Home

1701

OPINIONS OF THE SOLICITOR

JANUARY 11, 1956

termined by the Superintendent that a family can constructively handle their own funds, he will arrange to have them transferred to a commercial bank depository and the funds will become unrestricted. In the event that the family is on welfare assistance, or has been on welfare assistance for a considerable time, arrangements should be made by members of the Superintendent's staff and the county welfare workers, if they are involved, to provide for necessary initial purchases of equipment and goods, and a monthly disbursement of the remaining balance through the Superintendent's account. If the family head is deceased, the funds will be deposited to the credit of the estate for distribution. In the event that some of the heirs have left the reservation and the Superintendent has no knowledge that would indicate they are on categorical welfare assistance of some kind, the funds should be disbursed direct to the heirs without budgets."

    You further propose that "any funds remaining after all qualified families have received payments will be distributed equally among all the qualified families." You then refer to 3 families who do not meet the requirements of the act and suggest that any qualified families who so desire may make voluntary contributions to aid these 3 families.

    Under your proposal, each family, regardless of its needs and irrespective of the number of persons comprising the family, would receive equal benefits. A family consisting of a husband and wife or a widower with no children would receive the same amount as a family consisting of 10 persons. I find no support for such an inequitable distribution of the $106,500 fund in the statute or in its legislative history. The fund is appropriated to the Secretary of the Interior whose responsibility, under the statute, is to see that the fund is 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." As pointed out in the report of this Department, dated June 30, 1954, on H.R. 2231, which became the act of 1954, these Indians were awarded $132,323.90 for the value of the lands taken by the project "but they have not been given the necessary financial assistance for relocation and adjustment to changed circumstances." The understanding of the Congress with respect to this matter is reflected in a statement appearing in a report of the Committee on Interior and Insular Affairs (H. R. Report No. 498, 83d Cong. 1st sess.), which reads:

    "Testimony by the Commissioner of the Bureau of Indian Affairs for the Department of the Interior indicated that the funds proposed by way of additional compensation would be utilized for providing additional replacement land for the families displaced, together with moving costs, drilling of additional wells, and other development."

    It follows from what has been said that your proposed disposition of the $106,500 fund is not authorized.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

PROPOSED TRANSFER OF SCHOOL
BUILDINGS IN ALASKA TO METLAKATLA
INDIAN COMMUNITY

M-36324                                                                                                         January 11, 1956.

Alaska: Indian and Native Affairs

The act of August 23, 1950 (64 Stat. 470), which provides for conveyances of land and improvements no longer required for school or other public purposes, does not apply to the Metlakatla Indian Reservation because the lands are not within the public domain.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Proposed transfer of school buildings in Alaska to the Metlakatla
                 Indian Community--Interpretation of act of August 23, 1950

    In your memorandum of September 15, 1955, you requested the advice of this office as to whether certain school buildings located on Annette Islands in Alaska may be transferred to the Metlakatla Indian Community.

    It appears from your presentation that the proposed transfer is to be made under authority of the act of August 23, 1950 (64 Stat. 470), which reads:

    "That the Secretary of the Interior be, and he is hereby, directed to convey to local town or city officials or to school authorities in the Territory of Alaska, all the right, title, and interest of the United States in and to any parcel or tract of land and the improve-


 

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DEPARTMENT OF THE INTERIOR

JANUARY 11, 1956

ments thereon for school or other public purposes whenever he shall determine that such land and improvements are no longer required by the Alaska Native Service for school purposes: Provided, That any conveyance made pursuant to this Act shall be subject to all valid existing rights and claims, shall reserve to the United States all mineral deposits in the lands and the right to prospect for and remove the deposits under such rules and regulations as the Secretary of the Interior may prescribe, and shall provide that the lands and improvements conveyed shall be used for school or other public purposes only and that the school facilities maintained thereon or therein shall be available to all of the native children of the town, city, or other school district concerned on the same terms as to other children of such town, city or district. The Secretary of the Interior, if at any time he determines that the grantee of any such lands and improvements has violated or failed to observe the foregoing provisions and that such violation or failure has continued for a period of at least one year, may declare a forfeiture of the grant. Such determination by the Secretary shall be final, and thereupon the lands and improvements covered thereby shall revert to the United States and become a part of the public domain subject to administration and disposal under the public land laws."

    It is my opinion that the foregoing act does not authorize the proposed transfer. In the first place, the act limits conveyances to local town or city officials or to school authorities in the Territory of Alaska. More important, however, is the fact that the act speaks of "land and the improvements thereon." The act thus does not permit the transfer of buildings separately from the land. That the land on which the buildings rest cannot be transferred under authority of the 1950 act is quite plain. The provisions of the act show that its scope is confined to public domain lands which formerly were used by the Alaskan Native Service for school purposes. The proof of this statement is that the underlying minerals are required to be reserved to the United States; that the consent of the beneficial owner is not required as is customary in authorizing the conveyance of lands within an Indian reservation; and, finally, that in case of the use for other than school or other public purposes the title to the land shall "revert to the United States and become a part of the public domain subject to administration and disposal under the public land laws." The Annette Islands were set aside as an Indian reservation for the Metlakatlas by section 15 of the act of March 3, 1891 (26 Stat. 1101). From and after that date, the land ceased to be a part of the public domain. Statutes, such as the act of 1950, which deal with the disposition of public lands are, of course, without application to Indian reservation lands.

    The matter of the disposal of the school buildings in question under the Federal Property and Administrative Services Act of 1949, as amended, has been discussed with members of the Division of Property Management in The Office of the Administrative Assistant Secretary, and they in turn have discussed the matter with representatives of the General Services Administration. The suggestions of the Director of the Division of Property Management are incorporated in a memorandum addressed to this office under date of October 28, 1955. This memorandum is referred to you for consideration and such action as you deem to be appropriate.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

INTERPRETATION OF THE CHEYENNE
RIVER ACT OF SEPTEMBER 3, 1954
(68 S TAT. 1191)

63 I.D. 7

M-36323 January 12, 1956.

Indian Lands: Generally--Statutory Construction: Generally

Under section XI of the act of September 3, 1954 (68 Stat. 1191) lessee Indians within the taking area of the Oahe Dam and reservoir project must continue to pay rent during the period the lands continue to be used under the provisions of this section.

Section XI of the act of September 3, 1954, does not authorize the purchase of lands in a trust status as a substitute for land in the taking area of the Oahe project which is held by an individual member of the Cheyenne River Sioux Tribe in unrestricted fee simple ownership. Opinion of March 2, 1955, reconsidered and affirmed.

The benefits of section XI of the act of September 3, 1954, may not be extended to Indians who own no land within the taking area of the Oahe Dam project.


 

1703

OPINIONS OF THE SOLICITOR

JANUARY 12, 1956

Indian Lands: Generally--Statutory Construction: Legislative History

Although the legislative history of an act of Congress may not be drawn upon to establish a meaning or intent contrary to the clear language of the act, this rule is without application where the legislative history supports, rather than disregards, the clear language of the statute.

Indian Lands: Generally--Words and Phrases

The phrase "all members of said tribe who are residents of the Cheyenne River Sioux Reservation at the time of the passage of this Act," means those members of the tribe who actually resided on the reservation and maintained their homes there to the exclusion of members of the tribe who maintain permanent residence elsewhere.

Indians: Generally--Funds: Generally--Expenditures: Special Funds

Expenses incurred by the Tribal Council on and after the date of the Secretarial proclamation declaring the act of September 3, 1954, to be in effect are not reimbursable by the United States.

The payment of $2,250,000 provided for in section II of the act may not be increased or decreased without further legislation by the Congress.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Interpretation of the Cheyenne River Act of September 3, 1954 (68 Stat. 1191)

    This is in reply to your memorandum of October 13, 1955, in which you ask a number of specific questions concerning the Cheyenne River Act. For convenience, each question will be paraphrased in a separate paragraph preceding the answer.

    I. Section IX of the act contains the following language: "Members of said Indian tribe now residing within the taking area of the project shall have the right without charge to remain on and use the lands hereby conveyed as said lands are now being used from and after the effective date of the act *     *     *."

    Your question is whether certain lessee Indians now residing within the taking area have by this language been given rent-free privileges to remain on and continue to use the lands conveyed until the lands are flooded.

    Answer: After consideration of the purposes of the act as a whole, it is plain that Congress intended that this land should continue in use the same as it was before the taking and that an owner of the land who did not himself reside thereon should be entitled to continue to recover rental payments from his lessee. I believe that if any other meaning had been intended, Congress could, and no doubt would, have resorted to more expressive language.

    2. Section XI of the act provides for the purchase of lands to replace those taken for the Oahe project. Should this be construed to mean that Indians losing deeded land (fee patent or purchased in non-trust status) in the taking areas may purchase tribal land in a trust status to replace the deeded lands lost?

    The answer is no. This question has heretofore received consideration by this office, and in an opinion dated March 2, 1955, it was held that section XI authorized the purchase of land in a trust status as a substitute only for such land in the taking area which was held under a trust patent or exchange assignment, and that section XI did not authorize "the purchase of land in a trust status as a substitute for land in the taking area which is held under fee patent."

    Under date of December 1, 1955, the Sioux Tribe of Indians of the Cheyenne River Reservation, through the tribe's general counsel, Mr. Ralph H. Case, petitioned the Secretary of the Interior to review and reverse the opinion of March 2, 1955. In reviewing this petition, which has been referred to this office, I find that the chief contention of the petitioner is that the opinion of March 2, 1955, erred in disregarding the "clear language of section XI of the said act," and in relying on the legislative history of the act in disregard of the "well known rule of construction of statutes where the statute is clear and understandable and the intent of Congress is clearly expressed therein." We agree with the petitioner that the legislative history of an act of Congress cannot be drawn upon to establish a meaning or intent which is contrary to the clear language of the statute. However, that is not the situation here. The language of section XI in itself plainly shows that the acquisition of trust lands to replace lands in unrestricted fee simple ownership was not contemplated. Thus, provision is made to the issuance of trust patents for the new lands with the declaration that such trust patents "shall be in form and effect the same as corresponding trust patents heretofore issued to


 

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DEPARTMENT OF THE INTERIOR

JANUARY 12, 1956

said individuals." This means, of course, that the Indians who are entitled to the benefits of section XI must be Indians who held under trust patents to lands in the taking area, and not Indians who held the unrestricted fee simple title to lands in that area. The further statement in section XI that the "holders of exchange assignments within the said taking area shall be regarded as holders of trust patents and shall be accorded the same privileges and procedures as holders of land held in trust as in this section provided" demonstrates the purpose of the Congress to confine the benefits of section XI to trust patent Indians within the taking area.

    With respect to the legislative history, the opinion of March 2, 1955, pointed out that the act of September 3, 1954, was derived from H.R. 2223, 83d Congress, and that although the bill contained a provision which would have extended the benefits of section XI to members of the tribe who held land in the taking area under patents in fee, that provision was stricken upon the recommendation of this Department for the reason that "those Indians who hold fee patents to lands within the Taking Area should continue to have full responsibility for managing their own property." The legislative history of the statute thus supports, rather than disregards, as contended by the petitioners, the clear language of the statute.

    Section 1 of the 1954 act identifies the lands to be taken by the United States for the Oahe dam and reservoir project as the lands "described in Part II of this agreement." It has come to my attention that the description of lands contained in Part II contains lands which are owned in fee by certain individual Indians of the Cheyenne River Sioux Tribe. This would indicate that the Congress, in the exercise of its eminent domain powers, has, through the enactment of this legislation, taken the title to these fee owned lands. Nevertheless the Chief of Engineers of the Department of the Army has taken the position that the provisions of the act are not sufficient to permit a disregard of 40 U.S.C. 255, which requires approval of the title to land by the Attorney General before payment therefore is made, and that it is likely that there are tax, judgment, or mortgage liens against the fee owned lands. Accordingly, the Corps of Engineers, in a letter to the Commissioner of Indian Affairs dated November 4, 1955, requested that distribution of funds to the individual fee owners be withheld until the fee tracts are conveyed to the United States and the title is approved by the Attorney General.

