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1851

OPINIONS OF THE SOLICITOR

JANUARY 8, 1959

Memorandum

To:            Director, Bureau of Land Management
From:        Solicitor
Subject:     Request of July 17, 1958, for an opinion as to whether lots 1 and 2,
                 sec. 3 1, T. 10 N., R. 4 E., KM., Oklahoma, are subject to oil and
                 gas leasing by the Bureau of Land Management, and if so, under
                 what act

    As set forth in your request:

    "The described land, among other lands was ceded to the United States by agreements with the Citizen Band of Potawatomie Indians and the Absentee Shawnee Indians. The agreements were ratified by the Act of March 3, 1891 (26 Stat. 989, 1016, 1019). The land was then selected by the Indian Agent for a school farm by including it as allotment number 335 on his schedule of allotments to individual Indians approved by the Secretary of the Interior on September 16, 1891. However, as provided in the schedule, no patent was issued for this land. It is presently a part of the Shawnee Sanatorium Reserve and used for administrative purposes."

    The Mineral Leasing Act for Acquired Lands (61 Stat. 913; 30 U.S.C 351, et seq.) has never been construed to apply to lands which have been ceded to the United States by an Indian tribe. Such lands have always been held to be part of the public domain. Practically all of the lands now comprising many of the States of the West were embraced in such cessions. Restoration of Lands Formerly Indian to Tribal Ownership, 54 I.D. 559. Section 2 of the Mineral Leasing Act for Acquired Lands defines the lands to which such act is applicable as "all lands heretofore or hereafter acquired by the United States to which the 'mineral leasing laws' have not been extended *     *     *." (Emphasis supplied.) Since the lands concerned here are originally ceded lands as to which the United States has never parted with title, they cannot be considered to be "acquired lands" within the meaning of the Mineral Leasing Act for Acquired Lands. The Mineral Leasing Act of 1920 (30 U.S.C 181, et seq.) normally applies to ceded Indian lands where the cession is absolute as here and based upon a lump sum payment rather than on a payment per acre as the land is sold.

    On September 16, 1891, the Secretary of the Interior approved the allotments made to the Absentee Shawnee Indians under the provisions of the act of February 8, 1887 (24 Stat. 388) and of the agreement of June 26, 1890, ratified and confirmed by the act of March 3, 1891, supra, Special Agent Porter included in his schedule of allotments three numbers--200, 334, and 335--reserving land for church, agency, and school purposes. The Commissioner of the General Land Office was directed to issue to each allottee a patent for the land allotted him (except allotments Nos. 200, 334, and 335) as provided in the 5th section of the act of February 8, 1887, supra.

    The act of February 8, 1887, in addition to providing in section 5 for allotments to individual Indians in the same section provides,

    "And if any religious society or other organization is now occupying any of the public lands to which this act is applicable, for religious or educational work among the Indians, the Secretary of the Interior is hereby authorized to confirm such occupation to such society or organization, in quantity not exceeding one hundred and sixty acres in any one tract, so long as the same shall be so occupied, on such terms as he shall deem just *     *     *."

    The act of March 3, 1891, supra, at 26 Stat. 989, 1017, 1020 allowed for allotments to the Citizen Band of Potawatomie and Absentee Shawnee Indians and said act referred to lands set apart "for school, school farm, or religious purposes *     *     *." Further, in regards to lands so set apart the act said they "shall be held by the United States for such purposes, so long as the United States shall set fit to use them *     *     *."

    By providing in the act of 1891, supra, for the "setting apart" of lands for use by the United States "for school, school farm or religious purposes" Congress effectively constituted any such "setting apart" a congressional withdrawal of the lands.

    Technically, the setting apart of the lands under authority of Congress was not an "allotment" within the meaning of the allotment laws, but a reservation of the lands from homestead entry for use as a school farm. However, regardless of whether the setting apart of the lands was correctly designated an allotment, the inclusion of the lands in a schedule of allotments was a valid setting apart of the lands as authorized by the act.

    Although the lands are used for the benefit of the Indians, they are not held in trust for the Indians. The reservation was for the use of the United States in carrying out its duties as guardian of the Indians. Even though such use was intended to benefit the Indians, it is a use by the United States. The act states that the lands "shall be held by the United

 

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DEPARTMENT OF THE INTERIOR

JANUARY 8, 1959

States for such purposes, so long as the United States shall see fit to use them." This being so the lands are not excluded from leasing under the 1920 act because such lands are not included in an Indian reservation.

    Thus, the lands are subject to leasing under the 1920 act if leasing will not interfere with their present uses. Before leasing, the Bureau of Land Management should therefore consult with the Bureau of Indian Affairs to make sure that leasing would be compatible with the present uses of the land and to decide upon proper stipulations for protection of the present uses of the lands to be included in any lease which might issue if any stipulations are determined to be necessary.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

VALIDITY OF UNAPPROVED SIDE AGREEMENTS
BETWEEN INDIANS AND LESSEES OF RESTRICTED
LANDS

M-36549                                                                                                                         February 3, 1959.

Indian Lands: Leases and Permits: Generally--Indians: Contracts

Agreements by Indian lessors and their lessees, made independently of approved leasing arrangements of trust or restricted Indian lands and purporting either to assure the lessees' tenure beyond the term of approved leases or to require the payment by the Indian lessors for any improvements by the lessees, are inoperative as affecting the trust or restricted property of the Indians for leasing purposes or otherwise without approval as required by law.

Indian Lands: Leases and Permits: Generally

No rights accrue to a proposed lessee or holder of trust or restricted Indian lands in the absence of approval required by a statute or regulations based on such statute, and the Federal Government has the power to maintain an action opposing the use of restricted lands held under unauthorized lease.

Indian Lands: Descent and Distribution: Claims against Estates

By approving a claim against the estate of a deceased Indian a lien nevertheless cannot be impressed against the trust or restricted property included as a part of the estate, and where an attempt has been made to create such a lien in an order of an Examiner of Inheritance steps will be taken to expunge from the probate record the reference to a lien.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     "Side agreements" executed by Indians of the Palm Springs Reservation in California

    By memorandum from your office reference is made to the practice of Palm Springs Indians executing what you call "side agreements" with those lessees who hold approved leases on the Indians' individual trust or restricted lands. The obvious purpose of these agreements is an attempt to assure the extension of a lessee's tenure beyond the term of his approved lease so as to warrant the placing of valuable improvements upon the leased land, and in the event the lease is not extended the Indian lessor would be obligated under the agreement to purchase the improvements.

    You attached copies of some of the agreements in question. Two of the attached agreements were executed by Augusta P. Torro, Palm Springs allottee No. 35, and her lessee, Harry Pitts, which in effect seem to seek assurances of perpetual occupancy of the leased premises. These agreements were considered in connection with claims filed by Harry Pitts against the estate of the allottee, who died intestate on March 21, 1954 (9299-54). The other agreement, executed by Cruz Siva as the guardian of Edmond Peter Siva, would provide an extended period of occupancy covering twenty-five years. None of the agreements mentioned apparently received approval of an authorized official of this Department.1 You did not include with your memoranda copies of the approved leases on the basis of which the side agreements between the Indian lessors and their lessees were executed. Nevertheless, it is understood that the term "side agreement" by its very nature imports separate agreements, to which no reference apparently is made in the ap-

____________________

    1 Regarding the agreement of Harry Pitts with Augusta P. Torro, the probate record on the latter decedent's estate includes a letter from the Acting Area Director, Bureau of Indian Affairs, Sacramento, California, to the Examiner of Inheritance, stating that an agreement of this sort would not require Departmental approval if carried out by the Indian lessor with non-trust funds, and that Mr. Pitts had been advised that there would be "*     *     * no objection to his executing agreements of this sort with members of the Agua Caliente Band whose land he wanted to lease at that time."


 

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OPINIONS OF THE SOLICITOR

FEBRUARY 3, 1959

proved leases. Moreover, informal advice from representatives of your office is that the leases were for business purposes, covering a period of five sears. 2

    The side agreements, of themselves and without any official sanction, are inoperative as affecting the restricted property of the individual Indian lessors for leasing purposes or otherwise. In other situations where "side money" advances were made by a lessee to an Indian lessor to obtain the renewal of a lease from time to time for additional terms, claims to the extent of such payments have been disallowed as an interference in particular instances with the proper administration of the Indian's property and business affairs.3 Aside from such collateral matters, though related to the problem at hand, the applicable Federal laws and Departmental regulations dealing with the leasing of restricted Indian lands prescribe how such lands can be leased and the approval to be obtained.4 Thus, whether lessees who had procured side agreements from their Indian lessors can continue as tenants on any particular tract of restricted Indian land after the termination of an existing approved lease will depend upon the terms of another lease executed by the Indian owners. Neither can the side agreements compel the execution and approval of another lease extending the term of an existing lessee's occupancy, but the further leasing arrangements will require, as before, the consideration and approval of the Secretary of the Interior, or his authorized representative, before becoming effective. In fact, no rights accrue to a proposed lessee or holder of restricted Indian lands in the absence of approval required by a statute or regulations based on such statute, and the Federal Government has the power to maintain an action opposing the use of restricted lands held under an unauthorized lease.5

    Some attention will need to be given to the manner in which the Examiner of Inheritance allowed a claim against the estate of Augusta P. Torro on the basis of the contingent liability stated in the original side agreement executed by her and Harry Pitts on March 5, 1953. The Examiner's consideration of that matter is best shown by quoting from his probate decision of June 16, 1954, to-wit:

    "The agreement entered into by and between the decedent and Harry Pitts, dated March 5, 1953, submitted as a claim against the estate, is hereby approved. By such approval, a lien is created against the estate, based upon a contingency in the form of non-renewal of an existing lease naming Mr. Pitts as lessee, covering part of decedent's trust allotment on the Agua Caliente Indian Reservation. The lease is dated February 1, 1952, and covers a period of five years from that date. By the terms of the agreement, in the event the lease is not renewed for an additional five-year period by February 1, 1956, decedent's estate becomes bound to purchase from Mr. Pitts all of the building and permanent improvements erected by Mr. Pitts on the leased property."

    It is not known whether the lease in question was renewed, either by February 1, 1956, or at the time it expired by its own terms. The Examiner was not authorized to approve the side agreement; as such because action in that respect was beyond the probate function delegated to him. The Examiner likewise had no authority to attempt to impress a lien against the restricted estate of Augusta P. Torro. Such action is opposed to the terms of the trust patent covering the decedent's allotment, and is likewise contrary to specific provisions of law,6 which state that at the expiration of the trust period the United States will convey the allotment to the Indian or her heirs by a patent in fee "free of all charge or encumbrance whatsoever."

    Of course, the above inhibitions against liens being imposed upon trust allotted lands do not preclude the Secretary of the Interior, or the Examiner of Inheritance as the Secretary's authorized representative in probate matters (25 CFR 15.1), from considering claims, stripped to their merits. filed against an Indian's restricted or trust estate, and covering improvements to an Indian's land or

____________________

    2 While the act of August 9, 1955, 69 Stat. 539. 25 U.S.C. 1952 ed., Supp. III. sec. 415, authorizes a longer term of leasing, there is no indication that the side agreements were founded on any leases executed on the basis of that legislative authority. In fact, since the leases by Augusta P. Torro were executed before 1955, the period of the leases for business purposes covering her allotted trust land appeared to be limited to a maximum period of five years (25 CFR, 1949 ed., 171.6. now 131.6).
   
3 See Estates of Tom Pond and Ida Pond Clark, deceased Umatilla allottees Nos. 1:-20 and 12, respectively (54266-39, 13639-51).
    4 25 CFR. Part 171, now Part 131.
    5 LaMotte et al. v. United States, 254 U.S. 570 (1921); Stolz v. United States. 99 F. (2d) 283 (CCA-9th. 1938); United States v. Flournoy Live-Stock & Real Estate Co., 71 F. 576, 579 (C.C.D. Nebr., 1896); Id. 69 F. 886, 894; Food Machinery & Chemical Corporation. IA-78 (August 29, 1952).
    6 Section 5 of the Act of January 12, 1891, 26 Stat. 712, as amended by the Act of March 2, 1917. 39 Stat. 969, 976. Section 5 of the General Allotment Act of 1887 is to the same effect (24 Stat. 389. 25 U.S.C. 1952 ed., sec. 348), as are certain provisions in the Act of June 21, 1906 (34 Stat. 327, 25 U.S.C. 1952 ed.. secs. 354, 410) See also Squire v. Capoeman, 351 U.S. I (1956); cf. Mullen v. Simmons, 234 U.S. 192 (1914).


