"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."

"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.

    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-

____________________

    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."

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 

____________________

    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 1½ to 2 miles inland from the head of Crab Bay and along the western shore of Cascade Inlet."

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.

    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

action upon this lease until a decree is actually entered.

ALLOTMENT OF LAND TO ALASKA NATIVES

71 I.D. 340

Alaska: Indian and Native Affairs

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,

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

    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 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).

    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.

    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).

    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.

    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).

    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.

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,

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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

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

    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).

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.

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    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).

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.

    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

    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

    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

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    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).

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.

    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-

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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.

    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.

    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.

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    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

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    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) ).

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 u