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1726

DEPARTMENT OF THE INTERIOR

APRIL 23, 1956

The distinction between members of the Executive Board and district chairmen and committee men is so clear as not to require elaboration.

    The importance of determining whether a general council meeting has been properly called is emphasized by the fact that the 1927 constitution of this Indian organization permits those attending any such meeting to decide whether a quorum is present and to decide "that a representative body is present." In such a situation the only safeguard which the Commissioner has in dealing with such a group is to determine whether substantial compliance has been had with the procedural requirements for calling the meeting. It is the policy of the Department to encourage Indian self-government by not requiring too legalistic or strict compliance with the formalities of such Indian "constitutions" but the administrative officers of the Department must be able to find some effort and sincere attempt to follow minimum procedures before a meeting can be recognized.

    On the basis of the facts above set forth it would be our opinion that the Commissioner as trustee of the funds of the Sioux and Assiniboine Tribes on the Fort Peck Reservation would be well advised not to place reliance on the actions taken at the purported General Council meeting of April 7, 1956. However, several leaders of the Indian tribes on this reservation have represented to the Department of Interior that the procedures followed in giving the notice and calling together the General Council for the April 7, 1956, meeting complied with and followed a time honored custom of the Indians on the reservation. We are therefore reserving our opinion on the validity of the April 7 General Council meeting until we have had an opportunity to determine from our records and those of our field agency whether the practice has been for the representatives of any three districts of the combined tribes to call general council meetings and elections when the prior council has failed to do so. When the facts in this regard have been established, this office will be in a position to advise a definitive position for the Department to take on the validity of the April 7 meeting of the Sioux and Assiniboine Tribes.

                                                                                                                                EDMUND T. FRITZ,
                                                                                                                                            Acting Solicitor.

PROBATE AND ADMINISTRATION OF ESTATE OF
DECEASED INDIANS IN STATE COURTS UNDER
KLAMATH TERMINATION ACT--
QUESTION OF LIMITATION

                                                                                                                                                April 30, 1956.

Perry W. Morton, Esquire
Assistant Attorney General
Lands Division
Department of Justice

DEAR MR. MORTON:

    This refers to recent telephone conversations between Mr. Walter Williams of your Department and a member of this office regarding the interpretations of section 9 (b) of the Klamath Termination Act of August 13, 1954 (68 Stat. 718) with respect to the probate and administration of estates of deceased Indians by the State courts which are contained in your letter of February 17, 1956 (your reference: REM: WRW 90--2--0-527).

    We have considered the views expressed in your letter but we are not persuaded to change the answer we gave in this matter in our opinion No. M-36284, dated May 20, 1955. It does not appear to us that the jurisdiction granted by section 9 (b) to State courts to administer decedents' estates was intended by Congress to be limited as indicated in your letter. If Congress had intended the State courts to have limited administrative or ministerial powers rather than their customary judicial powers in the administration of such estates, we believe it would have chosen language indicative of that fact as it did in the act of June 14, 1918 (40 Stat. 606; 25 U.S.C. 375) whereby the State courts of Oklahoma are authorized by Congress to determine only the question of fact as to identification of the heirs of deceased members of the Five Civilized Tribes. Similarly, when Congress in the act of April 18, 1912 (37 Stat. 86) and the acts supplementing and amending it provided for the probate of the estates of deceased Osage Indians in the State courts of Oklahoma, it expressly stated: "That no land shall be sold or alienated under the provision of this section with out the approval of the Secretary of the Interior." (37 Stat. 87.) See also the limitations contained in the Osage Act of March 2, 1929 (45 Stat. 1478). Having authorized the administration in the State courts of the estates of deceased Klamath Indians whose deaths occur six months after the date of the Klamath Termination Act and not having spelled out any limitation on this authority as it has done in past instances where it has permitted State courts to exercise probate jurisdiction over


 

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OPINIONS OF THE SOLICITOR

MAY 1, 1956

restricted Indians, we can only conclude that Congress intended to withhold no property from administration proceedings in State courts. We therefore think section 2 of the Klamath Termination Act repealed the acts of February 8, 1887 (24 Stat. 388, as amended, 25 U.S.C. 331 et seq.) and May 8, 1906 (34 Stat. 182) insofar as they would otherwise prevent the complete administration of decedents' estates by State courts under that act.

    With regard to whether the United States must be heard in all proceedings leading up to the hearing on petition for sale of restricted land in administration proceedings, we think service of notice of hearing on the petition for sale affords an adequate opportunity to contest the claims for which sale of the land is sought. In this connection we quote from section 598 of "Executors and Administrators," American Jurisprudence.

    "Under the common law a judgment is evidence in an action against the heir to charge the realty with the debts of the decedent. The personal estate is bound by the allowance of a claim by the probate court in favor of a creditor or by a judgment against the administrator. In proceedings to sell realty, however, the heirs are not concluded either by the allowance of a claim against the estate by the probate court or by the recovery of a judgment against the administrator on such a claim, but may contest the legality of such claim or judgment or interpose any defense which they may have, to the same extent as if there had been no previous litigation."

The following decisions of the Supreme Court of Oregon hold that evidence may be introduced at the hearing held on, a petition for sale of real estate (presently granted pursuant to sections 116.745 and 116.755 of the Oregon Revised Statutes) by interested parties to show cause why the sale should not be allowed: In re Estate of Houch, et al., 17 P. 461 (1881); In re Banfield's Estate, 299 P. 323, rehearing denied 3 P. 2d 116 (1931); In re Johnson's Estate, 217 P. 2d 780 (1950).

    As we think it was the intention of Congress to allow by the Klamath Termination Act complete administration by the State courts of the estates of deceased Klamath Indians regardless of whether their estates consisted of unrestricted or restricted property or both, we recommend that no challenge be made of proper administration of restricted property by the State courts. We further recommend that the United States Attorney be given general authority to appear and act locally on behalf of the interest of Indians and the United States where petitions for the sale of restricted real estate are filed in the course of the administration by the State courts of the estates of deceased Klamath Indians.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

POWERS OF TRIBAL GOVERNMENT
COMPLIANCE WITH TRIBAL
CONSTITUTION

M-36344                                                                                                             May 1, 1956.

Indian Tribes: Tribal Government

Where a meeting of a General Council of the combined tribes on a reservation is called without compliance with the provisions of the organizational constitution and where there is no well recognized and binding custom or practice among the Indian tribes involved permitting the calling of General Council meetings in the manner attempted, the Department of the Interior will not recognize the authority of the meeting.

Indian Tribes: Tribal Government

Where the offices on a tribal Executive Board become vacant, the Board may appoint temporary officers from its members to fill such vacancies and official actions requiring signatures can be handled by resolutions specifically authorizing signatures by designated temporary officers for or on behalf of the Executive Board.

Memorandum

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

    Your office raised several specific questions as to the status of the various officers and the validity of certain General Council meetings of the Fort Peck Indians. Our memorandum opinion (M-36342), dated April 23, 1956, answered the questions, but reserved opinion as to the legality of the meeting of April 7 as a meeting of the General Council. In that opinion we ruled that the meeting had not been called in conformity with the provisions of the 1927 constitution. However, a question had been raised as to whether there is a well recognized and binding custom or practice on the Fort Peck Reservation that the representatives of any three districts of the combined tribes may call a meeting of the General Council despite


 

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DEPARTMENT OF THE INTERIOR

MAY 1, 1956

the provisions of the 1927 constitution of the Fort Peck Indians. The constitution requires, in the absence of a call by the prior General Council, that the Executive Board of the Fort Peck Indians must call such meeting. We are now advised by the departmental representative in the field that inquiry has revealed no such well recognized or binding custom or practice. In view of this finding we hold that the April 7 meeting was not called or assembled under authority of custom as a meeting of the Fort Peck General Council; and further hold that any action taken at such meeting which purported to represent the Assiniboine and Sioux Tribes in General Council assembled was ineffective. The facts detailing the manner of calling the meeting are set forth more fully in the memorandum opinion of this office (M-36342), dated April 23, 1956.

    It is my opinion that your office must recognize the Executive Board as it was constituted immediately prior to the so-called April 7 meeting (less the chairman and vice-chairman, who have been removed by the General Council) as the lawful governing body of the Font Peck Indians. This body may, of course, appoint temporary officers from its members to fill any vacancies. Official actions requiring signatures can be handled by resolutions specifically authorizing signatures by designated temporary officers for and on behalf of the Executive Board.

    In order to bring an end to the factionalism now existing on the reservation, it is suggested that the Executive Board give prompt consideration to the desirability of calling a new election to determine the will of the majority as to who should hold offices' and administer the affairs of the group. The 1927 Constitution, as amended, is the guide for the holding of elections as well as meetings of the General Council and Executive Board.

    The following is a suggestion of the minimum procedural safeguards and steps which should be taken to assure a legal basis for recognition by the Commissioner of Indian Affairs of the necessary General Council meeting and election.

    (1) Three members of the Executive Board (excluding removed officers, who were members ex officio) shall call a meeting of the Executive Board. The Executive Board (less the removed chairman and vice-chairman) in office immediately prior to the April 7 meeting should be recognized as the duly elected Executive Board for the Font Peck Tribal Council for all purposes until their successors shall be properly elected.

    (2) The Executive Board (by a majority vote of those present) shall designate a time and place for a General Council meeting. If it is desired to hold an election to fill vacancies in the office of chairman and vice-chairman at least sixty days advance notice will be required to give candidates fifteen days to be nominated or declared and the secretary thirty day to give notice of the meeting and election of the candidates. Notices shall be posted and delivered to the local newspapers and radio stations at least thirty days before the meeting and or election giving time and place, agenda, candidates for election.

    (3) Election of candidates shall be by secret ballot and the candidates obtaining the most votes for an office will be declared elected. If the above steps are followed we believe there will be compliance with the 1927 constitution as amended.

    In conclusion we briefly supply the following direct answers to the questions set forth in your memoranda of March 26 and April 17, 1956:

March 26 Memorandum:

    (1) Were the chairman and vice-chairman legally and effectively removed from office by the Fort Peck Tribal Council meeting of January 7, 1956, and its continuation on January 28, 1956?

    Yes. Since the meetings were held by this office to have been called with at least the necessary minimum of compliance with the 1927 constitution, they were valid. The action taken in removing the two officers contradicts no provision of the constitution limiting the authority of the council.

    (2) Is Austin Buckles enabled to payment for his expenses for his trip to Washington?

    No. He was not an officer, representative nor delegate at the time of his trip. If his trip is approved and ratified at rates approved by the Executive Board no difficulty is anticipated in approving payment of such expenses.

April 17 memorandum:

    (1) In view of the failure of the Fort Peck tribes to comply with the procedure outlined in circular No. 3160 dated May 5, 1936, does the 1954 constitution, in your opinion, have any legal standing?

    No. The 1927 constitution only is entitled to recognition. The 1954 constitution was never approved in Washington nor ratified by the qualified voters of the tribe as required by regulation.

    (2) If the 1954 constitution has no legal standing, was the meeting of April 7 called in accordance with the constitution of 1927 as amended?


 

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OPINIONS OF THE SOLICITOR

MAY 29, 1956

    No. Substantial compliance was not had in connection with the calling of the April 7 council meeting.

    (3) If it was not a validly called meeting can the Bureau recognize any of the actions taken at the meeting?

    No. A meeting which is improperly called cannot convene as a legal meeting.

                                                                                                                                EDMUND T. FRITZ,
                                                                                                                                            Acting Solicitor.

AUTHORITY FOR CONTINUED APPROVAL OF
TIMBER SALES ON KLAMATH
RESERVATION

63 I.D. 147

M-36338                                                                                                                                 May 29, 1956.