    Upon approval of the title so conveyed, the individual Indians will be entitled, as I see it, to receive the consideration for their lands wholly unrestricted, and this constitutes another reason why the benefits of Section XI of the 1954 act may not be extended to them. In that section provision is made for payment of the purchase price for the new or substitute lands from moneys placed to the credit of the individual as compensation for lands taken from him under the provisions of the act. Since the compensation to which the fee title owner is entitled must be paid to him unrestricted, there would be nothing to his credit that could be applied to the purchase of new or substitute lands.

    I find no error in the opinion of March 2, 1955, and that opinion is hereby affirmed.

    3. May Indians owning no land in taking area purchase tribal land under this Act? It will be very beneficial to proposed plans if this can be done.

    The answer is no. Section XI relates to individual members of the tribes "whose lands are within the taking area" and the funds for the purchase of substitute lands are the moneys placed to the credit of the individual member as compensation for lands which were taken from him under the act. Indians who own no land within the taking area may not be given the benefit of these provisions without adding to the language of the statute. This the administrative officers of the Government are without authority to do.

    4. Section XIII of the act provides for reimbursement to the tribe for negotiation expenses, $50,000 of which may be paid as attorneys' fees. The section also provides that the tribe is to send a statement of said expenses to the Secretary of the Army setting out said expenses to the date of the proclamation issued by The Secretary of the Interior. Should this be construed to mean that only expenses paid or incurred prior to the effective date of the proclamation are reimbursable?

    The answer is yes. By section XIII the United States agrees to reimburse the Tribal Council for expenses incurred by it and caused by, or incident to, the negotiations which have led up to the making and ratification of this agreement. Section XIII further provides that the Tribal Council shall send a statement to the Secretary of The Army setting out said expenses up to the date of the proclamation to be issued by the Secretary of the Interior declaring that the act of Congress approving the agreement is in full force and effect. These statements, considered together, show that only those expenses incurred up to the date of the 


 

1705

OPINIONS OF THE SOLICITOR

JANUARY 19, 1956

proclamation of the Secretary declaring the act to be in effect are reimbursable by the United States. The date of the proclamation is April 6, 1955 (20 F.R. 2340). The expenses incurred up to that date only are reimbursable.

    5. Another question relates to the replacement or payment for the Agency hospital referred to in section II of the act. What claim for replacement or payment, if any, does the tribe now have?

    Answer: I would prefer not to answer this question since the Agency hospital and any possible replacement thereof or repayment therefore would be a matter within the jurisdiction of the Department of Health, Education, and Welfare.

    6. Section V provides that residents of the reservation are eligible to participate in a rehabilitation program. Is residence defined by Federal or tribal law? If not, do you have any suggestion as to how residence may be determined for the purpose of this act?

    Answer: The phrase "all members of said tribe who are residents of the Cheyenne River Sioux Reservation at the time of the passage of this Act" is not expressly defined either in Federal or tribal law, and the legislative history does not shed any light on this situation. However, taking into consideration the objectives of section V, it seems to me to be fairly plain that the Congress had in mind only those members of the tribe who actually resided on the reservation and maintained their homes there. This would, of course, include minor members of resident families and would exclude members who maintained residence elsewhere.

    7. You will note that the act requires that payment be made to the landowners in the sum of $2,250,000 in accordance with an appraisal made by MRBI. The attached material submitted by the attorney for the tribe states that it is the desire of the tribe to pay land owners a sum greater than the $2,250,000. You have heretofore rendered an opinion that only the $2,250,000 could legally be paid to landowners. Will you please examine this act and advise whether or not there is any way that funds either appropriated by this act or held in the Treasury of the United States may be used to supplement this payment?

    Answer: Upon reexamination of the act and consideration of the material submitted by Mr. Frank Ducheneaus, as Chairman of the Tribal Council, it is still my firm opinion that the $2.250,000 sum is an exact figure, every cent of which is accounted for in the revised appraisal of the Missouri River Basin Investigation staff. It would take another act of Congress either to decrease or increase this amount or to make the same or a different amount payable under any other appraisal.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

REGULATIONS FOR REPAYMENT OF
LOANS FROM KLAMATH TRIBAL
LOAN FUND

M-36326                                                                                                         January 19, 1956.

Indian Tribes: Tribal Personalty: Tribal Funds

Loans from the Klamath revolving loan fund made pursuant to the act of August 28, 1937 (50 Stat. 872) are enforceable in the State courts of Oregon regardless of the fact that the rate of interest and a penalty for overdue payment as prescribed by regulations exceed the maximum allowable by Oregon Statute. The act which gives certain states jurisdiction over controversies involving Indians expressly excepts the operation of State law over Federal trust or restricted Indian property when inconsistent with any Federal treaty, agreement or statute or with any regulation made pursuant thereto. (18 U.S.C. 1162 (b) , 1952 ed. Supp. I, 67 Stat. 586.) The Klamath revolving loan fund is an authorized use of tribal property held in trust by the United States.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Regulations for repayment of loans from Klamath Tribal Loan Fund

    This refers to your request for an opinion as to the feasibility of modifying penalties contained in 25 CFR 28.8 so that loans made from the Klamath Tribal Loan Fund will not conflict with Oregon laws prohibiting usury. We see no legal objection to your recommendation that penalties therein will be reduced from one-half to one-third of one percent per month. The change would put all payments of interest (including penalties which are considered as interest in Oregon) within the maximum rate of 10 percent per annum allowable.


 

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DEPARTMENT OF THE INTERIOR

JANUARY 19, 1956

upon express agreement of the parties under section 82.0 10 Oregon Revised Statutes (1953 ed.). The amended regulations should, if adopted, apply to any renewals made. The act authorizing Klamath Revolving Fund Loans was in part repealed by the Klamath Termination Act (68 Stat. 721, Sec. 12; U.S.C. 564k) and as a result no new loans are authorized.

    While considerations of policy might favor the above changes it is our opinion that all obligations now existing are enforceable in the State courts of Oregon without any change in the regulations. All loans were made pursuant to the act of August 28, 1937 (50 Stat. 872) . Regulations authorized by Federal law prescribing the penalties for overdue payments were in effect for three years before the State had any jurisdiction over controversies involving Indians. When civil and criminal law of the State of Oregon became effective an express provision was made to except the operation of State law over Federal trust or restricted Indian property in a manner inconsistent with any Federal treaty, agreement or statute or with any regulation made pursuant thereto. (18 U.S.C. 1162 (b) ) 1952 ed. Supp. I, 67 Stat. 586.) There is no doubt whatever that the Klamath revolving loan fund is an authorized use of property of an Indian tribe held in trust by the United States.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

MINING LEASES ON UNASSIGNED LANDS
LOCATED ON THE COLORADO
RIVER RESERVATION

M-36327 January 19, 1956.

Indian Lands: Leases and Permits: Generally

Mining or gas and oil leases are not authorized by the act of August 14, 1955 (69 Stat. 725) which provides for the Secretary of the Interior to grant leases on the Colorado River Reservation for "public, religious, educational, recreational, residential, or business purposes, including the development or utilization of natural resources in connection with operations under such leases *     *     *."

Statutory Construction: Administrative Construction--Words and Phrases

Under the act of August 14, 1955 (69 Stat. 725), the phrase "development or utilization of natural resources" cannot be construed to authorize the granting of mining or oil and gas leases. Interpreting the language of the act as a whole, natural resource development is involved only insofar as it is done to implement any of the purposes for which leases may be granted as specified therein.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Mining leases on unassigned lands located on the Colorado River Reservation

    In reply to your request for an opinion on the above matter, it may be stated that the act of August 14, 1955 (69 Stat. 725), contains no provision for mining leases on any unassigned lands of the Colorado River Indian Reservation. The act specifies the following purposes for which leases may be executed by the Secretary of the Interior:

    "*     *     * for public, religious, educational, recreational, residential, or business purposes, including the development or utilization of natural resources in connection with operations under such leases, for grazing purposes, and for those farming purposes which require the making of a substantial investment in the improvement of the land for the production of specialized crops *     *     *."

    There is a well-recognized doctrine of statutory construction to the effect that where certain purposes are expressed and are not ambiguous, the statute is limited to those expressed purposes, and all others are excluded from its scope. Following this doctrine, it is clear that mining leases cannot be executed under the authority of the act, supra.

    In reaching this conclusion, I have not overlooked the phrase "including the development or utilization of natural resources." This phrase is dependent on a preceding clause and cannot be construed by itself to authorize the granting of mining or oil and gas leases. Interpreting the language as a whole, natural resource development is merely an incidental purpose of the act and may be carried on only insofar as the development or utilization is done to implement a public, religious, educational, residential or business (e.g., trade) purpose.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.


 

1707

OPINIONS OF THE SOLICITOR

JANUARY 23, 1956

OWNERSHIP OF MINERAL RIGHTS WITHIN
THE BLACKFEET RESERVATION
IN MONTANA

M-36325                                                                                                     January 23, 1956.

Indian Lands: Allotments: Alienation--Indian Lands: Allotments: Patents--Indian Lands: Allotments: Right to Receive

Where a statute directs the Secretary to allot lands to Indians and an Indian complies therewith and makes a selection of an allotment, the Indian has a legal right to the issuance of an appropriate patent, the terms and conditions of which will reflect privileges and disabilities accruing as of the date of completion of the selection formalities by the Indian.

Indian Lands: Minerals--Indian Lands: Tribal Lands: Alienation

Where a statute requires an Indian to exchange lands for lands of equal value, land so exchanged carrying both surface and mineral rights will be replaced by lands carrying equal surface and mineral rights notwithstanding changes in law or regulation occurring subsequent to the date of the required exchange where no statute expressly prohibits the exchange of mineral rights.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Ownership of mineral rights in lands included in an allotment selection
                 made by a member of the Blackfeet Tribe of Indians in Montana

    Your office has requested an opinion as to whether or not a mineral reservation to the Black feet Tribe, under the provisions of the act of June 30, 1919, should be inserted in trust patent No. 1152556 before delivery to the heirs of George Bite, Blackfeet allottee No. 388.

    It is the opinion of this office that the mineral reservation applies to none of the land; that the undelivered patent should be recalled and cancelled, and that a new trust patent without any mineral reservation should then be issued.

    The Indian Appropriation Act of March 1, 1907 (34 Stat. 1015, 1035), directed the Secretary of Interior to survey the lands within the Blackfeet Indian Reservation in Montana. It requested the Commissioner of Indian Affairs to cause allotments of the land to be made under the allotment laws of the United States to all persons having tribal rights or holding tribal relations and who might rightfully belong on the reservation. Each Indian was to be allotted 40 acres of irrigable land and 280 acres of grazing land. At the option of the allottee, the entire 320 acres might be grazing land. The allotments to be made under this act covered both surface and mineral rights.

    It appears from your memorandum that George Bite made a selection under the act of 1907, and that his allotment was included in a schedule of allotments and was approved by the Department on July 24, 1917. George Bite died on August 15, 1910. There is no doubt that as of the date of his selection as included and approved George Bite was entitled to an allotment and a trust patent covering his selection without any mineral reservation. Upon his death, this right passed to his heirs. Woodbury v. United States, 170 Fed. 302.

    The right to have a patent issued when the selection formalities have been carried out by the allottee has been settled by the Supreme Court in Arenas v. United States, discussed below.

