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1751

OPINIONS OF THE SOLICITOR

AUGUST 24, 1956

tendent or other officer in charge of the tribe to which the owner or possessor of such live stock belongs, or by order of the Secretary of the Army, in connection with the movement of troops.

    "Whoever violates this section by selling or otherwise disposing of such stock, purchasing, or otherwise acquiring an interest therein, or by removing such stock from the Indian country, shall be fined not more than $500 or imprisoned not more than six months, or both Provided, That this section shall apply only to livestock purchased by or for Indians with funds provided from the revolving loan fund established pursuant to the acts of June 18, 1934 (48 Stat. 984), and June 26, 1936 (49 Stat. 1967), as amended and supplemented, or from tribal loan funds used under regulations of the Secretary of the Interior, and to livestock issued to Indians as loans repayable 'in kind', and to the increase of all such livestock, and only until such time as such loans are repaid; Provided further, That it shall be the duty of any purchaser of Indian livestock to use reasonable diligence to ascertain that such livestock are not subject to such loans."

    This section of the United States Code imposes obligations and penalties for removing livestock purchased by or for Indians with funds provided from the Revolving Loan Fund established pursuant to the acts of June 18, 1934 (48 Stat. 984), and June 26, 1936 (49 Stat. 1967), or from tribal loan funds used to purchase livestock issued to Indians as loans repayable "in kind" until such loans are repaid. A permit issued under a tribal ordinance purporting to permit the removal or disposal of cattle from the reservation would not relieve the owner of the cattle from the prohibitions and penalties imposed under the cited section of the Code.

    The proposed tribal ordinance undoubtedly contemplates a dual control, both by the representatives of the tribal council and by the Superintendent, of cattle subject to Section 1157 of Title 18 of the Code, but to be clear the proposed ordinance should be drafted to contain a provision setting out that where cattle are subject to Section 1157 of Title 18 of the Code, no certificate will be issued by the tribe until the owner of the livestock presents an appropriate clearance for such livestock from the Superintendent or his duly authorized representative. It is the opinion of this office that the act of August 15, 1953, supra, does not nullify ordinances passed by councils of organized tribes dealing with the handling of non-restricted livestock raised on the reservation. The act does not, by express language or implication, impair the exercise by the tribe or its privilege of local self-government.

    The ordinance in question comes within the authority of the Fort Hall Business Council set forth in Article VI, sec. 1 (1) of their constitution. That section provides:

    "Section I. The Business Council of the Fort Hall Reservation shall exercise the following powers, *     *     *

*     *     *     *     *

    " (1) To safeguard and promote the peace, safety, morals, and general welfare of the Fort Hall Reservation by regulating the conduct of trade and the use and disposition of property upon the reservation, provided that any ordinances directly affecting non-members of the reservation shall be subject to review by the Secretary of the Interior."

    There is on official record that such an ordinance was passed by the council and submitted to the Superintendent for his approval in accordance with Article VI, Sec. 2 of the Shoshone-Bannock Constitution. Therefore, to become effective such an ordinance must be enacted by the business council of the tribe and be approved by the Superintendent within the time provided by the Tribal constitution.

    2. The answer to the second question, whether the business council has authority to require that a particular brand be placed upon all Indian owned livestock run on the reservation regardless of restricted or non-restricted status and perhaps in contravention to departmental instructions (February 17, 1954), must be premised on the same authorities as were relied upon above. A tribe may prescribe its own rules for local government by appropriate ordinances pursuant to the provisions of its own constitution. From the facts which have been presented to us it is difficult to determine whether or not a proposed ordinance requiring the use of a certain brand for all cattle on the reservation exceeds the authority of the business council. Apparently, the livestock brand proposed by the business council for use on the reservation is not favored by the Bureau. Generally, however, it is within the power of the tribe to "regulate the use and disposition of individual property among its members."1 The requirement of a certain brand may be regarded as a regulation of the use of such property.

____________________

    1 Cohen. Handbook of Federal Indian Law, p. 143.


 

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AUGUST 24, 1956

    3. There being no legal prohibition against the regulation by the tribe with regard to branding and the securing of permits for the renewal of live stock from the reservation, the ordinance passed by the business council may also be adopted by the Fort Hall Stockman's Association. Whether such regulations should be adopted by the Association as conditions to membership is not within the province of this office, or the Bureau of Indian Affairs, to decide.2

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                                 Solicitor.

STATUS OF LAND LYING WITHIN A DEFINED
SIXTY-FOOT BOUNDARY LINE BETWEEN
THE U. S. AND CANADA

M-36368                                                                                                 September 12, 1956.

Indian Lands: Ceded Lands

Chippewa Indian lands ceded to the United States pursuant to acts of January 14, 1889 (25 Stat. 642) and February 20, 1904 (33 Stat. 46, 50), did not become "public lands" of the United States, but remained Indian lands until actually disposed of by the United States pursuant to the cession acts under which the United States acted as trustee for the Indians.

Indian Lands: Ceded Lands--President of the United States

Presidential Proclamations of January 15, 1908 (35 Stat. 2189) and May 3, 1912 (37 Stat. 1741), setting aside a 60-foot strip of public land between the United States and Canada did not include therein ceded Indian lands as such lands were not unentered or unreserved public lands of the United States.

Indian Lands: Ceded Lands--Indian Lands: Timber--Indian Reorganization Act--President of the United States

The unentered and undisposed of ceded Indian lands of the Red Lake Indian Reservation restored to the Indians and to their reservation by Secretarial order of February 22, 1945, issued pursuant to sections 3 and 7 of the Indian Reorganization Act (48 Stat. 984), as amended, were properly restored to Indian ownership, and the timber on such restored lands may be sold under applicable laws and regulations.

Memorandum

To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Status of land lying within a defined 60-foot boundary line
                 between the United States and Canada

    Your memorandum of February 21, 1956, requests advice in regard to the ownership of land and timber which lies within the 60-foot public reservation established by two Presidential proclamations of June 13, 1908, and May 3, 1912, within townships 166, 167 and 168 North, Range 35 West. Part of the lands therein are within the area restored to the Red Lake Indian Reservation, Minnesota, by order issued February 22, 1945, by Assistant Secretary of the Interior Oscar I. Chapman, pursuant to sections 3 and 7 of the Indian Reorganization Act (48 Stat. 984), as amended.

    The Chippewa Indians' lands were ceded by an act of Congress of January 14, 1889 (25 Stat. 642; Nelson Act), which provided, among other things, for the complete cession and relinquishment in writing of all of their title and interest in and to the reservations of the Indians in the State of Minnesota, except the White Earth and the Red Lake Reservations, and to all and so much of these two reservations as in the judgment of the commission, provided for in the act, is not required to make and fill the allotments required by the act and other acts, and which shall not have been reserved by the commissioners for other purposes. This act provided that as and when each cession and relinquishment of the Indians' title had been obtained and approved as provided for in the act, it shall be the duty of the Commissioner of the General Land Office to cause the land so ceded to the United States to be surveyed in the manner provided by law for the survey of public lands. The pine lands were to be sold at not less than the appraised price at public auction to the highest bidder in 40-acre parcels. The remaining lands ceded, designated as agricultural lands, were to be disposed of to actual settlers under the provisions of the public land law. Each settler, in addition to complying with the homestead laws, was required to pay the United States for the lands entered the sum of $1.25 for each and every acre, in five equal installments.

    Section 7 of the act provided that all money accruing from the disposal of the lands pursuant to the act, after deducting the expenses specified therein of making the cession, relinquishment, removal, allotments, and completing the surveys and appraisals, be placed in the Treasury of the

____________________

    2 Ibid, p. 165.


 

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OPINIONS OF THE SOLICITOR

SEPTEMBER 12, 1956

United States to the credit of all the Chippewa Indians in the State of Minnesota as a permanent fund to draw interest at the rate of 5 percent per annum payable annually for a period of 50 years and to be spent as provided for in the act. Legislative changes dealing with this fund have occurred from time to time, which changes, however, have no bearing on the question presented in your memorandum. No allotments were ever made to the individual Indians on the Red Lake Reservation.

    Congress, by the act of February 20, 1904 (33 Stat. 46, 50), entitled "An Act to authorize the sale of a part of what is known as the Red Lake Indian Reservation, in the State of Minnesota," recited an agreement with the Red Lake Chippewa Indians negotiated by James McLaughlin, United States Indian inspector, on the 10th day of March, 1902. This agreement provided for the relinquishment and conveyance of 256,152 acres of the Red Lake Indian Reservation lying west of range line between ranges thirty-eight and thirty-nine, west of the Fifth Principal Meridian, for which, among other things, the sum of one million dollars was to be paid by the United States, as provided for therein.

    Article 5 of the 1902 agreement provided that nothing in the agreement shall be construed to deprive the Indians belonging to the Red Lake Reservation of Minnesota of any benefits to which they are entitled under existing treaties or agreements not inconsistent with the 1902 agreement.

    The agreement with the Indians which is set out on pages 46, 47 and 48 of 33 Statutes at Large was modified and then ratified by Congress on February 20, 1904. This ratification provided that in consideration of the land ceded by Article I of the agreement, the United States stipulates and agrees to sell, subject to the homestead laws of the United States, under rules and regulations to be prescribed by the Secretary of the Interior, in tracts not to exceed 160 acres to each individual, all of said lands, except lands remaining unsold after five years from the first sale, which may then be sold without reference to the provisions of the homestead laws. None of such lands was to be sold for less than $4 per acre. Payments could be made in installments, the last installment to be paid within five years from the date of sale. All moneys received from such sales as provided for in the act were to be paid to the Indians.

    Article VI, section 4, of the act specifically provides that nothing therein contained shall in any manner bind the United States to purchase any portion of the land therein described, or to guarantee to find purchasers for said lands, or any portion thereof, it being the intention of the act that the United States shall act as trustee for said Indians to dispose of said lands and to expend and pay over the proceeds received from the sale thereof only as received and as therein provided.

    From these acts it is evident that the ceded Indian lands did not become "public lands" of the United States. The pine lands were to be sold for not less than the appraised value placed thereon and the agricultural lands were to be made available for entry through the use of the public land laws, the entryman in each case being required to pay the appraised value of the land so entered, and the moneys as received, subject to the terms and conditions of the acts of Congress, were to be paid to the Indians.

    The Red Lake Indians retained an equity in the ceded lands until after they had been disposed of or entered and payments made, which, less the deductions provided for in the acts, were turned over to the Indians. These Indians, under the decision of the Supreme Court of the United States, in the case entitled Ash Sheep Company v. United States, 252 U.S. 159, were entitled to all revenue accruing from the unentered and undisposed of ceded Indian lands. Fifty-six years after the Indians ceded their lands under the 1889 act and forty-one years after they ceded their lands under the 1904 act, there remained approximately 141,000 acres for which they had received no compensation. This was the situation when, on February 22, 1945, the order of the Assistant Secretary of the Interior was issued, restoring such unentered and undisposed of ceded lands to the Red Lake Indian Reservation and the Indians thereof, pursuant to sections 3 and 7 of the Reorganization Act, supra. Such order was legally issued because those unentered and undisposed of lands were in fact ceded Indian lands in which the Red Lake Indians had an equity until they were actually disposed of and the proceeds, under the cited acts, paid to the Red Lake Indians.

    The two Presidential proclamations were subsequent to the 1889 and 1904 acts of Congress. The first of these proclamations, which was issued by President Roosevelt on June 15, 1908 (35 Stat. 2189), proclaimed and made known that all unpatented public lands of the United States, lying within the 60-foot boundary line between the United States and the Dominion of Canada, were set apart as a public reservation, which should thereafter be subject only to such rights as had been theretofore legally acquired under settlements, entries, reservations, or other forms of appropriations, and were then existing, but should not be subject at any time to any other claim, use, or occupancy, except for public highways.

    On May 3, 1912 (37 Stat. 1741). President Taft issued a proclamation similar to the prior one


 

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DEPARTMENT OF THE INTERIOR

SEPTEMBER 12, 1956

dealing with the 60-foot strip in aid of the customs and immigration laws of the United States. This proclamation reserved from entry, settlement, or other form of appropriation and disposition under the public land laws and set apart as a public reservation all public lands lying within 60 feet of the boundary line of the United States and the Dominion of Canada.

