Home

1926

DEPARTMENT OF THE INTERIOR

MAY 31, 1963

    The Examiner's specific question is, "Did the removal of the federal trust responsibilities of members of the Peoria Tribe on August 2, 1959, affect the Department's probate jurisdiction relating to a member of the tribe who had died prior to the effective date of the terminating act?"

    Section 3 of the Peoria Termination Act reads, in part:

" (a) The Federal trust relationship to the affairs of the Peoria Tribe and its members shall terminate three years after the date of this Act, and thereafter individual members of the tribe shall not be entitled to any of the services performed by the United States for Indians because of their status as Indians, all statutes of the United States which affect Indians because of their status as Indians (including the Act of June 26, 1936 (49 Stat. 1967), and the Act of June 18, 1934 (48 Stat. 984), as amended by the Act of June 15, 1935 (49 Stat. 378), shall no longer be applicable to the members of the tribe, and the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.

" (b) Nothing in this Act shall affect the status of the members of the tribe as citizens of the United States." 70 Stat. 937, 25 U.S.C. § 823.

    The Menominee Termination Act of June 17, 1954, 68 Stat. 250, as amended, presented a similar problem to the Department when the Secretarial proclamation authorized by section 10 of that act was published on April 29, 1961, in the Federal Register. Section 2 of the Menominee Act, which is similar to Section 3 of the Peoria Termination Act, reads:

"When title to the property of the tribe has been transferred, as provided in Section 8 of this Act, the Secretary shall publish in the Federal Register an appropriate proclamation of that fact. Thereafter individual members of the tribe shall not be entitled to any of the services performed by the United States for Indians because of their status as Indians, all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe, and the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction. Nothing in this Act shall affect the status of the members of the tribe as citizens of the United States." 68 Stat. 250, 252, 25 U.S.C. § 899.

    Nevertheless, it was concluded by this Office that the Department retained probate jurisdiction with respect to the estates of Menominee Indians who had died prior to the effective date of termination, and the estates of Indians who had died prior to that time were authorized to be probated pursuant to the Act of June 25, 1910, 36 Stat. 855, even though such action was not initiated until after the issuance of the termination proclamation. It was concluded that the Department should probate the estates of such deceased Menominee Indians since to do so would be simply to complete the Department's responsibilities in connection with their restricted property and so would not involve furnishing new services contrary to the provisions of the Termination Act.

    Likewise here the probate of the restricted estate of Matilda Stand Beaver is a Departmental responsibility since she died prior to the effective date of the Peoria Termination Act. Her restricted estate includes in excess of $300,000 which represents Federal income tax refunds made to her account and that of her prior deceased husband, Alex Louis Beaver, a Quapaw Indian. Disbursements of restricted funds in payment of Federal income taxes which were not due did not remove the restrictions from such funds. See Estate of Wook-kah-nah, 65 I.D. 445 (1958). The United States Court of Appeals for the District of Columbia has recently indicated its approval of this decision. Asenap v. Huff, 312 F. 2nd 358 (1962). The fact that all the restricted property of Matilda Stand Beaver would become unrestricted in the hands of her Peoria Indian heirs or devisees by virtue of the Peoria Termination Act does not affect the Department's exclusive probate jurisdiction under the 1910 act, supra, as amended.

Therefore, the Examiner should proceed with the probate of the decedent's restricted estate which, as indicated above, includes her share of the tax refund.

                                                                                                                    EDWARD WEINBERG,
                                                                                                                                        Deputy Solicitor.

PROPOSED LEASE OF ANNETTE ISLANDS RESERVE FOR
METALLIFEROUS MINING

70 I.D. 363

M-36658                                                                                                     July 19, 1963.

Alaska: Indian and Native Affairs--Alaska: Mineral Leases and Permits--Indian Lands: Leases and Permits: Minerals


 

1927

OPINIONS OF THE SOLICITOR

JULY 19, 1963

The Annette Islands reserve in Alaska was specifically created as an Indian reservation by section 15 of the Act of March 3, 1891 (26 Stat. 1101, 48 U.S.C. sec. 358), and is leasable for mining purposes under the provisions of the Act of May 11, 1938 (52 Stat. 347, 25 U.S.C., sec. 396a-f).

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Proposed Lease of Annette Islands Reserve for Metalliferous Mining

    In response to a request from the Bureau of Indian Affairs I have examined a proposal to lease lands within the Annette Islands Reserve for metalliferous mining, with a view to determining whether such reserved lands are subject to leasing under the act of May 11, 1938.

    It appears from a proposal presently pending before the Bureau of Indian Affairs, that Consolidated Minerals Company, Inc., wishes to lease from the Metlakatla Indian Community approximately 6,400 acres of land along the eastern shore of Annette Island, Alaska, for metalliferous mining. The area desired covers a strip of land one mile in width and extends approximately ten miles in length from Crab Bay to Harbor Point. The Company proposes ". . . to mine such ores as can be found, namely, copper, lead, zinc, possibly gold and silver." The Company proposes to pay an annual rental of $1.00 per acre, a royalty of 10% on the first $50.00 per ton returns, 15% on the excess over $50.00 returns on any shipment, and a $5,000.00 minimum royalty beginning with the third year. The Company further proposes to begin work within ten months after the signing of the lease and will spend $4.00 per acre per year on development.

    The Anchorage Regional Mining Supervisor, Geological Survey, has been asked by the Commissioner of Indian Affairs, through the Area Director, Juneau, Alaska, for a report and recommendation on the proposed lease, and has asked for a legal opinion as to the authority for such lease. In view of the Solicitor's memorandum of September 7, 1955, to the Commissioner of Indian Affairs, the subject of leasing Indian lands in Alaska has been considered and is reviewed herein.

    The Solicitor's memorandum of September 7, 1955, considered the question of whether the United States or the natives residing in the area reserved by Executive Order No. 1764, dated April 21, 1913, "in and surrounding the Village of Klukwan," in Alaska, "for the use of the Natives of Alaska residing now or hereafter at said Village or within the limits of the Reservation," could lease the land for metalliferous mining. The memorandum expressed doubt as to the applicability of the Act of March 3, 1927 (44 Stat. 1347; 25 U.S.C., sec. 398a), and the Act of May 11, 1938 (52 Stat. 347; 25 U.S.C., sec. 396a-f), to the Klukwan reservation, particularly in view of the opinion of the Supreme Court in Tee-Hit-Ton Indians v. U.S., 348 U.S. 272 (1955), and "suggested that legislation is essential which would definitely describe or fix the authority with respect to the leasing for mining purposes of lands within the Klukwan and like Indian reservation in Alaska."1

    The doubt expressed by the Solicitor was communicated to the Congress in the Department's report on H.R. 6562, 85th Congress, to the Chairman of the House Committee on Interior and Insular Affairs, signed by the Under Secretary on June 10, 1957, and was further recognized by the committees considering the bill. See H. Rept. No. 773, House Committee on Interior and Insular Affairs, 85th Cong., 1st Sess., July 7, 1957, and S. Rept. No. 1031, Senate Committee on Interior and Insular Affairs, 85th Cong., 1st Sess., August 19, 1957. The bill was enacted and was signed on September 2, 1957, as P.L. 85-271 (71 Stat. 596).

    The Solicitor's memorandum of September 7, 1955, dealt solely with reservations created in Alaska by Executive Orders. It did not consider and is not determinative of the leasability of the Annette Islands reserve, which was specifically created by Congress by section 15 of the Act of March 3, 1891 (26 Stat. 1101; 48 U.S.C., sec. 358).2 That Section provides in part:

"Until otherwise provided by law the body of lands known as Annette Islands, *     *     * is set apart as a reservation for the use of the Metlakatla Indians, and those people known as Metlakatlans who, on March 3, 1891, had recently emigrated from British Columbia to Alaska, and such other Alaskan natives as

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    1 See also, Solicitor's Opinion M-36652, May 14, 1963, relating to oil and gas leasing on lands withdrawn by Executive order for Indian purposes in Alaska. In neither that opinion nor in this do we intend to express a view on the question that was before Solicitor Armstrong.
    2 Establishment of the reserve by Executive Order was apparently considered, but was foreclosed by a ruling of the Attorney General which held that the President's power "to declare permanent reservation for Indians to the exclusion of others on the public domain does not extend to Indians not born or resident in the United States." 18 Ops. Atty. Gen. 557, 559 (1887).


 

1928

DEPARTMENT OF THE INTERIOR

JULY 19, 1963

may join them, to be held and used by them in common, under such rules and regulations, and subject to such restrictions, as may be prescribed from time to time by the Secretary of the Interior."

    The Supreme Court recently had occasion to consider section 15 of the 1891 act in Metlakatla Indian Community v. Egan, et al., 369 U.S. 45 (1962). In passing upon the validity of certain regulations which the Secretary had issued to govern the operation of fish traps in waters surrounding the Annette Islands, the Court made several pointed observations:

"In 1915 the Secretary issued regulations, 25 CFR (1939 ed.), pt. 1, establishing an elective council to make local ordinances for Metlakatla, . . . (Id., at p. 48.)

*     *     *

Metlakatlans, the State tells us, have always paid state taxes, in contrast to the practice described and prescribed for other reservations in The Kansas Indians, 5 Wall. 737 (1867), and it has always been assumed that the reservation is subject to state laws. United States v. Booth, 17 Alaska 561 (1958), at 563, 161 F. Supp. 269, at 270.

*     *     *

Congress in 1936, 49 Stat. 1250, 48 U.S.C., sec. 358a, by authorizing the Secretary of the Interior to create Indian reservations of land reserved for Indian uses under 48 U.S.C., sec. 358, seems to have believed that Metlakatla was no ordinary reservation, since Metlakatla alone is covered in sec. 358." (Id., at p. 51.)

    The Court also observed: "This provision subjecting Metlakatla to rules and regulations of the Secretary of the Interior is unusual. . . .3 The regulations issued by the Secretary for the government of the Annette Islands January 28, 1915, appear to be without parallel."4 (Id., at p. 53.)

    The Court was considering the Secretary's power to regulate fishing in the waters surrounding Annette Islands by means of fish traps, and it found that such power was derived from the 1891 act. In a companion case, Organized Village of Kake v. Egan, 369 U.S. 60 (1962), the Court held that such power does not extend to other areas in Alaska occupied by members of native corporations chartered under the Wheeler-Howard Act of June 18, 1934 (48 Stat. 984, 988, as amended, 49 Stat. 1250; 25 U.S.C., secs. 473a, 476, 477)5 for whom on such reservations had been established.

    The Metlakatla Indian Community is a similarly chartered corporation,6 but its occupation and use of the lands and surrounding waters of the Annette Islands are unique because, and only because, of the 1891 statute creating its reservation. It is true that the reservation is set apart "until otherwise provided by law" and is thus subject to extinction whenever Congress may choose to act.7 Until that should occur, however, it is my opinion that the area encompassed by the reservation created by section 15 of the 1891 act is subject to mineral leasing under the provisions of the act of May 11, 1938 (52 Stat. 347; 25 U.S.C., sec. 396a-f). Section 1 of that act provides in part:

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    3 The Court apparently overlooked the Act of June 23, 1926 (44 Stat. 763) creating a reserve for the Chippewa Indians of Minnesota, which also provides that the reserve "shall be maintained . . . under the jurisdiction of the Secretary of the Interior and under rules and regulations to be prescribed by the said Secretary."
    4 With respect to minerals, the regulations provided in Art. VIII. sec. 3: "Should any minerals be found within Annette Islands Reserve, and it is desired to mine and develop the same, the matter should immediately be brought to the attention of the Secretary of the Interior for his instructions thereon." 25 CFR. sec. 164 (1939 ed.). The regulations, insofar as they were incompatible with the Constitution and By-laws of the Metlakatla Indian Community, were by order of the Assistant Secretary of the Interior on August 23, 1944, made inapplicable from and after December 19, 1944, the date of ratification of the Constitution.
    5 Section 1 of the Act of May 1, 1936 (49 Stat. 1250; 25 U.S.C., sec. 473a and 48 U.S.C., sec. 362), extended the Wheeler-Howard Act to Alaska and provides that groups of Alaska Indians "having a common bond of occupation, or association or residence within a well-defined neighborhood, community or rural district, may organize to adopt constitutions and by-laws and receive articles of incorporation and Federal loans under Sections 16, 17, and 10 of the Act of June 18, 1934."
    6 The charter was approved and submitted for ratification by the Assistant Secretary of the Interior on August 23, 1944, the same day on which he approved the Constitution and By-laws, and it also was ratified on December 19, 1944. Section 5 of the charter forbids the corporation "to make leases, permits or contracts to or with non-members covering land in the Reserve except with the approval of the Secretary of the Interior."
    7 Section I of the act of May 7, 1934 (48 Stat. 667) granted citizenship to the loyal Tshimshians and Metlakatlans and other British Columbia Indian emigrant residents of Annette Island. Section 2 of the act reads:

"The granting of citizenship to the said Indians shall not in any manner affect the rights, individual or collective, of the said Indians, to any property, nor shall it affect the rights of the United States to supervise and administer the affairs of the said Metlakatla Colony. And any reservations heretofore made by any Act of Congress or Executive Order or proclamation for the benefit of the said Indians shall continue in full force and effect and shall continue to be subject to modification, alteration, or repeal by the Congress or the President, respectively."


