heirs or devisees is to be held in trust under Sec. 3 unless they come within the conditions of the first exception thereto, automatically passing such rights to them in a fee status and unless they come within


 

1661

OPINIONS OF THE SOLICITOR

FEBRUARY 11, 1955

the conditions of the second exception authorizing and directing the Secretary to issue to them a patent in fee.

Indian Lands: Allotments: Patents

The Secretary may issue a patent in fee to Indians for allotments of lands held under an exchange assignment under the conditions prescribed in Sec. 4 with or without the application of the Indian owners thereof.

Memorandum

To:            Commissioner of Indian Affairs
From:        Acting Solicitor
Subject:     Interpretation of sections 3 and 4 of Public Law 461, 83d
                 Congress, approved June 30, 1954

    You have requested to be advised on the conditions and circumstances under which the Secretary of the Interior, without application from the Indian owners, is authorized and directed under section 3 of the act to issue patents in fee to the grantees of the oil and gas rights under the act, and under section 4 to issue patents in fee to the owners of the land therein referred to.

I

    Subject to approval of the provisions of the act by a referendum vote, as provided in section 8, section 1 of the act grants to individual Indians of the Fort Peck Tribes the oil and gas which, on the date of the enactment, was reserved to the members of the tribes in common. Under section 3 of the act, the oil and gas so granted to the individual Indians are to be held in trust for them by the United States except:

    (a) Where one Indian is the grantee under section 1 of the act of the entire interest in the oil and gas underlying a particular tract of allotted land and that Indian has previously received a fee simple patent for any land on the Fort Peck Reservation, or where two or more Indians each of whom has previously received a fee simple patent for any land on the reservation, are the grantees of the entire interest in the oil and gas underlying a particular tract of allotted land, the unrestricted fee simple title to the oil and gas is conveyed by section 3 to the Indian owner or owners without any application therefore by them and without any action by the Secretary. In these instances, section 3 of the act automatically converts the trust title into an unrestricted fee simple title. Here, it is important to notice that the fee patents which determine the change from a trust to an unrestricted title in the oil and gas must have been issued prior to the effective date of the enactment and that the automatic conversion of the trust title into an unrestricted title takes place on the effective date of the act.

    (b) Where an Indian to whom no fee simple patent has issued for any land on the reservation is the grantee under section 1 of the act of the entire interest in oil and gas underlying a particular tract of allotted land, and that Indian thereafter received a fee simple patent for any land on the reservation, he becomes entitled to the unrestricted fee simple title to the oil and gas granted him by the act, and it becomes the duty of the Secretary to transfer to him such unrestricted title. The same rule would apply where two or more Indians become grantees under the act of the entire interest in the oil and gas and thereafter all such grantees have received fee simple patents for land on the reservation.

    (c) Where an Indian to whom no oil and gas rights were granted by the act thereafter acquires by inheritance or devise the entire interest in the oil and gas underlying a particular tract of allotted land and such Indian receives a fee simple patent after the date of enactment, or received a fee simple patent before the date of the enactment, for any land on the reservation, the Indian owner is entitled to receive the unrestricted title to the oil and gas, and it is the duty of the Secretary to transfer such a title to him. No application from the Indian owner is necessary. The same rule would apply where the entire interest in the oil and gas is acquired after the date of the act by two or more Indians and all of them have received fee patents for land on the reservation.

    (d) Where two or more Indians are holders of the entire interest in the oil and gas rights under (b) and (c) or either, and some but less than all of them have patents in fee for some land on the reservation, and subsequently the remainder of them receive such patents, the Indian owners would be entitled to a patent in fee to the entire interest in the oil and gas rights.

    (e) Any one Indian or group of two or more Indians in the situations dealt with in paragraphs (b) and (c) above would likewise be entitled to receive patents in fee for oil and gas whenever they are determined by the Secretary of the Interior to be competent to manage their own affairs. Such determination may be made by the Secretary on his own motion or upon application of the Indian owners.


 

1662

DEPARTMENT OF THE INTERIOR

FEBRUARY 11, 1955

II

    Section 4 deals with the title to land (which would include minerals other than oil and gas) as distinguished from the title to oil and gas, which is the subject of section 3. Upon a determination by the Secretary that the entire interest in such land, including land held under an exchange assignment, is owned by competent Indians who were the grantees under the act of the oil and gas underlying such lands, he is authorized and directed to issue fee patents to the Indian owners. The patents may be issued by the Secretary with or without application from the Indian owners.

    The foregoing views are expressed with the realization that other situations not now foreseeable and hence not covered in this discussion may arise. Appropriate action in such cases is not intended, of course, to be foreclosed or prevented in any way by anything mid in this opinion.

J. REUEL ARMSTRONG,
Acting Solicitor.

CONTRASTS FOR LAW ENFORCEMENT

                                                                                                                        March 24, 1955.

Memorandum

To:            Commissioner of Indian Affairs
From:        Acting Solicitor
Subject:     Contracts for law enforcement

    Reference is made to your memorandum of March 9, 1955 requesting my opinion on whether the Johnson-O'Malley Act (25 U.S.C. 452 et seq.) authorizes the Secretary to make contracts with States, upon which Congress has conferred criminal jurisdiction over Indians or which may assume such jurisdiction pursuant to the Act of August 15, 1953 (67 Stat. 588), whereby the United States could make payments to such States for performing law enforcement services among Indians.

    The Johnson-O'Malley Act authorizes the Secretary to contract with States or political subdivisions thereof "for the education, medical attention, agricultural assistance, and social welfare, including relief of distress" of Indians in such States. It is my opinion that the language of the statute is not sufficiently broad to authorize the Secretary to enter into such contracts with States for law enforcement services.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

CONVEYANCE OF PAPAGO LANDS

                                                                                                                        March 28, 1955.

Memorandum

To:            Assistant Secretary, Public Land Management
From:        Aching Solicitor
Subject:     Conveyance of Papago lands

    The Commissioner of Indian Affairs has transmitted a copy of your memorandum to him dated January 13, 1955, together with the attached Indian office files. I note that you wish my opinion on the question of "whether there is any possible manner in which the Papagos, individually, or through their tribal council, or otherwise, might enter into an agreement or execute any instrument which would effect the transfer, or would alienate any interests which they might acquire in the future in the lands or minerals of the Papago Reservation." You have also informally requested whether, if not under present existing law, the Papago Tribe had any such authority under previously existing law.

    I have examined the Bureau of Indian Affairs reports and attached file pertinent to this matter, which are being transmitted herewith. I fail to find anything in them which would indicate that the Papago Tribe has made any agreement or conveyance respecting a future interest. Of course the Tribe, contending as it has been that the right of the Tribe to alienate any mineral interest is absolute, may have attempted to make some conveyance of which the Department of the Interior has no knowledge.

    It is my opinion that the Papago Tribe does not have any legal right whatever to convey any possible future interest which it might acquire. It is my further opinion that the Tribe has never at any time had any such right. This opinion is based primarily on Section 12 of the Act of June 30, 1834, R.S. 2116 (25 U.S.C. 177) which provides in pertinent part that:

    "No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution."

