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1951

OPINIONS OF THE SOLICITOR

DECEMBER 3, 1965

AUTHORITY OF STATE TO REGULATE USE OF
RESTRICTED PROPERTY UNDER PUBLIC LAW

83--280

                                                                                                                                September 15, 1965.

HON. FRANK L. FARRAR
Attorney General of South Dakota
Pierre, South Dakota 57501

DEAR MR. FARRAR:

    This responds to Assistant Attorney General Andre's letter of July 14, 1965, requesting our views on the validity of the regulation of the Secretary of the Interior recently promulgated as 25 CFR 1.4. Mr. Andre's letter refers to a resolution of the National Association of Attorneys General which submits that the regulation is contrary to the Act of August 15, 1953.

    It is our position that the regulation is valid, and is wholly consistent with the Act of August 15, 1953, 67 Stat. 588, as amended, 18 U.S.C. 1162, 28 U.S.C. 1360, and Note (1964). The regulation received the approval of this office prior to its promulgation.

    The present regulation does not purport to deal with the use by an individual Indian or tribe of his or its own property, although we do not consider the imposition of such controls beyond the authority of the Secretary. Only the use of such property by others than the owner, under lease or other agreement which is subject to Secretarial approval, is covered by the new regulation. As such, it is clearly within those provisions of the 1953 Act which preclude state regulation of the use of trust or restricted Indian property "in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto." 18 U.S.C. 1162 (b); 26 U.S.C. 1360 (b) (1964).

    There is litigation pending in the United States District Court for the Southern District of California, Central Division, involving municipal zoning of Indian trust lands (The Agua Caliente Land of Mission Indians, et al. v. The City of Palm Springs, Civil No. 65-564-MC). The United States is not a party to the suit.

                                                                                                                    FRANK .J. BARRY,
                                                                                                                                            Solicitor.

WHETHER STATE CAN RESCIND DULY ACCEPTED
CRIMINAL AND CIVIL JURISDICTION UNDER
PUBLIC LAW 83-280--QUINAULT

                                                                                                                                            December 3, 1965.

HON. FRED M. VINSON, JR.
Assistant Attorney General
Criminal Division
Department of Justice
Washington, D.C. 20530

DEAR MR. VINSON:

    This replies to your inquiry of July 7, 1965, regarding criminal and civil jurisdiction over Indians on the Quinault Indian Reservation.

    You asked our view of the legal efficacy of the January 15, 1965, proclamation of the Governor of Washington which purported to rescind his 1958 proclamation issued pursuant to Chapter 240 of the Laws of 1957 (Laws of Washington, 1957, page 941). This law authorizes the Governor on certain conditions to proclaim acceptance of criminal and civil jurisdiction over Indian country offered by Sections 6 and 7 of Public Law 280, 83rd Cong. (18 U.S.C. 1162; 28 U.S.C. 1360).

    The Supreme Court of Washington held, in State v. Paul, 53 Wash. 2d 789, 337 P. 2d 33 (1959), that Chapter 240 does not contravene the state constitution. In State v. Bertrand, 61 Wash. 2d 333, 378 P. 2d 427 (1963), as you pointed out, the court held the Governor's 1958 proclamation was a valid exercise of his powers under Chapter 240. Nevertheless, Wilkinson, Cragun and Barker, tribal attorneys for the Quinault Tribe, filed in June 1964 an action in the United States District Court for the Western District of Washington, Southern Division, to obtain a declaratory judgment that the State of Washington has no jurisdiction by reason of Chapter 240 to enforce criminal and civil laws against the Quinault Indians on the Quinault Indian Reservation and to enjoin the enforcement of such laws. The action, entitled Quinault Tribe of Indians, et al. v. A. M. Gallagher, et al., Civil No. 3112, has been dismissed by the District Court and is now pendmg on appeal before the United States Court of Appeals for the Ninth Circuit. We have been informally advised by Mr. Charles A. Hobbs of Wilkinson, Cragun and Barker that, although the case has been argued before the Court of Appeals, the decision is being held in abeyance until the Washington Supreme Court rules on an appeal from an order of a state trial court dismissing a case against an Indian for an alleged violation of state law committed on the Makah Reservation on the ground that the State had no jurisdiction be-


 

1952

DEPARTMENT OF THE INTERIOR

DECEMBER 3, 1965

cause it had not amended its constitution as required by Public Law 280.

    Regardless whether the Governor can in effect repeal state law by proclamation (see Washington Constitution, Article II, Sec. 1.), we share the view expressed in Assistant Attorney General Miller's letter of January 29, 1965, that once Federal jurisdiction is extinguished by a state's duly accepting jurisdiction under Public Law 280 (18 U.K. 1162 (b) ), it cannot be reinstated by unilateral state action.

    In response to a January 25, 1965 resolution of the Business Council of the Quinault Tribal Council, a copy of which is enclosed, a court of Indian offenses was established on the Quinault Reservation pursuant to 25 CFR 11.1 (b) to deal with the law enforcement emergency resulting from the Governor's act. The court became operative February 9, 1965.

    If there is any additional information which you would like us to furnish in this matter, we shall be glad to do so.

                                                                                                                    EDWARD WEINBERG,
                                                                                                                                        Deputy Solicitor.

OWNERSHIP AND TAXABILITY OF INDIAN
CATTLE

                                                                                                                                        December 30, 1965.

HON. LAURENCE J. BURTON
House of Representatives
Washington, D.C. 20515

DEAR MR. BURTON:

    Your letter of December 15, 1965, concerning ownership and taxability of Indian cattle presents questions which are impossible to answer without reference to specific facts. Cattle may be owned by Indian tribes or by individual Indians. The United States has issued livestock to individual Indians pursuant to treaty provisions and programs for economic rehabilitation. Livestock has also been purchased for individual Indians by the Federal Government, using the individual's own money. Individual Indians purchase cattle with restricted funds and with their own unrestricted funds. In each case, the status and tax consequences of ownership will depend upon the particular facts involved. For example, in United States v. Rickert, 188 U.S. 432 (1903), the Court held that personal property consisting of horses, cattle, and other property issued by the United States to the Indians and used by them on their allotment was not subject to assessment and taxation by the State. In addition, property purchased with funds held in trust by the United States for the Indians or with moneys accrued to the Indians from other federal sources is immune from taxation by the states. Federal Indian Law, 864 (1958) .

    In discussing the extent of immunity of issue property from State taxation, the writer comments as follows:

"Immunity from State taxation was [in United States v. Pearson, 231 Fed. 270 (1916)] extended to personal property which could be traced and identified as issue property, the income of issue property, property purchased with the proceeds of the sale of issue property, property purchased with the proceeds of the sale of the increase of issue property, property for which similar issue property has been exchanged for similar use, the increase of property received in such exchange, the increase of issue property exchanged for similar property for similar use, and property purchased with money given to the Indians by the United States." Federal Indian Law, supra, 865.

    The rule exempting from state taxation property purchased by Indians with restricted funds and property issued to the Indians by the Federal Government should be extended to property purchased by the Indians pursuant to a federal program for their economic rehabilitation, approved and supervised by the Government.

"*     *     * The purchase of property by the Indians themselves in accordance with an economic plan worked out with the Government is supplanting, as a method of assuring the possession by Indians of productive property, the old method of the Government's issuing such property to the Indians. From a legal viewpoint the purpose and concern of the Government are identical whether the plow or the cattle are bought by the Indian with individual Indian moneys, the expenditure of which has been approved by the Superintendent, or bought by the Indians with revolving loan funds or judgment fund money, pursuant to a plan of rehabilitation approved by the Superintendent, or bought by the Superintendent with gratuity funds and issued to the Indians. The reasoning of the courts applies equally to these procedures, except that in the cases above cited the Government had an ownership interest as the title to the property was found to be in the United States. The form of title, while indicative of the interest of the


 

1953

OPINIONS OF THE SOLICITOR

JULY 28, 1966

Government, is not, in my opinion, the determining factor. The important factor is the acquisition and use of the property in execution of a government plan for the Indians." 57 I.D. 124, 127.

    We concur generally in the statement by the member of the Utah State Tax Commission in his letter to you to the effect that cattle owned by Indian tribes are not subject to state taxation.

    You have indicated that assessors are often under the impression that many cattle are owned by individual Indians, only to be taxed upon making inquiry that the cattle are tribally owned. Such misunderstandings might easily arise. Membership in a particular tribe may carry with it certain rights to use, participate and share in tribal property. The exact rights of the individual Indian in tribal property vary widely, and depend ". . . . in the last analysis, upon the governmental acts and contractual agreements of the Federal Government, the tribe and the individual Indian himself. . . . Here, as in other fields of law, general principles, no matter how confidently announced by the highest authorities, must be pared down to the facts with which they deal before they are entitled to be relied upon completely." Federal Indian Law, supra, pp. 746-747.

    Perhaps the most expeditious and satisfactory manna for those concerned to resolve specific problems would be to discuss such matters with local representatives of the Bureau of Indian Affairs in Utah and the Regional Solicitor of this Department in Salt Lake City.

                                                                                                                        EDWARD WEINBERG,
                                                                                                                                            Acting Solicitor.

TITLE TO LANDS WITHIN SAN CARLOS
RESERVOIR SITE

73 I.D. 333

M-36693                                                                                                                            July 23, 1966.

Indian Lands: Generally

The San Carlos Apache Indian Reservation, Arizona, is a congressionally unconfirmed executive order reserve in which the Indians have no compensable interest as against the United States. The United States did not have to look to the Act of June 7, 1924 (43 Stat. 475). which authorized the construction of the San Carlos Irrigation Project for the benefit of the Indians of the Gila River Indian Reservation, Arizona, and others, for authority to acquire lands on the San Carlos Reservation needed for dam and reservoir purposes. As .the United States already owned the lands free and clear of any legally cognizable obligation to the Indians, they could be and were devoted to the use of the Project by administrative act.