 

1929

OPINIONS OF THE SOLICITOR

JULY 19, 1963

"Hereafter unallotted lands within any Indian reservation or lands owned by any tribe, group or band of Indians under Federal jurisdiction, *     *     *, may with the approval of the Secretary of the Interior, be leased for mining purposes, by authority of the tribal council or other authorized spokesman for such Indians, for terms not to exceed ten years and so long thereafter as minerals are produced in paying quantities."

    We need not consider whether the Annette Islands are "lands owned by any tribe, group or band of Indians under Federal jurisdiction," nor the extent or quality of the right of possession assured by the Alaska Statehood Act (72 Stat. 339). The island lands and waters were, by specific congressional enactment, "set apart as a reservation for the use of the Metlakatla Indians," and it would be hard to envisage any clearer description of an Indian reservation. Such express language leaves no doubt, in my opinion, that the Annette Islands comprise an Indian reservation8 and as such are subject to mineral leasing under the provisions of the Act of May 11, 1938, supra.

    We have not overlooked section 2 of the Act of May 1, 1936 (49 Stat. 1250; 48 U.S.C., sec. 358a). supra, which authorizes the Secretary to "designate as an Indian reservation," subject to the approval of a majority of the Indian or Eskimo residents, any area of land which has been reserved for their use and occupancy as schools or missions or by Executive order issued prior to the date of the act, or by sections 14 or 15 of the Act of May 3, 1891, supra. The Secretary has not so designated the Annette Islands reserve. The legislative history of the 1936 act shows that Section 2 thereof was believed necessary "not only to the formation of chartered communities but also to protect projects begun under the provisions of" the Wheeler-Howard Act of June 18, 1934, supra,9 but we do not believe the lack of an administrative designation is of significance in reaching a decision on the applicability of the leasing statute, particularly in view of the repeated recognition of Annette Islands as a statutory reservation.10

    The Constitution of the Metlakatla Indian Community, approved on August 23, 1944, and ratified an December 19, 1944, expressly provides for mineral leasing. Article VII thereof provides in pertinent part as follows:

"Section 3. The mineral and other resources of the Annette Islands and the waters to the distance of 3,000 feet surrounding these islands shall be community assets . . . Section 4. The Council shall have the right, subject to the approval of the Secretary of the Interior, to enter into leases for the development of the resources of the Reserve."

    Since the beginning the reservation "has been used in common for hunting, fishing, timber cutting and lumber making by the Indians,"11 and the right of the Secretary to lease lands within the reservation as a site for cannery buildings and fish traps has been expressly recognized as a part of his authority to make rules and regulations for the government of the Indians in their occupation of the islands.12 Moreover, a lease by the Council of the Annette Islands Reserve to the United States of a part of the reservation lands for airport purposes, dated December 13, 1948, and approved by the Assistant Secretary of the Interior on January 6, 1949, has been expressly approved by the Congress.13 In addition, the United States has adminis-

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    8 Infra, n. 10. But see United States v. Booth, 161 F. Supp. 269 (Alaska, 1958), holding that the "community of Metlakatla is not an Indian reservation in the traditional sense and accordingly is not Indian country" within the meaning of the criminal statute (18 U.S.C., sec. 1151) defining "Indian country" as including "all land within the limits of any Indian reservation under the jurisdiction of the United States government."
    9 H. Rept. No. 2224, House Committee on Indian Affairs, 74th Cong., 2d Sess., March 26, 1936; S. Rept. No. 1748, Senate Committee on Indian Affairs, 74th Cong., 2d Sess., February 24 (calendar day, April 7), 1936. And see Hynes v. Grimes Packing Co., 337 U.S. 86, 108-110, n. W-32 (1949), which quotes extensively from pertinent portions of the House Report.
    10 Metlakatla Indian Community v. Egan, supra, pp. 48, 52; Hynes v. Grimes Packing Co., supra, p. 112; Alaska Pacific Fisheries v. U.S. 248 U.S. 78, 87-89 (1918); Territory of Alaska v. Annette Island Packing Co., 289 F. 671, 672, 674 (1923).
    11 Territory of Alaska v. Annette Islands Packing Co., supra, p. 672.
    12 Id.. at p. 674.
    13 Act of May 9, 1956; 70 Stat. 146. Unfortunately, the lease does not recite the authority on which it was based, and neither the approving statute nor the available legislative history indicate such authority. The lease was for a one-year term, renewable from year to year until June 30, 1959, but not thereafter "unless approved by Congress." The statute was thought to be necessary for renewals after June 30, 1959, "because of the ten-year limitation on leases of Indian land." Letter from the Assistant Secretary of the Interior to the Director, Bureau of the Budget, dated May 5, 1956. The letters to the President of the Senate and the Speaker of the House of Representatives accompanying the proposed bill, referred to Section 17 of the Act of June 18, 1934 (48 Stat. 988; 25 U.S.C., sec. 477) as imposing the ten-year limitation. That provision prohibits the inclusion in any tribal charter of incorporation of authority to lease reservation lands in excess of ten years. The Metlakatla charter contains no such limitation, but Section 5 thereof prohibits the making of any "leases, permits or contracts to or with non-members covering the land in the Reserve except with the approval of the Secretary of the Interior."


 

1930

DEPARTMENT OF THE INTERIOR

 JULY 19, 1963

tratively acknowledged the right of the Metlakatla Indian Community to sell to it quarry rock from the reserved lands and to receive payment therefore.14 We have not found, however, any indication of a prior lease of the lands for mineral exploration or development,15 but this does not militate against the right to enter into such a lease in a proper case. The authority to lease is, we believe, found in the Act of May 11, 1938, supra, and its exercise is prescribed by Section 4 of the Metlakatla Constitution as set out above, and the regulations of the Department in 25 C.F.R., pt. 171.

                                                                                                                    EDWARD WEINBERG,
                                                                                                                                        Acting Solicitor.

WATER RIGHTS IN CASE OF NON-AGRICULTURAL
LEASE--COLORADO RIVER RESERVATION

                                                                                                                    February 1, 1964.

Memorandum

To:            Secretary of the Interior
From:        Deputy Solicitor
Subject:     Proposed lease of Colorado River Indian Reservation lands by
                 the Central California Land Development Company

    There is attached for your signature a letter to the Area Director, Phoenix, authorizing him to execute a lease on approximately 7,800 acres of land in California within the Colorado River Indian Reservation. Under the proposed lease, you, on behalf of the Colorado River Indians, are lessor, and the Central California Land Development Co., a Nevada corporation, is lessee. We recommend that you sign the letter authorizing execution of the lease.

    The leased land would be used for non-agricultural purposes including a resort development and housing. We assume that some if not all of the water for the premises would be obtained from the Colorado River. The Colorado River Indian Reservation is entitled, as of the date the Reservation was established, to a quantity of water sufficient to irrigate irrigable acreage of the reservation. Arizona v. California, 373 U.S. 546 (1963). The use of Colorado River water under the proposed lease is not, of course, for irrigation or agricultural purposes, and we understand that the particular lands involved have not been used for agriculture in the past. The question presented is whether agricultural use is the limit as well as the measure of the Reservation's Colorado River water right. We conclude that Colorado River water reserved for the Colorado River Reservation lands may be used on the Reservation lands for purposes other than irrigation and related uses.

    For many years the courts have held that in the arid west the United States impliedly reserved otherwise unappropriated water in streams crossing or bordering Indian Reservations by the establishment of the Reservations themselves. Winters v. United States, 207 U.S. 564 (1908); United States v. Walker River Irrigation District et al., 104 F. 2d 334 (9th Circ. 1939). The rationale of these decisions is that one of the principal purposes in creating Indian Reservations in arid country was to promote farming and agriculture by the Indians, and that this necessitated the reservation of the quantity of water essential for satisfying these purposes. In Arizona v. California, supra, the Supreme Court reaffirmed the doctrine.

    Since the basis of the doctrine is the necessity of water for the agricultural development of arid reservation lands, water rights so reserved have been measured by the agricultural requirements of the reserved land. The opinion in Arizona v. California, supra, held that reserved Indian water rights are "present perfected rights," within the meaning of the Boulder Canyon Project Act, 45 Stat. 1057, and that enough water was reserved when the reservations were established to satisfy the future as well as the present needs of the reservations.

    However, the court did not rule specifically on the question whether water rights for the irrigation of Indian reservation land may be used for 

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    14 Contract No. DA-95-507-eng-1423 (NEG), between the Metlakatla Indian Community of Alaska and Corps of Engineers; letter from District Counsel, U.S. Army Engineer District, Alaska, to Deputy Solicitor, Department of the Interior, dated September 4, 1962.
    15 Mr. Bert L. Libe, of Ketchikan, Alaska, wrote to Delegate Bartlett of Alaska on July 24, 1957, saying that he had "discovered a gold bearing vein on Annette Island" in 1921, that on August 24, 1921, he received a "permit to prospect and mine on the island" from the Native Council, that he discussed the possibility of a mineral lease with the General Superintendent of Indian Affairs in Alaska on October 13, 1939, but that "of course it did not materialize." There is no record of such a permit in the files of this Department. Letter from the Legislative Council to Delegate Bartlett, August 16, 1957. Early attempts to prospect and mine under the general mining laws were discouraged. In Mineral Resources of Alaska, 1913, U.S.G.S. Bill. No. 592, p. 92, it is said: "Many years ago Annette Island was given to the natives and prospecting or mining by whites forbidden. This prohibition led to considerable dissatisfaction, owing to the circulation of tales of fabulously rich mineral deposits. Before the prospectors were ordered off some work had been done at several places on the eastern side of this island, notably about 1 to 2 miles inland from the head of Crab Bay and along the western shore of Cascade Inlet."


 

1931

OPINIONS OF THE SOLICITOR

FEBRUARY 1, 1964

other purposes if the land is used for purposes other than agriculture. The court did expressly approve the findings and conclusions by the Special Master as to the reservation of Indian water rights and the quantity reserved for the five reservations involved, one of which is the Colorado River Reservation.

    In discussing the water rights to which the Indian reservation lands are entitled, the Master concluded as follows:

    "The amount of water reserved for the five Reservations, and the water rights created thereby, are measured by the water needed for agricultural, stock and related domestic purposes. The reservations of water were made for the purpose of enabling the Indians to develop a viable agricultural economy; other uses, such as those for industry, which might consume substantially more water than agricultural uses, were not contemplated at the time the Reservations were created. Indeed, the United States asks only for enough water to satisfy future agricultural and related uses. This does not necessarily mean, however, that water reserved for Indian Reservations may not be used for purposes other than agricultural and related uses. The question of change in the character of use is not before me. I hold only that the amount of water reserved, and hence the magnitude of the water rights created, is determined by agricultural and related requirements, since when the water was reserved that was the purpose of the reservation.

    "The water rights established for the benefit of the five Indian Reservations and enforced in the recommended decree are similar in many respects to the ordinary water right recognized under the law of many western states: They are of fixed magnitude and priority and are appurtenant to defined lands. They may be utilized regardless of the character of the particular user. Thus Congress has provided for the leasing of certain Reservation lands to non-Indians, *     *     * and these lessees may exercise the water rights appurtenant to the leased lands. Skeem v. United States, 273 Fed. 93, 96 (9th Cir. 1921). The measurement used in defining the magnitude of the water rights is the amount of water necessary for agricultural and related purposes because this was the initial purpose of the reservations, but the decree establishes a property right which the United States may utilize or dispose of for the benefit of the Indians as the relevant law may allow. See United States v. Powers, 305 U.S. 527 (1939)."

Special Master's Draft Report of December 5, 1960, in Arizona v. California, pp. 265-266.

    While neither the Master nor the courts held in Arizona v. California that reserved Indian water rights may be used for purposes other than agricultural development of reservation lands, both furnished a strong foundation for such a ruling by holding that these water rights are property rights which are measured by the irrigable acreage of the respective Indian reservations. Indeed, the Master's concluding observations, above quoted, impel a conclusion that the Master was strongly of the opinion that the Indians are not, in order to retain their reserved water rights, required to devote their land or other reservation property to agricultural pursuits.

    We know of no reason for holding that the Indians' water rights must be used only for agriculture any more than for holding that their lands themselves must be so used. The water right itself is but a special type of real property which is a part and parcel of the Reservation.

    Approximately 100 years has passed since the Colorado River Reservation was first established. During this time there have been marked changes all over the country in the types of uses to which land and related resources are put. Indian land and water may bring larger returns or other benefits to their owners if used for commercial or industrial purposes than if cultivated for crops. Where circumstances warrant the use of Indian lands for recreational, commercial, or industrial purposes rather than for agriculture, we believe that the reserved water rights remain available for these other purposes.

    We know of no impediment, therefore, to allowing the lessee under the proposed lease to use water available for irrigation in the commercial development of the land. The lease will provide for the installation of measuring devices and for reporting the sources and amounts of water used, as may be required by the Government to enable an accounting for Colorado River water so used.