    Substantially the same prohibitions were contained in the First Intercourse Act of July 22, 1790 (1 Stat. 137) and the Second Intercourse Act of March 1, 1793 (1 Stat. 329), the latter of which was


 

1663

OPINIONS OF THE SOLICITOR

APRIL 15, 1955

reenacted from time to time with various minor modifications. There has never existed at any time any convention, treaty or other act of Congress which authorized the sale of any lands then owned or which might be acquired in the future by the tribe. Those statutes enacted subsequent thereto which authorize the leasing of tribal lands for mining purposes would not, in my opinion, authorize the issuance of a lease for mining purposes of lands or mineral interests which the tribe may acquire in the future, but which it does not own at this time. See United States v. Noble, 237 U.S. 74 (1915).

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

TITLE TO ACCRETION LANDS ADJACENT TO
COCOPAH INDIAN RESERVATION, ARIZONA

M-36275                                                                                                         April 15, 1955. 

Indian Tribes: Reservations

Where an Executive Order establishing an Indian reservation of public lands of the United States, including an unsurveyed area of accreted lands, provides that a sector of the reservation boundary shall follow what will be a section line of the public survey when extended, the Indians have no right as riparian owners to the accreted lands found to lie between such projected section line, when established, and the waters of an adjacent river.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Title to accretion lands adjacent to the Cocopah Indian Reservation, Arizona

    The Director of your Area Office at Phoenix has presented the question of the ownership of an area of accreted land lying between the Cocopah Indian Reservation, Arizona and the waters of the Colorado River. The reservation was created by an Executive Order on September 27, 1917 which reads:

    "It is hereby ordered that the west half of the southeast quarter of section twelve and the west half of the northeast quarter of section thirteen, township ten south, lots two, four, five, and six, together with such vacant, unsurveyed, and unappropriated public lands adjacent to the foregoing-described subdivisions and between the same and the waters of the Colorado River as would, upon an extension of the lines of existing surveys, constitute fractional portions of the northeast quarter and the northwest quarter of section thirty, township nine south of range twenty-four west of the Gila and Salt River meridian, Arizona, be, and the same are hereby, withdrawn and set apart for the use and occupancy of the Cocopah Indians, subject to any valid prior existing rights of any person or persons thereto, and reserving a right of way thereon for ditches or canals constructed by the authority of the United States."

    At that time, lots 2, 4, 5 and 6 were bordered on the west by the meander line of the Colorado River as shown by a public land survey made in 1874. Prior to the date of the order establishing the reservation, it was recognized that the river channel had already shifted westward leaving a considerable area of accreted land between the river and what would have been the western line of section 30 had the public survey lines been extended.

    Part of the land covered by the Executive Order was within what was known as the Farmers Banco No. 501 claimed by General Higinio Alvarez, a Mexican citizen. His claim later came before the International Boundary Commission of the United States and Mexico in 1926 and it was determined that dominion and sovereign jurisdiction over the area had passed to the United States (IO File 8717-26). When creating the Cocopah Indian Reservation on a part of this unsurveyed area the United States could limit the reservation boundary to include all or any part of the area. (56 Am. Jur. Sec. 481). See also Jones v. Johnston, 18 How. 150. Producers Oil Co. v. Hanzen, 238 U.S. 325.

    Had it been intended that the rights of the Cocopah Indians should extend all the way from the western boundary of surveyed lots 2, 4, 5 and 6 to the waters of the Colorado River there would have been no occasion for including in the Executive Order the restrictive language defining the western boundary of the reservation to include such land "*     *     * as would, upon extension of the lines of existing surveys, constitute fractional portions of the northeast quarter and the northwest quarter of section thirty, township nine south of range twenty-four west of the Gila and Salt River meridian, Arizona". It being known that there was already a sizeable area of accreted land between the river and unsurveyed section 30, this language operated to exclude the accreted land found to be west of section 30 when the survey lines were protracted. To include in the reservation all of the accreted land between the 1874 meander line and the water of the river as it flowed when the reservation was 


 

1664

DEPARTMENT OF THE INTERIOR

APRIL 15, 1955

created would be to hold as superfluous and without meaning the above-quoted part of the Executive Order. It must be concluded, therefore, that the Indians have no rights to accreted lands west of the boundary fixed by the Executive Order. See also Houston Brothers v. Grant, 73 So. 284; Saulet v. Shepherd, 71 U.S. 502.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

TEMPORARY WITHDRAWAL IS IN AID OF LEGISLATION

M-36277                                                                                                         April 19, 1955.

Withdrawals and Reservations: Authority to make

There is no authority for Executive action which would temporarily withdraw lands within the Papago Indian Reservation from the operation of the mining laws in aid of legislation for the benefit of the Indians, in view of the statutory provision rescinding an earlier withdrawal made for the same purpose, and restoring the lands to exploration and location under the mining laws.

Memorandum

To:            Assistant Secretary--Public Land Management
From:        Solicitor
Subject:     Withdrawal of lands within Papago Indian Reservation
                 from operation of mining laws

    You have asked me to express an opinion on the question whether there is authority for Executive action which would temporarily withdraw the lands within the Papago Indian Reservation from the operation of the mining laws, pending action on a bill now before the Congress, that would expressly withdraw the lands from the operation of those laws and make the minerals underlying the lands a part of the reservation, to be held in trust by the United States for the Papago Indian Tribe. I am of the opinion that there is no authority for such Executive action in connection with these particular lands.

    Executive Order No. 2524, dated February 1, 1917, withdrew and set apart certain lands, described in the order, as a reservation for the Papago Indians. The Executive order specifically provided that:

    "The foregoing reservation is hereby created with the understanding that all mineral lands within the reservation which have been or which may be shown to be such and subject to exploration, location and entry under the existing mining laws of the United States and the rules and regulations of the Secretary of the Interior applying thereto, shall continue to be subject to such exploration, location and entry notwithstanding the creation of this reservation; and town-sites, necessary in connection with the development of the mineral resources of the reservation, may be located within the reservation under such rules and regulations as the Secretary of the Interior may prescribe, and patented under the provisions of the town site laws of the United States: Provided, That nothing herein contained shall affect any existing legal right of any person to any of the lands herein described."

The act of February 21, 1931 (46 Stat. 1202) added certain lands to that reservation with the express provision that "all such lands shall be subject to disposition under the mining laws as provided in the Executive order of February 1, 1917, creating the Papago Indian Reservation."

    In a letter dated October 26, 1932, to the Secretary of the Interior, the Commissioner of Indian Affairs described the creation and enlargement of the reservation, stated that 180 placer mining claims on the reservation had been surveyed and approved, and then said:

    "At a conference held in this Office Wednesday October 12, 1932, attended by representatives of the Secretary's Office, of the General Land Office, and several employees of this Office, the matter was thoroughly discussed and the conclusion was tentatively reached that it is incumbent on this Department in protecting the Indians in their livestock industry, to take preventative measures toward stopping any further alienation of lands within the reservation through patenting mining claims.