Indian Tribes: Terminal Legislation--Timber Sales and Disposals

The basic authority for the Secretary of the Interior to sell timber on Indian reservations is set forth in section 7 of the act of June 25, 1910 (36 Stat. 857, 25 U.S.C. 407). Sale of timber on the Klamath Reservation will continue to be governed by the regulations implementing the act of June 25, 1910, until such time as tribal title is extinguished by sale or the tribal property is conveyed to a trustee, corporation or other legal entity in accordance with a plan to be prepared by management specialists pursuant to the Klamath terminal legislation (the act of August 13, 1954, 68 Stat. 718, 25 U.S.C. 564).

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Authority for continued approval of timber sales on Klamath Reservation

    Certain questions have been raised with respect to the Secretary's authority to approve timber sales on the Klamath Reservation in view of the Klamath terminal legislation (68 Stat. 718, 25 U.S.C. 564). The basic authority for the Secretary to sell timber on Indian reservations is set forth in section 7 of the act of June 25, 1910 (36 Stat. 857, 25 U.S.C. 407), which reads:

    "The mature living and dead and down timber on unallotted lands of any Indian reservation may be sold under regulations to be prescribed by the Secretary of the Interior, and the proceeds from such sales shall be used for the benefit of the Indians of the reservation in such manner as he may direct: Provided, That this section shall not apply to the States of Minnesota and Wisconsin" (June 25, 1910, ch. 431, sec. 7. 36 Stat. 857).

    This office has, in an opinion dated January 14, 1955 (M-36257) interpreted the act of August 13, 1954, as permitting the normal interim functioning of the tribe unless clearly inconsistent with the act. "Although no specific provision is contained in the act dealing with the performance of necessary tribal or reservation functions pending the effectuation of the purposes of the act, it is hard to believe that Congress intended to create a vacuum during the transition period which would result in a complete stoppage of the ordinary business affairs of the Klamath Tribe." Nothing in the act takes away the privilege of the tribe and the Secretary to cooperate in the sale of tribal timber provided that there is no interference with the duties of the management specialists to arrange for the sale of property needed to pay off members of the tribe electing not to continue on a collective economic basis with other tribal members. The approval by the management specialists of the timber contract is not required but as pointed out in a Solicitor's opinion dated November 17, 1955 (M-36307) it is essential that they be consulted on an advisory basis. The Secretary's authority to continue sales will thus be effective until (a) the timber comes under the jurisdiction of the management specialists by their selection of it as property suitable for sale to create a fund to pay off members electing to go their separate way (Section 5 (a) (3) ), or until title to the timber is transferred to the corporation or other entity created cooperatively by the management specialists, the tribe and the Secretary pursuant. to section 5 (a) (5) of the act. Since one of these alternative actions will have to take place before or simultaneously with the termination proclamation (Section 18 (a) ), in the ordinary course of events, they will determine the Secretary's authority in this regard.

    In the light of the above, the answers to your specific questions, here repeated for convenience, are as follows:

    "1. Considering Sections 3 and 4 of the Act of August 13, 1954, will the publishing of a final tribal roll in the Federal Register change the status of the tribal property in a manner to prevent the Secretary from authorizing sales of tribal timber thereafter?"


 

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DEPARTMENT OF THE INTERIOR

MAY 29, 1956

    No. The publication of the final roll of tribal members does not change the functions of the Secretary, the tribe or the management specialists, as the case may be, but determines those eligible to participate in the benefits of membership in the tribe. As was pointed out in Solicitor's Opinion (M-36284) dated May 20, 1955,

    "The tribal property remains tribal property and only the interest of the individual member therein becomes personalty. Therefore the *     *     * regulations *     *     * will continue to apply until such time as the tribal title is extinguished by sale, as provided in section 5 (a) (3) or the tribal property is conveyed to a trustee, corporation, or other legal entity in accordance with the plan prepared by the management specialists."

    "2. The Management Specialists have received bids for making an appraisal of the tribal estate, pursuant to Section 5 (a) (1) of the Act. Will the acceptance of this bid, or the completion of the appraisal, have any effect upon the Secretary's authority to authorize timber sales?"

    No. The appraisal will be undertaken as called for in Section 5 (a) (1) of the act as any other appraisal of a going business would be undertaken by commercial appraisers.

    "3. Section 5 (a) (2) and (3) of the Act provides that the appraised value of the tribal estate will be made known to the members, who will then have an opportunity to elect whether they wish to remain with the tribe or withdraw; whereupon the estate will be partitioned and the portion of those electing to withdraw will be sold. Will the call for this election, or the partitioning of the estate, remove the Secretary's authority to approve timber sales?"

    The call for the election will have no effect on the authority of the Secretary to exercise his supervisory functions with regard to the sale of timber. Further, when the Management Specialists have determined to what extent timber will be sold pursuant to section 5 (a) (3) of the act, the Secretary will direct the execution of the conveying instruments to carry these sales out, and to that extent his prior supervisory authority with respect to the timber so sold will have ceased. Finally, his authority will totally lapse when the timber is turned over to a corporation or other legal entity created under the act or when the termination is pronounced by suitable proclamation in the Federal Register.

    We have been informed by representatives of the Bureau that no timber sale contract is contemplated, the period of which will extend beyond the date on which Federal supervision and control will terminate under the provisions of the Klamath Termination Act. The foregoing views have been expressed with this understanding.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

RESPONSIBILITY FOR CONSTRUCTION OF ROADS ON
CHEYENNE RIVER RESERVATION

M-36347                                                                                                          May 31, 1954.

Statutory Construction: Administrative Construction

Section IV of the act of September 3, 1954 (68 Stat. 1191) authorizes the Secretary of the Army to make available from appropriated sums to be charged against the cost of construction of the Oahe project additional appropriations which shall be expended for the relocation and reconstruction of roads and bridges on the Cheyenne River Reservation. Under this section the Corps of Engineers is required to furnish a road system which will restore the transportation facility equivalent to that available to the Indians before the flooding. A mere replacement of number of bridges and miles of road flooded, without consideration of the site at which the Indians relocate themselves, is not sufficient.

Statutory Construction: Administrative Construction

Funds appropriated for the rehabilitation of the members of the Cheyenne River Tribe under Section V of the act of September 3, 1954 (68 Stat. 1191) are not to be withdrawn from this use for the purpose of reconstructing a road system or other facility maintained by the Bureau of Indian Affairs. The relocating of such road systems is to be undertaken by the Corps of Engineers as provided in Section IV of the act and the cost of relocation is to be charged against the cost of construction of the Oahe project.


 

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OPINIONS OF THE SOLICITOR

MAY 31, 1956

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Interpretation of section IV, Public Law 776 (68 Stat. 1191) re responsibility
                 for construction of roads on Cheyenne River Reservation

    This refers to your memorandum of April 17, 1956, requesting a review of the Field Solicitor's opinion on the above subject.

    In his opinion, dated February 16, 1956, the Field Solicitor stated:

    "*     *     * To a certain extent Section IV calls for construction of roads through appropriations made available to the Corps of Engineers. This section also provides for relocation and reconstruction of schools, hospitals, service buildings, agents and employees quarters' in addition to roads and bridges. In relocating and reconstructing I can't believe that it can be successfully contended that the Corps is obligated to reconstruct facilities in a greater measure than now existing *     *     * I feel it can be safely said that to the extent that roads and bridges are rendered useless by flooding of the taking area, an equivalent number of roads and number of bridges are to be reconstructed and relocated as prescribed under Section IV.

    "I further believe that a reasonable construction of Section V would indicate that the sum of $5,160,000, there referred to and agreed to be made available, is to be used in part for construction of roads."

    The circumstances giving rise to a need for our opinion on the matter appear to be:

    1. The Indian population of the Cheyenne River Reservation has, up to the present time, been concentrated along the bottom of the Monreau and Missouri rivers. There, two principal roads, constructed and maintained by the Bureau of Indian Affairs, provided a reasonably adequate transportation facility for the Indians. These two roads comprised the most important part of the road system on the Cheyenne River Reservation. The Monreau River road and the Missouri River road will be inundated when the waters of the Missouri are backed up behind the Oahe Dam. Among the plans for replacement of these roads is a suggestion that roads be reconstructed at a cost of $1,000,000 on high ground along the general route of the present roads. This, it is contended, will provide a reasonably adequate substitute for existing roads, because the Indians served by the roads will also move to higher ground when the river valleys are flooded.

    2. On the other hand, the problem of relocation of the Indians displaced by the construction of the Oahe Dam may not be solved merely by relocating them on high ground near the site of their present homes. Reports of the Missouri River Basin Investigation authority indicate that such lands are semiarid and not desirable as relocation sites There is, however, a more favorable location in the southern part of the reservation which could be developed as a suitable relocation site. If the Indians relocate their homes on this site it would be necessary to construct a completely new road system for them since no roads serve that area at the present time. It is reported by the Chief of the Branch of Roads, that the road budget for the Cheyenne River Reservation does not contain sufficient funds for the building of such an extensive replacement road system. Therefore, it is the position of the Bureau that the proper interpretation of Public Law 776 requires the Corps of Engineers to furnish a road system which would restore the transportation facility equivalent to that which was available to the Indians before the flooding rather than a replacement of only those roads that were flooded. The Indian Bureau also contends that it would be useless to relocate roads on the reservation without consideration of the site at which the Indians relocate themselves. In support of this argument the Bureau points out that at Fort Berthold, in 1946, Indian Bureau roads were valued at $469,000 and state and county roads at $120,000. The Army Corps of Engineers replaced the flooded roads on that reservation with a relocated road system valued at $3, 300,000. It is estimated that the cost of replacing the present transportation facility on the Cheyenne River Reservation will be $2,700,000. This amount exceeds by $1,700,000 the cost of relocating and reconstructing the same number of miles of roads and number of bridges which will be flooded as a result of the construction of the dam.

    It is the opinion of this office that the position taken by the Bureau of Indian Affairs is tenable. In the legislative history of the act of September 3, 1954, which we are interpreting here, there appears the following statement from the Reports


 

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DEPARTMENT OF THE INTERIOR

MAY 31, 1956


of the Department of the Army to Chairman, Committees on Interior and Insular Affairs (March 12, 1953):

    "Section IV provides for the appropriation of funds for relocation of agency facilities, roads, and bridges 'at points to be determined by the tribal council of said tribe with the approval of the Secretary of the Interior.' This Department [Army] has no objection to the relocation of agency buildings, schools, hospitals, roads and bridges in order to provide substantially equivalent facilities, to the extent determined necessary and at the expense of project funds. However, if the cost is to be charged to project funds the work should be limited to replacements which the Corps of Engineers and the Bureau of Indian Affairs agree are necessary, instead of being based on requests of the tribal council."1

    The Assistant Secretary of the Interior, reporting on this measure to the same committee, stated:

    " *     *     * it is recommended that section IV be revised to stipulate that the United States agrees to make available the funds necessary to maintain the services and to supplant appurtenant facilities presently provided the Indians in a manner to meet their needs existing at the time Oahe Dam is closed; the method and means of meeting such needs to be based upon a thorough study of all feasible courses open to fulfill this obligation. This recommendation is based upon the fact that closure of Oahe Dam is 6 to 8 years in the future. During this period of time the situation of the Indians may change appreciably, particularly in view of the national policy of terminating special services of a public nature to Indians by transfer of responsibility for such services to the State and their local subdivisions.

    "As presently drafted, section IV would make mandatory the replacement of all services and facilities in not less quantity and quality than now exists. For reasons cited, it is urged that the determination of the quantity and quality of services, together with the facilities required, be based upon the circumstances prevailing at a time more nearly approaching that of the inundation of the reservoir area with provision for sufficient time in advance to allow for continuity of services."2

    The suggestions of the Assistant Secretary of the Interior were accepted, and the bill enacted the following provisions under Section IV.

    "The United States further agrees to appropriate, and the Secretary of the Army is authorized and directed to make available from sums so appropriated to be charged against the cost of construction of the Oahe project, further additional appropriations which shall be expended for the relocation and reconstruction of Cheyenne River Agency, relocation and reconstruction of schools, hospitals, service buildings, agents and employees quarters, roads, bridges and incidental matters or facilities in connection therewith."