    The Supreme Court in Arenas v. United States, 322 U.S. 408, held that where a statute directs the Secretary to allot lands to Indians and an Indian follows the statute and makes a selection of an allotment, the Indian has a legal right to the issuance of an appropriate patent. The Court stated:

    "*     *     * nor can the Secretary on ground of policy deprive an allottee of any rights he may have acquired in his allotment. *     *     * (p. 432)

    "We think the grounds advanced by the Government by way of argument, although not by way of evidence, are inadequate to establish as matter of law that the petitioner has no legal right to a patent. Congress not only has failed to deny these allotment rights by legislation, but has rejected urgent and reiterated appeals from the Department to do so. Arenas is entitled to invoke the application legislation as it stands in determining whether he is entitled to have completed the all but fully executed policy of allotment." (pp. 433-4)

    The Supreme Court in the Arenas case approved and followed the applicable points of law made in the Solicitor's opinion reported in 55 I.D. 295, dated July 17, 1935. The language of that opinion, which appears pertinent to the present case, is as follows:

    "Heretofore when acts have been passed which seek to modify allotment rights and


 

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DEPARTMENT OF THE INTERIOR

JANUARY 23, 1956

privileges, these acts hive been generally construed as not intended to apply where allotments had already been selected nor to affect the trust patenting of these selections. So where an Indian had made a homestead entry (treated as analogous to allotment selection) under the Act of 1875 and performed the conditions entitling him to a patent, the Act of 1884 prescribing a 25-year trust patent instead of a fee patent was held not to apply to him. United States v. Hemmer (241 U.S. 379); United States v. Saunders (96 Fed. 268) (Circ. Ct. Wash. 1899.) Moreover, an Indian has greater rights in an allotment on a reservation than on the public domain. Clark v. Benally (51 L.D. 98.) Similarly, where later acts reserved mineral rights for the tribe, this was repeatedly construed as not applying where allotment selections had already been made but had not yet been approved because of clerical errors. Raymond Bear Hill (52 L.D. 689); Mineral Reservations in Trust Patents for Allotments to Fort Peck and Uncompahgre Ute Indians (53 I.D. 538)."

The result of the application of the Arenas doctrine to the present situation is to assent that George Bite and his heirs were entitled in 1910 to a patent without any reservation to the tribe of mineral rights.

    Other events occurred subsequently which affect the issuance of the patent involved. The Congress in 1919 by the act of June 30, 1919 (41 Stat. 3, 16), repealed so much of the Indian Appropriation Act of March 1, 1907 (34 Stat. 1015, 1035), as related to the disposal of surplus unallotted lands within the Blackfeet Indian Reservation in Montana and under which the George Bite allotment rights existed with his inchoate rights to a patent. This 1919 act authorized the Secretary of the Interior to make allotments under existing laws within the said reservation to any Indians of said Blackfeet Tribe not heretofore allotted, living six months after the approval of this act, and there after to probate all unallotted and otherwise unreserved lands therein among the Indians who have been allotted or were entitled to rights within the reservation. Of these allotted lands eighty acres were to be designated as a homestead by the allottee and were to be evidenced by a trust patent and should remain inalienable and nontaxable until Congress should otherwise direct. As to these subsequently allotted lands, all minerals were reserved for the benefit of the tribe until Congress should otherwise direct, and patents thereafter to be issued were to contain a reservation accordingly. It appears that as of the date of this act, the rights of George Bite to his original allotment had already been fixed and that this act did not take anything away from his mineral rights on his original allotment as approved .July 24, 1917.

    The issuance of a trust patent to the heirs of George Bite was, however, withheld because, as it appears from your submission, the United States Reclamation Service desired to have certain lands around Guardipee Lake in T. 32 N., R. 9 W., set aside as a reservoir site in connection with the irrigation of lands on the Blackfeet Reservation, and the lands desired for this purpose included the E 1/2 NW1/4, sec. 11, T. 32 N., R. 9 W., which land was embraced in the allotment selection of George Bite. The E 1/2 NW 1/4, sec. 11, T. 32 N., R. 9 W., was withdrawn by the Department on October 1, 1917, for the Guardipee Reservoir in connection with the Blackfeet Project, which action appears to have been taken under authority of the act of June 25, 1910 (36 Stat. 859; 25 U.S.C. 352). As a result of this action, the heirs of George Bite, on January 10, 1920, voluntarily relinquished the lands described in the original selection and selected, in addition to 240 acres of the original selection, 80 acres described as the E 1/2 SE 1/4, sec. 3, T. 32 N., R. 9 W., to take the place of the 80 acres taken for the Guardipee Project. In this situation, there can be no question concerning the right of the heirs of George Bite to receive a trust patent for the 240 acres without any mineral reservation. Although the matter is not entirely free from doubt, the better view, in my opinion, is that the heirs are also entitled to receive a trust patent without a mineral reservation for the 80 acres selected in lieu of that withdrawn for the Guardipee Project. Not only had the allottee done everything that he was required to do in order to obtain his trust patent without a mineral reservation for the entire 320 acres of land so that he was invested with the right to such a patent, but the act under which the Department proceeded to withdraw 80 acres of the allotment for Guardipee Project specifically declares that any Indian allottee whose allotment, or part thereof, is canceled "shall be allotted land of equal value within the area subject to irrigation by any such project." Under this provision George Bite, if he had actually received a trust patent would have been entitled to receive land of the same value as that taken from him, and, since he would have been the owner of both surface and mineral rights, he would have been entitled to receive like rights in the lieu lands. The fact that a trust patent had not actually issued should not prejudice his rights in this respect. To hold otherwise would be to penalize Bite and his heirs for


 

1709

OPINIONS OF THE SOLICITOR

FEBRUARY 21, 1956

a delay not attributable to them in any way but to fault resting entirely with the Department.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

OWNERSHIP OF UNALLOTTED LANDS ON
THE TULALIP INDIAN RESERVATION
IN THE STATE OF WASHINGTON

M-36181                                                                                                 February 21, 1956.

Indian Lands: Possessory Rights

Although the United States holds the legal title to lands within an Indian reservation set aside by formal treaty in consideration of a cession by the Indians of large areas of land claimed by them, the Indians have the right of occupancy of the reservation lands which is as sacred as the fee and carries with it all of the beneficial incidents of the fee.

Indian Tribes: Reservations--Indian Tribes: Treaties

Where a large number of Indian tribes or bands enter into a treaty with the United States which has for its purpose the consolidation on the reservation of those individual members of the several tribes or bands who desire to take advantage of the privilege of settling on the reservation and of taking allotments there, the treaty does not constitute a grant in praesenti of the title to the reservation land to the tribes or bands as entities.

Indian Tribes: Reservations--Indian Tribes: Treaties

Under such a treaty the privilege of removing to and enjoying the benefits of the reservation is extended to those members of the several tribes and bands who elect to remove to and settle upon the reservation, whereupon they become invested with the full incidents of Indian title.

Indian Tribes: Reservations--Indian Tribes: Treaties

The Indian title to the unallotted lands on the Tulalip Indian Reservation in the State of Washington, which reservation was set aside pursuant to a treaty concluded in 1855 between the United States and a large number of tribes or bands located west of the Cascade Mountains, is now vested in the Indians located on the reservation who organized and incorporated pursuant to the provisions of the Indian Reorganization Act of 1934 under ,the corporate name of "The Tulalip Tribes of the Tulalip Reservation."

Memorandum

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Ownership of unallotted lands on the Tulalip Indian
                 Reservation in the State of Washington

    On July 28, 1953, you requested that this office express an opinion on the question of the ownership of the unallotted lands on the Tulalip Indian Reservation in the State of Washington. Action on that request has been withheld, chiefly for the reason that title questions of this kind present issues of a justiciable nature which can only properly be determined by a court of competent jurisdiction. This phase of the matter was brought to the attention of former Assistant Secretary Orme Lewis in a memorandum from this office dated September 24, 1953, in which it was pointed out that the group of Indians located on the Tulalip Reservation had organized and incorporated under the provisions of the Indian Reorganization Act of 1934 (25 U.S.C., sec. 476-477), and that the incorporated tribes had filed a suit with the Indian Claims Commission in which the question of title to these unallotted lands would probably be determined (see Case No. 262, Tulalip Tribes Incorporated v. United States of America).

    Your office, and also congressional representatives from the State of Washington, have nevertheless urged with much persistence that an opinion be given by this office. We have concluded to do so with the understanding, however, that the views herein expressed are purely advisory, and that any administrative action taken by your office, as a result thereof, must be taken with a full realization that such views may or may not be sustained in the courts.

    The Tulalip Indian Reservation was established pursuant to the provisions of a treaty that was concluded at Point Elliott, Washington territory, January 2, 1855, ratified by the Senate on March 8, 1859, and proclaimed April 11, 1859 (12 Stat. 927). The historical background of this and other similar treaties contemporaneously negotiated is set forth in the case of Duwamish et al. Indians v. United States, 79 Ct. Cls. 532, 567. Therefrom, it appears that the Indian parties to the treaty occupied an extensive area of land west of the Cascade Mountains in what is now the State of Washing-


 

1710

DEPARTMENT OF THE INTERIOR

FEBRUARY 21, 1956

ton. Their tribal organization was broken up into numerous small bands, each possessing a distinct Indian name, and they were generally designated as "Canoe Indians," i.e., they utilized the waters of Puget Sound and its tributaries in pursuit of fishing, and in hunting for bear, beaver, and other fur bearing animals, traversing a wide range of territory, and transporting their catch to their individual habitat in innumerable canoes. The precise acreage extent of the lands claimed by these Indians is not known, and the boundaries of their individual villages are more or less a matter of conjecture.

    The rich and abundant timber lands of Washington directed emigration thereto as early as 1850, and even prior to that date a sedulous and persistent agitation prevailed to treat with the Indian occupants of the lands, delimit for them a separate reservation, and make available to white settlers the surplus lands. The government enlisted the services of Isaac I. Stevens, Governor of the Territory, and ex-officio Superintendent of Indian Affairs at the time, to negotiate and, if possible, conclude treaties with the Indian tribes of the Territory looking toward the establishment of reservations and the cession of the surplus lands.

    The treaty of January 22, 1855, which is commonly known as the Point Elliott Treaty, is one of those negotiated and concluded by Governor Stevens. No tribe or band named Tulalip was a party thereto, and no such band or tribe ever existed. The name Tulalip is that of a place where one of the five reservations was established pursuant to the treaty. The preamble of the treaty enumerates twenty-two bands or tribes, while the parties' signatures indicate a participation of twenty-three. The preamble also states that the convention was made with the tribes and bands named, "and other allied and subordinate tribes and bands of Indians occupying certain lands situated in said Territory of Washington."1

    By Article I of the treaty, the Indians ceded to the United States all of their right, title, and interest in and to a large area of land claimed by them, which is described with some particularity in the Article. Other pertinent provisions of the treaty are quoted below:

"Article II. There is, however, reserved for the present use and occupation of the said tribes and bands the following tracts of land, viz: The amount of two sections, or twelve hundred and eighty acres, surrounding the small bight at the head of Port Madison, called by the Indians Noo-sohk-urn; the amount of two sections, or twelve hundred and eighty acres, on the north side Hwhomish Bay and the creek emptying into the same called Kwilt-seh-da, the peninsula at the south eastern end of Perry's Island called Shaisquihl, and the island called Chah-cho-sen, situated in the Lummi River at the point of separation of the mouths emptying respectively into Bellingham Bay and the Gulf of Georgia. All which tracts shall be set apart, and so far as necessary surveyed and marked out for their exclusive use; nor shall any white man be permitted to reside upon the same without permission of the said tribes or bands, and of the superintendent or agent, but, if necessary for the public convenience, roads may be run through the said reserves, the Indians being compensated for any damage thereby done them.

"Article III. There is also reserved from out the lands hereby ceded the amount of thirty six sections, or one township of land, on the northeastern shore of Port Gardner, and north of the mouth of Snohomish River, including Tulalip Bay and the before-mentioned Kwilt-seh-da Creek, for the purpose of establishing thereon an agricultural and industrial school, as hereinafter mentioned and agreed, and with a view of ultimately drawing thereto and settling thereon all the Indians living west of the Cascade Mountains in said Territory. Provided, however, that the President may establish the central agency and general reservation at such other point as he may deem for the benefit of the Indians.

"Article IV. The said tribes and bands agree to remove to and settle upon the said first-above mentioned reservations within one year after the ratification of this treaty, or sooner, if the means are furnished them. In the meantime it shall be lawful for them to reside upon any land not in the actual claim and occupation

____________________

    l The Indian parties, named as entities and not as individuals, to the Point Elliott Treaty were:

    "Articles of agreement and convention made and concluded at Muckl-te-oh, or Point Elliott, in the Territory of Washington, this twenty-second day of January, eighteen hundred and fifty-five, by Isaac I. Stevens, governor and superintendent of Indian Affairs for the said Territory, on the part of the United States, and the undersigned chiefs, headmen and delegates of the Dwamish, Suquamish, Sktahl-mish, Sam-ahmish, Smalh-kamish, Skope-ahmish, Stkah-mish, Snoqualmoo. Skai-wha-mish, N'Quentl-ma-mish. Sk-tah-le-jrrm, Stoluck-wha-mish, Sno-ho-mish, Skagit, Kik i-allus, Swin-a-manh. Squin-ah-mish. Sah-ku-mehu, Noo-wa-ha, Nook-wa-chah-mish, Me-see-qua-guilch, Cho-bah-ah-bish, and other allied and subordinate tribes and bands of Indians occupying certain lands situated in said Territory of Washington, on behalf of said tribes and duly authorized by them."


