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1676

DEPARTMENT OF THE INTERIOR

MAY 20, 1955

    Where the probate court orders a sale of the property, the United States is a necessary party to the proceedings therefore where the sale concerns trust and restricted Indian lands. In the case of United States v. Hellard, 322 U.S. 363, the Supreme Court of the United States, dealing with comparable legislation in Oklahoma conferring jurisdiction in state courts, said: "The act in question purports to be no more than a jurisdictional statute. It fails to say that the United States is not a necessary party *     *     * we must read the act in the light of the history of restricted lands. That history shows that the United States has long been considered a necessary party to such proceedings in view of the governmental interests which are at stake. We will not infer from a mere grant of jurisdiction to a state or federal court to adjudicate claims to restricted lands and order their sale or other distribution that Congress dispensed with that long standing requirement." The United States must be served with the petition for sale, and accorded an opportunity to be heard to consent or object to the sale. It is the opinion of this office, that such service should be made upon the United States Attorney for the District of Oregon and also upon the Attorney General of the United States.

    Section 9 of the act expressly repealed the provisions of 25 U.S.C. 555, and hence the heirs or devisees need not be qualified by at least 1/16th degree Indian blood of the Klamath Tribe as formerly required. By such repeal Indian heirs or devisees can be without any Indian blood of said tribe, can be a member of another tribe, or can be a non-Indian.

    Old estates of persons who died prior to February 13, 1955, will be probated and closed by the federal Examiner of Inheritance and not by state court. The said examiner will not, however, probate the estates of persons who have died after February 13, 1955. The probate proceedings must be initiated by the procedure and by the person or persons prescribed eligible therefore in the Oregon statutes.

Section 12

    Question: Does the word "Tribe" in the last line of the section refer to the "trustee, corporation, or other legal entity" by which the individual holdings of the members who elect to remain are held?

    ANSWER: Although the thought behind this question is none too clear, it may be pointed out that the tribe continues to exist as a tribe even though some of its members elect to withdraw under section 5 (a) (2). The membership of the tribe is merely diminished. The loans transferred to the tribe for collection by section 12 are assets of the tribe. Such assets, along with other tribal property, would be subject to management by the "trustee, corporation, or other legal entity" selected under the plan proposed and adopted pursuant to the provisions of section 5 (a) (5) of the act.

Section 14(a)

    Question: Can a non-Indian who desires to purchase potential irrigable Indian land be given assurance that he will receive a water right with the purchase of such land? Do the Indian's water rights "run with the land" to a non-Indian purchaser?

    ANSWER: It is assumed that these questions relate to tribal lands that will be sold by the Management Specialists under authority of section 5(a) (3) for the purpose of making payment to withdrawing members of the cash value of their interests in tribal property. Section 14(a) provides that nothing in the act shall abrogate any water rights of the tribe and the individual members, and defers the application of the laws of Oregon with respect to abandonment of water rights for a period of 15 years after the date of the proclamation issued pursuant to section 18 of the act. Except for deferment of the application of Oregon law with respect to abandonment, section 14(a) is merely a saving clause which operates to preserve whatever water rights the tribe and individual members may have under the law in force on the date of the enactment of the act.

    The Klamath Reservation was established by the treaty of October 14, 1864 (16 Stat. 707). Under the decisions of the United States Supreme Court in Winters v. United States, 207 U.S. 564, United States v. Powers, 305 U.S. 527, and other related cases, the establishment of the reservation carried with it an implied reservation of the right, with a priority corresponding to the date of the establishment of the reservation, to use water from the streams flowing through or bordering on the reservation for the purpose of irrigating the reservation lands. The question of how far and to what extent this tribal water right attaches to and passes with a conveyance of the tribal lands to non-Indians cannot be determined from the present record, which contains no factual statement whatsoever on which such a determination could be made. The specific acreage to be conveyed must be known, together with full information concerning its irrigability and the extent to which it has been developed for irrigation purposes. It would also be desirable to have a complete picture of water development on the reservation, including information as to the acreage which is under irrigation, the acreage which is potentially irrigable, the non irrigable acreage, and the sources and quantities of available water. Upon presentation of these facts, further consideration will be given to this matter.


 

1677

OPINIONS OF THE SOLICITOR

MAY 20, 1955

Section 14(b)

    1. Questions: Will there be a descendency of tribal fishing rights assured by the Treaty of 1864 and reserved under section 14(b) of the act? Are those rights limited to members living on August 13, 1958? Do heirs continue to enjoy these rights? Do the rights continue for those who elect to withdraw as well as those who elect to or do remain? Do those who elect to withdraw still retain fishing rights on the lands of those remaining in the tribal group?

    ANSWERS: The fishing rights secured to the Indians by the treaty of 1864 and preserved by section 14(b) of the act are neither alienable nor descendible. Members who elect to withdraw cease to be members when they are paid in full for the value of their tribal interests and their fishing rights terminate with the termination of membership. Until fully paid, the withdrawing member is still a member and emitted to exercise the fishing right in common with other members. As the membership rolls closed as of midnight, August 13, 1954, living members whose names appear on that roll may exercise fishing tights. An heir may exercise the right only if the heir is a member.

    2. Do the fishing rights of those who elect to remain continue on the lands which are now in Indian ownership but which will be sold to pay off withdrawing members? Are the fishing rights exclusive in the area retained as such pertains to the remaining members?

    ANSWER: In the opinion of this office the fishing rights of the members do not continue with respect to the lands which are sold because such sold land is no longer retained tribal land or a part of the Indian reservation. The Klamath Tribe was given only exclusive fishing rights within the reservation. In the opinion of this office, it is considered that it was the intent of Congress that the land which is sold should be conveyed in fee simple and not be impressed with an encumbrance in the nature of fishing rights in favor of remaining .tribal members.

    Relative to the exclusive nature of the fishing rights of the remaining members, section 14(b) provides that nothing in the act shall abrogate any fishing rights or privileges of the tribe or the members thereof enjoyed under federal treaty. The members of the tribe enjoy exclusive fishing rights under a federal treaty. Public Law 280, 83rd Congress, 1st Session, does not apply to the situation, as it expressly excepts from state jurisdiction and control rights acquired by federal treaty. The remaining group of members is mentioned repeatedly in the act as a "tribe." (See section 12 where remaining group is referred to as a "tribe"; section 5 (5) mentions the management of tribal property by the corporation and mentions the interest of "members who remain in the tribe"; section 12 provides that loans are transferred to "the tribe" for collection.) It is the opinion of this office that, pursuant to the above provisions of the act, the remaining members, designated as a "tribe," possess, in the area remaining, exclusive fishing rights pursuant to the provisions of the treaty with the United States.

Section 15

    Section 15 provides:

    "Prior to the transfer of title to, or the removal of restrictions from, property in accordance with the provisions of this act, the Secretary shall protect 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, 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 Area Office and members of the Oregon State Bar have asked several questions pertaining to this section, as follows:

    1. Whose responsibility is it to cause the appointment of guardians in proper cases?

    2. Is the Secretary to be the moving party for the appointment of a guardian?
        a. If so, by what guide lines or standards does he approve of the guardian
            and the guardianship proceedings?

    3. What is meant by the language of the section "by such other means as he may deem adequate"?

    ANSWERS: Section 15 obviously anticipates the date on which Federal supervision and control will be terminated over the property of persons who are under the legal disability of minority or unsoundness of mind or who, in the judgment of the Secretary, are otherwise in need of assistance, by requiring the Secretary to cause the appointment of guardians in courts of competent jurisdiction or by taking such other means as he may deem to be adequate for their protection.

    The appointment of the guardian will, of course, be controlled by the laws of the State of Oregon. Since the Secretary may employ other means for protection of the incompetent member, he is not required to seek the appointment of a guardian


 

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DEPARTMENT OF THE INTERIOR

MAY 20, 1955

guardianship, he may, of course, recognize the guardian and deliver the property of the ward to him. As the sole responsibility for the appointment of a guardian resides in the court, approval of the appointment of the guardian by the Secretary would not be necessary as a matter of law. However, no impropriety is seen in the appearance of the Secretary through an authorized representative in a guardianship proceeding for the purpose of assisting the court in making a proper appointment. Although it would be preferable in seeking the appointment of a guardian for the petition to be made by some member of the immediate family of the ward, I find nothing in the Oregon statutes that would preclude the Secretary, acting through an authorized representative, from filing such a petition or that would prevent the court from appointing a guardian pursuant to such a petition. Doubtless appropriate procedures with respect to these matters could be worked out in cooperation and consultation with the court, and that course of action is suggested for immediate consideration by the representatives of the Bureau of Indian Affairs.

    "By such other means as he may deem adequate" has been interpreted by the Office of the Solicitor to include a transfer of the trust and restricted personal property without a guardianship to the minor himself if the Secretary believes the minor competent to handle the money, to a state or county welfare agency or institution, delivery to a parent as the natural guardian of the minor if the parent is considered able to look after the child's interest, or the establishment of a private trust and the delivery of the money to the private trustee.

Section 16

    A question has been asked relative to per capita payments from the capital reserve fund of the Klamath Indians, under section 16 of Public Law 587. In an opinion rendered by the Office of the Regional Solicitor on February 3, 1955, it was stated:

    "The capital reserve fund is, by 50 Stat. 872, established from the unobligated tribal funds on deposit in the Treasury of the United States. Section 16 of Public Law 587 (68 Stat. 722) provides:

    " 'Pending the completion of the property dispositions provided for in this Act, the funds now on deposit, or hereafter deposited, in the United States Treasury to the credit of the Tribe shall be available for advance to the Tribe, or for expenditure, for such purposes as may be designated by the governing body of the Tribe and approved by the Secretary.'

    "This Congressional enactment in 68 Stat. 722 does not repeal 50 Stat. 872 relative to the creation of the capital reserve fund, but being a broad authority sufficient to include such fund, it is our opinion that it modifies 50 Stat. 872 in that if the Tribe so desires and the Secretary so approves, the capital reserve fund need not be held in the Treasury of the United States.

    "We therefore conclude that the Secretary of the Interior has the authority, under Section 16 of Public Law 587, to approve a Tribal Resolution for a per capita payment, and, if such were approved, that such payment can be legally made from the capital reserve fund without any further Congressional enactment."

Section 18

    Question: Are the Klamaths disbanded as a tribe upon completion of the provisions of the act and publication of the proclamation provided for in this section?

    ANSWER: Section 14 (a) of the act provides that the laws of Oregon with respect to the abandonment of water rights by non-use shall not apply to the tribe and its members until 15 years after the date of the proclamation. This language indicates that the tribe will continue in existence beyond the date of the proclamation. The remaining group of members who do not elect to withdraw are repeatedly mentioned in the act as a "tribe." (See section 12 of the act.) Likewise, in section 14 (b) of the act it is provided that nothing in the act shall abrogate any fishing rights or privileges of the tribe or the members thereof enjoyed under federal treaty. If nothing in the act can abrogate such fishing rights or privileges of the tribe, then it would appear obvious that the proclamation date would not abrogate such rights or privileges of the tribe, and that the tribe would continue as such for the purpose of exercising such rights and privileges.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

NON-DISCRIMINATION BY GOVERNMENT
CONTRACTORS

M-36285                                                                                                         June 15, 1955.

Contracts: Discrimination--Executive Orders and Proclamations--Indians: Receipt of Government Benefits--Labor: Non-Discrimination



1679                                OPINIONS OF THE SOLICITOR                         JUNE 15, 1955

Other than in contracts for the construction of projects undertaken pursuant to the Navajo-Hopi Rehabilitation Act of April 19, 1950 (64 Stat. 44, 45; 25 U.S.C. 633), the provisions in construction contracts executed by officers of the Bureau of Indian Affairs which require contractors to afford Indians a preference right to employment is in conflict with the non-discrimination requirement of E.O. 10557 (19 F.R. 5655; September 3, 1954) and should be discontinued.