    While the Court has yet to enter its decree in Arizona v. California, the opinion of the Court sustained the Master's holdings as to the amounts of water reserved for the Colorado River and other Indian Reservations involved. Moreover, all parties are in agreement upon provisions of a proposed decree which would carry those holdings into effect. Consequently, I see no reason to defer


 

1932

DEPARTMENT OF THE INTERIOR

FEBRUARY 1, 1964

action upon this lease until a decree is actually entered.

                                                                                                                    EDWARD WEINBERG,
                                                                                                                                        Deputy Solicitor.

ALLOTMENT OF LAND TO ALASKA NATIVES

71 I.D. 340

M-36662                                                                                                        September 21, 1964.

Alaska: Indian and Native Affairs

Opinion, M-36352, June 27, 1956, holding that the allotment right of an Alaskan native under the Alaska Allotment Act, 34 Stat. 197, prior, to the 1956 amendment, was limited to a single entry and that the allotment could not embrace a grant of incontiguous tracts of land is correct, where the proposed allotment is of tracts which are not related in any sense, or where, his allotment having once been determined, an additional grant to the same applicant is being considered.

Alaska: Indian and Native Affairs--Words and Phrases

Congress has frequently used the word "homestead" in connection with the allotment of land to Indians to indicate merely that the land allotted was to be subject to special status and the use of of the word "homestead" in the Alaska Allotment Act, 34 Stat. 197, as amended 70 Stat. 954, is not necessarily indicative of an intention to superimpose the requirements of the general homestead laws on the express requirements of the Alaska statute.

Alaska: Indian and Native Affairs--Indian Allotments on Public Domain: Generally--Statutory Construction: Generally

While both the Indian Allotment Act of 1887, 24 Stat. 388, and the Alaska Allotment Act, 34 Stat. 197, as amended, 70 Stat. 954, are representative of the method which was used to grant land to "uncivilized" persons in the late nineteenth and early twentieth centuries, the specific requirements of the numerous allotment statutes en acted during that time vary according to the particular situations which they were intended to meet and the two acts should not be read in pari materia to impose identical requirements on applicants under each statute.

Alaska: Indian and Native Affairs

The historical and legislative materials out of which the Alaska Allotment Act, 34 Stat. 197, as amended, 70 Stat. 954, emerged impel the conclusion that the Secretary is authorized to make single allotments of incontiguous tracts of land which, taken as a whole, compose the single unit which is the actual home of the applicant.

Alaskan: Indian and Native Affairs--Statutory Construction: Generally

The effect of the enactment of Departmental regulations in the 1956 amendment to the Alaska Allotment Act, 70 Stat. 954, was to make mandatory under the statute the determination of use and occupancy which, prior to the 1956 amendment had been discretionary except where the claim of a preference right was involved, but the amendment did not bind the Department to the exclusive consideration of the specific elements of proof which, though listed in the regulations, were not made a part of the amendment.

Alaska: Indian and Native Affairs

Both Frank St. Clair, 52 I.D. 597, 1929, and Frank St. Clair (On Petition), 53 I.D. 194, 1930, affirm the rule that occupancy of the land sufficient to establish a preference right under the Alaska Allotment Act, 34 Stat. 197, prior to amendment in 1956 did not need to be continuous and that residence on the land was not required to the exclusion of a home elsewhere.

Alaska: Indian and Native Affairs

The reference to residence and cultivation in Herbert Hilscher, 67 I.D. 410, 1960, if that reference was intended to imply that other instances of occupancy expended by the native according to his natural culture and environment would be inadequate to show substantial actual possession and use of the land, must be restricted to the interpretation of existing regulations and, in view of the history of the Alaska Allotment Act, 34 Stat. 197, as amended, 70 Stat. 954, there is no justification for treating the reference to residence and cultivation as disclosing a limitation on the authority of the Secretary which would prevent him from promulgating regulations that evidence a broader policy.

Alaska: Indian and Native Affairs

The Secretary of the Interior is authorized by the Alaska Allotment Act, 34 Stat. 197, as amended,


 

1933

OPINIONS OF THE SOLICITOR

SEPTEMBER 21, 1964

70 Stat. 954, to promulgate regulations which provide for a determination of "use and occupancy" of the land according to the native's mode of life and the climate and character of the land; taking these factors into consideration, such use and occupancy requires a showing of substantial actual possession and use of the land, at least potentially exclusive of others which is substantially continuous for the period required.

Alaska: Indian and Native Affairs

The Alaska Allotment Act, 34 Stat. 197, as amended, 70 Stat. 954, authorizes the Secretary of the Interior, "in his discretion" to promulgate a rule that allotments will not be made in units smaller than forty acres in size and conformed to the regular rectangular survey pattern and to prescribe by regulation in advance that a determination of the applicant's use and occupancy of a significant portion of any conforming forty acre tract shall normally entitle the applicant to an allotment of the full tract where no conflicting claim is involved.

Memorandum

To:            Assistant Secretary--Public Land Management
From:        Solicitor
Subject:     Allotment of Land to Alaska Natives under the 1906 Act as Amended

    This memorandum is in response to your request for a determination of the authority of the Department of the Interior to issue certain regulations governing the allotment of lands to natives of Alaska under the Act of May 17, 1906, as amended by the Act of August 2, 1956 (hereinafter referred to as the Alaska Allotment Act).1

    Present Departmental regulations state that an applicant's proof of "substantially continuous use and occupancy," as required by the statute for an allotment, should show, among other indicia, residence, cultivation and improvements on the land in question "and the use, if any, to which the land has been put for fishing or trapping."2 An allotment of incontiguous tracts of land is expressly prohibited by the regulations. 3

    The proposed changes in the existing Departmental regulations would expressly permit consideration of (1) native custom and mode of living; (2) climate and character of the land applied for and; (3) customary seasonability of occupancy in determining whether an applicant for an allotment has shown substantially continuous use and occupancy of the land for a period of five years. The proposed regulations would also allow an applicant for an allotment to obtain in a single allotment more than one tract of land which would be no smaller than forty acres in size and conformed to the regular rectangular survey pattern.

    The proposed regulations represent a change of existing policy concerning the allotment of land to Alaska natives. In addition to occupancy according to the standards of the white settler, the proposed regulations recognize occupancy according to the standards of the native in his present culture and environment. Similarly, the allotment of incontiguous tracts of land to a native applicant would recognize the fact that several different locations, taken as a whole, may compose the single unit which is his actual home. Today, the home of an Alaska native may include a fishing site, a hunting and trapping site, reindeer headquarters and corrals, and tracts regularly used for other purposes.4

    The Alaska Allotment Act provides in part that:

The Secretary of the Interior is authorized and empowered in his discretion and under such rules as he may prescribe, to allot not to exceed 160 acres of vacant, unappropriated and unreserved non-mineral lands in Alaska, or, subject to the provisions of the act of March 8, 1922 (42 Stat. 4 15; 48 U.S.C. 376-377), vacant, unappropriated, and unreserved land in Alaska, that may be valuable for coal, oil or gas deposits, to any Indian, Aleut or Eskimo of full or mixed blood, who resides in and is a native of Alaska, and who is the head of a family, or is twenty-one years of age; and the land so allotted shall be deemed the homestead of the allottee and his heirs in perpetuity, shall be inalienable and non-taxable until otherwise provided by Congress . . . 5

    The 1906 act gave a preference in the case of occupancy. It provided that:

Any person qualified for an allotment as afore said shall have the preference right to secure by allotment the non-mineral land occupied by him not exceeding one hundred and sixty acres.

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    1 34 Stat. 197, as amended 70 Stat. 954; 48 U.S.C. 157, 357a, 357b (1958).
    2 43 CFR 67.7.
    3 43 CFR 67.4.
    4 Dep't Interior, Report to the Secretary of the Interior by the Task Force on Alaska Native Affairs, 59 (1962).
    5 34 Stat. 197, as amended 70 Stat. 954; 48 U.S.C. 357, 357a, 357b (1958).


 

1934

DEPARTMENT OF THE INTERIOR

SEPTEMBER 21, 1964

    By the 1956 amendment, occupancy was made a prerequisite for all allotments under the act in connection with an amendment which permitted natives to sell the land allotted to them with the approval of the Secretary. As to occupancy, the 1956 amendment stipulated that:

No allotment shall be made to any person under this act until said person has made proof satisfactory to the Secretary of the Interior of substantially continuous use and occupancy of the land for a period of five years.6

    On its face the Alaska Allotment Act vests authority in the Secretary to make allotments "in his discretion and under such rules as he may prescribe." This broad delegation suggests that Congress intended that the primary responsibility for developing a program of allotments to Alaska natives within the specific limitations of the statute should fall to the Secretary. Although a number of specific limitations are set forth in the statute, there is no language which expressly prohibits the Secretary from giving consideration to the culture and environment of Alaska natives in setting a standard of use and occupancy under the statute. Similarly there is no express prohibition against granting incontiguous forty acre tracts of land in a single allotment so long as the total area of the allotment does not exceed one hundred and sixty acres. These limitations, if they exist, must be inferred from the language of the statute by reason of the relevant circumstances which preceded its enactment.

I

Allotment of Incontiguous Tracts

    In 1956, the Associate Solicitor for Public Lands held that the allotment right of an Alaska native under the Alaska Allotment Act was limited to a single entry and that the allotment could not embrace a grant of incontiguous tracts of land.7 In reaching this conclusion the opinion relies on three basic points. First, that the Alaska Allotment Act provides that land allotted, "shall be deemed the homestead of the allottee," and that homestead laws applicable to white settlers in Alaska in 1906 required the land on which a homestead entry was made to be located "in a body in conformity to the legal subdivisions of the public lands." Second, that a similar conclusion had been reached under the Indian Allotment Act of 1887 (applicable to Indians within the territory now occupied by the contiguous forty-eight States) with respect to the allotment of incontiguous tracts of public domain land and that "nothing in the 1906 Act appears to require a different interpretation." Third, that the legislative history of the Alaska Allotment Act appeared to contemplate that Indians would be allotted only one entry and that "Congress apparently sought to grant a homestead in its ordinary meaning as a single tract and not a series of disconnected tracts."

    Where the proposed allotment is of tracts which are not related in any sense, or where, his allotment having once been determined, an additional grant to the same applicant is being considered, there can be no quarrel with the 1956 memorandum. However, a different case is presented by the single allotment of several tracts of land which, although not physically connected, are related to each other by the culture and environment of the native applicant. With respect to this situation, the arguments of the 1956 memorandum are not, in my opinion, germane.

    The use of the word "homestead" in the Alaska statute is not necessarily indicative of an intention to superimpose the requirements of the general homestead laws on the express requirements of the Alaska Allotment Act. Congress has frequently used the word "homestead" in connection with the allotment of land to Indians to indicate merely that the land allotted was to be subject to special status.8

    The case of U.S. v. Thurston County Nebraska,9 concerned the exemption from local taxation of homesteads acquired under the act of June 20, 1936 as amended by the Act of May 19, 1937.10 Among other points, the defendant contended that many of the tracts involved in the litigation were taxable by the county in which they were located because they could not be regarded as "homesteads" by reason of various alleged defects. Although the express requirements of the statute had been met in designating the tracts, it was stipulated that in one instance the exemption was claimed for separate noncontiguous tracts and that some of the claimants did not reside on the land involved. Other defects urged were non-residency on some tracts, more than one claimant for some tracts, and that some of the tracts were unimproved.

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    6 70 Stat. 954; 48 U.S.C. 357b (1958).
    7 Solicitor's Opinion, M-36352 (June 27, 1956).
    8 For example, Indian allotment acts passed in 1898, 1906, 1919, and 1920 provided that homestead allotments should be inalienable and non-taxable. 30 Stat. 495, 505-513 (1898); 34 Stat. 539 (1906); 41 Stat. 16 (1919); 41 Stat. 751, 756 (1920).
    9 54 F. Supp. 201 (D.C. Neb. 1944). aff'd 149 F. 2d 485 (8th Cir. 1945).
    10 49 Stat. 1542, as amended, 50 Stat. 188; 25 U.S.C. 412a (1958).


 

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SEPTEMBER 21, 1964

    The defendant argued that, in addition to express requirements for the "homesteads" specified in the Act, there were certain other characteristics, such as contiguity, necessarily required by the term "homestead." In disposing of this contention the court stated:

    Homesteads, as they are understood in our modern American law, were unknown to the common law. They are creatures of statute and of the statutes of the several governmental entities creating them. As such, subject only to controlling constitutional limitations, they may be identified and defined as the legislature may determine. . . . Congress may, for its purpose, give the term its own definition, and it has done that in this instance. [Listing the express requirements of the amendment.] 11

    Evidence that Congress, at the turn of the century, did not view the use of the word "homestead" as incompatible with allotment of incontiguous tracts appears in an Indian allotment statute passed in 1904. The Act of April 21, 1904 provided, in part, that certain land should be reserved for the use of the Turtle Mountain Chippewas and that,

. . . It is agreed that the United States shall, as soon as it is convenient, cause the reserved land to be surveyed as public lands are surveyed, for the purpose of enabling such Indians as desire to take homesteads, and the selection shall be made so as to include in each case, as far as possible, the residence and improvements of the Indian making selections, giving to each an equitable proportion of natural advantages, and when it is not practicable to so apportion the entire homestead of land in one body it may be set apart in separate tracts, not less than 40 acres in one tract, unless the same shall abut a lake; but all assignments of land in severalty are to conform to the Government's survey, . . . [Emphasis supplied] 12

    As its second point, the 1956 opinion relies on an analogy drawn between the Indian Allotment Act of 1887 and the Alaska Allotment Act.