 

1711

OPINIONS OF THE SOLICITOR

FEBRUARY 21, 1956

of citizens of the United States, and upon any land claimed or occupied, if with the permission of the owner."

    The Tulalip Reservation, with which we are here concerned, was established pursuant to Article III above. Although the President was authorized by the proviso of Article III to establish the reservation at some other location, that authority was never exercised. By Executive Order dated December 23, 1873, the President did, as he was bound to do by the treaty, establish the boundaries of the Article II reservation. Since that reservation, and the smaller ones covered by Article I of the Treaty were set aside in consideration, among other things, of the extinguishment of the Indian title to a much larger area of land, the lands comprising these reservations became firmly impressed with compensable Indian title. The United States, it is true, continued to hold the legal title, and the power to control and manage the affairs of the Indians, but the Indians who settled on the reservation held the right of occupancy which our courts have uniformly and consistently held is as sacred as the fee, together with all of its beneficial incidents. See United States v. Shoshone Tribe, 299 U.S. 476 and 304 U.S. 111, United States v. Santa Fe Pacific K. Co., 314 U.S. 339.

    There can thus be no doubt that the Indian title extended to each and every acre of land in the Tulalip Reservation. The question here, however, is whether the beneficiaries of that title today are all of the tribes or bands who were parties to the treaty, or the Indians who actually settled on the reservation, took allotments thereon as provided for in the treaty, and subsequently organized and incorporated as the Tulalip Tribes.

    At a casual glance, the decision of the Court of Claims in the case of the Quinaielt Tribe of Indians v. United States, 102 Ct. Cls. 822, would seem to require that this question be answered in favor of all of the tribes or bands that were parties to the Point Elliott Treaty, or who were the beneficiaries of its provisions. That action was brought by the "Quinaielt Tribe," and involved a claim for compensation arising out of the erroneous location of the northern boundary of the Quinaielt Reservation, which had been established pursuant to the provisions of a treaty also negotiated by Governor Stevens (12 Stat. 971), and containing provisions similar to those contained in the Point Elliott Treaty. The treaty was entered into by the United States, and the different tribes and bands of the Quinaielt and Quileute Indians. The main objectives of the treaty, like that of the treaty of Point Elliott, was to extinguish the Indian title to large areas of land, and to consolidate the Indians on a central reservation. By an act of March 4, 1911 (36 Stat. 1345), the treaty was modified and extended to provide for allotments on the Quinaielt Reservation:

    "*     *     * to all members of the Hoh, Quileute, Ozette or other tribes of Indians in Washington who are affiliated with the Quinaielt and Quileute tribes in the treaty of July first, eighteen hundred and fifty-five, and January twenty-third, eighteen hundred and fifty-six, and who may elect to take allotments on the Quinaielt Reservation rather than on the reservations set aside for these tribes: *     *     *"

As pointed out in Halbert v. United States, 283 U.S. 753, 758, the reference to other reservations is explained by the fact that some small reservations had been set aside theretofore for particular villages of the Hoh, Quileute, Ozette, Quit, Chehalis, and other fish eating tribes, but these reservations were in some instances limited to 640 acres and were in no instance large enough to provide allotments to more than a small fraction of the Indians thereon. In this situation, the Government contended that the so-called Quinaielt tribe, which consisted of the Indians who had settled on the Quinaielt Reservation and took allotments there, was not entitled to recover because, under the Treaty and the Executive Order establishing the reservation, other tribes were entitled to an interest in the reservation. Agreeing with that contention, the Court of Claims said:

    "The treaty was entered into with both the Quinaielts and the Quillehutes, and article VI of it provided that these tribes might be consolidated with other friendly tribes or bands for the purpose of occupying and enjoying the reservation; hence, when the Executive Order establishing the reservation was issued, acting under the authority of article VI, it set aside the reservation not only for the Quinaielts and the Quillehutes, but also for the Hohs, Quits, and other tribes of fish-eating Indians on the Pacific Coast. And the Supreme Court held in Halbert v. United States, 283 U.S. 753, that the Chehalis, Chinook, and Cowlitz tribes were entitled to equal rights in the reservation because they came within the designation of fish-eating Indians on the Pacific Coast.

    "It is plain, therefore, that the Quinaielts are not entitled to exclusive rights in the reservation. The Quillehutes, Hohs, Quits, Chehalis,


 

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DEPARTMENT OF THE INTERIOR

FEBRUARY 21, 1956

Chinook, and Cowlitz tribes are also entitled to an interest therein."

    It is to be observed that in reaching the foregoing conclusion, the Court of Claims relied on the decision of the Supreme Court in Halbert v. United States, 283 U.S. 753. However, I find nothing in that decision which lends support to the proposition that, in entering into these treaties, the contracting parties intended to vest in the treaty bands or tribes, as entities, the title to the treaty reservation lands. This would mean, of course, that the treaty operated as a grant in praesenti of the reservation lands to the several treaty tribes or bands. The Halbert case did not deal with this point. It dealt with the rights of individual Indians to receive allotments on the Quinaielt Reservation, and the principal question was whether their rights were dependent upon residence on the reservation. The Supreme Court held that residence on the reservation was not necessary. Any other conclusion would have defeated the very purpose of the treaty which was to gather and commingle the members of the several tribes on a reservation, the boundaries of which were yet to be fixed for the benefit of many Indians who resided elsewhere. The important thing was that the individual should possess the blood of some one or more of the several tribes or bands who were parties to the treaty in order that they might qualify for and enjoy the benefits of the reservation. There was clearly no present grant of title to any particular tribe or band.

    The Tulalip Reservation was unquestionably established for the benefit of all of the tribes and bands who were parties to the treaty. The obvious purpose of the treaty, however, was not to remove tribal entities intact, but to gather or consolidate the individual members of the treaty groups who desired to avail themselves of the privilege on the reservation. Each and every individual member of the several tribes or bands was privileged to settle upon the reservation. None of them, however, was required so to do. In essence, the treaty constituted nothing more than an offer to each individual member of the several tribes. which they were privileged to accept or reject.2 Those who accepted became vested with the full incidents of Indian title. Those who did not accept, and chose to remain where they were, or move elsewhere, cannot be properly regarded as invested with any enforceable right either in themselves or in their posterity.

    No particular tribe or band, as an entity, removed to the reservation. The individuals who did remove possessed the blood of some one or more of the treaty tribes or bands, and hence were truly representative of the treaty tribes and bands. Indeed, the situation at Tulalip is not unusual in this respect. Much the same situation developed in other instances as a result of the National policy of gathering or consolidating Indians on reservations in disregard of tribal or band ties, and, in common parlance, the amalgamated group commonly became known as a Confederated Tribe or as Confederated Tribes. Congressional sanction of this practice is in fact found in the Indian Re organization Act of 1934, which permitted the Indians residing on any one reservation to organize and incorporate, and pursuant to which the Indians on the Tulalip Reservation organized and incorporated under the corporate name of "The Tulalip Tribes of the Tulalip Reservation."

    While it is my opinion that the Indian title, as defined above, to the unallotted lands on the Tulalip Reservation is now vested in the Tulalip Tribes, I must reiterate that questions of this nature can effectively be determined only by a court of competent jurisdiction.

                                                                                                    EDMUND T. FRITZ,
                                                                                                                Acting Solicitor.

STATUTORY TIME LIMIT ON PAYMENT
OF CLAIMS UNDER ACT OF
JUNE 30, 1945

M-36333                                                                                                                             March 6, 1956.

Indians: Generally--Claims against the United States: Generally

Under section 3 of the act of June 30, 1945 (59 Stat. 265), claims or demands by individual Sioux Indians against the United States for personal property losses are barred unless a claim or demand was filed with the Office of Indian Affairs on or before June 30, 1955.

Indians: Generally--Claims against the United States: Generally

Since all of the original claimants had been identified prior to the enactment of the act of June 30, 1945, and were in the position of having had claims filed for them, and since the overwhelming majority of the original claimants were de-

____________________

    2 See and compare United States v. Santa Fe Pacific R. Co., 314 U.S. 339, in which it was held that a reservation established by an Act of Congress, for the benefit of the Indians of the Colorado River and its tributaries, constituted an offer by the Government to the Indians which they were privileged to accept or reject.


 

1713

OPINIONS OF THE SOLICITOR

MARCH 6, 1956

ceased at the time of the enactment, the statutory bar, as a practical matter operates against heirs and devisees who had not been identified so as to put them in the position of filing a claim or making a demand on or before June 30, 1955.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Statutory time limit on payment of claims under act of June 30, 1945 (59 Stat. 265)

    A question has been raised as to whether claims may be honored for payments authorized by the act of June 30, 1945 (59 Stat. 265), where the claimant had not been identified so that the Office of Indian Affairs had no notice of the claim on or before June 30, 1955, or an actual claim was filed by or on behalf of a bona fide claimant on or before that date.

    It is my opinion that such a claim or demand is barred by that part of section 3 of the 1945 act which reads:

    "Every claim or demand for payment of the individual awards made pursuant to said Act of May 3, 1928, shall be forever barred unless such claim or demand shall be filed with the Office of Indian Affairs within ten years after the date of the approval of this Act. The Secretary of the Interior shall cause diligent investigation and inquiry to be made for the purpose of identifying all persons entitled to share in the distribution of any such award, including the heirs or devisees of deceased claimants."

    The act of June 30, 1945 (59 Stat. 265), authorized an appropriation of $101,630 for the payment to certain individual Sioux Indians, their heirs or devisees, in full settlement and satisfaction of their claims against the United States for personal property losses as found and determined by the Secretary of the Interior on November 4, 1944, pursuant to the act of May 3, 1928 (45 Stat. 484). The authorized appropriation was made by an item contained in the First Deficiency Appropriation Act, 1946 (59 Stat. 632, 647). In the report dated March 30, 1945, of the Secretary of the Interior on H.R. 378, which became the act of June 30, 1945 (see Sen. Rep. No. 3 15, 79th Cong. 1st sess.), the background of this legislation is set forth as follows:

    "The Sioux Indians began asserting claims for personal property losses in the latter part of the nineteenth century, and prior to the passage of the Act of May 3, 1928, the Congress appropriated the aggregate sum of $416,260 in settlement of such claims. (See the Acts of March 2, 1889, 25 Stat. 888, 899; January 19, 1891, 26 Stat. 720; March 3, 1891, 26 Stat. 989, 1002; March 3, 1903, 32 Stat. 1031, 1074; June 21, 1906, 34 Stat. 325, 374.) The Acts of March 2, 1889, and January 19, 1891, required the Indians to accept the payments made thereunder in full satisfaction for all personal property losses suffered by them, and in pursuance of this requirement the Indians expressly re leased all further claims or demands against the United States for such property losses. Despite these appropriations and the releases mentioned, the Indians continued to complain that they had not been fully compensated for property losses. (See Senate Report No. 449, 62d Congress, 2d session.) Their complaints led to the passage of the Act of May 3, 1928, authorizing a general investigation of the losses.

    "Early in 1932 the claims for personal property losses filed under the Act of May 3, 1928, were adjudicated. Only an inconsiderable number were allowed, the balance of the claims being disallowed. A report thereon was made to the Congress on December 13, 1932 (Senate Document No. 152, 72nd Congress, 2d session), with the recommendation that $19,357 be appropriated to pay the claims allowed. This appropriation was authorized by the Act of February 16, 1933 (47 Stat. 818), and made by the Act of March 4, 1933 (47 Stat. 1602, 1609).