    "It is, therefore, recommended, subject to all existing valid mineral rights and claims, that all Papago Indian lands covered by Executive Order of February 1, 1917 be temporarily withdrawn from all forms of mineral entry or claim under the public land mining laws until further notice, pursuant to the authority found in Section 4 of the Act of March 3, 1927 (44 Stats. L., 1347); in order that Congress may consider the claim of the Indians to the mineral rights within these lands."

On October 28, 1932, the Secretary approved the withdrawal. The withdrawal remained in Force


 

1665

OPINIONS OF THE SOLICITOR

APRIL 19, 1955

until the enactment of the act of June 18, 1934 (48 Stat. 984), section 3 of which read in part as follows:

    "*     *     * Provided further, That the order of the Department of the Interior signed, dated, and approved by Honorable Ray Lyman Wilbur, as Secretary of the Interior, on October 28, 1932, temporarily withdrawing lands of the Papago Indian Reservation in Arizona from all forms of mineral entry or claim under the public land mining laws, is hereby revoked and rescinded, and the lands of the said Papago Indian Reservation are hereby restored to exploration and location, under the existing mining laws of the United States, in accordance with the express terms and provisions declared and set forth in the Executive orders establishing said Papago Indian Reservation: *     *     *.

    "Nothing herein contained shall restrict the granting or use of permits for easements or rights-of-way; or ingress or egress over the lands for all proper and lawful purposes: and nothing contained herein, except as expressly provided, shall be construed as authority for the Secretary of the Interior, or any other person, to issue or promulgate a rule or regulation in conflict with the Executive order of February 1, 1917, creating the Papago Indian Reservation in Arizona or the Act of February 21, 1931 (46 Stat. 1202)." 1

    The power to dispose of public lands is, of course, vested in the Congress by the Constitution. Therefore, the power of an officer of the executive branch to act with respect to such lands must be based upon a grant of authority, express or implied, from the Congress. Sioux Tribe v. United States, 316 U.S. 317, 326 (1942).

    The withdrawal of 1932 was rested upon section 4 of the act of March 3, 1927 (44 Stat. 1347; 25 U.S.C., sec. 398d), which provides as follows:

    "That hereafter changes in the boundaries of reservations created by Executive order, proclamation, or otherwise for the use and occupation of Indians shall not be made except by Act of Congress: Provided, That this shall not apply to temporary withdrawals by the Secretary of the Interior."

This statutory provision cannot, however, reason ably be construed as confirming or vesting in the Secretary the power to deal with particular lands in a manner and for a purpose that would be incompatible with Congressional action specifically applicable to those lands. A temporary withdrawal by the Secretary at this time of the lands within the Papago Indian Reservation from the operation of the mining laws in aid of legislation for the benefit of the Indians would clearly be inconsistent with the abrogation by section 3 of the act of June 15, 1934 of the earlier temporary withdrawal of the same lands for the same purpose and with the explicit subjection by that section of those lands to the mining laws. Accordingly, I am of the opinion that section 4 of the act of March 3, 1927, would not authorize such a temporary withdrawal by the Secretary.

    I am not aware of any other statutory provision that would authorize such action. The act of June 25, 1910, as amended (36 Stat. 847; 37 Stat. 497; 43 U.S.C., sets. 141-143) empowers the President to withdraw public lands temporarily for public purposes and this authority has been delegated to the Secretary of the Interior (E.O. 10355, 17 F.R. 4831). However, all lands withdrawn under this statute "shall at all times be open to exploration, discovery, occupation, and purchase under the mining laws of the United States, so far as the same apply to metalliferous minerals *     *     *."

    Apart from statute, there is a general authority in the President to withdraw lands for public purposes. While this authority has been delegated to the Secretary by Executive Order 10355, in my judgment the authority does not encompass the power to make a temporary withdrawal from the operation of the mining laws of the lands under consideration here. The general authority to withdraw lands rests upon a grant of power implied by reason of the acquiescence by the Congress over a long period of years in a multitude of withdrawals from the public domain. United States v. Midwest Oil Company, 236 U.S. 459 (1915). In the case of the lands in the Papago Indian Reservation, however, the Congress has rescinded a temporary withdrawal of the lands from the operation of the mining laws in aid of legislation for the benefit of the Indians and has expressly restored the lands to exploration and location under those laws. I think that authority cannot be implied in an officer of the executive branch to repeat, as to particular lands and for the same purpose, an action which the Congress has explicitly nullified.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

____________________

    1 Section 3 of the act of June 18, 1934, was amended by the act of August 28, 1937 (50 Stat. 862), but no change of substance was made in the provisions quoted above from the original section 3. (25 U.S.C., sec. 463).


 

1666

DEPARTMENT OF THE INTERIOR

MAY 2, 1955

OSAGE OIL AND GAS LEASES--
ANTICIPATED DAMAGES--
COMPENSATION

                                                                                                                    May 2, 1955.

The Honorable,
The Attorney General

SIR:

    This is with reference to the leasing of Osage Reservation lands for oil and gas mining and the difficulties encountered in placing an oil or gas lessee of Osage lands in possession for development purposes.

    The mineral rights in the Osage Reservation are vested in the Osage Tribe. Mineral leases are sold to individuals and companies who take such leases with the understanding they will have the right to enter upon and develop said leases. Under the Act of June 28, 1906 (34 Stat. 539-543) and acts amendatory and supplementary thereto, there is no question of the right of the Tribe's oil or gas lessee to enter upon leased premises for development purposes. Regulations 25 CFR 180.5, 180.51, 180.52, 180.53, and Section 2 of the Act of March 2, 1929 (45 Stat. 1478) specifically set out the right of use of surface lands, the procedure for settlement of damages claimed, the amounts payable for well location site fee and tank site fees, and the information to be given surface owners before commencement of drilling.

    In many cases surface owners or surface lessees have demanded compensation for anticipated damages and have kept the oil or gas lessee out of possession pending settlement for such anticipated damages. The regulations specifically contemplate fixing and payment of compensation for damages after the damages have occurred. However, in cases where it is imperative that the oil or gas lessee commence development work immediately, the lessee has found he either must meet the demands of the surface owner or surface lessee or suffer the delay and expense of obtaining an injunction in court. Frequently the oil or gas lessee decides that it will be less expensive both in money and delay to pay what he considers exorbitant demands. The other alternative for handling controversies in these matters is for the Superintendent of the Osage Agency to present the evidence in a case to the Department through the Area Office and the Bureau of Indian Affairs. In practically all cases the oil or gas lessee finds this procedure impracticable to use because of the resulting delays.