 

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DEPARTMENT OF THE INTERIOR

FEBRUARY 3, 1959

otherwise.7 On that basis the claim of Harry Pitts, referred to in the above-quoted portion of the Examiner's decision, is regarded as an allowed general creditor's claim, just like any other claim which had not received independent official approval or authorization. In this respect it should be kept in mind that the vitality of that claim was contingent upon a non-renewal of a lease to the claimant.

    Since the above claim of Harry Pitts was filed by him or in his behalf as a general creditor, the claim accordingly is subject to that provision of the probate regulations8 which provides in part as follows:

    "If the income of the estate is not sufficient to permit the payment of allowed claims of general creditors within 3 years from the date of allowance, the unpaid balance of such claims shall not be enforceable against the estate or any of its assets."

More than three years have elapsed since the Examiner's order of June 16, 1954, allowing the claim. Accordingly, if the existing lease mentioned in the Examiner's order was not renewed, any obligation of the estate of Augusta P. Torro to pay for improvements on the leased property has now expired in any event.

    However, the Examiner's decision of June 16, 1954, obviously needs to be corrected or clarified to the extent that it improperly attempts to impress a lien against the deceased Indian's trust estate. To that end a copy of this memorandum has been sent to the Examiner of Inheritance, with instructions to notify all of the interested parties of his intention to expunge from the order of June 16, 1954, the purported creation of a lien against the estate, based upon the above claim of Harry Pitts. The Examiner will permit the interested parties to show cause, if any, why the order should not be so modified. After having heard the parties in that respect, the Examiner will then proceed to enter such modifying order as the circumstances require, preserving to each of the parties in interest the right to file a petition for rehearing from his decision, as well as the right of an appeal in accordance with the Departmental probate regulations (25 CFR, Part 15).

                                                                                                                GEORGE W. ABBOTT,
                                                                                                                                            Solicitor.

INTERPRETATION OF "DEPENDENT MEMBERS"
OF INDIAN FAMILY FOR PURPOSES OF
DISTRIBUTION

                                                                                                                             February 20, 1959.

Memorandum

To:            Regional Solicitor, Sacramento Region
From:        Solicitor
Subject:     Interpretation of Section 10 (b), Act of August 18, 1958, 72 Stat. 619

    We are returning the memorandum enclosed with your letter of January 26, 1959, on the above subject.

    Your understanding is correct that an effort is being made to interpret the phrase "the dependent members of their immediate families" as used in Section 10 (1), of the subject act, and to include such definition in the proposed rules and regulations to implement the act. However, we have been unable to date to arrive at an acceptable definition of the phrase "immediate families." We would appreciate your sending us a draft of a recommended definition of the term "immediate families" following as closely as possible California law on the subject and designed to make the administration of the subject act as smooth and uncomplicated as possible. Please return this definition to be made part of the rule-making process which will begin with the publication of the proposed rules in the Federal Register.

    You have raised the question as to what happens to the "out-of-state" restricted property of the dependent wife of the distributee under the act. It was the intention of the drafters of the legislation that an Indian dependent of the immediate family of a distributee--and a dependent Indian wife would certainly qualify in this category--should lose legal status as an Indian under the laws governing Indian relationships to the United States. The language used in 10 (b) of the subject act is the language used by Congress in terminating the legal status of a person as an Indian. such person becomes, to coin a phrase, "a non-status Indian." The effect of the language set forth in Section 10 (b) is to terminate the special guardianship relationship of the United States to an Indian, to terminate the trust relationship to any lands held by the United States in trust for such person as an Indian, and to release any restrictions, arising from the status of the lands as Indian lands, on fee lands held by such Indian.

    In consideration of a definition of the term "immediate family," you may find of some help the

____________________

    7 See 61 I.D. 37 (1952). Estate of Josephinc Iron Heart, IA-377 (August 25, 1955), 25 CFR 81.23. 81.25 (now sections 15.23 and 15.25).
    8 25 CFR. 81.25 (b), now 15.25 (b).


 

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OPINIONS OF THE SOLICITOR

FEBRUARY 24, 1959

definition of the term which appears in 25 CFR 121.24 (d).

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

AUTHORITY TO LEASE UNASSIGNED LANDS OF THE
COLORADO RIVER INDIAN RESERVATION

66 I.D. 57

M-36557                                                                                                                     February 24, 1959.

Indian Tribes: Reservations

The statute setting apart the Colorado River Reservation for "the Indians of said river and its tributaries" constitutes a continuing offer to the class mentioned and may be accepted by them until withdrawn.

Indian Lands: Leases and Permits: Generally

The general long-term leasing act (25 U.S.C 415), which authorizes the leasing of tribal lands by the Indian owners, is inapplicable to the unassigned lands of the Colorado River Indian Reservation until the beneficial ownership in such lands has been determined.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Authority to lease unassigned lands of the Colorado River Indian Reservation

    You have requested an opinion on the authority of the Secretary of the Interior to approve a proposed agricultural development lease executed by the Chairman of the Tribal Council of the Colorado River Indian Tribes, as lessor, and Ucan Development Company, a Utah corporation, as lessee, for approximately 83,000 acres of assigned lands of the Colorado River Indian Reservation. The approval is sought under the authority of the long term leasing Act of August 9, 1955 (69 Stat. 539, 25 U.S.C, 1952 ed., sec. 415).

    The Colorado River Indian Reservation was established by the Act of March 3, 1865 (13 Stat. 559), which act provided that the land thus reserved was set apart for "the Indians of said river and its tributaries." The Mohaves and Chimehuevis were the only tribes to take advantage of the reservation as permanent settlers, and these Indians, pursuant to the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), organized as the Colorado River Indian Tribes and adopted a constitution and bylaws which was approved by the Department of the Interior on August 13, 1937.

    The Colorado River Tribal Council on February 3, 1945, adapted Ordinance No. 5, which was approved by an Assistant Secretary of the Interior on March 9, 1945. By this ordinance the "Northern Reserve" of the reservation was reserved for the use of members of the Colorado River Indian Tribes and the "Southern Reserve" was reserved "for the use of the Indians of the Colorado River tributaries for whom present tribal land and water resources are inadequate to support their present Indian population," and for returned soldiers of the tribes named. The ordinance provided for the adoption of Indian colonists into the Colorado River Indian Tribes. The ordinance further provided that in consideration of the setting aside of the Southern Reserve for settlement by other Indians, not less than 15,000 acres of the Northern Reserve would be subjugated and supplied with adequate irrigation and drainage facilities for use by members of the original Colorado River Tribes, the cost of such development to be borne by the United States. Subsequently, Ordinance No. 5 was referred to the tribal membership pursuant to Article IX of the tribal constitution which provided that such a referendum vote could veto any ordinance passed by the Tribal Council. The Ordinance was rejected by the tribal membership. However, the Ordinance was construed to be contractual in nature, and hence not subject to the referendum provision of the tribal constitution.1

    The Ucan Development Company, through its attorney Hugh B. Brown, has submitted a memorandum brief in support of the legality of the proposed lease. The memorandum brief recites an historical account of the Colorado River Indian Reservation and the Indians of the Colorado River. It is contended therein that any attempt to create a reservation for the benefit of all Indians of the Colorado River and its tributaries has been abandoned, and the offer to such Indians has been withdrawn by negative implication. It is further contended that the question of the beneficial ownership of the lands of the reservation has been resolved, and that the Indians upon the reservation (Colorado River Indian Tribes) are the beneficial owners, which views they contend, are supported by the opinions of formed Solicitor Margold,2 and by the

____________________

    1 Memorandum of Solicitor White to the Secretary, dated February 26, 1952.
    2 Solicitor Marigold's memoranda for the Assistant Commissioner; dated September 15, 1936; to the Commissioner of Indian Affairs, dated November 24, 1936, and October 29, 1938.


 

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DEPARTMENT OF THE INTERIOR

FEBRUARY 24, 1959

approval of the tribal constitution without requiring a provision therein permitting other Indians to settle or colonize on the reservation. It is further contended that the offer to the Indians of the Colorado River and its tributaries to settle upon the reservation was to a certain group of specific and identifiable Indians which Congress had in mind, being only those Indians with whom Colonel Charles D. Poston held council at La Paz, Arizona, in 1864, and that those Indians were required to accept the offer within a reasonable time if they were to benefit thereby. It is also contended that the 1865 act did not create any vested rights in any Indians until they moved onto the reservation with an intent to remain there, but that the act was merely an offer on the part of Congress to certain specific and ascertained Indians, which had to be accepted by them before they could establish any rights. It is further contended in the brief that Ordinance No. 5, adopted by the Colorado River Indian Tribes, is unconstitutional as it violates Article VI of the tribal constitution. The brief points to the duty of the United States as trustee to keep the property in safe condition and protect it from loss or adverse claim and to make the property productive, suggesting in this connection that a portion of the receipts from a lease might be held in trust pending any determination of ownership rights adversely to the Colorado River Indian Tribes, and that part of the land developed under the lease could be held in trust for possible colonization by other Indians until it is determined whether or not such other Indians have any right to such land.

    While the September 15, 1936, opinion of former Solicitor Margold holds that it has been determined to which Indians the reservation belongs, we must give consideration also to the opinion of former Solicitor Davis.3 The Davis opinion expresses in substance that there was never a withdrawal of the offer expressed by the 1865 act creating the reservation; that where the offer has been kept open even after all tribes affected had obtained separate reservations in one form or another, there is serious doubt that Congress intended them to be foreclosed from ever occupying the Colorado River Reservation; and that the question of ownership of the unallotted lands of the Colorado River Reservation is unsettled. The Davis opinion points out that Congress has by the Navajo-Hopi Rehabilitation Act of 1950 certainly indicated its intent to carry out a policy of relocation of Navajo and Hopi Indians upon the Colorado River Reservation. Solicitor Davis also pointed to the fact that the question of ownership by the Colorado River Indian Tribes is very definitely in litigation in Case No. 283, in the Indian Claims Commission, and Case No. 424-52 in the Court of Claims, both involving claims filed by the Colorado River Indian Tribes arising out of the colonization of other Indians on the Colorado River Indian Reservation. In these cases the Department of Justice takes the position that the Colorado River Reservation was created for the benefit of a class of Indians, and that the purpose has never been abandoned.

    The long-term leasing act of August 9, 1955, supra, specifically provides that long-term leases for certain purposes of any restricted Indian lands, whether tribally or individually owned, may be made by the Indian owners, with the approval of the Secretary of the Interior. Recognizing that the beneficial ownership of the lands of the Colorado River Reservation is uncertain, and that ownership was a requisite under the 1955 act, Congress passed the act of August 14, 1955 (69 Stat. 725), which authorized the Secretary of the Interior, for a period of two years, to lease the unassigned lands of the Colorado River Reservation under the same conditions as are provided in the act of August 9, 1955, except that specific provisions were made for the disposition of rental until such time as the beneficial ownership is determined. Further evidence of the recognition by Congress of the uncertainty of the beneficial ownership of the reservation is shown in section 2 of the act of August 14, 1955, which states that "Nothing contained in this Act shall be construed as recognizing any ownership in the Colorado River Indian Tribes or any other Indians or group of Indians *     *     *." It was clearly the intent of Congress to provide specific authority to lease the lands of this particular reservation which was not contained in the general act of August 9, 1955, supra. The fact that these acts were approved five days apart indicates that they were considered simultaneously by Congress, and it was not intended that the long-term leasing act should apply to the lands of the Colorado River Indian Reservation until the beneficial ownership becomes known. The Appropriation Act of August 28, 1957 (71 Stat. 433-434), provided for the expenditure of funds received from leases on lands on the Colorado River Reservation (southern and northern reserves) for the benefit of the Colorado River Indian Tribes and their members during the current fiscal year or until beneficial ownership of the lands has been determined, if such determination is made during the current fiscal year. Although the authority to lease provided in the act of August 14, 1955, expired on August 14, 1957, Congress, by the act of

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    3 Solicitor Davis' Memorandum to the Asst. Secretary, M-36200, dated February 12, 1954.


 

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OPINIONS OF THE SOLICITOR

MAY 11, 1959

August 28, 1957, again recognized that the beneficial ownership of the lands remained undetermined.

    We are in agreement with former Solicitor Davis that the offer to the Indians "of the river and its tributaries" to settle upon the reservation is a continuing offer which may be accepted at any time until it is withdrawn. Though we may consider, arguendo, that a long lapse of time or other implication would indicate that the offer has been abandoned, we need only to look to the Navajo-Hopi Rehabilitation Act of 1950 (64 Stat. 44-47), which indicates the intention of Congress to keep open the offer which has never been rescinded.