    "The attorneys for the claimants promptly filed objections to the disallowance of the claims by this Department and continued to object to the alleged injustice of the adjudication until on March 14, 1939, in a letter to Hon. Francis Case, House of Representatives, this Department agreed to a reexamination of the claims for personal property losses. Over a period of almost five years a thorough and exhaustive study of all available information and evidence gleaned from all available sources was made in connection with the reexamination of these claims. The reexamination was completed and submitted to me by the Assistant Commissioner of Indian Affairs on September 1, 1944, and the conclusions and findings were approved on November 4, 1944. It was found that an additional sum of $101,630 should be awarded the claimants. As the


 

1714

DEPARTMENT OF THE INTERIOR

MARCH 6, 1956

report of the Assistant Commissioner of Indian Affairs, which is enclosed and made a part of this Report, contains a detailed history of the claims, including the reasons for the reexamination thereof and the evidence bearing on the allowance or disallowance of such claims, a restatement of the findings and recommendations is not needed here."

    The losses of personal property (chiefly Indian ponies) occurred during the Sioux Indian War some 80 years ago. The original claimants, numbering in excess of 1,000, together with the amount to which each was entitled, were identified and determined in the November 4, 1944, findings and recommendations of the Secretary. Since the vast majority of the original claimants were deceased, the difficult problem confronting the Department and the Congress related to the distribution of the awards to the heirs and devisees of deceased claimants. To meet this problem, the Secretary recommended, and his recommendation was adopted by the Congress, that authority be conferred on the Secretary to distribute the amounts awarded to the claimants and "to ascertain the heirs or devisees of deceased claimants." It was also found that a time limitation should be placed on the distribution process. Accordingly, the Secretary recommended and the Congress adopted the provision quoted above from section 3 barring every claim or demand not filed or made within 10 years after the date of the approval of the act. The reasons given by the Secretary for including this provision in the bill, as taken from his report of March 30, 1945, were:

    "The inclusion in the bill of the foregoing provisions is deemed necessary in order to accord a degree of finality to all claims arising under the act of May 3, 1928. The records of this Department show that at the present time there remain unpaid and unclaimed balances of prior awards made under the act of May 3, 1928, in instances where a claimant or his heirs cannot be determined or identified. The evidence strongly indicates that such balances never will be claimed or paid. In view of the number of claimants to whom awards have been made and the fact that the overwhelming majority of such claimants are now deceased, it seems inconceivable that there will not be a number of instances in which the claimant died intestate without heirs or in which his heirs cannot now be identified. A period of 10 years would be sufficient time to ascertain if all persons or their heirs having an interest in the awards made can be determined or identified and the funds disbursed to them. The suggested amendment would permit the unpaid balance of all awards made under the act of May 3, 1928, which have been or may be found impossible of disbursement, to be returned to the United States Treasury, and would bring about the much-to-be desired result of making completely final the adjudication and payment of all claims filed under the act of May 3, 1928." (Sen. Rep. No. 315, 79th Cong. 1st sess., pp. 3, 4.)

    From the foregoing statement, as well as from the language of section 3 itself, it is quite clear that the Congress intended to bring the distribution process to an end within the 10-year period and to return to the United States Treasury at the end of that period the unpaid balances of all awards for which no claim had been filed or for which no demand had been made. Since all of the original claimants had been identified prior to enactment of the act of June 30, 1945, and were in the position of having had claims filed for them, the statutory bar would not operate against any such an original claimant who might possibly at this late date be alive and unpaid. As a practical matter, therefore, the statutory bar affects only heirs or devisees who have not been identified so as to put them in the position of filing a claim or making a demand.

    Under authority of the act of June 30, 1945, supra, the Office of Indian Affairs undertook to determine the individual Indians entitled to participate in the distribution of the awards and to file claims for them. This office, through an Examiner of Inheritance, has succeeded to this task, but he has not been able to complete the determination of the identity of all claimants to awards. We have recently been furnished with completed claims in 69 estates. Upon examination of these claims, we find that the claimants in 20 cases were identified on or prior to June 30, 1955. These claims may, therefore, be processed for payment. The claimants in the remaining 49 cases were not identified until after June 30, 1955, and there is now no authority for their payment without further legislation by the Congress. The claims in these 69 cases are returned herewith for disposition accordingly.

    Legislation is, of course, necessary in order to continue the distribution of the awards and to continue the availability of the unexpended balance of the appropriation made by the First Deficiency Appropriation Act, 1946.

                                                                                                    EDMUND T. FRITZ,
                                                                                                                Acting Solicitor.


 

1715

OPINIONS OF THE SOLICITOR

MARCH 16, 1956

DEVOLUTION OF YAKIMA INDIAN ESTATES

M-36331                                                                                                     March 16, 1956.

Indian Lands: Descent and Distribution: Generally.

A person disqualified by statute from inheriting in the estate of his ancestor shall be regarded as having predeceased the ancestor, and the inheritance shall be cast accordingly in the decedent's next of kin who are otherwise qualified.

Indian Tribes: Membership--Indian Lands: Descent and Distribution: Generally.

Under a statute providing that the names of certain classes of persons shall be placed on the tribal membership roll and providing further that only enrolled members shall be entitled to inherit, an apparent heir may be unenrolled at the date of his ancestor's death and yet be entitled to enrollment as a matter of right, thus becoming qualified to inherit.

Memorandum

To:            Mr. A. F. Joy, Examiner of Inheritance, Portland, Oregon
From:        The Solicitor
Subject:     Devolution of Yakima Indian estates

    We have considered the memorandum from Examiner of Inheritance R. J. Montgomery, dated July 28, 1955, in which he presented a number of questions regarding the devolution of estates of deceased Yakima Indians. These questions arise as a result of section 7 of the act of August 9, 1946 (60 Stat. 968, 25 U.S.C., 1952 ed., sec. 607), here after referred to as the Yakima Act, which reads as follows:

    "Hereafter only enrolled members of the Yakima Tribes of one-fourth or more blood of such tribes shall take by inheritance or by will any interest in that part of the restricted or trust estate of a deceased member of such tribes which came to the decedent through his membership in such tribes or which consists of any interest in or the rents, issues, or profits from an allotment of land within the Yakima Reservation or within the area ceded by the treaty of June 9, 1855 (12 Stat. 951), except that a surviving spouse of less than one-fourth of the blood of the Yakima Tribes may receive by inheritance or devise the use for life of one-half of the restricted or trust lands of the decedent located within the Yakima Reservation or within the area ceded by the said treaty of June 9, 1855."

I

    While the questions presented in Mr. Montgomery's memorandum are in part hypothetical, a concrete situation is noted involving the estate of Virgil Fred Jensen, Yakima No. 1297, who apparently died intestate on June 4, 1953, at the age of 64 years, while a resident of the State of Washington. It is reported that this decedent was survived by his wife, four children by a former marriage, a brother and a sister, and by a grandchild who is the issue of one of the decedent's living children. Except as limited by the enrollment and blood requirements of the Yakima Act, the decedent's property would be distributed in accordance with the applicable State laws of descent.1

    Section 7 of the Yakima Act contains disqualifying provisions which prevent individuals who may be the next of kin of a deceased member of the Yakima Tribes from inheriting if they do not meet the requirements specified in the act. Therefore, since the decedent's four children apparently do not possess the quantum of Yakima Indian blood required by section 7, they are ineligible to take that part of the decedent's restricted Yakima estate which they would normally have shared under the Washington statutes of descent with the decedent's surviving widow.2 Since the widow is reported to be qualified under the Yakima Act, she is entitled to inherit the interest granted to her under the Washington law. That brings us to Mr. Montgomery's first query--who is entitled to the remaining portion of the decedent's estate which came to him through his membership in the Yakima Tribes, or which consists of any interest in an allotment of land within the Yakima Reservation or within the area ceded by the treaty of June 9, 1855, supra. Specifically, should such interest pass under the laws of descent 3 to decedent's granddaughter, who

____________________

    1 25 U.S.C., 1952 ed., sec. 348
    2 RCW 11.04.020 (I).
    3 The Washington laws of descent (RCW 11.04.020) provide in part as follows:

"When any person dies seized of any lands, tenements or hereditaments, or any right thereto, or entitled to any interest therein, in fee simple, or for the life of another, as his separate estate, not having devised the same, they shall descend subject to the debts as follows:

"First: If the decedent leaves a surviving husband or wife and only one child, or the lawful issue of one child, in equal shares to the surviving husband or wife, and child, or issue of such child. If the decedent leaves a surviving husband or wife, and more than one child living, or one child living and the lawful issue of one or more deceased children, one-third to the surviving husband or wife, and the remainder in equal shares to his children and to the lawful issue of any deceased child by right of representation. If there is no child of the decedent living at his death, the remainder goes to all of his lineal descendants; and if all the descendants are in the same degree of kindred to the decedent, they share equally, otherwise they take according to the right of representation.

"Second: If the decedent leaves no issue the estate goes in equal shares to the surviving husband or wife, and to the decedent's father and mother, if both survive, or to the surviving father or mother in case only one survives the decedent. If there is no father nor mother, then one half goes in equal shares to the brothers and sisters of the decedent and to the children of any deceased brothers or sisters, by right of representation *     *     *."


 

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DEPARTMENT OF THE INTERIOR

MARCH 16, 1956

apparently meets the eligibility requirements of the Yakima Act but who is the issue of one of the above disqualified living children of the decedent, or should such interest go to the decedent's brother and sister who are likewise qualified to take as heirs under the Yakima Act.

    Examiner Montgomery did not state what the general practice has been under the Yakima Act regarding those estates where a decedent's next of kin were found to be disqualified as heirs. However, it has been noted from correspondence and copies of decisions in some decided Yakima probate cases that in the event of the ineligibility of a decedent's close surviving relatives to take as heirs, the descent has been cast under the State laws of descent upon more remote kindred who do meet the requirements of the Yakima Act.4 In these cases the next of kin who are disqualified necessarily would have to be regarded as having predeceased the decedent, thereby moving the more remote kindred into position as the decedent's qualified heirs at law.

    In reading section 7 of the Yakima Act it is apparent that the intention of the Congress is to preserve in the enrolled members of the Yakima Tribes of one-fourth or more blood of such tribes the interest in lands, rents, issues, or profits described therein. Such requirement is applicable to heirs and devisees alike. The exception relating to a surviving spouse of less than the said blood requirement is not involved in this case.

    As to those who meet the eligibility requirements of the Yakima Act we must turn to the laws of the State of Washington to determine the appropriate heirs of an intestate. Those laws provide first for descent of the estate to lineal descendants and if there be none then to collateral heirs. In giving effect to these laws I believe that the estate must be shared by the wife of the deceased and his granddaughter.

    The fact that the granddaughter must claim through one of the decedent's children who is disqualified from inheriting the property by the Yakima Act is not a bar. The inability of heirs lacking at least one-fourth blood of the Yakima Tribes under the Yakima Act to inherit the property described in that act is similar to the inability of an alien to inherit from a citizen at common law. In Abrams v. Slate, 88 Pac. 327 (1907), the Supreme Court of Washington stated that:

    "Because of lack of inheritable blood in an alien, it was originally the rule at common law that an alien could not inherit from a citizen nor could the citizen inherit from an alien. 2 Cyc. 94-96. By St. 11 and 12 Wm. III, c. 6, however, Parliament, in the year 1700, removed the common-law disability from natural born subjects claiming descent from, through, or under alien ancestors, so that such subjects might thereafter inherit from their alien ancestors. *     *     * This statute, having been enacted prior to the separation of the American colonies from the mother country, has become a part of the common laws of this state, except in so far as it has been supplanted by our Constitution or statutory enactments. Under this rule and without the provisions of our Constitution, a citizen could inherit from an alien an estate held by such alien at the date of his death, even though it had been defeasible (in the hands of the alien). When our Constitution conferred upon aliens the right to inherit, we interpret it to have conferred upon them a full and complete right of inheritance, which would imply not only the right in themselves to receive by such inheritance from a citizen, but also to receive by inheritance from an alien." [Parenthetical language supplied.]