    We call your attention to the fact that all of the facilities to be relocated under section IV are the property of the United States and not the property of the Indian Tribe for whose benefit they are maintained. Section V, on the other hand, provides for a further sum of $5,160,000 to be deposited in the Treasury to the credit of the Indian Tribe for the purpose of rehabilitation of the members of the tribe. The language of these two sections of the act clearly indicates to us that the funds appropriated for the rehabilitation of the members of the Cheyenne River Tribe who are residents of the Cheyenne River Reservation are not to be withdrawn from this use for the purpose of reconstructing a road system or any of the other facilities which are maintained by the Bureau of Indian Affairs. It is our opinion, therefore, that the sum of $5,160,000 referred to under section V is not to be made available for the relocation and construction of roads on the Cheyenne River Reservation. The relocating of such roads must therefore be undertaken by the Corps of Engineers as provided in section IV of the act, and the cost of the relocation of a useful road system be charged against the cost of construction of the Oahe project.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

BLACKFEET TRIBAL CONSTITUTION--ELIGIBILITY
OF VOTERS

M-36346                                                                                                          June 8, 1956.

Indian Tribes: Constitutions--Indian Reorganization Act

Section 16 of the Indian Reorganization Act (26 U.S.C.A. sec. 476, 48 Stat. 987) requires that

____________________

    1 House Report 2484, to accompany H.R. 2233. 83d Cong., 2d Session. p. 11; Senate Report 2489, 83d Cong., 2d Session, p. 11.
    2 Senate Report Op. Cit. p. 7.


 

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OPINIONS OF THE SOLICITOR

JUNE 8, 1956

elections for the adoption of governmental constitutions and their amendment shall be by special election called by the Secretary of the Interior. The rules for the "elections on the adoption of Constitutions and Constitutional Amendment" were approved by the Secretary of the Interior August 20, 1935, and amended October 18, 1935, and March 24, 1938. These rules provide that "non-resident members may vote by absentee ballot." The Solicitor's opinion (M-36141) dated July 18, 1952, is modified to permit the use of absentee ballots by nonresident members in elections to amend constitutions adopted pursuant to the Indian Reorganization Act.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Compliance with regulations governing the eligibility of voters to vote at elections
                 called by the Secretary of the Interior to amend Indian tribal constitution

    We have been asked to reexamine our Solicitor's determinations of whether absentee voting is possible in the elections held or to be held to adopt amendments to the Blackfeet tribal constitution. We had earlier reached the conclusion that the amendments failed of adoption in the election held on August 1, 1955, since the total vote cast in the election constituted less than the necessary 30 percent of the total eligible voting membership. The fundamental consideration in reaching this conclusion was that all adult members of the tribe, resident and nonresident, were included in the count of eligible voting membership. The inclusion of all members, whether resident or non-resident, appears to have been proper. However, non-resident members were not allowed to vote by absentee ballot.

    This office previously advised the Assistant Secretary in regard to said election that voting by absentee ballots was not proper under the constitution of the Blackfeet Tribe for the reason that there is an express requirement in that constitution that each voter present himself at the polling place in order to vote. In so advising the Assistant Secretary we followed a former Solicitor's opinion (M-36141) dated July 18, 1952.

    However, on reconsideration this office has reviewed its earlier opinion and has concluded that the statutory manner of adopting the original tribal constitution, as implemented by the rules and regulations of this Department, controls the manner of amending that constitution rather than the provisions of the tribal constitution itself. The departmental rules, under which the constitution of the Blackfeet Tribe was adopted, permitted the use of absentee ballots for non-resident voters. Such ballots were actually used. It is our opinion therefore that absentee voting should be permitted in an election to amend the Blackfeet Tribal Constitution. A discussion of the legal principles relied upon to reach the conclusion follows.

    The Blackfeet Tribe of Indians is an organized Indian tribe as defined in the Indian Reorganization Act (act of June 18, 1934; 48 Stat. 984; 25 U.S.C.A. 465 et seq.) having elected to come under the act at a statutory election held on October 27, 1934. One of the major objectives of the act was to provide self-government opportunities for Indian tribes. To this end Congress provided that tribal election procedures would be adopted by the Secretary of the Interior under rules and regulations for the adoption of constitutions to govern the political activities of the Indian tribes. A concurrent purpose of Congress was to provide for granting Federal charters to Indian tribes so that they could, as corporate bodies, administer their economic affairs and resources in a businesslike manner.

    Section 16 of the Indian Reorganization Act, supra, provides that a constitution may be adopted when ratified by (1) a majority vote of the adult members of the tribe, or (2) a majority vote of the adult Indians residing on the reservation. The act further provides that amendments are to be ratified and approved "in the same manner as the original constitution and bylaws." These provisions were modified somewhat by the act of June 15, 1935 (49 Stat. 378; 25 U.S.C.A. 478a) which provided that in any election held under section 16 a total vote of not less than 30 percentum of those entitled to vote was a requirement to be met in order for the election to be official.

    Article X "Amendments" of the Blackfeet tribal constitution states that their constitution may be amended by a majority of the qualified voters voting at an election called for that purpose by the Secretary of the Interior, provided at least 30 percent of those entitled to vote shall vote in the election. Taken by itself this provision clearly provides, consistently with the statute, that an election to amend the constitution shall be called by the Secretary. However, the Blackfeet constitution also provides in Article IV that any member of the Blackfeet Tribe, twenty-one years of age or over, shall be eligible to vote at any election when he or she presents himself or herself at a polling peace within his or her voting district. Article IV of the Blackfeet tribal constitution appears to


 

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DEPARTMENT OF THE INTERIOR

JUNE 8, 1956

have been drafted to cover the basic law of the tribe in relation to elections of the governing board known as the Tribal Council. Section 7 thereof reads as follows: "Any member of the Blackfeet Tribe, twenty-one (21) years of age or over, shall be eligible to vote at any election when he or she presents himself or herself at a polling place within his or her voting district." The constitution may be interpreted either as requiring that voters may not vote by absentee ballots at any election or that voters may not vote by absentee ballots at elections for the Tribal Council. We interpret the tribal constitution only to require the voter to be present at the polling place when the election has to do with tribal matters other than the amendment, modification or revocation of the constitution itself.

    The constitution and bylaws for the Blackfeet Tribe which were approved by the Secretary of the Interior on December 13, 1935, should not be construed to limit the statutory requirements and departmental regulations governing the holding of elections to adopt amendments to the tribal constitution. The Blackfeet tribal constitution was approved by an election governed by paragraph 3 of the "Rules and Regulations Governing Elections under the Indian Reorganization Act." Paragraph 3 thereof provided, in effect, that any member of the tribe would be entitled to vote whether he was a resident of the reservation or not, and that the nonresidents would be permitted to vote by absentee ballot. This amounted to a choice of the method of ratification of the proposed constitution under the first alternative in section 16 of the Indian Reorganization Act, namely that covered by the clause "when ratified by a majority vote of the adult members of the tribe." This alternative is appropriate when the tribe is the center of focus (such as, for example, the Black feet Tribe of Indians) rather than the reservation Indian residents regardless of prior tribal affiliations (e.g., Colorado River Indians composed of Mohaves and Chemihuevis). Having chosen the complete membership of the tribe rather than the residents of the reservation as the group constituted as an "organized tribe" under the Reorganization Act, the Blackfeet Indians must in the future submit any proposed amendments to the same constituency for ratification and must follow the procedures used in adopting the original constitution.

    Section 16 of the Indian Reorganization Act provides for amendments to the constitution of the Indian tribe by ratification and approval by the Secretary "in the same manner" as the original constitution, and thus it appears that all the adult members of the tribe must be permitted to vote at any election to be held to amend the constitution of the Blackfeet Tribe, whether residing on the reservation or not. The original constitution having been adopted under the regulations set forth in paragraph 3 of the Department's rules which include the provision "(e) Nonresident members may vote by absentee ballot," it is the opinion of this office that an election held by the Secretary of the Interior to amend the constitution of the Blackfeet Indians must be held under a consistent set of rules, in this case giving members of the tribe a right to vote by absentee ballot.

    This opinion affirms and follows that part of the opinion of former Solicitor Mastin G. White (M-36141) dated July 18, 1952, which held that residence in a voting district on the Blackfeet Reservation is not a prerequisite for voting in tribal elections, but disagrees with the implied prohibition of absentee balloting. The earlier opinion observes "*     *     * that only the Secretary of the Interior is authorized to call a legal election upon the adoption of a proposed amendment to the Blackfeet tribal constitution." His opinion states a rule of statutory construction that election laws are to be liberally construed in favor of the broader right to vote. He concludes that in determining whether at least 30 percentum of the eligible Blackfeet voters participated in an election for a proposed amendment to the Black feet tribal constitution, it is necessary to include in the computation all the nonresident adult members of the tribe, as well as the adult members of the tribe residing in the voting districts which comprise the reservation. This 1952 opinion considered the question of whether nonresident members could or could not vote in person at a polling place on the reservation. The Solicitor did not directly have before him the further question as to the necessity for complying with the departmental rule that "nonresident members may vote by absentee ballot," and his remarks on that subject were in the nature of dicta.

    It is suggested that if the tribe still desires to amend its constitution the Secretary has the authority to call a special election for that purpose under the Departmental Rules recognizing an absentee ballot. If at said election at least 30 percent of the eligible voters participate, and if a majority of said voters approve the proposed amendments, they shall become effective when and if the Secretary signifies his approval. We respectfully suggest that any proposed amendments be considered approvable by you before being submitted to the voters, however, in order to avoid a useless election being held.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.


 

1735

OPINIONS OF THE SOLICITOR

JUNE 20, 1956

PROPOSED ELECTION--AMENDMENT TO TRIBAL
CONSTITUTION

63 I.D. 188

M-36350                                                                                                             June 20, 1956.

Indian Tribes: Constitutions--Indian Reorganization Act

The Secretary of the Interior has authority, under the Indian Reorganization Act (25 U.S.C.A. sec. 476, 477; 48 Stat. 987) to call special elections to (a) determine whether a majority of the adult Indians desire to vote against the application of the act itself to the reservation with which they are connected; (b) to determine whether a proposed constitution and bylaws shall be ratified; (c) to ascertain whether such constitution and bylaws shall be amended; and (d) to determine whether such constitution and bylaws shall be revoked. Otherwise in the case of Tribal Governments incorporated under section 16 of the Indian Reorganization Act, supra, the Secretary, unless granted authority by the tribal constitution or Act of Congress, may not call tribal elections to elect councilmen.

Memorandum

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Fort Berthold--Proposed election order to submit proposed
                 Amendment I to Constitution and Bylaws to a vote

    Your memorandum of March 19, 1956, raises two questions (1) whether absentee balloting may be permitted in an election for the amendment of the Constitution and Bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation and (2) whether the Secretary of the Interior has the authority to call an election for the purpose of permitting the tribal members to vote on the election of councilmen on the basis of the community boundaries as now defined in Article III of the Fort Berthold constitution.

    The question of absentee balloting was discussed and disposed of in our memorandum opinion (M-36346) dated June 8, 1956.

    With regard to the question of whether the Secretary of the Interior has authority to call special elections for tribes incorporated under Section 16 of the Indian Reorganization Act (25 U.S.C. 476, 48 Stat. 987) to elect councilmen, the answer must be found either in the tribal constitution and bylaws or in the statutory law. The constitution and bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota govern the calling of elections to choose tribal councilmen. Article IV, thereof provides that regular elections shall be held on the first Tuesday of September in even numbered years and that special elections may be called by a two-thirds vote of the council or by petition signed by at least 10 percent of the qualified voters of each tribal community. Section 5 of said Article IV further provides:

    "All elections shall be held under the supervision of the Tribal Business Council or an election board appointed by that Council, and the Tribal Business Council or the election board appointed by it, shall make rules and regulations governing all elections, and shall designate the polling places and the election officers."