    However, the conclusion that the Indian in the continental United States was restricted to allotments of contiguous tracts of land under the Indian Allotment of 1887,13 turned on the construction given to an express condition in the statute that, an Indian was entitled to an allotment of land on which he had made "settlement." 13a By way of contrast, "settlement" is not specified as a requirement of the Alaska Allotment Act.

    There is no reason why the two acts should be read in pari materia to impose identical requirements on applicants under each statute. While both are representative of the method which was used to grant lands to "uncivilized" persons in the late nineteenth and early twentieth centuries, the specific requirements of the numerous allotment statutes enacted during that time vary according to the particular situations which they were intended to meet.14

____________________

    11 54 F. Supp. 201, 210 (D.C. Neb. 1944), aff'd 149 F. 2d 485 (8th Cir. 1945).
    12 33 Stat. 224 (1904). In addition to the Turtle Mountain Chippewa statute, several other statutes enacted during the first decade of the twentieth century suggest a single allotment of incontiguous tracts of land. The Act of March 1, 1907, provided that members of the Blackfeet Tribe were to be allotted 40 acres of irrigable land and 280 acres of additional land valuable only for grazing. (34 Stat. 1041-42 1907). The Act of June 28, 1906, provided that all lands belonging to the Osage tribes was to be divided among the members of the tribe on the basis of three rounds in which each member was to select 160 acres of land in each round. (34 Stat. 539 1906). A proviso adds "that all selections herein provided for shall conform to the existing public surveys in tracts of not less than forty acres, or a legal subdivision of a less amount, designated a "lot." The remainder of the land was to be assigned "as equally as practicable" to each member.
    13 Where any Indian not residing upon a reservation . . . shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated, he or she shall be entitled . . . to have the same allotted to him or her . . . [Emphasis added] 24 Stat. 388 (1887).
    13a . . . it must be remembered that settlement, by the very terms of the act, is a prerequisite to allotment under section 4 of the act of February 8, 1887. It is held that said act is, in its essential elements, a settlement law; and that "to make such act effective to accomplish the purpose in view, it was doubtless intended it should be administered, so far as practicable, like any other law based upon settlement." Indian Lands--Allotments (8 L.D. 647). Where the evident purpose of the act is considered, the term "settlement" therein, must inevitably be construed to mean practically the same as it does under the homestead law, where the essential requirement is actual inhabitancy of the land to the exclusion of a home elsewhere. (Instructions Relative to Indian Allotments, 32 L.D. 17. 18-19 (1903) ).
    14 For example, according to one source, between 1900 and 1910 over fifty allotment acts were enacted by Congress for the benefit of Indians in the United States. Kinney, A Continent Lost--A Civilization Won 245-46 n. 47 (1937).
    Some statutes merely directed the Secretary of the Interior to make allotments in severalty to Indians in particular tribes, 32 Stat. 744 (1903), 35 Stat. 448 (1908). Others set out a specific limitation on the amount of land to be allotted, 31 Stat. 766 (1901), 32 Stat. 795 (1903), 33 Stat. 224 (1904), 33 Stat. 22.5 (1994), sometimes dependent on the kind of land involved in each allotment, 36 Stat. 863 (1910). Qualified recipients were sometimes the heads of families, 32 Stat. 263 (1902), sometimes every man, woman and child, 34 Stat. 335 (1906), and, in one statute, an individual Indian. 36 Stat. 533, 534 (1910). Some of the statutes provided for selection of the land by the Indian, 31 Stat. 766 (1901), 32 Stat. 795 (1903). Others provided that, if no selection was made by the Indian, a mandatory assignment was to be made by the Secretary. 31 Stat. 672, 676-80 (1900).


 

1936

DEPARTMENT OF THE INTERIOR

SEPTEMBER 21, 1964

    A thorough analysis of the policy behind the use of the method of allotment for distribution of land to Indians in the United States demonstrates that this policy had no necessary or automatic application to the allotment of land to natives of Alaska.

    A basic consideration underlying the allocation of land to Indians in the United States was the belief that private, individual ownership was an instrument of civilization.15 The desire of white citizens in the United States to settle and use the land held by the Indian tribes also played a great part in the adoption of the Indian allotment system in the United States.16 An accurate, if harsh, measure of these forces was presented in testimony before Congress in 1934 by Professor D. S. Otis, of Columbia University:

In conclusion, let it be said that allotment was first of all a method of destroying the reservation and opening up Indian lands; it was secondly a method of bringing security and civilization to the Indian. Philanthropists and landseekers alike agreed on the first purpose, while the philanthropists were alone in espousing the second. Considering the power of these landseeking interests and their support by the friends of the Indian, one finds inescapable the conclusion that the allotment system was established as a humane and progressive method of making way for "westward movement."17

    It cannot be assumed that these same forces combined in the same way in Alaska at the turn of the century to produce an Alaska Allotment Act which should be interpreted by analogy with the Indian Allotment Act of 1887.

    First, there were, at that time, no large reservations which, with definite boundaries, blocked the development of the railroads.18 Second, the lands utilized by the natives were not in great demand by white settlers as agricultural lands.19 Third,

____________________

    15 In 1876, Commissioner of Indian Affairs Smith wrote:
    It is doubtful whether any high degree of civilization is possible without individual ownership of land. . . . No general law exists which provides that Indians shall select allotments in severalty, and it seems to me a matter of great moment that provision should be made not only for permitting, but requiring, the head of each Indian family, to accept the allotment of a reasonable amount of land, to be the property of himself and his lawful heirs, in lieu of any interest in any common tribal possession. Such allotments should be inalienable for at least twenty, perhaps fifty years, and if situated in a permanent Indian reservation, should be transferable only among Indians. (Dep't Interior, Report of the Commissioner of Indian Affairs in (1876) ).
         In 1877 the agent for the Yankton Sioux wrote:
    As long as Indians live in villages they will retain many of their old and injurious habits. Frequent feasts, community in food, heathen ceremonies, and dances, constant visiting these will continue as long as the people live together in close neighborhoods and villages. . . . I trust that before another year is ended, they will generally be located upon individual lands of farms. From that date will begin their real and permanent progress. (Dep't Interior, Report of the Commissioner of Indian Affairs 75-76 (1877) ).
        In 1882, another agent wrote:
    The allotment of land in severalty will go a long way, in my judgment, toward making these more advanced tribes still nearer the happy goal. I do not think that the results of labor ought to be evenly distributed irrespective of the merits of individuals, for that would discourage effort; but under the present communistic state of affairs, such would appear to be the result of the labor of many. (Dep't Interior, Report of the Commissioner of Indian Affairs 86 (1882) ).
    16 In 1880, Secretary of the Interior Schurz wrote:
    [Allotment] will eventually open to settlement by white men the large tracts of land now belonging to the reservations, but not used by the Indians. It will thus put the relations between the Indians and their white neighbors in the western country upon a new basis, by gradually doing away with the system of large reservations, which has so frequently provoked those encroachments which in the past have led to so much cruel injustice and so many disastrous collisions. (Dep't Interior, Report of the Secretary of the Interior 12 (1880) ).
         Again in 1881, Secretary Schurz wrote:
    It must be kept in mind that the settlement of the Indians in severalty is one of these things for which the Indians and the Government are not always permitted to choose their own time. . . . The question is, whether the Indians are to be exposed to the danger of hostile collusions, and of being robbed of their lands in consequence, or whether they are to be induced by proper and fair means to sell that which, as long as they keep it, is of no advantage to anybody, but which, as soon as they part with it for a just compensation, will be a great advantage to themselves and their white neighbors alike. (The Speeches, Correspondence, and Political Papers of Carl Schurz 126 (Bancroft ed. 1913) ).
         And, still more bluntly,
    There is nothing more dangerous to an Indian reservation than a rich mine. But the repeated invasions of the Indian Territory, as well as many other similar occurrences, have shown clearly enough that the attraction of good agricultural lands is apt to have the same effect, especially when great railroad enterprises are pushing in the same direction. (I.D. at 142).
    17 Hearing on H.R. 7902 before the House Committee on Indian Affairs, 73d Cong. 2d Sess. 439-40 (1934).
    18 With the exception of the Act of March 3, 1891, (26 Stat., 1095, 1101), which set apart the Annette Islands as a reservation for the use of the Metlakatlans, a band of British Columbia natives who immigrated into Alaska in a body, and also except the authorization given to the Secretary of the Interior to make reservations for landing places for the canoes and boats of the natives, Congress has not created or directly authorized the creation of reservations of any other character for them. (Solicitor's Opinion. 49 L.D. 592. 594 (1923) ).
    19 Witten, Report of Alaska, 5-16 (1901).


 

1937

OPINIONS OF THE SOLICITOR

SEPTEMBER 21, 1964

perhaps as a consequence of the other two factors, there was relatively little concern in the nineteenth century with encouraging the Alaska native to adopt a civilized way of life.20

    Section 8 of the Act of May 17, 1884, by which Congress first provided a civil government for the District of Alaska, stipulated,

That the Indians or other persons in said distrust shall not be disturbed in the possession of any lands actually in their use and occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress.21

    In reporting on the bill the Senate Committee noted the state of flux which surrounded land development in Alaska and recommended that the general land laws not be made applicable to the Territory of Alaska. In support of this decision the Committee stated:

Another reason against present action upon this subject is found in the fact that the rights of the Indians to the land, or some necessary part of it, have not yet been the subject of negotiation or inquiry. It would be obviously unjust to throw the whole district open to settlement under our land laws until we are advised what just claim the Indians may have upon the land, or, if such a claim is not allowed, upon the beneficence of the Government.22

    In 1891 Congress extended the townsite laws to the Territory of Alaska while continuing to protect, with language similar to that of the 1884 act, the lands used and occupied by Alaska natives.23 This same language was repeated in 1900 in an act making further provision for the civil government of Alaska.24

    Departmental decisions prior to 1900 had maintained that the land preserved for the natives was not restricted to that on which they actually resided. Access to water supplies, river harbors and the use of trails was also protected.25

    In 1902, the breadth of the prohibition received judicial recognition from the Circuit Court of Appeals, Ninth Circuit:

The prohibition contained in the Act of 1884 against the disturbance of the use or possession of any Indian or other person of any land in Alaska claimed by them is sufficiently general and comprehensive to include tide lands as well as lands above highwater mark. Nor is it surprising that Congress, in first dealing with the then sparsely settled country, was disposed to protect its few inhabitants in the possession of lands, of whatever character, by means of which they eked out their hard and precarious existence. The fact that at that time the Indians and other occupants of the country largely made their living by fishing was no doubt well known to the legislative branch of the government, as well as the fact that that business, if conducted on any substantial scale, necessitated the use of parts of the tide flats in the putting out and hauling in of the necessary seines. Congress saw proper to protect by its Act of 1884 the possession and use by these Indians and other persons of any and all lands in Alaska against intrusion by third persons, and so far has never deemed it wise to otherwise provide.26

    In 1904, the District Count in Alaska also stressed the importance of interpreting the 1884 statute according to the natives' normal way of life.

It is well known that the native Indians of this country by their particular habits live in villages here and there, in some of which they remain most of the year and in others

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    20 Article III of the Treaty under which Alaska was ceded to the United States [in 1867] 15 Stat., 539, conferred citizenship on all the inhabitants of the ceded territory "with the exception of the uncivilized tribes" therein, and declared that they "will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to the aboriginal tribes of that country."
    In the beginning, and for a long time after the cession of this Territory Congress took no particular notice of these natives; has never undertaken to hamper their individual movements; confine them to a locality or reservation, or to place them under the immediate control of its officers, as has been the case with the American Indians; and no special provision was made for their support and education until comparatively recently. And in the earlier days it was repeatedly held by the courts and the Attorney General that these natives did not bear the same relation to our Government, in many respects, that was borne by the American Indians. [Citation omitted] (Solicitor's Opinion, 49 L.D. 592, 593-94 (1923) ).
    21 23 Stat. 24, 26 (1884).
    22 S. Rep. No. 3, 48th Cong. 2d Sess. 2 (1883).
    23 26 Stat. 1095, 1110 (1891).
    24 31 Stat. 321, 330 (1900).
    25 Fort Alexander Fishing Station, 23 L.D. 335, 337 (1896) (only available water supply); Benjamin Arnold, 24 L.D. 312, 313-14 (1897) (water supply necessary for domestic use and consumption); Louis Greenbaum, 26 L.D. 512, 513-15 (1897) (free and unrestricted access to a river harbor by means of a trail or narrow roadway which led from the village); Point Roberts Canning Co., 26 L.D. 517, 519 (1808) (fresh water privileges).
    26 Heckman v. Sutler, 119 Fed. 83, 88-89 (8th Cir. 1902).