    While no decisions by the courts of the State of Washington have been found for the proposition that a remote heir may take an inheritance even though such party must trace his right of heirship through one incapable of taking, there are cases in the courts of other States to that effect. In Ross v. Wertz, 172 Pac. 968 (Okla., 1918), cert. denied 248 U.S. 570, the inheritance of allotted lands of a Creek Freedman who died intestate without issue was involved. The closest descendants of the intestate were two brothers, cousins of the intestate.

____________________

    4 See letter of January 22, 1948, from the Assistant Commissioner of Indian Affairs to Congressman Hal Holmes, with a copy to former Examiner Bruce 1057-N); Estate of Benjamin Jarvis, where collateral relatives took, since that decedent's child was disqualified (1596-52); and the Estate of Agnes Teaius Clydehawks Scott, where a cousin related in the fifth degree took upon the disqualification of decedent's aunt (5431-50).


 

1717

OPINIONS OF THE SOLICITOR

MARCH 16, 1956

One of the brothers was living, the other deceased, but both had living children. The two brothers, Cherokee Freedmen, would have inherited the intestate's allotment if both were living and not barred because of their non-citizenship in the Creek Nation. However, that bar of non-citizenship in the Creek Nation did not apply to the offspring of the brothers who were Creek citizens through maternal blood. The court found that the offspring of the brothers took the Creek allotment of the intestate saying that the fact that such heirs must trace their kinship to the intestate through non-citizen blood was not a bar to inheriting the allotted lands.5 So in the present case the fact that the granddaughter of the intestate must trace her kinship through a parent who was incapable of inheriting under the Yakima Act should not be a bar to her inheriting the allotment under the laws of descent of the State of Washington.

II

    The remaining portion of Mr. Montgomery's memorandum deals primarily with the possible in heritance rights in a decedent's estate of persons who may be enrolled in the future with the Yakima tribes, some of whom may not yet be born. Upon the application of State laws of descent to the devolution of restricted Yakima estates6 cognizance would be taken of the generally accepted rule, which appears to be in force in the State of Washington, that the descent of a decedent's property is cast in his heirs immediately upon death.7 A decedent's apparent heirs would be identified as of that time, and the Examiner would then determine whether they are also qualified under the Yakima Act.8 If an apparent heir or devisee is enrolled and otherwise qualifies under the act, he may be regarded immediately as eligible to participate in the estate. However, if such person is not enrolled, but is otherwise qualified as an heir, the possibility may still exist that the omission of such person from the roll may be erroneous and subject to correction.

    The Yakima Tribal Council is authorized under section 3 of the Yakima Act to make corrections at any time in the Yakima roll, either by striking therefrom the name of any person erroneously placed on the roll or by adding to the roll the name of any person erroneously omitted therefrom. Of course, the subsequent placing of a person on the roll who had been erroneously omitted there from would not, on the basis of the limiting provisions in section 6 of the Yakima Act, entitle such enrollee to back annuities or per capita payments authorized to be made to members of the Yakima tribes before such person was placed on the roll. However, the logical conclusion which may be drawn from the provisions in section 6 is that a previously omitted enrollee had such an enrollment right which, but for the limiting provision in that section, would have entitled such person to share in tribal payments whether made before or after his name was placed on the roll. Absent such a right the express prohibition against sharing in back annuities would have been wholly unnecessary. Moreover, the recognition of such a right would also seem to be apparent by the language of section 3 which provides a remedy through action by the tribal council for the addition to the roll of the names of persons "erroneously omitted."9

    Thus, while persons erroneously omitted from the Yakima roll, but subsequently placed thereon by tribal action under section 3 of the Yakima Act, would be barred by specific prohibitions in section 6 from sharing in back annuities, nevertheless such a prohibition would appear to have no effect upon their inheritance rights, and they would be eligible heirs or devisees if they otherwise meet the requirements of section 7. Consequently, where an apparent heir, unenrolled at the time of his ancestor's death, is thereafter placed on the Yakima roll under section 3 and otherwise qualifies under section 7, his right to inherit would seem to arise consonant with his enrollment right, i.e., as of the date of the Yakima Act or upon his birth, whichever date is later in time. Under this theory, the examiner necessarily would have to satisfy himself that an unenrolled heir or devisee, who is otherwise qualified under the Yakima Act, does or does not have

____________________

    5 In a number of states the disqualifications of a person as an heir has prompted the casting of the descent as if the ineligible person had predeceased the decedent. See North Dakota Rev. Code (1943) sec. 56-0423; Rev. Stats. Nebr. (1943) sec. 30-119; South Dakota Code (1939) sec. 56-0503; Page's Ohio Gen. Cole Ann. (1938) sec. 10503-17 See also Cowan v. Pleasant, 263 S.W. (2d) 494 (KY., 1953); Bates v. Wilson, 232 S.W. (2d) 837 (KY., 1950).
    6 Fn. 1. infra.
    7 16 Am. Juris., p. 786 et seq., RCW 11.04.250; In re Verchot's Estate, 104 P. (2d) 490. 494 (Wash., 1940).
    8 It may be noted that deaths of Yakima members no doubt occurred between the date of approval of the Yakima Act and the preparation and approval of the Yakima roll on November 28, 1951. However, since only enrolled members of the Yakima tribes may qualify as heirs or devisees under the Yakima Act, of necessity the probating of a number of Yakima estates probably was delayed pending the approval of the roll.
    9 Any enrollment light in this respect, which was not recognized on the roll through erroneous omission would of necessity hale to them from section I of the Yakima Act. With the exception of after-born children, such a right arises at the time authority was granted for enrollment, i.e., the date of the Yakima Act on August 9, 1946. Under section 1 (d) of that act, the right to enrollment of after-born children would be consummated at birth.


 

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DEPARTMENT OF THE INTERIOR

MARCH 16, 1956

enrollment rights under section 1 of the Yakima Act. If the examiner feels that the heir was "erroneously omitted" from the roll, the examiner should then suspend action looking to the closing of the estate until the tribal council action under section 3, or the Secretary of the Interior acting with the consent of the tribal council under section 1 (d), 10 has had an opportunity either to place the heir on the roll or to reject such enrollment.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

WATER RIGHTS OF BISHOP, BIG PINE AND
LONE PINE RESERVATION, CALIFORNIA

M-36334                                                                                                     March 16, 1956.

Indian Lands: Water Rights.

The indenture between the City of Los Angeles and the United States creates a vested right to use a particular quantity of water on four tracts of land conveyed to the United States and its assigns by the city. Issuance of a patent on such lands in no way terminates the obligation of the city as promised in the deed.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Water rights of Bishop, Big Pine and Lone Pine Reservation, California

    In a memorandum of February 15, 1956, you requested a legal opinion as to whether the City of Los Angeles, California, is obligated to continue the delivery of water to certain lands in the event that these lands (1) become fee patented and (2) be sold to non-Indians. The lands comprise the Indian reservations cited above which are located in Inyo and Mono Counties, California, and which were conveyed in fee by the City of Los Angeles to the United States and its assigns by a deed bearing the date of June 26, 1939.

    An act of April 20, 1937 (50 Stat. 70) authorized the Secretary of the Interior to enter into a land exchange with the City of Los Angeles and to accept title on behalf of the United States to lands and water rights then owned and held by the City of Los Angeles in the counties of Inyo and Mono, State of California, if, in his judgment the interests of the Indians in said counties would be benefited thereby. In exchange therefore the said Secretary was authorized to issue a patent or patents to the said city for lands, water rights, and buildings held by the United States for the benefit of the Indians, provided that the lands, water rights, and buildings covered by the patent or patents did not exceed in value the lands and water rights conveyed by the said city to the United States. Pursuant to this act an indenture dated June 26, 1939, provided for the exchange of lands between the city and the United States as trustee together with a covenant to deliver 6045.92 acre feet of water per annum. In the alternative water could be extracted from local sources, either from streams or from wells under the land. It was also expressly stated that the agreement shall "inure to the benefit of and be binding upon the city and its successors and assigns and the United States and its assigns."1

    It now appears that the city admits its obligation to deliver or allow offsets for water on the exchanged lands only as long as the United States holds title for benefit of the Indians. It has been contended on behalf of the city that the city only agreed to deliver an amount of water calculated to supply the needs of the Indian occupant and that it stands to lose valuable water rights in the event that the subject lands are occupied by non-Indian purchasers whose water needs may be greater.2

    The indenture between the city and the United States purports, however, to be an exchange of property for the mutual benefit of both parties. It creates a vested right in the United States to use a particular quantity of water on the four tracts of land exchanged.3 It further provides that the covenant shall inure to the benefit of the assignees of the United States. These words cannot be construed as a restriction upon the United States against alienation of the land or the water appurtenant thereto. The deed does not restrict the use of delivered water to a use solely by Indians. The promise for delivery of water or for extraction of water from local sources in the alternative is absolute.

    It is my opinion, therefore, that the issuance of a patent to such land either to an Indian or a non-Indian would in no way terminate the obligation of the city as promised in the deed.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

__________________

    10 The Secretary's function in this respect has, pursuant to delegated authority, been vested in the Commissioner of Indian Affairs (Order 2508. Amdt. 3, 16 F.R. 11974).
    1 Deed. The City of Los Angeles (a municipal corporation) and the Department of Water and Power of the City of Los Angeles, Grantors, to the United States of America, Grantee. 28, p. 7, 29, p. 11.
    2 Report of the Senate Interim Committee on California Indian Affairs. Senate of the State of California (S.R. 115) 1955, pp. 302-303.
    3 Deed. supra, 30, pp. 15, 16, 31, p. 18.


 

1719

OPINIONS OF THE SOLICITOR

MARCH 26, 1956

KLAMATH TERMINATION ACT AS APPLIED TO
TRIBAL INDEBTEDNESS OF WITHDRAWING
MEMBERS

M-36337                                                                                                         March 26,1956.

Indian Tribes: Terminal Legislation

Section 20 of the Klamath Termination Act (P.L. 587, 68 Stat. 723; 25 U.S.C. 564u) accelerates and assures repayment of loans made from the Klamath Revolving fund by authorizing the Secretary to apply any funds payable to a withdrawing member of the tribe, as a set off against any indebtedness payable to the tribe or to the United States, in whatever amount is required to liquidate such debt although according to the terms of the loan contract the entire debt is then neither due nor in default.

Statutory Construction--Administrative Construction

In section 22 of the Klamath Termination Act (68 Stat. 723; 25 U.S.C. 564u) the words "any other contract heretofore approved" do not apply to tribal loan contracts. The operation of section 20 which permits the Secretary to set off certain funds against the entire indebtedness of a borrower at the time he withdraws from the tribe is not an abrogation of the contract which would be prohibited under section 22. A necessary requirement to obtain a tribal loan is membership in the tribe and when the membership is ended by the member's voluntary election he consents among other things to settlement of his loan account.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Interpretation of sections 20 and 22 of Klamath Termination Act as applied
                 to the tribal indebtedness of withdrawing members.

    This office has been requested, as a result of a letter, dated November 16, from the Acting Superintendent of Klamath Indian Agency to the Area Director of the Portland Area Office to state an opinion on the above subject.

    "The Secretary is authorized to set off against any indebtedness payable to the tribe or to the United States by any individual member of the tribe or payable to the United States by the tribe, any funds payable to such individual or tribe under sections 564-564w of this title and to deposit the amounts set off to the credit of the tribe or the United States as the case may be." (68 Stat. 723; 25 U.S.C.A., sec. 564s.)

    Section 22 of Public Law 587 (68 Stat. 723; 25 U.S.C.A., sec. 564u) is as follows:

    "Nothing in sections 564-564w of this title shall abrogate any valid lease, permit, license, right-of-way, lien, or other contract heretofore approved. Whenever any such instrument places in or reserves to the Secretary any powers, duties, or other functions with respect to the property subject thereto, the Secretary may transfer such functions, in whole or in part, to any Federal agency with the consent of such agency and may transfer such functions, in whole or in part, to a State agency with the consent of such agency and the other party or parties to such instrument."