Memorandum

To:            Commissioner, Bureau of Indian Affairs
                 Attention: Assistant Commissioner, Administration
From:        Office of the Solicitor
Subject:     Indian preference employment provision included
                 in construction contracts

    Reference is made to the memorandum of July 26, 1954, from the Acting Assistant Commissioner, Administration, concerning the legality and continued use of the following provisions in construction contracts executed by the Bureau of Indian Affairs:

    "EMPLOYMENT SERVICE: The contractor, in the employment of all labor required on this project, shall give preference to qualified Indians selected from lists provided by the Project Engineer, subject to the following conditions:

    "a. The contractor shall be solely responsible for determining the qualifications of any Indians certified to him by the Project Engineer for preference in employment.
    "b. In the event qualified Indians are not supplied within 48 hours (Sundays and holidays excluded) after request is filed, the contractor may then obtain the labor elsewhere.
    "c. Foremen in each branch of work, general supervisors, and clerks, may be obtained without regard to the above conditions.

    "The contractor shall maintain a roster of all men employed at the site. The roster shall show the full name, occupation, and legal address of each man. This roster shall be available for inspection in the Project Engineer's office at all times."

    E.O. 10557 (19 F.R. 5655; September 3, 1954) provides, with certain exceptions not pertinent here, that the contracting agencies of the Government shall include in all contracts executed by them the following provision:

    "In connection with the performance of work under this contract, the contractor agrees not to discriminate against any employee or applicant for employment because of race, religion, color, or national origin. The aforesaid provision shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post here after in conspicuous places, available for employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of the non-discrimination clause.

    "The contractor further agrees to insert the foregoing provision in all subcontracts here under, except subcontracts for standard commercial supplies or raw materials."

    It is my opinion that E.O. 10557 prohibits discrimination both in favor of, as well as against, minority racial groups, such as the Indian population, and that, with the exception noted below, the use of the above "Employment Service" provision in the Bureau's construction contracts is in conflict with E.O. 10557 and should therefore be discontinued.

    The exception to which I refer is contained in Section 3 of the Navajo-Hopi Rehabilitation Act of April 19, 1950 (64 Stat. 44, 45; 25 U.S.C. 633), which provides that:

    "Navajo and Hopi Indians shall be given, whenever practicable, preference in employment on all projects undertaken pursuant to this Act *     *     *."

In view of the purpose of the Rehabilitation Act and the magnitude of the projects authorized by Section 1 thereof, I believe it only reasonable to conclude that Congress, when referring to "all projects undertaken pursuant to this Act," intended to include construction projects performed under contract as well as force account. I am informally advised by your Bureau that approximately 75% of all such construction projects currently undertaken with funds appropriated pursuant to the authorization of this Act are being performed under contract. This interpretation of the Rehabilitation Act is also supported by the general rule that "statutes passed for the benefit of de-


 

1680

DEPARTMENT OF THE INTERIOR

JUNE 15, 1955

pendent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians." Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89 (1918).

    With respect to E.O. 10557, I would not assume that the President, in promulgating that Order, intended to relieve your Bureau of the duty imposed by Congress of requiring contractors to give Navajo and Hopi Indians the preference in employment mentioned in Section 3 of the Rehabilitation Act. Therefore, I believe that your Bureau may continue to include the "Employment Service" provision in contracts for the construction of projects pursuant to the Rehabilitation Act, but provided that its language is modified so as to limit the class of Indians mentioned therein to members of the Navajo and Hopi Tribes. In addition, the non-discrimination provision set forth in E.O. 10557 must also be included in such contracts, but as this provision will in part conflict with the "Employment Service" provision, I suggest that the latter provision be further modified, for purposes of contractual clarity, by adding a concluding sentence as follows:

    "Except as required by this paragraph, the contractor shall in all other respects comply with the requirements of clause ------."

In the blank should be inserted the number of the clause in the contract containing the standard non-discrimination provision.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

MENOMINEE PER CAPITA PAYMENTS

M-36288                                                                                                         June 23, 1955.

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

The requirement of the Act of June 15, 1934 (48 Stat. 964), that a member of the Menominee Tribe be living on the last day of the fiscal year in order that his estate share in a per capita payment out of stumpage earned during that fiscal year, has been repealed by Section 3 of the Act of June 17, 1954 (68 Stat. 250) with respect to per capitas payable from stumpage earned during a fiscal year ending on a date subsequent to June 17, 1954, since the 1954 Act vested in each member on the final roll an individual, undivided share in the property of the Tribe.

Memorandum

To:            Regional Solicitor, Denver, Colorado
From:        Solicitor
Subject:     Per capita payments

    Reference is made to the memorandum dated May 11, 1955, from your office, with which was enclosed a copy of a letter dated May 3, 1955, from Mr. B. O. Angell, concerning the matter of per capita payments to the estates of deceased members of the Menominee Indian Tribe.

    Section 4 of the Act of March 28, 1908 (35 Stat. 51), as amended by the Act of June 15, 1934 (48 Stat. 964) provides in part, that:

    "The Secretary of the Interior shall at the end of each fiscal year ascertain and fix the fair market stumpage value of the fully matured and ripened green timber cut on said reservation during the fiscal year and shall during the succeeding fiscal year pay said amount in equal shares to each member of the Menominee Tribe of Indians, Living and on the tribal roils, on the last day of said fiscal year *     *     *." (Emphasis supplied.)

    Section 3 of the Act of June 17, 1954 (68 Stat. 250) provides that:

    "At midnight of the date of enactment of this Act the roll of the tribe maintained pursuant to the Act of June 15, 1934 (48 Stat. 965), as amended by the Act of July 14, 1939 (53 Stat. 1003), shall be closed and no child born thereafter shall be eligible for enrollment *     *     *."

Section 3 also authorizes appeals to the Secretary by persons whose applications for enrollment are not approved by the tribe and further provides that:

    "When the Secretary has made decisions on all appeals, he shall issue and publish in the Federal Register a Proclamation of Final Closure of the roll of the tribe and the final roll of the members. Effective upon the date of such proclamation, the rights or beneficial interests of each person whose name appears on the roll shall constitute personal property and shall be evidenced by a certificate of beneficial interest which shall be issued by the tribe. Such interests shall be distributable in accordance with the laws of the State of Wisconsin. Such interests shall be alienable only

 


 

1681

OPINIONS OF THE SOLICITOR

JUNE 23, 1955

in accordance with such regulations as may be adapted by the tribe."

By letter to the Minneapolis Area Director dated December 9, 1954, the Commissioner authorized a per capita payment from tribal funds pursuant to the 1934 Act quoted above. The Commissioner's letter, however, instructed the Area Director to withhold the "possible shares of deceased members" pending advice from this Office.

    It is my opinion that the effect of said Section 3 was to vest, as of June 17, 1954, in each member on the final roll prepared pursuant to said Section, an individual, undivided share in the property of the Tribe, and thus to allow the member's estate to succeed to such share in the event of the member's death subsequent to June 17, 1954. Section 3, by vesting this right in each member on the final roll, is thus clearly inconsistent with the requirement in the 1934 Act that the member be living on the last day of the fiscal year, and consequently it is my opinion that the 1954 Act has repealed that requirement with respect to per capita payments authorized by the 1934 Act and payable from stumpage earned during a fiscal year ending on a date subsequent to June 17, 1954.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

OCCUPANCY RIGHTS ON NAVAJO TRIBAL
LAND GRANTED TO PRESBYTERIAN CHURCH
BY GOVERNMENT--DISCUSSION OF TREATY
AND SUBSEQUENT CONGRESSIONAL ACTS

                                                                                                                        June 23, 1955.

The Honorable,
The Attorney General

SIR:

    On May 6, 1919, the Assistant Secretary of the Interior set apart to the Presbytery of Northern Arizona 32.5 acres of land of the Navajo Indian Reservation at Chin Lee, Arizona, for temporary use and occupancy for mission purposes. Shortly thereafter, a question arose concerning the authority of the Secretary of the Interior to permit such use of the tribal land in view of Article 2 of the Navajo Treaty of June 1, 1868 (15 Stat. 667), which provides that:

    "*     *     * the United States agrees that no persons except those herein so authorized to do, and except such officers, soldiers, agents, and employees of the Government, or of the Indians, as may be authorized to enter upon Indian reservations in discharge of duties imposed by law, or the orders of the President, shall ever be permitted to pass over, settle upon, or reside in, the territory described in this article."

By letter dated June 14, 1921 (32 Op. Atty. Gen. 586) the Attorney General concluded that this provision of the Treaty did not limit the Secretary's authority to set apart the land for this purpose. The Presbytery of Northern Arizona subsequently transferred its occupancy rights to this tract to the Board of National Missions of the Presbyterian Church, and on November 3, 1931, the First Assistant Secretary of the Interior approved the transfer of said occupancy rights.

    The Board of National Missions of the Presbyterian Church has now requested that this Department issue to it a patent in fee to this 32.5 acre tract, pursuant to section 3 of the Act of September 21, 1922 (42 Stat. 994, 995; 25 U.S.C. 280) which provides:

    "That the Secretary of the Interior is authorized and directed to issue a patent to the duly authorized missionary board, or other proper authority, of any religious organization engaged in mission or school work on any Indian reservation for such lands thereon as have been heretofore set apart to and are now being actually and beneficially used and occupied by such organization solely for mission or school purposes, the area so patented to not exceed one hundred and sixty acres to any one organization at any station: Provided, That such patent shall provide that when no longer used for mission or school purposes said lands shall revert to the Indian owners."

Objection to the issuance of this patent has been raised by the Tribe's attorney, on the ground that such action is prohibited by Article 10 of the Treaty of 1868, above, which provides that:

    "No future treaty for the cession of any portion or part of the reservation herein described, which may be held in common, shall be of any validity or force against said Indians unless agreed to and executed by at least three-fourths of all the adult male Indians occupying or interested in the same *     *     * ."

Consent to the proposed patent has not been given by three-fourths of the adult male Indians of the Navajo Tribe nor by the tribal governing body.
 


 

1682

DEPARTMENT OF THE INTERIOR

JUNE 23, 1955

The Commissioner of Indian Affairs has requested our opinion on the legal propriety of the issuance of the requested patent in these circumstances.

    The 1922 Act, above, does not require, as a condition for the issuance of a patent thereunder, either that the consent of the Indians be obtained or that monetary compensation be paid them. Moreover, the Secretary does not appear to have any discretion to decline to issue the patent if it is shown that the religious organization has satisfied the requirements set forth in the Act, since upon such showing he is both "authorized and directed" to issue the patent. Furthermore, no Indian tribe is excepted from the provisions of this Act, and by its terms it operates with respect to land set apart "on any Indian reservation." (Emphasis supplied.) It is well settled that Congress has the power to abrogate provisions of an Indian treaty. Lone Wolf v. Hitchcock, 187 U.S. 553. Accordingly, I am prepared to advise the Commissioner of Indian Affairs that, in the circumstances, the patent which has been requested in this case should be issued, and notwithstanding the provisions of Article 10 of the 1868 Treaty. I do not know, however, whether your Department, in defending the United States against claims being asserted by the Navajo Tribe or other Indian tribes pursuant to the Indian Claims Commission Act of August 13, 1946 (60 Stat. 1049; 25 U.S.C. 70), has had occasion to arrive at an interpretation of the 1922 Act in circumstances analogous to those here presented. As I do not wish to issue an opinion which might in any way interfere with your litigation of any of these pending claims, I should appreciate your advising this Office whether your Department has any objection to our advising the Commissioner of Indian Affairs of our foregoing interpretation of the 1922 Act.