    Each of the Presidential proclamations dealt specifically with "public lands" of the United States lying within the 60-foot boundary line between the borders of the two countries. The ceded undisposed of Red Lake Indian lands were not included in the proclamations.

    The acts of Congress ceding the Red Lake Indian lands were similar to the act of April 27, 1904 (33.Stat. 352, 362), entitled "An Act to ratify and amend an agreement with the Indians of the Crow Reservation in Montana, and making appropriations to carry the same into effect." The Crow agreement like the agreement with the effect." The Crow agreement like the agreement with the Red Lake Indians of March 10, 1902, was modified and amended before enactment. This Crow agreement was involved in the Ash Sheep case, supra. The Ash Sheep Company contended that the ceded Crow lands were not "Indian lands" but that they were "public lands." Terms used in the Crow Act are similar to those contained in the cession act of the Red Lake Indians. These terms are "ceded, granted, and relinquished to the United States all of their right, title and interest." The Sheep Company argued that since the United States was the owner of the fee of the land before the agreement with the Crow Indians, the effect of the grant and release of the Indians' possessory right to the ceded lands was to vest complete and perfect title in The Government, and thereby make the territory a part of the public lands with the interest of the Indians transferred to the proceeds to be derived from them.

    The Supreme Court said that whether or not the Government became trustee for the Indians or acquired an unrestricted title by the cession of their lands depends in each case upon the terms of the agreement or treaty by which the cession was made. Minnesota v. Hitchcock, 185 U.S. 373, 394, 398; United States v. Mille Lac Band of Chippewa Indians, 229 U.S. 498, 509. The court further stated:

    "It is obvious that tile relation thus established by the action between the Government and the tribe of Indians was essentially that of trustee and beneficiary and that the agreement contained many features appropriate to a trust agreement to sell lands and devote the proceeds to the interest of the cestui que trust. Minnesota v. Hitchcock, 185 U.S. 373, 394, 398, and that this was precisely the light in which the Congress regarded the whole transaction, is clear from the terms of the concluding section, the eighth:

    " ' That nothing in this Act contained shall in any manner bind the United States to purchase any portion of the land herein described, *     *     * it being the intention of this act that the United States shall act as trustee for said Indians to dispose of said lands and to expend and pay over the proceeds received from the sale thereof only as received, as herein provided.' (33 Stat. 352, 361) "

    Taking all of the provisions of the agreement together the Court held:

    "We cannot doubt that while the Indians by the agreement released their possessory right to the Government, the owner of the fee, so that, as their trustee, it could make perfect title to purchasers, nevertheless, until sales should be made any benefits which might be derived from the use of the lands would be long to the beneficiaries and not to the trustee, and that they did not become 'Public lands' in the sense of being subject to sale, or other disposition, under the general land laws. *     *     *"

    It follows, therefore, that the unentered ceded Red Lake Indian lands were restored properly to the Red Lake Indian Reservation as they were not "public lands" of the United States. They accordingly were not included within the 60-foot reservations created by the two Presidential orders as only "public lands" were affected by those orders.

    You are accordingly advised that timber growing on these restored Red Lake Indian lands situated within the boundary of the 60-foot strip may be sold under authority of the applicable laws and regulations governing the sale of the timber on the Red Lake Indian Reservation.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                                 Solicitor.

 


 

1755

OPINIONS OF THE SOLICITOR

SEPTEMBER 17, 1956

ORGANIZATION OF SCHOOL DISTRICTS
ON INDIAN RESERVATIONS IN ALASKA

63 I.D. 333

M-36367                                                                                                     September 17, 1956.

Alaska: Indian and Native Affairs

There is no Federal law which prohibits the territory of Alaska from creating school districts in territory set aside for Alaskan Indians.

Alaska: Territorial Agencies

A school district is usually a separate taxing district for school purposes.

Indians: Taxation: Generally

The power of local taxation cannot be asserted against the property of the Alaskan Indians without congressional authorization.

Hon. J. Gerald Williams
Attorney General
Juneau, Alaska

SIR:

    This refers to your inquiry of June 12, 1956, requesting a review of the following question: May a school district be organized under the laws of the Territory of Alaska, in country set aside by the Federal Government for the use and occupancy of Indian Tribes of Alaska?

    Prior to the Organic Act of Alaska on August 24, 1912 (37 Stat. 512), it appears that schools outside of incorporated towns were supported by annual appropriation made by Congress. Starting with the Act of January 27, 1905 (33 Stat. 616), a provision was made that "the education of the Eskimos and Indians in the District of Alaska shall remain under the direction and control of the Secretary of the Interior and schools for and among the Eskimos and Indians of Alaska shall be provided for by annual appropriations." Each of the subsequent provisions of acts making appropriations for the support of schools among the natives of Alaska contained a like provision that the appropriations for the support of schools for natives of Alaska shall be under the direction of the Secretary of the Interior. A school system under the direction of the Secretary had become pretty well recognized by the time the Territory of Alaska was created by the Act of August 24, 1912, supra, in that it was provided in section 3 thereof that "the authority granted therein to the legislature to alter, amend, modify and repeal laws in force in Alaska, shall not extend to the act of January 27, 1905, supra, and the several acts amendatory thereof, which act provides that schools for and among the Eskimos and Indians of Alaska shall be provided for by an annual appropriation." Evidently, Congress intended to continue it's education program for children of non-taxpaying natives and this provision of the Organic Act of Alaska served to extend and preserve the system of education that had been established by congressional appropriation under the direction of the Secretary of the Interior.

    Although Congress made sure that its schools for the native children of the far reaching Alaskan rural areas were preserved, in no way did Congress attempt to restrict the maintenance and establishment of schools by the Territorial Legislature of Alaska. In fact, Congress expressly granted to the Territory power of legislation for school purposes by the Act of March 3, 1917 (39 Stat. 1131). It was after the enactment of this act that territorial schools came more and more into existence. The ultimate result was, of course, a dual system of schools in Alaska. There were those for the education of white and colored children and "children of mixed blood who lead a civilized life," established and maintained by appropriation from Territorial funds; and those for education of Indians and other natives provided for by the annual appropriations of Congress.

    The problems that arose between the United States Government school program and Territorial school program nearly always resulted in the encouragement and expansion of the Territorial school system. The decision in the case of Jones v. Ellis (8 Alaska 146) directed the Territorial school officials to admit both white and native children. This decision indicates a directive by the court requiring the Territorial legislature to expand its school system.

    Later, action was taken by Congress which helped and encouraged the Territorial Legislature of Alaska to expand its school facilities. Congress authorized the annual appropriation to be used by the Secretary of the Interior in the support of both the Territorial schools of incorporated towns as well as the rural schools. It soon became a matter of mutual assistance and cooperation between the Secretary and the Territorial School Boards.

    On May 13, 1930 (46 Stat. 321) Congress authorized the Secretary to contract with the Territory's school boards that maintained schools in certain cities and towns for the education of non-


 

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DEPARTMENT OF THE INTERIOR

SEPTEMBER 17, 1956

taxpaying natives, including those of mixed native and white blood, and Congress authorized the leasing of school buildings owned by the United States to such school boards, and to pay the school boards for services rendered an amount not in excess of the cost of operating a school for natives under present appropriations in such town. Thereafter Congress enacted the Johnson-O'Malley Act April 16, 1934 (48 Stat. 596; as amended, 49 Stat. 1458; 25 U.S.C. 452, 454), and the Territorial Legislature authorized the Board of Administration of the Territory of Alaska to enter into contracts with the Secretary of the Interior for education and welfare work among the Alaskan natives. (Chapter 85, Laws of Alaska, 1935.)

    This concept of mutuality of interest between the United States Government and the Territorial Government of Alaska in providing for education of Alaskan children has been prevalent throughout the whole struggle for Alaskan school facilities. Because of the diversified population of Alaska, it is only natural for the Territory of Alaska to concentrate on the densely populated areas, while the United States Government shoulders the burden of providing schools in the more isolated areas where non-taxpaying natives are located. The later extension of the Territorial schools into areas where native children were located was in no way discouraged by the United States Government. In fact, I am aware of no laws passed by Congress which would even indicate an attempt to restrict this expansion of Territorial schools. Actually, the record shows that Congress at all times attempted to encourage and support the establishment of a territorial school system which would reach out and be available for all the children of Alaska, including the Indian and native children.

    In my opinion, this historical background of the education program of Alaska clearly indicates that there is no federal order, decision or statute which prohibits the Territory of Alaska from extending its school system into territory set aside for Alaskan Indians.

    A study of the 1949 Compiled Laws of Alaska providing for the incorporation of school districts indicates that the purpose of their incorporation is to provide a school board elected according to the laws therein provided for the purpose of the managing and administering all school matters of the district under such rules and regulations as might be promulgated by the Commissioner of Education of the Territory of Alaska. In other words, the district electors themselves elect a school board to whom they may look for the purposes of the erection, maintenance and support of schools. In fact, the school board of the particular school district is restricted to the purpose of providing an administrative body for the sole purpose of maintenance and support of public schools. This being the purpose of a school district of Alaska, there is no objection legally or morally to their creation to include lands set aside by the Federal Government for the use and occupancy of the Indians of Alaska.

    In this respect, it should be observed that the Courts within the United States have refused to object to the incorporation of school districts on Indian Reservations. (Lebo v. Griffith (173 N.W. 840); State ex rel. Baker v. Mountrail County (149 N.W. 120.) It is also well recognized that in many respects natives of Alaska are wards of the Government at least to such an extent to bring them within the spirit, if not within the exact letter of the laws relating to American Indians. (49 L.D. 592.) Other cases have expressly said that Indians and natives of Alaska are in the same category as the Indians of the United States. (50 L.D. 315.)

    The fact must not be overlooked, however, that a school district is also vested with certain recognized powers as a body politic. And, although the law will not prevent their creation, the powers of the district may come into direct conflict with federal laws protecting the rights of Indians.

    The laws of the Territory of Alaska expressly provide that the school board shall have the power and it shall be their duty to appoint an assessor who shall act as a tax collector. (Title 37, Section 3-12 Alaskan Compiled Laws, 1949) and Section 3-23 of Title 37 provide that the school board shall have the power to levy and collect taxes upon real and personal property within the limits of their respective districts not exempt therefrom by existing law, and not to exceed 29; of the assessed value of such property. It is this power that the Federal Government and the Federal Courts have consistently refused to recognize if asserted against Indian property within the protective scope of federal Indian law. (50 L.D. 315; 5 L.D. 155; Alaska Pacific Fisheries v. U.S., 248 U.S. 78; Territory of Alaska v. Annette Island Packing Co., 289 Fed. 671.)

    On the other hand, although the territory may not tax property owned and occupied by an Alaskan Indian Tribe, there is no law which prevents its taxation of the property of non-Indians even though non-Indian's property is located upon tribal land under lease from the Indians. Thomas v. Gray, 169 U.S. 264. The Supreme Court in the Helvering v. Producers Corp., 303 1T.S. 376, held that immunity from non-discriminatory taxation sought by a private person for his property or gains because he is engaged in operation under a government contract or lease cannot be supported by merely theoretical conceptions of interference


 

1757

OPINIONS OF THE SOLICITOR

SEPTEMBER 17, 1956

with the function of government. In upholding a tax upon profits of a private individual operating under a government contract, the Helvering case said: "*     *     * there are no sufficient grounds for holding that the effect upon the Government is other than indirect and remote *     *     *." Furthermore, it is well established that, if the land of the Indian Tribe passes from the tribe or individual Indian to a non-Indian, such property becomes subject to real and personal property taxation. (Choctaw, O. & G. R.R. v. Mackey, 256 U.S. 531.)

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                                 Solicitor.

EFFECT OF TERMINAL LEGISLATION
UPON REVOCABLE RIGHTS-OF-WAY
AND OTHER ENCUMBRANCES
ON INDIAN LANDS

M-36369                                                                                                 September 17, 1956.