 

1938

DEPARTMENT OF THE INTERIOR

SEPTEMBER 21, 1964

during certain summer months; that while their habits are somewhat migratory, they have well-settled places of abode, and these usually are not abandoned, though they may vacate them for a few months at a time. The history of the habits of these people is well understood.27

    As a consequence of the legislation and decisions noted above, the position of the Alaska native with regard to his use and occupancy of the land may be thus summarized: subject to the further action of Congress, the Alaska native was protected in his possession of the land within the territory. The courts and the Department of the Interior had placed a broad construction on these terms. Protection of "occupancy" in the sense that it was made applicable to uncivilized native groups included, not only village lands, but, as well, the lands utilized for fishing, hunting, and like purposes.

    It is this special and particular context of philosophy, policy and law, rather than that reflected in the enactment of allotment statutes applicable to the United States, which should govern the interpretation of the Alaskan statute.

    The third point made in the 1956 opinion of the Associate Solicitor is that the legislative history of the Alaska Allotment Act demonstrates an intent to confine allotments of land to single tracts of land. The opinion relies solely on language from the report of the House Committee in favor of the proposed legislation.

The necessity for this legislation arises from the fact that Indians in Alaska are not confined to reservations as they are in the several States and Territories of the United States, but they live in villages and small settlements along the streams where they have their little homes upon the land to which they have no title, nor can they obtain a title under existing laws. It does not signify that because an Alaskan Indian has lived for many years in the same hut and reared a family there that he is to continue in peaceable possession of what he has always regarded his home. Some one who regards that particular spot as a desirable location for a home can file upon it for a homestead, and the Indian or Eskimo, as the case may be, is forced to move and give way to his white brother.25

    While this report indicated a concern with the protection of the homes of the Alaska Indians in the sense of protecting the particular houses in which they live, it does not follow from this conclusion that Congress chose a means to remedy this situation which limited the Secretary to the allotment of land on which the applicant had constructed his permanent house. By its terms, the 1906 act was clearly broader than this in scope. Not until 1956 was "occupancy" of any kind made a condition of the statute for the granting of an allotment by the Secretary.

    In addition, a full exploration of the legislative history of the Alaska Allotment Act discloses that the Committee report represented only a fragment of the material which was before Congress when it enacted the Alaska statute. The scope of this additional material suggests that the Committee report should be understood to have provided merely a dramatic example of the evil which the legislation was intended to cure, rather than a definitive and limiting explanation of its purpose.

    In January of 1905 President Roosevelt transmitted to the Senate and the House of Representatives a report on the conditions and needs of the natives of Alaska made by a retired Navy Lieutenant, G. T. Emmons, and requested legislation along the lines advocated in the report.29 The report was referred to the Senate Committee on Public Lands and, several months later, Senator Nelson, Chairman of the Committee, submitted the report to the Department of the Interior along with a request for a "code of laws" to include, particularly, a provision permitting Alaskan natives to secure allotments or title to the small tracts of land which they occupied and needed.30

    In the Department, proposed legislation and a report to the Secretary of the Interior was prepared by the General Land Office and transmitted to the Committee in January, 1906.31 The proposed legislation was apparently designed to extend to the natives of Alaska the rights, privileges and benefits conferred by the public land laws upon citizens of the United States,32 rather than to provide the Alaska natives with a system of allotment, but the material submitted bore directly on both forms of land disposition.

    The basic point made by the General Land Office was that the Alaska native's right to ac-

____________________

    27 Johnson v. Pacific Coast S.S. Co., 2 Alaska 224 (1904)
    28 H.R. Rep. No. 3295, 59th Cong. 1st Sess. (1906).
    29 S. Doc. No. 106, 58th Cong. 3d Sess. (1905).
    30 Letter from Senator Nelson to Secretary of the Interior, quoted in S. Doc. No. 101, 59th Cong. 1st Sess. (1906).
    31 S. Doc. No. 101, 59th Cong. 1st Sess. (1906).
    32 A copy of the proposed bill is not available. However, the letter which transmitted the proposed bill from the Department of the Interior to Senator Nelson, refers to the bill as "extending to the natives of Alaska the rights, privileges, and benefits conferred by the public land laws upon citizens of the United States". S. Doc. No. 101, 59th Cong. 1st Sess. (1906).


 

1939

OPINIONS OF THE SOLICITOR

SEPTEMBER 21, 1964

quire and hold property was severely and inequitably limited. Except for qualification under the townsite law, there was no means by which he could acquire title to land because he was not eligible for citizenship under existing law and was not an "Indian" in the sense required by the Indian Allotment Act of 1887. His property right was, except for the townsite law, limited to undisturbed possession.

    In addition to referring to the Emmons report, the General Land Office included a report on the condition of the Alaska natives by J. W. Witten, a law clerk in the General Land Office who had been detailed on a tour of inspection in Alaska in 1903.33 The Witten report was transmitted to Congress as a part of the Departmental response to Senator Nelson. These reports apparently formed the basic core of information before Chairman Nelson and the Senate Committee at the time that the Senator introduced S. 5537, the Alaska Allotment Act, which was amended in the Senate Committee, passed as amended by the Senate, and enacted into law four months after the original bill had been submitted by the General Land Office.

    On examination of the Witten and Emmons reports three points are clear. First, it was recognized by both reports that the condition of Alaska natives and Indians differed greatly according to their cultural group and the area of Alaska in which they lived. The ability of the natives to adapt to the new civilization ranged from that of the Thlingits, Haidas and Tsimsheans of south eastern Alaska who were, according to Emmons, "an independent, self-supporting population, fully capable of rendering such labor as the conditions of the country demanded," 34 to that of the Copper River Indians who were scattered, disease-ridden and near starvation as a consequence of the invasion of the new civilization.35

    Second, it was recognized by both reports that many of the Indians and natives lived semi-nomadic lives or had more than one homesite which they considered their own. To the north of Bristol Bay, Emmons reported that the natives "lived in small communities at many points, and might be said to be semi-nomadic, as they have to change their homes to keep pace with the movements of their food supply."36 Speaking of other groups of natives, Witten stated that:

    They all live in villages along the rivers or coasts, usually each home fronting upon the water to afford convenient canoe landings. Many of them also have additional homes at their fishing and hunting grounds, to which they move their families during the hunting and fishing seasons. A native village may have several hundred inhabitants at Christmas and be entirely deserted in May. When the fishing season arrives they lock their permanent homes and are off for the temporary ones. It is curious but not uncommon to see these entirely deserted villages, and so little do they fear theft that nearly all their household goods are left behind when they go on these trips.37

    Speaking of the Metlakatla, Witten continued:

    It is the custom of these people--in fact, of all native Alaskans, as we have seen--to lock up their winter or permanent homes, and go abroad with their families to their fishing grounds, or to any other locality in which they may be employed, for the summer.38

    Third, both reports indicated expressly that there was no single plan for giving land to the Alaska natives which would provide a satisfactory means of meeting the differing needs of each group. The Emmons report opened with the point that:

. . . the native people of Alaska, comprising four ethnic stocks, living under varied conditions of country, climate, pursuits, and food supply, differ essentially from one another, and consequently demand somewhat different treatment, according to their several needs . . .39

    The Witten report included a number of plans put forward by notable residents of Alaska for the disposition of land to Alaskan natives. The Hon. M. C. Brown, Judge of the first division of the United States District Court of Alaska commented:

    In my opinion extending the rights now enjoyed by white citizens, under the public land laws, would not be the best policy. The experience of Father Duncan upon Metlakatla Island seems to indicate that the only way of benefiting these Indians is to sever them as much as possible from connection with the white population of the country, and to set aside certain portions of the country, or

_____________________

    33 Witten. Report of Alaska (1903).
    34 S. Doc. No. 106, 58th Cong. 3d Sess. (1906).
    35 Id. at 9.
    36 Id. at 7.
    37 Witten, Report of Alaska 24-25 (1903).
    38 Id. at 40.
    39 S. Doc. No. 106, 58th Cong. 3d Sess. 2 (1906).


 

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certain lands or islands, where they may take their lands in severalty and have absolute ownership of the same. . . . The Indians of Alaska are prone to live in villages, and while they can go out from these villages and hunt and fish during certain seasons of the year they return to them again for their recreation and such comforts of home as they enjoy or appreciate. For this reason I would suggest that lands be set apart to them where they may have their villages and homes with absolute property rights therein; where they may take such homesteads and land outside of their village as they may desire, having them accurately surveyed and set apart in severalty to each of them or each of the males.40

    Reverend Corser, a missionary at Wrangell, commented:

    It is the desire of each family to have a home of their own, but they know little of the Anglo-Saxon's idea of home life. Most of them have fishing and hunting houses where they pass about three months of the year. . . . The granting of 320 acres of land to each Indian, not to be sold by them under ten years, would help them. Their rights on their hunting and fishing ground should be protected. They should be given the same rights to locate land and mineral claims that are now enjoyed by the whites.41

    Read in the context of these reports it is apparent that the legislation proposed by Senator Nelson and examined by his committee was designed to authorize the Secretary to develop a program for the allotment of land to the natives of Alaska according to the particular needs of each group.

    The express limitations of the statute fall into two classes: first, the kind and amount of land to be allotted, and, second, the class of recipients who may become eligible to receive it. No limitation, except for the protection of the preference right, relates to the utilization of the land by the applicant as a precondition to the allotment.

    Essentially, a prohibition against the allotment of incontiguous tracts, if it were read into the statute through an examination of the legislative history, would be based on the assumption that applicants were required to build their "little homes" on the land for which they applied as a precondition to the allotment. This is a precondition of land utilization by the applicant which is entirely foreign to the express limitations in the statute and is not warranted by the legislative history. Rather, the historical and legislative materials out of which the statute emerged impel the conclusion that the Secretary is authorized to make single allotments of incontiguous tracts of land which taken as a whole, compose the single unit which is the actual home of the applicant.

II

Native Custom, Climate and Character of the Land,
and Seasonability of Occupancy

    Under the 1906 Act, consideration of the meaning of the term "occupied" was limited to situations where an Alaskan native claimed a preference right to an allotment of land "occupied" by him. It can hardly be disputed that the Secretary was authorized to consider native custom and mode of living, climate and character of the land applied for and customary seasonability of occupancy in allotting land under this act where no claim of a preference right was involved. The statute is silent with respect to any precondition of land use. The Secretary was expressly authorized to allot lands "under such rules as he may prescribe." The many specific plans before Congress as part of the legislative history of the act show that this was no empty delegation, but an authorization to develop and implement a program for the allotment of land to Alaskan natives that would meet the multiple needs of that group.

    The limitation on this authority occurred, if at all, as a result of the 1956 amendment to the act which expressly required the applicant to make proof satisfactory to the Secretary of the Interior of substantially continuous use and occupancy of the land for a period of five years in order to obtain an allotment. A primary purpose of the 1956 amendment was to permit the allottees to alienate their lands.42 To prevent natives from obtaining allotments for the purpose of selling the allotted land, Congress enacted into law "the substance of the Department's present regulations on the subject," of use and occupancy.43 In addition to other portions of the regulations relating to the allotment of lands in national forests, this legislative enactment included the first sentence of that portion of the then existing regulations which started that:

    An allotment application will not be approved until the applicant has made satisfac-

____________________

    40 Witten, Report of Alaska 46-47 (1903) .
    41 Id. at 49.
    42 S. Rep. No. 2693, 84th Cong. 2d Sess. 1, 4 (1956).
    43 H.R. Rep. No. 2534, 84th Cong. 2d Sess. 4 (1956).

 

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tory proof of five years' use and occupancy of the land as an allotment. Such proof must be made in triplicate, corroborated by the statements of two persons having knowledge of the facts, and it should be filed in the land office. It must be signed by the applicant but need not be sworn to. The showing of 5 years' use and occupancy may be submitted with the application for allotment if the applicant has then used or occupied the land for 5 years, or at any time after the filing of the application when the required showing can be made. The proof should give the name of the applicant, identify the application on which it is based, and approximately describe the land involved. It should show the periods each year applicant has resided on the land; the amount of the land cultivated each year to garden or other crops; the amount of crops harvested each year; the number and kinds of domestic animal's kept on the land by the applicant and the years they were kept there; the character and value of the improvements made by the applicant and when they were made, and the use if any to which the land has been put for fishing or trapping.44

    To the first sentence of this section Congress added the modification that the use and occupancy should be "substantially continuous." The letter of transmittal from the Assistant Secretary of the Interior suggests this modification with the comment that: "The 5-year occupancy provision should indicate that the occupancy must be substantially continuous and does not include only intermittent use."45 In addition, the term "satisfactory proof" in the regulations was changed to the term "proof satisfactory to the Secretary" in the amendment.