    The contentions of the Ucan Development Company concerning the unconstitutionality of Ordinance No. 5 need but scant attention. Those contentions appear to rest upon the assumption that Ordinance No. 5 itself constitutes the basis for uncertainty as to the beneficial ownership of the reservation. Without undertaking here to express an opinion on the question whether the ordinance violates the Tribes' constitution it will suffice to observe that whatever uncertainty exists with respect to the identity of the beneficial owner of the reservation stems from matters other than Ordinance No. 5.

    Treaties with the Indians, as well as acts of Congress, have specified how trust obligations to the Indians concerned are to be fulfilled. Being confronted with a specific leasing authorization enacted by the Congress shortly after general leasing provisions were approved by that body, it is incumbent upon the Secretary to look to the special leasing provisions when dealing with the particular lands embraced within that special statute. Until the provisions of the special leasing act, now expired, are in effect reinstated by further legislation, or the beneficial ownership of the reservation judicially determined, it is our opinion that no leasing authority exists concerning the unassigned lands on the Colorado River Indian Reservation. Moreover, the present suggestion that a lease nevertheless be executed and the proceeds held for such Indians as may be colonized upon the reservation cannot be followed, since basically a power to collect proceeds must be predicated upon a valid lease, which cannot be consummated at this time, and for the likewise impelling and practical reason that there is no way of determining what portion should be held in trust.

                                                                                                                GEORGE W. ABBOTT,
                                                                                                                                            Solicitor.

DISPOSAL OF LOTS IN SAXMAN, ALASKA

66 I.D. 212

M-36563 May 11, 1959.

Alaska: Indian and Native Affairs

No payment is required of native occupants of Alaska native villages, either by way of purchase money or fees, upon conveyances to them by trustees of native village lands patented to trustee pursuant to section 3 of Act of May 25, 1926 (48 U.S.C., sec. 355 (c) ).

Alaska: Indian and Native Affairs

Native village lands patented to trustee pursuant to section 3 of Act of May 25, 1926 (48 U.S.C., sec. 355 (c) ), cannot be disposed of by competitive bidding.

Alaska: Townsites

Reference to Townsite provisions (sec. 2387 R-S. and Act of Mar. 3, 1891, 26 Stat. 1095) in patent conveying native village lands to trustee pursuant to section 3 of Act of May 25, 1926 (48 U.S.C., sec. 355 (c) ), is pro forma and not intended to apply purchase money or fee requirements to subsequent conveyances by trustee.

Memorandum

To:            Director, Bureau of Land Management
From:        Deputy Solicitor
Subject:     Disposal of lots in Saxman, Alaska

    Your Bureau has referred to me certain inquiries concerning; the disposal of lots in Saxman, Alaska, which is located about two miles south of Ketchikan. It appears that an Indian village was established there in 1894, by the Cape Fox and Tongass branches of the Tlingit Tribe of Native Alaskans. The area was surveyed and the plot for "Saxman Municipality (Saxman Indian Village) Alaska," U.S. Survey No. 1652 accepted by the General Land Office on June 20, 1929.

    On December 13, 1929, the Register of the Anchorage Land Office issued a final certificate 

    "under the act of May 25, 1926, Section 3, (44 Stat. 629) and Sec. 11 of the act of March 3, 1891 (26 Stat. 1095)"

for 364.97 acres embraced in U.S. Survey No. 1652. Patent 1035992 issued on April 7, 1930, to the trustee


 

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DEPARTMENT OF THE INTERIOR

MAY 11, 1959

"pursuant to Section 2387 of the Revised Statutes of the United States and Section eleven of the act of March 3, 1891 (26 Stat. 1095), as amended by Section three of the act of May 25, 1926 (44 Stat. 629) *     *     *."

The patent was issued

"subject to all the provisions, limitations, and restrictions of said Act of May 25, 1926."

    Revised Statutes, Section 2387 (43 U.S.C., sec. 718) authorizes the entry by town authorities for occupants of public land as a townsite upon payment of the "minimum price." See Revised Statutes, Section 2357 (43 U.S.C., sec. 678). Section 11 of the 1891 Act (48 U.S.C., sec. 355) authorizes the entry of public land in Alaska by a trustee appointed by the Secretary of the Interior for townsite purposes for the benefit of the occupants

"under the provisions of Section twenty-three hundred and eight-seven of the Revised Statutes as near as may be *     *     *."

Section 3 of the act of May 25, 1926 (48 U.S.C., sec. 355c) authorizes the Secretary of the Interior to survey out public lands claimed and occupied as a native town or village and

"to issue a patent therefore to a trustee who shall convey to the individual Indian or Eskimo the land so claimed and occupied *     *     *."

The Secretary issued regulations (43 CFR 80.22) under the 1926 act, supra, which provided that

"In connection with the entry of lands as a native town or village under section 3 of the said act of May 25, 1926, no payment need be made as purchase money or as fees, and the publication and proof which are ordinarily required in connection with trustee town-sites will not be required."

Section 3 does not include by reference payment, acreage, or other limiting requirements in public land laws providing for town site entries on public lands.

    Since both the final certificate and the patent expressly indicate that Saxman Indian Village is conveyed to the trustee under section 3 of the 1926 Act, supra, 43 CFR 80.22 seems clearly to prohibit a requirement of payment as purchase money or as fees for the entry of that village. The approval of the final certificate was sent to the Register at Anchorage by memorandum of February 14, 1930, which specifically refers to the 1926 act pointing out that the act

    "*     *     * makes no provision for any fees for filing for native townsites, established thereunder, the regulations in pursuance thereof found on pages 105, 106, 107 of Circular 491, approved February 24, 1928, provide 'no payment need be made as purchase money or as fees and publication and proof which are ordinarily required in connection with trustee townsites will not be required.' "

In another memorandum dated May 9, 1930, the trustee stated to the Commissioner

"*     *     * there are no funds available for paying the recording fee, and it is not presumed that any funds for this purpose will be realized from the disposal of the lots, as there are to be no assessments against any of the lots in this townsite."

    It is quite clear that Saxman qualified as a native town or village under 43 CFR 80.22. An undated memorandum in our file signed by the Commissioner, General Land Office, to the trustee stated

    "The final certificate issued on said entry December 13, 1929, has been approved for patenting. Patents will issue in due course of business.

    "You state that there are 38 native owners of property in the village occupying a total of 45 lots and that there is no evidence of other occupation of any lot by a white person other than natives except one lot occupied by the Salvation Army."

    In this light, it seems very unlikely that there was any intention to provide for the disposal of lots under 43 CFR 80.23 which relates to native town occupied partly by white lot occupants. There is clear evidence from the memoranda already that it was not intended to deny the natives of Saxman Indian Village the benefits of 43 CFR 80.22. We will certainly not act now to upset the application of Section 3 of the 1926 act and the benefits of the regulations under the act with respect to the Sax man Indian Village conferred almost 30 years ago.

    The 1926 act should be liberally construed for the benefit of the natives since it was intended as a relief measure. S. Rep. 793, 69th Cong. (May 6, 1926) and H. Rep. 450, 69th Cong:. (March 3,


 

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1926). 43 CFR 80.22 is a clear statement of Departmental policy for the benefit of the occupants of native towns. We can interpret the references in the patent to Section 2387, Revised Statutes, supra, and the 1891 act as pro forma and not as intended to apply purchase money or fee requirements with respect to Saxman Indian Village. We conclude therefore that the provisions of Section 3 of the act of May 25, 1926, supra, and the regulations issued thereunder control the disposal of lots within the area of Saxman covered by U.S. Survey No. 1652. No payments should be required of native Alaskans as purchase money or as fees in connection with such disposals. If any native has made a payment of any kind for a lot in Saxman in the past, he is entitled to a refund.

    There remains the question as to the disposal of additional lots in Saxman. A subdivisional Survey, No. 1652A, was accepted on March 8, 1956, for a portion of U.S. Survey No. 1652.

    The trustee must carry out his trust in accordance with the governing statute and applicable regulations of this Department. Section 3 of the 1926 act was intended to provide a means for disposal of lots to native occupants of a native town or village. The regulations (43 CFR 80.21) provide the trustee with broad authority under Section 3 of the 1926 act to

"take such action as may be necessary to accomplish the objects sought to be accomplished by that section."

It does not appear, therefore, that the trustee's trust would permit him to dispose of additional lots to white purchasers by competitive bidding under 43 CFR 80.14 or otherwise.

    In view of the broad discretion given the trustee there could be no legal objection to any provision for the disposal of the lots which is reasonably calculated to carry out the objectives of Section 3 of the 1926 act for the benefit of native occupants. The trustee could execute his trust by permitting occupancy of the additional lots by natives and conveying the lots to the native occupants.

    It seems desirable, however, that the trustee have some general guidance as to disposal policy in cases like Saxman where the area covered by the patent to the trustee greatly exceeds the area occupied by individuals at the time of the survey and issuance of the patent. You should consider, therefore, whether the matter should be submitted to the Secretary for such policy determination and for possible revision of the regulations.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

QUESTION OF AUTHORITY OF DEPARTMENT
TO PROBATE ESTATE DEVISED TO
CANADIAN NATIONAL

                                                                                                                                              June 5, 1959.

Mr. R. J. Montgomery
Examiner of Inheritance
P.O. Box 3537
Portland 8, Oregon

DEAR MR. MONTGOMERY:

    This responds to your letter, dated May 7, 1959, wherein you presented the situation of a United States Indian, (A), dying possessed of a trust allotment, which was devised to (B), whom you described as a "genuine Canadian National." B subsequently dies and his estate is probated by this Department, under which decision two other Indians of the United States, (C) and (D), B's children by A, inherit the property. While you apparently agree that upon receipt of the property by B, the allotment in question lost its trust-status, which status was not regained when (C) and (D) later acquired the property, you would like to be given authority to reopen the Departmental decision on B's estate, declare it a nullity, and also declare that C and D take the property in a non-trust status.

    The basis for your request is not clear. Manifestly, under the Solicitor's opinion of December 18, 1953 (M-36186), this Department's probate jurisdiction does not extend to the estates of Canadian Nationals who became the beneficiaries of restricted Indian property, or to such property in the hands of their heirs or devisees. Because of this opinion the instructions of May 21, 1957, were issued by the Acting Commissioner of Indian Affairs with the concurrence of this office. On the basis of these instructions, a copy of which should be in your hands, Examiners of Inheritance are authorized to reopen the estate of a decedent such as X in your illustration, who died possessed of restricted property, when it is not clear whether the heirs or devisees of such a decedent are nationals of another country, and where there has been no adjudication of that question. However, it we understand your letter, an adjudication had been made that B was in fact a Canadian National, which conclusion apparently remains undisputed.

    An examination of the Solicitor's opinion of December 18, 1953, supra, discloses that it was given with a complete awareness of the long-standing administrative practice of this Department to assume jurisdiction over the estates of Canadian Indians, and of the comment by administrative officials that if the practice in that respect were to


 

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be upset some questions might be raised regarding the title of persons who have purchased property in reliance upon this Department's probate and heirship determinations. After concluding that the Secretary of the Interior had no probate jurisdiction over the estates of Canadian Indians, the Solicitor also regarded it as proper to allay any apprehensions which may exist regarding those instances where the Department had probated the estates of decedents clearly determined to have been Canadian Indians. In that respect the Solicitor concluded his opinion with the following statement:

    "As for the effect of this ruling upon estates of Canadian Indians already probated, I do not believe that it will be very serious. In the first place, it is probable that the estates in this category are not very many. In the second place, since it is reasonable to assume that the heirs were correctly determined, the defect in the titles will be technical, and will have importance only if the property affected by it has been or should be sold. In such cases, the technical defect in the titles may readily be cured at the relatively moderate expense of an action to quiet title. Moreover, even if an heirship determination is shown to have been in correct, good title may have been obtained by adverse possession."

We believe the provisions of the opinion just quoted are significant particularly when given with the knowledge that for a long time the Department had assumed jurisdiction over Canadian Indians' estates. Neither the provisions of the opinion just quoted, nor the opinion generally, can be treated as suggesting further administrative measures by this Department regarding its prior probate decisions in such cases. In fact, the intent might properly be adduced from the opinion that the status quo will be maintained so far as this Department is concerned.