Indian Lands: Leases and Permits: Generally

The Secretary of the Interior has authority to make a notation in a patent for tribal or allotted Indian land concerning the encumbrance thereon and such a notation is administratively desirable.

Indian Lands: Rights-of-Way

The Secretary of the Interior has authority to make a notation in a patent for tribal or allotted Indian land concerning the encumbrance thereon and such a notation is administratively desirable.

Rights-of-Way: Generally

Rights-of-way and other encumbrances are not to be arbitrarily altered by conveyances relying for authority upon Indian Termination Legislation.

Revocable permits for rights-of-way over trust or allotted Indian land need no longer be issued since the enactment of the act of February 8, 1948 (62 Stat. 17, 26 U.S.C. 323) authorized the Secretary to grant rights-of-way.

Rights-of-Way: Cancellation

Rights-of-way, leases and other encumbrances on property transferred pursuant to termination legislation, subject to the Secretary of the Interior's power of revocation, cannot be revoked solely to facilitate termination of guardianship activities.

Indian Tribes: Terminal Legislation

The rights of persons and concerns having leases, rights-of-way, permits, licenses, liens or other contracts encumbering real property to be disposed of pursuant to Terminal Legislation are not affected by such legislation (citing Section 22 of the Klamath Termination Act (68 Stat. 723; 25 U.S.C. 564u) ).

The Secretary is authorized to grant leases, permits, licenses, rights-of-way, liens and other contracts encumbering real property to be disposed of pursuant to Terminal Legislation, after the date of enactment of such legislation and until the effective date of termination of federal responsibility. Such encumbrance may even extend beyond the final date of termination of responsibility, but in all such cases the written consent of all persons in interest should be obtained.

Provisions in Terminal Legislation (see Section 22, Klamath Termination Legislation, 68 Stat. 723; 25 U.S.C. 564u) empowering the Secretary of the Interior to transfer "powers, duties or other functions with respect to the property subject to" leases, rights-of-way or other contracts encumbering land to be disposed of, are not mandatory. Whether the Secretary extinguishes them, retains them, or transfers them as therein provided, is a matter of administrative nature, involving governmental policy.

Secretary's authority to revoke permit for right-of-way is not arbitrary. He cannot employ this power solely to facilitate Termination Legislation.

Notation of an encumbrance on a fee patent for tribal or allotted land issued pursuant to Terminal Legislation is within the Secretary of the Interior's authority and is administratively desirable.

To:            Regional Solicitor, Portland
From:        The Solicitor
Subject:     Effect of Termination Legislation upon revocable rights-of-way and
                 other real property encumbrances on Indian lands disposed of pursuant
                 thereto

    A question has been raised as to the status of a Weyerhauser Timber Company's logging railroad right-of-way permit on the Klamath Indian Reservation in view of the subsequent enactment of the


 

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DEPARTMENT OF THE INTERIOR

SEPTEMBER 17, 1956

Klamath Termination Legislation (act of August 13, 1954, 68 Stat. 718; 25 U.S.C., sec. 564-564 (w) ). The Klamath Termination Act provides for the termination of Federal supervision over the property of the Klamath Tribe of Indians located in the State of Oregon and of its individual members. One permit in question is in the nature of a contract for a right-of-way granted to the timber company in September 1940 by the Secretary of the Interior on behalf of the owners of the tribal and allotted lands encumbered thereby. The Secretary retained the power of revocation of the easement, and the permittee timber company obligated itself to certain undertakings. The permittee paid in advance a scheduled amount for the benefit of each owner of the properties so encumbered. It appears that the consents of all such property owners were previously obtained by the Reservation Superintendent.

    We are also informed that in a similar case involving a revocable permit for a spur siding, known as the "Mayamor spur siding," a 50-year permit was obtained by this same company "superseding a revocable permit." Apparently, the new permit was granted after the passage of Public Law 587, the Klamath Termination Act. The Superintendent of the reservation now raises a question as to his authority to grant this permit.

    The problems presented by these cases are common to all leases, rights-of-way, or other agreements involving property which is or will be included in Indian termination legislation. A discussion of the various problems raised and our conclusion concerning the legal questions follow:

Noting Encumbrance on Fee Patent
--Tribal and Allotted Land

    The Solicitor has previously ruled in a case involving a patent for allotted land that the Secretary of the Interior has authority to make a notation therein concerning a permit of a right-of way for logging. He has also observed that, although such a notation is not necessary to protect the rights of the permittee, the notation is administratively desirable. (Opinion M-36158, November 28, 1952.) To the same effect see Washington Water Power Co. v. Harbaugh, 253 Fed. 681, Idaho 1918; Swendig v. Washington Water Power Co., 281 Fed. 900 (9th Cir. 1922).

    This same principle is applicable to fee patents issued pursuant to Public Law 587, and to other similar termination legislation, which may involve patents for tribal land as well as for allotted land.

Effect of Termination Legislation
on Existing Encumbrances

    The rights of the Timber Company and of other persons or concerns having rights-of-way, permits, or other property or contract interests are not to be arbitrarily altered by conveyances relying for authority on the Klamath "Termination" Legislation. Section 22 of that Act (68 Stat. 723) specifically provides that its provisions for disposing of property shall not "abrogate any valid lease, permit, license, right-of-way, lien, or other contract heretofore approved." This provision makes no distinction between disposition of Indian lands among Indians and sales to third persons, nor should there be in such cases.

Conveyances of Indian Land Subject to
Encumbrance, the Conveyance Not Being
Made Pursuant to Termination Act

    It is suggested that some sales of allotted Oregon Indian Land encumbered by a right-of-way may not be made pursuant to Public Law 587, and therefore Section 22 thereof would not apply.

    The provisions of Section 22, quoted above, are common to other termination acts and, in effect, incorporate the Constitutional mandate of the Fifth Amendment forbidding the impairment of property rights. That principle is applicable to the disposal of Indian lands not specifically effected pursuant to Public Law 587 and other similar termination legislation.

Effect on Revocation Powers

    Congress also recognized that, upon termination of Federal supervision of the Indian properties involved, a problem would arise in those cases where the Secretary had been given by prior law discretionary powers, such as that of revocation in the disposition of property rights involving Indian lands. This same Section 22 provides that "When ever any such instrument" (referring to leases, rights-of-way, or other contracts previously mentioned in the section) "places in or reserves to the Secretary any powers, duties or other functions with respect to the property subject thereto, the Secretary may transfer such functions, in whole or in part, to any Federal agency with the consent of such agency and may transfer such functions, in whole or in part to a State agency with the consent of such agency and the other party or parties to such instrument." (August 13, 1954, c. 732, sec. 22 (68 Stat. 723) .) It should be noted that the transfer of these functions is not mandatory. Whether the Secretary extinguishes them, retains them or transfers them as therein provided, is a matter of an administrative nature, involving governmental policy. The Secretary will consider, in making his decision, whether those functions are to be retained for the benefit of the public, of Indians generally, or of a particular Indian or group of Indians. It should also be noted that


 

1759

OPINIONS OF THE SOLICITOR

SEPTEMBER 17, 1956

some of these permits, rights-of-way and other similar encumbrances are granted by the Secretary of the Interior pursuant to specific statutory authority, which may also provide that the right or privilege granted is revocable, as in the case of power transmission line and telephone line rights-of-way. (See Washington Water Power Company cases, cited above.)

    In some cases the Commissioner of Indian Affairs acts without specific statutory authority but pursuant to a general supervisory authority conferred upon him by Congress "to have the management of all Indian Affairs." (Act July 9, 1832, c. 174, 4 Stat. 564, 25 U.S.C. Sec. 2.) The desire of the Department of Interior to further logging operations on Indian land in order to benefit the Indians having an interest therein resulted in the revocable permits herein considered without reliance upon specific statutory mandate but pursuant to said supervisory authority.

    The more recent act of February 8, 1948 (62 Stat. 17, 25 U.S.C. sec. 323) authorizes the Secretary of the Interior to grant rights-of-way "for all purposes, subject to such conditions as he may prescribe, over and across any lands now or hereafter held in trust by the United States for individual Indians or Indian tribes, communities, bands or nations, or any lands now or hereafter owned, subject to restrictions against alienation *     *     * by such Indians." Payment of just compensation is required and there is also a statutory provision requiring, in most cases, consent of the Indians involved. (Secs. 2 and 3 of the Act.) This statute removes the necessity of employing the "revocable permit" in such cases.

Effect of Extinguishment of Power
of Revocation

    A question is also raised that, it the Secretary exercises his power of revocation in a specific logging right-of-way permit, the obligations assumed by the company in the granting of such permit may be affected. The answer appears to be that, if the Secretary considers extinguishing or transferring this power of revocation, a modification of the permit agreement is necessary, to which the permittee and the Indians whose property would be affected should be parties. This may apply to any case in which the Secretary alters the character of a revocable permit, as for instance, by transferring the power to a State agency, since it affects the permittee who has certain vested rights under the permit. It should be observed that the Secretary's power to revoke is not an arbitrary power. He can not employ his power of revocation solely to facilitate the termination of his Indian guardianship activities.

    In the present case it appears to have been the intention of the Secretary, upon issuing the logging rights-of-way revocable permits, that these permits should continue in effect as long as the logging contracts should be faithfully performed. So far as such logging rights-of-way on Indian lands are concerned, the statutory retention of the power to revoke in the Secretary is for the benefit of Indians and not of the public generally. There is no reason why the Secretary should retain this power, since the purpose of the termination legislation is to relieve him of such supervisory tasks.

Effect of Right-of-way or Other Contract
made after Enactment of Terminating
Legislation

    A further question is considered, whether a "valid lease, permit, license, right-of-way, lien or other contract" may be granted by the Secretary for land to be disposed of under such an act as the Klamath Termination Act, supra, after the date of the enactment of such legislation. This question arises from the choice of language in Section 22 of Public Law 587, supra, that nothing in the law "shall abrogate any valid lease, permit, license, right-of-way, lien, or other contract heretofore approved *     *     *." (underlining supplied.) It is suggested that this express protection of permits and other contracts granted prior to the date of the enactment of that law may imply a prohibition on the further granting of permits or other encumbrances on such lands between the date of the enactment and the effective date of the act especially if such encumbrances extend beyond the final liquidation date.

    We have already suggested that the purpose of Section 22 was merely to clarify existing constitutional law respecting the non-impairment of property rights. If this provision were to be interpreted as preventing the Secretary from changing, after the date of the enactment of the Termination Act, any lease, permit, or other contract right, even with the consent of the other parties thereto, it would nullify, considerably, the responsibility imposed on the Secretary as the guardian of Indian Affairs to terminate his supervisory activities in a manner designed to safeguard the interests of his wards.

    In view of the purpose of this termination legislation to permit the Indians to assume responsibility, it would be unwise, however, for the Secretary to enter into long term encumbrances affecting property which is the subject of such legislation without receiving the written approval of the owners of the affected property, or their representatives.


 

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DEPARTMENT OF THE INTERIOR

SEPTEMBER 17, 1956

    Our conclusion, therefore, is that the authority of the Secretary or his delegate to enter into agreements for rights-of-way, leases, or other interests in Indian lands held in trust by the United States continues after the date of enactment of termination legislation until the effective date set forth in such act for such termination of Federal responsibility over the Indian properties involved. Any question as to the validity of such agreements entered into after the date of enactment of such termination legislation will be avoided by obtaining the written consent thereto of all persons in interest. Especially is this so in the case of agreements which are to continue in effect beyond such date of termination of responsibilities.

    Patents or other documents conveying property pursuant to Indian termination legislation should recite those encumbrances on such property as are to continue in effect.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                                 Solicitor.

INTERPRETATION OF THE ACT OF AUGUST 3, 1956
(70 STAT.982) RELATING TO THE MANAGEMENT
OF THE RED LAKE INDIAN FOREST
AND SAWMILL

M-36380                                                                                                     October 5, 1956.