Indian Lands: Rights-of-Way

Additionally, the authority granted by the Act of June 7, 1924, to acquire rights-of-way for the project would not have limited the Government to acquiring estates in the nature of flowage easements. Even if the United States had been forced to look to that Act of authority to acquire the lands in question it could have acquired fee simple estates in them.

Indian Water and Power Resources: Irrigation Projects

The lands of the San Carlos Dam and Reservoir are own by the United States in connection, with the San Carlos Irrigation Project.

    As a matter of grace the Indians were fully compensated for them when they were put to use in connection with the Project. Accordingly, under the Act of April 4, 1938, 52 Stat. 193 (25 U.S.C. 390), the proceeds derived from the granting of concessions and leases on the lands should be used for the operation and maintenance of the San Carlos Irrigation Project.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Appeal of San Carlos Apache Tribe from the Commissioner of Indian Affairs decision of
                 October 26, 1965 concerning title to the San Carlos Reservoir site and the disposition of
                 proceeds from leases and concessions granted thereon.

    The Commissioner's decision from which an appeal has been taken by the San Carlos Apache Tribe holds that the shore and lands underlying the San Carlos Reservoir, Arizona, are owned by the United States in connection with the San Carlos Irrigation Project and that any proceeds derived from the leasing of or granting of concessions on such lands should be expended in the operation and maintenance of that Project as provided by the Act of April 4, 1938, 52 Stat. 193; 25 U.S.C. 390.

 

1954

DEPARTMENT OF THE INTERIOR

JULY 28, 1966

Counsel for the Tribe contends that Section 5 of the Act of June 7, 1924, 43 Stat. 475, which authorized the construction of Coolidge Dam and the San Carlos Reservoir, constituted the entire authority of the Secretary to acquire lands, or interests therein, for use in connection with the San Carlos Irrigation Project; that the term "right of way" as used therein is synonymous with "easement;" that, since the lands of the San Carlos Apache Reservation used for Coolidge Dam and San Carlos Reservoir must have been taken or acquired under this section, the greatest estate that the United States can have therein is in the nature of a flowage easement; that the Tribe retains all interests in the lands not included in such easement; and that the Tribe, therefore, is entitled to any proceeds derived from the granting of concessions or leases on such lands.

    Counsel apparently acknowledges that the Tribe was fully compensated for the more than 21,000 acres devoted to the use of the dam and reservoir. He argues that the fact and amount of compensation are irrelevant because the United States was authorized to acquire only an easement. The Act of April 4, 1938, supra, authorizes the Secretary of the Interior to grant concessions on and lease lands within the San Carlos Irrigation Project. Specifically, it provides:

"The Secretary of the Interior is authorized, in his discretion, to grant concessions on reservoir sites, reserves for canals or flowage areas and other lands under his jurisdiction which have been withdrawn or otherwise acquired in connection with the San Carlos, Fort Hall Flathead, and Duck Valley or Western Shoshone irrigation projects for the benefit in whole or in part of Indians, and to lease such lands for agricultural, grazing, or other purposes: *     *     * Provided further, That such concessions may be granted or lands leased by the Secretary of the Interior under such rules, regulations, and laws as govern his administration of the public domain as far as applicable, for such considerations, monetary or otherwise, and for such periods of time as he may deem proper, the term of no concession to exceed a period of ten years: Provided further, That the funds derived from such concessions or leases, except funds so derived from Indian tribal property withdrawn for irrigation purposes and for which the tribe has not been compensated, shall be available for expenditure in accordance with the existing laws in the operation and maintenance of the irrigation projects with which they are connected. Any funds derived from reserves for which the tribe has not been compensated shall be deposited to the credit of the proper tribe *     *     * ".

    Although we are convinced, for reasons later set forth, that the Tribe has no interest in the reservoir lands, we do not think that it is necessary to resolve this question in order to determine who is entitled to the proceeds from leases or concessions granted on the lands.

    It Seems clear that the lands used for Coolidge Dam and San Carlos Reservoir comprise a "reservoir site" and a "flowage area" and are "lands under [the] jurisdiction [of the Secretary of the Interior] which have been withdrawn or otherwise acquired in connection with the San Carlos *     *     * irrigation project," within the meaning of 25 U.S.C. 390. This being the case, and the San Carlos Apaches having been fully compensated for such lands, it is equally clear, under Section 390, that funds derived from the leasing of and the granting of concessions on such lands should be expended for the benefit of the San Carlos Irrigation Project.

    The San Carlos Apache Reservation as presently constituted contains lands which were originally set apart by the Executive Order of November 9, 1871, I Kappler 810-812, as the White Mountain Apache Reservation and lands which were set apart by the Executive Order of December 14, 1872, I Kappler 812-813, as the San Carlos addition to the White Mountain Reservation. It appears that all of the lands affected by the San Carlos Reservoir are part of those added to the reservation by the Executive Order of 1872. The reservation created by the Executive Orders of 1871 and 1872 was thereafter diminished by a series of executive orders and two acts of Congress. These executive orders were entered on August 5, 1873, July 21 1874, April 27, 1876, January 26, 1877, March 31; 1877, and December 22, 1902, 1 Kappler 813-814 and 3 Kappler 671. Each of these orders restored parts of the reservation to the public domain. The Act of February 20, 1893, 27 Stat. 469, I Kappler 467, also restored a part of the reservation to the public domain; provided that the proceeds realized from the disposition thereof should be expended for the benefit of the Indians of the reservation, and stipulated:

"Sec. 5. That nothing herein contained shall be construed as recognizing title or ownership of said Indians to any part of said White Mountain Apache Indian Reservation, whether that hereby restored to the public domain or that still reserved by the Government for their use and occupancy."


 

1955

OPINIONS OF THE SOLICITOR

JULY 28, 1966

    Section 10 of the Act of June 10, 1896, 29 Stat. 321, 358, 1 Kappler 597, 609, ratified an agreement which had been entered into on February 25, 1896, between the Apaches and an Indian inspector, by which the Indians ceded another part of the reservation to the United States for opening to mineral entry with the proceeds to be paid to the Indians. None of the executive orders which restored parts of the reservation to the public domain, including that of December 22, 1902, provided for the payment of compensation or other benefit to the Indians.

    The conclusion is inescapable that the San Carlos Apache Indian Reservation is an unconfirmed executive order reserve in which the Indians have no compensable interest as against the United States. Sioux Tribe v. United States, 316 U.S. 317 (1942); Healing v. Jones, 174 F. Supp. 211, 216 (1959) and 210 F. Supp. 125 (1962). These cases recognize that although the Executive may withdraw and reserve lands of the United States for governmental purposes, the exclusive power to dispose of or to create compensable interests in the territory or other property of the United States is vested in the Congress by Section 3, Article IV of the Constitution. It is constitutionally impossible for the Executive by unilateral act to grant compensable interests in the territory of the United States. Since nothing in the history of the San Carlos Reservation indicates Congressional confirmation of title in the Indians--indeed, there is much to the contrary--we can only conclude that the Indians use and occupy the lands thereof at the pleasure of Congress and the President.

    That this was the position of Congress and the Executive during the period that the San Carlos Irrigation Project was being considered and constructed is clear. As stated in Assistant Solicitor Soller's memorandum of January 22, 1965, the Project was conceived primarily for the benefit of the Pima Indians on the Gila River Indian Reservation. It was first considered in 1896. From that time until completion it was under more or less constant consideration by Congress and various agencies of the Executive. See House Report, Hearings before the Committee on Indian Affairs on the Condition of Various Tribes of Indians, 66th Cong. 1st sess., Vol. 2, p. 6. In 1912, Congress authorized the Army Engineers to investigate and report on the project. A Board of Engineer Officers was appointed for the purpose. Their report to the Secretary of War, dated February 25, 1914, and entitled, "San Carlos Irrigation Project, Arizona," is printed as House Document No. 791, 63d Cong., 2d sess. It contains a letter, dated October 28, 1913, to the Commissioner of Indian Affairs from A. L. Lawshe, who was superintendent of the San Carlos Apache Reservation, in which he expressed the view that the Indians should be compensated for the dam site. Addressing itself to this contention the Board stated:

"Regarding land damages it is the understanding of the board that this reservation is not owned by the Apache Nation. If the United States owns it, and if this irrigation project were solely for the benefit of the Pima Indians and entirely at the expense of the Government, it would be idle to pay damages except on improvements belonging to the Indians, for the Government would only be transferring money from one pocket to another. But the project is also for the benefit of private lands that would receive a gift if the reservoir site be assessed at less than its value. Hence the project should pay for the land regardless of where the title lies."

    The Board accepted as the value of the reservation lands required for the dam and reservoir the amount of $91,865. Op. cit., 145-146.

    At the hearings on the bill which became the Act of June 7, 1924, 43 Stat. 475, which authorized the construction of Coolidge Dam and the San Carlos Reservoir, the following exchange took place between Wendell M. Reed, Chief Engineer of the Indian Irrigation Service, Representative Carl Hayden of Arizona, and Representative Homer P. Snyder, the Chairman of the House Commit tee on Indian Affairs:

"Mr. Reed. *     *     * The $5,500,000 project which is referred to here really is simply for the dam and the necessary work in connection therewith.

The Chairman. It does not contemplate the purchase of any land that may have to be purchased or contain the supply space for the reservoir?

Mr. Reed. Yes; the reservoir is all on an Indian Reservation--San Carlos Reservation.

The Chairman. So there is no expense in purchasing of land?

Mr. Reed. There will be some expense in the purchase or in payment for condemning buildings and some small works of that kind. The estimate made by the representatives of the Indian Service was practically $200,00, and


 

1956

DEPARTMENT OF THE INTERIOR

JULY 28, 1966

the Army Engineers, after investigating, concurred.