    We see no reason to depart from what the Solicitor in 1953 regarded as an answer to possible queries as to the status of Canadian Indians' estates in which probate decisions were made by this Department. Obviously, a probate order contemplates jurisdiction or authority over the assets of an estate. Any justification for the Department's earlier probate action on Canadian Indians' estates, while prompted perhaps by administrative expediency at that time, has since been dispelled by the Solicitor's interpretation of December 18, 1953, supra. No longer can an order by this Department, either in connection with the probate of a Canadian Indian's estate or to modify a prior probate order entered on such an estate, be considered effective because it cannot be based upon any exercise or control by this Department over the property of the estate. While, conceivably, the entry of additional orders might possibly embarrass the situation, no impelling reason for further administrative action has been presented. Accordingly, unless we have misconstrued your request, we are not disposed in particular cases to reopen, modify, and in effect to declare void Departmental probate decisions on the estate of decedents who clearly were adjudicated to be Canadian Nationals. The effect of those particular decisions must be analyzed on the basis of the Solicitor's opinion of December 18, 1953, supra.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

MINERAL LEASING--KLUKWAN RESERVATION,
ALASKA

June 16, 1959.

Hon. E. L. Bartlett
United States Senate
Washington 25, D.C.

DEAR SENATOR BARTLETT:

    Your letter of May 25, 1959, raises certain questions concerning the Act of September 2, 1957 (Public Law 85-271, 71 Stat. 596), and the proposed amendments to 25 CFR, Part 171, with respect to mineral leasing, as they apply to the Klukwan Reservation, Alaska.

    As you have noted, the Act of September 2, 1957, revoked the administrative reserve, added the area to the Klukwan Reservation and authorized mineral leasing of the enlarged Klukwan Reservation under the mineral leasing Act of May 11, 1938, 52 Stat. 347, 25 U.S.C. 396a-g. The administrative withdrawal could have been vacated by administrative action but the addition of that land to the Klukwan Reservation required congressional action. Moreover, this office had considered the applicability of the tribal mineral leasing Act of May 11, 1938, to the Klukwan Reservation and had concluded that legislation should be obtained in order to make it clear that the 1938 act applied.

    The proposed amendment to 25 CFR 171.27a, to which you refer, is based on authority contained in the Act of May 11, 1938, supra, and would apply to the unallotted lands of the Klukwan Reservation. Under that proposed regulation if a prospecting permit did not give the permittee


 

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OPINIONS OF THE SOLICITOR

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lease selection rights the land would be available for leasing to others subject to the prospecting permit. However, if the prospecting permit gave the permittee a preference right to a lease the land would be burdened by the permittee's lease selection rights and would therefore not be available for leasing to others in derogation of the permittee's rights.

    We are happy to furnish you these views on the mineral leasing situation at Klukwan.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Acting Solicitor.

DUTY OF OIL AND GAS LESSEE WITH
RESPECT TO INJURY TO LAND

M-36575 August 26, 1959.

Oil and Gas Leases: Generally--Materials Act

An oil and gas lessee is not entitled by virtue of his leasehold interest to take and use mineral materials, other than oil and gas, from the leased lands for the purpose of operations under the lease. The Materials Act of July 31, 1947 (61 Stat. 681; as amended, 30 U.S.C., sec. 601), limits disposal of such materials to disposals under that act and, absent other authority of law, that act governs.

Oil and Gas Leases: Generally--Geological Survey: Generally

The supervision of oil and gas development and producing operations on Federal, public and acquired land oil and gas leases is a function of the Geological Survey and reports of violations of the relevant lease terms and operating regulations should be referred to the appropriate official of that Bureau.

Memorandum

To:            Director, Bureau of Land Management
From:        Solicitor
Subject:     Rights of an oil and gas lessee to the use of the surface of the land and surface materials
                 in his lease, and with respect to injury to the land and vegetation by reason of operations
                 under the lease

    Several questions classifiable under the above subject were submitted to the Regional Solicitor, Denver, Colorado, by the State Supervisor for the State of New Mexico on November 18, 1958, and referred here on July 16, 1959. In addition the Area Administrator, Area 3, asked you the specific question whether caliche or other road building materials could be utilized by an oil and gas lessee to surface roads and oil well mats used in connection with his drilling and producing operations. Other questions involve alleged excessive width of surface disturbance in building pipelines; destruction of improvements (fences) made by grazing lessees; failure to clean up drilling sites; failure to fence sump pits and oil well pumps; alleged destruction of vegetation by sprays from bleeding pipes or bypass valves; unnecessary use of surface for construction of landing strip.

    The question of the lessee's right to use surface materials, including any consequent destruction of vegetation and permanent damage to the ordinary and usual uses of the surface, seems most important so far as the United States is concerned although permanent damage to the soil may be equally so. No right to take materials is granted in terms by the lease. Section 1 of the lease reads as follows:

    "Section 1. Rights of lessee.--The lessee is granted the exclusive right and privilege to drill for, mine, extract, remove, and dispose of all the oil and gas deposits, except helium gas, in the lands leased, together with the right to construct and maintain thereupon, all works, buildings, plants, waterways, roads, telegraph or telephone lines, pipelines, reservoirs, tanks, pumping stations or other structures necessary to the full enjoyment thereof, for a period of 5 years, and so long thereafter as oil or gas is produced in paying quantities; subject to any unit agreement heretofore or here after approved by the Secretary of the Interior, the provisions of said agreement to govern the lands subject thereto where inconsistent with the terms of this lease. Within the period of 90 days prior to the expiration of the initial 5-year term, an application may be made for extension of the lease in accordance with the regulation 43 CFR 192.120."

    The grant made by this section permits of whatever use of the surface of the leased public lands may be reasonably required for the production of the leased minerals, including operations prior to drilling and production. It does not authorize or provide for the use of any materials, whether vegetable or mineral, that may exist on the land. Section 2 (d) implies that some use may be made of some of the oil and gas produced in that it provides for a royalty only on oil and gas "removed


 

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DEPARTMENT OF THE INTERIOR

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and sold from the lease." The operating regulations, 30 CFR 221.38, 221.44, which are incorporated in the lease by reference specifically excepts from royalty payments oil and gas "used for purposes of production on the leasehold *     *     *" and the general principle is of long standing that oil or gas produced from the lease may be used for production purposes upon the lease from which it was produced. The Department has also held that timber on the leasehold may be used for that purpose, i.e., as fuel to provide power for drilling. M. P. Smith and Red Feather Oil Co., 51 L.D. 251. However, the analogy in that case is directly applied to the actual drilling and production operation and to the liberal laws allowing legitimate entrymen, locators, etc., the right to the free use of timber, and it may be presumed that the use of oil and gas and, as of 1925, even timber as fuel in the drilling of wells and the production of oil had so long been common usage among oil and gas lessees that it had become an established right even prior to February 25, 1920. 4 Summers Oil and Gas, Permanent Edition, Sec. 652, refers to the right of an oil lessee to use gas for this purpose even when the gas rights are leased to another as an implied right.

    Obviously any disturbance of the surface of the land that is necessary to the lessee's operations, including the building of necessary roads, is justified and there would seem to be no basis for objecting to his use of soil and other materials within the disturbed area where necessary to the operation. But the analogies in the Smith case may not be extended to include the use of any and all material that may be found on the leased lands for any and all purposes of the lease. They probably could not have been so extended in 1925 when the Smith decision was rendered and subsequent legislation providing expressly for the disposal of mineral and vegetable materials including timber would be a further bar to their present extension. (There is a substantial implication in the file before me that the road building material in some cases is taken by contractors employed by the lessees and that the charge to the lessees in some of the cases includes the value of the product.)

    No cases involving the use of materials other than oil and gas are referred to by the text writers on the subject and no cases have been found, although in a case involving an action against a prior oil and gas lessee for damages to sand mined and piled on the leased land by a lessee of the sand deposit, the Court, in awarding damages, said that the oil and gas lessee did not own the sand. It had the right to remove it in order to drill a well at the spot where it was located but was liable for any resulting depreciation in its value. Shell Petroleum Corp. v. Liberty Sand and Gravel Co., 128 S.W. 2d 471. A consideration of cases dealing with the use by lessees of the surface or its abuse indicates that although generally rights of lessees are liberally construed with respect to damages to property growing out of their acts performed within the apparent authority granted in terms by the lease they are limited in their use of the surface beyond those necessary to prospecting, drilling and producing operations to such as are expressly granted in the lease. They may not erect houses for their employees unless authorized to do so by the lease. They may install any machinery reasonably pertinent to the oil and gas producing operations and are not liable for damages as the result of operations conducted in accordance with the terms of the lease and the ordinary and usual practice of oil and gas operators but become liable on account of damages from operations as a rule, only for willful actions or loss or injury resulting from a lack of reasonable care. Summers Oil and Gas, Sec. 652, supra, and cases cited and discussed.

    The reasonable conclusion to be drawn from a consideration of the above indicated rules which appear to have been established by the courts and absent any direct precedents is that generally there is nowhere any recognition of any right in an oil and gas lessee to appropriate unleased materials on the leased lands even for uses incidental to his operations. The Mineral Leasing Act makes no provision for such taking by oil and gas lessees although it does so in terms in the case of phosphate leases. However, the law authorizes the Secretary to make a charge for such use. Act of 3, 1948 (62 Stat. 291; 30 U.S.C., sec. 213.) June 3, 1948 (62 Stat. 291; 30 U.S.C., sec. 213.)

    A consideration of the legislative history of the Mineral Leasing Act and the general conditions existing at the time of its enactment which prompted the legislation does not warrant any assumption that the legislative intent in this regard was broader than the text. That act effected a radical change in the method of disposing of oil and gas. Theretofore it had been the practice under the mining laws of the United States to reward the discoverer of these minerals, by outright grant, upon their severance and he was permitted also to acquire full legal title to them and the land containing them upon the payment of a stipulated price per acre. Even prior to patent, the grant included whatever prerequisites that were necessary and used in the mining operation. Although later qualified so as to apply to mining purposes only, United Stales v. Etcheverry, 230 F. 2d 193, and cases cited, the earlier cases held without any express qualification that the owner of a valid mining claim had the exclusive right to the possession of the land and a possessory title good as against


 

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OPINIONS OF THE SOLICITOR

AUGUST 26, 1959

everyone but the United States. Forbes v. Gracey, Fed. Cas. No. 4,924, affd. 94 U.S. 762.

    The Mineral Leasing Act recognized the principle of multiple use, authorized separate and distinct leases for different minerals in the same land, and separate disposal of rights in the surface; and of the land itself subject only to a lessee's rights of surface use for mining purposes. At the time of its enactment the leasing of privately owned lands for oil and gas development had become a common practice of nearly 60 years duration. The basic rules applicable to such leasing, including the rights of lessees, do not appear to have been materially different than they are today. Absent the expression of a contrary intent, and I find none, it is reasonable to assume that so far as the use of property is concerned it was the intent that Federal leasing should follow the established pattern rather than that established under the mining laws which provided for the acquisition of a fee title. And, absent evidence of such an intent, the broad authority given to the Secretary to "do any and all things necessary to carry out and accomplish the purposes of this Act" cannot be stretched to include authority to dispose of property of the United States, other than oil and gas, under the oil and gas lease.

    Not only does the Mineral Leasing Act not authorize such a disposal of materials but section 1 of the Materials Act of July 31, 1947 (61 Stat. 681; as amended, 30 U.S.C., sec. 601), provides:

    "Such materials may be disposed of only in accordance with the provisions of this Act and upon the payment of adequate compensation therefore, to be determined by the Secretary."

"[T]he Secretary," as defined in the act means the Secretary of the Interior as to certain lands and the Secretary of Agriculture as to others. Thus, the Congress has exercised its exclusive authority conferred by Art. 4, Sec. 3, Cl. 2 of the Constitution of the United States, to provide an exclusive method of disposing of these materials. Absent any grant of them by, or under the authority of the Mineral Leasing Act, the quoted provision of the Materials Act is final and conclusive. It seems clear that there is no express nor implied authority in the Mineral Leasing Act for the free use of these mineral materials by an oil and gas lessee.1 It follows that, whether the materials be appropriated directly by or for an oil and gas lessee, or by a contractor who converts them to his own possession and thereafter sells them to the lessee, they can only be lawfully appropriated under authority of the Materials Act.

    Of the other questions which were raised by the November 18, 1958, submission of the State Supervisor to the Regional Solicitor, which are listed in the first paragraph of this memorandum, only the alleged excessive width of pipeline rights-of-way and perhaps the use of the surface for a landing strip would appear to be exclusively subject to your jurisdiction, rather than that of the Director, Geological Survey.