Indian Tribes: Generally

The provision of Item (e) of the Act of August 3, 1956, 70 Stat. 982, stating that the Secretary of the Interior is to employ with the consent of the Tribal Council, such persons and use such means as he may find necessary to carry out the purposes of the foregoing provisions, is interpreted as meaning that the authority of the Secretary of the Interior to employ individuals is modified by the phrase "with the consent of the Tribal Council" only to the extent that the Tribal Council's consent is necessary for the initial selection of individuals to fill the particular positions in connection with the operations of the Red Lake tribal sawmill.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Interpretation of Item (e) of the Act of August 3, 1956, 70 Stat. 982,
                 relating to the management of the Red Lake Indian forest and sawmill

    This refers to your memorandum of September 14, 1956, requesting my opinion as to the correct interpretation of Item (e) of the Act of August 3, 1956, supra, which reads as follows:

    " (e) to employ with consent of the Tribal Council, such persons and use such means as he may find necessary to carry out the purposes of the foregoing provisions. *     *     * "

You have asked this office to express an opinion as to certain questions raised by Mr. Holtz, the Area Director of the Minneapolis Area Office, in his letter of August 29, 1956. These questions are as hereinafter set out in this memorandum:

    1. Logging Foreman Clarence W. Cavanaugh has applied for retirement, effective October 31, 1956. This is a key position which must be filled November 1 without delay. Will it be necessary that the Tribal Council "consent" to the employment of Mr. Cavanaugh's successor?

    2. Is Tribal Council "consent" required for promotion of present employees to positions of higher responsibility?

    3. Will tribal "consent" be required to contract with individuals who do piece work, such as cutting pulp cordage and bolts by the piece?

    4. Is tribal council "consent" required to "use such means as he may find necessary to carry out the purposes of the foregoing provisions"? Examples of this item are: approval of wage rates to be paid mill and woods employees, selecting individuals to cut isolated salvage areas following fires and/or blow-downs, establishment of rates to be paid for piece work, mill organization, and many other decisions required in the operation.

    The first question must be answered in the affirmative. The answer to the second question depends upon whether or not the promotion of the present employee is a selection of that individual for a new and different position. If it is, the Tribal Council's consent is necessary. But, if the promotion merely involves an increase in the responsibility or salary of the present employee in his existing position, the Tribal Council's consent is not necessary. That part of the fourth question which involves the selection of individuals for employment must be answered in the affirmative and the rest of the fourth question is answered in the negative.

    It should be noted that inclusion of the phrase "with the consent of the Tribal Council" in Item (e) of the act did not by itself destroy the equally forceful directive of the provision of Item (e) which states that the Secretary is "to employ" such persons and to use such means as he may find necessary to carry out the purposes of the foregoing provisions of the act. Certainly, the hiring and firing of individuals as well as the many other


 

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OPINIONS OF THE SOLICITOR

NOVEMBER 6, 1956

decisions necessarily involved in their employment are as important as any other single means to the fulfillment of the Secretary's duties prescribed by the law.

    It is well established that the power of removal from employment is a necessary incident to the power of employment. Myers v. United States, 272 U.S. 52 (1926); Keim v. United States, 177 U.S. 290 (1900); Creshaw v. United States, 134 US. 99 (1889); 43 A.J. 183. Although most of these cases involve an executive officer of the United States Government whose power of appointment has been made subject to the consent of the Senate, the principles involved therein are controlling in this problem.

    In this respect, I believe the ruling in the leading case of Myers v. United States, supra, is decisive. Therein the following language on page 164 of the opinion is particularly appropriate:

    "provisions *     *     * which blend action by the legislative branch, or by part of it in the work of the executive are limitations to be strictly construed and not to be extended by implication; that the President's power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not by implication extend to removals the Senate's power of checking appointments; and finally that to hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed."

In the Myers case the court was concerned with the executive power of the President to control postmasters and the court held that the control of the President extends to their removal without the consent of the Senate, although the consent of the Senate was required for the appointment and that a statute providing for tenure of office, insofar as the statute attempted to prevent the President from removing executive officers who had been appointed by and with the consent of the Senate, was invalid.

    The court in the Myers case expressly held that any question of efficiency or competency of employees after an individual had been hired, were matters peculiarly within the province of those who are in charge of and superintending the department. The policy behind the decision was the duty of the President to see that the laws were faithfully executed, and in this case the policy is of equal weight in that the Secretary is bound as trustee to use such means as he may find necessary to carry out the purposes of the Act of August 3, 1956, supra.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                                 Solicitor.

DRILLING OF A WELL ON THE SAN CARLOS
RESERVATION FOR MUNICIPAL USE IN
THE CITY OF GLOBE, ARIZONA

                                                                                                                November 6, 1956.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Drilling of a well on the San Carlos Reservation for municipal use
                 in the city of Globe, Arizona

    In your memorandum of April 6, 1956, you ask for an opinion by this office concerning the authority of the San Carlos Apache Tribe to enter into a contract or lease with the city of Globe, Arizona, under which the city would drill a well on lands within the San Carlos Reservation for the purpose of maintaining a municipal water supply.

    The desire of the city of Globe to augment its water supply in the manner indicated above was brought to your attention by a letter from the mayor of the city dated April 16, 1956. In that letter it is asserted that the waters to be tapped by the well are "ground or percolating waters." No authoritative determination of that fact has, however, been made, and it would be improper to proceed on that basis until such an authoritative determination has been made. It may be observed also in this connection that under Arizona law the use of percolating waters by a landowner is generally limited to the purpose of reasonable use of the waters on the land from which the waters are taken. See Bristor v. Cheatham, 255 P. 2d 173 (Ariz. 1953). Although in our view the State law on the subject is not applicable to the Indians, it is applicable to the city of Globe and the city may thus be seeking to enter into contractual relations that are inconsistent with the laws of its own State.

    The site of this proposed well, we are informed, is in the Gila River watershed, and hence it is quite possible that the well would tap the under ground flow of the Gila River. If so, the proposed lease or contract might well run afoul of the water allocations and priorities determined and set out in the decree entered on June 29, 1935, in the case


 

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DEPARTMENT OF THE INTERIOR

NOVEMBER 6, 1956

of United States v. Gila River Irrigation District et al., Globe Equity No. 59, in the District Court of the United States in and for the District of Arizona.

    Another complicating factor is that the water rights claimed for and in behalf of these Indians are now involved in the case of Arizona v. California et al., Original No. 10 in the Supreme Court of the United States. Pending a determination of what those rights are, it would appear to be improper or unwise to enter into or approve a contract or lease such as that proposed with the city of Globe.

    For the foregoing reasons, I recommend that the proposed contract or lease be not entered into or approved at this time.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                                 Solicitor.

STATUS OF OSAGE OIL AND GAS LEASES
AFTER TERMINATION OF PERIOD WHEN
MINERALS ARE RESERVED TO TRIBE

63 I.D. 374

M-36381                                                                                                     November 9, 1956.

Indian Lands: Leases and Permits: Oil and Gas

In the event the present period during which the oil, gas, and other minerals are reserved to the Osage Tribe should expire and the oil, gas, and mineral title is individualized, the transfer of such title will be subject to any valid subsisting oil or gas lease.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Status of Osage oil and gas leases after termination of period during
                 which oil, gas and other minerals are reserved to the Osage Tribe

    In a memorandum dated February 10, 1956, our Regional Solicitor at Tulsa, Oklahoma, requested my opinion for use of the Osage Tribal Council upon the following question:

    "If there is no action by Congress extending the period during which oil, gas and other minerals under Osage lands are reserved to the Osage Tribe beyond April 8, 1983, the date of termination of the reservation of the minerals to the tribe as now prescribed by law, will oil and gas leases made by the Osage Tribe for terms extending beyond April 8, 1983, terminate upon that date or will such leases continue in effect until the expiration of the terms prescribed by the lease, i.e., for the primary terms and as long thereafter as oil or gas is produced in paying quantities?"

    The original Osage Allotment Act of June 28, 1906, 34 Stat. 539, provided for the allotment of the Osage Reservation to individual members of the tribe and the making of a final roll of tribal membership. Section 3 of the act reserved for the benefit of the Osage Tribe in common all the minerals covered by the lands to be allotted under the act, for a period of 25 years from and after April 8, 1906. It provided for the leasing of the lands for oil, gas, and other mineral development purposes by the Osage Tribal Council subject to the approval of the Secretary of the Interior. This leasing provision of the act reads as follows:

    "*     *     * and leases for all oil, gas, and other minerals covered by selection and division of land herein provided for, may be made by the Osage Tribe of Indians through its Tribal Council, and with the approval of the Secretary of the Interior, and under such rules and regulations as he may prescribe."

    At an early date the Secretary of the Interior and the Osage Tribal Council adopted the plan of leasing separately the oil and gas underlying the lands of the Osage Reservation. Blanket gas leases covering virtually the entire reservation area were made and approved. Oil leases were offered from time to time on numerous units of approximately 160 acres each for lease to the highest responsible bidder. Both forms of lease provided for a term that should in no event extend beyond April 8, 1931, the date upon which the tribal title to the mineral estate in the lands would terminate. As this date approached, the Osage Tribe was faced with the condition of extreme concern. New leases for the short period of tribal ownership remaining were not attractive to the industry. Time was running out on the operation of existing leases, and this brought about intensive and wasteful efforts on the part of the operators to get the oil out of the sands in the shortest possible time. These aggravated conditions led the tribe and the Department to seek legislation which would extend the period of tribal ownership of the minerals and which would also provide for a leasing period long enough to assure orderly development and an adequate return to the tribe for its mineral re-


 

1763

OPINIONS OF THE SOLICITOR

NOVEMBER 9, 1956

sources. Earlier versions of this proposed legislation (see S. 4039, 63d Cong., 3d sess., 1921) proposed to extend the period of tribal ownership of the minerals and to extend for a like period existing oil and gas leases which would otherwise expire by their terms in 1931. This earlier proposed legisiation also contained a further provision to the effect that the extended leases should not run longer than the period of tribal ownership of the minerals. This latter provision, however, was stricken, and the legislation as finally enacted into the act of March 3, 1921, 41 Stat. 1249, reads:

    "That all valid existing oil and gas leases on the 7th day of April, 1931, are hereby renewed upon the same terms and extended, subject to all other conditions and provisions thereof, until the 8th day of April, 1946, and as long thereafter as oil or gas is found in paying quantities."

    It is quite clear from the foregoing language that all oil and gas leases which were in force on April 7, 1931, were renewed and extended not only for the extended period of tribal ownership of the minerals but beyond that period so long as the leases produced oil or gas in paying quantities.

    By the acts of March 2, 1929, 45 Stat. 1478, and June 24, 1938, 52 Stat. 1034, the period of tribal ownership of the minerals was again extended. The 1929 act extended this period to April 8, 1958, and the 1938 act extended the period to April 8, 1983. These two acts contain identical provisions with respect to the extension of existing leases. It is quoted below from the 1938 act:

    "That nothing herein contained shall be construed as affecting any valid existing lease for oil or gas or other minerals, but all such leases shall continue as long as gas, oil, or other minerals are found in paying quantities."

By this statutory declaration there was written into each valid oil and gas lease then in force on Osage lands the indefinite term that they were to remain in effect for as long as oil or gas is found in paying quantities. The statute contains no other limitation which would operate to terminate the leases with the termination of the period of tribal membership of the minerals. Such a limitation was deliberately and advisedly omitted by the Congress for, as we have seen, good reason. If there should be no further extension of the period of tribal ownership of the minerals, it is, therefore, my opinion that ail such leases, if in good standing and if producing in paying quantities in 1983, will remain in full force and effect so long as such production continues.