    Your early consideration of this question will be appreciated.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

RESERVATION OF MINERALS IN
ALLOTTED LAND TO TRIBE--
FORT BELKNAP RESERVATION

M-36291                                                                                                           July 11, 1955.

Indian Lands: Allotments: Patents

In issuing trust patents for allotments under the Act of March 3, 1921 (41 Stat. 1455), the Department reasonably construed Sections 4 and 6 as requiring a mineral reservation to the tribe only when the allotted lands were classified as mineral in character.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Minerals reserved to the Font Belknap Tribe under the
                 Fort Belknap Allotment Act of March 3, 1921 (41 Stat. 1355)

    You have requested my opinion whether the Act of March 3, 1921, which provided for the allotment of land on the Fort Belknap Reservation required in Section 6 that all allotments contain a reservation of minerals to the tribe or whether under Section 4 minerals were to be reserved to the tribe only when allotments covered land which was classified as mineral.

    The Secretary approved the schedule of allotments and the lands were classified as to their mineral character by the Geological Survey. Allotment patents for lands classified as mineral contained a reservation of the minerals under the Act of March 3, 1921. Allotment patents for lands classified as non-mineral were issued to the allottees without a mineral reservation to the tribe.

    The approval of the allotment schedule by the Secretary on October 3, 1925, was silent with respect to minerals, and there has been found nothing in the legislative history of the Act which would give definite indication that the minerals were required to be reserved in all the allotments regardless of the mineral character of the land. The intention of Congress must be sought then in the provisions of the Act itself.

    Section 4, after providing that prior to allotment the Geological Survey should make a survey of the reservation lands for the purpose of determining their mineral character, authorizes the allotment of lands classified as mineral but with the condition that such mineral shall remain tribal property. Sec. 6 of the Act provides that all the minerals, including oil and gas, on any of the lands granted or to be allotted thereunder are reserved to the tribe for a period of 50 years from the date of the Act. At the expiration of such period, or as it may be extended by the Congress, the minerals are to become the property of the allottees or their heirs. Under a well-established rule of statutory construction the two sections must be construed together when that would remove uncertainty and make their provisions harmonious. Sec. 4 apparently was designed to limit the mineral reservation in allotted lands to those which were classified as mineral. Seemingly, the provision for the classification of the lands as to their
 


 

1683

OPINIONS OF THE SOLICITOR

JULY 25, 1955

mineral character was to serve that purpose. Consistent with this, Sec. 6 defined the scope and duration of the minerals to be reserved under Sec. 4 in allotments of land classified as mineral and in addition reserved minerals to the tribe in other lands granted by the Act. This appears to have been the view taken by the Department at the time of allotment since the patents which were issued for lands classified as mineral contained a mineral reservation to the tribe, and allotment patents for lands that were not found to be mineral in character were issued without a mineral reservation. For the reasons stated above, this practical interpretation of the statute is not unreasonable and should not be disturbed where it has remained unchallenged for a period of nearly thirty years.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

AUTHORITY TO MANAGE AND DISPOSE OF
THE SAN CARLOS POWER SYSTEM

62 I.D. 284

M-36296                                                                                                         July 25, 1955.

Indian Lands: Power--Power: Development and Sale--Secretary of the Interior

Where the Congress has clothed the Secretary of the Interior with authority to manage and operate an electric power system, that authority may not be transferred to a private utility or independent board without a clear indication on the part of Congress that such action may be taken.

Indian Lands: Power--Power: Development and Sale--Secretary of the Interior

Officers and employees of the United States are without authority to sell or lease property belonging to the United States unless specifically authorized by the Congress to do so.

Indian Lands: Power--Power: Development and Sale--Secretary of the Interior

An opening agreement between the Secretary of the Interior and private utilities defining the areas to be served by each may properly be entered into where the relevant statutes contain no prohibition against such an agreement.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Authority to manage and dispose of the San Carlos power system

    At the suggestion of Assistant Secretary Lewis you have requested my opinion on certain questions relating to the management and disposition of the San Carlos power system. These questions have arisen, it appears, in connection with certain proposals which have been submitted with respect to the operation and management of the power system. One of these proposals involves an offer by a private utility to acquire the power system by purchase or lease. Under another proposal, a board of equal representation by Indian and non-Indian landowners would be formed to take over the operation and management of the power system. The particular questions raised, upon which my advice is requested, are:

    1. Under existing law who is now clothed with the authority to manage and operate the power system, including the regulation of rates?
    2. May that authority be transferred to a private utility or to an equal representation board such as that mentioned above?
    3. Is there authority under existing law to sell or lease the power system?
    4. Is a territorial agreement relating to service areas permissible under existing law, and, if so, who would be required to sign such an agreement and who would be required to approve the agreement?

    The San Carlos power system became necessary as the result of the construction of the San Carlos Indian irrigation project. The main structure of the San Carlos Indian irrigation project, the Coolidge Dam, was authorized by the act of June 7, 1924 (43 Stat. 475, 476). Section 1 of this act authorized the Secretary of the Interior, through the Indian Service, to construct a dam across the canyon of the Gila River near San Carlos, Arizona, as a part of the San Carlos irrigation project for the purpose, first, of providing water for the irrigation of lands allotted to Pima Indians on the Gila River Reservation, Arizona, then without an adequate supply of water, and, second, for the irrigation of such other lands in public or private ownership as, in the opinion of said Secretary, can be served with water impounded by the dam without diminishing the supply necessary for the Indian lands.
 


 

1684

DEPARTMENT OF THE INTERIOR

JULY 25, 1955

    Pursuant to the authority contained in this act, the San Carlos Indian irrigation project was formed. The nucleus of the project, previously authorized by the act of May 18, 1916 (39 Stat. 123, 130), and such additional land in the Gila River Indian Reservation and public and privately owned lands outside of the reservation to bring the total area of the project to 100,000 acres, one-half of which area is within the Gila River Indian Reservation.

    The act of June 7, 1924, did not authorize power development at the Coolidge Dam. The reservoir created by the dam had a capacity of 1,200,000 acre-feet of water. Based on the then available water data extending over approximately 35 years, it was estimated that the reservoir would store sufficient water for the irrigation of 80,000 acres of the project lands. The remaining 20,000 acres of the project were to receive its water from the San Pedro River, return flow and underground pumped water. In order to provide electric power for pumping purposes, and for the sale of excess power, the dam was planned to provide for hydroelectric development. This hydroelectric development was authorized by Congress on March 7, 1928 (45 Stat. 200, 210). This act authorized the Secretary of the Interior, in addition to appropriating the funds for construction purposes pursuant to the act of June 7, 1924, supra, to incur obligations and enter into contracts for the development of electric power at the Coolidge Dam as an incident to the use of the Coolidge Reservoir for irrigation, and such action was deemed to be a contractual obligation of the Federal Government for the payment of the cost thereof, with the proviso that no such obligation

    "shall be incurred or contract entered into until a contract satisfactory to the Secretary of the Interior shall have been executed by the Florence Casa-Grande Water Users' Association1 providing for payment of the cost of construction of said power plant as a part of the cost of the said project and for furnishing power for agency and school purposes and for pumping for irrigation by Indians on the San Carlos Reservation at a cost not exceeding 2 mills per kilowatt-hour delivered at the switchboard at the Coolidge Dam."

    The act authorized the Secretary of the Interior to sell surplus power developed at the Coolidge Dam in such manner and upon such terms and for such prices as he shall think best, with the provision that the net revenues from sales of power at that plant, shall be devoted, first, to reimbursing the United States for the cost of developing electric power, such cost to be determined by the Secretary of the Interior; second, to reimburse the United States for the cost of the San Carlos irrigation project; and third, to payment of operation and maintenance charges and the making of repairs and improvements on the project. A further provision of the act required that reimbursement to the United States from the power revenues shall not reduce the annual payments from landowners on account of the principal sum constituting the cost of construction of the power plant or the project works until such sum shall have been paid in full.

    The 1928 act also authorized the Secretary of the Interior to effect a merger of the Florence Casa Grande project in whole or in part with the San Carlos project and to accept conveyances to the United States for the benefit of the San Carlos project of canals, reservoirs, pumping plants, water rights, lands, and rights-of-way.

    The San Carlos Irrigation and Drainage District was formed pursuant to the laws of the State of Arizona for the purpose of embracing the non-Indian lands, brought within the San Carlos Indian irrigation project in compliance with the said acts of June 7, 1924, and March 7, 1928. The district executed the repayment contract with the Secretary of the Interior on June 7, 1931. This contract, among other things, obligates the district to repay its share of the total construction cost (including the cost of the power development), and of the operation and maintenance costs assessed against the district lands. The net power revenues accruing in favor of the district lands were to shorten the time during which the construction costs payments shall be made without diminishing the annual payments until the entire debt due the United States has been extinguished.

    By supplemental contract between the parties, approved September 17, 1936, as authorized by the act of June 5, 1934 (48 Stat. 881), the interest charge provided for in the act of June 7, 1924, against the district lands was eliminated from the payments to be made by the district on behalf of such construction costs of the San Carlos project, including the cost of the power development at the

____________________

    1 The use of the term "Florence Casa-Grande Water Users' Association" was in error. This association executed the contract with the Secretary under the act of May 18, 1916. The landowners of that project, in the main, filed Landowners' Agreement with the Secretary requesting their land to be incorporated in the San Carlos project. The organization with which the Repayment Contract was executed was the San Carlos Irrigation and Drainage District. It may be said that this reference to the Florence Casa-Grande Water Users' Association was an inadvertence. There was no power project authorized under the act of May 18 1916.
 


 

1685

OPINIONS OF THE SOLICITOR

JULY 25, 1955

Coolidge Dam and the transmission line or lines, which costs are required to be repaid in 40 equal annual installments, beginning on December 1, 1935. On June 14, 1945 (59 Stat. 469), Congress amended section 3 of the San Carlos Act (43 Stat. 475, 476), as supplemented and amended, so as to provide that the construction charges on account of the non-Indian lands in the San Carlos irrigation project shall be repaid in variable annual payments to be determined by the number of acre feet of water stored in the San Carlos Reservoir on March 1 of each year, beginning on the first day of March 1945, in accordance with the schedule set out in section 1 of the act.

    Section 4 of the act authorized and directed the Secretary of the Interior to enter into a supplemental agreement with the San Carlos Irrigation and Drainage District modifying the repayment provisions of the existing repayment contract, as amended, in accordance with the act.

    On June 21, 1945 (59 Stat 487), Congress authorized the Secretary of the Interior to modify the provisions of a contract for the purchase of a power plant from the Christmas Copper Corporation for use in connection with the San Carlos Indian irrigation project. This plant consisted of a diesel electric generator unit of the corporation previously acquired under contract with the corporation as a part of the San Carlos power system of the United States.

    A further supplemental contract between the Secretary of the Interior and the San Carlos Irrigation and Drainage District was executed on May 29, 1947, to incorporate the requirements of section 4 of the act of June 14, 1945, supra, and the provisions of the act of July 3, 1945 (59 Stat. 318, 330). The last cited act authorized the settlement of claims in the sum of $114,400 of which $104,400 was paid to the Buckeye Irrigation Company and $10,000 to the Arlington Canal Company. These payments were conditioned upon the execution of an appropriate repayment contract with the San Carlos Irrigation and Drainage District, obligating the district to repay its proportionate amount properly chargeable to the non-Indian lands in the San Carlos Irrigation and Drainage District. The contract was subject to the approval of the Secretary of the Interior and the obtaining of an appropriate resolution by the Gila River Pima-Maricopa Indian Community Council consenting to the charge of the proportionate amount as construction costs against the Indian lands within the San Carlos Indian irrigation project, subject to the provisions of the act of July 1, 1932 (25 U.S.C. 386).