Mr. Hayden. That $200,000 is included within the limit of $5,500,000?

Mr. Reed. Yes."

    Pima Indians and the San Carlos Irrigation Project, Hearings on S-966 Before the House Committee on Indian Affairs, 68th Cong. 1st Sess. (1924).

    By letter dated May 5, 1925, to the Secretary of the Interior, the Assistant Commissioner of the Office of Indian Affairs, after quoting the conclusion of the Board of Engineer Officers set forth above and noting that twelve years had elapsed since the making of the Board's report, suggested that

"*     *     * conditions make it necessary to have the matter again investigated with a view of determining the value of the lands and improvements that will be inundated by the water impounded by the reservoir.

*     *     *     *     *

"It is accordingly recommended that a Board of three members, consisting of the Assistant Chief Engineer, C. R. Olberg, the Superintendent of the San Carlos Reservation, James B. Kitch, and an Indian, a member of the San Carlos Reservation to be selected by the two other members, be appointed for the purpose of determining the extent of the damage to be suffered by reason of the construction of the Coolidge Dam, the third member of the Board not to pass on matters affecting Government buildings."

    This recommendation was approved by Assistant Secretary John H. Edwards. An appraisal board, consisting of C. R. Olberg, J. B. Kitch and Morgan Toprock--the latter having been elected by the Indians of the San Carlos Reservation--was duly constituted and commenced its work. Its report, dated February 4, 1926, and approved by Assistant Secretary Edwards on November 27, 1926, shows beyond cavil that the Indians were awarded the full value of the approximately 21,750 acres of San Carlos Reservation lands devoted to the use of the Project. Its award of $86,290.13 for "Tribal Indian Land" was constituted as follows:

"Grazing land, 20,012 acres
    @    1.25 per acre ----------$25,015.63
Land susceptible of irrigation, 1100 acres
    @    15.00 per acre ---------$16,500.00
Irrigated and improved lands
            $100.00 basic value. Deducting credits to individual Indians for improvements leaves
            563 acres at from $72.25 to $86.00
            per acre ----------------$36,974.50
Agency farm lands, irrigated, tribal, 78 acres
    @    $100.00 per acre -------$7,800.00
Total Appraisement Tribal Lands-$86,290.13"

    The legal and administrative histories of the San Carlos Apache Indian Reservation and the San Carlos Irrigation Project establish that it was never conceived that the United States had to acquire the lands needed for the dam and reservoir. It was always thought--and correctly--that the United States already owned the necessary lands and that it could devote them to the use of the Project simply by administrative act without incurring any obligation to the San Carlos Apache Tribe. Clearly the compensation which was paid the Tribe was awarded as a matter of grace and not of right (Cf. Sioux Tribe v. United States, supra, 331) and largely out of consideration of the fact that the Project was intended for the benefit of non-Indians as well as Indians.

    The simple fact is that the lands of the Reservation devoted to the use of the Project were not acquired under the authority of the Act of June 7, 1924, and it is wholly immaterial what interests were comprehended by the term "right of way" used therein.

    The construction of the Project did, of course, necessitate the acquisition by the Government of lands and rights from parties other than the San Carlos Apache Indians. For example, the Southern Pacific Railroad possessed a right of way over lands which were to be submerged by the reservoir. Ultimately, the Railroad was paid $1,000,000 for this right of way and to defray part of the expense of relocating about 14 miles of its line.

    Although we are convinced that the United States owned the reservoir area free and clear of any obligation to the Indians and did not require any additional authority to use it in connection with the Project, we could not, in any event, subscribe to the proposition that the use of the term "right of way" in the Act of June 7, 1924, limited the estate which the Government could acquire for the Project to a flowage easement. "Right of way" is as often used to describe an area of land as an estate in it. Cf. 64 I.D. 70 (1957). That Congress did not use the term in any restrictive sense is


 

1957

OPINIONS OF THE SOLICITOR

OCTOBER 19, 1966

manifest by the fact that in appropriating for the Project in 1925 it provided that the sum appropriated "shall be available for purchase and acquiring of land and necessary rights of way needed in connection with the construction of the project." 43 Stat. 1141, 1152.

    Even if we were to assume that the San Carlos Apaches had an interest in the reservoir lands enforceable against the United States and that we must look to the Act of 1924 for authority to use them in connection with the Project, we would conclude that, whatever the interest of the Indians, it has been fully compensated and extinguished.

    All else that we have discovered tends to confirm this conclusion. Most of the lands of the dam site and reservoir area were included in Water Power Designation No. 4, executed on February 1, 1917, which found them valuable for the development of water power, reserved them to the United States, and exempted them from the operation of any and all grants to the State of Arizona. In 1928, the Federal Power Commission reported to Congress that the San Carlos Apache Indians were not entitled to any additional compensation by reason of the generation of hydroelectric power at Coolidge Dam. This was based on the finding that the compensation already paid them exceeded the return to be expected if the lands were valued on the basis of combined irrigation and power development. Sen. Doc. No. 93, 70th Cong., 1st sess. 1928.

    In sum, we are firm in the opinion that under 25 U.S.C. 390, the proceeds derived from the leasing of and granting of concessions on lands in the San Carlos Reservoir area should be expended in the operation and maintenance of the San Carlos Irrigation Project. Without regard to "title", these lands have been withdrawn or otherwise acquired in connection with the Project and the San Carlos Apache Indians have been fully compensated for them. Present these facts, the statute directs that the proceeds from the lands be used for the benefit of the Project. Further, we are of the opinion that the San Carlos Apaches never had any interest in the lands enforceable against the United States; that the lands belonged to the United States free of any obligation; that no authority was needed for the United States to put them to any proper use, and that title to the lands is in the United States in connection with the San Carlos Irrigation Project.

                                                                                                                    FRANK J. BARRY,
                                                                                                                                            Solicitor.

FUNDS USED BY CALIFORNIA LEGAL SERVICES
PROGRAM TO BENEFIT INDIANS--NOT
CHARGEABLE TO INDIANS

                                                                                                                                            October 19, 1966

Mr. Gary Bellow
Deputy Director
Law Offices of California
Rural Legal Assistance
257 South Spring Street
Los Angeles, California 90012

DEAR MR. BELLOW:

    This replies to your letters of September 28 and September 30 to Mr. George Miron, Special Assistant to the Solicitor, concerning certain funds provided by the Office of Economic Opportunity and to be used by your corporation to provide legal services to indigent persons in non-urban areas and the possible application of 25 U.S.C. 81-82 to the activities of your organization. As a part of your program, you are undertaking a special project of legal research into the legal problems of indigent Indians of California, but have encountered fears and suspicions on the part of the Indians that any money spent for legal services rendered to them "would be deducted from claims they possessed against the United States or be used as basis for a lien against the property."

    You indicate there is need to assure the Indians that no part of any funds made available by the Federal Government to them or for their benefit under programs conducted by O.E.O.:

"a)    shall be deducted from any past, present, or future awards to the Indians of California by the Court of Claims;

"b)    shall be treated as a debt incurred by the California Indians and held as a lien on any of their lands;

"c)    shall be subtracted from the money held on behalf of California Indians by the Bureau of Indian Affairs."

    We must assume that the inquiry is limited to funds appropriated, programmed and granted for indigent legal assistance generally, and that the funds are not expended by the United States specifically for the benefit of the Indians of California. Act of August 13, 1946, 60 Stat. 1050, 25 U.S.C. 570a (1964). See also Act of May 18, 1928, 45 Stat. 602, 25 U.S.C. 653 (1964); Act of August 12, 1935, 49 Stat. 596, 25 U.S.C. §475a (1964).


 

1958

DEPARTMENT OF THE INTERIOR

OCTOBER 19, 1966

    The great bulk of the funds in the Treasury to the credit of the Indians of California consists of $29,100,000 appropriated by the Act of October 7, 1964, 78 Stat. 1023, 1033, to satisfy an award by the Indian Claims Commission on July 20, 1964, in Dockets No. 31, 37, 80, 80D, and 347, consolidated. See H.R. Doc. 339, 88th Cong. (1964). Annual appropriation acts for this Department have for a number of years provided that "funds derived from appropriations in satisfaction of awards of the Indian Claims Commission and the Court of Claims shall not be available for advances, except for such amounts as may be necessary to pay attorneys fees, expenses of litigation, and expenses of program planning, until after legislation has been enacted that sets forth the purposes for which said funds will be used." See, e.g., Act of May 31, 1966, 80 Stat. 170, 173.

    The only other judgment fund of the Indians of California now on deposit in the Treasury or otherwise under trust supervision of the Secretary of the 1n:terior is some $1,018,152.75 (as of April, 1966) remaining undistributed from the appropriation made by the Act of April 25, 1945, 59 Stat. 77, 94, to satisfy the judgment of the Court of Claims on December 4, 1944.

    H.R. 8021, pending in the present Congress would provide for individual share distribution of the 1964 appropriation, and for disposition to the State of California in trust for the Indians of any undistributed balance of that appropriation and of the remaining balance of the 1945 appropriation.

    Since these claims cases have been finally decided, and monies appropriated in satisfaction of the awards, we perceive no basis on which the United States could now claim as offsets against them any funds which might be expended for legal services rendered to the Indians of California as a part of a general program of indigent assistance.

    With respect to future claims, we could only speculate concerning the possibility of offsets and this, of course, we cannot do. However, so far as we are aware, the Department of Justice has not asserted as offsets in other pending claims cases expenditures benefiting Indians made under programs of the Office of Economic Opportunity. Indeed, we are convinced that the Government's claiming as offsets benefits and assistance provided under general programs of the sort conducted by the O.E.O. is specifically prohibited by the provisions of 25 U.S.C. 70a and 475a. Quite clearly, in our view, the programs of O.E.O. are generally applicable throughout the United States, are intended to relieve distress caused by unemployment and conditions resulting therefrom (i.e. poverty) and often entail public projects for the relief of  unemployment and to increase employment. As a matter of fact, the provisions of sections 70a and 475a describing the kinds of programs whose benefits may not be offset against Indian claims constitute a pithy definition of the basic objectives of the war on Poverty.