It is clear from a reading of the tribal constitution that no provision is made for the calling of elections for tribal council members by the Secretary of the Interior.

    There being no authority retained in or given by the tribal constitution to the Secretary of the Interior to call or supervise elections of tribal council members, does such authority exist outside the tribal constitution? This question has been raised in your memorandum to the Solicitor and on many other occasions. The question of the right of the Federal Government to intervene in tribal governmental affairs is one of long-standing importance. This is true not only of tribes incorporated under the provisions of the Indian Reorganization Act of 1934, supra, but also of the many tribes which have not availed themselves of the privileges of this act. The act of July 9, 1832 (4 Stat. 564), provided for the appointment of a Commissioner of Indian Affairs, then under the Secretary of War, and now under the Secretary of the Interior, "who shall *     *     * agreeably to such regulations as the President may from time to time, prescribe, have the direction and management of all Indian Affairs, and of all matters arising out of Indian relations *     *     *." (25 U.S.C. 2.) The Supreme Court just previously in January of 1832 had had occasion to construe similar language in a treaty with the Cherokee Indians, Worcester v. Georgia, 6 Pet. 515. Chief Justice Marshall had before him the ninth article of The Treaty of Hopewell which had been entered into by the United States and the Cherokee Indians on November 28, 1785.


 

1736

DEPARTMENT OF THE INTERIOR

JUNE 20, 1956

    "The ninth article is in these words 'for the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States, in Congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs, as they think proper.'
    "To construe the expression 'managing all their affairs,' into a surrender of self-government, would be, we think, a perversion of their necessary meaning, and a departure from the construction which has been uniformly put on them. The great subject of the article is the Indian trade; the influence it gave, made it desirable that congress should possess it. The commissioners brought forward the claim, with the profession that their motive was 'the benefit and comfort of the Indians, and the prevention of injuries or oppressions.' This may be true, as respects the regulation of their trade, and as respects the regulation of all affairs connected with their trade, but cannot be true, as respects the management of all their affairs. The most important of these are the cession of their lands, and security against intruders on them. Is it credible, that they should have considered themselves as surrendering to the United States the right to dictate their future cessions, and the terms on which they should be made? or to compel their submission to the violence of disorderly and licentious intruders? It is equally inconceivable, that they could have supposed themselves, by a phrase thus slipped into an article, on another and most interesting subject, to have divested themselves of the tight of self government on subjects not connected with trade.*     *     *"

In view of the fact that language was used in the statute similar to that construed in Chief Justice Marshall's decision, it is apparent that the scope of this wording was well understood. The language "management of all Indian affairs" is thus limited to the supervision of the commercial and trade relationships of the Indians and not to management of their internal government.

    The Indian Reorganization Act (25 U.S.C. 461, etc.) has as one of its many purposes the strengthening of self-government in the Indian tribes. Commissioner John Collier testified at the hearings called in connection with the consideration of the act that the Indians "want an arrangement by which they can buttress their self-government by a statute of Congress *     *     *." Although it is true that the Secretary of the Interior has no authority to call special elections to elect councilmen, there is no reason to doubt that he has adequate statutory authority to call special elections to consider amendments to tribal constitutions and bylaws. And further the Commissioner is not without authority to deter abuses of tribal authority by virtue of his control over the expenditure of tribal funds, which authority stems from treaty and statute. The United States generally acts as guardian of the funds and assets of Indian tribes and as such trustee not only is held to a high degree of care in the handling of the funds and property of the Indians but exercises the ordinary supervisory restraint incident to such guardianship.

    Under the Indian Reorganization Act, 1934, supra, there are several types of elections which may be called by the Secretary of the Interior "under such rules and regulations as he may prescribe." Section 18 of the act sets out that a special election shall be called by the Secretary of the Interior to determine whether a majority of the adult Indians desire to vote against the application of the act itself to the reservation with which they are connected (25 U.S.C. 478). Section 17 of the act provides that the Secretary has the duty of calling a special election upon a petition by at least one-third of the adult Indians living on the reservation to determine whether they desire to ratify a charter of incorporation which has been issued for the conduct of business enterprise on the reservation (25 U.S.C. 477). Section 16 of the act authorizes the Secretary of the Interior to call a special election to permit the adoption and ratification of a tribal governmental constitution (25 U.S.C. 476). This section also may be construed to provide that the Secretary of the Interior shall call a similar special election, open to the same voters and conducted in the same manner as the original election, to determine whether such constitution shall be revoked. Finally section 16 of the act must be construed to permit the Secretary of the Interior to call a similar special election to determine whether the constitution and bylaws can be amended.

    Your memorandum of March 19, 1956, states that a great many trLba1 members of the Three Affiliated Tribes of the Fort Berthold Reservation are dissatisfied with the manner in which the Tribal Business Council has been conducting its affairs and are most anxious that they be given an opportunity soon to vote on the election of council members. At present there is no authority given in the tribal constitution nor any express statutory authority to permit the Secretary to call such a tribal election. Inasmuch as the Secretary has authority to call an election to amend the constitution of the tribe, it is appropriate at this time to sug-


 

1737

OPINIONS OF THE SOLICITOR

JUNE 22, 1956

gest that the tribal constitution be amended to permit the Secretary or his Delegate, upon the written request of a certain number of tribal members, to call special elections to elect councilmen and other tribal officers.

    If it is determined as a matter of policy by your office that such amendments be submitted, to the tribal electorate the following two additional provisions are set forth in draft form for consideration:

    Article IV Nominations and Elections
    Section 2. Add: Absentee ballots will be furnished to any enrolled non-resident member of the tribes upon request to the tribal secretary made 10 days before the election. The ballot must be returned to and reach the tribal secretary on or before the date of the election in order that it may be counted.
    Section 3. Add: Notice of regular elections shall be given by the secretary of the Tribal Business Council who shall give to all enrolled members of the tribe 30 days notice of the time and place of the regular election. In the event the tribal secretary shall fail to give the appropriate notice, or in case a regular election has not been held, the Secretary of the Interior shall call such election and give 25 days notice, setting the time and place.
                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

RIGHT TO VOTE BY ABSENTEE BALLOT IN TRIBAL
ELECTIONS--SALARIES OF TRIBAL OFFICIALS

                                                                                                                        June 22, 1956.

MY DEAR MR. BURDICK:

    We have delayed replying to your letter of May 3, 1956, until our memorandum opinion on the subject of the use of absentee ballots in elections to amend tribal constitutions should be completed and be available for your use.

    The problems which you have raised in connection with tribal elections on the Fort Berthold Reservation are not unique to that locality. It is a close question of law whether absentee balloting may be permitted in an election on a reservation where the governmental constitution of the Indians involved expressly provides that suffrage is extended only to Indians who present themselves at the polling places. We never lightly overrule opinions of prior Solicitors, but, in this case, we have felt constrained to modify the Solicitor's Opinion of July 18, 1952 (M-36141) which, while correctly finding that non-resident Indians had a right to vote in person in an election called to amend constitutions, denied non-resident voters the privilege of absentee balloting even though the original constitution had been adopted under rules permitting absentee balloting.

    We are enclosing a copy of our recent opinion (M-36346) dated June 8, 1956, holding that nonresident members of the Blackfeet Tribe may vote by absentee ballot at elections to amend their constitution, and our opinion (M-36350) dated June 15, 1956, which finds no authority in the Secretary of the Interior to call elections for tribal officers for tribes incorporated under the Indian Reorganization Act where the Tribal Constitution does not so provide. This holding is equally applicable to the Three Affiliated Tribes as to the Blackfeet Tribe. We hope that the use of absence balloting will permit the prompt amendment of the Fort Berthold Tribal Constitution. We have also recommended that their tribal constitution be amended to permit the Secretary of the Interior to call tribal elections in case the tribal officials charged with this responsibility fail to do so. If this amendment is adopted, the problem of calling elections, to which you have called our attention, will be resolved.

    You have enclosed "excerpts" from a letter to Senator Richard L. Neuberger dated April 28, 1956, written by a member of the Three Affiliated Tribes. The letter refers to the requirement of the act of June 15, 1935 (49 Stat. 373) as "this 30% nonsense." We call attention to the questionable use of the words "approved by the Bureau" in his letter, for one of the purposes of Congress in adopting the Indian Reorganization Act was to limit the occasions when the Secretary could "approve" or "disapprove" action taken by tribal governmental representatives. The letter also imputes to the Secretary of the Interior a broad authority to call tribal elections for councilmen. We are unable to find statutory grounds to share this positive confidence in Secretarial authority to call such tribal elections.

    In regard to the question which you raised as to the authority for payment of salaries for Fort Berthold tribal officers, we believe that the question is answered by reference to Article VI, Section 5 (c) of the Constitution and Article II "Salaries" of the Bylaws of that tribe which specifically covers the subject in the following language:

    "(c) *     *     * to make expenditures from available tribal funds for public purposes of the tribe, including salaries or other remuneration of tribal officials or employees. Such salar-


 

1738

DEPARTMENT OF THE INTERIOR

JUNE 22, 1956

ies or remuneration shall be paid only for services actually rendered. All expenditures from the Tribal Business Council Fund shall be by resolution duly passed by the Council to such effect, and the amounts so paid shall be matters of public record at all times."
    Article II-Salaries. The Tribal Business Council may prescribe such salaries for council members and tribal officers appointed by the council as it deems advisable, from such funds as may be available, provided that no compensation shall be paid to any tribal officer out of any tribal funds except by resolution duly passed and approved by the council, and subject to popular referendum the same as other powers of the council, and further provided that no compensation shall be paid to any tribal officer out of tribal funds under the control of the Federal Government except upon a resolution stating the amount of the compensation and the nature of the services rendered, and said resolution shall be of no effect until approved by the Secretary of the Interior."

    If we can be of further assistance, please do not hesitate to call on us.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

DISTRIBUTION OF RESTRICTED ESTATES OF DECEASED
MEMBERS OF THE FIVE CIVILIZED TRIBES
NOT EXCEEDING $500

                                                                                                                            July 5, 1956.

Memorandum

To:            Commissioner of Indian Affairs
From:        Office of the Solicitor
Subject:     Proposed amendment to the regulations and proposed delegation order
                 covering distribution of restricted estates of de ceased members of the 
                 Five Civilized Tribes not exceeding $500.

    There is attached for your consideration a draft of a proposed amendment to the regulations to carry out the provisions of section 1 of the Act of August 12, 1953 (67 Stat. 558, 25 U.S.C., 1952 ed., Supp. III, sec. 375c) entitled an Act "To provide for distribution of moneys of deceased restricted members of the Five Civilized Tribes not exceeding $500, and for other purposes."

    Since it appears that section 1 of the above Act is an adjunct of the prior Five Tribes estates Act of December 24, 1942 (56 Stat. 1080, 25 U.S.C., 1952 ed., sec. 375a), the regulations now proposed under the 1953 Act may be treated as a proper addition to Part 82 of Title 25 of the Code of Federal Regulations, which contains the procedural requirements to carry out the provisions of the earlier 1942 Act. In this connection it has been noted that this Department observed in reporting to the Congress on H.R. 1383, which became the Act of August 12, 1953, that the manifest objective of the bill was to amend the 1942 Act so as to permit the use of informal procedures, rather than of formal notice and hearing, in administering the small-estate accounts coming within the purview of H.R. 1383 (Sen. Rept. No. 700).