    The effect of this enactment of Departmental regulations was to make mandatory under the statute the determination of use and occupancy which, prior to the 1956 amendment, had been discretionary under the statute except where the claim of a preference right was involved. The amendment did not bind the Department to the exclusive consideration of the specific elements of proof which were listed in the current regulation but which were not made a part of the amendment. Not only did the amendment provide that proof should be satisfactory to the Secretary, but the Secretary retained his basic responsibility under the statute for developing and implementing a program for the allotment of land to the qualified applicant.

    A determination of use and occupancy which is based on the applicant's reasonable and substantially continuous use of the land for which he applies, consistent with his mode of life and the character of the land and climate furthers the basic purpose of the 1906 act. At the same time, this interpretation affords the protection against speculative attempts to obtain allotments of land for the purpose of sale which was the reason for the insertion of the language in the 1956 amendment.

    Previous Departmental decisions support an interpretation of use and occupancy which permits the Secretary to consider the applicant's mode of life and the character of the land and climate while setting out other limitations on the meaning of this term which are applicable to the 1956 amendment.

    Historically, the phrase "use and occupancy" has its roots in the recurring reservation of lands in the "use and occupation" of the Alaska natives for their peaceful possession under the various "civil government" acts, supra. Early Departmental and judicial decisions, supra, construed the phrase broadly to protect the natives in their existing way of life.

    In Frank St. Clair46 and Frank St. Clair (on petition),47 decided in 1929 and 1930, the Department made its first formal determination of the meaning of "occupancy" as used in the Alaska Allotment Act. The St. Clair cases involved an Alaska Indian who made application for a one hundred and sixty acre allotment, claiming that he had established a preference right to land which had subsequently been withdrawn as part of a national forest. An inspection of the land showed that the Indian had used it as a home site and as a base for fishing operations at certain times during the year. The General Land Office recommended approval of the allotment but sought to restrict it to an area of 9.3 acres because this amount appeared sufficient for the use to which the applicant intended to put the land.

    On appeal, the Department first approved the full one-hundred and sixty acres and then, in a second opinion, Frank St. Clair (on petition), ruled that the smaller allotment was sufficient where the land was to be used solely for fishing purposes. Both opinions affirmed the rule that occupancy of the land need not be continuous and that residence on the land was not required to the exclusion of a home elsewhere.

____________________

    44 19 Fed. Reg. 8860 (1954) (superseded December 6, 1958) ).
    45 H.R. Rep. No. 2534, 84 Cong. 2d Sess. 5 (1956).
    46 52 L.D. 597 (1929).
    47 53 I.D. 194 (1930).


 

1942

DEPARTMENT OF THE INTERIOR

SEPTEMBER 21, 1964

    The first opinion declared its holding in these terms48 and the second opinion noted specifically that the applicant had used the land exclusively for fishing purposes at certain times during the year and that none of the land had been cultivated.49

    The first of the St. Clair opinions also drew attention to the permissibility of interpreting "occupancy" under the 1906 act according to the culture and environment of the native applicant by referring to an analogous instance of interpretation under the Indian Allotment Act of 1887.50 Although the requirement of "settlement" under that act differed on the side of strictness from the requirement of "occupancy" under the Alaska Allotment Act, early departmental regulations, quoted in the St. Clair opinion, demonstrated the possibility of this interpretation:

The nature, character, and extent of the settlement, as well as the manner in which performed, must be fully set forth in the allotment application. In examining the acts of settlement and determining the intention and good faith of an Indian applicant, due and reason able consideration should be given to the habits, customs, and nomadic instincts of the race, as well as to the character of land taken in allotment.

While the act contains no specific requirements as to what shall constitute settlement, it is evident that the Indian must definitely assert a claim to the land based upon the reasonable use or occupation thereof consistent with his mode of life and the character of the land and climate.51

    The St. Clair opinions invested the term "occupancy" with the historical standard of protection for Alaska natives in their use and occupancy of land which was afforded them under the laws and decisions effective prior to the passage of the Allotment Act in 1906. But the practical effect of the second decision was also to narrow an allotment of 160 acres to an allotment of a much smaller tract. Plainly, the second decision warned that the actual use and occupancy of a portion of the tract did not automatically create a preference right to the allotment of the full 160 acres, at least where a lesser amount was, in the opinion of the Secretary, sufficient for the use to which the applicant was putting the land.

    In 1960, in Herbert H. Hilscher,52 the Department considered the meaning of the word "occupancy" as it has been used in the Alaska Allotment Act and in section 67.11 of regulations in existence under the statute prior to the 1956 amendment: "lands occupied by Indians or Eskimos in good faith are not subject to entry or appropriation by others."53  The opinion concluded that:

Occupancy implies some substantial actual possession and use of land, at least potentially exclusive of others, such as necessarily results from residence on or cultivation of land. [Footnote omitted.] Such slight and sporadic use of land as shown by the allotment applicant's storing a boat thereon is neither exclusive nor substantial, and, by itself, amounts to actual occupancy of no longer an area than is required for depositing a boat (about 15 feet long) on the ground."54

    The requirement of substantial actual possession and use of land, at least potentially exclusive of others, has been established by judicial authority in the lower courts with respect to other legislation applicable to Alaska. In addition to United States v. I0.95 Acres of Land in Juneau,55 cited in the Hilscher opinion, this interpretation of "occupancy" is supported by two later District Court cases.56 However, the reference to residence and cultivation in the Hilscher opinion, if that reference was intended to imply that other instances of occupancy engendered by the native according to his natural culture and environment would be inadequate to show substantial actual possession and use of the land, must be restricted to the interpretation of existing regulations. In view of the history of the Alaska Allotment Act and the interpretation of the term "occupancy" made in earlier decisions, supra, there is no justification for treating the reference to residence and cultivation in the Hilscher opinion as disclosing a limitation on the authority of the Secretary which would prevent him from promulgating regulations, such as those considered in this memorandum, that evidence a broader policy.

    In summary, the Secretary is authorized to promulgate regulations which provide for a determination of "use and occupancy" of the land according to the natives' mode of life and the climate and

____________________

    48 52 L.D. 597, 601 (1929).
    49 53 I.D. 194 (1930).
    50 52 L.D. 597, 601 (1929).
    51 52 L.D. 383 386 (1929).
    52 67 I.D. 410 (1960).
    53 43 CFR 67.11.
    54 67 I.D. 410, 416 (1960).
    55 75 F. Supp. X41 (3d Div. Alaska 1948).
    56 United States v. Libby, McNeil C Libby, 107 F. Supp. 697. 701 (1st Div. Alaska, 1952); United States v. Alaska, 201 F. Supp. 796, 799-800 (Alaska, 1962) ).


 

1943

OPINIONS OF THE SOLICITOR

SEPTEMBER 21, 1964

character of the land. Taking these factors into consideration, such use and occupancy requires a showing of substantial actual possession and use of the land, at least potentially exclusive of others. In addition, the 1956 amendment requires that such use and occupancy be substantially continuous for the period required. Mere intermittent use, by itself, is not sufficient.

III

Tracts No Smaller Than Forty Acres
In Size and Conformed to the Regular Rectangular
Survey Pattern

    The Alaska Allotment Act authorizes the Secretary to conduct a program for the allotment of land "in his discretion" and "under such rules as he may prescribe." The introduction of a rule that allotments will not be made in units smaller than forty acres in size and conformed to the regular rectangular survey pattern is clearly within this authorization. The burdens which would attend a contrary conclusion have proved to be substantial, both with respect to the practical administration of the program for Alaska allotments and with respect to the coordination of this program with other programs for the disposition of land in Alaska. Absent a reference to the regular rectangular survey, each allotment of land requires a special and detailed survey of the tract for which application is made. After the land is allotted, special steps must be taken to maintain records which relate the non-conforming grant of land to the regular rectangular survey of lands under which the ownership of other lands in Alaska is identified. Notwithstanding the careful maintenance of special records, the different systems of land identification appreciably increase the likelihood of boundary disputes and conflicting claims under Federal programs for the disposition of land in Alaska. These burdens appear to amply justify the rule as a reasonable one under the circumstances.

    It also appears proper for the Secretary to proscribe by regulation in advance that a determination of the applicant's use and occupancy of a significant portion of any conforming forty acre tract shall normally entitle the applicant to an allotment of the full tract, where no conflicting claim is involved.57 The requirement of substantially continuous use and occupancy of the land for which application is made, imposed by the 1956 amendment, should not be construed to restrict his discretion in this respect.

    The general purpose of the act as it now stands is to enable the native to obtain title to the land which he uses and occupies. If the compelling administrative need for the disposition of tracts of a minimum area which conform to the regular rectangular survey is also recognized as administratively necessary for the reasons just stated, the Secretary is within his authorized discretion if he determines that use and occupancy of a significant portion of a conforming forty acre tract is use and occupancy of the entire tract within the meaning of the act.58

    However, where two or more native occupants, otherwise qualified, are shown to have enjoyed use and occupancy of significant portions of the same forty acre tract, protection of the status of each would require an exception to the general practice of minimum forty acre grants in favor of an equitable allocation of the forty acre tract. Similarly when the claim of a native occupant and the claim of another applicant under some other statute authorizing the disposition of land overlap as to a given forty acre tract, exception to the general rule would be required. A rule for the allotment of smaller conforming tracts would be appropriate in both cases.

IV

Guidelines for Proposed Regulations

    In conclusion, the answer to the specific questions posed by your memorandum follows:

    1. The Secretary is authorized under the Alaska Allotment Act to make a single allotment of incontiguous tracts of land.

    2. The Secretary is authorized to consider (a) native custom and mode of living, (b) climate and character of the land applied for and (c) customary seasonability of occupancy in determining whether an applicant for an allotment has shown substantially continuous use and occupancy of the land for a period of five years. However, the statute

____________________

    57 Presumably, such regulations would also provide that the tract must be reasonably compact in form.
    58 It should be noted that this conclusion is not inconsistent with the result reached in either the St. Clair case or the Hilscher case. Not only did both cases involve the assertion of the statutory preference right by the applicant rather than the limits of the Secretary's rule making authority under the statute, but the second St. Clair opinion relies heavily on the fact that the grant of the lesser amount of land (9.3 acres instead of 160 acres) appeared in the judgment of the departmental officials involved to be sufficient where it was to be used solely for fishing purposes. Neither opinion precludes the Secretary from adopting a policy of conforming native allotments to the rectangular survey pattern with a minimum want of a quarter-quarter section (forty acres).


 

1944

DEPARTMENT OF THE INTERIOR

SEPTEMBER 21, 1964

requires a showing of use and occupancy which, taking the factors listed into consideration, is based on more than merely intermittent use and indicates some substantial actual possession and use of the land, at least potentially exclusive of others.

    3. The Secretary may provide that allotments should be no smaller than forty acres in size and conformed to the regular rectangular survey pattern. He may also prescribe that a determination of the applicant's use and occupancy of a significant portion of any conforming forty acre tract shall be deemed to be use and occupancy of the full forty acre tract, except where a conflicting occupancy is involved. Where conflicting occupancies are involved, the Secretary must make an equitable allocation of the forty acre tract. A rule for the allotment of smaller conforming tracts would be appropriate in these cases.

                                                                                                                    EDWARD WEINBERG,
                                                                                                                                        Acting Solicitor.

ACREAGE LIMITATIONS ON LANDHOLDING
WITHIN THE FLATHEAD IRRIGATION
PROJECT, MONTANA

M-36667                                                                                                                        October 21, 1961.

Indian Lands: Irrigation--Reclamation Lands: Irrigable Lands

The provisions of law and departmental regulations which govern the size of farm units within the Flathead Irrigation Project permit units which vary in size between 40 and 160 acres, and where an increase in the irrigable area of a farm unit as originally established is necessary to support a family or to carry on an economical family sized farming operation, this may be accomplished by combining two or more units into a single unit of not more than 160 acres and amending the farm unit plat accordingly.

Indian Lands: Irrigation--Reclamation Lands: Irrigable Lands--Indian Water and Power Resources: Irrigation Projects

The irrigation construction charges on farm units and privately held tracts within the Flathead Project have not been paid in full within the meaning of the acreage limitation provision in the Act of August 9, 1912 (37 Stat. 265), since all such charges owing to the United States have not been paid, though none are currently owing. The fact that future construction charges are subject to repayment from power revenues as provided by the Act of May 25, 1948 (62 Stat. 269), does not alter the conclusion that such charges have not been paid in full within the meaning of the acreage limitation provisions of the 1912 Act.

Memorandum

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Acreage limitations on landholding within the Flathead Irrigation Project, Montana

    This is in reply to requests for our opinion regarding several aspects of statutory provisions limiting the acreage of landholdings within the Flathead irrigation project, Montana. The project was constructed within the Flathead Indian Reservation pursuant to the Act of April 23, 1904 (33 Stat. 302), as amended by section 15 of the Act of May 29, 1908 (35 Stat. 448, 464) and other acts. Certain reservation lands which were not allotted to Indians were opened to settlement and entry by non-Indians and the project includes both farm units on lands opened to settlement and entry by non-Indians and lands in Indian allotments. The Act of July 17, 1914 (38 Stat. 510, 43 U.S.C., 1958 ed., 593) extended to the Flathead Project the previsions of the Reclamation Acts which permit the assignment of reclamation homestead entries, and which govern the patenting of reclamation homestead entries and limit the acreage for which water may be delivered before final payment of building and betterment charges under the Reclamation Acts (Act of June 23, 1910, as amended, 36 Stat. 592, 39 Stat. 65, 43 U.S.C., 1958 ed., sec. 441-442; and Act of August 9, 1912, 37 Stat. 265 (43 U.S.C., 1958 ed., sec. 541-544).