    We know of no basis on which the amounts spent for indigent legal services to Indians, as part of a general program, could be treated as a debt and held as a lien against lands of California Indians.

    There is no present authority in law for the Bureau of Indian Affairs to subtract from the money held on behalf of California Indians any amounts spent for such legal services, nor is any such authority provided in H.R. 8021 in its present form.

    Without knowing the precise arrangements your organization contemplates making with tribes of individual Indians we cannot say definitely that the provisions of 25 U.S.C. 81-85 would not apply. However, you are generally correct in your interpretation that these statutes apply only to contractual arrangements with Indians which contemplate that the other party will receive some material compensation or consideration. From what we know of the program your organization intends to sponsor, it would not appear that there will be any necessity for it to enter into formal agreements with individual Indians or tribes, other than, perhaps, representational agreements to satisfy rules of court which would be wholly gratuitous. However, if your organization contemplates formal arrangements with Indians which provide for anything approaching consideration moving to it you should submit the arrangement for opinion.

                                                                                                                    FRANK J. BARRY,
                                                                                                                                            Solicitor.

STATE TAXATION OF TRADERS ON CHEROKEE
RESERVATION IN NORTH CAROLINA

                                                                                                                                            December 19, 1966.

HON. EDWIN L. WEISL, JR.
Assistant Attorney General
Land and Natural Resources Division Department of Justice
Washington, D.C. 20530

DEAR MR. WEISL:

    On November 25, 1966 we sent you certain papers relating to the efforts of the State of North


 

1959

OPINIONS OF THE SOLICITOR

DECEMBER 19, 1966

Carolina to collect privilege license taxes from the Eastern Band of Cherokees. As promised in that letter, there are enclosed copies of the loan agreement between the Band and the United States under which the Boundary Tree Motel Enterprises were built, and of the deposit agreement among the Band, the United States, and the First Union Bank of North Carolina, under which the accounts of the enterprise are maintained.

    We have not heard of any further action being taken by the State to collect the taxes claimed to be due from the Band since the Bank's refusal to turn over the deposited tribal funds it has to the State pursuant to the garnishment for taxes which the State served on the Bank. However, we have been advised the State is now seeking to collect privilege license taxes from tribal lessees who operate the restaurant and snack bar that are part of the Boundary Tree Motel tribal enterprise on the Cherokee Indian Reservation in North Carolina. In addition to having a tribal business lease, the lessees, Cecil Smith and Richard Hill, have been licensed as Indian traders to conduct their operations under the lease. We understand that neither Smith nor Hill is an Indian.

    There are enclosed two copies of a memorandum dated December 2, 1966 and its attachments from the Deputy Assistant Commissioner of Indian Affairs recommending that your Department be requested to take appropriate action to prevent the State from collecting the privilege license taxes from the traders. We interpret the recommendation to include a request for action to prevent the collection of the taxes from the Band. We concur. Reference of this matter has been delayed because the missing file referred to in the Deputy Assistant Commissioner's memorandum was not located by the Bureau until this week.

    The nature of the operations of Smith and Hill on the Reservation and the efforts of the State to exact privilege license taxes from them are explained in the papers accompanying the Deputy Assistant Commissioner's memorandum. It is our understanding that Smith and Hill have ignored the November 25, 1966 letter from the State revenue collector and that the matter of collecting the $2,220.00 claimed for taxes and penalties has been turned over to the Sheriff's Office. We are further informed the Sheriff has indicated to the Cherokee Indian Agency that he will wait a full thirty days from December 1, 1966 before taking action to effect collection of the taxes assessed against Smith and Hill. We are not advised as to the nature of the collection action proposed.

    Our reasons for believing the State privilege license taxes to be inapplicable to licensed Indian traders on the Cherokee Indian Reservation have been fully explained to the State of North Carolina. The State's attempt to apply the taxes to an enterprise of the Band comes as a surprise. Our reasons for thinking the taxes to be inapplicable in either case are as follows.

    In Solicitor's Opinion M-34989, 60 I.D. 31 (1947) referred to in the Deputy Assistant Commissioner's memorandum, Solicitor White sets forth the bases on which this Department recognizes the Band's tribal existence and right of self government. Decisions of the United States Court of Appeals for the Fourth Circuit have found the Band to be an Indian Tribe and the lands which the United States holds in trust for them to be an Indian Reservation. See United States v. Wright, 53 F2d. 300 (1931), and United States v. Parton, et al, 132 F. 2d 886 (1943). Consequently, the attempt of the State to impose the taxes upon a tribal enterprise of the Band operating within the Cherokee Indian Reservation is an interference with the Band's right of self-government and is, therefore, beyond the jurisdiction of the State. Williams v. Lee, 358 U.S. 217 (1959).

    The attempted imposition of the taxes upon licensed Indian traders within the Reservation is invalid in our view under the principles announced in Warren Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685 (1965). The details of our conclusions in this respect are set out in memorandums dated September 29, 1965 and August 16, 1966, respectively from the Associate Solicitor, Indian Affairs and Acting Associate Solicitor, Indian Affairs, to the Commissioner of Indian Affairs. Two copies of each of these memorandums, as well as duplicate copies of each of the items listed on the attached exhibit sheet, are enclosed.

    We believe that the material which accompanies this letter will provide you complete information on the background of the present controversy with North Carolina over its attempt to collect privilege license taxes from the Eastern Band of Cherokees and from licensed Indian traders on the Cherokee Indian Reservation, but if there is additional information which we may furnish you please advise us.

                                                                                                                    EDWARD WEINBERG,
                                                                                                                                        Deputy Solicitor.


 

1960

DEPARTMENT OF THE INTERIOR

JANUARY 9, 1967

OMAHA TRIBAL ROLL--JUDGMENT FUND
DISTRIBUTION

                                                                                                                                        January 9, 1967.

WEISSBRODT, WEISSBRODT, AND LIFTIN
1908 Que Street, N.W.
Washington, D.C. 20009

GENTLEMEN:

    On March 3, 1965, the Acting Associate Solicitor, Indian Affairs, sustained the appeals of 22 persons, taken from decisions of the Aberdeen Area Director of the Bureau of Indian Affairs that appellants were not qualified to have their names entered on the membership roll of the Omaha Tribe of Nebraska under the Act of September 14, 1961, 75 Stat. 508. The pertinent part of that statute reads:

*     *     * the Secretary of the Interior is authorized and directed, pursuant to such regulations as may be issued by him, to prepare a roll of Omaha Indians whose names appear on the Omaha allotment rolls finally approved pursuant to the Acts of Congress of August 7, 1882 (22 Stat. 341), and March 3, 1893 (27 Stat. 612), and who are living on the date of this Act, and the descendants of such allottees who are born and living on the date of this Act and who possess Omaha blood of the degree of one-fourth or more regardless of whether such allottees are living or deceased *     *     *.

    The Area Director rejected the appellants' enrollment applications on the ground that they did not possess Omaha blood of the degree of one-fourth or more as required by the 1961 Act. The Acting Associate Solicitor concluded that the appellants qualified for enrollment as possessors of the required amount of Omaha blood on the basis that the Indian blood of their ancestors who by marriage, adoption, or other tribal formality were recognized as members of the Omaha Tribe prior to the Omaha Allotment Act of August 7, 1882, should be considered Omaha blood within the meaning of the 1961 Act.

    On March 29, 1965, the Omaha Tribal Council, by Resolution No. 31-65, requested you as General Council for the Omaha Tribe to take steps to cause the Acting Associate Solicitor's construction to be withdrawn and to cause the appeals sustained on the basis thereof to be dismissed. The Council's resolution recites that it has always understood the term "Omaha blood", as used in the 1961 Act, to exclude other Indian blood and believes the construction of the Acting Associate Solicitor to be contrary to the intention of the statute.

    Pursuant to the direction of the Omaha Tribal Council, you filed with this office written arguments urging reconsideration of the decisions made March 3, 1965. Pending determination of the Tribe's petition, no distribution of per capita payments has been made to those persons whose enrollment is opposed by the petition.

    As you assert, whether the appeals in question were properly allowed depends upon whether the Act of September 14, 1961, was correctly interpreted. We think it was and therefore reaffirm the March 3, 1965, decisions. Our reasons follow:

    Senate Report No. 598, 87th Cong., 1st Sess. (1961), on S. 1518, which became the 1961 Act in question, sets forth the purpose of the legislation as follows:

The purpose of S. 1518 is to provide for the disposition of a judgment awarded the Omaha Tribe of Indians by the Indian Claims Commission. The amount of the award was $2, 900,000, which was appropriated by the Second Supplemental Appropriations Act of 1960 and deposited in the Federal Treasury. Attorneys' fees and expenses reduced the net amount of the judgment to $2,648,581, which has drawn interest at 4 percent. The current balance amounts to $2,722,228.

The Indian Claims Commission found that the Tribe was acting on its own behalf and in a representative capacity on behalf of the aboriginal tribe and nation. It also found that some of the descendants of the aboriginal nation were not presently enrolled as members of the trilbe, but that they are entitled to share in the judgment. S. 1518 directs the Secretary of the Interior to prepare a roll that includes all persons eligible to share in the judgment, and also makes that roll the official membership roll of the tribe.

The bill provides that the judgment will be used to make a $750 per capita payment to each enrolled member and the balance of the judgment may be used for other purposes authorized by the tribal council and approved by the Secretary. While the total enrollment of the tribe cannot be anticipated, it is estimated that approximately $1.5 million will be used for per capita payments, leaving about $1.2 million for other uses.