    There can be no question concerning the power of the Congress to extend these leases. The power of the Congress to extend the period of tribal ownership of the minerals was considered and upheld in Adams v. Osage Tribe of Indians, 10th Cir. 1932, 59 F. 2d 653, cert. denied 287 U.S. 652. In so holding, the Court said:

    "The Congress had full power, when it passed the Allotment Act, to make such provisions for safeguarding and administering the communal estate of the tribe, and dividing it in severalty among the members of the tribe, as its informed judgment might dictate, for the benefit of all concerned--whether it would be equitable and just for all tribal property, including minerals under the land, be at once allotted among the members in severalty. There must have been a doubt, well founded in later developments, that the minerals, since proven to be of great wealth, could not then be equitably divided, and so Congress chose a method by which that could be and is being accomplished. For that purpose the act provided that minerals under lands to be allotted were reserved to the Osage Tribe and were not to be sold. The necessary effect of this was to withhold the minerals from division, and set them apart from the lands to be divided, for the use and benefit of the tribe, not disturbing the tribe's communal equitable estate in them. It further provided that the minerals should become the property of the individual owners of the allotted lands at the expiration of twenty-five years from and after April 8, 1906, unless otherwise provided for by act of Congress, and during those twenty-five years, while the minerals remained communal property, the two acts against which attack is here made extended the reservation of the minerals in the tribe 'until the eighth day of April, 1958, unless otherwise provided by Act of Congress *     *     *.' The purpose of Congress as disclosed in the Allotment Act and the extension acts is plain. The contention of appellants is without merit. And so we say the reservation in the Allotment Act and the Acts of March 3, 1921, and March 2, 1929, were 'but an exertion of the administrative control of the government over the tribal property of tribal Indians, and was subject to change by Congress at any time before it was carried into effect and while the tribal relations continued.' Grim v. Fisher, 224 U.S. 640, 648, 32 S. Ct. 580, 583, 56 L. Ed. 928."


 

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DEPARTMENT OF THE INTERIOR

NOVEMBER 9, 1956

    Like reasoning, of course, supports the action of the Congress with respect to the leases on the oil and gas deposits. The individuals who would succeed to the mineral title in the event the Congress fails to extend the period of tribal ownership in 1983 have no vested estate in the minerals, either present or in remainder. Adams v. Osage Tribe of Indians, supra. If and when they succeed to the mineral title, they take that title subject to valid subsisting leases. Indeed this is the normal situation where the tribal title to lands covered by existing leases is individualized through the allotment process.

    One further question needs to be considered. This question relates to oil and gas leases executed and approved subsequent to the last extension act of 1938. Under the broad authority conferred on the Osage Tribe and the Secretary of the Interior by the Allotment Act of 1906 and each of the sub sequent extension acts, it is quite competent for the tribe and the Secretary to fix the period of leases, and the lease contracts themselves will thus be controlling with respect to the question whether they will endure beyond the period of tribal ownership of the minerals. As pointed out above, the oil and gas deposits underlying the Osage Reservation lands are leased separately. The oil lease form in use subsequent to 1938 provides for a term of five years "and as long thereafter as oil is produced in paying quantities." Leases executed and approved on such forms will accordingly remain in force, if otherwise in good standing, as long as production continues, even though the tribal ownership of the mineral deposits may have terminated in the meantime. In such event, the individual owners who succeed to the tribal title would take that title burdened with the existing leases.

    The gas lease form in use subsequent to 1938, like the oil lease form, provides for a period of five years "and as long thereafter as gas is produced in paying quantities." Unlike the oil lease form, however, the gas lease form contains the additional limitation that nothing contained therein "shall be construed as extending this lease beyond the Trust Period of the Osage Tribe." Gas leases executed and approved on this form subsequent to 1938 will not survive the period of tribal ownership of the minerals.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                                 Solicitor.

NECESSITY OF ACKNOWLEDGING BUREAU ORDERS
WHICH ARE RECORDED UNDER STATE LAWS

                                                                                                                November 27, 1956.

Memorandum

To:            Regional Solicitors
From:        Solicitor
Subject:     Necessity of acknowledging Bureau orders which are recorded under State laws

    A study has recently been made in this office on the question whether State laws providing for acknowledgment, as a condition precedent to the recording of certain instruments affecting interests in realty, apply to patents, leases and other orders issued pursuant to acts of Congress by Federal agencies. The results of investigation into this matter reveal that instruments presented for recordation in a county office for the purpose of obtaining whatever prerogatives the State law accords to that record must substantially comply with the statutory requirements as to form, manner of execution and attestation which are prescribed by that State.1

I

    A case in point involves an Order Removing Restrictions Against Alienation of land belonging to an Indian. The clerk of an Oklahoma county refused to record such an order on the ground that it did not bear an acknowledgment as required by Oklahoma statute (16 Okla. St. Ann. Sec. 26), which provides:

    "No deed, mortgage or other instrument affecting the real estate shall be received for record unless executed and acknowledged in substantial compliance with this chapter *     *     *."

    Federal orders are of record when filed in designated Government offices.2 However, for many

____________________

    1 A county auditor may not be compelled, by a writ of mandamus, to record an instrument which fails to meet the statutory requirement as to acknowledgment. Eggert v. Ford, 21 Wash. 2d 152, 150 P. 2d 719 (1944); Adkins v. Arnold, 121 Pac. 186 (1912) affd. 235 U.S. 417. Federal courts passing on the effect to be given registration statutes, and the failure to comply with them, are bound by the decisions of State courts interpreting such statutes. Firestone Tire and Rubber Co., 17 F. 2d 417 (1927).
    2 Anchor Oil Co. v. Gray, 257 Fed. 277, CCA 361 (1919) affd. 256 U.S. 519: United States v. Davidson (Mont. 1923) 2302-33-321. See Webb. "Record of Title" see. 25, 2 Iowa Law Bul. 51, 61 (1916).


 

1765

OPINIONS OF THE SOLICITOR

NOVEMBER 27, 1956

years it has been the practice to file all instruments affecting interests in land in the county where the land is situated as well as in the Federal office prescribed by statute. In most cases, this duplicate recording merely provides the convenience of greater accessibility and a more adequate notice to purchasers. The general rule pertaining to patents and other lesser interests granted by the Government is that such conveyances need not be recorded under State law unless a recording under State law is expressly mentioned in the Federal statute authorizing the transfer, or in the duly promulgated regulations of a Federal Agency having authority over the matter.3

    Between the parties, an unrecorded deed properly signed and delivered will pass title. An unrecorded conveyance is generally valid against everyone except creditors and purchasers, without notice, who have subsequently derived title from the grantor. Acknowledgment merely gives solemnity to the execution of the instrument. "In some jurisdictions the only purpose of certificates of acknowledgment is to entitle instruments to be recorded. Generally, however, the purpose is not only to entitle the instrument to be recorded but also to authorize its introduction in evidence without further proof of its execution. The due execution of an instrument acknowledged and recorded is deemed to be proved, at least prima facie. As against subsequent bona fide purchasers, it operates as an estoppel." 1 Am. Jur. 317.

    In most States, official records (including documents filed in Federal agencies designated by statute as offices of record) will be admitted into evidence upon the disclosure of the identity and official character of the public officer who has issued the document. Where the certificate contains his name and official title and a recital showing he is acting in his official capacity, an acknowledgment may be appended to support the recital in the certificate as to these matters.4 A formal acknowledgement of such certified document is regarded as superfluous. Where a document has been properly recorded in an office of record it is generally proper to present, for admission into evidence, a certified copy of the record with such proof as is required by the laws of the particular State. Following this theory, some States provide by statute that the certified copy of the record of any conveyance may be recorded in any county with the same force and effect that the original instrument would have if so recorded. 5

    It has been the practice of the Indian Bureau to issue orders transferring inherited interests in land, orders removing restrictions and certificates of competency without making provision for an acknowledgment in the forms used in preparing these orders. When these documents are presented for recording in a county, they are often accepted solely on the strength of their official character. But if, as in the instant case, the unacknowledged instrument is refused, then the Area Director merely appears before a notary public to make the necessary acknowledgment in compliance with State law.

    Many Indian Treaties concluded prior to 1871 contemplated allotment in severalty of tribal lands. Subsequent legislation and agreements with Indian tribes also provided for the individualization of tribal lands through the allotment process. Titles to Indian lands were to be acquired upon the approval of a selection and the issuance of a patent. As a protection for the allottee, restrictions of various kinds were imposed upon allotments for the purpose of controlling alienations. Two forms of restrictive patents are in general use. The restricted fee patent places legal title in the patentee subject only to specified restrictions against alienation. The other form is the trust patent under which the title remains in the United States as trustee for the beneficial owner (allottee). But, from the stand point of Federal control over alienation of lands and the degree of ownership held by an Indian under either forms of patent, the difference is de minimis. See United States v. Bowling, 256 U.S. 484.

    The county courts of Oklahoma are, under the Act of May 27, 1908, as amended (35 Stat. 312), recognized as Federal agencies for the removal of restrictions against alienation of land inherited by or devised to Indians of the Five Civilized Tribes of one-half or more Indian blood. United States v. Easley, 33 F. Supp. 442 (1940), cf. Parker v. Richard, 250 U.S. 235, United States v. Bond, 108 F. 2d 504 (1939).6 In all other instances an Order removing restrictions may be issued only by the Secretary of the Interior or his duly authorized representative. The matter of removing restrictions from the property of Indians and the matter of issuing fee patents for trust lands are matters for the discretion of the Secretary of the Interior and mandamus will not lie to compel him to perform such a discretionary action. Spriggs v. McKay, 119 F. Supp.

____________________

    3 Eg. Act of May 27 1908 (35 Stat. 312. 315), Act of August 13, 1954 (68 Stat. 722, 25 U.S.C. 564b), Act of March 29, 1956 (70 Stat. 62); 25 CFR 21.9, 28.11, 242.5, 241.52.
    4 I Am. Jur. 363. In Carpenter v. Dexter, 8 Wall. 513 Justice Field wrote, "Unless the statute requires evidence of official character to accompany the official act which it authorizes, none is necessary."
    5 Cf. Minnesota Statutes 507.25.
    6 The Secretary of the Interior is also empowered to remove the restrictions from such lands by the Act of August 11, 1955 (69 Stat. 666).


 

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DEPARTMENT OF THE INTERIOR

NOVEMBER 27, 1956

232 (1954). The power to approve the alienation of restricted property cannot be generally transferred to any other governmental agency. Solicitor's Opinion M-25258 (June 26, 1929).

    In form, the Order is a departmental ruling by which the legal incapacity of an Indian desiring to transfer his vested interests in land is declared to be terminated.7 The important difference between such an order and a patent or deed conveying a fee simple title is that the order is issued only after the grantee has already been vested with both legal and equitable interests by a restricted fee patent.8 Where a trust patent has been issued, the trust and incidental restrictions against alienation are properly terminated by the issuance of a fee simple patent which conveys the title. United States v. Flory County, 24 F. Supp. 399; cf. Larkin v. Paugh, 287 U.S. 431, or by a deed from the Indian to another which has received the approval of the Secretary of the Interior. Cf. United States v. Getzelman, supra. In either event the action of the Department would not be filed separately as is the case here.

    In United States v. Reily, 290 U.S. 33, it was held that the restriction imposed on alienation of Indian land is not personal to the allottee but runs with the land. Nor does the Citizenship Act of June 2, 1924 (43 Stat. 252) affect such restrictions. Therefore, Indian heirs do not inherit free of the restriction. Drummond v. United States, 131 F. 2d 568.9 Even the issuance of a fee patent to an Indian for his own allotment does not have the effect of releasing restrictions against alienation of land which has been inherited by him from other Indians to whom patents had not been issued. Spriggs v. McKay, supra.10

    The Order Removing Restrictions Against Alienation provides that whereas the Indian acquired certain described land subject to a condition that when the title is in the grantee, or his heirs, no sale or encumbrance thereof shall be valid without the consent of the Secretary of the Interior, and whereas the owner has applied to have these restrictions removed and it is found that the best interests of the applicant will be served by removing the restrictions on the described land, therefore by virtue of the provision of the deed of conveyance and the authority delegated to the Area Director by Secretarial Order, the restrictions are removed. A similar result is obtained through the issuance of a Certificate of Competency. 25 U.S.C. 372. The importance of this document as a matter for record is not the creation of new rights and interests, but rather the notification it imparts that henceforth the owner freely, and in his own name, may validly transfer his interests in the land. In this respect it is similar to a court order terminating a guardianship. When such an instrument is required by State statute to be acknowledged prior to being recorded but is written into record without being acknowledged, the record is not constructive notice to subsequent purchasers or anyone else. However, orders removing restrictions are issued chiefly in the States of Oklahoma and Washington where it is commonly known that in transactions involving Indian lands no title search which is limited to the county records is complete. In all States where such transfers frequently occur, the doctrine of caveat emptor applies, Humphrey v. Baker, 71 Okla, 272, 176 Pac. 896. Therefore, a purchaser who fails to inform himself of matters on record at the Agency where records pertaining to the allotment are kept may later discover that he has invested in restricted lands. As has been stated previously, the practice is becoming more and more widespread for Indian patents to be recorded under State law in the county where the land lies, and often such record provides all the information which is necessary to insure a marketable acquisition of interest. We have noted, however, that persons desiring to make substantial investment in the development of such lands make a complete search of all records available.