    Because of the lack of funds with which to extend the distribution system to prospective customers from the generating plants and existing power lines and distribution system of the San Carlos project, Congress by the act of June 22, 1936 (49 Stat. 1822, 1823), amended the act of March 7, 1928 (45 Stat. 210), and acts amendatory thereof or supplementary thereto, so as to provide that the net revenues from the sale of surplus power developed at the Coolidge Dam and other generating plants of the San Carlos project and transmitted over existing transmission lines shall be devoted, first, to reimbursing the United States for the cost of developing such electric power; second, to reimbursing the United States for the cost of the San Carlos irrigation project, and, third, to the payment of operation and maintenance charges and the making of repairs and improvements on said project. The 1936 act also provided that all net power revenues derived from the sale of power transmitted over such additional transmission lines as may thereafter be constructed by the San Carlos Irrigation and Drainage District for the benefit of the San Carlos project shall first be devoted to the repayment of the construction costs of such additional transmission lines. It was further provided that the United States and the San Carlos Irrigation District shall enter into an appropriate repayment contract to be approved by the Secretary of the Interior. The statute required that the contract provide that the additional transmission lines thus constructed by the district shall, upon completion of construction, be conveyed to the United States. After the reimbursement to the district from such net power revenues of the cost of the construction of the additional transmission lines, the net power revenues received from the power transmitted over the additional transmission lines were to be applied in the same manner as the net revenues derived from the sale of power transmitted over the existing transmission lines of the San Carlos project were to be applied.

    Pursuant to the authority of the act of June 22, 1936, the San Carlos Irrigation and Drainage District, under date of March 15, 1937, entered into a construction loan contract with the United States through the Administrator of the Rural Electrification Administration for the construction of such additional transmission lines.

    The San Carlos Irrigation and Drainage District, as required by the act of June 2, 1936, supra, on April 29, 1937, executed another contract with the United States acting through the First Assistant Secretary of the Interior. Section 10 (b) of this contract provides that immediately upon the completion of the construction of the additional lines, the district will by a good and valid deed convey to the United States for the San Carlos project

 


 

1686

DEPARTMENT OF THE INTERIOR

JULY 25, 1955

such additional lines, together with rights-of-way therefore and all equipment and appurtenances belonging thereto. The district is obligated to accompany such conveyance by evidence of title satisfactory to the Secretary of the Interior and to be in all respects in accordance with the loan contract, the execution of which was duly authorized by the qualified electors of the San Carlos Irrigation and Drainage District at a special election held on September 21, 1936. The lines were constructed and placed in operation, and payment therefore from the net power revenue derived therefrom, as provided for in the contract, is being made. According to a teletype dated January 20, 1955, by the Acting Commissioner of the Indian Bureau to the Acting Area Director, Phoenix, Arizona, the conveyance of the title to the transmission lines by the district to the United States has not been consummated.

    To supplement the generated electric power at the power plants of the United States on the San Carlos Indian irrigation project, a contract was entered into between the Commissioners of the Bureau of Reclamation and the Bureau of Indian Affairs and approved by the Under Secretary on April 25, 1952, under the Davis Dam power is made available for the use of the San Carlos Indian irrigation project to the extent of 14,000 kilowatts as a preference customer.

    The United States has leased certain electric transmission lines of Electric District No. 2, an Arizona corporation, by contract dated July 6, 1949, which was approved by the Acting Assistant Secretary on September 20, 1949. These lines are managed, operated, and maintained by the United States during the period of the contract in accordance with policy and regulations of the Secretary of the Interior for the San Carlos Indian irrigation project (25 CFR 133.21) for the sale and delivery of electric power by the project to the landowners served by Electric District No. 2. The net revenues derived from the operation of the lines leased from Electric District No. 2 are dealt with the same as all other net revenues derived from operation of the power system.

    The several acts of Congress vest the title of the power works and facilities in the United States with the exception of the property of Electric District No. 2, which is being operated under contract with the United States. In the operation of the project, electric energy is essential for the operation of the pumping apparatus required in order to supply underground water for 20,000 acres of the 100,000-acre project. The net revenues derived from the operation of the electric properties are required by Congress to be used as provided for in the 1928 act, supra, as supplemented and amended by the acts heretofore cited. To these requirements of the act, the original contract and the supplemental contracts between the United States and the San Carlos Irrigation and Drainage District have been entered into between the district and the United States, acting through the Secretary of the Interior.

    Answering question No. 1 specifically, it is quite clear from the foregoing statement that the authority to manage and operate the San Carlos power system, including the authority to sell surplus power in such manner and upon such terms and for such prices as the Secretary of the Interior shall think best, now rests in the Secretary and his authorized representatives.

    With respect to question No. 2, it is quite clear also, I think, that the authority of the Secretary to manage and operate the power system may not be transferred to a private utility or to a board composed of an equal number of Indian and non Indian landowners without enabling legislation by the Congress where, as here, the responsibility for such operation and management has been placed in the Secretary of the Interior by that body. See in this connection the opinion of the Attorney General dated October 4. 1929 (36 Op. A.G. 98), wherein it was held that where Congress had committed to the Secretary of the Interior supervision and control over Indian properties, the Secretary was without authority to delegate such control and supervision to outside agencies. See also opinion of the Solicitor dated July 30, 1953 (M-36175), in which it was held that while the power of the Secretary of the Interior to delegate his functions to officials and agencies of his own Department was virtually unlimited, the power could not be exercised with respect to the transfer of Indian irrigation projects to State irrigation districts in the absence of a clear indication by the Congress that such a step may be taken.

    A similar answer must be given to question No. 3 with respect to the sale or lease of the power system. The title to the physical works, such as power houses, generators and transmission lines, with one minor exception, is in the United States. It is a familiar rule requiring no citation here that no Federal officer or employee is empowered to dispose of the properties of the United States either by sale or lease unless such action has been specifically authorized by the Congress. No such authority is contained in any of the statutes relating to this project.

    It is assumed that the territorial agreement referred to in question No. 4 would be an agreement which would define the areas to be served
 


 

1687

OPINIONS OF THE SOLICITOR

AUGUST 2, 1955

by the project power system and those areas to be served by other power interests. I find nothing in the statutes relating to this project which would prevent the execution of an operating agreement along this line on behalf of the United States by the Secretary of the Interior and the other party or parties concerned defining the areas to be served by each. In this connection, I note from the record that such an agreement was in fact entered into by the Secretary of the Interior in 1937. However, the interests of the San Carlos Irrigation and Drainage District and the Gila River Pima-Maricopa Indian Community in this matter are such that their consent should be obtained before any such agreement is entered into.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

LEGAL OBLIGATIONS OF THE FEDERAL
GOVERNMENT ON MENOMINEE
ROADS

M-36300                                                                                                       August 2, 1955.

Indians Lands: Rights-of-Way

The Act of June 17, 1954 (68 Stat. 250) terminates the responsibility of the United States to maintain and repair roads on the Menominee Indian Reservation after December 31, 1958, or upon such earlier date as the rights-of-way therefore are relinquished to the tribe or transferred to another agency under Section 7.

Torts: Generally

The United States is not liable under the Federal Tort Claims Act for damages sustained after its responsibility to maintain roads on the Menominee Indian Reservation has terminated.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Legal obligations of the Federal Government on Menominee roads

    You have inquired by a memorandum dated September 28, 1954, into the liability of the United States under the Federal Tort Claims Act, 28 U.S.C. (1346 (b) and (c) ), 2671 et seq., obviously with a view to finding out if there is any requirement on the part of the United States to remain responsible for maintenance and repair of roads on the Menominee reservation after the termination date of December 31, 1958, under the Termination Act (P.L. 399, 83d Cong., 2d Sess.; 68 Stat. 250).

    Under section 7 of the Menominee Act, the Tribe is enabled to formulate and submit to the Secretary a plan for the future control of the tribal property and service functions now conducted by or under the supervision of the United States, including roads on the reservation. Section 8 authorizes and directs the Secretary to transfer to the Tribe, no later than the termination date, the title to all property, real and personal, held in trust by the United States for the Tribe. Section 10 provides that when the title to the property of the Tribe has been transferred, individual members of the Tribe shall not thereafter be entitled to any of the services performed by the United States for Indians because of their status as Indians, and the laws of the State shall apply to the Tribe and its members. Presumably not only the individual members of the Tribe but also the Tribe itself will no longer be entitled to Federal services for Indians.

    The act would seem to contemplate that the United States will no longer maintain Indian Service roads and the rights-of-way therefore would terminate at the same time. Unlike Federally-owned schools or other structures on an Indian reservation, integral road improvements have little removable value and the United States rights thereto, such as hard surfacing, bridges, culverts and guards, would also terminate along with the rights-of-way. The provisions of Section 7 that the Tribe shall submit plans for control and maintenance of roads when read in conjunction with Section 10 which terminates services performed by the United States, tends to terminate the duty to maintain and improve such roads after the transfer of the title of all trust property. While the act itself would operate as a Federal relinquishment of the rights-of-way and improvements on Indian Service roads, the Secretary may execute a formal instrument of relinquishment to complete the Tribe's title. This would be in furtherance of the purposes of Section 8 which directs the Secretary to convey trust property to the Tribe so that the Tribe will have an instrument of title showing it is the owner of the property.

    When the rights-of-way and improvements are relinquished to the Tribe or transferred to another agency in accordance with the plans under Section 7, the Federal Tort Claims Act would have no application to injuries sustained by reason of the faulty condition of the Indian Service roads on the Menominee Indian Reservation.
 


 

1688

DEPARTMENT OF THE INTERIOR

AUGUST 2, 1955

    This opinion to the effect that the Federal supervision and control and responsibility for these roads will cease on or before the termination date of December 31, 1958, certainly does not preclude the continued improvement and working out of amicable agreements between the Menominee Indians, the State and the counties involved, to provide for the transfer of such roads. It is noted in Mr. Trier's memo of September 15, 1954, which accompanied your request for an opinion, that in recent years the Bureau has been engaged in an intensified program of turning Indian Bureau roads over to local governmental units for maintenance and improvement and that the agreements cover first an improvement of the road to local government standards at Bureau expense before making the dedication.

                                                                                                    EDMUND T. FRITZ,
                                                                                                                    Acting Solicitor.

WATER RIGHTS FOR INDIAN ALLOTMENTS
ON CEDED LANDS AND PUBLIC DOMAIN

M-36289                                                                                                     August 19, 1955.

Indian Lands: Ceded Lands--Indian Lands: Allotments: Generally--Indian Lands: Water Rights

An allotment to an Indian of the Colville Reservation made under Section 4 of the Act of July 1, 1892 (27 Stat. 62), on the ceded area of the reservation became entitled to share in the available waters for the irrigation thereof under the doctrine of the Winters case.

Indian Allotments on Public Domain: Generally--Indian Lands: Water Rights

Public domain allotments made subsequent to the creation of the State in which situated and which were never a part of an Indian reservation would be subject to the laws of the State in the acquisition of a water right for such land.

Memorandum

To:            Regional Solicitor, Portland
From:        Solicitor
Subject:     Water right for public domain allotments made to Indians of the Colville Reservation

    We have carefully considered the draft of tentative opinion on the above subject submitted by your memorandum of April 29.

    Section 1 of an Act of Congress approved July 1, 1892 (27 Stat. 62) restored to the public domain an area of approximately 1,500,000 acres of land of  the Colville Reservation created by Executive Order of July 2, 1872. Section 4 of the Act of July 1, 1892, accorded Colville Indians then residing on the restored portion of the Reservation the right to take allotments of land thereon, selections to be made within six months after the date of the President's Proclamation opening the lands for settlement. The Act of July 1, 1898 (30 Stat. 593) contained a similar provision. The President's Proclamation opening the lands was dated April 10, 1900 (31 Stat. 1963).