    In order to put a stop to this unconventional practice of the surface owners and surface lessees, it is recommended that the United States Attorney for the Northern District of Oklahoma be authorized and directed to take immediate action to place an oil or gas lessee of Osage lands in possession for development purposes, upon complaint and showing by the Superintendent of the Osage Agency that such lessee is being wrongfully kept out of possession.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

AUTHORITY OF NORTH DAKOTA
TO FURNISH SERVICES TO
INDIAN RESIDENTS

                                                                                                                            May 2, 1955.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Authority of the State of North Dakota to furnish educational
                 and welfare assistance and other services to Indians, residents
                of the State

    You have requested my opinion on whether the State of North Dakota has authority to furnish institutional care, welfare assistance and services, general assistance, child welfare and related social services and educational services to Indians of that State. Your question arises as a result of certain testimony of officials of the State of North Dakota before a Subcommittee of the Senate Appropriations Committee in connection with the recent decision of the North Dakota Supreme Court, namely, State of North Dakota v. Lohnes, (not yet reported) which held that the State constitution precludes the exercise of State jurisdiction over Indians to punish crimes committed on the Devils Lake Reservation conferred by the Act of May 31, 1946 (60 Stat. 229).

    Attached to your request was a copy of an opinion of the Chief Counsel of the Bureau of Indian Affairs dated July 8, 1953 concluding that Indian residents of the State of North Dakota are entitled to admission to the Grafton State School on the same terms and conditions as non-Indian residents of the State. By the same reasoning Indian residents of the State, would likewise be entitled to all of the benefits that the State renders respecting welfare, educational and social services administered by State agencies and that the State is not only authorized but may not deny the same privileges to Indians that are granted to other residents of the state.


 

1667

OPINIONS OF THE SOLICITOR

MAY 20, 1955

    This opinion is hereby confirmed. The case of State v. Lohnes deals solely with criminal jurisdiction of the State over Indians on an Indian reservation. There is nothing therein which would from necessity prevent the State from making available its educational, social and other beneficial services to Indians of the State whether they reside on or off an Indian reservation.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

SELECTION OF TRIBAL LANDS BY
MEMBERS WHOSE LANDS ARE WITHIN
TAKING AREA OF OAHE DAM--
CHEYENNE RIVER RESERVATION

M-36283                                                                                                         May 22, 1955.

Indian Lands: Tribal Lands: Generally

Section XI of the act cited above provides for purchase by the United States and re-conveyance under trust patent to individual Indians, members of the Tribe of Sioux Indians of the Cheyenne River Reservation, whose lands are within the taking area of the Oahe Dam upon selection by them of lands within or outside the Reservation as diminished and further provides that no prior Act of Congress, Departmental regulation or Tribal Constitution, ordinance or resolution pursuant to law or regulation shall be a bar to the operation of the section. It is considered that by the wording of section XI the Congress has expressed its intent to authorize selections of tribal land and purchase by the United States as well as conveyance by the Tribe of all its interests in such selected Tribal lands.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Interpretation of Sec. XI of the act of September 3, 1954
                 (P.L. 776, 83d Cong.; 68 Stat. 1191, 1193)

    This refers to your memorandum of March 17, 1955 requesting an interpretation of section XI of the act of September 3, 1954 (P.L. 776, 83d Cong.; 68 Stat. 1191, 1193) with respect to the question as to whether the act authorizes an individual member of the Tribe of Sioux Indians of the Cheyenne River Reservation, hereinafter referred to as the Reservation, whose lands are within the taking area of the Oahe Dam to make a selection of tribal land within the boundaries of the Reservation and whether section XI would authorize the issuance to such individual of a trust patent to tribal lands selected by that individual.

    In my opinion, it was the intent of the Congress to authorize the above indicated selections as well as purchase by the United States and conveyance by the Tribe of all its interests in such selected tribal lands necessary to help solve the relocation problem and therefore both portions of your question paraphrased above must be answered in the affirmative.

    It is understood that approximately one-third of the land within the Reservation is tribal land and two-thirds is individually allotted land. It is not known whether any great number of individuals holding allotments wish to sell their interests therein, but if any substantial number of those persons whose land is within the taking area are to be relocated within the Reservation, it seems necessary to permit the purchase of tribal land even though the title to such land already is in the name of the United States. The Tribe would be entitled to payment for such land at a negotiated price. The displaced allottee or assignee should be given a trust patent by the United States.

    Section XI of the act of September the 3rd, 1954 provides for purchase by the United States and re-conveyance under trust patent to individual members of the Tribe whose lands are within the taking area upon selection by them of lands within or outside the Reservation and any other provision of law, regulation or Tribal Constitution, ordinance or resolution pursuant to any law or regulation to the contrary is overcome by the following language in section XI:

    "No prior Act of Congress or Departmental regulation shall be held to be a bar to the full operation of this section, nor shall the Tribal Constitution, ordinance or resolution thereunder be held to be a bar to the full operation of this section, numbered XI."

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

KLAMATH TERMINAL LEGISLATION

62 I.D. 186

M-36284                                                                                                         May 20, 1955.

Indian Tribes: Terminal Legislation--Words and Phrases


 

1668

DEPARTMENT OF THE INTERIOR

MAY 20, 1955

Since Section 2 (e) of the Act of August 13, 1954 (68 Stat. 718), defines an "adult" for the purposes of that Act as "a member of the tribe who has attained the age of twenty-one years," married women or emancipated minors under the age of twenty-one may not be considered adults for the purposes of that Act even though they may be "adults" under State law.

Indian Tribes: Terminal Legislation

The question of whether a member of the Klamath Tribe may alienate his interest in tribal property after the transfer of such property pursuant to Section 6 (a) of the Act of August 13, 1954 (68 Stat. 718) and prior to the date of the proclamation to be issued pursuant to Section 18 of said Act, is a question to which no definite answer can be given at this time, as such answer will depend upon the terms of the plan pursuant to which title to such property is transferred.

Indian Tribes: Terminal Legislation-Indian Lands: Leases and Permits: Grazing

The right of members of the Klamath Tribe to free-use grazing on tribal land will not terminate upon publication, under the Act of August 13, 1954 (68 Stat. 718), of the final membership roll. The right to so use tribal land will continue until tribal title is extinguished by sale, or by transfer pursuant to Section 6 (a) of that Act, in which latter event the use of the range will be governed by the terms of the plan pursuant to which such transfer is made.

Indian Tribes: Terminal Legislation--Indians: Domestic Relations--Indian Tribes: Membership

Under the provisions of Section 5 (a) (2) of the Act of August 13, 1954 (68 Stat. 718), which allows "each adult member of the [Klamath] tribe *     *     * an opportunity to elect for himself, and, in the case of a head of a family, for the members of the family who are minors" to withdraw from or remain in the tribe: (1) when the parents of a child are separated and the child is living with one of the parents, the latter parent may make the decision for the child to withdraw; (2) when the parents of a child are separated and the child is living with some third person, the question of who is the head of the minor's family is one of fact which must be considered in each case; (3) where the child has a judicially appointed guardian of his person and his property, the guardian may not elect for the child unless the guardian is otherwise qualified as an adult member and head of the family of the minor; (4) if the child is an orphan who is living in an institution where he cannot be considered as a member of the family of an adult Klamath Indian, no one may make the decision for him to withdraw; (5) an adult member of the tribe who has judicially been deprived of control over his child may not make an election for his child to withdraw; (6) a parent who is judicially declared to be non compos mentis may not elect for himself or his child to withdraw; and (7) an adult member who is the head of a family may make the decision to withdraw for his wife if she is under, but not if she is over, twenty-one years of age.