II

    The recording statutes of the several States have been examined for the purpose of determining whether it would be necessary or desirable to include a provision for acknowledgment in all forms used by the Bureaus of this Department to create, modify or terminate various restrictions or interests in lands.11 No State statutes contain express provisions relating to or specifying Orders Removing Restrictions Against Alienation of Land.

    The results show that acknowledgment of the execution of a conveyance by the grantor is generally required. States accepting documents for rec-

____________________

    7 25 U.S.C. 391 (a), 392. 25 CFR 241.35. 241.36, 24.
    8 25 U.S.C. 348: United States v. Getzelman, 89 F. 2d ,531 cert. den. 302 U.S. 708. Ex Parte Peru, 99 F. 2d (1939) cert. den. 306 U.S. 643.
    9 But cf. Mullen v. U.S., 224 U.S. 448 (1912) which held that heirs of patent applicant who died before patent was issued may convey without restrictions.
    10 But cf. U.S. v. Mullendore, 30 F. Supp. 13 (1939) when a non-Indian heir enters into possession of land the restrictions against alienation are thereby ended.
    11 Certain Interior Department forms now require acknowledgment. Among these are: Application for a patent in fee or sale of Indian land, deeds, business leases, and tribal resolutions authorizing tribal leases. Among forms not providing for acknowledgment are: Order transferring inherited interests in land, revocable permits, release of interest in a lease, agricultural lease.


 

1767

OPINIONS OF THE SOLICITOR

NOVEMBER 27, 1956

ord without acknowledgment are: Illinois,12 Vermont,13 Virginia,14 Colorado,15 and Louisiana.16 However, in nearly every State there is some exception made for United States Government documents or some curative provision for unacknowledged or defectively acknowledged documents on record for a specified period of time.

    1. The following States have a registry type of recording statute providing either that no estate shall pass until conveyance recorded, or that instruments shall not be effectual to hold lands against any person but the grantor and his heirs unless recorded as provided in the laws of the State:

Arizona

--c. 1939, 7 1.405
California --CC. 1214
Connecticut --Gen. Stat. 1949, 7085
Delaware --C. Ann. Title 25, 15 1
Georgia --c. 1933, 29-401, 405
Indiana --Burns Ann. Stat. (1951) 56--103
Kentucky --Rev. Stat. (1953) 382.080
Maine --Rev. Stat. (1930) C. 87, 14
Maryland --Ann. C. (1951) Art. 21, 7 
Massachusetts

--Anno. Laws (1933) C 183, 4, 5

Minnesota --Code 507-34
Nebraska --Rev. Stat. (1943) 76-216
New Hampshire --C. 477:3
North Carolina --Gen. Stat. (1950) 47-18
Ohio --Page Gen. Code (1938) 8510
Pennsylvania  --stat. 21--42
Rhode Island --Gen. Law (1938) C-435, 1 
Tennessee --Michie Tenn C. (1938) 7630
Texas --Vernon Anno. Civ. Stat. (1948) 6626 
Vermont --Stat. Rev. (1947) 2643
Virginia --c. 55-107
Washington --Rem. Rev. Stat. 1055 1, 1060 (i)
Wyoming --Comp. Stat. (1945) 66-108

    Rhode Island, Connecticut, Georgia, Indiana, Louisiana, and Maine make no exceptions to the recording requirement. The other States make the following exceptions to the rule that all instruments recorded must be acknowledged.

Arizona --All grants from the United States. Code (1939) 71--422
California --Letters patent, Leases with United States as lessor, copies of certified inter-departmental letters or decisions, copies of documents filed in General Land Office. Government 27285.
Delaware --Deeds on Record at date of Curative Act deemed duly acknowledged. C. 25--132.
Illinois --Registry of all writings relating to real estate but such instruments are deemed as being of record from the time of filing though not acknowledged or proved according to law. However, unacknowledged deeds do not constitute constructive notice to subsequent purchasers or creditors nor may they be read as evidence unless their execution is proved according to the rules of evidence. 30 Smith-Hurd (1934) 30.
Kentucky --Exempts deeds made or executed under and in accordance with the laws of the United States. Such deeds are entitled to be recorded and given the same force and effect as though they has been acknowledged in accordance with the laws of the State. C. 382--170 (516).
Maryland --Excepts leases for an initial term of not more than seven years. C. Vol. 1, Art. 21, sec. 7.
Massachusetts --The requirement of acknowledgment shall not apply to conveyances from the United States. Anno. Laws 183, 29.
Minnesota --Permits the recording of a certified copy of any instrument on record elsewhere. C. 507.34.
Nebraska --Curative legislation for defectively acknowledged deeds executed prior to 1867. Other proof is allowed. Rev. Stat. 76--216, 221.
New Hampshire --Unacknowledged deeds may be recorded and are as effective as if duly acknowledged for a period of 60 days thereafter. C. 477-10.
North Carolina --All deeds recorded prior to 1869 act validated C. 47--96.
Ohio --Patents may be recorded without being acknowledged. Page Gen. C. 8550.

____________________

    12 Illinois, 30 Smith Hurd 30.
    13 Vermont, Stats. Rev. (1947) 2661, 2662.
    14 Virginia. Code 55-107, 55-111.
    15 Colorado, Rev. Stat. (1953) 118-6-9.
    16 Louisiana, 4 Rev. Stat. 44-101.


 

1768

DEPARTMENT OF THE INTERIOR

NOVEMBER 27, 1956

 

Tennessee --Statue creates a presumption of proper recording after 20 years. Michie's Tenn. C. 7675.
Texas --Any grant from the Government, executed and authenticated pursuant to existing law, may be recorded without further acknowledgment or proof. Civ. Stat. 6624.
Vermont --When a grantor who refuses to acknowledge an instrument is out of the State, the instrument may be proved before a local court by proving the grantor's handwriting. Stat. Rev. 2661. An acknowledged instrument is effective as of record for 60 days after filing. Stat. Rev. 2662.
Virginia --Exempts conveyances and documents of the United States. Code 55--107.
Washington --Every instrument when once accepted for recording shall have the same force and effect as if executed and recorded in accordance with the laws regulating such recording in force at the time of execution. Rem. Rev. Stat. 10599.
Wyoming --U.S. patents entitled to record and given the effect to all intents and purposes as though they were acknowledged and otherwise executed as required by Wyoming law. Comp. Stat. (1945) 66--171.

    2. State statutes which do not require the registry of land conveyances, but which afford the protection of the record to title holders who do file are:

Alabama --Code (1947) 109
Arkansas --Code (1947) 16--101
Colorado --Rev. Stat. (1953) 118--6--9
Florida --20 Fla. Stats. Ann. 695.03
Idaho --Code (1949) 55--805
Iowa --36 Code Anno. 558.41, 558.42
Kansas --Gen. Stat. (1949) 67--101
Michigan --Comp. Laws 565.47
Mississippi --Code (1942) 856
Missouri --Vernon Anno. Mo. Stat. 442. 020
Montana --Rev. Code (1947) 73--105
Nevada --Comp. Laws (1941) 2112
New Jersey --Stats. Anno. (1940) 46:15--1
New Mexico --Code (1953) 71--1--3
New York --Consol. Laws (1945) 291
North Dakota --Code (1943) 47--1006
Oklahoma --Stat. Anno. (1951) 16--26
Oregon --Rev. Stat. 93.680
South Carolina --Code (1952) 60--51
South Dakota --Code, 152 Supp. 51--1602
Utah --Code Anno. (1953) 57--1--6
West Virginia --Code (1955) 3948
Wisconsin --Stats. (1947) 235.19

    Many of the above listed States also have some provision for accepting documents of the United States for record without acknowledgment. For example:

Arkansas

- -All certified copies of records formerly kept at United States District Land Office. Code 10-- 1208.

 

Florida --Deeds and patents recorded in General Land Office admitted to record in the county where the patents or deeds appear to be genuine. 20 F.S.A. 695.17.
Idaho --Letters patent from the United States executed and authenti cated pursuant to existing law may be recorded without fur ther proof. C (1947) 55--803.
Kansas --Patents issued by the Govern ment of the United States or copies of such patents properly certified from the General Land Office of the United States may be recorded in the county in which the lands covered thereby are situated. Gen. Stats. (1949) 67--101.
Michigan --It shall be the duty of the registers of deeds, in the several counties of this State, to re ceive for record, and record all patents of lands from the United States duly certified by the Commissioner of the Gen eral Land Office or other offi cer having legal custody of such patents. 3 Comp. Laws 565.301.
Mississippi --Patents, whether acknowledged or not may be recorded in the county where the land is. Code (1942) 866.
Missouri --All instruments already filed in an office of public record may be recorded without further acknowledgment. Anno. Stats. 442--240.

 

1769

OPINIONS OF THE SOLICITOR

NOVEMBER 29, 1956

 

Montana --Letters patent from the United States will be accepted for rec ord in the county where the land lies. Rev. Code 73--104.
New Mexico --Judicial decrees, patents, land office receipts, and instruments of writing in any manner af fecting lands in the State where said instruments have been duly executed by a public offi cer authorized to execute the same, need not be acknowl edged but shall be entitled to be filed and entered of record. Rev. Stat. 71--1--3.
New York --Conveyances by the United States of America shall be en titled record. Consol. Laws 292a.
North Dakota --Patents need not be acknowl edged to be accepted for record. Rev. Code 47--1902.
Oregon --Exempts United States patents from requirement of acknowledgment. Rev. Stat. 93.680.
South Carolina --Affidavit of subscribing wit nesses may be substituted for acknowledgment of execution. Code 60--51.
South Dakota --Patents to real estate from the United States and final certifi cates from the United States land office or duly certified copies of the same need not be acknowledged in order to be recorded in the county where the land is situated. 1952 Supplement to Code 51-1603 (2).
Utah --Every patent to land within the State duly executed and veri fied according to law imparts notice from the time of filing. Utah Stats. Anno. 57--1--6.
West Virginia --Conveyances of real estate must be acknowledged or proved by two witnesses. Code 3948.
Wisconsin --Letters patent may be accepted for record without further acknowledgment. Stats. 235.42.

    Other State statutes provide that an instrument once filed for record,17 and recorded prior to a certain date,18 or on record for a specific number of years19  impart constructive notice with the same force as if they had been properly executed and recorded.

                                                                                                J. REUEL ARMSTRONG,
                                                                                                                                 Solicitor.

SALE OF GOVERNMENT-OWNED TELEPHONE LINE
AND ASSOCIATED EQUIPMENT ON THE
BLACKFEET RESERVATION

M-36359                                                                                                 November 29, 1956.

Federal Property and Administrative Services Act--Surplus Property

The Department of the Interior has been designated as disposal agency for Government-owned power and communication facilities under the jurisdiction of the Interior Department which have a total estimated fair market value of $1000 or more. The Secretary of the Interior has the responsibility of disposing of such telephone lines on Indian reservations by advertising and competitive bid or by negotiation, in his discretion, after he has determined them excess to the needs of the Department and, as the designee of the Administrator of the General Services Administration, has determined them surplus to the needs of the Government.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Sale of Government-owned telephone line and associated equipment on the Blackfeet Reservation

    A question has been raised as to the authority to negotiate and sell a Government-owned telephone line located on the Blackfeet Indian Reservation. The telephone line is in use for service between various Indian Service Offices and installations scattered throughout the Blackfeet Indian Reservation. It also serves a few private subscribers doing business or residing in the immediate vicinity of the reservation. Negotiations have been initiated to dispose of the 27.8 miles of telephone lines and associated equipment to the Mountain States Telephone Company which is willing to pay the appraised value of $19,283 and to furnish the Government required telephone service utilizing the line.