    The Department held in an opinion rendered October 6, 1906 (35 L.D. 220), that it was not the purpose of the 1892 Act to break up the Colville Tribe but rather to permit certain members to retain their established rights on the restored lands and that they should be considered with respect to determining the rights of their children for allotments "*     *     * just as if no division of the reservation had been made."

    In two decided cases on the Fort Hall Reservation where Indians elected to take allotments on the ceded area, the courts have held that the lands have reservation water rights. See Scheem, et al. v. United States, et al., 273 F. 93, and United States v. Hibner, 27 F. (2d) 909. In the recent case of Merrill v. Bishop, 237 Pac. (2d) 186 (1951), the court held that under the agreement of March 3, 1905 (33 Stat. 1016), waters were available to irrigate lands allotted to Indians on the ceded portion of the Wind River Reservation allotments. There was an earlier case on the Wind River Reservation, unreported, entitled United States v. Albert Hampleman, No. 753 in the United States District Court of Wyoming, involving the right of the State Engineer to close the ditches leading to a ceded area allotment for the delivery of water. Pending determination of the case by the court, arrangements were made under which water was delivered to the lands. On June 26, 1916, the court entered its decree which held that the lands, ditches and water rights of the Indian allottee named in the plaintiff's bill of complaint "are within the absolute and exclusive jurisdiction of the plaintiff."

    It is not stated in the record submitted by you whether the two allotments in question were selections made by Indians on the restored part of the Colville reservation. If they were they would have a reservation or Winters doctrine water right, which was not lost by the Government reducing the size of the reservation after the Indians had settled on the lands and were permitted to retain their rights thereon to the allotments.
 


 

1689

OPINIONS OF THE SOLICITOR

AUGUST 24, 1955

    After rather extensive search no case has been found where an Indian allotment on the public domain, never a part of an Indian reservation, has been held to have a reservation water right. There would be no basis for extending the reservation right to such a case. The theory of the Winters doctrine (207 U.S. 564), is based on a right belonging to the Indian tribe which was not given up when the reservation was created by treaty or otherwise. No such reservation right could exist in the case of a public domain allotment if the particular State, in which the allotment was made, had been created prior to the making of the public domain allotment. The allottee, in order to obtain a water right for such an allotment, would have to comply with the laws of the State, as the water would belong to the State in trust for the people of the State and could be acquired only by compliance with the law of prior appropriation and beneficial use applicable in the particular State.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

INDIAN PREFERENCE IN EMPLOYMENT

M-36297                                                                                                     August 24, 1955.

Indians: Receipt of Government Benefits--Indian Tribes: Terminal Legislation

Upon the issuance of a proclamation, Indians who are subject to section 23 of the act of August 27, 1954 (68 Stat. 868, 877), will not be entitled to preferment in employment by the Bureau of Indian Affairs.

Indians: Receipt of Government Benefits--Indian Tribes: Terminal Legislation

The positions of Indians subject to section 23 of the act of August 27, 1954, who are presently employed by the Bureau of Indian Affairs will remain in the excepted category in which they have been placed by the Civil Service Commission so long as the Commission's regulations remain unchanged.

Memorandum

To:            Commissioner, Bureau of Indian Affairs
From:        The Solicitor
Subject:     The effect of section 23 of the act of August 27,
                 1954 (68 Stat. 868, 877) on Indian preference in employment

    You have asked me whether the laws providing a preference for the employment of Indians in the Bureau of Indian Affairs will be applicable to certain Uintah and Ouray Indians of mixed blood as to whom a proclamation is issued pursuant to section 23 of the act of August 27, 1954 (68 Stat. 868, 877), and how the Indians to whom the act applies who are presently serving in the Bureau of Indian Affairs under excepted appointments will be affected.

I

    Section 23 of the act of August 27, 1954 (68 Stat. 868, 877) reads as follows:

    "Upon removal of Federal restrictions on the property of each individual mixed-blood member of the tribe, the Secretary shall publish in the Federal Register a proclamation declaring that the Federal trust relationship to such individual is terminated. Thereafter, such individual shall not be entitled to any of the services performed for Indians because of his status as an Indian. All statutes of the United Stares which affect Indians because of their status as Indians shall no longer be applicable to such member over which supervision has been terminated, and the laws of the several States shall apply to such member in the same manner as they apply to other citizens within their jurisdiction."

    It seems clear that the language used in the provision quoted is broad enough to exclude the Indians to whom it is applicable from the operation of all Federal laws affecting Indians because they are Indians. This interpretation is confirmed by the construction which the Department put upon identical language which it drafted with respect to the Klamath Indians. In its submission to the Congress on January 4, 1954, of the draft of a proposed bill to provide for the termination of Federal supervision over the property of that tribe, it stated with reference to a comparable provision:

    "Section 18 of the bill provides that when Federal restrictions are removed from the property of the tribe and its members a proclamation will be published in the Federal Register, and thereafter such Indians will have the same status under State and Federal law as any other person or citizen. *     *     *" 1

____________________

    1 Similar language was used in a number of departmental reports concerning other termination legislation. Language substantially identical to that used in section 23 is to be found in the following acts:

    Act of June 17, 1954, 68 Stat. 250 (Menominee Indians);
   
Act of August 13, 1954, 68 Stat. 718 (Klamath Indians);
    Act of August 13, 1954, 68 Stat. 724 (various Oregon tribes);
    Act of August 23, 1954, 68 Stat. 768 (Alabama and Coushatta tribes);
    Act of September 1, 1954, 68 Stat. 1099 (Paiute Indians in Utah).

    Substantially the same words were also used in other termination bills in the 83d Congress: S. 2750 and H.R. 7319, relating to the Flathead Indians: S. 2749 and H.R. 7322. relating to the California Indians; S. 2748 and H.R. 7316, relating to the Sac and Fox Kickapoo and Potawatomie tribes; and S. 2748 and H.R. 7316, relating to the Turtle Mountain Indians. North Dakota.
 


 

1690

DEPARTMENT OF THE INTERIOR

AUGUST 24, 1955

    The statutory provisions that establish a preference for Indians in employment by the Bureau of Indian Affairs (see 25 U.S.C., secs. 44-47, 472) are, of course, laws that affect Indians because they are Indians. It follows, therefore, that the Indians who are subject to section 23 of the act of August 27, 1954, will not be entitled to preferment in employment by the Bureau of Indian Affairs, but, upon the issuance of a proclamation, are to be treated like any other person or persons with respect to employment.

II

    The preference in favor of the employment of Indians by the Bureau of Indian Affairs has been given effect through regulations of the Civil Service Commission, 5 CFR 6.1, 6.100, 6.110 (c) (1), excepting from the competitive civil service "Positions in the Bureau of Indian Affairs, Washington, D.C., and in the field when filled by the appointment of Indians who are of one-quarter or more Indian blood."2 These positions, as pointed out in Opinion M-36205, dated June 4, 1954, are therefore not subject to the laws or regulations applicable to positions in the competitive service, when the positions are held by Indians.

    It would seem, therefore, that so long as the Civil Service Commission regulations remain unchanged, positions held by Indians subject to section 23 of the act of August 27, 1954, will remain in the excepted category.

    There is undoubtedly a question, however, whether, in the light of the new provisions of the law, the Civil Service Commission will deem it proper to continue in the excepted category the positions occupied by the Indians in question. What the standing of the Indians occupying these positions will be if and when the positions are restored to the competitive civil service is a question which it appears to me the Civil Service Commission must answer.

                                                                                                    EDMUND T. F RITZ ,
                                                                                                                    Acting Solicitor.

DETERMINATION OF FULL-BLOOD MEMBERSHIP
OF THE UTE TRIBE FOR PURPOSE OF PARTICIPATION
IN DEVELOPMENT PROGRAM

M-36304                                                                                                 September 6, 1955.

Indian Tribes: Membership--Indian Tribes: Terminal Legislation

The determination of the full-blood membership of the Ute Tribe of the Uintah and Ouray Reservation in Utah for the purpose of participating in the development program provided for in section 24 of the act of August 27, 1954 (68 Stat. 868; 25 U.S.C. 677), is controlled by the provisions of the act and not by the constitution and bylaws of the Ute Indian Tribe.

Memorandum

To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Determination of full-blood membership in the Uintah and
                 Ouray Reservation in Utah for the purpose of participation
                 in the development program provided for in section 24 of
                 the act of August 27, 1954 (68 Stat. 868: 25 U.S.C. 677)

    You have requested my opinion on the question whether membership in the full-blood group of the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah, for the purpose of participating in the development program provided for that group by section 24 of the act of August 27, 1954, is to be determined by the constitution and bylaws of the Ute Tribe or by the provisions of the act of August 27, 1954.

    It is quite clear, I think, that the provisions of the act control the determination of membership in the full-blood group for the purposes of section 24.

    Prior to the enactment of the act of August 27, 1954, the membership of the tribe was controlled by the constitution and bylaws which the tribe had adopted under the provisions of the Indian Reorganization Act of 1934 and such ordinances pertaining to membership as the tribe may have enacted thereunder. However, the act of August 27,

____________________

    3 This regulation was amended on March 29, 1955 (19 F.R. 1861) to include positions elsewhere in the Department of the Interior directly and primarily relating to the providing of services to Indians when filled by Indians.

 


 

1691

OPINIONS OF THE SOLICITOR

SEPTEMBER 7, 1955

1954, contemplated an entirely different tribal organization setup, under which there was to be a partition and distribution of the assets of the tribe among the mixed-blood and full-blood members of the tribe, termination of Federal supervision over the property of the mixed-blood members, and a development program for the full blood members of the tribe.

    To bring about these results, the term "full blood" was defined to mean a member of the tribe who possesses one-half degree of Ute Indian blood and a total of Indian blood in excess of one-half, and the term "mixed-blood" was defined to mean a member of the tribe who does not possess sufficient Indian or Ute Indian blood to fall within the full-blood class. Members falling within the full-blood class could become mixed-bloods by choice. Elaborate provisions are made in the act for the preparation of separate rolls of the two groups which, after the determination by the Secretary of the Interior of all appeals in individual cases, must be published in the Federal Register by the Secretary, and upon such publication, the rolls, under section 8 of the act, are declared to be final for the purposes of the act. Section 5 of the act also declares that upon publication of the final rolls, as provided in section 8, the tribe shall thereafter consist "exclusively of full-blood members" and that mixed-blood members shall have no interest therein except as otherwise provided in the act.

    Section 24 of the act reads:

    "Within three months after the date of enactment of this Act, the business committee of the tribe representing the full-blood group thereof shall present to the Secretary a development program calculated to assist in making the tribe and the members thereof self-supporting, without any special Government assistance, with a view of eventually terminating all Federal supervision of the tribe and its members. The tribal business committee, representing the full-blood group shall, through the Secretary of the Interior, make a full and complete annual progress report to the Congress of its activities, and of the expenditures authorized under this Act."

    The development program provided for in the foregoing provision plainly is to be formulated for the benefit of the full-blood group, the membership of which is controlled by the statutory provisions referred to above and not by anything contained in the constitution and bylaws of the Ute Tribe. Under section 3 of the act, the constitution and bylaws and any tribal ordinances in force on the date of the act may be utilized only for the purpose of determining the "Ute Indian blood" of the mixed or full-blood member as those terms are defined in the act.

                                                                                                    EDMUND T. FRITZ,
                                                                                                                    Acting Solicitor.

MINERAL LEASING ON THE KLUKWAN
INDIAN RESERVATION, ALASKA

                                                                                                                September 7, 1955.