    It has been urged that where a tribal member has an existing and valid contract of indebtedness to the tribe, neither due nor in default, there is nothing contained in the above statutes which as a result of the member's election to withdraw from the tribe would either cause the entire indebtedness to become due or to be in default. This interpretation permits either a voluntary agreement whereby the loan might be repaid once sufficient funds are available to the withdrawing member, or a withholding of the member's share of the sale proceeds, by the Management Specialists, to be applied on the debt according to the repayment schedule of the loan contract. In either case, this interpretation is based on the theory that section 20 must be read with section 22 which provides that there shall be no abrogation of an approved contract resulting from the application of the act and that, in the absence of an agreement to accelerate the repayment of loans by the set-off provision authorized in section 20, the indebtedness continues for the remainder of the contract term whether the borrower has elected to withdraw from the tribe or not. We cannot agree with this conclusion.

    The Klamath Indians were required to pledge as security for the loans obtained from the Revolving Fund " *     *     * in addition to any unrestricted real or personal property owned by them, any lands, interest in lands, rights, funds, future per capita payments and other distributions of tribal assets, and other property, real, personal, or mixed, of any nature whatsoever, belonging to individual Klamath Indians, regarded or classed


 

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DEPARTMENT OF THE INTERIOR

MARCH 26, 1956

*     *     * as trust or restricted Indian property." (50 Stat. 872, sec. 4.)

    I do not interpret the operation of section 20 as an abrogation of contract which would be prohibited under section 22. A necessary requirement to obtain a tribal loan is the membership in the tribe and the pledge of the member's interest in the distribution of tribal assets as security. The consequences of an election to withdraw include all provisions of the termination act, section 20 of which expressly provides for settlements of loan accounts of withdrawing members.

    In my opinion, section 20 accelerates and assures the repayment of the loans in question by authorizing the Secretary to apply funds, otherwise payable directly to the borrowers, to the repayment of their loans. The set-off authorized by section 20 is not limited to cases in which the borrower agrees to such a plan of liquidation. The words of the statute are clear. "The Secretary is authorized to set off against any indebtedness payable to the tribe or to the United States *     *     *," therefore, the Secretary may apply from the funds payable to a withdrawing member whatever amount is required to liquidate his debt notwithstanding the fact that, according to the loan contract, the entire debt is not yet due and payable or in default.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

EMPLOYMENT AS INTERPRETER OF GOVERNMENT
EMPLOYEE BY NAVAJO TRIBE

M-36340                                                                                                           April 2, 1956.

Indians: Traders

The act of June 30, 1834 (4 Stat. 738, 25 U.S.C.A. sec. 68) forbids persons employed in Indian affairs from having any interest or concern in any trade with the Indians, except for, and account of the United States. Although the exact bounds of this prohibition have not been judicially determined, the Department of the Interior will not authorize any Government employee engaged in Indian affairs to perform services for pay for individual Indians, Indian tribes, associations or corporations. The employment of a Government employee as a tribal interpreter for pay raises such a close question of possible violation of the subject statute as to require disapproval of the proposed dual employment.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Employment as interpreter of Government employee by Navajo Tribe

    A question has been raised as to the propriety of authorizing a Federal employee of the Navajo Agency to be employed by the Navajo Tribe as an interpreter when not occupied on Government business. It is the opinion of this office that serious legal objections exist as to such proposed employment.

    A Federal statute may be interpreted as forbidding such dual relationship on the part of a Government employee. Section 68 of Title 25, United States Code, provides that "no person employed in Indian affairs shall have any interest or concern in any trade with the Indians, except for, and on account of, the United States; and any person offending herein, shall be liable to a penalty of $5,000, and shall be removed from his office."

    Section 68 (a) of Title 25, U.S.C., permits certain exceptions having to do with the purchase of products and services from the Indians--not to the Indians.

    The memorandum from the Commissioner of Indian Affairs dated December 22, 1955, describes the proposed employment as one which "provides services and appears to constitute trading with the Indians." Although Part 277 of Title 25 of the Code of Federal Regulations governs trading with the Navajo Indians it contains no clarification of the construction of the words "have any interest or concern in any trade with the Indians." With out administrative precedent there are two possible interpretations of this statute--one of which would permit an employee of the Department engaged in Indian Affairs to act for compensation as a part time interpreter for an Indian Tribe and one which would make such activity a crime. The construction of the word "trade" is the decisive factor.

    United States v. Douglas, 190 Fed. 482, is one of the first instances in which the courts were called upon to determine the scope and effect of the Federal statutes forbidding persons employed in Indian affairs to have any personal interest or concern in trade with the Indians. A Government employed school teacher, herself a member of the tribe, bought a herd of cattle from a fellow tribesman. The court found this a violation and stated "There was nothing in this act to indicate a purpose on the part of Congress to authorize the government's own agents, placed in a controlling position to use that position, to overreach its wards." All the statutes relied upon as bearing on the con-


 

1721

OPINIONS OF THE SOLICITOR

APRIL 2, 1956

struction of the word "trade," and many others, have been carefully considered; but none of them have any tendency to show that the word "trade" was used in the act in question in any other than its usual and ordinary sense.

    "The government in its capacity as quasi guardian ought not to allow its agents to be tempted to overreach its wards." (p. 490.)

    The Supreme Court in United States v. Hutto, No. 1 (25 U.S. 524) had this to say about the statute:

    "*     *     * In its original setting, and more emphatically when grouped in the Revised Statutes with other provisions having to do with the supervision and management of the affairs of the Indians, it manifestly was and is designed to insure integrity of conduct on the part of all persons employed in Indian Affairs, and an impartial attitude towards the Indians, by excluding from persons so employed all motives of personal gain, so that the duty of the United States as trustee for these dependent peoples, recognized wards of the Government, might be performed with a single regard for their interests appropriate to the fiduciary relation. The purpose was to protect the temptations due to possible cupidity on the part of persons coming into contact with them as representatives of the United States; and thus to maintain the honor and credit of the United States; rather than to subserve its pecuniary interest."

    The Supreme Court in Ewert v. Bluejacket (259 U.S. 129) added the following:

    " ' The general rule of law is that an act done in violation of a statutory prohibition is void and confers no right upon the wrongdoer.' Waskey v. Hammer, 223 U.S. 85, 94, and cases cited. The qualifications of this rule suggested in the decisions are as inapplicable to this case as they were to the Waskey Case. The mischief sought to be prevented by the statute is grave and it not only prohibits such purchases but it renders the persons making them liable to the penalty of the large fine of $5,000 and removal from office. Any error by the department in the interpretation of the statute cannot confer legal rights inconsistent with its express terms. Presser v. Finn, 208 U.S. 67."

    Finally the contemporary uses of the word "trade" are much broader than they were at the time of the 1834 statute from which section 68 of Title 25 of the United States Code derived. The statutes and case law of more modern origin have greatly broadened the use of the word "trade" so that it is not at all unlikely that furnishing services as an interpreter would be construed as being an interest in a trade. The possibilities of overreaching are not too farfetched to be considered. Nothing the Secretary of the Interior can do by way of authorization or regulation will provide a defense in case of a criminal prosecution. It therefore appears inadvisable to authorize the dual employment in question.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

ENROLLED AND ALLOTTED CHEYENNE RIVER SIOUX
LIVING ON ANOTHER RESERVATION--ENTITLEMENT
TO APPROPRIATED REHABILITATION AND
RELOCATION FUNDS

                                                                                                                         April 2, 1956.

HON. E. Y. BERRY
House of Representatives
Washington 25, D.C.

MY DEAR MR. BERRY:

    With reference to your letter of March 14, 1956, in which you inquire whether an Indian who is enrolled and allotted on the Cheyenne Reservation, but who lives on another reservation, is eligible for rehabilitation benefits under the act of September 8, 1954 (68 Stat. 1191), our study indicates that such a non-resident Indian is not so entitled.

    Section V of the act sets up funds for the rehabilitation and relocation of all members of the Sioux Indians who are residents of the Cheyenne River Sioux Reservation. The act is very clear that its purpose is to assist financially all members resident on the reservation, whether or not residing within the taking area of the reservoir project, and for relocating and reestablishing members who reside on lands conveyed to the United States to the extent that the economic, social, religious, and community life of all Indians shall be restored to a condition not less advantageous than enjoyed on the date of the act. Membership in the tribe and residence on the reservation at the time of the passage of the act are thus indispensable conditions to participation in the rehabilitation and relocation fund established by section V of the act.

    For your further information we are enclosing two copies of our memorandum (M-36323) dated January 12, 1956, which we believe will be of some assistance with reference to questions of statutory


 

1722

DEPARTMENT OF THE INTERIOR

APRIL 2, 1956

construction raised by the application of the act. If further questions arise, do not hesitate to call on us.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

INTERPRETATION OF THE ACT OF JUNE 30, 1919
(41 STAT. 17) AS IT APPLIES TO INDIVIDUAL
ALLOTTEE

                                                                                                                        April 17, 1956.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Interpretation of the Act of June 30, 1919 (41 Stat. 17) as it applies
                 to the allotment of Vernie White Lamma, Blackfeet allottee No. 2313

    By referral of a letter from Area Director Cooper dated February 6, 1956, to this office, you have requested our further interpretation of the Act of June 30, 1919 (41 Stat. 17), as it applies to the ownership of oil and gas underlying 80 acres of the allotment of Vernie White Lamma, Blackfeet allottee No. 2313. A brief review of the facts appears to be necessary.

    Under the provisions of the 1919 act, supra, Vernie White was allotted, as a homestead, the N1/2 NE1/4 of Section 9, Township 37 North, Range 6 West, MPM. A restricted fee patent covering this allotment was issued to her on October 26, 1922, and it reserved all minerals including oil and gas to the United States "for the benefit of the Black feet Tribe of Indians until Congress shall otherwise direct." Subsequently, in 1929, the allottee proposed to sell the 80 acres designated as a homestead in order to use the proceeds to build a home on other lands earlier allotted to her under the 1907 act (34 Stat. 1035), and in aid of such proposal she requested permission to re-designate her homestead. The re-designation was approved and in due course a lieu trust patent, No. 1034730, dated February 12, 1930, was issued to Vernie covering N1/2 NE1/4 of Sec. 9, 37N-6W, and the S1/2 SE1/4 Sec. 13, N1/2 NE1/4, SE1/4 NE1/4, Lot 11 Sec. 24, 30N-7W, reserving the minerals in the N1/2 NE1/4 Sec. 9 to the United States for the Blackfeet Tribe. On the same date a lieu restricted fee patent, No. 1034731, was issued to Vernie covering Lot 12 and the SW1/4 NE1/4 Sec. 24, 30N-7W without reservation of minerals.

    Again, some years after the re-designation of the homestead lands, Vernie White (Lamma) proposed to sell lands and accordingly applied for a fee patent covering N1/2 NE1/4 of Sec. 9, 37N-6W (lieu trust patent No. 1034730 lands). In transmitting the request the Superintendent's report erroneously stated that all of the land in trust patent No. 1034730 had been allotted to Vernie under the Act of March 1, 1907 (34 Stat. 1035). Attached to the Superintendent's report was a letter from the Blackfeet Tribal Council dated April 12, 1951, recommending the issuance of a fee patent to Vernie. On July 25, 1951, the Area Director approved Vernie's application and requested that a fee patent issue to her "reserving for the allottee, in accordance with the act of March 1, 1907 (34 Stat. 1035) all minerals, including oil and gas." For reasons not shown this letter was apparently never mailed to the Bureau of Land Management for issuance of a patent. Instead, by letter dated August 13, 1951, addressed to the Bureau of Land Management, the Area Director stated that the Vernie White (Lamma) application had been approved and requested the issuance of a fee patent, omitting any reference to a reservation of minerals to the United States for the benefit of either the tribe or Vernie.

    In fee patent No. 1134466 issued to Vernie on April 10, 1952, covering the N1/2 NE1/4 of Sec. 9 and the other lands for which application had been made, there was no reservation of minerals. By deed dated July 7, 1952, Ray A. Lamma and Vernie White Lamma, husband and wife, conveyed to Oswald Bradley all their right, title, and interest in and to the N1/2 NE1/4, Sec. 9, excepting and reserving 61/4% of all oil, gas and other minerals produced and saved.