Indian Tribes: Terminal Legislation--Indian Tribes: Membership

An adult member of the Klamath Tribe, if incompetent, insane or non compos mentis may not, under Section 5 (a) (2) of the Act of August 13, 1954 (68 Stat. 718), make an election to withdraw from the tribe.

Indian Tribes: Terminal Legislation--Indians: Tribes: Membership

A judicially appointed guardian for an adult member of the Klamath Tribe who is insane, incompetent or non compos mentis may not, under the provisions of Section 5 (a) (2) of the Act of August 13, 1954 (68 Stat. 718), make an election for him to withdraw from the tribe.

Indian Tribes: Terminal Legislation--Indians: Hunting and Fishing

The right of members of the Klamath Tribe to hunt and fish on tribal lands does not, for purposes of the appraisal to be made under Section 5 (a) (1) of the Act of August 13, 1954 (68 Stat. 718), have an appraisable value, as this right comes to an end when membership ceases, and is not subject to transfer.

Indian Tribes: Terminal Legislation--Indian Lands: Tribal Lands: Alienation

Since Section 6 (b) of the Act of August 13, 1954 (68 Stat. 718) provides that "all of the actions required by sections 5 and 6 of this Act shall be completed at the earliest practicable time and in no event later than four years from the date of this Act", sales of land pursuant to Section 5 of the Act may not be made subsequent to August 13, 1958.


 

1669

OPINIONS OF THE SOLICITOR

MAY 20, 1955

Indian Tribes: Terminal Legislation--Indian Lands: Individual Rights in Tribal Property: Annuity and Per Capita Payments

When pursuant to Section 5 (a) (3) of the Act of August 13, 1954 (68 Stat. 718) the selection is made of all that property of the Klamath Tribe which is to be sold to pay off withdrawing members, a partition of the tribal property results. Thereafter withdrawing members will be entitled to receive all the income from the property so selected, but will not receive per capita payments from the remaining tribal property.

Indian Tribes: Tribes: Terminal Legislation--Indian Tribal Government--Indian Tribes: Membership

Should a member of the Klamath Tribe, who has elected to withdraw from the tribe pursuant to the Act of August 13, 1954 (68 Stat. 718), inherit an interest of a member who has elected to remain in the tribe, the withdrawing member would not acquire by such inheritance the decedent's right to vote as a member of the tribe.

Indian Tribes: Terminal Tribes: Legislation--Indian Tribal Government--Indian Tribes: Membership

Members of the Klamath Tribe who elect to withdraw from the tribe pursuant to the Act of August 13, 1954 (68 Stat. 718) remain tribal members and may participate in tribal affairs to the same extent as any member until they have been paid in full the money value of their interests in tribal property.

Indian Tribes: Terminal Legislation--Indian Lands: Patents

It will be advisable for a member of the Klamath Tribe, who elects to withdraw from the tribe pursuant to the Act of August 15, 1954 (68 Stat. 718), at the time of his election and as a part of that election, to petition the Secretary of the Interior to issue to him, pursuant to Section 8 of the Act, a patent in fee for any trust lands, or to remove restrictions covering any restricted lands he might now or hereafter hold.

Indian Tribes: Terminal Legislation--Indian Lands: Minerals--Indian Lands: Sales and Exchange

The requirement in Section 8(b) of the Act of trust or restricted land owned by members of August 13, 1954 (68 Stat. 718) that the Secretary of the Interior transfer the subsurface rights in the Klamath Tribe to one or more trustees be comes applicable at and after the date of the proclamation to be issued pursuant to Section 18 (a) of that Act and does not apply to situations prior thereto.

Indian Tribes: Terminal Legislation--Indian Lands: Water Rights--Words and Phrases

The term "subsurface rights" as used in Section 8 (b) of the Act of August 13, 1954 (68 Stat. 718) does not include water rights.

Indian Tribes: Terminal Legislation--Indian Lands: Descent and Distribution: Intestate Succession--Indian Lands: Descent and Distribution: Wills--Indian Lands: United States Sales and Exchange

Under Section 9 of the Act of August 13, 1954 (68 Stat. 718), (1) all trust and restricted property of members of the Klamath Tribe who die six months or more after the date of the Act is subject to the probate jurisdiction of State courts; (2) if the State court orders a sale of such property in order to pay claims and probate expenses, the purchaser whether Indian or non-Indian, takes a fee simple title to the property sold; (3) if the court distributes such property to an Indian heir, such heir acquires the property in a trust or restricted status unless such status has been removed by operation of said Act; but if the distributee or devisee is a non-Indian, the trust and restricted status is removed; (4) if the court decides it would be advantageous to cause a trust or restricted allotment to be leased during the period of probate, it must be leased in accordance with Federal rules and regulations; (5) the court, in probating such property, may appoint guardians ad litem to protect the interests of minors, incompetents or persons non compos mentis; (6) where the court orders a sale of such trust or restricted property, the United States is a necessary party to the proceedings therefore, and must be served with the petition for sale and accorded an opportunity to be heard. Service should be made upon the U.S. Attorney and upon the Attorney General of the United States; (7) Heirs or devisees of Klamath Indians need not be qualified by the 1/16th degree Indian blood of the Klamath Tribe as formerly required; (8) trust and restricted estates of Klamath Indians who died prior to February 13, 1955, will be probated by the Federal Examiner of Inheritance and not by a State court.


 

1670

DEPARTMENT OF THE INTERIOR

MAY 20, 1955

Indian Tribes: Terminal Legislation--Indian Tribes: Tribal Personalty: Acquisition

Loans transferred to the Klamath Tribe pursuant to Section 12 of the Act of August 13, 1954 (68 Stat. 718) are assets of the tribe and subject to management by the trustee, corporation or other legal entity selected pursuant to Section 5 (a)(5) of the Act.

Indian Tribes: Terminal Legislation--Indian Lands: Water Rights

Section 14(a) of the Act of August 13, 1954 (68 Stat. 718) defers the application of the laws of Oregon with respect to the abandonment of water rights by the Klamath Tribe or its members for a period of fifteen years after the date of the proclamation issued pursuant to Section 18 of that Act. Except for such deferment, Section 14 (a) is merely a saving clause which operates to preserve whatever water rights the tribe and its members may have under the law in force on the date of the Act.

Indian Tribes: Terminal Legislation--Indians: Hunting and Fishing

The fishing rights secured to the Klamath Indians by the Treaty of 1864 and reserved under Section 14 (b) of the Act of August 13, 1954 (68 Stat. 718) are: (1) neither alienable nor descendible; (2) may be exercised by a withdrawing member of the tribe until fully paid his share in the tribal assets; (3) may be exercised by an heir of a member only if the heir is also a member; (4) may not be exercised with respect to tribal land which is sold and conveyed in fee simple; and (5) may continue to be exercised by members who elect to remain in the tribe.