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Mineral leasing on the Klukwan Indian Reservation, Alaska

    The position is taken in the attached copies of opinion dated May 11, 1954, by Mr. Walter E. Walsh, General Attorney--Indian Affairs, Juneau, Alaska, that neither the United States nor the natives residing on the Klukwan Indian Reservation in Alaska can execute a valid mineral lease covering lands within that reservation. Upon review of the opinion, this office is not disposed to take a contrary position.

    It appears that the Indian reservation in question was established for the use of the natives by Presidential Executive Order. Consequently, no authority is apparent under which the lands included within the order can be leased under the general leasing or mining laws of the United States. It has been held that the mineral leasing act of February 25, 1920 (41 Stat. 437, 30 U.S.C., 1952 ed., sec. 181 et seq.) does not apply to lands within executive order Indian reservations, since that act is limited in its application to public lands of the United States. See 34 O.A.G. 171 (1924). The mining laws of the United States would likewise be inapplicable since those laws too are considered to apply only to public lands.

    While the view may be advanced that authority exists for the mineral leasing of the above lands by or on behalf of the Indians or natives, and for their benefit, pursuant to the act of March 3, 1927 (44 Stat. 1347, 25 U.S.C., 1952 ed., sec. 398a), as amended by the act of May 11, 1938 (52 Stat. 347, 25 U.S.C., 1952 ed. 396 a-f), nevertheless, in view of the decisions cited in Mr. Walsh's opinion and the recent case entitled Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (Preliminary Print, 1955), some doubts arise concerning the extent of


 

1692

DEPARTMENT OF THE INTERIOR

SEPTEMBER 7, 1955

the Indian or native rights to lands in Alaska occupied or used by them. In fact, the existing situation is best reflected by a reference in the dissenting opinion in the Tee-Hit-Ton case to the view apparently taken by the majority of the court with respect to those provisions in the Organic Act for Alaska, dated May 17, 1884 (23 Stat. 24), whereby Congress had reserved to itself the ultimate determination of titles to Alaskan lands in the possession of Indians and used, occupied or claimed by them. Thus, on page 291, of the dissenting opinion, it is stated:

    "Respondent contends, and the Court apparently agrees, that this provision should be read, not as recognizing Indian title, but as reserving the question whether they have any rights in the lands."

    In these circumstances, including the fact that Congress has by the 1884 Act, supra, reserved the right to declare the terms under which titles to Alaskan lands may be acquired, it is suggested that legislation is essential which would definitely describe or fix the authority with respect to the leasing for mining purposes of lands within the Klukwan and like Indian reservations in Alaska. Accordingly, the matter is submitted for your consideration and action in that respect.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

RESERVATION OF MINERALS IN
ALLOTTED LAND TO TRIBE--
FORT BELKNAP RESERVATION

                                                                                                                September 9, 1955.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Solicitor's Opinion M-36291 of July 11, 1955, concerning
                 the mineral provisions of the act of March 3, 1921 (41 Stat. 1355)

    This refers to the letter of July 22, 1955, from the Fort Belknap Community Council requesting reconsideration of my opinion of July 11, 1955.

    In making allotments on the Fort Belknap Reservation trust patents were issued to allottees containing a reservation of minerals only when the land was so classified under Section 4 of the act. The opinion takes the position that the action of the Secretary was reasonably supported by the language of the act. The reversal of this opinion is sought, first, on the ground that it is inconsistent with Commissioner Emmons' letter of March 22, 1955, to the Area Director, stating that minerals were reserved to the Tribe by the provisions of Section 6 of the act in grants of school land to the State; and, secondly, on the ground that there was a case in which a fee patent was issued to an allottee containing a reservation of minerals when no mineral reservation was present in the trust patent. We have not been able to identify this special case but we have been informally advised that not more than three or four fee patents have been issued to allottees on the Fort Belknap Reservation. It would seem, therefore, that the issuance of the fee patent with a mineral reservation when the lands were not so classified was an inadvertent error.

    With respect to the school lands, they were not subject to be granted to the State when lands were mineral in character, but if they were not mineral in character they could be granted with the mineral reservation as provided in Section 6. This section served a dual purpose in describing the scope and extent of minerals to be reserved under allotted lands under Section 4 and in providing for a reservation of minerals in the lands granted under other provisions of the act. Accordingly, I find no basis for changing my opinion.

    There is of immediate concern an advertised gas and oil lease sale held on April 20, 1955, at which the Phillips Petroleum Company was a high bidder on a number of tracts covering the oil and gas rights in tribal and allotted lands, with a total bonus of approximately $180,000. The Indian Office reports that the trust patents for the allotted lands contained a mineral reservation to the tribe only when the lands were classified as mineral. There is no difficulty over the oil and gas rights in tribal lands or in allotted lands classified as mineral with a mineral reservation to the tribe contained in the trust patent. With respect to those allotments that were not classified as mineral and for which the trust patents do not contain a reservation of minerals to the tribe, the Phillips Petroleum Company is uncertain over the title to the minerals and has obtained leases from both the tribe and the allottees for approval by the Area Director. The allottees have signed stipulations agreeing that the bonus, rentals and royalties shall be held by the Department in escrow until the ownership to the minerals has been judicially determined. There is no legal objection to this method of effectually getting the lands leased. If this procedure meets with your approval, I will prepare the necessary recommendation to the Depart-


 

1693

OPINIONS OF THE SOLICITOR

SEPTEMBER 21, 1955

ment of Justice that a suit be instituted by the United States for and on behalf of the allottees against the tribe.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

September 13, 1955
Approved: Douglas McKay
Secretary of the Interior.

DISQUALIFICATION OF CERTAIN
KLAMATH INDIANS TO INHERIT--
EFFECTIVE DATE OF REPEAL

                                                                                                                September 12, 1955.

Mr. John J. Dumpert
Examiner of Inheritance
Box 494
Carson City, Nevada

DEAR MR. DUMPERT:

    In your letter of September 7, 1955, you raised the question whether the repeal of section 5 of the act of June 1, 1938 (52 Stat. 605, 606), which was accomplished by section 9 (c) of the act of August 13, 1954 (68 Stat. 721; 25 U.S.C. 564), be came effective on the date of the approval of the 1954 act or on a date six months subsequent thereto, as provided in section 9 (b) of the 1954 act.

    Section 9 (c) states that "Section 5 of the Act of June 1, 1938 (52 Stat. 605), is hereby repealed." This language needs little interpretation. The words "hereby repealed," without more, plainly imply that the repeal becomes fully effective on the date of the enactment. Where the repeal is to become effective at some later date, the intent so to do cannot be supplied by implication but must be clearly expressed. Thus, in section 9 (a), which terminates the probate jurisdiction of the Secretary of the Interior over the estates of deceased Klamath Indians, and in section 9 (b), which subjects such estates to the probate laws of the States, it was expressly provided that both provisions should apply to "members of the tribe who die six months or more after the date of this Act." With respect to the change from departmental to State jurisdiction, the Congress evidently felt that a short period of adjustment was necessary before the change became fully effective.

    No such reason exists for postponing the effective date of the repeal of section 5 of the 1938 act.

    The repeal eliminated a somewhat unpopular provision which disqualified members of the tribe of less than one-sixteenth blood from inheriting or taking by devise restricted or trust property of deceased members. The repeal was clearly intended to be effective from the date of the act.

    May I suggest that hereafter legal problems on which you need advice be referred to your Regional Solicitor irrespective of whether such problems arise out of probate of other work.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

TRANSFER OF MINOR FULL-BLOODS
TO THE MIXED-BLOOD ROLL UNDER
SECTION 4 OF THE ACT OF
AUGUST 27, 1954

M-36305                                                                                                 September 21, 1955.

Indian Tribes: Membership--Indian Tribes: Terminal Legislation

The Secretary is without authority to approve a transfer of a minor from the full-blood roll to the mixed-blood roll under Section 4 of the Act.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Interpretation of Section 4 of the Act of August 27, 1954 (68 Stat. 868)

    You have requested my opinion on the power of the Secretary to transfer a minor from the proposed full-blood roll to the mixed-blood roll upon the application of the parent for himself and his minor children, pursuant to Section 4 of the Act of August 27, 1954, Public Law 671-83d Congress (68 Stat. 868).

    Section 4 states that any member of the tribe whose name appears on the proposed roll of full-blood members may apply to the Superintendent to become identified with and part of the mixed-blood roll provided that before such transfer is made the Secretary shall first certify that in his opinion such change in status is not detrimental to the best interests of the applicant. The provisions of the Act are silent with respect to the transfer of a minor to the mixed-blood roll. In this regard it differs from the Klamath Withdrawal Act of August 13, 1954 (68 Stat. 718) which specifically gives the head of the family the right to file for himself and his minor children an election to withdraw from the tribe.


 

1694

DEPARTMENT OF THE INTERIOR

SEPTEMBER 21, 1955

    Section 22 provides for the protection by the Secretary of the rights of minors and other members of the tribe in need of assistance and, further, that the appointment of guardians pursuant to State law will not be required until Federal supervision has terminated. The indications of this section and other provisions of the Act are that this protection was intended for the benefit of members of the mixed-blood roll. The restrictions on their trust and redistricted property are to terminate in accordance with Section 16 and the assets of the mixed-blood group are to be distributed to the individual members under Section 13.

    It was apparent that the Act would result in some members of a family being placed on the full blood roll and others on the mixed-blood roll. If it were contemplated that the integrity of the family was to be maintained with respect to their membership some provision it seems would have at least been made allowing members of a family to transfer from the mixed-blood roll to the full-blood roll. An examination of the legislative history of the Act is of no aid on the question posed. In the absence of any express language in the Act or Congressional intent shown in its legislative history it must be concluded that the Secretary does not have such power, particularly when a transfer of a minor from the full-blood to the mixed-blood roll would result in the taxation and removal of restrictions on his trust and restricted property and in loss of the right by Section 23 to share in Federal services available to Indians because of their status as Indians.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

PREFERENCE RIGHT TO OIL AND GAS LEASES
ON THE BLACKFEET RESERVATION

M-36306                                                                                                 September 29, 1955.

Indian Lands: Leases and Permits: Oil and Gas--Indian Tribes: Constitutions

A provision in a tribal constitution granting a preference right to acquire leases on tribal lands upon the payment of reasonable fees for the use of the lands cannot properly be construed to extend to oil leases where the constitution contains a separate provision covering the disposition of oil leases without any provision for a noncompetitive preference right.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Preference right to oil and gas leases on the Blackfeet Reservation

    In your office memorandum of August 30, 1955, reference is made to a proposed letter to the Area Director at Billings, Montana, which deals with the practice heretofore followed of granting to members of the Blackfeet Tribe of Indians in Montana a preference right to acquire oil and gas leases on tribal lands. The proposed letter was recalled for the reason that, upon further consideration of the matter, the conclusion has been reached that the practice of granting such a preference was based on a misinterpretation of the constitution of the Blackfeet Tribe and that the practice should, accordingly, be discontinued.

    The act of May 11, 1938 (52 Stat. 347, 25 U.S.C. 396), which is applicable to tribal lands on the Blackfeet Reservation, requires that leases for oil and gas mining purposes be offered for sale to the highest responsible bidder unless otherwise provided by the constitution adopted by the tribe pursuant to the Indian Reorganization Act of 1934. In an opinion dated June 6, 1941, the Acting Solicitor for the Department expressed the view that tribal lands on the Blackfeet Reservation could be leased for oil and gas mining purposes without competitive bidding. That opinion, however, was overruled by an opinion dated July 7, 1949 (M-36007), chiefly because it was found, and properly so, that neither the constitution nor the charter of the Blackfeet Tribe dispensed with the statutory requirement that oil and gas leases be offered for sale to the highest bidder. The requirement that leases be sold at public sale precludes, of course, the granting of a preference to anyone.