    It is assumed that the pipelines referred to are gathering lines constructed by the lessee entirely within the boundaries of the leased lands and not those pipeline rights-of-way authorized by section 28 of the act, as amended. The latter are limited to 25 feet on each side of the area actually occupied by the pipeline. As to the former, the lessee is entitled to use whatever area that is reasonably necessary to construct and maintain the pipelines required. If he uses more, he becomes liable to the United States or to the extent of the invasion of the rights of any grazing lessee, to such lessees for damages and, even where he is liable to a grazing lessee as the tenant in possession, if the damage to the land is permanent he may also be liable to the United States.

    The Chief Counsel of the Bureau of Land Management in an approved memorandum to the Regional Administrator, Region 5, dated October 29, 1951, expressed the opinion that landing strips used by oil and gas operators or their supervisors of operations and utilized to convey injured employees to places where they could receive medical care were authorized by the term of the lease. In so concluding he applied the rule that whatever is reasonably necessary to the full enjoyment of the exclusive rights under the lease was authorized. I have no quarrel with this conclusion. The use of the land under the lease is the dominant use. However, the right is subject to the qualification that it must be reasonably necessary for the purpose of developing and producing the oil and gas deposits. The question whether it is or not is one of fact.

    Most of the other alleged violations by lessees fall within the province covered by the operating regulations of the Geological Survey, 30 CFR 221, and section 2 (p) and (q) of the lease. The proper procedure when the Bureau of Land Management learns of any apparent violation of this type would appear to be to call it to the attention of the appropriate official of the Geological Survey. Where

____________________

    1 Solicitor's Opinion M-36548 of January 19, 1959. "Application for free use of salt from Outer Continental Shelf leases for sulfur mining operations. Grand Island Sulfur Unit, Gulf of Mexico." concluded that the free use of other mineral deposits subject to the leasing provisions of the Outer Continental Shelf Lands Act, by a lessee of other minerals under that act, although it occurred in such substantial quantities and in such locations and localities that it was not of present economic value was not authorized by any law.


 

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DEPARTMENT OF THE INTERIOR

AUGUST 26, 1959

property of a grazing lessee is injured or destroyed that lessee probably could maintain an action in damages unless payment is made pursuant to section 2 (p) of the lease. A grazing lessee has no legal right to compensation for injury to the surface, including native forage by any operations of the oil and gas lessee conducted in conformity with the terms of the lease and the operating regulations.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

RESTRICTED FUNDS--THE ESTATE OF
TAYLOR GREENLEAF

November 2, 1959.

Hon. Carl Albert
Member of Congress
McAlester, Oklahoma

DEAR MR. ALBERT:

    This acknowledges the letter, dated October 15, 1959, signed by you and Congressman Edmondson, enclosing copies of other correspondence regarding the estate of Taylor Greenleaf, a deceased full blood Creek Indian.

    Distribution of the restricted funds belonging to the above estate, as well as consideration of a claim against that estate filed by W. S. Sessions, have been withheld because of the relationship of such matters to the suit entitled W. S. Sessions v. Paul L. Fickinger, Civil No. 4499, in the United States District Court for the Eastern District of Oklahoma. That suit was instituted against the named defendant, an Area Director of the Bureau of Indian Affairs, for statements alleged to have been made by him in connection with the above claim of W. S. Sessions against the estate of Taylor Greenleaf, who appears to have died intestate.

    You quote from a letter written by Mr. Harold M. Shultz, Jr., a representative of this office at Muskogee, Oklahoma, regarding Section 3 (a) of the act of August 4, 1947 (61 Stat. 731). While that section gave to the State courts of Oklahoma exclusive jurisdiction in probate matters arising under section 1 of the act of June 14, 1918 (40 Stat. 606), there is nothing in that section which can be regarded as an intention to interfere with or limit the Secretary of the Interior's supervisory control over restricted property. In fact, we have regarded the language of Section 5 of the 1947 act as vesting in the Secretary full supervisory authority and discretion over the expenditure of all restricted funds. That particular section reads as follows:

    "Sec. 5. That all funds and securities now held by, or which may hereafter come under the supervision of the Secretary of the Interior, belonging to and only so long as belonging to Indians of the Five Civilized Tribes in Oklahoma of one-half or more Indian blood, enrolled or unenrolled, are hereby declared to be restricted and shall remain subject to the jurisdiction of said Secretary until otherwise provided by Congress, subject to expenditure in the meantime for the use and benefit of the individual Indians to whom such funds and securities belong, under such rules and regulations as said Secretary may prescribe."

    We have consistently followed the above interpretation of the various provisions of the act of August 4, 1947, supra. It is our view that such an interpretation is correct, and we see no impelling basis upon which to present the matter to the Attorney General for an opinion. Moreover, the circumstance that the decedent, Taylor Greenleaf, may have left some heirs who are not of the restricted class, i.e., of one-half or more Indian blood, does not subject his restricted estate, as such, to administration proceedings in the State probate court, or to the allowance of a claim in those proceedings against the restricted estate.

    A letter, identical with this one, is being sent to Congressman Ed Edmondson, Muskogee, Oklahoma. However, the enclosures transmitted with your joint letter of October 15 are returned to you herewith.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

EXCHANGE OF LAND PURCHASED
BY BLACKFEET TRIBE:

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:    Exchange of land, purchased by Black feet Tribe with proceeds of funds in
                 treasury of such tribe, for purposes of consolidating tribal holdings

    From the attached correspondence it appears that the Blackfeet Tribe has acquired "in fee" about 24,000 acres of land within the boundaries of the Blackfeet Reservation by transactions in which the United States did not participate. The


 

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OPINIONS OF THE SOLICITOR

DECEMBER 7, 1959

Blackfeet Tribal Council has inquired whether a portion of this land can be exchanged for other land without the approval of the United States. Article VII, Section 2, of the Blackfeet Constitution provides that ". . . all lands which may hereafter be acquired by the Blackfeet tribe . . . shall be held as tribal lands. . . ." As we interpret this provision, lands to which the Blackfeet Tribe has fee title are subject to the same restrictions against alienation as are imposed on lands held in trust for the tribe by the United States. An exchange is a type of alienation.

    It is our opinion that the approval of the Secretary of the Interior is required before any of the lands now held by the Blackfeet Tribe may be exchanged for other lands, and that absent further legislation such approval may only be given in the case of a voluntary exchange of land of equal value needful for the proper consolidation of Indian lands.

    The Blackfeet Tribe was reorganized by the adoption of a Constitution and Bylaws pursuant to section 16 of the Act of June 18, 1934, 48 Stat. 987, 25 U.S.C. 476. Section 4 of that Act provides that the Secretary of the Interior may "authorize voluntary exchanges of land of equal value . . . whenever such exchange, in his judgment, is expedient and beneficial for or compatible with the proper consolidation of Indian lands. . . ." (25 U.S.C. 464.) (See Memos. Sol., I.D., Mar. 22, 1935, and Feb. 3, 1937.) When this section is invoked, it is clear that Secretarial approval is required. From the correspondence submitted, it appears that the action proposed might properly be carried out under section 4, supra.

    The exact language involved reads as follows:

    "Except as herein provided, no sale, devise, gift or exchange or other transfer of restricted Indian lands *     *     * shall be made or approved *     *     *." (Sec. 4, 48 Stat. 985.) (Underlining supplied)

    Therefore, the question is immediately presented as to whether or not tribal lands of the Blackfeet Indian Tribe, the title to which is held "in fee," and located within the boundaries of a reservation, come within the definition of the term "restricted Indian lands."

    The courts have recently held that lands purchased in fee by the Tuscarora Indian Nation are subject to the provisions of 25 U.S.C. 177, which is a long existing part of the original Indian Intercourse Statute, restricting the alienation of lands or interests in lands of an Indian tribe without authorization by the United States. In the recent case of Tuscarora Indian Nation v. New York Power Authority, 257 F. (2d) 885, the court held in this connection that "it makes no difference how title to the land may have been acquired by the tribe." Accord, Tuscarora Indian Nation v. F.P.C., 265 F. (2d) 338. See also memorandum opinion of May 14, 1900, by Assistant Attorney General Van Devanter to Secretary of the Interior.

    Following this doctrine, we must conclude that tribal lands of the Blackfeet Tribe, no matter how acquired, are restricted lands and such lands could not be alienated, even in exchange for other land, without the approval of the Secretary given under the specific authorization of statute.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

ELIGIBILITY OF LANDOWNERS TO PURCHASE
ADDITIONAL CROW LANDS AS PROVIDED IN
SECTION 2, ACT OF JUNE 4,1920

                                                                                                                                      December 7, 1959.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Eligibility of landowners to purchase additional Crow lands as provided in Section 2, Act of June 4, 1920

    This relates to your proposed letter to the Billings Area Director answering his request for review and comments by the Bureau on his memorandum to the Superintendent, Crow Agency on April 28, 1959. The memorandum rejected the bid of Jo Annette Hammond because she was eligible under Section 2, Act of June 4, 1920, 41 Stat. 751, to purchase additional grazing land within the Crow Reservation boundaries. The memorandum also advised that the bidder would be eligible to purchase additional agricultural land pursuant to the 1920 act, supra. The facts show that the bidder, prior to the bid, owned 1,435.08 acres of grazing land and 160 acres of agricultural land.

    It appears from the proposed letter that the Billings Field Solicitor prepared an opinion on May 23, 1957, for the Area Director construing Section 2. The conclusions contained in the Area Director's letter to the Superintendent of the Crow Agency, supra, are in accord with the Field Solicitor's opinion.

    The record shows that the Bureau accepted the Field Solicitor's views by letter of June 5, 1957, but that no request was made at that time for any legal review of the opinion by this office. Our files indi-


 

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cate that no copy of the Field Solicitor's opinion was received by the Solicitor's Office. Therefore, review of the legal principles set forth in the Field Solicitor's opinion is one of first impression.

    We believe that the first sentence of Section 2, Act of June 4, 1920, supra, is clear and unambiguous and requires a conclusion that since the bidder owns grazing land above the ceiling acreage she is disqualified from acquiring additional Crow agricultural land. The sentence in question reads as follows:

    "No conveyance of land by any Crow Indian shall be authorized or approved by the Secretary of the Interior to any person, company, or corporation who owns at least six hundred and forty acres of agricultural or one thousand two hundred and eighty acres of grazing land within the present boundaries of the Crow Indian Reservation, nor to any person who, with the land to be acquired by such conveyance, would become the owner of more than one thousand two hundred and eighty acres of agricultural or one thousand nine hundred and twenty acres of grazing land within said reservation. . . ."

The disqualification of Jo Annette Hammond as an eligible purchaser does not extend only to the acquisition of additional grazing land but covers both classes of land. It follows therefore that the Field Solicitor's opinion of May 23, 1957, is over ruled in this regard. Moreover, we agree with the explanation contained in your proposed letter that the Field Solicitor's opinion conflicts with the Solicitor's Opinion D-48159, dated August 17, 1920, and the Solicitor's Opinion is controlling.

    We return the proposed letter to the Area Director since we cannot join in your "concurrence" with the Field Solicitor's opinion.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

STATUS OF TITLE TO LANDS RESERVED FOR
SCHOOL AND AGENCY PURPOSES ON FORMER
KIOWA, COMANCHE AND APACHE INDIAN
RESERVATION, WESTERN OKLAHOMA

67 I.D. 10

M-36510                                                                                                                       January 15, 1960.

Indian Lands: Ceded Lands--Withdrawals and Reservations: Effect of--Statutory Construction: Generally

A statute which purports to ratify a cession agreement by which Indian tribes "*     *     * hereby cede, convey, transfer, relinquish and surrender forever without any reservation, express or implied, *     *     *" operates to extinguish completely the Indian title to the lands involved; and a subsequent reservation of a portion of those lands by the Secretary of the Interior for school and agency purposes for the benefit of the Indians does not revest title in the tribes.