    It also appears that the intent was to change the procedural and not the substantive provisions of the 1942 legislation. The rule of heirship prescribed in the 1942 Act would thus be followed in determining heirship under the Act of August 12, 1953. It is to be understood in this respect that the 1953 Act, including the rule of heirship to be followed thereunder, as well as the regulations to be promulgated under the 1953 Act, would apply only to those restricted estates embracing funds which are not otherwise subject to the controlling provisions of specific acts which themselves provided how the distribution of funds, including payments to the heirs or devisees of deceased Five Tribes Indians, shall be made.1 See also in this connection the letter of October 24, 1951, from former Solicitor White to Congressman Carl Albert, a copy of which is enclosed. Moreover, in some instances at least the authority granted under specific acts to distribute tribal funds was implemented by the issuance of instructions governing the payments involved, which included a reference to the law of descent or distribution which shall apply in making payments to the beneficiaries of deceased members of the Five Civilized Tribes.2

____________________

    1 For some instances of this see the Act of June 28, 1944 (58 Stat. 463. 483), June 24, 1948 (62 Stat. 596), May 24, 1949 (63 Stat. 76, 84) coveting payments to members of the Choctaw and Chickasaw tribes; Acts of July 2, 1942 (56 Stat. 506, 528) and March 24, 1948 (62 Stat 84) providing how payments were to be made to the Seminole Indians; Act of September 1, 1950 (64 Stat. 573), prescribing the manner of payment of the fund representing the commutation of annual appropriations to fulfill treaty provisions with the Choctaw Indians; and the Act of August 1, 1955 (69 Stat. 431), which covers payments to the Creek Indians.
    2 See the letter of February 14, 1952, from the Commissioner of Indian Affairs to Area Director Roberts, regarding Choctaw and Chickasaw payments, and the letter of October 14, 1942, from the Assistant Secretary of the Interior to the Superintendent of the Five Civilized Tribes regarding Seminole payments.


 

1739

OPINIONS OF THE SOLICITOR

JULY 16, 1956

While the Act of August 12, 1953, states specifically that the transfer of funds disbursed thereunder shall not be taxable, no prohibition is apparent concerning the allowance of claims from restricted estates subject to that Act. Since under the existing regulations in 25 CFR, Part 82, promulgated pursuant to the Act of December 24, 1942, provision was made for the allowance of certain types of claims, there has been continued in the attached proposed amendment to the regulations a discretionary authority to allow similar types of claims. The administrative desirability of including such a provision in the proposed regulations should be considered by your office and by the field officials.

    I am also attaching hereto a proposed amendment to delegation order No. 2508 which would vest in you the authority to determine heirs and to make distributions. You will note that this delegation is proposed to be accomplished by adding to your already existing authority to act under various specific acts. However, since it probably will be your intention to have the probate function under the 1953 Act redelegated for performance by the Area Director, Muskogee, Oklahoma, it would also be necessary for your office to prepare a proposed subdelegation of authority in that respect.

    In view of the field officials' request that they be given the opportunity to express their views in the event their proposals are changed in any material respect, I am attaching additional copies of this memorandum and its enclosures for prompt reference by your office to the Area Director, as well as to the Regional Solicitor and Field Solicitor, for their further recommendations. Upon receipt of their views you should route through this office for approval drafts of an amendment to the regulations, and the necessary delegation orders.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

LEASING OF RESTRICTED LANDS BELONGING TO
INDIANS OF THE FIVE CIVILIZED TRIBES FOR
FARMING AND GRAZING PURPOSES

                                                                                                                         July 16, 1956.

Memorandum

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Leasing of restricted lands belonging to Indians of the Five Civilized Tribes
                 for farming and grazing purposes

    Your proposed letter to Area Director Paul L. Fickinger, regarding the leasing of restricted lands belonging to Indians of the Five Civilized Tribes of Oklahoma for farming and grazing purposes, is returned without approval.

    The act of August 11, 1955 (69 Stat. 666), by its terms and title, is an act to continue the restrictions against alienation existing on lands belonging to Indians of the Five Civilized Tribes. In fact, after making an exception in section 4 of the act concerning section 2 which had prescribed a procedure whereby restrictions on lands may be removed during the lifetime of the Indian owner, section 4 goes on to provide that "nothing in this act shall be construed to repeal or to limit the application of ,the act of August 4, 1947 (61 Stat. 731), the provisions of which shall continue in effect until otherwise provided by Congress."

    Under section 1 of the 1947 act restrictions upon all lands in Oklahoma belonging to members of the Five Civilized Tribes, whether acquired by allotment, inheritance, devise, gift, exchange, partition, or by purchase with restricted funds, are removed upon the death of the owner, with a proviso which, after excepting sales of the interests of minor and incompetent persons which are treated specially under paragraph (f), reads in part as follows:

    "no conveyance, including an oil and gas or mineral lease, of any interest in land acquired before or after the date of this act by an Indian heir or devisee of one-half or more Indian blood, when such interest in land was restricted in the hands of the person from whom such Indian heir or devisee acquired same, shall be valid unless approved in open court by the county court of the county in Oklahoma in which the land is situated."

Moreover, paragraph (g) of section 1 of the 1947 act states that nothing contained in that section shall be construed to modify or repeal the act of February 11, 1936 (49 Stat. 1135, 25 U.S.C., 1952 ed., sec. 393a), providing how the restricted lands of Five Tribes Indians may be leased for farming and grazing purposes.1 The fact that paragraph

____________________

    1 "That from and after thirty days from the date of approval of this Act the restricted lands belonging to Indians of the Five Civilized Tribes in Oklahoma of one-half or more Indian blood, enrolled or unenrolled, may be leased for periods of not to exceed five years for farming and grazing purposes, under such rules and regulations as the Secretary of the Interior may prescribe and not otherwise. Such leases shall be made by the owner or owners of such lands, if adults, subject to approval by the Superintendent or other official in charge of the Five Civilized Tribes Agency, and by such superintendent or other official in charge of said agency in cases of minors and of Indians who are non compos mentis."


 

1740

DEPARTMENT OF THE INTERIOR

JULY 16, 1956

(g) expressly authorized the continuance of the operative force of the 1936 act, and excluded its provisions from any modifying or repealing effect of section 1 of the 1947 act, clearly supports the view that leases of restricted Five Tribes lands for farming and grazing purposes should be subject to the terms of the 1936 act, including the requirement that leases of that character shall be approved by an officer of this Department rather than by the county court.

    It has been held that a provision similar to that contained in section 1 of the 1947 act to the effect that restrictions shall be removed upon the death of an Indian owner, and providing also that certain conveyances by an heir or devisee of a stated quantum of Indian blood shall require approval of a county court, gives rise to what is denominated as a qualified or relaxed restriction to the extent of sanctioning such conveyances as received the county court's approval.2 In such instances the land is still restricted in the hands of the heir or devisee of the designated class. Moreover, until such heir or devisee conveys the lands as required by the 1947 act, or unless restrictions are otherwise removed from Five Tribes lands as permitted by section 2 of the act of August 11, 1955, supra, the supervision and approval by officers of this Department of farming and grazing leases covering restricted Five Tribes lands would continue. It is suggested that you so inform the Area Director.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

CHEYENNE RIVER EXCHANGE ASSIGNMENTS

M-36354                                                                                                         July 16, 1956.

Indian Lands: Sales and Exchange--Indian Reorganization Act

Exchange assignments on the Cheyenne River Reservation have by virtue of the Act of July 14, 1954 (68 Stat. 467, 25 U.S.C. 484), the same force and effect as trust patents issued pursuant to section 5 of the Act of February 8, 1887 (24 Stat. 389, 25 U.S.C. 348).

Memorandum

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Cheyenne River Exchange Assignments

    Your office has requested an opinion as to whether certain exchange assignments of lands on the Cheyenne River Reservation to individual Indians are legally effective despite the fact that the lands assigned had been previously withdrawn from disposition by order of the Assistant Secretary of the Interior on April 21, 1934. The exchange assignments in question have by virtue of the Act of July 14, 1954 (68 Stat. 467, 25 U.S.C. 484), the same force and effect as trust patents issued pursuant to section 5 of the Act of February 8, 1887 (24 Stat. 389, 25 U.S.C. 348).

    It is unnecessary in my opinion to answer the question raised by you for the reason that any possible doubt about the validity of the exchange assignments may be removed by administrative action. The lands in question are surplus unallotted lands located on the portion of the Cheyenne River Reservation which was opened to homestead entry in accordance with the Act of May 29, 1908 (35 Stat. 460), by a proclamation of the President dated August 19, 1909 (36 Stat. 2500). They were temporarily withdrawn for Indian use by the order of the Assistant Secretary referred to above. Such a temporary order may be revoked at any time. It is suggested, therefore, that appropriate action be taken looking to revocation of the order of April 21, 1934, insofar as the lands included in these exchange assignments are concerned. Such action will have the effect of clearing the record title.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                     Acting Solicitor.

FISHING BY NON-INDIANS ON FORT HALL
RESERVATION AND CONVICTION OF INDIAN
FOR HUNTING WITHOUT LICENSE ON
CEDED PUBLIC DOMAIN LANDS--OREGON
TAXATION OF INCOME DERIVED FROM
NON-INDIAN EMPLOYERS

                                                                                                                         July 20, 1956.

PERRY W. MORTON, Esquire
Assistant Attorney General
Lands Division
Department of Justice

DEAR MR. MORTON:

    Reference is made to our letter of March 5, 1956, regarding requests for assistance received by the United States Attorney at Boise, Idaho, from representatives of the Shoshone-Bannock Tribes of


 

1741

OPINIONS OF THE SOLICITOR 

JULY 26, 1956

the Fort Hall Indian Reservation (your reference: REM:FLF 90--2--012).

    We have been advised by the Bureau of Indian Affairs that the matter of non-Indians fishing on the Fort Hall Indian Reservation without the permission of the Shoshone-Bannock Tribes has been discussed with tribal officials, field personnel of the Bureau, and State fish and game authorities. The Bureau reports that these discussions show this matter is not a real problem as during the past two years only one non-Indian fisherman has been apprehended on the Reservation without a tribal permit and he immediately acquired one on being informed that a permit was necessary.

    The Bureau has also advised us that the State district court has reversed the justice court conviction of Wilford L. Broncho, chairman of the Shoshone-Bannock Tribal Council, for shooting a deer without a license on a portion of the public domain ceded to the United States by the Indians. The conviction in the justice court is the case mentioned by the United States Attorney in his letter to you. The State district court has apparently recognized the treaty rights of the Indians to hunt on the ceded lands.

    We concur in the view of our Regional Solicitor at Portland, Oregon, that taxation of Indian in come by the State of Oregon which involves only income derived from non-Indian employers or from properties which are not impressed with a Federal trust or restriction is a matter exclusively between the State and the Indians.

    It thus appears to us that it will not be necessary for your Department to take any action relative to those requests received by the United States Attorney which you referred to us for consideration.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                Acting Solicitor.

HUNTING AND FISHING RIGHTS OF KLAMATH
INDIAN TRIBE--AUTHORITY TO HIRE GAME
WARDENS

M-36358                                                                                                                     July 26, 1956.

Indians: Hunting and Fishing--Indian tribes: Tribal Government

The Klamath Indian Tribe has authority to hire, and pay from tribal funds, special "game wardens" or "police officers" to enforce tribal regulations and protect tribal rights in connection with hunting and fishing on the Klamath Reservation. The hunting and trapping laws of the State of Oregon have not been extended to the Klamath Reservation by the Act of August 15, 1953, as amended (67 Stat. 588; 18 U.S.C. 1162). Until formal termination of the Federal trust relationship to the affairs of the Tribe pursuant to the Act of August 13, 1954 (68 Stat. 718, 25 U.S.C. 564, etc.), the authority of the Klamath Tribal Council and Executive Committee with respect to hunting, trapping or fishing or the control, licensing, or regulation thereof continues substantially as at present.

Memorandum

To:            Regional Solicitor, Portland
From:        Solicitor
Subject:     Right of Klamath Tribe to hire and pay for tribal police officers

    A question has been raised as to the legal authority for Klamath Executive Committee to hire, and pay from tribal funds, special "game wardens" or "police" officers. It is the opinion of this office that the Executive Committee may properly hire, and pay from tribal funds, such tribal employees as are needed to carry out these tribal functions. Such tribal employees do not exercise a police power under the laws of the State of Oregon unless deputized in accordance with those laws.