 

1961

OPINIONS OF THE SOLICITOR

JANUARY 9, 1967

  
On March 8, 1961, the members of the tribe met in a general meeting and adopted a resolution, which is on file with the committee, endorsing the provision of this legislation *     *     *.

    House of Representatives Report No. 1004, 87th Cong. 1st Sess. (1961), contains similar statements regarding the purpose of S. 1518.

    In the Department's report of June 26, 1961, which is included at pages 2-4 of Senate Report No. 598, the matter of the preparation of a tribal roll under the provisions of S. 1518 received the following comments:

The Omaha Tribe of Nebraska is organized under the Indian Reorganization Act of June 18, 1934 (48 Stat. 984). Although the judgment was recovered in the name of the organized tribe, the Indian Claims Commission found that the tribe was acting on its own behalf and in a representative capacity on behalf of the aboriginal tribe and nation. The Commission further found that some of the descendants of the aboriginal tribe and nation are not presently actually enrolled as members of the Omaha Tribe of Nebraska, but that they are entitled to share in the judgment. It is estimated that over 2,000 persons are presently enrolled as members of the Omaha Tribe of Nebraska, and that approximately 200 of them are of less than one-fourth Omaha Indian blood and will not qualify for enrollment on the new roll which is required under the provisions of the bill. The number of Indians who are not presently enrolled and who will be entitled to enrollment is not known.

Under these circumstances it would be improper to place the entire judgment under the control of the Omaha Tribe of Nebraska as organized under the Indian Reorganization Act unless all persons entitled to share in the judgment are made eligible for membership in the tribal entity. Otherwise, the Omaha Tribe of Nebraska could use all of the judgment funds for the benefit of its members and exclude the other Omaha Indians who are entitled to share in the judgment fund but who cannot meet the requirements for membership prescribed in the Omaha tribal constitution. This problem is resolved adequately by the bill by providing for a new roll that includes all persons eligible to share in the judgment, and by making that roll the membership roll of the tribe. The enrollment of children subsequently born will be governed by the tribal constitution. The tribe has endorsed this procedure by a formal resolution. Op. cit. p. 3.

    It is quite clear, therefore, that the attention of Congress was focused upon the need for preparing a tribal roll which would include the descendents of the aboriginal Omaha tribe, who, in addition to the members of the Omaha Tribe of Nebraska, were found by the Indian Claims Commission to be entitled to share in the $2,900,000.00 award to be disposed of by S. 1518. With respect to the entitlement of members of the Omaha Tribe of Nebraska to share in the award, the first of the findings of fact of the Indian Claims Commission made in the matter of the request of the plaintiffs and defendant in the proceedings entitled, Omaha Tribe of Nebraska et. al., v. United States, Docket Numbers 225--A, 225--B, 225--C, and 225--D, for approval of the $2,900,000.00 compromise settlement filed with the Commission, reads:

1. The Plaintiff, in each of the above entitled docket numbers, the Omaha Tribe of Nebraska, is a recognized Indian Tribe organized under a constitution and by-laws ratified by the tribe on February 15, 1936, and approved by the Secretary of the Interior on March 30, 1936 pursuant to the Indian Reorganization Act. The membership of the Omaha Tribe of Nebraska is prescribed (1) by the official census roll of the Omaha Tribe of Nebraska, as of April 1, 1934, with the supplement thereto of January 1, 1935, and (2) by Article II of its Constitution and By Laws, and (3) by such ordinance as shall be hereafter enacted by the Tribal Council, subject to review by the Secretary of the Interior. As of the latest count, completed in July 1955, there were 2,223 enrolled members of the Omaha Tribe of Nebraska. Each of these members is in part descended from one or more members of the aboriginal Omaha Tribe. * * * (Emphasis added)

    In light of the explanation to Congress of the need to add to the membership of the Omaha Tribe of Nebraska, other descendants of the aboriginal Omaha tribe, and the finding of the Indian Claims Commission that all members of the Omaha Tribe of Nebraska are descended from members of the aboriginal Omaha tribe, we are unable to conclude that when Congress used "Omaha blood" in the 1961 Act it considered only some of the Indian blood of Omaha allottees to be Omaha blood for purposes of the act.


 

1962

DEPARTMENT OF THE INTERIOR

JANUARY 9, 1967

    Although you assert that the Omaha blood quantum test contained in the legislation was derived from the tribal constitution, and that its meaning in the statute is therefore the same as in the tribal constitution, we find no confirmation in the legislative history that it was explained to Congress how "Omaha Indian blood" was used in the tribal constitution or that, if so, Congress intended to adopt such meaning for "Omaha blood" in the legislation. Indeed, we find indications in our legislative file on S. 1518 which suggest that you provided Congress an interpretation of "Omaha blood" as applied to the then members of the Omaha Tribe of Nebraska which is more an explanation in the vein of the finding of the Indian Claims Commission than an exposition of the meaning of "Omaha Indian blood" as used in the tribal constitution.

    To be specific, on March 21, 1961, you sent to United States Representative Ralph F. Beermann, a proposed bill providing for the disposition of judgment funds of the Omaha Tribe of Indians; a memorandum regarding the proposed bill; and a copy of the March 8, 1961, resolution of the general meeting of the Omaha Tribe of Nebraska, which is referred to in Senate Report No. 598 and is quoted in H.R. Report No. 1004. In explaining the provisions of the proposed bill regarding entitlement to enrollment, which are the same as those contained in the 1961 Act, it is stated on the second page of your memorandum:

The roll to be prepared by the Secretary under the proposed bill will, in general, include the names of Omaha Indians whose names appear on the Omaha allotment rolls finally approved pursuant to the said Acts of Congress of August 7, 1882 and March 3, 1898 and who are living on the date the bill is enacted in to law, and the descendants of such allottees who are born and living on the date the bill is enacted into law and who possess Omaha blood of the degree of one-fourth or more.

A census made in 1956 listed approximately 2,350 persons of Omaha blood. It is estimated that of these persons, approximately 2,000 may meet the one-quarter blood test and other requirements specified in the proposed bill. *     *     *

Based on said 1956 census, it appears that over 1800 of the aforesaid estimated 2,000 persons who may qualify for enrollment reside within the Reservation districts in Nebraska or in other neighboring communities, towns and cities in Nebraska.

Based on available information, it also appears that the great bulk of the estimated 350 persons who may fail to qualify are individuals who have long since left the Reservation area for outlying regions, and who by reasons of intermarriages have Omaha blood of one-eighth or less, and who for many years have maintained no interest or concern with Omaha tribal affairs. (Underscoring added)

    Thus, the explanations placed before Congress regarding the "Omaha blood" of the then members of the Omaha Tribes of Nebraska were simply to the effect that some two or three hundred such members would be ineligible for enrollment under the bill which became the 1961 legislation; not because they had no Omaha blood, but because they did not have a sufficient degree of it. Clearly, therefore, it would be unreasonable to conclude that Congress intended that the Indian blood of some Omaha allottees should be considered something other than "Omaha blood" for purposes of the 1961 Act.

    This office on a previous occasion considered the meaning of a statutory requirement that an applicant for enrollment with an Indian tribe be of the blood of the tribe. In 1956 we were asked whether the blood of Indians adopted into the Umpqua Tribe qualified as being of the blood of the Umpqua Tribe within the meaning of the provision, "Indians of the blood of *     *     * the Confederated Bands of the Umpqua Tribe of Indians *     *     * living on the date of this Act," appearing in the Act of August 30, 1954, 68 Stat 979; 25 U.S.C. 771. On examining the legislative history of the act, the then Associate Solicitor of Indian Affairs concluded that it justified an interpretation of the language so as not to exclude any person of Indian blood whose ancestors were members of the tribe involved whether they were members by birth, adoption, or any other recognized tribal formality. Solicitor's Opinion M-36328 (January 16, 1956). Commenting upon the problem of recognition of Indian blood as being that of a particular tribe, the Associate Solicitor said, at pages two to three of the opinion:

It is quite possible that the language 'of the blood' of a certain tribe might be read literally so as to prohibit participation in an enrollment by persons if any of their ancestors had been adopted into a tribe. However, this construction would create a difficult problem of administration of the act in view of the fact that it would be impossible to completely determine whether any of the ancestors of persons involved may have at some prior date


 

1963

OPINIONS OF THE SOLICITOR

JULY 18, 1967

been adopted into a tribe. This is particularly true in view of the widespread use of 'adoption' to continue family lines in Indian tribes. Whole Indian nations have been adopted and recognized as of the blood of the adopting tribe. *     *     *

    We further observe with respect to Opinion M-36328 that one of the adopted Umpquas from whom an applicant claimed eligibility for enrollment in the Umpqua Tribe participated as a Chief of the Umpqua Tribe in the signing of a treaty between the United States and the Umpquas. Six of the 22 applicants whose appeals were upheld March 3, 1965, are grandchildren of Joseph LaFlesche, who, though of the blood of another tribe, was adopted as a boy into the Omaha Tribe and signed the treaty of March 16, 1854, 10 Stat. 1043, as one of the Omaha Chiefs, and the treaty of March 6, 1865, 14 Stat. 667, as Head Chief of the Omaha Tribe. Under the interpretation of the 1961 statute urged on behalf of the Omaha Tribal Council his six grandchildren would not qualify for enrollment on the ground that he did not have "Omaha blood."

    We are satisfied that as in the case of our interpretation of "blood of the tribe" in the 1954 Act, we here give effect to congressional intent by interpreting "Omaha blood" to include the Indian blood of Omaha allottees who were adopted or married into the tribe.