____________________

    17 Missouri--Vernon's Anno. Mo. Stat. (1949) 442.240.
    18 Nebraska--Rev. Stat. (1943) 76--221.
    19 Alabama--Code (1940) 47-119.


 

1770

DEPARTMENT OF THE INTERIOR

NOVEMBER 29, 1956

    The authority to negotiate a sale of Government property must be found in statute, regulation and delegation of authority. In general the Federal Property and Administrative Services Act of 1949, 63 Stat. 377, 40 U.S.C. 471, as amended, covers the disposal of surplus property. The act defines two major classes of property, "excess" and "surplus," as follows:

    " (e) The term 'excess property' means any property under the control of any Federal agency which is not required for its needs and the discharge of its responsibilities, as determined by the head thereof."

    " (g) The term 'surplus property' means any excess property not required for the needs and the discharge of the responsibilities of all Federal agencies, as determined by the Administrator."

    The first determination which must be made is whether the telephone line and associated equipment is "excess" or "surplus" property. If the Secretary can make the finding that the lines are not required for the needs and the discharge of the responsibilities of this Department then the property is by definition "excess." Excess property then comes under the jurisdiction of the Administrator of the General Services Administration. If and when the Administrator determines that the property is not "required for the needs and the discharge of the responsibilities of all Federal Agencies" the property becomes "surplus" by definition.

    Since the General Services Administration has supervision and direction over the disposition of surplus property, with the power to delegate this function in certain situations, its regulations and delegations must be followed. Section 203 of the act of June 30, 1949, supra, further provides:

    " (a) Except as otherwise provided in this section, the Administrator shall have supervision and direction over the disposition of surplus property. Such property shall be disposed of to such extent, at such time, in such areas, by such agencies, at such terms and conditions, and in such manner, as may be prescribed in or pursuant to this Act."

    " (c) Any executive agency designated or authorized by the Administrator to dispose of surplus property may do so by sale, exchange, lease, permit or transfer, for cash, credit, or property, with or without warranty, and upon such other terms and conditions as the Administrator deems proper, and it may execute such documents for the transfer of title or other interest in property and take such other action as it deems necessary or proper to dispose of such property under the provisions of this title."

There is a condition on the authority of the Administrator to delegate authority to dispose of property by negotiation. Section (e) of the act of June 30, 1949, supra, as amended, 40 U.S.C. 484, provides that surplus property disposals may be made without regard to any provision of existing law requiring advertising but only until July 31, 1958, unless the Administrator determines that advertising is to be preferred.

    Pursuant to his authority the Administrator by Section 201.04 of General Services Administration Regulations 2--V--201.04 has designated the Department of the Interior as the disposal agency for surplus telephone lines held by this Department. The designation reads as follows:

    "The Department of the Interior is hereby designated as disposal agency for power and communication transmission facilities for the Department having a total estimated fair market value of $1,000 or more, as determined by the Department, including land together with buildings, fixtures, facilities, utilities and equipment located on such property or adapted to use in connection therewith."

Pursuant to this designation the Secretary of the Interior has the responsibility for disposing of telephone lines determined to be surplus. In so exercising this function as a disposal agency the Secretary is bound by all applicable statutes and the rules and regulations of the General Services Administration in regard to the subject matter of the sale. One of the applicable rules is found in Section 407.01 of the rules of the General Services Administration, which permits the disposal of structures and improvements on Government-owned land by the disposal agency (here Interior), together with the land or separately from it, with the reminder that "In either case, disposals shall be subject to applicable provisions of this Chapter" [Chapter 5 entitled Surplus Disposal].

    On January 7, 1953, the Administrator delegated authority to the Secretary of the Interior to effect the disposal of certain existing telephone lines and systems situated at Indian agencies with authority to re-delegate this authority to Department employees. In view of the fact that statutory authority to by-pass advertising requirements has been extended to July 31, 1958, the Commissioner of Indian Affairs is advised that the proposed sale of


 

1771

OPINIONS OF THE SOLICITOR

DECEMBER 17, 1956

telephone lines and related equipment may, in the discretion of the Secretary of the Interior, be made at this time by negotiation or by advertising, providing the requirements of the Act of June 30, 1949, referred to above, have been met. It is suggested that no sale be consummated at less than the appraised value.

                                                                                                                EDMUND T. FRITZ,
                                                                                                                                Deputy Solicitor.

STATUS OF LANDS RESERVED FOR SCHOOL,
AGENCY AND CEMETERY PURPOSES
ON KIOWA, COMANCHE AND APACHE
RESERVATION IN OKLAHOMA

M-36387                                                                                                             December 17, 1956.

Withdrawals and Reservations: Authority to Make

Congress has, by act of June 6, 1900, and subsequent legislation, delegated to and recognized the authority of the Secretary of the Interior to reserve for agency, school, religious and other purposes for the benefit of the Kiowa, Comanche and Apache Tribes, and to retain in accordance with the needs of the Indian service, specific tracts of lands in the reservation set aside for such Indians by Treaty of October 21, 1867.

The Secretary has the responsibility to determine whether such reserved tracts continue to be required for such tribal purposes and to re-designate the purpose of a reservation so made in accordance with the needs of the Indian service.

Indian Lands: Allotments: Generally--Withdrawals and Reservations: Authority to Make

Where certain Indian Tribes or Bands have, or appear to have, an interest in such reserved land, approval by such Indians of the disposition thereof, or of a re-designation of the purpose of reservation, should first be obtained.

Tonkawa Reservation Opinion M-36353, June 26, 1956, distinguished.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Status of lands reserved for school, agency and cemetery purposes
                 on Kiowa, Comanche and Apache Reservation in Oklahoma

    You have requested my opinion on the status of land described as the NE1/4, sec. 27, T. 2 N., R. 14 W., I. M., commonly known as the West Cache Issue Station on the Kiowa, Comanche and Apache Reservation in Oklahoma.

    It appears from the correspondence in this case that, as a result of the expansion of the Fort Sill Military Reservation, certain Comanche Indian leaders are seeking the relocation of the Post Oak Cemetery which is located within the taking area for that expansion program. In this cemetery, among the Comanche Indian graves are those of the late Chief Quanah Parker and his mother. It has been suggested by representatives of Indian families whose ancestors are buried in the Post Oak Cemetery that a portion of this West Cache Issue Station tract would be a good site for relocation of the cemetery. Such a re-designation is proper function of the Secretary of the Interior, and could accomplish the result desired.

    This Issue Station tract of 320 acres was included with certain other parcels totaling 10,310 acres reserved from allotment and approved by the Secretary of the Interior for "agency, school religious and other purposes" on June 20, 1901, pursuant .to the act of June 6, 1900, 31 Stat. 672, 676. This 10,310 acres was a portion of a tract of 2,968,893 acres in Oklahoma originally ceded to the Confederated Kiowa and Comanche Tribes by the Treaty of October 21, 1867, 15 Stat. 581. By the act of June 6, 1900, supra, the United States evidently re-took this land pursuant to its guardianship power over the Indians; then reserved the 10,310 acres mentioned, and also set aside 480,000 acres for tribal pasture land; and subsequently allotted in severalty 445,000 acres of the balance, leaving a remainder of 2,033,583 acres. For this latter land the United States has paid to the account of the Indian owners, $2,000,000 and is obligated to pay an additional sum now in dispute. See Lone Wolf v. Hitchcock, 187 U.S. 553 (1903); Kiowa et al. v. U.S., Indian Claims Commission Docket No. 38, decided April 9, 1951.

    The West Cache Issue Station tract is still listed as "in reserve" in the Kiowa, Comanche and Apache Allotment Schedule, Volume 4, p. 1. This schedule sets forth a number of other tracts reserved, with the purpose of reservation, the location, and the acreage, also indicated thereon. Beneath these entries is a certificate of U.S. Indian Agent Randlett that the lands so set aside "are in accordance with the needs of the service."

    United States Indian Inspector, C. F. Nesler, certified below this: "I hereby certify that the foregoing schedule of lands set aside for agency,


 

1772

DEPARTMENT OF THE INTERIOR

DECEMBER 17, 1956

school, religious and other purposes in the Comanche, Kiowa and Apache Reservation in Oklahoma are correct and strictly in accordance with the 6th Section of the Act of Congress approved June 6, 1900 (Public No. 185), and the instructions of the Honorable Commissioner of Indian Affairs, dated July 17, 1900 (Land, Authority 66376). June 1, 1900." The instructions referred to detailed Nester to allot the lands in severalty, as provided by the act in question.

    Then follows the recommendations of the Commissioner that "the lands covered thereby be reserved for the purposes indicated," which was approved by the Secretary of the Interior bearing date of June 20, 1901.

    Among the properties included are "Kiowa Indian Cemetery," for 40 acres of which a fee patent was issued March 9, 1927, according to a notation thereon, leaving 120 acres "still in reserve (File 2835-27)" and

"Comanche Indian Cemeteries--
        S1/2 SW1/4 S, 23--5 N 12 W 80 acres

"Comanche Indian Cemeteries--
        NE1/4 SE1/4 S, 3--1 N 13 W 40 acres

"Comanche Indian Cemeteries--
        SE1/4 SW1/4 S, 5--15 N 14 W 40 acres,"

noted as "still in reserve."

    From the language of the act it appears that some if not all of this property thus listed was, at the time of scheduling, being used or occupied for such purposes, since the act contains this declaration: "No person shall have the right to make his or her selection of land in any part of said reservation that is now used or occupied for military, agency, school, school farm, religious or other public uses *     *     *." (See also letter of Secretary Work to Public Lands Committee of House, December 23, 1924.)

    In any event, Congress has recognized and approved this authority of the Secretary to reserve for the purposes indicated such lands "as are in accordance with the needs of the service" by subsequent legislation which provided for the sale of certain of such reserved land no longer needed for the purposes for which reserved. Thus, the Act of June 30, 1913 (38 Stat. 92), provided for the sale by the Secretary of the Interior of "Such portions of the school and agency lands that are no longer needed for administration purposes in the Kiowa, Comanche, Apache, and Wichita Tribes of Indians in Oklahoma, the proceeds thereof, less $1.25 per acre, to be deposited" in a fund "to be known as the Kiowa Agency Hospital Fund."

    In a letter dated January 30, 1912, replying to the request of the Chairman of the House Committee on Indian Affairs for a report on a proposed sale of reserves of this nature, First Assistant Secretary of the Interior, Samuel Adams, recommended this 1913 provision and set forth a number of tracts which, he stated, "are not required by the Indian Service and which can be sold if authority of law be given," listing a part of the Kiowa Agency Reserve, the Little Washita Issue Station, two 40 acre tracts "allotted for cemetery and never used as such" (not part of the Kiowa and Comanche reserved areas), and certain other property listed on the Kiowa and Comanche schedule previously referred to.

    In this letter Assistant Secretary Adams lists the following previous Acts of Congress providing for the disposition of portions of this school and agency reserve: May 11, 1910 (36 Stat. 355), portion of Fort Sill Indian School Reserve; June 25, 1910 (36 Stat. 836) , part of Kiowa Agency Reserve; March 27, 1908 (35 Stat. 49), S1/2 Sec. 30, T. 2 N., R. 11 W. (See Hearings, Indian App. Bill for 1914, H.R. 1917, Pt. 1, p. 251.)

    Another small portion of the Fort Sill Boarding School reserved tract is now a Farm Station Reserve, having been set aside by Act of March 4, 1915 (38 Stat. 1116) "for use of the Department of Agriculture for a dry farming or sub-humid station *     *     *," and the sum of $200 was thereby appropriated to pay the Indians therefor *     *     *." Note also proclamation of March 29, 1904, restoring part of Fort Sill Boarding School to public domain (Ind. Office Letter November 15, 1934, B.L.M. Misc. No. 362880); Stile of W1/2 of Sec. 1, from Mt. Scott Sub-Agency Reserve to City of Lawton for water supply, File No. 56726-15 and Act of March 2, 1914 (38 Stat. 293) ; Elimination of NW1/4, Sec. 12, from Reserve, File No. 688921 10.