Indian Tribes: Terminal Legislation--Indians: Domestic Relations

Under section 15 of the Act of August 13, 1954 (68 Stat. 718) (1) the Secretary of the Interior may, where there is an existing guardianship over a Klamath Indian, recognize the guardian and deliver the property of the ward to him; (2) approval of the appointment of such a guarding by the Secretary is no necessary as a matter of law; (3) no impropriety is seen in the appearance of an authorized representative of the Secretary in a guardianship proceeding for the purpose of assisting the court in making a proper appointment; (4) there is nothing in the Oregon statutes that would preclude an authorized representative of the Secretary from filing a guardianship petition or to prevent an Oregon court from appointing a guardian pursuant to such a petition; (5) the Secretary in the absence of a guardianship, may transfer trust and restricted personal property to a minor himself, if the secretary believes the minor competent to handle the property; or the Secretary may transfer such property to a State or county welfare agency, to a parent as natural guardian, or to a private trustee.

Indian Tribes: Terminal Legislation--Indian Lands: Individual Rights in Tribal Property: Annuity and Per Capita Payments--Indian Tribes: Fiscal Matters

Under Section 16 of the Act of August 13, 1954 (68 Stat. 718) per capita payments may be made from the capital reserve fund of the Klamath Tribe established by 50 Stat. 872.

Indian Tribes: Terminal Legislation

The Klamath Tribe will continue to exist subsequent to the date of the proclamation issued under Section 18 of the Act of August 13, 1954 (68 Stat. 718), and will continue as such for the purpose of exercising such rights and privileges as are reserved to it by that Act.

Memorandum

To:            Commissioner, Bureau of Indian Affairs
From:        Solicitor
Subject:     Legal interpretations of provisions of the Klamath Termination
                 Act, Public Law 587 (68 Stat. 718 et seq.)

    This replies to your memorandum of April 21, 1955, and numerous questions concerning interpretation of various provisions of Public Law 587 which have been raised by the following communications:

    (a) Letter of March 3, 1955, from the Area Director to the Regional Solicitor.
    (b) Letter of March 11, 1955, from Assistant Area Director Holm to Regional Solicitor.
   (c) Letter of March 18, 1955, from the Area Director to the Commissioner of Indian Affairs, which was referred to this office for answers to the legal questions therein contained.


 

1671

OPINIONS OF THE SOLICITOR

MAY 20, 1955

    These questions are answered so far as is now possible in the discussion which follows. Prior opinions have been incorporated where applicable.

Section 2(e)

    Section 2 (e) defines an adult as a member of the tribe who has attained the age of 21 years. The question asked is whether or not any exception can be implied for either married women or emancipated minors, which under Oregon laws are considered adults prior to obtaining the age of 21.

ANSWER: This is a federal matter and the federal act governs. A person to be an adult under the act must be 21 years of age, with no exceptions which would otherwise be permitted by state law. For the purpose of Public Law 587, a person under the age of 21, whether emancipated under state law or not, must be considered a minor.

Section 4

    1. It has been asked whether or not a member could alienate or transfer his interest in the tribal property after the transfer of the tribal property to a trustee, corporation, or other legal entity and before the date of the proclamation issued pursuant to section 18.

    ANSWER: No definite answer to this question can be given at this time, inasmuch as the answer will depend upon the terms and conditions contained in the plan pursuant to which the title to tribal property is conveyed to a trustee, corporation, or other legal entity, as provided in section 6 (a) of the act.

    2. Tribal members who raise livestock have and enjoy free-use grazing on tribal land for approximately 100 head of livestock pursuant to regulations contained in Title 25, Code of Federal Regulations. The question has been asked whether or not the Indian members of the tribe with cattle are still, under the act, entitled to free grazing privileges after publication of the final roll as provided by section 4, and if so, for what period?

    ANSWER: This question erroneously assumes that the tribal property becomes personal property after publication of the final roll, as provided for in section 4. This is not so. The tribal property remains tribal property and only the interest of the individual member therein becomes personalty. Therefore, the grazing regulations which relate to the use and management of the tribal range will continue to apply until such time as the tribal title is extinguished by sale, as provided in section 5 (a) (3) or the tribal property is conveyed to a trustee, corporation, or other legal entity in accordance with the plan prepared by the Management Specialists. In the latter event, the use of the tribal range will be governed by the terms and conditions of the plan pursuant to which transfer of the property is made to a trustee, corporation, or other legal entity.

Section 5(a)(2)

    1. Under date of November 4, 1954, in a Memorandum to the Commissioner of Indian Affairs, the Solicitor of the Department of the Interior answered a number of questions regarding the right, or absence of a right, of minors to withdraw from the tribe. The opinion is hereby reproduced in full:

    "Section 5 (a) provides that the Secretary shall enter into a contract with qualified management specialists who shall:

    " ' (2) give each adult member of the tribe, immediately after the appraisal of the tribal property, an opportunity to elect for himself, and, in the case of a head of a family, for the members of the family who are minors, to withdraw from the tribe and have his interest in tribal property converted into money and paid to him, or to remain in the tribe and participate in the tribal management plan to be prepared pursuant to paragraph (5) of this subsection;'

    "The specific questions raised and our answers thereto are stated below.

    "1. When the parents of a child are separated and the child is living with one of the parents, may that parent make the decision for the child to withdraw from the tribe?

    The answer is Yes. The concept of a head of a family is not a rigid one and may be applied by the Secretary in a reasonable manner.

    "2. When the parents of a child are separated, and the child is living with some third person, who may make the decision for the child to withdraw?

    The above quoted language sets out qualifications for any person who may make an election for a minor to withdraw. No question of law is involved. Who is the head of a minor's family and of what particular family a minor is a member are questions of fact which need to be considered in each case. Parenthood of a minor is not necessarily a requirement for the head of a family.

    "3. Where a child has had a judicially appointed guardian of his person and his property, may the guardian elect for the child to withdraw?

    Unless the guardian is otherwise qualified as an adult member and head of the family of the minor, he is in no position to elect for the child to withdraw. It should be noted that section 15 of the Act
 


 

1672

DEPARTMENT OF THE INTERIOR

MAY 20, 1955

requires the Secretary to protect the rights of members of the tribe who are minors by causing the appointment of guardians for such members in courts of competent jurisdiction or by such other means as he may deem adequate. The insertion of this section in the Act is to better provide for protection of the rights of members of the tribe who are minors, non compos mentis, or in the opinion of the Secretary in need of assistance in conducting their affairs; it does not create a right in any guardian now or hereafter appointed to elect for a minor member to withdraw from the tribe.

    "4. If a child is an orphan who is living in an institution, or who is living in any other place where he cannot be considered as a member of a family of an adult Klamath Indian, may anyone make the decision for him to withdraw?

    The answer is No, for the reason that the person who elects for a minor must be a member of the tribe.

    "5. May an adult member of the tribe who has judicially been deprived of control over his child make an election for his child to withdraw?

    The answer is No. Such a person can no longer be considered to be the head of the family.