Indian Reorganization Act--Withdrawals and Reservations: Revocation and Restoration

The authority provided by section 3 of the Indian Reorganization Act to restore lands to tribal ownership extends to former tribal lands of an Indian reservation where, by legislation enacted subsequent to the extinguishment of Indian title, a tribal interest has been created in the proceeds derived from the sale of such lands.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Status of title to lands reserved for school and agency purposes on the
                 former Kiowa, Comanche, and Apache Indian Reservation, Western
                 Oklahoma

    You have requested an opinion on the title status of school and agency lands located within the former Kiowa, Comanche, and Apache Indian Reservation in Western Oklahoma. The lands in question are listed in a schedule upon which the Secretary of the Interior endorsed his approval June 20, 1901. This schedule appears in Volume 4, p. 2, Schedule of Allotment, Kiowa, Comanche & Apache, Oklahoma, of the land records of the Indian Bureau. The schedule shows that the lands were set aside to meet the administrative need, of the Department for agency, school. cemetery and like purposes. We understand that the need for certain of the school and agency sites no longer exists and the Bureau of Indian Affairs now wishes to dispose of them. In our analysis of this matter, the administrative sites set aside for school, school farm, cemetery, agency and other similar uses are categorically referred to as school and agency lands.

    For the reasons set forth below, we conclude:

    I. The United States is vested with a fee simple title to the school and agency lands under consideration by virtue of section 6, act of June 6, 1900, 31 Stat. 572, 676.


 

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II. (a) The sale of the school and agency lands no longer needed for administrative purposes is governed solely by the provisions of section 17, act of June 30, 1913, 38 Stat. 77, 92, and sales may be made only in the manner prescribed therein.

    (b) This act did not divest the United States of its fee simple title to these lands but merely provided that the Indians receive the benefits of any proceeds in excess of $1.25 an acre.

    III. The title status of the school and agency lands was not judicially determined for the purpose of deciding the claim filed before the Indian Claims Commission in Kiowa, Comanche, and Apache Tribes v. United States, Docket No. 32. Additional compensation was awarded the tribes for the lands acquired by the United States under the act of June 6, 1900, but no further payment for the school and agency lands was considered because the petition filed on behalf of the tribe before the Indian Claims Commission did not request compensation for those lands.

    IV. Title to the school and agency land, that are no longer needed for the purpose for which they were reserved may be restored to tribal ownership in accordance with the provisions of section 3 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 984, 25 U.S.C. 463.

I.

    The United States, pursuant to section 6, act of June 6, 1900, in terms of cession, acquired title to the lands upon which the school and agency sites were established from the Kiowa, Comanche and Apache Tribes. Article I of section 6 provides that the tribes "*     *     * hereby cede, convey, transfer, relinquish and surrender forever without any reservation, express or implied *     *     *."

    To determine the title status of these ceded lands involves the question of whether the extinguishment of Indian title was total and absolute or whether an equitable interest was retained by the tribes. In other cases involving the extinguishment of Indian title the courts have observed that the question whether the United States acquired an absolute fee title or became a trustee for the Indians as a consequence of the tribe's retained interest in the lands must depend in each case upon the express provisions contained in the instruments evidencing the terms of the cession or transfer. Minnesota v. Hitchcock, 185 U.S. 373 (1902); Mille Lac Band of Chippewa Indians v. United States, 229 U.S. 398 (1913); Ash Sheep Co. v. United States, 252 U.S. 159 (1920); Gila River Pima Maricopa Indian Com. v. United States, 140 F. Supp. 776 (Ct. Cl. 1956); and see 42 C.J.S. 710, sec. 37.

    The Supreme Court had occasion to consider the act of June 6, 1900, in the case of Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). It was there decided that the United States had technically acquired title from the Kiowa, Comanche, and Apache Tribes by the legislation itself because that legislation, although purporting to ratify a cession agreement, had substantially changed the agreement which had been negotiated by the so called Jerome Commission (25 Stat. 980, 1005), and tribal representatives in October 1892 (see United States v. Kiowa, Comanche, and Apache Tribes, 163 F. Supp. 603, 607 (1958) for description of those changes), and for the further reason that the requirements of Article XII of the Medicine Lodge Treaty of 1867 (15 Stat. 581, 585) were not met. The Court ruled that the plenary power of Congress over the Indian Tribes and tribal property could not be limited by treaties or subsequent agreement so as to prevent repeal or amendment by a later statute.

    The principle is now well established that Indian tribes are regarded as dependent nations, and that treaties and agreements with them have been looked upon not as contracts but as public laws which could be changed at the will of the United States. Choate v. Trapp, 224 U.S. 665, 671 (1912); United States v. Seminole Nation, 299 U.S. 417, 428 (1937). Thus, in the act of June 6, 1900, the United States acquired these lands upon its own terms and conditions without the consent of the Indians.

    In Lone Wolf v. Hitchcock, supra, the act of June 6, 1900, was held to be constitutional and it was observed that the statute dealt with the dis position of tribal property and purported to give an adequate consideration for the surplus lands not allotted the Indians or reserved for their benefit. The nature of the relationship existing between the Indians and the Government was described by the Court as a guardian-ward relationship, but in the absence of some language in the act of June 6, 1900, spelling out that relationship such appellation would appear to mean only that the relation ship between the Indians and the Government is similar to or resembles such a legal relationship. See Gila River Prima-Maricopa Indian Corn. v. United States, supra; The Sioux Tribe of Indians v. United States, 146 F. Supp. 229 (Ct. Cl. 1956).

    By the terms of the act of June 6, 1900, the United States covenanted to pay to the tribes the sum of $2,000,000 as the cash consideration for the cession of territory and relinquishment of Indian title and such payment was not contingent upon the sale of the ceded lands (Article VI). A provision for an allotment in severalty to each individual tribal member (Article II), and a provision


 

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to select and set aside 480,000 acres of grazing land to be used in common by the tribes (Article III), and the aforementioned cash consideration, rep resented the entire consideration to be paid to the Indian tribes under the act. See Oklahoma v. Texas, 258 U.S. 574, 592 (1921). No specific pro vision in the act required that these school and agency lands be set aside for the benefit of the Indians whereas, in contrast thereto, it was expressly provided that the 480,000 acres of grazing land be set aside for tribal use. (Article III) The act contains no special procedure for setting apart of lands to be used for Indian school and agency purposes, and the only reference to such lands is a provision to the effect that school and agency lands would be unavailable for allotment (Article III). The ceded lands of the Kiowa, Comanche, and Apache Reservation were to be opened to entry under the homestead and townsite laws of the United States (Article XI).

    The ceded lands were opened by Presidential Proclamation [No. 6] of July 4, 1901 (32 Stat. 1975, 1977, Part II), save and except for certain lands including the lands set aside for grazing purposes, the allotted lands and the school and agency lands. In three subsequent proclamations (June 23, 1902, 32 Stat. 2007; Sept. 4, 1902, 32 Stat. 2026; Mar. 29, 1904, 33 Stat. 2340) portions of the school and agency lands reserved from entry under the Presidential Proclamation of July 4, 1901, were restored to the public domain because they were no longer required for administrative use. These three latter actions definitely show that the ceded lands reserved for school and agency purposes were considered to be government-owned lands of the public domain under the terms of the act of June 6, 1900, and that by appropriate Presidential Proclamation they could be restored to the public domain for disposition under the appropriate public land laws.

    As stated in United States v. Myers, 206 Fed. 387, 391 (1913) , holding that the Rainy Mountain Boarding School (a school site listed in the schedule of lands set aside for administrative purposes and approved by the Secretary of the Interior on June 20, 1901) was not Indian country:

    "Was there any reservation, express or im plied, incidental to the cession and relinquishment by these Indians by which their title to the lands in question was extinguished, that this or any other land conveyed should be de voted to these purposes? We can find none. The treaty of October 31, 1892, confirmed by act of Congress of June 6, 1900, specified explicitly the conditions and considerations subject to which the conveyance and cession was made. They are the allotment of land in severalty, the setting apart of 480,000 acres as grazing land, and the payment of $2,000,000 in the manner provided. For these considerations the Indians 'ceded, conveyed, transferred, relinquished and surrendered forever and absolutely, without any reservation whatever, express or implied, all their claim, title and interest of every kind and character.' It would be impossible to select words operating more completely to extinguish every vestige of Indian title, and releasing the government more absolutely from every obligation, moral as well as legal. In Article 6 this purpose is made still more apparent. It is there said: 'as a further and only additional consideration for the cession of territory and relinquishment of title, claim, and interest in and to the lands as afore said,' the United States agrees to pay the $2, 000,000 nor do we find throughout the body of the act any provisions which operate to modify these positive and emphatic declarations."

More recently, in Tooisgah v. United States, 186 F. 2d. 93, 99, 104 (1950), it was again observed that the act of June 6, 1900, operated to extinguish the Indian tribal title.

    In the case of the Pawnee Indian Tribe of Oklahoma v. United States, 109 F. Supp. 860, 906, 910 (Ct. Cl. 1953), it was contended by the Pawnee Tribe that lands reserved for school and agency purposes remained tribal property not subject to allotment and not ceded to the United States. Language contained in the provisions under which the United States acquired title from the Pawnee Tribe, the act of March 3, 1893, 27 Stat. 612, 644, 1 Kapp. 496, is much the same as the language appearing in the act of June 6, 1900. The Court of Claims in the Pawnee case noted, by way of comparison, that in an agreement with the Nez Perce Indians and the United States (28 Stat. 327), it was especially provided that all of the unallotted lands pass to the United States save certain portions excepted from the cession and reserved for the common use of the tribe and that it was further provided in that agreement that any of the ceded lands pass to the United States save certain portions for religious or educational work among the members of the tribe might be patented to the religious organization for $3 an acre. The Court remarked that

"The absence of any such provision in the Pawnee agreement tends to indicate that all unallotted lands not previously set apart for tribal use passed to the United States under the 1892 agreement and that the subsequent


 

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setting apart of the 755-acre tract was the setting apart of lands belonging to the United States so that it was not open to settlement but was reserved for the use of the tribe." (Emphasis added.)

Although the tract is referred to as "being reserved for the use of the tribe" the Court definitely decided that the land was government-owned and obviously did not intend the aforequoted phrase to mean that a tribal interest existed in the title to the tract.

    At times some difficulties in interpretation may be encountered because administrative sites have been variously referred to as reserves for the benefit of Indians, or, as in the Pawnee case, reserves for the use of Indian tribes. The reference is apparently made because the property was reserved from allotment, settlement, and sale to be used by the government while performing Federal services for Indians, which use is one devoted largely to the benefit of the Indians. In this regard, tracts used for a particular purpose of Indian welfare have been set apart on tribal as well as government-owned lands. It is quite clear, however, that the mode of use or the purpose thereof does not affect the title status of the lands. In the case of Pawnee Indian Tribe of Oklahoma v. United States, supra, the Court of Claims held that the title to the tract set aside for school and agency purposes had been ceded to the United States by the Pawnee Tribe, and that the subsequent reservation or setting apart of the lands for school and agency purposes merely withdraws such lands from settlement and sale and does not revest title in the tribe.

    This comparatively recent decision is an important aid in clarifying title questions concerning ceded Indian lands, since earlier views on the subject of the title status of school and agency re serves on ceded lands were doubtlessly influenced by an earlier decision in the Court of Claims, 56 Ct. Cl. 1 (1920) , which observed that the 755-acre tract was tribally owned. (See Solicitor's memorandum of January 30, 1958, to the Secretary of the Interior on the subject of the status of title to Pawnee School and Agency lands.)

    An interpretation of the provisions of the act of .June 6, 1900, applying the logic used by the Court in the Pawnee case, reveals that none of the Kiowa, Comanche, and Apache Reservation lands affected by Article I were excepted from the cession, and that any lands occupied by a religious society or other organization for religious and educational work among the Indians might be patented to the organization so long as it is occupied and used for such purposes (Article III). Special provision was made to allot each individual member of the tribe 160 acres out of the lands ceded and conveyed (Article II), and to select and set aside from the ceded land for the use in common of said Indian tribes four hundred eighty thousand acres of grazing land (Article III). The school and agency lands were not to be set aside in accordance with any provision of the act. Therefore, under the principle advanced by the Court of Claims in the Pawnee case, it follows that an unrestricted title to the unallotted land not set aside for the common use of the tribes passed to the United States, and the establishment of school and agency sites on those lands operated as a setting apart of land belonging to the United States.

    It seems clear from the judicial decisions hereinbefore discussed and from the express provisions of section 6 of the act of June 6, 1900, that the Indian title was completely extinguished and that the Kiowa, Comanche, and Apache Tribes did not retain an equitable interest in the title to the school and agency lands. Further, the setting aside of lands for school and agency purposes did not affect the title to the property. We therefore conclude that by virtue of the provisions of section 6 of the act of June 6, 1900, the title acquired by the United States to the school and agency lands is unqualified, unconditional, and not in trust.

II.