    As for your contention that if "Omaha blood" had been understood by the Department to include all Indian blood of the Omaha allottees there would have been an indication of this in the Omaha enrollment regulations, 25 CFR Part 50, we think it sufficient to point out that after the 1956 opinion of the Associate Solicitor enrollment regulations were adopted for the Western Oregon Tribes, including Umpqua, 25 CFR Part 44, which, like the Omaha regulations, simply use statutory language and do not further define "blood of the tribes."

    We are sending a copy of this letter to the Commissioner of Indian Affairs and advising him that the decisions of March 3, 1965, of the Acting Associate Solicitor may be given effect by adding the successful appellants' names to the roll of the Omaha Tribe of Nebraska and paying to them the per capita share authorized by the 1961 Act.

                                                                                                                    FRANK J. BARRY,
                                                                                                                                            Solicitor.

CONSTRUCTION CHARGES--INDIAN OWNED LAND--
WIND RIVER IRRIGATION PROJECT, WYOMING

M-36708                                                                                                                            July 18, 1967.

Indian Lands: Fee Lands--Indians: Contracts--Indian Water and Power Resources: Irrigation Projects

The purchase in fee simple of irrigable land within the Wind River irrigation project by an Indian from a non-Indian does not cancel or suspend performance of a contract for repayment of irrigation charges against the land which is like a covenant that runs with the land and is binding on subsequent purchasers.

Indian Lands: Fee Lands--Indian Lands: Irrigation

The first proviso of the Leavitt Act (47 Stat. 564; 25 U.S.C. 5 386a) deferring the collection of irrigation construction charges and prohibiting the assessment of such charges applies only to trust and restricted Indian lands. Land purchased in fee simple by an Indian is not Indian owned land within the first proviso of the act.

Indians: Fiscal and Financial Affairs--Indian Tribes: Fiscal and Financial Affairs--Indian Water and Power Resources: Irrigation Projects

Although the first proviso of the Leavitt Act defers the collection and prohibits the assessment of irrigation construction charges against trust and restricted lands in Government irrigation projects, reimbursable construction costs for such lands are accrued obligations which are debts owing to the United States and are subject to adjustment or cancellation under the first clause of the Leavitt Act. Deputy Solicitor's memorandum of May 11, 1960, to the Deputy Commissioner of Indian Affairs holding to the contrary with respect to Leavitt Act cancellations by House Document 501, 72d Congress, 2d Sess., overruled.

Indians: Fiscal and Financial Affairs--Indian Tribes: Fiscal and Financial Affairs Statutory Construction: Generally

The first clause of the Leavitt Act, as distinguished from the first proviso, authorizes the Secretary to adjust reimbursable charges of the United States which are debts of Indians and Indian tribes, and is not limited to irrigation charges or affected by the type of interest of Indians in their lands.


 

1964

DEPARTMENT OF THE INTERIOR

 JULY 18, 1967

Memorandum

To:            Commissioner of Indian Affairs
From:        Deputy Solicitor
Subject:     Construction charges, Indian-owned lands; Wind River irrigation project, Wyoming

    This replies to your request for our opinion on several questions relating to irrigation construction charges against Indian-owned lands within the Wind River irrigation project, Wyoming.

    On August 8, 1953, an Indian trust allotment within the Wind River project was conveyed by warranty deed to Richard Elshire, a non-Indian, who signed an irrigation repayment contract in connection with the transfer. The contract, presumably on Form 5-462-B, entitled "Agreement to Pay Construction and Operation and Maintenance Charges," was recorded in appropriate county records.1 By warranty deed dated March 27, 1954, Elshire sold the land to Steve Cook, a non-Indian. Cook then sold and conveyed the land to Louis Twitchell, an enrolled Shoshone Indian. You ask whether the Leavitt Act of July 1, 1932 (47 Stat. 564; 25 U.S.C. 386a (1964) ), requires deferring the collection of construction charges against the land of an Indian who purchased irrigable land in fee simple in his own name from a non-Indian, and whether the Act cancels the repayment contract when ownership of the tract passed from the non-Indian back to the Indian.

    The purchase in fee simple of irrigable land by an Indian from a non-Indian does not cancel or suspend performance of a contract for repayment of irrigation charges against the land in the circumstances here under consideration. However, the extent to which such an agreement is enforceable against the Indian grantee depends, in part, upon adjustments which may be made, under the first clause of the Leavitt Act during the time the land is owned by an Indian, or under the Acts of February 14, 1920 (41 Stat. 408, 409), and June 22, 1936 (49 Stat. 1803; 25 U.S.C. §§ 389-389e (1964)), when non-Indian land is involved. Several statutory provisions, as interpreted by the Department and the Attorney General, and the Bureau's practice in carrying them out over a long period of time need to be summarized in explaining our answers to your questions.

    The Act of March 3, 1905, 33 Stat. 1016, 1017, by which the Shoshone Indians ceded part of their reservation to the United States in trust to be sold, the proceeds to be credited to the Indians, provided that the proceeds were to be used, among other things, for the construction of an irrigation system within the diminished reservation. Thereafter, special appropriations for the Wind River project, most of which were made reimbursable as provided by the Act of March 3, 1905, supra, were contained in annual appropriation acts for the Bureau through 1920.

    The Act of August 1, 1914 (38 Stat. 582; 25 U.S.C. 385 (1964) ), referred to hereafter as the 1914 Act, provided in part here relevant as follows:

"*     *     * Provided further, That the Secretary of the Interior is hereby authorized and directed to apportion the cost of any irrigation project constructed for Indians and made reimbursable out of tribal funds of said Indians in accordance with the benefits received by each individual Indian so far as practicable from said irrigation project, said cost to be apportioned against such individual Indian under such rules, regulations and conditions as the Secretary of the Interior may prescribe *     *     *." (38 Stat. 583)

    The Act of February 14, 1920 (41 Stat. 408, 409; 25 U.S.C. § 386), hereafter called the 1920 Act, contained the following substantive provisions affecting irrigation construction costs:

"*     *     * The Secretary of the Interior is hereby authorized and directed to require the owners of irrigable land under any irrigation system heretofore or hereafter constructed for the benefit of Indians and to which water for irrigation purposes can be delivered to begin partial reimbursement of the construction charges, where reimbursement is required by law, at such times and in such amounts as he may deem best; all payments hereunder to be credited on a per acre basis in favor of the land in behalf of which such payments shall have been made and to be deducted from the total per acre charge assessable against said land *     *     *."

    In a decision of September 2, 1921 (33 Op. Atty. Gen. 25), the Attorney General held that the above-quoted proviso in the 1914 Act was to be construed as substantive legislation imposing an individual liability upon Indians having irrigable allotments. The opinion pointed out that the proviso is directed to and refers only to Indians and to the requirement of reimbursability from

____________________

    1 For many years, Departmental regulations governing the sale of irrigable lands within Indian irrigation projects have required the execution, acknowledgment, and recording of Form 5-462-B in connection with purchasing irrigable lands. See 25 CFR 128.1 (formerly numbered 154.1) and the note following the regulation.


 

1965

OPINIONS OF THE SOLICITOR

JULY 18, 1967

Indian funds. Thus, until 1920, the requirement of reimbursability of irrigation charges was held to impose a personal liability on individual Indians benefited. See Solicitor's Opinion, 5 1 I.D. 613 (1926); 49 I.D. 370, 373 (1922). When the quoted provisions from the 1914 and 1920 Acts are read together, they indicate an intent that the obligation of repaying construction costs created by specific statutes like the 1905 Wind River Act be shifted away from tribal funds to the individual Indian benefited, and later, under the 1920 Act, that repayment be based on a per acre assessment against the land.

    The Leavitt Act of July 1, 1932, modified the statutory provisions relating to reimbursable obligations of Indians in a number of ways. The Act provides:

"That the Secretary of the Interior is hereby authorized and directed to adjust or eliminate reimbursable charges of the Government of the United States existing as debts against individual Indians or tribes of Indians in such a way as shall be equitable and just in consideration of all the circumstances under which such charges were made: Provided, That the collection of all construction costs against any Indian owned lands within any Government irrigation project is hereby deferred, and no assessments shall be made on behalf of such charges against such lands until the Indian title thereto shall have been extinguished, and any construction assessments heretofore levied against such lands in accordance with the provisions of the Act of February 14, 1920 (41 Stat. L. 409), and uncollected, are hereby canceled.

Provided further, That a report shall be made to Congress annually on the first Monday in December, showing adjustments so made during the preceding fiscal year: Provided further, That any proceedings hereunder shall not be effective until approved by Congress unless Congress shall have failed to act favorably or unfavorably thereon by concurrent resolution within sixty legislative days after the filing of said report, in which case they shall become effective at the termination of the said sixty legislative days."

    The first clause of the Act grants general authority to the Secretary to adjust or eliminate, in an equitable and just way, any reimbursable charges of the Government of the United States which are debts against individual Indians or tribes of Indians. This general grant of authority is subject to three provisos, the first of which defers the collection of all construction costs against any Indian-owned lands within any Government irrigation project, forbids the assessment of construction charges against such lands until the Indian title to the lands shall have been extinguished, and cancels uncollected assessments levied under the 1920 Act.

    Your question whether the Leavitt Act requires deferring the collection of all construction charges against land purchased in fee simple by an Indian from a non-Indian is answered in the negative because it is not "Indian owned" land within the first proviso of the Leavitt Act, and only irrigation construction costs against lands within the scope of the proviso are deferred by it. The phrase "Indian owned lands" in this context means trust and restricted lands, the Indian title to which has not been extinguished by conveyance after June 30, 1932, to a non-Indian, with the exception noted below as to trust and restricted lands purchased for Indians after July 1, 1932. There would be no purpose or function in the phrase "until Indian title shall have been extinguished" if the prohibition against the assessment of construction costs were intended to be operative whenever an Indian acquired title to irrigable land. If the "until" phrase were omitted, the proviso would prohibit the assessment of construction charges against all Indian-owned land, but as written, the "until" phrase excludes from the operation of the proviso land acquired in fee simple by an Indian after the enactment of the Leavitt Act. This does not in any way modify the ruling that restricted and trust lands acquired by Indians after July 1, 1932, are subject to the first proviso of the Leavitt Act. (See Solicitor's opinion, M-30133, April 13, 1939, holding that lands purchased for Indian tribes after the enactment of the Leavitt Act are subject to the proviso deferring the collection of irrigation construction costs.)