    At Blackfeet oil and gas lease sale No. 4, Unit No. 77, all of Section 9 in Township 37 North, Range 6 West, MPM was advertised for sale as a tribal oil and gas lease and the Union Oil Company of California was the successful bidder there for. The Union Oil Company has, through its attorneys, Coleman, Jamison and Lamey, requested approval of the oil and gas lease submitted.

    After consideration of the Act of June 30, 1919, supra, it is our conclusion that the minerals in this particular tract of land should have been reserved for the benefit of the Blackfeet Tribe of Indians until Congress shall otherwise direct. It is apparent that N1/2 NE1/4, Sec. 9, were lands which were in tribal ownership on June 30, 1919, and that they were allotted subject to the act of that date. No administrative action, whether it results in the issuance of a fee patent by mistake or by intention, even with the approval of the Blackfeet Tribe itself, can have any effect to dispose of the minerals


 

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underlying these lands until Congress shall have made such action possible. Cf. United States v. Frisbee, 57 F. Supp. 299 (1944).

    In the circumstances, the fee patent No. 1134466, dated April 10, 1952, as well as the purported conveyance and the partial reservation of minerals contained in the allottee's deed of July 7, 1952, to Oswald Bradley, constitute clouds in the Tribe's interest in the minerals. The matter could be corrected by appropriate quit claim deeds or, if such deeds are not obtainable, the case can be referred to the Department of Justice for the institution of action to quiet title to the minerals on behalf of the Tribe. It is suggested that an effort be made to obtain quit claim deeds to the United States "for the benefit of the Blackfeet Tribe of Indians until Congress shall otherwise direct," from the allottee and her spouse and from her grantee, Oswald Bradley and his spouse, if any. Upon advice from your office that such quit claim deeds are not obtainable this office will refer the matter to the Department of Justice for the institution of a quiet title action. In the meantime, and until the matter is settled, we concur in the Area Director's proposal to hold in suspense the lessor's income from the tribal oil and gas lease.

    It is noted also that another fee patent was issued to the allottee on November 27, 1953, for that portion of the lands included in the lieu restricted fee patent described as the SW1/4 NE1/4 and Lot 12, Sec. 24, 30N-7W. It appears from the information at hand that this fee patent reserved the minerals to the United States for the benefit of the Blackfeet Tribe. It is our opinion that the minerals underlying these lands, having been allotted under the 1907 Act, supra, are the property of the allottee. The purported reservation of these minerals to the Tribe constitutes a cloud on the allottee's title. After action is completed along the lines indicated above to quiet the Tribe's title to the minerals underlying the N1/2 NE1/4 of Sec. 9, 37N-6W, an appropriate instrument can be issued to the allottee to quiet her title to the minerals purportedly reserved in the fee patent of November 27, 1953.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

POWERS OF TRIBAL GOVERNMENTS--
INTERPRETATION OF CONSTITUTION

M-36342                                                                                                         April 23, 1956.

Indian Tribes: Constitutions--Indian Tribes: Tribal Government

Where the constitution and bylaws of an Indian tribe or other Indian association make no provision for removing officers or members of their governing body, the General Council has the authority to remove officers and Executive Board members at its discretion. The General Council is made up of all members of the organization eligible to participate and as such can determine the desirability of continuing persons in office unless limited by their constitution and bylaws.

Indian Tribes: Constitutions--Indian Tribes: Tribal Government

Where it is desirable to reduce to writing existing constitutions or rewrite in substantially new and changed form the constitution and bylaws of an Indian tribe or association not incorporated under section 16 of the Indian Reorganization Act, under the provisions of Departmental Circular 3160, dated May 5, 1936, such proposed constitution and bylaws shall be forwarded to Washington for approval, and, if approved, be sent back for ratification by the qualified voters of the tribe (those listed on the census rolls) for referendum by secret ballot.

Indian Tribes: Constitutions--Indian Tribes: Tribal Government

Where actions have been taken by an Indian General Council or Executive Board of a group not incorporated under the provisions of section 16 of the Indian Reorganization Act in substantial compliance with the provisions of a constitution or bylaws, such actions will be liberally construed to find compliance and will not be rejected for failure to give that strict compliance as would be expected of a non-Indian group such as a business corporation or State political unit. However at least a minimum of compliance must be found so as to indicate a sincere effort on the part of the Indian group to comply with the intent of the document as interpreted in the light of the Indian practices and customs of the group involved.

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Fort Peck Tribal Affairs

    Several questions have been raised in connection with tribal affairs on the Fort Peck Reservation in Montana. Concisely stated the problems require an opinion as to the validity of the 1927 constitution of the Affiliated Assiniboine and Sioux Tribes as amended December 13, 1952, as opposed


 

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to their proposed constitution offered for Departmental approval in 1954 after acceptance at the General Council. The Commissioner of Indian Affairs pursuant to the authority vested in this Department by virtue of 25 U.S.C. 2 issued the Departmental instructions, to which your memorandum reforms, on May 5, 1936 (Circular No. 3160) governing approval of new or rewritten constitutions for tribes not organized under the Indian Reorganization Act. The applicable provisions of that circular state: "After a constitution is drafted, it should be forwarded to the Washington office for approval. If approved, it will be sent back for ratification by the qualified voters of the tribe (those listed on the census roll) for referendum by secret ballot." The Fort Peck Indian authorities did not comply with the above procedure; the constitution has not been forwarded to Washington for approval nor has it been ratified by the qualified voters of the tribes by referendum using secret ballot. That the administrative practice has been not to recognize the validity of the 1954 constitution is shown by the fact that John M. Cooper, Area Director of the Billings Area, Bureau of Indian Affairs, Department of the Interior, by affidavit filed with the court in John J. Akers v. Assiniboine and Sioux Tribes (Civil No. 1729 in the United States District Court for the District of Montana) stated that the so-called constitution of 1954 filed as Exhitbit A in that suit "was not adopted by the said tribes as stated in paragraph IV of the complaint, or at all." It is the opinion of this office that until properly ratified, after review and approval by this office, the so-called "1954 constitution" has no standing and that only the 1927 constitution as amended is the constitutional document governing the affairs of the combined Sioux and Assiniboine Tribes on the Fort Peck Reservation.

    We come then to a consideration of whether the actions taken in calling several General Council meetings held on the Fort Peck Reservation substantially complied with the 1927 constitution so as to permit this Department to recognize and act in accordance with resolutions adopted at the meetings. We have already reviewed the events which lead up to the General Council meetings held on January 7 and 28, 1956, and have concluded that, although the procedures followed left much to be desired, we could not find that there had not been an effort to comply with the procedural requirements of the 1927 constitution sufficient to permit recognition of the meetings. The 1927 constitution provides that the Executive Board shall designate the place of General Council meetings if the prior General Council fails to do so. It also lists as one of the duties of the Secretary of the Executive Board the giving of notice of all meetings of the Council. In view of the fact that the constitution and bylaws do not prescribe the manner and form of giving notice of General Council meetings and that the Executive Board by resolution declared their intention of holding a General Council (without deciding on the time and place), that notices were posted signed by six members of the Executive Board giving time and place, and finally that the Board adopted a resolution authorizing that food be provided as well as space be made available for the meeting at the time and place set forth on the notices, it is our opinion that there has been substantial compliance with the 1927 tribal constitution.

    We are now requested to express an opinion as to whether the removal of the chairman and vice chairman by the tribal council at such meeting was effective [as a matter of law]. The amended 1927 constitution provides that any member of the Executive Board "found guilty in not working for the best interest of the Indians of the Fort Peck Reservation shall be automatically dropped." (Resolution No. 42-52.) Officers of the council are, by Article II of the 1927 tribal constitution, "members of the board ex officio." Therefore they may be removed by the council upon a finding that they failed to work for the best interest of the Indians of the Fort Peck Reservation. Such a finding was made by resolution and the chairman and vice chairman were removed. In view of the fact that the constitution is totally silent as to any procedural requirement as to the preferring of charges or presentation of evidence we do not feel that this office can read into it any requirements which the Indians affected did not see fit to spell out in the document. We feel constrained to follow the ruling of Assistant Commissioner William Zimmerman, .Jr., rendered on the identical point by letter dated July 24. 1946, which states as follows:

    "The fact that the Fort Peck Constitution makes no provision for removing members from the Executive Board does not deprive the tribe of the right to remove members from the Board it it so chooses. Powers of the Executive Board are powers of the tribe which the tribe has delegated to the Board. The tribe reserves the right to withdraw any or all of these powers at any time it sees fit. The same applies to the members of the Board. It is the tribal members who elect representatives to the Executive Board, and it necessarily follows that those members may remove their representatives from the Board if those representa-


 

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tives do not act in accordance with the wishes of the tribe. Therefore, since the Font Peck Indians in general council duly assembled voted that you shall be removed from your position on the Executive Board, this Office can only conclude that you are no longer a member of that Board."

It is our opinion that the action of the general council in removing the chairman and vice-chairman was effective.

    The same constitution which gives the general council its authority to govern Indian affairs on the Fort Peck Reservation details the method of electing successors to fill vacancies on the board. There is a possible ambiguity with reference to the methods prescribed for filling vacancies in office. Article V, section 2 of the bylaws states:

    "The Board shall have power to fill vacancies occurring among the officers of the council *     *     *."

The amendment to the 1927 constitution (Resolution No. 46-52, above referred to) states that "vacancies on the Executive Board will be filled by another election." It also provides for an election procedure including secret ballot. However, at the meetings of the General Council held on January 7 and 28, no permanent replacements were either appointed or elected to fill these vacancies.

    A later meeting of the general council was held on April 7, 1956, and a further question arises as to whether this meeting was valid, and, if so, whether the action of the council in removing all officers and members of the executive board and electing an entire new slate to replace them sufficiently compares with the 1927 constitution so as to require this Department to deal with these elected officers and to honor the resolutions of the new Executive Board. In brief, the April 7 council meeting was called not by either a prior General Council nor by the Executive Board but by a notice initiated and signed by three members of the Executive Board and four Indians not members of that board. The notice appears to give their positions in other organizations as their identification and authority. There was no Executive Board action as such on the matter. The notice was signed by Louis Youngman, Poplar District chairman, William Youpee, Poplar committeeman, Kermit Smith, Wolf Point committeeman, Carl Walking Eagle, Riverside committeeman, James Youpee, Riverside committeeman, George Washington, Riverside District, Chairman, and Patrick Necklace, Fort Kipp District chairman. Only three of these signers (as underlined) are members of the Executive Board out of a total of twelve, elected from six voting districts on the Fort Peck Reservation, not including the officers who are ex officio. The total, including officers, has been fourteen members. Due to the removal of chairman and vice-chairman, the Executive Board consisted of at least twelve elected members. Since only three of these members signed the notice, we do not believe that any effort can be found to have been made to comply with the constitutional provision requiring that meetings be called by the Executive Board. On the other hand, for the January 7 and 28 meetings of the General Council, we found that at least one resolution of the Executive Board called such a meeting and one resolution adopted the time and place set forth in a notice signed by six members of the board. There was no action taken here to comply with the procedural requirements of the 1927 constitution. The Executive Board did not meet to determine whether there should be a General Council nor were they called together to do so. Three of the signers of the "notice" of the April 7 meeting could have called such an Executive Board meeting. All of the signers identified themselves not as officers or members of the Executive Board of the "Fort Peck Tribal Council" but as committeemen and district chairmen of other organizations. A somewhat analogous problem was presented in 1946 when a delegate representing "districts" on the reservation was denied compensation on the ground that she did not represent the "`Fort Peck Indians." William Zimmerman, Jr., Assistant Commissioner of Indian Affairs, explained in a letter to Senator James E. Murray, dated October 28, 1946:

    "*     *     * Mrs. Spindler was authorized by three districts of the Fort Peck Reservation to represent them in Washington. The question of Mrs. Spindler's status as a delegate to represent the Fort Peck Indians was discussed with her on several occasions while she was in the Washington Office, and it was explained that such credentials as she was able to file only represented the attitude of three of the six districts of the Reservation. Mrs. Spindler was advised that the Indian Office could not recognize her as an official tribal delegate, representing the Fort Peck Indians entitled to reimbursement for her expenses, although every courtesy and opportunity to present matters affecting the Fort Peck Indians were extended to her."


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