    Legislation affecting all of government owned school and agency sites was enacted when, by section 17 of the act of June 30, 1913, the Secretary of the Interior was authorized to sell those portions of the school and agency lands no longer needed for administrative purposes upon condition that if there were any proceeds in excess of $ 1.25 per acre, the excess was to be deposited in the United States Treasury to the credit of the Kiowa Agency Hospital 4% Fund.

    The enactment reads as follows:

    "That the Secretary of the Interior, in his discretion, is authorized to sell upon such terms and under such rules and regulations as he may prescribe the unused, unallotted, unreserved, and such portions of the school and agency lands that are no longer needed for administrative purposes, in the Kiowa, Comanche, Apache, and Wichita Tribes of Indians in Oklahoma, the proceeds therefrom, less $1.25 per acre, to be deposited to the credit of said Indians in the United States Treasury, to draw until further provided by Congress four per centum interest, and to be known as the Kiowa Agency Hospital Fund, to


 

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be used only for maintenance of said hospital: *     *     *."

    The record of the Senate hearings on this legislation (Hearings on H.R. 1917, the Indian Appropriation Bill for 1914, Pt. 1, p. 246, Before the Senate Committee on Indian Affairs, 63d Cong., 1st sess. 1913) contains an Interior Department report at page 251, dated January 30, 1912, stating that these school and agency lands were the property of the United States and had comprised ap proximately 10,313 acres, but 858.7 acres had already been disposed of or provision for sale made under the authority of various acts of Congress. The report emphasized that the Kiowa, Comanche, and Apache Tribes had received a nominal sum, approximating $1.25 per acre, as consideration for ceding title to these lands and consequently the policy of the Department of the Interior was to provide that the original owner be benefited when the land was sold. The record shows that this legislation was not intended by the Congress to have the effect of a treaty stipulation or compact with the tribes but was in the nature of a gratuity. It would seem that Congress in enacting the legislation recognized that the United States was not in a position to profit at the expense of the Indians. We conclude, therefore, that the statute did not alter the title status of the school and agency lands but merely bestowed a gratuity on the Indians if these lands were sold for more than $1.25 an acre.

    Section 17 of the act of June 30, 1913, has not been amended or repealed by subsequent legislation and consequently is still in effect with respect to sale of the school and agency lands no longer needed for administrative purposes. Thus, Congress would have to enact further legislation to authorize the Secretary of the Interior to sell these lands in any manner other than that provided for in said act. An example of such legislation is found in the act of July 1, 1946, 60 Stat. 348, 356, which provided for the sale of 320 acres excess to the needs of the Ft. Sill Indian School, with the net proceeds of sale being deposited to the credit of the tribes.

III.

    On July 18, 1957, the Indian Claims Commission rendered its decision on the claim presented in Kiowa, Comanche, and Apache Tribes of Indians v. United States (Docket No. 32). The decision was made upon a rehearing of its final order entered March 12, 1957 (5 Ind. Cl. Comm. 96) . The Tribes sued to obtain additional compensation for the lands which had been ceded to the United States in the act of June 6, 1900. The Commission held that the Indians were entitled to recover the difference between the value of the land acquired on June 6, 1900, and the purchase price paid thereof on that date. It was found that the lands acquired were worth $2 an acre, whereas the Indians were only paid about 98.3 cents an acre. In that petition filed on behalf of the tribes, it was alleged that the school and agency lands had never been acquired by the United States under the act of June 6, 1900. During the litigation the parties stipulated that the United States acquired 2,033,588 acres by the act of June 6, 1900, and this stipulation was accepted by the Commission as representing the acreage upon which the tribes based their claim for additional compensation. The record shows the stipulation as follows: (Agreed to and admitted as Petitioner's Exhibit 102, June 30, 1953, Transcript p. 577.)

    "*     *     * The petitioner proposed the following stipulation with respect to the acreage involved in the litigation: Gross acreage in the Kiowa, Comanche, and Apache reservation, 2,991,933 acres; acreage not acquired by the United States under the Act of June 6, 1900; 1, allotments to individual Indians, 445,000 acres; 2, pasture lands, 480,000 acres; Number 3, reserved for agency, school, religious and other purposes, 10,319 acres; Number 4, wood preserve, 23,040 acres; making in all total acreage not acquired by the United States 958,350 acres. The result leaves a net acreage acquired by the United States under the Act of June 6, 1900, of 2,033,583 acres. It is further stipulated that the area of 2,991,933 acres includes acreage of the original Fort Sill Reservation of 23,040 acres."

    Although the Commission accepted the stipulation of the parties and incorporated it verbatim in its opinion, the title status of the school and agency lands was not judicially determined thereby since these lands were not involved in the tribal claim presented to the Indian Claims Commission for adjudication. Consequently, the Indian Claims Commission was not petitioned to decide nor did it purport to decide whether further payment for the school and agency lands was required by law. (The Indian Claims Commission Act, 60 Stat. 1049, as amended 25 U.S.C. 70-70w.) As for the pleadings and stipulation of the parties, they manifestly have no legal significance in regard to matters dehors the litigation. We, therefore, conclude that the title status of the school and agency lands was not affected by the claims litigation before the Indian Claims Commission in Docket No. 32. See United States v. Kiowa, Comanche, and Apache


 

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Tribes, 163 F. Supp. 603 (Ct. Cl. 1958). wherein, upon appeal, the above-described award made to the tribes by the Indian Claims Commission was affirmed.

IV.

    The final question to be considered is whether section 3 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 984; 25 U.S.C. 463 (also known as the Wheeler-Howard Act), authorizes restoration of title to these school and agency lands to the Kiowa, Comanche, and Apache Tribes. The restoration provision reads as follows:

    "*     *     * The Secretary of the Interior, if he shall find it to be in the public interest, is hereby authorized to restore to tribal owner ship the remaining surplus lands of any Indian reservation opened before June 18, 1934, or authorized to be opened, to sale, or any other form of disposal by Presidential proclamation, or by any of the public-land laws of the United States: *     *     *."

    On September 19, 1934, the Secretary of the Interior approved a recommendation by the Com missioner of Indian Affairs thereby directing a temporary withdrawal of lands on certain Indian reservations until the matter of their permanent restoration under section 3 of the Indian Reorganization Act could be given appropriate consideration. 54 I.D. 559, Restoration of Lands, Formerly Indian, To Tribal Ownership. (See Solicitor's memorandum to the Secretary of the Interior, September 17, 1934, advising that it is doubtful as to the authority of the Secretary to make a temporary withdrawal under section 3 of the Wheeler-Howard Act, and that other authority could be cited for withdrawal if the recommendation of the Commissioner is approved. See also, Sol. Op. M-35049, May 24, 1949.)

    No specific reference in the order of temporary withdrawal is made to the subject school and agency lands, but a statement appears in the portion of the order containing the recommendation of the Commissioner of Indian Affairs, 54 I.D. 559, 563, to this effect:

    "If there are lands on any of the reservations named, other than the areas covered by the said citations, that were 'opened,' and for which the Indians receive the proceeds when disposed of, it is intended that they be in cluded in the withdrawal. Areas within regularly authorized reclamation projects are to be excepted."

    [The citation concerning the Kiowa, Comanche, and Apache Reservation is the act of June 5, 1906, 34 Stat. 213, which repeals Article III of the act of June 6, 1900, to the extent that it was required to set aside 480,000 acres of grazing land for tribal use and pro vides for the sale of that acreage plus a 23,000 acre wood reserve (see 41 L.D. 263 for origin of this tract) with the money accruing there from to be placed to the credit of the tribes in the United States Treasury.]

    "It is, therefore, recommended that all un disposed-of lands of the Indian reservations named above that have been `opened,' or authorized to be 'opened' to sale, entry or any other form of disposal under the public land laws, or which are subject to mineral entry and disposal under the mining laws of the United States, with the exception of areas included in reclamation projects, be temporarily withdrawn from disposal of any kind, subject to any and all existing valid rights, until the matter of their permanent restoration to tribal ownership, as authorized by section 3 of the Act of June 18, 1934, supra, can be given appropriate consideration. The intention is to with draw only lands the proceeds of which, if sold, would be deposited in the Treasury of the United States for the benefit of the Indians. In the event, it is found that there are lands of other reservations that should have been included in this proposed withdrawal, appropriate recommendation will be made to have the withdrawal extended to embrace such lands."

    By Secretarial Order of December 16, 1946, certain land susceptible to sale under the act of June 30, 1913 (an unused, unallotted, and unreserved tract, rather than school and agency lands) was restored to ownership of the Kiowa, Comanche, and Apache Tribes. The Solicitor had advised the Secretary on October 9, 1945 (M-33936) that the title to the land which was acquired by the United States in an unrestricted status under section 6 of the act of June 6, 1900, could be restored to the tribes for the reason that:

    "The 1934 order of withdrawal speaks of an 'intention to withdraw only land the proceeds of which, if sold, would be deposited in the Treasury of the United States for the benefit of the Indians *     *     *.' The 1913 act, supra, provides for the allocation to the Indians, not of the entire proceeds of sale, but only the excess above $1.25 per acre. Whether land, part


 

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of the proceeds of whose sale may accrue to the benefit of the Indians, is as a matter of law encompassed within the language quoted from tile order is a difficult question to decide.13

    "However, I do not believe it is necessary now to decide that question. Under section 3 of the Wheeler-Howard Act, supra, the Secretary had the power to withdraw this lot and any other lands in the same category. Consequently, the problem is really one of policy. If it is determined as a matter of policy that this or any other such land should be with drawn, then an unambiguous order or orders of withdrawal should be promulgated. If a contrary determination is made, then the en tire question of the status of this land with reference to the public land laws may be resubmitted for consideration by this office.

    The lands that have been restored to tribal ownership under section 3 of the 1934 act have generally been lands which had theretofore been ceded by Indian tribes under trust arrangements whereby the United States was to sell the lands and hold the proceeds of sale for the benefit of the tribes. (See Sol. Op. M-27878, May 20, 1936; 56 I.D. 300, 344, June 5, 1938; Sol. Op. M-29616, February 19, 1938.) However, as demonstrated by the restoration order of December 16, 1946, and the former Solicitor's opinion M-33936 (October 9, 1945), mentioned above, section 3 of the 1934 act has also been construed to authorize the restoration to the Kiowa, Comanche, and Apache Tribes of their former lands which are subject to the sale provisions of section 17 of the act of June 30, 1913. The rationale of the interpretations and the administration by the Department of section 3 of the 1934 act is that the significant and controlling factor under this legislation is the existence of a tribal right to proceeds from the sale of the lands and not the narrower question of the existence or absence of a trust title. This interpretation is in harmony with the language of the act and its broad purpose to augment the tribal land base. Accordingly, it is our conclusion that the title to any of the school and agency lands which are found to be surplus to the needs for which they were reserved may be restored to tribal ownership in accordance with the provisions of section 8 of the act of June 18, 1934.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

AUTHORITY TO SELL AND LEASE LANDS IN
PARKER TOWNSITE

                                                                                                                                        January 18, 1960.

Memorandum

To:            Regional Solicitor, Los Angeles Region
From:        Solicitor
Subject:     Authority to sell and lease lands in Parker Townsite and the control of the Tri bal
                 Council of the Colorado River Indian Tribes thereover

    Thank you for the information contained in your letter of October 29, 1959, concerning the above subject. As you state, Parker Townsite was established on .June 10, 1908, by Secretarial Order, pursuant to the act of April 30, 1908, 35 Stat. 77, and regulations issued thereunder. (38 I.D. 123, 107) A plat of the townsite was approved June 14, 1909 (Map No. 6229, Tube 783).

    The Act of April 30, 1908, provided an appropriation

    ". . . to enable the Secretary of the Interior to reserve and set apart lands for town-site purposes in the Yuma Indian Reservation, California, and the Colorado River Indian Reservation in California and Arizona, and to survey, plat, and sell the tracts so set apart in such manner as he may prescribe, the net proceeds to be deposited in the Treasury of the United States to the credit of the Indians of the reservation, respectively, to be reimbursed out of t he funds arising from the sale of the lands." (underscoring supplied)

    Regulations issued August 7, 1909 (38 I.D. 107) provided that townsites in Yuma and Colorado River lands under the above act "will be selected and reserved by the Secretary of the Interior, and will be thereafter surveyed, approved, and disposed of in accordance with the regulations in this circular provided under section 2381, U.S. Rev. Stats." (p. 123). These regulations also provided the method for disposition of such section 2381 townsites, and stipulated that any unsold lot "will thereafter be and remain subject to private sale and entry, for cash at the appraised value of such lot" (pp. 107, 108). Regulations for the sale, at not less than the appraisal value, of remaining unreserved and unsold lots in Parker were issued March 7, 1918. Lots remaining unsold were made subject to private entry for cash at their appraised value.