    From a memorandum addressed to the Commissioner of Indian Affairs by the Acting Solicitor on March 16, 1939, it appears that the practice of granting a preference to members of the Blackfeet Tribe is based on the provision of Article VII, section 3, of the Blackfeet constitution which, in pertinent part, reads:

    "No lease of tribal land to a nonmember shall be made by the tribal council unless it shall appear that no Indian cooperative association or individual member of the tribe is able and willing to use the land and to pay a reasonable fee for such use."

    The foregoing provision was not intended, in my opinion, to apply to oil mining leases. The provi-


 

1695

OPINIONS OF THE SOLICITOR

OCTOBER 21, 1955

sion for the payment of a reasonable fee for the use of tribal land contemplates, I think, surface rather than sub-surface leases. Oil and other mineral leases are usually described as such, and the consideration to be paid for leases of that type is uniformly defined in terminology such as royalties, rentals, and bonuses. That the framers of the constitution did not intend that the preference provision be applied to oil mining leases is made quite plain by the fact that the disposition of oil leases and oil royalties is covered by separate and distinct provisions in the constitution. Article VI (e) of the constitution specifically provides that oil leases on tribal lands and royalties from tribal lands shall be disposed of "in accordance with the terms of a charter to be issued to the Blackfeet Tribe by the Secretary of the Interior." The charter so issued contains no provision that purports in any way to grant to members of the tribe a noncompetitive preference right to acquire oil and gas leases on tribal lands. On the contrary, the powers conferred on the tribe by the charter are expressly subjected to the "laws of the United States," one of which is the act of May 11, 1938, which requires that oil and gas leases be offered for sale to the highest responsible bidder.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

APPLICATION OF THE MINE INSPECTION
PROVISIONS OF TITLE II OF THE FEDERAL
COAL MINE SAFETY ACT TO MINES ON
INDIAN LANDS

M-36312                                                                                                     October 21, 1955.

Federal Coal Mine Safety Act--Indians: Generally

The inspection provisions of Title II of the act apply to Indian-operated mines on Indian lands.

Statutory Construction--Indians: Generally

An intent to exclude Indians from a general act of Congress must be definitely expressed.

Memorandum

To:            Director, Bureau of Mines
From:        Solicitor
Subject:     Application of the mine inspection provisions of Title II
                 of the Federal Coal Mine Safety Act, as amended July
                 16, 1952 (66 Stat. 692; 30 U.S.C.A., section 471 et
                 seq.) to the Window Rock coal mine, Navajo Reservation

    The Window Rock coal mille is located on Navajo tribal lands and is being operated by the Navajo Indian Tribe. It appears that the mine was inspected on April 14, 1953, by a representative of the Bureau of Mines under the Federal Coal Mine Safety Act, and that the average employment at that time was 25 persons, of which 21 worked underground. Also it appears that the coal being produced by the mine was regularly sold and shipped to points in New Mexico and Arizona. The exemptions from the provision of Title II of the act for mines employing less than 15 persons are not applicable, and as the production from the mine appears regularly to enter commerce or substantially affect commerce, the mine inspection provisions of Title II of the act apply unless that result is precluded by the fact that the mine is located on tribal Indian lands.

    Indian-owned lands are not specifically mentioned in the act, and although it has been held that general acts of Congress in which the Indians are not mentioned do not apply to them (see Elk v. Wilkins, 112 U.S. 94, and United States v. Crow Dog, 109 U.S. 566), later cases hold that the intent to exclude Indians must be definitely expressed where the language of the statute is otherwise broad enough to include the subject matter. See Choteau v. Burnet, 283 U.S. 691, and Superintendent v. Commissioner, 295 U.S. 418. These later rulings appear to me to be controlling here. Subsection 202 (a) of Title II of the Mine Safety Act authorizes inspections of "any mine the products of which regularly enter commerce or the operations of which substantially affect commerce." Under this broad language, the location of the mine is immaterial where, as appears to be the case here, the products of the mine enter commerce.

                                                                                                    EDMUND T. FRITZ,
                                                                                                                Deputy Solicitor.

TRANSFER OF UNRESTRICTED CONTROL
OVER LANDS HELD IN TRUST BY THE
UNITED STATES FOR MINOR AND DECEASED
MEMBERS OF THE KLAMATH TRIBE

                                                                                                                October 21, 1955.

Memorandum

To:            J. Lane Morthland, Regional Solicitor
                 Portland, Oregon
From:        Solicitor
Subject:     Transfer of unrestricted control over lands held in trust
                 by the United States for minor and deceased members
                 of the Klamath Tribe of Indians in Oregon

 


 

1696

DEPARTMENT OF THE INTERIOR

OCTOBER 21, 1955

    In your letter of September 23, 1955, you suggest that section 8 (b) of the Klamath Termination Act of August 13, 1954 (68 Stat. 718, 24 U.S.C. sec. 564 (g) (b) ), be interpreted to mean that "restrictions on the 'sale or encumbrance' of restricted" or trust lands owned by members of the Klamath Tribe does not restrict the Secretary from transferring unrestricted control to guardians of living Indians or the personal representatives of deceased Indians prior to the 4-year period provided in the act for the removal of restrictions against the sale or encumbrance of such lands.

    Section 8 (b) of the act is not, in my opinion, susceptible of such an interpretation. Section 8 (b), which removes the restrictions against sale or encumbrance of restricted or trust land owned by members of the tribe, fixes the effective date of the removal at four years after August 13, 1954. Nothing in that section nor in any other section of the act authorizes the Secretary to dispense with the restrictions against alienation or encumbrance at any earlier date. Where, as in the case of the Klamath Indians, the title to the land is held in trust by the United States for an individual Indian, the trust may be lifted under the law in force prior to the enactment of the act of August 13, 1954, only by the issuance of a patent in fee to the Indian owner and as a condition to the issuance of such a patent the Indian owner must apply for the patent and the Secretary of the Interior must find that the Indian owner is competent. See 25 U.S.C. 349. It would not be possible, of course, for such a finding to be made in the case of a minor or one of unsound mind. If all the heirs of a deceased Indian are competent and they apply for a patent in fee, the Secretary or his authorized representative may issue the patent, whereupon the trust and the incidental supervision and control of the Secretary would terminate.

    I regret to advise that further legislation by the Congress will be necessary in order to accomplish the result you have in mind.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

LEASE OF KLAMATH TRIBAL LAND WHICH
EXTENDS BEYOND THE DATE FIXED BY
CONGRESS FOR THE TERMINATION OF
FEDERAL SUPERVISION AND CONTROL

M-36307                                                                                                 November 17, 1955.

Indian Tribes: Terminal Legislation--Indian Lands: Leases and Permits: Minerals--Secretary of the Interior

A lease for the mining of diatomaceous earth on tribal lands of the Klamath Reservation in Oregon may be made for a period extending beyond the date fixed by Congress for the termination of Federal supervision and control only where it is clear that such a lease will not prevent or delay the termination of Federal trustee responsibilities.

Although the approval of the Management Specialists retained under the Klamath Termination Act of such a lease is not essential to its validity, the manifold duties imposed upon them by the act require that they be consulted, and that their advice be obtained before any such lease is executed or approved.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Lease of Klamath tribal land which extends beyond the
                 date fixed by Congress for the termination of Federal
                 supervision and control

    This is in reply to your memorandum of September 26, 1955, requesting my opinion on the question whether a lease providing for the removal of diatomaceous earth from tribal lands of the Klamath Reservation in Oregon may extend beyond the date fixed for the termination of Federal supervision and control over the Indians of the Klamath Reservation by the act of August 13, 1954 (68 Stat. 722), and also whether the approval of such a lease by the Management Specialists selected and retained under section 5 of the 1954 act is necessary.

    I find nothing in the act of August 13, 1954, which expressly authorizes the tribe to execute, or the Secretary of the Interior to approve, a lease that would extend beyond the date fixed by the act for the termination of Federal supervision and control over the Indians and their property. On the other hand, I find nothing in the act that expressly forbids the execution or approval of such a lease. The act does repeal, effective on the date of its approval all acts or parts of acts which are inconsistent with its provisions. This means, of course, that authority such as contained in the Mineral Leasing Act of May 11, 1938 (52 Stat. 347, 25 U.S.C. sec. 396), under which the proposed diatomaceous earth lease would be made, cannot be invoked as authority if the proposed lease is inconsistent with the provisions of the 1954 act. If, therefore, the execution and approval of the proposed lease would have the effect of pre-


 

1697

OPINIONS OF THE SOLICITOR

DECEMBER 1, 1955

venting or delaying the termination of Federal trust responsibilities with respect to the leased land during the term of the lease, as provided for in the 1954 act, the execution and approval of the lease would clearly be inconsistent with the provisions of the 1954 act and, therefore, unauthorized. This is in fact the yardstick which the Congress applied recently when it enacted the long-term leasing act of August 9, 1955 (Public Law 255, 84th Cong. 1st sess.), section 5 of which declares:

    "The Secretary of the Interior shall approve no lease pursuant to this Act that contains any provision that will prevent or delay a termination of Federal trust responsibilities with respect to the land during the term of the lease."

    If, therefore, you find upon consideration of all of the provisions of the proposed lease that none of them would prevent or delay the termination of Federal responsibilities as provided for in the 1954 act, approval of the lease may be given. A contrary finding would, of course, require that such approval be withheld.

    The trustee responsibilities of the United States with respect to the tribal lands of the Klamath Tribe will, under the 1954 act, terminate four years from the date of the act or on August 13, 1958. Accordingly, any lease such as that involved in the present inquiry, which purports to extend beyond that date, should contain appropriate provisions to the effect that all supervisory responsibility thereunder of the United States and its officers and employees shall also terminate on that date unless otherwise provided by the Congress.

    Since the 1954 act contains no specific provision subjecting a lease such as that proposed to the approval of the Management Specialists, and since the act of May 11, 1938, under which the proposed lease would be made, provides only for approval by the Secretary of the Interior, it is my opinion that the approval of the Management Specialist is not necessary as a matter of law. However, in view of the many important duties imposed upon them by the execution and approval of tribal leases extending beyond the period fixed for Federal supervision and control, it is quite essential, in my judgment, that they be consulted and that their advice be obtained before any such lease is executed or approved.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

JURISDICTION OF TRIBAL COURT AND COLORADO
JUVENILE COURT FOR DETERMINATION OF
CUSTODY OF DEPENDENT AND NEGLECTED
INDIAN CHILD

62 I.D. 466

M-36316                                                                                                   December 1, 1955.

Indians: Civil Jurisdiction--Indian Tribes: Tribal Government

An order issued by the Oglala Sioux Tribal Court of the Oglala Sioux Tribe at Pine Ridge Reservation, pertaining to the custody of a minor Indian child, does not prevail over a custody order of the Juvenile Court of the City and County of Denver, Colorado, where the child was neglected within the jurisdictional limits of the juvenile court.

Memorandum

To:            Regional Solicitor, Denver
From:        Solicitor
Subject:     Custody of Eva Hawkins, Denver Juvenile Court (Bureau of Indian Affairs)

    Your memorandum of November 16 requests our advice and opinion as to whether the order issued by the Oglala Sioux Tribal Court of the Oglala Sioux Tribe at Pine Ridge Indian Reservation, pertaining to the custody of a minor Indian child supersedes and nullifies a custody order of the Juvenile Court of the City and County of Denver, Colorado.

    The important facts appear to be that Eva Hawkins (born September 14, 1951) was found dependent and neglected in Denver on April 7, 1954. An officer of the Denver Police Department filed a petition in the Juvenile Court declaring her a dependent and neglected child. On May 1, 1954, the Court committed the child to the State Children's Home, which subsequently placed her in a foster home. The foster parents are desirous of adopting her. The Oglala Sioux Tribal Court on September 12, 1955, granted the child's maternal grandmother custody and care of the child.