    The first clause of the Leavitt Act, unlike the first proviso, authorizes the Secretary generally to adjust or eliminate reimbursable charges of United States which are debts against individual Indians or tribes of Indians without regard as to whether the individually owned lands are trust or fee lands or whether debts for irrigation costs or other types of reimbursable charges are involved. From the time of the enactment of the Leavitt Act, reimbursable operation and maintenance costs of irrigation projects, and reimbursable charges for other types of construction, such as roads and bridges, have been subject, continuously, to adjustment and cancellation under the general authority in the first clause of the Leavitt Act. Accordingly, construction charges against lands purchased in fee by an


 

1966

DEPARTMENT OF THE INTERIOR

JULY 18, 1967

Indian from a non-Indian, like those here involved, may be adjusted under the first clause of the Act, as circumstances warrant, where the charges are debts owed to the United States by an individual Indian although the collection of such charges is not subject to deferment under the first proviso of the Act.

    In this connection, the cancellation of certain reimbursable charges under the Leavitt Act, including irrigation construction charges, by letter of December 15, 1932, from the Secretary of the Interior to the Speaker of the House of Representatives needs to be considered. The second and third provisos of the Leavitt Act require that a report be made to Congress annually showing adjustments made pursuant to the Act and provide that any proceedings under the Act shall not be effective until approved by Congress unless Congress shall have failed to act within sixty legislative days of filing the report. In accordance with these provisions the Secretary by letter of December 15, 1932, reported to Congress the cancellation of designated reimbursable charges including both operation and maintenance costs and construction costs of a number of irrigation projects. The action has never been disapproved by Congress. H.R. Doc. No. 501, 72d Cong. 2d Sess. (1932) is a reprint of the Secretary's letter of December 15, 1932, and material supporting the cancellation of reimbursable costs pursuant to the Leavitt Act, including the irrigation construction costs. Among the charges listed for cancellation were reimbursable irrigation construction charges of $35,431.67 against Indian-owned lands on the Fort Belknap Indian Reservation with exceptions as to part of the costs on two units.

    A Deputy Solicitor's memorandum of May 11, 1960, to the Deputy Commissioner of Indian Affairs held, in part here material, that the submission of such items as the Fort Belknap construction charges to Congress did not result in their cancellation since no irrigation construction costs were existing as debts due the United States, and therefore the charges could not be cancelled under the Leavitt Act. We conclude, however, that the irrigation costs listed in H.R. Doc. No. 501 relating to Fort Belknap and other projects were in fact and in law accrued obligations owing to the United States on July 1, 1932.

    The first proviso of the Leavitt Act which, since July 1, 1932, has deferred the collection of irrigation construction costs against Indian-owned lands does not change the fact that such construction costs become accrued obligations or debts owing to the United States as soon as the amounts are spent. Moreover, H.R. Doc. No. 501 (supra, pp. 42, 43, 45, 47), indicates that most of the Fort Belknap construction costs were unassessed as of June 30, 1932, arid that these costs had been held reimbursable in accordance with the 1914 Act (HR. Doc. 501, supra, p. 15). The total amounts expended for irrigation costs which were recommended for cancellation and so reported in H.R. Doc. 501 are designated "reimbursable from individuals" (H.R. Doc. 501, supra, p. 3), indicating that they were regarded as debts against individual Indians subject to cancellation under the first clause of the Leavitt Act. See Appendix A attached hereto which briefly summarizes the legislative history of the Act. We have no doubt that the irrigation construction costs listed in H.R. Doc. No. 501, supra, were subject to cancellation and were cancelled in accordance with the Secretary's letter of December 15, 1932. The ruling to the contrary in the memorandum of May 11, 1960, is incorrect, and will not be followed. This conclusion is likewise applicable to construction costs listed for cancellation and reported to Congress by the Secretary in 1933, 1934, and subsequent years, and applies to amounts spent both before and after the enactment of the Leavitt Act. We conclude that amounts owing under the repayment contract here involved which was executed in 1953, and subsequently accrued charges including construction charges, are subject to adjustment and elimination under the Leavitt Act as circumstances may warrant.

    Returning now to the statement at the outset of this discussion that an agreement by a non-Indian purchaser of an irrigable allotment to pay construction charges was not cancelled by the purchase of the land in fee simple by an Indian, several additional aspects of the matter need to be considered.

    In attempting to carry out the 1920 Act consistently with the opinions of the Attorney General and the Solicitor referred to herein, the Commissioner of Indian Affairs approved a repayment contract form under which a purchaser of an irrigable allotment was required to pay accrued irrigation charges assessed against the land prior to approval of the sale and also agreed to pay all irrigation charges to be assessed against the land in the future. (See note 1.) The current repayment agreement on Form 5-462-B contains identical provisions with that issued on June 13, 1925, and concludes with the following provision:

"This agreement shall be binding upon the purchaser, his heirs, executors, administrators, and assigns. The purchaser further agrees to pay recordation fees at time of executing this agreement."


 

1967

OPINIONS OF THE SOLICITOR

JULY 18, 1967

    The only purpose of including the provision binding the purchaser's successors under the repayment agreement was the intention that successive owners of land on which irrigation charges, assessed under the 1920 Act, were owing should become obligated under the contract. This and the provisions for recording the agreement indicate an intention that the repayment contract be binding on the successors of the purchaser from the Indian allottee. Courts in different jurisdictions have held that such a contract which is recorded is, or will be treated as if it were, a covenant running with the land.2 In accordance with those decisions, we think that Form 5-462-B may be so regarded. It may be desirable, however, to base the requirement of construction cost repayment on a more immediate instrument than a form executed by a remote purchaser from an Indian allottee. The delivery of water to a purchaser of land on which construction charges are owing under the 1920 Act may be conditioned upon each successive owner's executing a repayment contract (though not Form 5-462-B since it is limited to purchasers of allotments), as the 1920 Act requires each owner to repay, in accordance with the Secretary's regulations, construction charges assessed on a per acre basis under the Act. A purchaser who does not agree to repay such charges is not entitled to have irrigation water delivered to his land (cf. Solicitor's opinion, 51 I.D. 613, 621 (1926)).

    Irrigation construction charges which are required by statute to be reimbursed are subject, under the 1920 Act, "to partial reimbursement at such times and in such amounts" as the Secretary may deem best. This is a much more flexible provision than regulations under the 1920 Act indicate. Since the 1920 Act makes the time for and amount of repayment completely discretionary, you may wish to consider amending applicable regulations to permit more flexibility in payment of amounts owing than is now possible.

    In any event, the authority to adjust and cancel reimbursable construction charges under the Leavitt Act and the authority to amend regulations under the 1920 Act permit much greater flexibility in administering these statutory provisions than past practice indicates.

                                                                                                                    EDWARD WEINBERG,
                                                                                                                                         Deputy Solicitor.

APPENDIX A

    The Leavitt Act was intended to benefit Indians owning irrigable lands, many of which were burdened with old debts arising from costs for irrigation systems which the Indians had not requested, which sometimes were inadequate, and for which the Indians were unable to pay. Moreover, the existence of these old debts was especially detrimental because it hindered the sale of Indian allotments. That it was the purpose of the sponsors of the Leavitt Act to wipe out or permit the cancellation of at least some of the old debts against Indian lands for unpaid irrigation construction charges was expressed throughout Congressional discussion of the legislation (75 Cong. Rec. pp 8142-8144; 14313 ff.; Sen. Rep. No. 752 on H.R. 10884, 72d Cong. 1st Sess. (1932) ), which, in combination with parts of another bill (H.R. 8898, 72d Cong. 1st Sess. (1932) ), became the Leavitt Act; see also Solicitor's Opinion M-30133 (April 13, 1939), discussing the first proviso in the Leavitt Act.

____________________

    2 When a covenant runs with the land, the benefit or burden of the covenant passes to each successive owner and assignee of the land and the transfer of the property operates as an automatic assignment of the covenant. Bolles v. Pecos Irr. Co., 167 P. 280 (New Mexico 1917). A covenant runs with the land if the parties to the agreement meant to charge the land, if the covenant touches or concerns the land and also if the covenant entered into the consideration for which the land or some interest in it to which the covenant is annexed passed between the covenanter and the covenantee. (Annotation, "Affirmative Covenants Running With Land", 118 A.L.R 982; Tiffany, Real Properly 848-857 (Third ed.); 7 Thompson, Real Property, 3622-3630 (1940 ed.); 20 Am. Jr. 2d "Covenants", 29-42.) )
    So, a covenant in a deed to pay assessments against the grantor's adjoining property for the opening of a street was held to run with the land (Maher v. Cleveland Union Stockyards Co., 9 N.E. 2d 995 (Ohio 1936). Similar covenants to pay for both existing and proposed improvements on land have been held to be covenants which run with the land. Mendrop v. Harrell, 103 So. 2d 418 (Miss. 1958); Neponsit Property Owners' Association, Inc. v. Emigrant Industrial Savings Bank, 15 N.E. 2d 793; 16 N.E. 2d 852 (N.Y. 1938); Phillips v. Smith, 38 N.W. 2d 87 (Iowa 1949); and see United States v. Florea et al., 68 F. Supp. 367 (D. Ct. D. Ore. 1945).
    There is authority which conflicts with these casts (see Lingle Water Users' Association v. Occidental Building & Loan Association, 297 P. 38.5 (Wyo. 1931) holding that the promise to pay both construction and operation and maintenance costs in connection with the delivery of water to land did not run with the land, but this is contrary to the weight of the cases. See United States v. Florea, supra, p. 369 and note 8.
    In any event, when an agreement is recorded, as are agreements to pay the irrigation costs here involved, the purchaser of land covered by the agreement takes the land subject to an equitable servitude of which he had notice, and a court of equity will commonly enforce any reasonable agreement affecting land against a purchaser with notice of the agreement. Mendrop v. Harrell, supra; Thompson, supra, sec. 3615; and see United States v. Florea, supra, pp. 374-375.