    A constitution and bylaws were adopted by the Klamath General Council in general session on the 3d day of February in 1950. Article V, Section 3 of the tribal constitution gives the General Council authority "to employ persons in the discharge of tribal functions, and to determine the compensation to be paid to such person." The constitution also provides that the Council shall maintain law and order on the reservation and protect and preserve wildlife and the natural resources on the reservation. There is also authority given to delegate any of its powers to an Executive Committee. At the General Council meeting of August 21, 22, 1952, the Klamath General Council delegated to its Executive Committee power to act in the name of the General Council when circumstances so warrant. This appears to be a delegation of the powers set forth in Article V of the tribal constitution to the Executive Committee. Unless prohibited by statute or regulation there appears to be no question but that the Klamath Executive Committee has authority to hire, and pay from available tribal funds, special "game wardens."

    The Act Of August 15, 1953, supra, confers jurisdiction on the State of Oregon, the State in which the Klamath Reservation is located, over offenses


 

1742 

DEPARTMENT OF THE INTERIOR

 JULY 26, 1956

committed by or against Indians on the reservation to the same extent that such State has jurisdiction over offenses committed elsewhere. The criminal laws of Oregon therefore have the same force and effect within the Klamath Reservation as they have elsewhere within the State. The statute makes one limitation in that it shall not be interpreted to deprive any Indian or Indian Tribe of any right, privilege, or immunity afforded under Federal treaty, agreement or statute with respect to hunting, trapping or fishing "or the control, licensing, or regulation thereof." This office interprets this proviso to protect the power of the Klamath Tribe to enforce through its game wardens its own exclusive treaty rights of taking fish in the stream and lakes included in the reservation. (Treaty of October 14, 1864, 16 Stat. 707, 708.) Further in the recent case entitled Klamath and Modoc Tribes, etc. v. Maison (139 F. Supp. 634) decided March 13, 1956, it was held by the United States District Court that the hunting and trapping laws of the State of Oregon were inapplicable to the Klamath Reservation, and the Klamath and Modoc tribes, and the Yahooskin Band of Snake Indians had, under the treaty, the right to hunt and trap within the reservation without restriction or limitation except those they may impose upon themselves. It was further held by the court that Public Law 280, 83d Congress; 67 Stat. 588; 18 U.S.C., sec. 1162, 28 U.S.C., sec. 1360, did not extend the hunting and trapping laws of the State of Oregon to the Klamath Indian Reservation (139 F. Supp. 634).

    The Act of August 13, 1954 (68 Stat. 718; 25 U.S.C. 564, etc.), which provided for the termination of Federal supervision over the property of the Klamath Tribe does not change the responsibilities of the Klamath tribal government. Until such time as formal termination shall have been accomplished and evidenced by the publication in the Federal Register of a proclamation declaring that the Federal trust relationship to the affairs of the tribe and its members terminated, the authority of the Tribal Council and its Executive Committee continues substantially as at present. (See Sol. Op. of May 20, 1955, M-36284.) (No such proclamation has as yet been published.) It can safely be said therefore that the Klamath Executive Council is not prevented from hiring and paying "game wardens" and other tribal employees for maintaining tribal rights given by treaty. Such employees, however, are not to be confused with peace officers unless deputized by the State and county. In paying for the patrol of tribal lands, the tribe is not paying for police officers but only for watchmen or private property similar to the practice of private individuals to protect their private property, except where action is taken against members of the tribe pursuant to ordinances adopted pursuant to 25 CFR 161. Non-Indians who hunt or fish in violation of the laws of the State are subject, of course, to prosecution under those laws.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                                 Solicitor.

STATUS OF TITLE ACQUIRED BY
TRIBE UPON FORECLOSURE OF A
MORTGAGE

M-36361                                                                                                         August 6, 1956.

Indian Lands: Removal of Restrictions

The language of the act providing for the divesting of the title of the United States, upon a sale pursuant to a foreclosure of land mortgaged under the act, will vest in a loaning organization including a tribe or tribal loaning organization as purchaser, an unrestricted fee simple title to the land.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Legal effect of a mortgage foreclosure under Public Law 450 (70 Stat. 62)

    Your memorandum of July 13, 1956, has presented this office with the question of what will be the resulting status of the title acquired by a tribe or tribal loaning organization, upon the foreclosure of a mortgage executed pursuant to 25 CFR 21.13, 25 CFR 241.52 and Public Law 450, 84th Congress (70 Stat. 62, 63).

    The history of the execution of mortgages on individually owned trust or restricted land is found in the Federal Code of Regulations. The authority for the approval of such mortgages was first established by 25 CFR 21.13 (a) which authorized tribal corporations, bands, and credit associations to relend funds borrowed from the United States. Subsection (b) provides in part:

    "*     *     * such loans shall be secured by such securities as the lender and the approving officer may require. Individually owned trust or restricted land may be mortgaged for such loans in accordance with 25 CFR 241.52."


 

1743

OPINIONS OF THE SOLICITOR

AUGUST 13,1956

    25 CFR 241.52 provides in part:

    "The Commissioner of Indian Affairs or his authorized representative may approve mortgages or deeds of trust on any individually owned trust or restricted land whenever such lands under any law or treaty may be sold with the approval of the Secretary of the Interior or his duly authorized representative. *     *     *"

    This regulation was based upon the proposition that, if the Secretary had authority to approve a sale of trust or restricted land under any law or treaty, he had the lesser authority for the approval of mortgages on such lands. This authority of the Secretary to approve such mortgages was, however, questioned by some of the commercial loaning organizations, and on March 29, 1956, Congress removed any doubt about such authority by the enactment of Public Law 450, 84th Congress (70 Stat. 62, 63).

    Public Law 450 provides in part:

    "That the individual Indian owners of any land which is held by the United States in trust for them or is subject to a restriction against alienation imposed by the United States are authorized, subject to approval by the Secretary of the Interior, to execute a mortgage or deed of trust to such land. *     *     * For the purpose of any foreclosure or sale proceeding the Indian owners shall be regarded as vested with an unrestricted fee simple title to the land, the United States shall not be a necessary party to the proceeding, and any conveyance of the land pursuant to the proceedings shall divest the United States of title to the land."

The legal consequences of a foreclosure under the foregoing provisions are plain. These include the provision that the lands shall be subject to foreclosure or sale in accordance with the laws of the State or Territory in which the land is located. Also, in order to make it clear that the United States need not be made a party to such proceedings, the act provides, that for the purpose of any such proceeding, the Indian owners shall be regarded as vested with an unrestricted fee simple title to the land. that the United States shall not be a necessary party, and that a foreclosure sale shall divest the United States of title to the land. This language of the act providing for the divesting of the title of the United States, makes it equally plain that a sale pursuant to a foreclosure of any such land mortgaged under the act will vest in a tribe or tribal loaning organization as purchaser an unrestricted fee simple title to the lands.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                                 Solicitor.

STATIC JURISDICTION OVER CRIMINAL
TRESPASS ACTIONS ON KLAMATH
INDIAN RESERVATION

63 I.D. 253

M-36362                                                                                                         August 13, 1956.

Indians: Criminal Jurisdiction--Indians: Hunting and Fishing

Jurisdiction over offenses including trespass committed by or against Indians on the Klamath Reservation in the State of Oregon and actions for damages sounding in tort in that connection are within the jurisdiction of the legislature and courts of the State of Oregon by virtue of the Act of August 15, 1953 (67 Stat. 588. 18 U.S.C.A. 1162). The act does not give the State jurisdiction to tax or otherwise affect the Federal trust status of any real or personal property belonging to individual Indians or the Indian Tribes in Oregon. Neither does it bestow a power to regulate the use of such property in a manner inconsistent with any Federal treaty, agreement or statute governing Indian property. The privileges and rights enjoyed by Indians with regard to hunting, trapping or fishing are likewise not affected by this Act of August 15, 1953. With these limitations, the State of Oregon has the same jurisdiction with regard to criminal matters on the Klamath Reservation that it has over any other land in Oregon.

Memorandum

To:            Regional Solicitor, Portland
From:        Solicitor
Subject:     State jurisdiction over criminal trespass actions involving lands
                 on the Klamath Indian Reservation in Oregon

    This refers to your memorandum of June 30, 1956, enclosing a copy of an opinion by the Attorney General of Oregon concerning the criminal prosecution under State law of trespassers on lands of the Klamath Reservation.

    It is the opinion of this office that jurisdiction over offenses, including trespass committed by or against Indians on the Klamath Reservation in the


 

1744

DEPARTMENT OF THE INTERIOR

AUGUST 13, 1956

State of Oregon and actions for damages sounding in tort in that connection, are within the jurisdiction of the legislature and courts of the State of Oregon by virtue of the Act of August 15, 1953 (67 Stat. 588, 18 U.S.C.A. 1162). The Act does not give the State jurisdiction to tax or otherwise affect the Federal trust status of any real or personal property belonging to individual Indians or the Indian Tribes in Oregon. Neither does it bestow a power to regulate the use of such property in a manner inconsistent with any Federal treaty, agreement or statute governing Indian property. The privileges and rights enjoyed by Indians with regard to hunting, trapping or fishing are likewise not affected by this Act of August 15, 1953. With these limitations, the State of Oregon has the same jurisdiction with regard to criminal matters on the Klamath Reservation that it has over any other land in Oregon.

    There is no question but that lands allotted to Indians which are held in trust by the United States for them or their heirs, or otherwise restricted by the Federal Government, are during the trust or other period of restriction under the exclusive jurisdiction and control of the Congress and Executive Branch of the Federal Government for all governmental purposes relating to guardianship and property rights of the Indians (U.S. v. Rickert, 188 U.S. 432). Indian allotments are one of the three large classes of land which by definition in Federal statute come within the meaning of the phrase "Indian Country." (18 U.S.C.A. 1151.) Without more it would be clear that trespass actions concerning trust and restricted land would be matters exclusively within the jurisdiction of the Federal and Indian rather than State courts. Section 1152 of Title 18, U.S. Code, implicitly recognizes that in certain cases by treaty stipulation exclusive jurisdiction over offenses committed by one Indian against the person or property of another Indian, or over any Indian committing an offense in Indian country is placed in the tribal Government for punishment by the local tribal law (62 Stat. 757). However, the enactment of the Act of August 15, 1953 (67 Stat. 588, 18 U.S.C. 1162) marked a change in the jurisdictional relationships of the Federal Government to the State of Oregon with regard to criminal and civil matters arising in Indian country. By virtue of this act, Oregon has the same jurisdiction over offenses committed within Indian country that it has elsewhere within the State. In addition, the Act of August 15, 1953, gives the State of Oregon jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in Indian country, and such actions are to be treated under the civil laws of the State the same as all actions applicable to non-Indians. The statute, however, does not give the State any administrative jurisdiction over trust or restricted property of Indians, nor does it authorize the State to regulate the use of such property inconsistent with any Federal treaty, agreement, statute or regulation.

    It is the opinion of this office that it was the intent of Congress in giving to the State of Oregon criminal jurisdiction on Indian reservations and other portions of Indian country that all crimes against the persons or property of Indians would be punished under the laws of Oregon. Trespass is made a crime in Oregon to protect the owner of land from illegal entry by outsiders. By the 1953 Act Congress did not intend, when it reserved to the Federal Government administrative jurisdiction to determine matters affecting the ownership of Indian property, to remove that very ownership from the statutory and judicial protection of the State. We do not believe that prosecution for the crime of trespass would be construed as authorizing the alienation or taxation of Indian property or the regulation of use or encumbrance of Indian property in a manner inconsistent with any Federal treaty, agreement, statute or regulation, or deprive any Indian property owner of any right, privilege or immunity. On the contrary, it prevents the forceful alienation of property by illegal entry, guarantees the Indian owner the use of his property in a manner consistent with Federal policy and protects the privileges and immunities of Indians. On the other hand, it is equally clear that any action in which the right of an Indian owner to his property is contested will continue to be a Federal and not a State responsibility by the express terms of the act.