    You have asked first whether farm units with a larger acreage than the present units contain may be established on the Flathead project and propose that a maximum area of 160 acres be permitted.

    A farm unit is a tract of public land fixed as a homestead under reclamation projects and covers an area which is the equivalent of a homestead entry of 160 acres of land outside a reclamation project (43 CFR 230.21). The acreage in a farm unit is that which, in the opinion of the Secretary, may be reasonably required for the support of a family upon lands entered under the provisions of the reclamation law (see Jerome M. Higman, 37 L.D. 788 (1906) ). The Act of May 29, 1908 (35 Stat. 448), provided, with respect to the size of farm units within the Flathead Project, that:


 

1945

OPINIONS OF THE SOLICITOR

OCTOBER 21 , 1964

"No right to the use of water shall be disposed of for a tract exceeding one hundred and sixty acres to any one person, and the Secretary of the Interior may limit the areas to be entered at not less than forty nor more than one hundred and sixty acres each."l

    Construction of the Flathead project was begun in 1909 under the jurisdiction of the Reclamation Service which made the original surveys and investigations for the project. The area of farm units on Flathead was established in accordance with that shown by preliminary plats approved by the Secretary on January 28, 1910, as recommended by the Director of the Reclamation Service in a letter of January 20, 1910, to the Secretary. In the letter of January 20, 1910, the Director referred to the above-quoted statutory provision and indicated that the area of farm units proposed for entry on Flathead varied from not less than 40 to not more than 160 acres each in setting up the preliminary plats of farm unit areas and that farm units of this size were shown on the township plats. These plats were approved by the Secretary on January 28, 1910.2 At the same time, the Secretary approved the recommendation in an office letter of December 15, 1909, of the Director of the Reclamation Service as to the size of farm units on Flat head that:

"*     *     * the total areas of farm units as far as practicable be 160 acres, of which forty acres should be irrigable land and the balance, so far as available, grass land, to bring the total area up to 160 acres. Under this rule the irrigable area will sometimes reach or slightly exceed eighty acres, and will probably average between fifty and sixty acres."

    Information in departmental files indicates that there was some question as to whether the farm units which contain only 40 acres shown on the preliminary plats were too small. According to the Supervising Engineer of the project, the average area of farm units was approximately 80 acres of which 40 acres were irrigable. The 80-acre units were regarded by the Supervising Engineer as "unquestionably ample and all the area properly required for support of a family." However, the adoption of a provision allowing flexibility in the size of the units (as far as practicable farm units were to contain 160 acres) has permitted adjustment in the size of farm units since the time the project was opened to entry in 1910. The current Departmental regulation which controls the size of farm units on Flathead, 25 CFR 194.4, provides:

    "For the purpose of the rules and regulations in this part and for the delivery of water, a farm unit is defined as a contiguous area of land in single ownership containing not less than one 40-acre subdivision of the public survey regardless of its original status as a farm unit or allotment. In the case of leases a farm unit is defined as the contiguous area under a single lease."

    This regulation, like the rule quoted above and approved by the Secretary on January 28, 1910, permits a wide variation in the size of farm units on Flathead. It is emphasized that the current regulation sets 40 acres as the minimum area of a farm unit and nothing in the regulation prevents the establishment of a farm unit with the maximum 160 acres which acreage was, in 1910, regarded as the usual area of a farm unit. Accordingly, in reply to your first question, the applicable statutory and regulatory provisions do not preclude increasing to the maximum 160-acre area the size of existing farm units which contain fewer than 160 acres.

    Only one farm unit on the Flathead Project may be entered and patented by any person and the irrigable acreage subject to entry is limited, inter alia, by the size of the unit (43 CFR 233.3). There are, however, various statutory provisions applicable to the Flathead project which permit the assignment, cancellation, and amendment of farm units and clearly contemplate adjustment in the area and extent of irrigable acreage within a farm unit if there is a showing that the proposed change is consistent with the objective of the statutory excess acreage limitation provisions (43 CFR 233.6--233.11). In a number of instances farm units as established on Flathead have been canceled and the former units combined by amendment to make a new unit because the irrigable area of the original unit was not sufficient to support a family. Departmental files show that commonly when an entryman within the project wishes to obtain a patent

____________________

    1 Section 5 of the Reclamation Act of June 17, 1902 (43 U.S.C., 1958 ed., sec. 431), contains an almost identical provision that no right to the use of water in private ownership shall be sold for a tract exceeding 160 acres to any one land owner, and section 3 of the same act (43 U.S.C., 1958 ed., sec. 434) limits the amount of land which may be entered thereunder to 160 acres. With exceptions not here material, the 160-acre entry area has been the maximum amount of land in farm units subject to entry under the reclamation acts.
    2 A farm unit plat is a plat of a township showing farm unit subdivisions of public lands and the areas, public and private, to be served with water. 43 CFR 230.21; See Jerome M. Higman, supra; Bureau of Reclamation Manual, 1927 ed., 185 f.


 

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DEPARTMENT OF THE INTERIOR

OCTOBER 21, 1964

on his own entry and another which he obtained by assignment, the two or more units were combined to make a new single unit and the farm unit plats were amended accordingly, upon a showing that the area of the original unit was sufficient to provide a living for the entryman and his family. The amendment of three 40-acre farm units into a single unit containing a total of 120 acres of which 103.2 acres were irrigable was allowed in 1933 in order to permit the entryman of one of the units to obtain a patent on his entry and on two other units which he acquired by assignment. It appeared that the entryman needed all three units for properly carrying on his dairying and stock raising operations and the amendment of the original farm unit for this purpose was considered entirely proper. There is no objection to allowing amendments of unpatented farm units to increase the irrigable area if allowance would be in accord with the intent of the excess acreage provisions of the Reclamation Acts, the intent being that land and water within the projects be made available exclusively for owner-cultivated family-sized farms, and that land holdings be kept small but sufficient to support a family. Solicitor's Opinion, M-36634, 68 I.D. 372 (1961); letter from the Attorney General to the Secretary of the Interior, December 29, 1961, 68 I.D. 370: 43 CFR 233.11.

    In summary, the Statutory provisions allowing assignment of farm units permit combining units which contain less than 160 acres and amending the units to contain no more than 160 acres. In this way, the irrigable area in a farm unit may be increased, theoretically up to 160 acres, although, in fact, since the maximum acreage of any unit is 160 acres, the irrigable area will almost certainly be less than that amount. Nonetheless, by the assignment and amendment of farm units in proper cases, the irrigable area of a farm unit can be in creased though the maximum acreage in any case is limited to 160 acres. To warrant the allowance of such an amendment, an application therefore should show that the increase in irrigable area is necessary to support a family or to carry on an economical family-sized farming operation.

    The acreage limitation in the Act of August 9, 1912 (37 Stat. 266, 43 U.S.C., 1958 ed., sec. 544), does not alter the conclusion that in proper cases existing farm units on Flathead may be amended to include a maximum of 160 acres. The 1912 act provides in part here relevant that:

"no person shall at any one time or in any manner, except as hereinafter otherwise provided, acquire, own, or hold irrigable land for which entry or water-right application shall have been made under the said reclamation act *     *     *, before final payment in full of all installments of building and betterment charges shall have been made on account of such land in excess of one farm unit as fixed by the Secretary of the Interior, as the limit of area per entry of public land or per single ownership of private land for which a water right may be purchased respectively, nor in any case in excess of one hundred and sixty acres, nor shall water be furnished under said Acts nor a water right sold or recognized for such excess *     *     *."

    The size of farm units on Flathead varies from 40 to 160 acres and the amount of irrigable land within the units varies. Under the 1912 act, the maximum amount of unpatented irrigable land which a person may hold on Flathead before payment in full of all construction charges3 is one farm unit as fixed by the Secretary, and the maximum farm unit size on Flathead is 160 acres.

    Information in the files submitted with this requirement indicates that there are no unentered lands within the Flathead Project and that the enlargement of farm units can only be accomplished by the purchase of existing farm units. Farm units are unpatented land and the discussion up to this point has been confined to such lands. After an entry is patented, its size is no longer subject to amendment as it has become private land and the irrigable acreage cannot be increased under the statutory provisions permitting the assignment and amendment of farm units. In order to increase the irrigable acreage of private landholders within the Flathead Project the suggestion has been advanced that the owner of a patented tract within the project on which all current charges have been paid is entitled to acquire other patented tracts in excess of 160 acres as long as the total irrigable acreage in all the tracts he acquires does not exceed 160 irrigable acres. We

____________________

    3 The phrase in the 1912 act, "final payment in full of all installments of building and betterment charges," means that all construction charges of a project which are owing to the United States have been paid in full, regardless as to who or what agency may be responsible for paying those charges. Accordingly, the fact that power revenues are to be used to repay construction charges on the Flathead project as provided by the act of May 23, 1948 (62 Stat. 269) and that all such charges are currently paid does not mean that construction charges have been paid in full within the meaning of the 1912 proviso since construction charges for the Flathead project have not been completely repaid to the United States. In accordance with the long-standing departmental interpretation of the "payment in full" clause of the 1912 act, there has been no final payment in full of all building and betterment charges on the Flathead Project. See Solicitor's Opinion, M-36457. 64 I.D. 273, 275-278 (1957); Solicitor's Opinion, M-36631, supra, pp. 382-384.


 

1947

OPINIONS OF THE SOLICITOR

FEBRUARY 17, 1965

believe that landholding in accordance with that suggestion would violate the above-quoted proviso in the 1912 act and is prohibited by that proviso. The restriction in the 1912 act that before payment in full of construction charges no one shall own, hold, or acquire irrigable land in excess of the maximum limit established by the Secretary as the limit of private land for which a water right may be purchased by a single owner, controls the amount of patented lands within the Flathead Project which may be held by any one owner. Since 1920, this provision has been interpreted by the Department to mean that a landowner may hold rights to the use of water for more than one tract of patented land within a project at one time provided that the aggregate area of such tracts upon which the construction charge has not been fully paid does not exceed the maximum limit established by the Secretary of the Interior. The 160-acre maximum for Flathead farm units is identical with the maximum acreage of private irrigable land on the project which may be held by one person (act of May 29, 1908, supra), and is the same maximum before final payment as that for tracts within reclamation projects subject to the 1902 Reclamation Act, supra. See Departmental Instructions, 47 L.D. 4 17, 418 (1920); 43 CFR, 1954 ed., 230.65; U.S. Department of the Interior, "Excess Land Provisions of the Federal Reclamation Laws and the Payment of Charges" (May 1956), pp. 7-12. Consequently, as construction charges on none of the farm units or privately held tracts on the Flathead Project are paid in full (see note 3, supra), the total area in single ownership for which a water right may be purchased is 160 acres and the fact that only a part of the 160 acres is irrigable does not alter the conclusion. In this connection, it is noted that the Department has suggested on several occasions that the proviso in the 1912 act will permit, but does not require, the furnishing of water for 160 acres of irrigable land on which Payment in full has been made of the building and betterment charges even when more than 160 acres of such land is owned by one person. See Amaziah Johnson, 42 L.D. 542 (1913); Keehnugh and Cook, 42 L.D. 543 (1913); Instructions, 43 L.D. 339 (July 1, 1914); 43 CFR 230.65; Solicitor's Opinion, M-36334, 68 I.D. 370, 383 (1961); letter from the Attorney General to the Secretary of the Interior, December 29, 1961, 68 I.D. 370. However, since construction charges on the Flathead Project have not been paid in full, the conditions for adopting the interpretation suggested in the cited cases are not present here. But under the last-cited Departmental interpretations of the 1912 proviso, an owner of 160 acres of patented land on Flathead, only a part of which is irrigable, may now obtain additional irrigable land by disposing of a non-irrigable portion of his 160 acre tract, in which event he may purchase additional irrigable land, not to exceed in the aggregate 160 acres.

                                                                                                                    EDWARD WEINBERG,
                                                                                                                                        Deputy Solicitor.

LEASE OF RESTRICTED LAND--FEDERAL
SUPERVISION OVER RENTALS PAYABLE
DIRECTLY TO LESSOR

72 I.D. 83

M-36671                                                                                                                        February 17, 1965

Indian Lands: Leases and Permits: Generally--Indian Lands: Allotments: Alienation--Indian Lands: Competency--Indians: Competency--Indians: Contracts--Secretary of the Interior

Where an approved lease of individually owned restricted Indian land provides for the direct payment of rentals to the owner or his legal representative (guardian or conservator), the rental payments must be treated as unrestricted funds as of the time of payment, but future or anticipated rentals are classed as restricted property over which the Secretary of the Interior may recapture supervision over the collection, care and disbursement. Any action of the legal representative (guardian or conservator) or of the guardianship court to obligate such future or anticipated rentals would be ineffective unless approved by the Secretary of the Interior.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Supervision over the collection, care and disbursement of rentals payable directly to an Indian
                 lessor or his legal representative under an approved lease of restricted land.