    "6. If a parent is judicially declared to be non compos mentis, may he elect for himself and his child to withdraw?

    The answer is No.

    "7. May a member of the tribe who is under 21 years of age but who is self-supporting and emancipated from family controls, be considered as an adult for the purpose of making the decision to withdraw?

    Section 2 (e) of the statute defines an adult member of the tribe as one who has attained the age of 21 years. Therefore a member under 21, whether emancipated or not, must be considered a minor for the purpose of this Act. Most likely, if an emancipated, self-supporting minor desires to be withdrawn from the tribe, the fact of his self-support and emancipation would be withheld from notice if he could persuade the titular head of the family to elect for his withdrawal. On the other hand, if such a minor is opposed to withdrawal but the titular head of the family appears to be insisting on the withdrawal, the minor will bring to light the fact of his emancipation and self-support in order to defeat his being considered a member of that family. The intentions of the minor and the head of his family largely determine the facts subject, of course, to the control imposed by the common understanding of family relationships.

    "8. May an adult member of the tribe who is the head of a family make the decision to withdraw not only for himself and the children but also for his wife?

    Since each adult has the right to elect for himself, the head of the family has no right to withdraw for an adult wife. If the wife is a member of the tribe under 21 years of age, however, the husband may so elect."

    2. A question was asked whether or not an adult member of the tribe, even though incompetent, insane, or non compos mentis, could make an election to withdraw from the tribe.

    ANSWER: The answer is no, irrespective of whether the insanity or incompetency of the member has been judicially declared or not. If, however, an adult member, whose competency is in question, applies for withdrawal, the application should be suspended pending judicial inquiry which may be had pursuant to guardianship proceedings instituted under the laws of the State of Oregon.

    3. It has been asked whether or not a judicially appointed guardian for an adult member who is insane, incompetent, or non compos mentis, can make an election for him. 

    ANSWER: A guardian cannot make an election for an adult member. The act does not so provide.

Section 5(a)(3)

    1. It has been asked if fishing and hunting rights have an appraisable value which should be included in the sum to be paid to withdrawing members.

    ANSWER: No decision of which we are aware has held that the right to hunt and fish on the tribal lands is a property right which is vested in the individual member of the tribe. It is a right which the member may exercise in common with other members of the tribe. The right is inseparably connected with membership and when membership ceases, the right comes to an end. The right is not subject to transfer and is incapable of transmission by descent or devise. Accordingly, it has no appraisable value which can properly be included in the sum to be paid to withdrawing members.

Section 6(b)

    Question: What will be the situation if it is not possible to sell all the land to be disposed of by the deadline date of August 13, 1958?

    ANSWER: Section 6(b) states that it is the intention of Congress that all of the actions required by sections 5 and 6 of the act shall be completed at the earliest practicable time and in no event later than four years from the date of the act. It is considered that the fact makes it mandatory that the lands to be sold are sold within the four year period and there is no authority in the act for sales thereafter.
 


 

1673

OPINIONS OF THE SOLICITOR

MAY 20, 1955

Section 6(c)

    1. This section provides that members of a tribe who receive the money value of their respective interest in tribal property shall thereupon cease to be members of the tribe. The question was asked if members electing to withdraw could receive per capita payments as members before being paid off and receiving the full value of their interest in tribal property.

    After the appraisal is made, each specified member of the tribe shall be given an opportunity to elect to withdraw from the tribe or to remain therein. When that election closes, it becomes the duty of the Management Specialists by section 5(a) (3) to "determine and select the portion of the tribal property which if sold at the appraised value would provide sufficient funds to pay the members who elect to have their interests converted into money." In other words, it becomes the duty of the Management Specialists to set aside for sale that portion of assets which at appraised value equals the sum of all the withdrawing members' appraised interests in tribal assets. When the selection of such assets is made a partition results. Therefore, the withdrawing members will be entitled to receive all of the income from that property, including timber, until such property has actually been sold by the Management Specialists for the purpose of paying off the withdrawing members. They will not receive per capita payments from the remaining tribal property after the selection of assets to be sold.

    2. Question: How will the income of timber sales be handled subsequently to the time elections have been made by the members withdrawing? Since the timber sale contract obligation now in effect may be in either the portion which is to be sold or to remain in group ownership, must it be shared equally by all members? Should not the resources of such an area be appraised as cutover land so that the income can be equally distributed among all members?

    Since the withdrawing members are in legal effect the sole beneficiaries of the property selected and designated for sale by the Management Specialists pursuant to section 5 (3), the withdrawing members will be entitled to receive all of the income from that property, including timber, until such property has actually been sold by the Management Specialists for the purpose of paying off the withdrawing members.

    3. The question has been asked what happens when a member who has elected to withdraw inherits an interest of a member who has elected to remain in the tribal group or entity. Can the withdrawing member be a member of the tribal group and vote therein because of the inheritance from the remaining member?

    The answer to this question is no, because tribal membership is not inheritable. The withdrawing member may vote only in his own right as a member of the tribe and this right will continue until he receives the money value of his interest in the tribal property, at which time he ceases to be a member of the tribe. The extent to which non-members of the tribe who acquire interests in the tribal property by inheritance or otherwise may participate in the management of the tribal property by voting or otherwise after the tribal property has been transferred to a trustee, corporation, or other legal entity pursuant to section 5(a) (5) should, and no doubt will, be covered by the plan prepared pursuant to that section.

    4. Question: Are the members who elect to withdraw eligible to participate in tribal affairs until they cease to be members of the tribe, particularly in affairs that concern the group that remains?

    ANSWER: Yes, the members who elect to withdraw remain tribal members and may participate in tribal affairs to the same extent as any member of the tribe until said withdrawing member has been paid in full the money value of his interest, at which time and only at that time does he cease to be a member of the tribe.

    5. Question: Should a withdrawing member petition for a patent in fee for any trust lands or removal of restrictions covering restricted lands he might own?

    ANSWER: At a conference between the Office of the Solicitor and personnel of the Office of the Commissioner of Indian Affairs, in Washington, D.C., March 16, 1955, It was considered advisable for the withdrawing member, at the time of the election to withdraw, and as a part of said decision, to petition the Secretary of the Interior to forthwith, pursuant to the provisions of section 8 of Public Law 587, issue to said withdrawing member a patent in fee for any Indian trust lands or remove restrictions covering restricted lands he might now or hereafter hold.

Section 8(b)

    1. This section provides that the trust or restricted status of property is not removed four years after the date of the act with respect to subsurface rights. The Secretary is instructed to transfer said subsurface rights to one or more trustees designated by him for management for a period not less than 10 years. The Area Office asks whether or not this applies to current land sales.

    ANSWER: The section applies only to situations that exist at and after the date of the proclamation four years hence, and does not apply to situations prior thereto. A fee patent could issue from the Secretary on a present land sale. Each case must be
 


 

1674

DEPARTMENT OF THE INTERIOR

MAY 20, 1955

separately handled and separately submitted to the Secretary.