    Nothing in Ohio v. Thomas (173 U.S. 276), which was cited in your memorandum, can be construed as affecting the right of a State to extend its criminal or civil jurisdiction over lands in an Indian reservation or in a former Indian reservation when such jurisdiction is expressly granted to it by Federal statute. Ohio v. Thomas is authority for the self-evident proposition that State criminal procedure may not prevent a Federal officer from pursuing his Federal duties under Federal statute keeping in mind that he does not secure a total immunity from State law while acting in the course of his employment. Similarly we do not believe that Johnson v. Maryland (254 U.S. 51) is applicable to the question under consideration. Johnson v. Maryland was merely a restatement of the principle that a State cannot by statute interfere with action by the Federal Government.

    We conclude that the opinion of the Attorney General of Oregon (Number 3254 of December


 

1745

OPINIONS OF THE SOLICITOR

AUGUST 13, 1956

1955) relative to the feasibility of criminal prosecution in the State courts of trespassers on unenclosed lands within the Klamath Indian Reservation is correct.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                                 Solicitor.

RIGHTS TO OIL AND GAS UNDERLYING
AN ALLOTMENT--FT. PECK

M-36360                                                                                                     August 13, 1956.

Indian Lands: Minerals

The grant of oil and gas to the allottee, or if such Indian is deceased, to his heirs or devisees, in lands allotted to him on or after March 3, 1927 (44 Stat. 1401), which reserved the oil and gas in his allotment to Indians having tribal rights on the Fort Peck Reservation, is not defeated by a conveyance from the allottee to the Fort Peck Tribe of all of his rights in the allotment prior to the enactment of the statutory grant of June 30, 1954 (68 Stat. 358).

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Title to oil and gas underlying Fort Peck Allotment 3514, Dale Wing, allottee

    By memorandum dated June 28, 1956, you have requested an opinion with respect to the ownership of the oil and gas underlying certain land on the Fort Peck Indian Reservation in Montana.

    The facts of this case appear to be very simple. The land was allotted to Dale Wing and is covered by trust patent No. 1033667, issued on January 13, 1930. The trust patent reserved the title to the oil and gas to the Fort Peck Tribe pursuant to the act of March 3, 1927 (44 Stat. 1401). By deed (Form 5-1836), approved December 16, 1949, the allottee conveyed all of his "right, title and interest" in the property to the Fort Peck Tribe for a stated consideration of $1,600.

    The question presented to this office is whether or not land allotted on or after March 3, 1927, with a reservation of oil and gas pursuant to the act of 1927, and subsequently sold to the Fort Peck Tribe is within the purview of section 1 of the act of June 30, 1954 (68 Stat. 358) which, in pertinent part, reads:

    "That the oil and gas in lands located within the Fort Peck Indian Reservation, Montana, allotted on or after March 3, 1927, which is now reserved to the Indians having tribal rights on such reservation by the first section of the Act of March 3, 1927 (44 Stat. 1401), relating to the oil and gas in certain tribal lands within the Fort Peck Reservation, Montana, is hereby granted to the allottee of such lands, or, if such Indian is deceased, to his heirs or devisee."

    To defeat the grant to Dale Wing of the oil and gas underlying his allotment, the argument is advanced that upon the conveyance by him to the tribe of all of his rights in the allotment, which included title to everything except the oil and gas, the title so conveyed merged with the tribe's reserved title to the oil and gas. Accordingly, since the tribe on the date of the enactment owned the full title, the oil and gas cannot be said to be "now reserved" as those words are used in the statute. This position, it is further said, is confirmed by the declaration in section 6 of the act that the act "shall not apply to oil and gas in tribal land which, on the date of the enactment of this Act, is otherwise undisposed of."

    The fallacy of the foregoing argument is readily apparent. As an allottee to whom an allotment of land was made on or after March 3, 1927, Dale Wing meets all of the requirements laid down by the statute to entitle him to the statutory grant of the oil and gas. The fact that the grant made is of oil and gas "now reserved" to the tribe by the first section of the act of March 3, 1927, simply means that the oil and gas must have been reserved by that act and that the oil and gas must still be owned by the tribe on the date of the act. The fact that the tribe may also own the surface and other minerals in the land is immaterial. The material fact is that the oil and gas be owned by the tribe on the date of the enactment. Any other interpretation would defeat the obvious purpose of the Congress to grant to Indians such as Dale Wing the oil and gas rights withheld from them by the 1927 reservation to the tribe. To effectuate this congressional purpose, it should be observed that even in cases in which exchanges were made with the tribe and the allottee accepted a trust patent or exchange assignment, the 1954 act provides that the allottee is still entitled to the oil and gas in one of the tracts involved in the transaction. In other words, Congress has by express language provided for the granting of oil and gas rights to each individual Indian allottee who was deprived of these rights by the act of March 3, 1927.


 

1746

DEPARTMENT OF THE INTERIOR

AUGUST 13, 1956

    Also it should be observed that the legislative history of the Act indicates that the Tribal Executive Board of the Fort Peck Tribe was extremely concerned with the question whether the oil and gas grant would inure to a transferee or assignee of the surface rights of the 1927 allotments. They were advised that this would not happen, and the oil and that the purpose of gas to the allottees, the Act is to grant their heirs or devisees and not to any purchaser of the allotment. In fact, they were informed, that because the oil and gas was separated from the surface by the Act of March 3, 1927, it would be impossible for a 1927 allottee who had no control over the oil and gas rights to convey such rights; therefore, the grant of the oil and gas rights under section 1 of the 1954 Act must necessarily be to the grantees therein provided, i.e., the allottee, his heirs or devisees. (H. Report No. 1191, 83d Congress.)

    The declaration quoted above from section 6 of the act of 1954, to the effect that the act shall not apply to oil and gas in tribal lands which, on the date of enactment, is "otherwise undisposed of," appears to have been inserted in the act for the purpose of making it plain that the scope of the act is limited to oil and gas reserved to the tribe pursuant to the provisions of the 1927 act and still owned by the tribe on the date of the act. Apparently the author of this language has in mind two types of oil and gas to which the tribe held title on the date of the act. One type consisted of oil and gas in lands allotted on and after March 3, 1927, the title to which was subject to disposition in accordance with the provisions of the act. The other type embraced oil and gas in lands which had never been allotted to individual Indians and hence was not affected in any way by the provisions of the act. The somewhat inept language "is otherwise undisposed of" seems to have been injected into the act as an unnecessary precaution in an effort to make it clear that the act had no application to oil and gas in lands which had never been allotted or otherwise disposed of. In any event. the language used cannot properly be construed to defeat the positive grant of oil and gas made by the statute to allottees or their heirs or devisees.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                Deputy Solicitor.

FORECLOSURE OF MORTGAGES GIVEN
TO SECURE LOANS MADE BY THE
ARAPAHOE TRIBE

M-36341

Indian Lands: Removal of Restrictions

The restrictive status of Indian property subject to foreclosure pursuant to the terms of a mortgage or deed of trust executed and approved under authority of the act of March 29, 1956 (70 Stat. 62), is extinguished for the purposes designated in the act.

Indians: Civil Jurisdiction

The Arapahoe Tribe may bring action in State courts whenever necessary to protect the interests of the tribe in tribal loans.

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Foreclosure of mortgages given to secure loans made by the Arapahoe Tribe

    This refers to your memorandum of March 19, 1956, requesting an opinion as to whether the Arapahoe Tribe may institute actions in the State courts of Wyoming to protect its interest in securities given for loans from the tribe.

    We concur in the conclusion expressed by the Acting Field Solicitor in his opinion of January 30, 1956, that the tribe may bring such actions in the State courts whenever necessary to protect the interests of the tribe in tribal loans. See and compare United States v. Candelaria, 271 U.S. 432; Creek Nation v. United States, 318 U.S. 629; Choctaw and Chickasaw Nations v. United States, 193 Fed. (2d) 456.

    Your attention is also called to the act of March 29, 1956 (70 Stat. 62), which provides:

    "That the individual Indian owners of any land which either is held by the United States in trust for them or is subject to a restriction against alienation imposed by the United States are authorized, subject to approval by the Secretary of the Interior. to execute a mortgage or deed of trust to such land. Such land shall be subject to foreclosure or sale pursuant to the terms of such mortgage or deed of trust in accordance with the laws of the State or Territory in which the land is located. For the purpose of any foreclosure or sale proceeding the Indian owners shall be regarded as vested until an unrestricted fee simple title to the land, the United States shall not be a necessary party to the proceeding, and any conveyance of the land pursuant to the proceeding shall divest the United States of title to the land. All mortgages and deeds of trust to such land heretofore approved by


 

1747

OPINIONS OF THE SOLICITOR

AUGUST 16, 1956

the Secretary of the Interior are ratified and confirmed."

The restrictive status of the Indian property involved is extinguished for the purposes designated in this legislation. Therefore, it appears that the tribe may proceed in the courts of Wyoming against restricted Indian property for the purpose of foreclosing approved mortgages or deeds of trust held by the tribe on such properties.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                Deputy Solicitor.

TAXABLE STATUS OF PROPERTY ACQUIRED WITH
FUNDS APPROPRIATED FOR REHABILITATION
OF CHEYENNE RIVER TRIBE

                                                                                                                                August 16, 1956.

Mr. James T. Mulloy
Director of Assessments,
    Dewey County
Timber Lake, South Dakota

MY DEAR MR. MULLOY:

    Congressman E. Y. Berry has asked us to reply to your letter to him dated August 1, 1956, with respect to the taxable status of property acquired with the funds appropriated for the rehabilitation of members of the Cheyenne River Indian Tribe pursuant to section 5 of the Act of September 3, 1954 (68 Stat. 1191).

    The statute cited provides that the Rehabilitation appropriation shall be deposited in the Treasury of the United States to the credit of the Tribe and shall be expended for the rehabilitation of all members of the Tribe who were residents of the Cheyenne River Sioux Reservation on the date of the Act. The money will be withdrawn from the United States Treasury from time to time and deposited in a local depository to the credit of the Tribe. The Tribe will then either disburse the money as a loan or gift to individual Indians for use pursuant to an approved rehabilitation plan, or purchase cattle, supplies, and other materials for resale to individual Indians on a deferred payment plan. The title to the property acquired by the individual Indians will remain in the Tribe until the purchase price or the loan has been paid in full.

    We believe that neither the money borrowed by individual Indians, nor the property purchased by individual Indians with such borrowed money, nor the property purchased by individual Indians from the Tribe on credit, pursuant to this program is taxable by the State. (See United States v. Rickert, 188 U.S. 432 (1903), United States v. Dewey County (U.S.D.C., S.D., 1926) 14 F. (2d) 784, affd. (CA. 8, 1928) 26 F. (2d) 434). Although these cases involved the taxation of property is sued to Indians by the Government or purchased by Indians with restricted funds, the reasoning of the cases is equally applicable to property purchased with Federal funds appropriated for a specific rehabilitation program carried out under Federal supervision.

    Whether Congress should provide tax relief to the County because of the decrease in the County tax base valuation as a result of the rehabilitation program is of course a subject upon which we express no opinion.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                                 Solicitor.

LEASE FEES CHARGED ON TRUST LAND
BY DEVIL'S LAKE SIOUX TRIBE FOR
ADMINISTRATION OF TRIBAL LAND
ENTERPRISE

                                                                                                                        August 16, 1956.

Hon. Usher L. Burdick
House of Representatives
Washington 25, D.C.

MY DEAR MR. BURDICK:

    This refers to your letter of June 21, 1956, requesting information regarding lease fees charged on Indian trust land by the Devil's Lake Sioux Tribe of the Font Totten Reservation.