____________________

    13 "This excludes the 'military, agency, school' and similar lands referred to the beginning of this opinion which qualify as 'remaining surplus lands' of an Indian reservation within the meaning of section 3 of the Wheeler-Howard Act, supra, and were unquestionably included in the said withdrawal."


 

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OPINIONS OF THE SOLICITOR

JANUARY 15, 1960

    Following the enactment of the Indian Reorganization Act of June 18, 1934, 48 Stat. 984, which included a provision for the restoration to tribal ownership of certain ceded lands (sec. 3), an order of restoration to tribal ownership of "all un disposed of lands within the Colorado River Indian Reservation, including any vacant townsite lots within said reservation subject to any valid existing rights . . ." was issued on March 8, 1937.

    A question was raised whether this order was applicable to Parker Townsite lots, and whether it was valid as to any townsite lots, in view of previous opinions that the establishment of a town site pursuant to legislation removed the townsite from the category of "surplus lands on an Indian Reservation" and, also, in view of the exception, in section 3 (the restoration provision), of "lands within any reclamation project heretofore authorized in any Indian reservation" (The Colorado River Reservation Reclamation Act of April 21, 1904, sec. 25, 33 Stat. 224, as amended, was still in effect). It was, at first, suggested that the 1904 Reclamation Act be repealed (Memo. Solicitor to Commissioner of Indian Affairs, Nov. 24, 1936, and memo. to Sol. Margold, Feb. 18, 1937). Eventually, the Act of August 6, 1939, 53 Stat. 1203, was enacted, to clear up the doubt, which Act provided that:

    " . . . the Secretary of the Interior be, and he is hereby, authorized to sell at public auction or after publicly advertising for bids, to the highest and best bidder, any unsold lots in the townsite of Parker, Arizona: Provided, that the said Secretary may, in his discretion, reject any or all bids so received; . . . ."

    A further proviso was added, not in the original bill (Senate 432), which required consent of "the Tribal Council of the Colorado River Indian Tribes of the Colorado River Reservation" to any such sale. A section was also added which permitted leasing by that Tribal Council of "vacant, unsold lots within the Townsite," with the approval of the Secretary "upon such terms and conditions as he may prescribe, for a term not to exceed twenty-five years," with a renewal privilege. No provision was made for disposal of funds since the purpose of this act was merely to uphold the validity and effectiveness of the previous Parker Townsite law, as is stated in the Committee report (Sen. Kept. 809, 76th Cong., 1st sess.). Another result of this measure was to put the Indian Bureau in the business of selling townsite lots in place of the Public Lands Office, which then had the facilities for the disposal of townsite lots.

    You have stated that by 1939 "there was standing to the account of the Colorado Indian Reservation, as distinguished from the Tribes, approximately $27,000 as proceeds from the sale of these town site lots, together with an additional $4,400 interest. . . ." This fund still exists, in the amount of $9,649.43, and is entitled "Proceeds of Town sites, Colorado River Indian Reservation." The last deposit was of $4,035 in June 1954. In view of the question now raised, whether the Colorado River Indian Reservation includes or represents all Indians of that reservation, the distinction between this general account and an account of the organized group must be emphasized.

    The opinion of the Solicitor, M-36557, February 4, 1959, is to the effect that the General Leasing Act of 1955 (25 U.S.C., sec. 415), which provides for leasing "by the Indian owners, with the approval of the Secretary of the Interior," was not intended to "apply to the lands of the Colorado River Indian Reservation until the beneficial ownership became known." Neither this Act nor the specific Colorado River Reservation Leasing Act of 1955 affected the power of the United States to sell Parker Townsite lots and deposit the proceeds in a fund for the beneficial owners as finally deter mined, as provided in the Parker Townsite legislation cited. The fact that consent of the Tribal Council, the representatives of a substantial portion, if not all, of the Indians of the Reservation, is required, is the only limitation. The sale, itself, is by the United States, not the Tribe, and is for the benefit of all, not merely the Tribe.

    Th e question remains whether the unsold townsite lots could be leased and the proceeds placed to the credit of "the Indians of the Reservation," as in the case of funds obtained from the sale of such lots.

    We are informed that approximately one thousand vacant Parker Townsite lots were included in a residential and development lease made by the Secretary pursuant to the interim 1955 Act (Act of August 14, 1955, 69 Stat. 725). This lease was canceled in May 1958 and the lots are idle. In addition several lots were leased under the 1939 act, which lots have been improved with buildings, including a motel. Some of these lease have expired. To leave the improved properties un tenanted will result not only in loss of income but in deterioration. Since the expiration of the interim leasing Act on August 14, 1957, it has been the policy of the Area Director, supported by an opinion of the Associate Solicitor, to re-let the improved property, including these townsite lots, as leases expire, by means of one year permits revocable upon 30 days notice


 

1874

DEPARTMENT OF THE INTERIOR

JANUARY 15, 1960

    While the leasing of townsite lots or other land on the Reservation by the Tribe is questionable under the General Leasing Act, supra, as previously mentioned the 1939 Parker Townsite Act specifically provided for leasing of the townsite lots "for a term not to exceed twenty-five years" and one similar renewal period, with Secretarial approval. This 1939 leasing act was special legislation dealing specifically and only with the Parker Townsite lots. In our judgment, it was not repealed by the general interim leasing act of 1955 and remains effective following the expiration of the interim leasing authority provided by the said 1955 act. The income from such lease would be deposited "to the credit of the Indians of the reservation," as provided by the original Parker Townsite Act of 1908. The Secretary is authorized "to expend income received from leases on lands on the Colorado River Indian Reservation (southern and northern reserves) for the benefit of the Colorado River Indian Tribes and their members during the current fiscal year, or until beneficial ownership of the lands has been determined if such de termination is made during the current fiscal year." (Department of the Interior Appropriation Act of June 23, 1959, 73 Stat. 95)

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

RIGHTS OF COEUR D'ALENE TO HUNT ON LAND
NO LONGER IN INDIAN OWNERSHIP

                                                                                                                                    February 23, 1960.

HON. FRANK CHURCH
United States Senate
Washington 25, D.C.

DEAR SENATOR CHURCH:

    Under date of November 17, 1959, acknowledgment was made of receipt of your letter of November 6, with enclosure, in regard to the right of Coeur d'Alene Indians to hunt on land no longer in Indian ownership.

    After a canvas of the situation, it appears that a belief existed among some that an implied reservation was vested in the Coeur d'Alene Indians to hunt on former Indian lands situated within the boundary of the reservation. This belief apparently stemmed from a confusion of the Coeur d'Alene situation with that in which rights were reserved to the Yakima Indians in their treaty of May 29, 1855, 12 Stat. 951. The Supreme Court of the United States interpreted the Yakima Treaty in the case entitled United States v. Winans, 198 U.S. 371. It was therein held that there was re served to the Indians an exclusive right of fishing within the reservation boundaries. A right outside of those boundaries was specifically reserved which gave these Indians " 'the right of taking fish at all usual and accustomed places,' and the right 'of erecting temporary buildings for curing them.' The contingency of the future ownership of the lands, therefore, was foreseen and provided for--in other words, the Indians were given a right in the land--the right of crossing it to the river--the right to occupy it to the extent and for the purpose mentioned. *     *     * And the right was intended to be continuing against the United States and its grantees as well as against the State and its grantees." This reserved right of the Yakima Indians was further considered by the Supreme Court in the case entitled Sampson Tulee v. State of Washington, 109 P. (2d) 280, 110 F. Supp. 979, 315 U.S. 681. The Supreme Court in this case said:

    "We believe that such exaction of fees as a prerequisite to the enjoyment of fishing in the 'usual and accustomed places' cannot be reconciled with a fair construction of the treaty. We therefore hold the state statute in valid as applied in this case."

    This right of the Yakima Indians exercised out side of their reservation existed by reason of the specific treaty requirements. No such requirements are found to exist in the treaty or acts of Congress affecting the Coeur d'Alene Indians. These Indians would have such a right on their own trust or restricted Indian lands of the reservation. This re served right, however, would cease to exist when the title to the Indian land is terminated. Such a right, however, does not extend to lands out side of the reservation ceded by the Indians to the United States.

    The enclosure accompanying your letter is returned.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.


 

1875

OPINIONS OF THE SOLICITOR

FEBRUARY 23, 1960

RIGHTS OF COEUR D'ALENE INDIANS TO HUNT ON
LAND NO LONGER IN INDIAN OWNERSHIP

                                                                                                                                    February 23, 1960.

Memorandum

To:            Regional Solicitor, Portland
From:        Solicitor
Subject:     Right of Coeur d'Alene Indians, to hunt on certain patented land described as
                 SE1/4, Sec. 2 1, T. 44 N., R. 4 W., Boise Meridian, Idaho

    This is in reference to your memorandum of December 2, 1959, in regard to a letter from a Mr. A. G. Thurman addressed to Senator Frank Church of Idaho concerning hunting rights of Coeur d'Alene Indians.

    It would appear from your memorandum that Mr. Thurman has been advised that the Indians have the right to hunt and fish on all the lands within the exterior boundaries of the Coeur d'Alene Reservation, regardless of the ownership status of the land at the time of exercising such right, and, further, that no individual landowner may interfere with the exercise of this privilege provided no unnecessary damage is done to the land.

    Reference is made in your memorandum to the establishment of the Coeur d'Alene Indian Reservation by Executive Order of November 8, 1873, the agreement of cession of March 26, 1887, ratified by the Act of March 3, 1891, 26 Stat. 989, 1026, 1030, and the Act of June 21, 1906, 34 Stat. 335-338. Under this latter act the Secretary of the Interior was directed to dispose of unallotted lands within the reservation. The proceeds derived therefrom to be credited for the benefit and use of the tribe. Pursuant to this direction the unallotted lands of the reservation were subsequently opened to homestead entry. After the entryman met the requirements of the act the land entered was patented to him under the Act of May 20, 1862. 12 Stat. 392.

    There is nothing in the Executive Order, the agreement with the Indians, or the 1906 Act, which reserves to the Indians a right to hunt and fish on the ceded lands of their reservation, such as the language contained in the Yakima Treaty. This latter treaty was interpreted in the case entitled United States v. Winans, 198 U.S. 371, 384. The Court in part stated:

    "The right of taking fish at all usual and accustomed places in common with the citizens of the Territory of Washington and the right of erecting temporary buildings for curing them, reserved to the Yakima Indians in the treaty of 1859, was not a grant of right to the Indians but a reservation by the Indians of rights already possessed and not granted away by them. The rights so reserved imposed a servitude on the entire land relinquished to the United States under the treaty and which, as was intended to be, was continuing against the United States and its grantees as well as against the State and its grantees" (under scoring supplied) .

    The extent of the reserved right of the Yakima Indians was further considered and dealt with in the case entitled Sampson Tulee v. State of Washington, 109 Pacific (2d) 280, 110 Fed. Supp., 979, 315 U.S. 681.

    The implied reserved right dealt with in the cases cited in your memorandum are rights reserved to the Indians on their reservation such as dealt with in the case entitled United States v. Winters, 207 U.S. 564. Such reserved right, however, does not remain in the Indian after disposal of the land but goes with the land. The court in United States, ex rel. Kay, U.S. Atty. v. Hibner, et al., 27 F. (2d) 909, 912, in part said:

    "The status of the water right after it has passed to others by the Indians seems to be somewhat different from while such right is retained by the Indians, because the principle invoked by the courts for the protection of the Indian as long as he retains title to his lands does not prevail and apply to the white man, and the reason for so holding is that there was reserved unto the Indians the absolute right to own and use in their own way the water for their lands, while the white man, as soon as he becomes the owner of the Indian lands, is subject to those general rules of law governing the appropriation and use of the public waters of the state, and would, as grantee of the Indian allotments, be entitled to a water right for the actual acreage that was under irrigation at the time title passed from the Indians, and such increased acreage as he might with reasonable diligence place under irrigation which would give to him, under the doctrine of relation, the same priority as owned by the Indians; *     *     *."

    The Supreme Court of Wisconsin in the case of State v. Johnson, 249 N.W. 284 (1933), illustrates the distinction to be drawn between rights reserved by the Indians to hunt and fish on ceded


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