    We have been asked to review the Sacramento Regional Solicitor's office memorandum dated January 7, 1964, addressed to the Area Director of the Bureau of Indian Affairs. Sacramento, California. The memorandum replies to a question raised by the Director of the Palm Springs Indian Office on the application, if any, of R.S. 2103, as amended, 25 U.S.C. 81 (1958), to contracts made between individual Indians and real estate brokers. This question arises because of the great income


 

1948

DEPARTMENT OF THE INTERIOR

FEBRUARY 17, 1965

producing value of certain restricted Indian lands belonging to members of the Agua Caliente Band of Mission Indians.

    The General Allotment Act, 24 Stat. 388 (1887), 25 U.S.C. 348 (1958), as amended, and the Mission Indian Act, 26 Stat. 712 (1891), as amended, provided for the allotment of lands on the Agua Caliente (Palm Springs) Reservation in California. These acts state, "and if any conveyance shall be made of the lands set apart as herein provided, or any contract made touching same, *     *     *, such conveyance or contract shall be absolutely null and void."

    Also, in the Act for the Equalization of Allotments on the Agua Caliente (Palm Springs) Reservation in California, 73 Stat. 602 (1959), 25 U.S.C. 956 (a) (Supp. V, 1959-63), it is stated:

"Equalization allotments *     *     * shall not be subject to assignment, sale, or hypothecation or to any attachment or levy for claims or debts *     *     * without the written approval of the Secretary, and any such assignment, sale, hypothecation, attachment, or levy that has not been so approved by the Secretary shall be absolutely null and void."

    It is also provided by statute that allotted Indian lands shall not be liable to satisfy debts contracted prior to issuing a patent in fee simple to an allottee; l and that moneys derived from lease or sale of trust lands shall not be liable for payment of any debt arising during the trust period without approval of the Secretary of the Interior.2

    Recognizing that legitimate contracts have a place in carrying on and managing Indian affairs, Congress has by statute provided a set of rules under which valid contracts with Indian tribes and individual Indian allottees can be made.

    25 U.S.C. 81, supra, sets forth requirements for the execution and approval of contracts with Indians and provides: "All contracts or agreements made in violation of this section shall be null and void . . . ." However, the language of section 81 is limited to tribes of Indians and individual Indians not citizens of the United States. On May 15, 1964, the Regional Solicitor requested our view on the suggestion in his memorandum of January 7, 1964 that 25 U.S.C. 81 is applicable to contracts made by :individual citizen Indians or by their guardians. We do not interpret section 81 as having any application to contracts made by individual citizen Indians or by their guardians. It is the trust property that is subject to the plenary control of the Federal Government,3 not the contractual capacity of individual citizen Indians. However, the inapplicability of 25 U.S.C. 81 to a real estate broker contract does not mean that the Secretary lacks authority to invoke protective measures to safeguard the Indian interests.

    We agree with the Regional Solicitor that (1) the appointment of a guardian or conservator under section 4 of the Act for the Equalization of Allotments on the Agua Caliente (Palm Springs) Reservation in California, supra, does not disturb the trust character of an allotment or the trustee responsibilities of the United States with respect to an allotment, and (2) any contract or approval thereof by court decree or any court decree which operates or purports to burden future income from an allotment in a way similar to the creation of a lien is ineffective under 25 U.S.C. 348, 410 and 956 (a) supra, without the approval of the Secretary of the Interior.

    It was anticipated at the time of the enactment of the Act for the Equalization of Allotments on the Agua Caliente (Palm Springs) Reservation in California, supra, that some of the allottees could be expected to receive a sizable income from long term business leases and that many of the allottees (a majority of whom are minors) lacked experience in handling their own affairs. The Secretary must invoke, to carry out the trust responsibility imposed by the various cited statutes, the appointment of a guardian or conservator under 25 U.S.C. 954, which states:

"The Secretary shall request the appointment of a guardian of the estate of all minor allottees and for those adult allottees who in his judgment are in need of assistance in handling their affairs in accordance with applicable State laws before making any equalization allotment or payment to such persons."

____________________

    1 "*     *     * Provided, That the Secretary of the Interior may, in his discretion, and he is authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, encumbrance, or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent. *     *     *" 6 of the Act of Feb. 8, 1887, 24 Stat. 388, 390, as amended, 25 U.S.C. 349 (1958).
    2 "No money accruing from any lease or sale of lands held in trust by the United States for any Indian shall become liable for the payment of any debt of, or claim against, such Indian contracted or arising during such trust period, or, in case of a minor, during his minority, except with the approval and consent of the Secretary of the Interior." Act of June 21, 1906, 34 Stat. 327; 25 U.S.C. 410 (1958).
    3 Board of Commissioners of Creek County v. Seber. 318 U.S. 705, rehearing denied, 319 U.S. 782 (1943), and Spriggs v. United States, 297 F. 2d 460. cert. den., 369 U.S. 876 (1962).


 

1949

OPINIONS OF THE SOLICITOR

MAY 10, 1965

    It is this provision which prompted the question raised by the Director of the Palm Springs Indian Office regarding payment to a guardian, with State court approval, of a real estate broker's fee to be taken out of future lease income to be derived from leases of trust lands.

    A guardian or conservator appointed under 25 U.S.C. 954 acquires no authority incompatible with or in derogation of the Secretary's responsibilities. The guardian has no authority to lease or to burden a trust allotment save as authorized and approved by the Secretary, and the only property of the ward that can be deemed to be within the control of the guardian or conservator, which derives from allotted trust lands, would be lease rentals or other income therefrom which has been paid to the guardian or conservator in accordance with the terms of a lease or other contract bearing the requisite approval of the Secretary.

    In the case of Chisholm v. House, 160 F. 2d 632 (10th Cir. 1947), it was held that lease income paid directly to the lessor or his representative in accordance with the terms of an approved Indian lease of restricted land must be classed as unrestricted property. The reasoning of the court was that the restrictions were removed by the Secretary's regulations, thus leaving the United States without standing to sue for an accounting of such income. The rationale of the decision is that the Secretary could provide by regulation for retention of the right to sue for breach and could also provide for recapture of Federal supervision over the collection, care and disbursement of lease income.

    As a result of this case the Department's regulations were revised and now contemplate suit by the United States for breach of contract (25 CFR 131.5 (g) (1) ) and also provide for discretionary recapture of supervision over the collection, care and disbursement of income (25 CFR 131.5 (h) (2)). The latter provision of the regulations, which is required to be contained in each lease, conclusively shows that a guardian's authority under a direct-pay lease cannot be extended to embrace future income without the approval of the Secretary. Otherwise stated, a guardian's authority over lease income attaches only upon its receipt by him in accordance with the terms of an approved lease. Future or anticipated income under a direct-pay lease is subject to Federal supervision and cannot, under 25 U.S.C. 348, 410 and 956 (a), be burdened or subjected to the satisfaction of any claim without the approval of the Secretary of the Interior. It is settled beyond debate, of course, that the direct income from a trust allotment partakes of the character of the corpus of the allotment itself and is subject to all the authorities and responsibilities of the trust undertaking relating to the allotment itself. United States v. Capoeman, 351 U.S. 1 (1956). It would necessarily follow that any action of the guardian or of the guardianship court which undertook to bind lease income not yet in the hands of the guardian would be ineffective unless approved by the Secretary.

    To summarize, it is our view that income from individually owned trust property paid directly to a guardian in accordance with the terms of an approved lease must be treated as unrestricted funds; but that future or anticipated income, not yet paid into the hands of a guardian, is classed as restricted property. Among the remedies and procedures available to safeguard the Indian interests are the following:

    1. The institution of appropriate proceedings to set aside any action which purports to create a burden against future income in violation of the statutes cited above.

    2. Appearance in guardianship proceedings in connection with hearings on petitions for allowance of fees and expenses. This is the type of action to which reference is made in the Assistant Secretary's letter of July 9, 1963, to the Chairman of the House Committee on Government Operations.

    3. Resumption of supervision over the collection, care and disbursement of lease income as authorized by 25 CFR 131.5 (h) (2).

    It is believed that the foregoing will serve as an aid in delineating the respective spheres of authority and responsibility of the guardian and the guardianship court on the one hand, and the Secretary of the Interior on the other. Manifestly, there are administrative decisions to be made which are beyond the scope of this memorandum.

                                                                                                                    FRANK J. BARRY,
                                                                                                                                             Solicitor.

U.S. RESERVATION OF WATER RIGHTS FOR
INDIANS AND ENTITLEMENT TO BENEFIT FROM
EASEMENT FOR PROPOSED IRRIGATION PIPELINE
--LOWER BRULE SIOUX

                                                                                                                                    May 10, 1965.

LT. GEN. W. K. WILSON, JR.
Chief of Engineers, United States Army
Department of the Army
The Pentagon
Washington, D.C. 20310

 

1950

DEPARTMENT OF THE INTERIOR

MAY 10, 1965

DEAR GENERAL WILSON:

    We have been advised by our Regional Solicitor, Denver, that the Chief of the Real Estate Division of the United States Army Engineer Division, Missouri River, at Omaha, Nebraska, apparently considers unacceptable an application of the Lower Brule Sioux Indian Tribe of South Dakota for easements on land in Lyman County, South Dakota, adjacent to Lake Sharpe, for the reason that the Lower Brule Sioux Indian Tribe does not claim water rights under the laws of the State of South Dakota for the Indian lands involved.

    The Lower Brule Sioux Tribe applied to the District Engineer, United States Army Engineer Division, Missouri River, for three easements for the installation, maintenance, and operation of irrigation pipelines and stationary pump and appurtenances thereto for use in the irrigation of approximately 3100 acres of tribal land and 625 acres of allotted Indian land in Townships 108 and 109 North, Range 73 West, 5th P.M., Lyman County, South Dakota. Some 325 acres of land owned by the United States and apparently acquired as submarginal land is also included within the proposed irrigation project. A copy of the application is enclosed. A regulatory provision (Section IV, Paragraph 23, BR 405-1-840) issued pursuant to the Act of May 17, 1926, as amended (10 U.S.C. sec. 2559), conditions grants of easements for irrigation pipelines on a showing, inter alia, that the applicant is the holder of established water rights from the State at the time of making the application. The statute upon which this regulation is based authorizing grants of easements for rights of way for pipelines contains no requirement that an applicant for an easement for an irrigation pipeline own a water right under State law. The requirement is identified in the regulation under the caption: "Policy."

    Water rights on Indian reservation lands are subject to the jurisdiction of the Federal Government and are not derived from State law. The lands here involved for which water rights under Federal law are claimed have been within the Lower Brule Sioux Reservation or included within a larger Sioux Reservation since the Lower Brule Reservation was first established by treaty of October 14, 1865 (14 Stat. 699). For a time Lower Brule lands were included within the boundaries of a Sioux Reservation established pursuant to the Treaty of April 29, 1868, (15 Stat. 635), but later were again designated as a separate reservation for the Lower Brule Sioux Indians by the Act of March 2, 1889, (25 Stat. 888). Section 14 and 15 of the last mentioned Act ratified allotments made under earlier laws and treaties and expressly provided that where irrigation water was necessary for agricultural use of lands, the Secretary of the Interior was to make rules and regulations for the just and equal distribution of irrigation water.

    In the recent case of Arizona v. California, 373 U.S. 546, 597-601 (1963), the Supreme Court reaffirmed the long standing doctrine of the implied reservation of Indian water rights necessary for the agricultural development of reservation lands. Winters v. United States, 207 U.S. 564 (1908); United States v. Powers, 305 U.S. 527 (1939). These decisions hold that the United States reserved water for Indian reservation lands as of the time the reservations were created, and that sufficient water was reserved to irrigate all of the practicably irrigable acreage of the reservations.

    Thus, the tribal and allotted Indian lands on the Lower Brule Reservation which would benefit from easements for the proposed irrigation pipelines here applied for are entitled to irrigation water as the result of the implied reservation by the United States of water rights necessary for their irrigation at the time the Lower Brule reservation was first established, long before the admission of the State of South Dakota to the Union on November 2, 1889. In our opinion, a requirement that an Indian applicant who is the beneficial owner of water rights show that he is the holder of established water rights from the State at the time of making an application for an irrigation pipeline easement under the Act of May 17, 1926, is inappropriate. There is nothing in the Act of October 3, 1962 (76 Stat. 698), authorizing the acquisition by the United States of certain Lower Brule Sioux Reservation lands for the Big Bend Dam and Reservoir project which would adversely affect water rights of the lands here involved of the Lower Brule Sioux Reservation.

    We think, therefore, that the application of the Lower Brule Sioux Indian Tribe for pipeline easements under the Act of May 17, 1926, is not properly subject to rejection for failure to show ownership of water rights under State law. We shall appreciate your consideration of this matter. Please advise us of your conclusions and of any action which you may recommend in the circumstances.

                                                                                                                    FRANK J. BARRY,
                                                                                                                                            Solicitor.


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