    The Devil's Lake Sioux Tribe is not incorporated under the Indian Reorganization Act of June 18, 1934 (48 Stat. 984). It has, however, a Constitution and Bylaws approved by the Acting Commissioner of Indian Affairs on February 14, 1946, which, under Article IV--Powers (g), grants to the Executive Committee of the tribe "The power to charter subordinate associations and to delegate powers and prescribe duties to such organizations and to the District Councils and Technical Commissions." Pursuant to this section, the Devil's Lake Sioux Tribe adopted a Land Service Enterprise. The purpose of the Land Service Enterprise was set out in a resolution of the governing body of the Devil's Lake Sioux Tribe, dated December 2, 1947:

    "Whereas, the clerical services in connection with land and leasing work on the Fort Totten


 

1748

DEPARTMENT OF THE INTERIOR

AUGUST 16, 1956

Indian Reservation have been greatly curtailed because of reductions in governmental appropriations and personnel.

    "Whereas, it is advantageous to the Devil's Lake Sioux Tribe that these services be continued in order that lease income may be realized by the Indian land owners, leases prepared on trust lands which are necessary for Indian livestock operations, exchanges of land, consolidation of heirship interests, maintenance of lease and land records, etc.

    "Be it resolved, that the Devil's Lake Sioux Tribe accept a plan of operation for a land Service Enterprise. *     *     *"

    The plan of operation was approved by the Bureau of Indian Affairs on January 5, 1948. Section 5 of this plan prescribes the fees which shall be charged by the enterprise in lieu of fees fixed by Parts 71 and 171, Title 25, C.F.R. The following rates are charged:

    (a) When individual or tribal trust or restricted Indian land is leased, subleased, or assigned, the fees are based on the total rental to be paid by the lessee, permittee, sub-lessee, or assignee:

        Not to exceed $100 -------------------- $2.00
        $101 to $250 ---------------------------- 5.00
        $251 to $500 ---------------------------- 7.00
        For each additional $500
                or fraction thereof ------------------ $3.00

    (b) Each lessor or permitter shall pay a fee equal to five percent (5%) of the total rental consideration of each lease or permit.

    (c) Fees charged for clerical and ministerial duties performed in connection with the sale, purchase, exchange, assignment, partition and other transactions involving lands and improvements payable in cash with applications are as follows:

Valuation of lands and improvements

        Up to $100 ------------------------------ $2.00
        $101 to $250 ----------------------------- 5.00
        $251 to $500 ----------------------------- 7.00
        For each additional $100
                or fraction thereof ------------------- $1.00

    We have been informed that the Land Service Enterprise has been functioning under the schedule outlined above with regard to the collection of fees. The fees collected for clerical and ministerial work connected with the leasing of Indian land may, under 25 CFR 171.28 (c), be credited to tribal funds when such funds have been appropriated by the tribe to pay employees who perform the work. This is the case at Fort Totten where revenue obtained from the enterprise is used by the tribe to defray the expenses of tribal government.

    Your letter refers to a complaint that someone is being charged an additional lease fee of from 5 percent to 10 percent greater than the regulation fees authorized by law. There is nothing in records available here to substantiate such a contention, inasmuch as the fees charged by the Tribal Land Enterprise are authorized, under an agreed plan of operation, to be collected in lieu of the schedule of fees prescribed in 25 CFR 171.28 (a).

    On the point of whether the practice of the Tribal Land Enterprise curtails the leasing of land for long periods, such as three to five years, it is our opinion such leases are not prohibited by the collection of nominal service fees. We see no legal reason barring a prospective lessee from obtaining a three or five year lease provided he makes proper application and pays the designated fee for the processing and recording of his lease. Furthermore, we do not believe that the practice of collecting such fees for the handling of leases and permits has any detrimental effect on established policies encouraging long term leases for the purpose of promoting soil conservation.

    You have also asked our opinion on the legal status of the "so-called Tribal Enterprise" which is not registered in the State of North Dakota. The Tribal Land Enterprise has no independent legal status whatsoever. It is merely a subordinate adjunct (having some of the characteristics of a ways and means committee) of the tribal government. The Devil's Lake Sioux Tribe, however, is a legal entity which may bring suits in any court taking jurisdiction. It may be represented by the United States Attorney in trespass actions against persons who do not obtain a proper lease or permit before entering upon Indian land. This fact gives force to the tribe's most immediate and effective means of collecting its service fees, that is, by requiring that the fee be paid prior to the approval of a lease or the granting of a permit.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                                 Solicitor.


 

1749

OPINIONS OF THE SOLICITOR

AUGUST 22, 1956

APPLICATION OF FEDERAL LAW REGULATING
WORK HOURS--EMPLOYEES OF B.I.A.--
EIGHT-HOUR LAW

M-36365                                                                                                       August 22, 1956.

Labor: Eight-Hour Law

Employees of the Bureau of Indian Affairs whose duties are to drive trucks hauling food from a central purchasing and processing point are laborers within the meaning of section 1 of the act of August 1, 1892, as amended (40 U.S.C., sec. 321). Such employees come within the provisions of this section without respect to whether or not they are employed upon a public work of the United States.

Memorandum

To:            Chief, Branch of Classification
From:        Solicitor
Subject:     Eight-Hour Law

    You have informally asked this office whether certain truck drivers which the Bureau of Indian Affairs proposes to employ would be covered by section 1 of the act of August 1, 1892, as amended (40 USC., sec. 321), the Eight-Hour Law. We understand that the Bureau of Indian Affairs intends to establish an installation in the southwest at which food will be purchased and processed and from which shipments will be made by truck to other points in that region. The drivers of these trucks will be Federal employees.

    Section 1 of the Eight-Hour Law cited above reads in part as follows:

    "The service and employment of all laborers and mechanics who are or may be employed by the Government of the United States or the District of Columbia, or by any contractor or subcontractor, upon a public work of the United States or of the District of Columbia *     *     * is limited and restricted to eight hours in any one calendar day *     *     *."

The Attorneys General have held that section I of the act of August 1, 1892, both as enacted initially and as amended by the act of March 3, 1913 (37 Stat. 726) to read as set out above, applies to all laborers and mechanics employed by the Federal Government whether or not they are employed upon a public work of the United States and that the limitation with respect to employment upon a public work of the United States is applicable only with respect to laborers and mechanics employed by contractors and subcontractors (20 Ops. Atty. Gen. 459; unpublished opinion of the Attorney General to the Secretary of Agriculture, July 18, 1938).

    Accordingly, if the truck drivers under consideration here are laborers or mechanics they would be covered by the Eight-Hour Law without respect to whether or not they were employed upon a public work of the United States.

    In my opinion the truck drivers would be "laborers" within the meaning of the Eight-Hour Law. In 26 Ops. Atty. Gen. 605, the Attorney General ruled that "skilled as well as unskilled workmen" came within the act. In 39 Ops. Atty. Gen. 232, the Attorney General advised the Secretary of War that he should continue to apply the Eight-Hour Law in connection with the operation of trains by Government employees from the main line of the Great Northern Railway to the Fort Peck dam site. The Attorney General observed that "It is, under all the circumstances, a well warranted assumption that the Congress has intended the 8-hour law to have a broad application and to be liberally construed with this end in view" (p. 237). On the basis of these rulings alone it would appear that the truck drivers would come within the scope of the act. However, there are rulings of the Solicitor of the Department of Labor that are even more persuasive of this conclusion.

    Reorganization Plan No. 14 of 1950 (3 CFR 1950 Supp., p. 168) empowers the Secretary of Labor to prescribe appropriate standards, regulations, and procedures which are to be observed by the various Federal agencies with respect to a number of statutes, including the Eight-Hour Law of August 1, 1892, as amended. The Secretary of Labor has issued regulations (29 CFR Part 5) pursuant to Reorganization Plan No. 14 of 1950, and section 5.11 provides in part that "All questions arising in any agency relating to the application and interpretation *     *     * of the Davis-Bacon Act, the Anti-Kickback Act, the Eight-Hour laws *     *     * shall be referred to the Secretary of Labor for appropriate rulings or interpretation. The rulings and interpretations of the Secretary shall be authoritative *     *     *."

    In a letter dated July 29, 1942 (3 Labor Law Reporter, par. 26,903.15) the Solicitor of the Department of Labor considered whether the Davis Bacon Act was applicable to truck drivers hired by a trucking firm which had contracted to haul stone at a fixed price per ton to a site at which construction work was being done upon a Government warehouse. The trucking firm supplied the stone to another subcontractor for use in mixing concrete. The Solicitor of Labor held that the truck drivers were laborers within the meaning


 

1750

DEPARTMENT OF THE INTERIOR

AUGUST 22, 1956

of the Davis-Bacon Act. This view was reaffirmed by the Solicitor of Labor in a letter dated June 8, 1956, to Charles A. Horsky. Finally in a letter dated November 7, 1952, to Julien Capers, .Jr., the Solicitor of Labor said:

    "As used in these statutes [the Davis-Bacon Act and related statutes], the term 'laborers' and 'mechanics' have consequently been construed as generally synonymous with the corresponding terms used in the Eight-Hour Laws, and as including those workers whose duties consist of manual labor, skilled or unskilled."

It would follow, therefore, that the Solicitor of Labor's ruling that truck drivers were laborers within the meaning of the Davis-Bacon Act is tantamount to a decision that they are laborers within the meaning of the Eight-Hour Law also.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                Deputy Solicitor.

ORDINANCE OF FT. HALL BUSINESS COUNCIL
RE PERMITS FOR SALE OF LIVESTOCK
AND BRANDING

M-36363                                                                                                                 August 24, 1956.

Indians: Law and Order--Indian Tribes: Tribal Government

An ordinance requiring all Indian owners of livestock who desire to remove their livestock from the Fort Hall Reservation to obtain a permit is a valid exercise of the powers enumerated in the tribal constitution. Such ordinance does not contravene the act of August 15, 1953 (67 Stat. 590, 18 U.S.C. 1157).

Statutory Construction: Administrative Construction

The act of August 15, 1953 (67 Stat. 590, 18 U.S.C. 1157) , does not nullify local ordinances duly passed by Indian tribal councils, nor does it impose additional limitations on the tribe's authority to control by permit the removal of any livestock kept on the reservation. However, under this act, the Superintendent may only issue permits for sale of restricted livestock.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Proposed ordinance by Fort Hall Business Council re permits
                 for sale of live stock and branding

    This refers to your memorandum of April 16, 1956, in which this office was requested to express an opinion on:

    1. The legality of an ordinance proposed by the Fort Hall Business Council which requires all Indian owners of livestock to secure a permit from the Tribal Council for the sale and removal of livestock from the reservation. It has been brought to our attention that such an ordinance may be invalid because "Congress has specifically legislated that Indians on a reservation may dispose of their livestock on the same basis as non-Indian livestock operators." It is the opinion of this office that an ordinance requiring all Indian owners of livestock who desire to remove their livestock from the Fort Hall Reservation obtain a permit from the business council is a valid exercise of the powers enumerated in their tribal constitution and that such ordinance does not contravene the act of Congress discussed hereinafter, or any provision of the Constitution of the United States. However, the ordinance also provided for issuance of permits by the Superintendent. The Superintendent should not control livestock which are not purchased with funds from tribal or revolving loan funds or livestock loans repayable in kind, or otherwise subject to the act of August 15, 1953 (67 Stat. 590, 18 U.S.C. 1157) which, as amended, reads as follows:

    "Where restricted Indians are in possession or control of livestock purchased for or issued to them by the Government, or the increase therefrom, such stock shall not be sold, transferred, mortgaged, or otherwise disposed of, except with the consent in writing of the Superintendent or other officer in charge of the tribe to which the owner or possessor of the livestock belongs, and all transactions in violation of this provision shall be void.

    "All such livestock so purchased or issued and the increase therefrom belonging to restricted Indians and grazed in the Indian country shall be branded with the I D or reservation brand of the jurisdiction to which the owners of such stock belong, and shall not be removed from the Indian country except with the consent in writing of the Superin-


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