    2. Question: Do the subsurface rights referred to in section 8(b) include underground water?

    ANSWER: The term "subsurface rights" does not mean water rights. The term "water rights" is used elsewhere in the statute, and, therefore, when Congress uses the expression "subsurface rights" and does not mention or include "water rights," the term "subsurface rights" will be considered to be applicable only to minerals, oil and gas, and those matters commonly considered to be "subsurface rights."

Section 9(b)

    This section provides:

    "The laws of the several states, territories, possessions, and the District of Columbia with respect to the probate of wills, the determination of heirs, and the administration of decedents' estates shall apply to the individual property of members of the tribe who die six months or more after the date of this Act."

    1. Question: Will the state probate court have jurisdiction to order the sale of realty now held in trust in connection with the administration of an estate?

    2. Question: Must the Superintendent release all personalty (payments in lieu of allotment, etc.) to the jurisdiction of the local probate court?

    ANSWER: Section 9(b) above makes no exception with reference to trust or restricted property or any classification of such trust or restricted property, and it is considered mandatory that all property of all kinds should, without exception, be administered by the state court under state law. Some of the state statutes and laws applicable to this matter are as follows:

O.R.S.
115.430 Bond of Executor or Administrator. *     *     * sum not less than double the probable value of the personal property of the estate, plus double the probable value of the annual rents and profits of and from the real property of the estate.

116.105 Possession and control of property. The  executor or administrator is entitled to the possession and control of the property of the deceased, both real and personal, and to receive the rents and profits thereof until the administration is complete or the same is surrendered to the heirs or devises by order of the court or judge thereof; but where any such property is in the possession of a third person by virtue of a valid subsisting lease or bailment, the possession and control of the executor or administrator is subordinate to the right of the lessee or bailee. During the time the property is in the possession or control of the executor or administrator, it is his duty to keep the same in repair and preserve it from loss or decay as far as possible.

116.305 Proceedings in case of refusal to disclose property. Whenever it appears probable from an affidavit of an executor, administrator, heir or other person interested in the estate, that any person has concealed or in any way secreted or disposed of any property of the estate or any writing relating or pertaining thereto, or that any person has knowledge of any such property or writing being so concealed, secreted or disposed of, and refuses to disclose the same to the executor or administrator, the court or judge thereof, upon the application of the executor or administrator, may cite such person to appear and answer under oath concerning the matter charged.

116.405 Inventory of estate; when and how made. An executor or administrator shall, within one month from the date of his appoint, or, if necessary, such further time as the court or judge thereof may allow, make and file with the clerk an inventory, verified by his own oath, of all the real and personal property of the deceased which shall come to his possession or knowledge.

O.R.S.
116.410 Money of deceased and debts due deceased. The inventory shall contain an account of all money belonging to the deceased, or a statement that none has come to the possession or knowledge of the executor or administrator; also a statement of all debts due the deceased, the written evidence thereof, the security therefore, if any exists, specifying the name of each debtor, the date of each written evidence of debt, and security therefore, the sum originally payable, the endorsements thereon, if any, and their dates, and the sum appearing then to be due there on.

116.705 Application for order for sale; citation to heirs. No sale of the property of an estate is valid unless made by order of the court or judge thereof or as provided in ORS 116.825 and 116.830. The application for
 


 

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OPINIONS OF THE SOLICITOR

MAY 20, 1955

an order of sale shall be by the petition of the executor or administrator, and in case of real property, a citation to the heirs and others interested in such property.

116.710 Application to sell personalty; terms of sale. Upon the filing of the inventory, or at the next term of the court, the executor or administrator may make an application to sell the personal property of the estate for the purpose of paying the funeral charges, expenses of administration, the claims, if any, against the estate and for the purposes of distribution; and the court or judge shall grant such order, if in his judgment it is for the best interest of the estate, and shall direct and prescribe the terms of sale upon which the property shall be sold, whether for cash or on credit.

116.755 Order to sell; undertaking of executor or administrator. (1) If, upon the hearing, the court finds that it is necessary that the real property, or any portion thereof, be sold, it shall make the order accordingly, and prescribe the terms thereof, whether of cash or credit, or both. If the court finds that such property cannot be divided without probable injury and loss to the estate it may order that it, or any specific lot or portion thereof, be sold wholly, whether otherwise necessary or not.

    The executor or administrator has a right to possession of the deceased's property for the purposes of administration (Humphreys v. Taylor, 5 Ore. 260). The real estate is charge able with the payment of debts, funeral charges and the expenses of administration, the personal estate being primarily chargeable (Worley v. Taylor, 21 Ore. 589). It makes no difference whether decedent made a will or not or what the will contains. (ibid.) No one is authorized to make application for the sale of real property or to make sale when ordered except the administrator or executor (Levy v. Riley, 4 Ore. 392).

    Under the laws of the State of Oregon, therefore, an executor or administrator is entitled to the possession and control of all of the property of the deceased, both real and personal, and to receive the rents and profits thereof until the administration is completed or the same is distributed to the heirs or devisees by order of the court. The property is subject to inventory in full by the executor or administrator, and his bond is set by the court upon the full value of the estate. The property may be sold by the court to pay claims and probate expenses.

    It is the opinion of this office that, therefore, where there is trust and restricted property of a deceased member of the Klamath Tribe, such trust and restricted status is not removed from the property but only relaxed for the purpose of administration by the state court under state law. The state court takes possession of all of the property for the purpose of administration thereof, all of the property is inventoried as the estate, and the court can fully administer and control the property to the extent necessary in order to determine the heirs and probate the estate. If the court orders a sale of the property in order to pay claims and probate expenses, the purchaser, whether Indian or non-Indian, takes a fee simple title to the property sold. The purchaser, whether Indian or non-Indian, purchases as a state citizen under state law, and, under state law, the court is authorized to sell the land and convey a fee title to the property sold. If the court, instead of selling the property, distributes the property to the heirs and thereby such distribution is made to an Indian, the Indian acquires the property with the trust and restricted status thereon, unless the status has been removed by operation of the act four years after date of enactment. If the distributee or devisee is a non-Indian, the trust and restricted status is removed.

    It is also the opinion of this office, that if, during probate, there is a trust or restricted allotment of land to be administered by the state court and the court decides that it would be advantageous to cause said allotment to be leased during the period of probate, it must be leased in accordance with federal rules and regulations. The situation is comparable to that where the estate has a private trust thereon at the time of the owner's death, the federal rules and regulations in the subject matter being comparable to such limitations and terms of a private trust upon an estate being probated by a state court. The court would be limited by the terms of the private trust; in the instant case it is limited by the provisions of the federal trust and restricted status to compliance with federal rules and regulations pertaining to such status. The court is not prevented from ordering the property to be leased, but the executor or administrator must proceed to obtain the consent and approval of the Secretary of the Interior or his designated representative.

    It is further the opinion of this office, that under Oregon laws and if deemed necessary by the probate court as a part of the probate procedure to protect the interest of a minor, an incompetent, or a person non compos mentis, the state court could appoint a guardian ad litem for such person.


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