    This office has studied the problem which you have suggested and is of the opinion that from the facts stated the Juvenile Court of the City and County of Denver, Colorado, had jurisdiction to place the child in a foster home and that such action would not be affected by the inconsistent order of the Oglala Sioux Tribal Court. It also appears that the Juvenile Court will have full authority to act upon a petition by the foster parents who are


 

1698

DEPARTMENT OF THE INTERIOR

DECEMBER 1, 1955

desirous of adopting the girl. Under Colorado law consent to the adoption can be given by several persons, including the executive head of the institution given by the Court the custody of the child, including the right to consent to the adoption ('53 C.R.S. 4--l--6). Consent by the parents is not required where the parent has abandoned the child. Neville v. Bracker ( (1934) 94 C. 550, 31 P. (2d) 911). Your office might consider advising the maternal grandmother that she may also file a petition to adopt the child so that the Juvenile Court may determine who among the several possible adoptive parents would best care for the interests of the child. At all events, there is no Federal statute which would interfere with the jurisdiction of the Juvenile Court.

    The above conclusion is based on the following legal considerations: The Constitution and by-Laws of the Oglala Sioux Tribe of the Pine Ridge Reservation of South Dakota provides that the jurisdiction of the Oglala Sioux Tribe of Indians shall extend to the territory within the original confines of the Pine Ridge Indian Reservation boundaries and to other lands which were added to it by law.

    The Tribal Council is given authority "to provide for the appointment of guardians for minors *     *     * by ordinance or resolution subject to review by the Secretary of Interior." It is also provided that the judicial powers of the Oglala Sioux Tribe shall be vested in a court or courts which the Tribal Council may ordain or establish and that the judicial power shall extend to all cases involving members of the Oglala Sioux Tribe, arising under the constitution and by-laws or ordinances of the Tribe, and to other cases in which all parties consent to jurisdiction. It therefore appears that the jurisdiction of the Tribal Council in connection with custody of persons would be limited by the Tribal Constitution and By-Laws to persons resident on the reservation.

    This principle is further shown by the provisions of the Code of Federal Regulations which limit the jurisdiction of Courts of Indian Offenses to offenses committed by an Indian "within the reservation for which the court is established. (25 CFR 161.2)"

    It has long been recognized that the jurisdiction of Indian tribes ceases at the border of the reservation. (0~s. Atty. Gen. 440, 1886; Ex parte Morgan, 20 Fed. 288.)

    It therefore follows that the custody decree of the Tribal Council was without force and effect because the child concerned was not located within the jurisdiction of that court. Even if the tribal court had had jurisdiction, it would be in no different position from other courts in the State of Colorado whose determinations of custody would have been superseded by the Juvenile Court of Denver County in this case.

    In Hudson v. Mattingly (195 P. 113) it was decided in the Supreme Court of Colorado (Jan. 10, 1921) that the juvenile court at the father's residence has jurisdiction over children who were temporarily absent in another jurisdiction, since their residence is that of the father's. "When, therefore, they were brought into this city for the trial, they were lawfully and rightfully there and before the court. Their presence in Jefferson County was a mere incident of their mother's visit to her parents. The subject-matter of the proceeding was the custody and control of the children. We think the court had jurisdiction thereof."

    In Peterson v. Schwartzman (179 P. 2d. 662) decided April 7, 1947, the Supreme Court of Colorado pointed out that the juvenile court has jurisdiction over dependent children found within its jurisdiction. "Where the proper officer files a petition in dependency in the county where the child is found and the conditions alleged as constituting dependency also exist therein *     *     * the venue of a dependency action is in such county despite technical legal residence elsewhere." (p. 663.) Exclusive jurisdiction over dependency cases concerning children is given by statute to the juvenile courts in Colorado. (`53 C.R.S. 37--9--l.) In case custody of a child is determined differently in another court, for example one hearing a divorce matter, the juvenile court's decision will prevail.

    It is hoped that the above decision will assist you in disposing of this matter.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

APPLICATION OF THE GENERAL LEASING
ACT OF AUGUST 9, 1955, TO CROW
RESERVATION, MONTANA

62 I.D. 469

M-36318                                                                                               December 15, 1955.

Bureau of Indian Affairs--Indian Tribes: Reservations--Indian Lands: Generally--Indian Lands: Leases and Permits: Generally

The act of August 9, 1955 (69 Stat. 540), applies generally to the leasing of restricted Indian lands wherever situated, including reservations such as the Crow Reservation, where special leasing statutes had theretofore been enacted, thus sup-


 

1699

OPINIONS OF THE SOLICITOR

DECEMBER 22, 1955

plying additional leasing authority without displacing or superseding the special statutes.

Memorandum

To:            Regional Solicitor, Denver Region
From:        Solicitor
Subject:     The application of the general leasing act of August 9,
                 1955, to the Crow Indian Reservation, Montana

    This refers to your memorandum of October 18, 1955, enclosing a copy of memoranda from Superintendent L. C. Lippert of October 5, 1955, addressed to the Branch of Realty and Heads of all Departments of the Crow Agency, Montana, and from Acting Field Solicitor Bielefeld of October 10, 1955, to the Regional Solicitor, Denver, Colorado, expressing the view that the leasing act of August 9, 1955 (69 Stat. 540), does not apply to the leasing of lands on the Crow Indian Reservation.

    The memorandum of October 10, 1955, holds that the Crow acts (41 Stat. 75 1, 44 Stat. 648, and 44 Stat. 1365), continue to apply to the leasing of Crow Indian lands and that the act of August 9, 1955, supra, did not modify the provisions of these acts. In this conclusion we concur. However, the opinion further expressed that if Congress had intended to make the leasing of Indian land uniform to all tribes a provision expressly repealing all special acts would probably have been included in the August 9, 1955, act. We are unable to subscribe to this latter conclusion.

    This interpretation completely ignores section 6 of the act which reads, "Nothing contained in this Act shall be construed to repeal any authority to lease restricted Indian lands conferred by or pursuant to any other provision of law." This section of the act does not in any way prevent its provisions from being applicable to the leasing of any restricted Indian lands, whether tribally or individually owned, by the Crow Indian owners with the approval of the Secretary of the Interior for public, religious, educational, recreational, residential, or business purposes under the terms and conditions, therein prescribed. In other words, the 1955 act applies generally to all restricted Indian lands wherever situated, including restricted lands on reservations such as the Crow where special leasing statutes had theretofore been enacted. The act of 1955 thus supplies additional leasing authority without displacing or superseding the special Crow statutes and the authority conferred by those special statutes may continue to be invoked whenever such action is deemed to be desirable.

    Section 6 of the 1955 act is somewhat similar in its purport to the provision of section 4 of the act of February 5, 1948 (62 Stat. 17; 25 U.S.C.A. 326), dealing with rights-of-way over Indian lands. This latter statute did not repeal the several other statutes dealing with the granting of rights-of-way. An applicant may file for a right-of-way under the general authority of the 1948 act or he may file under any of the other appropriate acts dealing with the granting of particular rights-of-way across Indian lands.

    I see no inhibition in the leasing laws to the leasing of Indian lands on the Crow Reservation under the laws in force prior to the enactment of the act of 1955, or under the 1955 act.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

TAXATION OF LANDS UNDER CHEYENNE RIVER
ACT

M-36320                                                                                                 December 22, 1955.

Indians: Taxation: State

Taxable lands located outside the Cheyenne River Reservation which are purchased for Indians pursuant to Section XI of the act of September 3, 1954 (68 Stat. 1191) remain subject to taxation even though the lands are reconveyed to the Indians by trust patent.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Cheyenne River Act

    This refers to your request for an interpretation of Section XI, Act of September 3, 1954 (68 Stat. 1191). It is my opinion that where taxable lands located outside the Cheyenne River Reservation are purchased for Indians pursuant to Section XI of the 1954 Act, such lands will remain subject to taxation even though the lands are reconveyed to the Indians by trust patents, since Congress has not included within the provisions of this act an exemption from taxation.

    There is nothing in the legislative history of the 1954 act which indicates an intent of Congress to exempt such lands from State and local tax assessments. There is, rather, a clear indication from the wording of the act itself that the status of lands, which were previously subject to taxation in the hands of the owners, is to remain unchanged



1700                         DEPARTMENT OF THE INTERIOR         DECEMBER 22, 1955

with respect to taxation, regardless of the manner in which title is held for the Indian. The act declares:

    "*     *     * that no purchase of lands outside the Cheyenne River Reservation shall affect the existing status of such lands, interests or rights therein, or improvements thereon, with respect to taxation."

                                                                                                    EDMUND T. FRITZ,
                                                                                                                Deputy Solicitor.

INTERPRETATION OF ACT AUTHORIZING
EXPENDITURES FOR RELOCATION OF
YANKTON SIOUX--FORT RANDALL
DAM PROJECT

M-36319                                                                                                   January 5, 1956.

Indians: Receipt of Government Benefits

Indians entitled to receive direct benefit from an appropriation of $106,500 under the Act of July 6, 1954 (68 Stat. 452) must (1) be members of the Yankton Sioux Tribe; (2) they must reside or have resided on land taken for the Fort Randall Dam and Reservoir project; and (3) the land must have been tribal or allowed.

Statutory Construction: Administrative Construction

The fund appropriated to the Secretary of the Interior under section 8 of Public Law 478 (83d Cong. 2d sess.) 68 Stat. 452 is to be expended "for the purpose of relocating the members of the Yankton Sioux Tribe . . . in a manner that will reestablish and protect their economic, social, religious, and community life." A proposed plan of evenly dividing the funds between qualified families and disbursing to them on the basis of family programs is not authorized by the act. The language of the act indicates that the funds should be equitably distributed on the basis of need.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Interpretation of section 8 of Public Law 478
                 (83d Cong. 2d sess.), 68 Stat. 452

    The proposed draft of a letter to Area Director Reifel raises some questions concerning the interpretation of the act of July 6, 1954 (Public Law 478, 83d Cong. 2d sess.), and it is believed that a misunderstanding exists in both the Central Office and the Area Office. Therefore, I shall take this occasion to interpret the meaning of section 8 of the act.

    Section 8 of the act reads as follows:

    "There is hereby authorized to be appropriated to the Secretary of the Interior the sum of $106,500, which shall be available until expended for the purpose of relocating the members of the Yankton Sioux Tribe, South Dakota, who reside or have resided, on tribal and allotted lands acquired by the United States for the Fort Randall Dam and Reservoir project, Missouri River Development, in a manner that will reestablish and protect their economic, social, religious, and community life. Title to any lands acquired within Indian country pursuant to this section shall be taken in the name of the United States in trust for the Yankton Sioux Tribe or members thereof. The said sum of $106,500 shall be assessed against the costs of the Fort Randall Dam and Reservoir, Missouri River Development."

    I concur in the view expressed by your office with respect to the three requisites necessary to entitle persons to participate in or receive a direct benefit from the $106,500 fund, namely (1) they must be members of the Yankton Sioux Tribe; (2) they must reside or have resided on land taken for the project; and (3) the land must have been tribal or allotted.

    It appears that the Indian beneficiaries of section 8 of the 1954 act have already removed and relocated themselves outside of the area acquired by the United States for the Fort Randall Dam and Reservoir project. These Indians, it appears, comprise some 15 families, and you propose that 1/20th of the $106,500 fund, or $5,325, be made available immediately for each of the qualified families, and that the moneys so made available be expended as recommended in a letter dated October 20, 1955, from the Acting Area Director. That letter states:

    "It is our proposal that the funds be evenly divided between the indicated families and disbursed to them on the basis of family programs developed cooperatively by the family and a Bureau representative appointed by the Superintendent of the Rosebud Agency. The funds would be deposited to the Individual Indian Money account of the family head. If it is de-


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