    In 1922, a somewhat similar case to this arose, when members of some bands of Kiowas who had removed from the area of SW1/4 NE1/4 Sec. 9, T. 5 N., R. 15 W., where a cemetery site was reserved for them, requested authority to sell this tract and purchase a cemetery site near their present church site, the Rainey Mountain Kiowa Baptist Church. After ascertaining that there was no other tract of unused reserved land available for this purpose, the Secretary approved the suggestion and recommended passage of H.R. 10590, 68th Congress which provided for the sale of the above 40 acres and the use of the proceeds by the Secretary of the Interior to purchase another suitable cemetery tract. This special act was believed to be necessary


 

1773

OPINIONS OF THE SOLICITOR

DECEMBER 19, 1956

because this cemetery tract "remains the property of the Indian tribe and cannot be disposed of under *     *     * " the act of March 3, 1911 (36 Stat. 1058, 1069), which authorized the sale of the "unused, unallotted and unreserved lands of the United States in the Kiowa, Comanche and Apache Reservations." (See Indian File 63407-1922.) The Secretary's recommendation was followed in the act of February 26, 1925. In the present case, there is an unused reserved tract available, so there is no necessity of selling reserved cemetery land.

    It will be noted that the Secretary also determined in this and other cases whether and what reserved tracts were "no longer required for *     *     * school, agency or administrative purposes." (See also, letter, Asst. Secretary, January 30, 1912, supra.) The authority of the Secretary to make such reservations must also permit the Secretary to change the purpose of a reservation so made. The only other proper limitation is that the reservation under this act of June 6, 1900, is in accordance with the needs of the Indian Service. In the present case, it appears that the Indians prefer to use, as a burial ground, a tract reserved for another administrative purpose, but not now so used, in place of a tract reserved for a cemetery, and never yet so used. There now appears to be a need for such a cemetery plot in another location.

    Since this is sufficient authority to accomplish the desired result, it is not necessary at this time to give an opinion as to the ownership of these lands. In view of your reference to the Solicitor's Opinion of June 26, 1956, concerning land somewhat similarly reserved for government and school purposes on the Tonkawa Reservation your attention is directed to the fact that the Tonkawa case involves an interpretation of an agreement for the cession of Indian lands. This case does not involve an agreement, for the 1892 "agreement" between the United States and the Kiowa, Comanche and Apache Indians was never executed. The Supreme Court considers the Act of June 6, 1900, here involved, as an exercise of this nation's guardianship power with respect to property of the Kiowas, Comanches and Apaches. See Lone Wolf v. Hitchcock, 187 U.S. 553 land Kiowa et al. v. U.S. supra.

    In conclusion, the Secretary of the Interior has authority to re-designate such portion, or all, of the West Cache Issue Station as he believes necessary and desirable as a cemetery to which the Indian graves in the Post Oak Cemetery may be relocated. In view of the substantial claim that this reserved land still belongs to the Indians to whom it was ceded, it is suggested either that approval thereof be obtained from their proper representatives, or that representatives of the Comanche Tribe request the substitution of a portion of the unused but reserved for cemetery purposes of the Comanches. When the transaction is completed, appropriate entry should be made on the Kiowa, Comanche and Apache Schedule of Allotments.

                                                                                                                EDMUND T. F RITZ ,
                                                                                                                                Deputy Solicitor.

REGULATIONS REGARDING PROBATE
OF INDIAN TRUST PROPERTY

                                                                                                                            December 19, 1956.

Mr. Lowell A. Wheaton
Examiner of Inheritance
P.O. Box 5
Pierre, South Dakota

DEAR MR. WHEATON:

    There has been referred to this office a request by Area Director Reifel of the Bureau of Indian Affairs, that a decision be reached regarding a proposed modification of the order determining heirs in the matter of the probate on the estate of Samuel Briggs, deceased Lower Brule allottee No. 288 (1725-52), so as to reflect the decedent's one-half inherited interest in the allotment of James Restless Horse (70855-l8) instead of a one-third interest in that allotment as is now shown by the order of the Examiner of Inheritance dated January 29, 1952.

    On July 26, 1956, the Acting Commissioner of Indian Affairs had suggested to the Area Director that the above correction could be accomplished by an Examiner of Inheritance on the basis of the departmental probate regulations (25 CFR 81.31), which permit the modification of probate decisions to include omitted property. The inclusion of the additional property interest as a part of Samuel Briggs' estate would change the fractions and values of the same heirs' shares on the basis of the distribution made of that estate.

    You have questioned your authority to act under Section 81.31 and suggest a procedure whereby a petition for reopening of the case might be entertained. However, we regard the failure of the probate action taken on January 29, 1952, to include as a part of the estate of Samuel Briggs all of that decedent's inherited interest in the allotment of James Restless Horse as subject to the corrective authority prescribed in 25 CFR 81.31.

    The regulation (25 CFR 81.31) provides that when the property to be included as a part of an estate takes a different line of descent from that


 

1774

DEPARTMENT OF THE INTERIOR

DECEMBER 19, 1956

shown in the original decision a supplemental hearing to determine the heirs thereto shall be had in accordance with the regulations in 25 CFR, Part 81. We interpret this as meaning, in substance, that a supplemental hearing should be had if the original order cannot be used to distribute the additional property. Accordingly, this latter procedure properly should be invoked in the present case.

                                                                                                                E DMUND T. F RITZ ,
                                                                                                                                Deputy Solicitor.

OWNERSHIP OF MINERALS UNDERLYING LANDS
ON BLACKFEET INDIAN RESERVATION

63 I.D. 408

M-36393                                                                                                             December 26, 1956.

Indian Lands: Allotments: Generally

In exchanges of land between the Blackfeet tribe and its individual members, occurring between the Supplemental Allotment Act of June 30, 1919, and June 18, 1934, the date of the enactment of the Indian Reorganization Act, the question whether mineral reservations should be included in, or excluded from, patents issued to the individual members is controlled by rules issued by the Secretary of the Interior on October 3, 1926.

Indian Lands: Minerals

The provisions of the Act of June 30, 1919, reserving to the Blackfeet tribe the minerals underlying lands on the Blackfeet reservation were superseded or supplemented by the provisions of the Indian Reorganization Act of 1934, under which it is permissible for the Secretary of the Interior to approve exchange of land between the tribe and its individual members with or without mineral reservations.

Indian Reorganization Act

Whether or not the minerals were reserved to the tribe or conveyed to the allottee, in exchanges occurring subsequent to the enactment of the Indian Reorganization Act of 1934, depends on the facts in each case, and in the absence of any binding agreement to the contrary, ownership of the minerals will be controlled by the recitals contained in the instruments of conveyance.

Indian Lands: Patents

Where the record relating to an exchange of lands between the tribe and an individual member of the tribe shows that the exchanged lands were of equal value with no indication of any intent on the part of the tribe to reserve the underlying minerals, a trust patent issued to the individual member without a mineral reservation must be held to constitute a valid conveyance not only of surface, but also of whatever mineral rights the tribe had in the lands.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Ownership of minerals underlying lands on the Blackfeet Indian
                 Reservation in Montana as between the Blackfeet tribe and 
                 individual members of the tribe

    In connection with the application of Helen Conway Brown, a member of the Blackfeet Tribe of Indians in Montana, for a patent in fee covering lands described as the SE/4 SW/4 and SW/4 SE/4 of section 8, T. 33 N., R. 6 W., you have requested the opinion of this office as to whether the patent should contain a reservation of minerals to the Blackfeet Tribe. The title of Helen Conway Brown to this 80 acre tract of land was acquired pursuant to an exchange of lands between the tribe and Mrs. Brown in 1952. The consideration of this question has been delayed because of the receipt of a number of inquiries from representatives of oil companies who purchased oil leases on Blackfeet lands involved in similar exchanges between the tribe and individual members of the tribe. The inquiry in each case is provoked by the fact that the Act of June 30, 1919 (41 Stat. 3, 16-17), which authorized the making of additional allotments on the Blackfeet reservation to members of the tribe contained provisions reserving all underlying minerals to the Blackfeet tribe and requiring that all patents thereafter issued "shall contain a reservation accordingly." The prior allotment laws, under which a large number of allotments were made to members of the tribe contained no such provision, and the allotments under those laws carried full title to both surface and minerals. The inquiries received indicate that some of the exchanges involved occurred between the date of the 1919 enactment and June 18, 1934, the date of the enactment of the Indian Reorganization Act (48 Stat. 984; 25 U.S.C. secs. 461-479), which is applicable to the Blackfeet tribe, and that other ex-


 

1775

OPINIONS OF THE SOLICITOR

DECEMBER 26, 1956

changes occurred after the enactment of the Indian Reorganization Act of 1934.

    Insofar as exchanges occurring between 1919 and 1934 are concerned, I find that the subject is covered by instructions issued on October 3, 1925, to the Commissioner of the General Land Office (now Bureau of Land Management), relating in particular to the inclusion in or exclusion from patents issued to the individuals of the underlying minerals. After pointing out that the mineral reservation made in the 1919 Act for tribal benefit did not apply to prior allotted and patented lands, and that it did apply to all lands allotted under the 1919 Act irrespective of whether the lands were classified as mineral or nonmineral, the following rules were laid down.

    1. Where allotments made prior to the 1919 Act were the subject of exchange between the allottees, the tribal mineral reservation does not apply, and the new patents should not contain the mineral reservation.

    2. Where allotments made prior to the 1919 Act were relinquished to the tribe after 1919 in exchange for tribal land, the relinquished allotment fell back into the class of unallotted tribal lands and thereupon became subject to the provisions of the 1919 Act with respect to the mineral reservation, and if thereafter re-allotted, the patent must contain the mineral reservation. Under this rule, it may be added that the patent issued to the allottee for the lieu tribal land involved in the initial exchange process should also contain the mineral reservation.

    3. The following quotation from the 1926 instructions lays down the rule to be followed where partial or mixed allotment exchanges are involved:
    "It is understood that it is the practice in the matter of exchanges for the allottee to relinquish all the land in his former patent and to receive a new patent for all the land even though only a portion is actually involved in the exchange. In that event the mineral reservation should apply only to the portion not covered by the former patent. As the acts in question authorized persons already allotted to take additional lands, there may be situations where part of the lands to be partitioned or exchanged were allotted prior and part subsequently to said acts. Neither of the above instances seemingly present a difficult situation. The lands can be described in the patents as recommended in each instance, and the description followed by appropriate reservation of minerals as to the particular lands allotted subsequently to the acts requiring such reservations."

    The application of the foregoing rules, which do not appear to have been modified, to exchange transactions occurring between 1919 and 1934 should provide a ready answer in each case. If a situation not covered by the rules should exist, or if the rules have been disregarded or departed from in any particular case, I shall be pleased to consider the particular question involved upon the submission of a request accompanied by a full statement of the pertinent facts.

    With respect to exchange transactions occurring after 1934, the controlling law, in my opinion, is found in the Indian Reorganization Act of 1934, under which the Blackfeet tribe has organized and incorporated. Although that Act contained general prohibitions against the alienation of tribal and allotted Indian lands, it also contained specific authorizations in the broadest terms in aid of the consolidation of tribal lands and the acquisition of lands for both tribes and individual Indians. These authorizations which are found in sections 4 and 5 of the Act (25 U.S.C., secs. 464 and 465), permit exchanges of` land of equal value and the acquisition:

    "through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased."

    This broad language clearly permits the Secretary of the Interior, in furtherance of the objectives of the Act, to approve exchanges between the tribe and its individual members, with or without mineral reservations, and to that extent must be regarded as superseding the requirement in the 1919 Act that all minerals shall be reserved for the benefit of the tribe. Whether or not the minerals were reserved to the tribe or conveyed to the allottee in exchanges occurring subsequent to 1934, will therefore depend on the facts of each particular case, and in the absence of any binding agreement to the contrary, ownership of the minerals will be controlled by the recitals contained in the instruments of conveyance.

    Recurring to the application of Helen Conway Brown for a patent in fee, it is to be observed that the two 40 acre tracts of land involved in the application were not allotted to her under the 1919 Act or the prior allotment laws. They were allotted to other members of the Blackfeet tribe


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