 

1968

DEPARTMENT OF THE INTERIOR

JULY 18, 1967

    Probably the first clause of the Leavitt Act was intended to apply to all reimbursable charges against Indians and Indian tribes. It passed the House first as a separate bill, H.R. 10884, and was interpreted as permitting adjustments of accumulated debts against restricted funds of individual Indians as well as adjustments of accumulated debts against Indian lands. (See House report on H.R. 10884, H. Rep. No. 951, 72d Cong. 1st Sess.) H.R. 10884 was passed by the Senate after having been amended by adding parts of H.R. 8898. The latter bill, which had been passed separately by the House, contained the provisions relating to irrigation construction charges which became the first proviso of the Leavitt Act. Because the great bulk of reimbursable debts charged against Indians and Indian tribes arose out of irrigation charges, much of the discussion about both bills centered around irrigation construction costs and obscured the fact that the first clause grants broad authority to the Secretary to adjust virtually any kind of debt owing to the United States by individual Indians or Indian tribes.

    Various statements of the Commissioner of Indian Affairs and of Congressman Scott Leavitt, principal sponsor in Congress of the legislation, indicate that it was the intention of administrative and Congressional authors of this legislation that existing accrued amounts owing to the United States by reason of irrigation construction charges and assessed against Indian lands on a per-acre basis should be written off and the accumulation of accrued charges in the future was to be prevented by prohibiting the assessment of such costs against Indian lands. In Congressman Leavitt's words, "*     *     * we want to have the right to write off the past and to stop putting on the book these charges against Indian lands." Hearings Before the Senate Committee on Indian Affairs on H.R. 8898 and H.R. 10884, 72d Cong. 1st Sess. 8 (1932).

    In describing the bills which became the Act of July 1, 1932, Congressman Leavitt stated that the provisions would permit the adjustment of old reimbursable charges--by wiping some of them out, but not necessarily all of them, by permitting the adjustment of others, and by eliminating the costs against Indian lands in the future. The legislation was intended to increase the value of the land to Indians at the time they sold their allotments by preventing deductions from the sale price of accumulated charges which sometimes exceeded the value of the land. This was to be accomplished in part by the prohibition of future assessments against the land, in part by the cancellation of unpaid assessments previously levied under the 1920 Act, and, as circumstances warranted, by the Secretary's adjusting or canceling irrigation costs which were debts owing to the United States.

INDIAN TRIBES AS PREFERENCE CUSTOMERS UNDER
THE RECLAMATION PROJECT ACT OF 1939

M-36771                                                                                                                     July 25, 1967.

Indian Tribes: Contracts--Power: Preference Customers

The Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation and other tribes which function as local governments may qualify as preference customers under section 9 (c) of the Reclamation Project Act of 1939 which gives preferential status for the purchase of power to municipalities and other public corporations or agencies and to cooperatives and other non-profit organizations financed wholly or partly by loans made pursuant to the Rural Electrification Act of 1936.

Words and Phrases: "Public Corporations or Agencies"

The Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation and other tribes which function as local governments are "public corporations or agencies" within the meaning of the preference customer provisions of Section 9 (c) of the Reclamation Project Act of 1939.

Memorandum

To:            Commissioner of Reclamation
From:        Solicitor
Subject:     Indian tribes as preference customers under section 9 (c) of the Reclamation Project Act of 1939

    You have inquired whether the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana, in particular, and other Indian tribes generally, qualify as preference customers for the purchase of power under section 9 (c) of the Reclamation Project Act of 1939, as amended, 53 Stat. 1187, 1194-l 195; 43 U.S.C. 485h (c) (1964).

    In our view, ,the Assiniboine and Sioux Tribes of the Fort Peck Reservation and other tribes similarly organized to perform governmental functions qualify as preference customers under section 9 (c), which provides, in part here relevant, that in the sale of electric power or lease of power privileges,


 

1969

OPINIONS OF THE SOLICITOR

AUGUST 1, 1967

*     *     * preference shall be given to municipalities and other public corporations or agencies; and also to cooperatives and other non-profit organizations financed in whole or in part by loans made pursuant to the Rural Electrification Act of 1936 and any amendments thereof *     *     *

    The Fort Peck Tribes are a body politic organized under a written constitution which provides that the Tribal Executive Board is the governing body. All the powers of local government, except to the extent that Congress has otherwise legislated, are in the Assiniboine and Sioux Tribes or their governing body. The Tribal Executive Board of the Fort Peck Tribes transacts business with the Federal and State Governments, has taxing authority, carries out law and order functions on the reservation, and is responsible for the care and use of tribal property and the development of tribal resources. In brief, the tribes, as organized under their constitution, provide and are the municipal government within the territory of the reservation, and are, in all material respects, a public corporation1 or agency.

    The Department has held that an Indian tribe, organized to govern itself, having the powers and functions of a local government, is a "public body," or comparable entity within the meaning of several different Federal statutes. For example, an Indian tribe is a "governmental entity" or "public body" authorized to engage in low-rent housing projects under the National Housing Act of 1937 (50 Stat. 888; 42 U.S.C. 1401 (1964) ). Solicitor's Opinion, 57 I.D. 145 (1940). And Indian tribes have been held to be organizations with capacity to contract with the United States under the Federal reclamation laws and qualified, like States and political subdivisions thereof, to participate under the Small Reclamation Project Act of 1956 (70 Stat. 1044; 43 U.S.C. §§ 422a-422k (1964) ). Memorandum of August 13, 1965, G-65-1097.3, by the Associate Solicitor, Indian Affairs. The Solicitor's office has expressly held that the Navajo Tribe, whose powers and functions are in all material respects similar to the Fort Peck Tribes, is a qualified preference customer under section 9 (c). Memorandum of April 14, 1961, D-61-1031.6, by the Associate Solicitor, Water and Power.

    Accordingly, we conclude that the Fort Peck Tribes and other Indian tribes functioning as local governments qualify as preference customers under section 9 (c).

                                                                                                                    FRANK J. BARRY,
                                                                                                                                            Solicitor.

ELIGIBILITY OF INDIAN TRIBES TO PARTICIPATE IN
LAND AND WATER CONSERVATION FUND
PROGRAM

M-36709                                                                                                                            August 1, 1967.

Indian Tribes: Organized Tribes--Act of September 3, 1964--Words and Phrases: "Public Agency"

Indian tribes organized to govern themselves and to carry on the functions of a municipal government may qualify as "public agencies" eligible to receive financial assistance under the Land and Water Conservation Fund Act of 1965, Act of September 3, 1964, 78 Stat. 897.

Indian Lands: Tribal Lands--Indians: Civil Jurisdiction

Participation by Indian tribes in Land and Water Conservation Fund Act programs administered by officials or agencies of States would not conflict with the rule that trust and restricted property is subject to control by State agencies only to the extent provided by Federal law since the control by State agencies or officials under such programs is defined by Federal statute.

Indian Lands: Rights-of-Way

The terms and conditions upon which trust and restricted Indian lands and resources may be included in a project under the Land and Water Conservation Fund Act of 1965 may be arranged under the Act of February 5, 1948, 62 Stat. 17; 25 U.S.C. 323-328 (1964).

Memorandum

To:            Secretary
From:        Solicitor
Subject:     Eligibility of Indian tribes to participate in the Land and Water Conservation Fund Program

    The under Secretary recently asked me for an opinion on whether Indian tribal government may qualify for participation in financial assistance to

____________________

    1 Public corporations are those which exist for public and political purposes, such as towns, cities, etc., and those which are founded by the government for public purposes, where the whole interest belongs to the government. Trustees of Dartmouth College v. Woodward, 4 U.S. (Wheat.) 608 (1819).


 

1970

DEPARTMENT OF THE INTERIOR

AUGUST 1, 1967

States under the Land and Water Conservation Fund Act of 1965, Act of September 3, 1964, 78 Stat. 897, 16 U.S.C. 4601-4--4601-11 (1964), as amended, (Supp. II, 1966).

    Section 5 of the Act provides for financial assistance to States for outdoor recreation projects under certain conditions. Section 5 (f) permits States to transfer such funds to "a political subdivision or other appropriate public agency," if consistent with a project approved by the Secretary of the Interior. In a memorandum of December 6, 1965, to the Commissioner of Indian Affairs, the Director of the Bureau of Outdoor Recreation held that an Indian tribal government might qualify as a "public agency" entitled to receive financial assistance under the Act depending upon such factors as whether a given tribe has the powers of local self government, is organized to govern itself, and carries on the functions of a municipal government. This conclusion is correct, we think, and in accord with a number of decisions by the Department holding that Indian tribes are public agencies or comparable entities under several other Federal statutes involving participation by local public agencies in Federal programs.1

    The Land and Water Conservation Fund Act differs, however, from the statutes cited in note 1 in two ways which will be noted briefly here because of their bearing on trust or restricted Indian property.

    First, the United States will make payments for projects only to the authorized State officials, not to localities. The State official or agency responsible for administering Federal funds for approved projects will have responsibility for carrying out several requirements of the Federal law, for example, complying with certain provisions relating to record and accounting procedures. The Arizona Outdoor Recreation Coordinating Commission was established by State law to act for the State in all outdoor recreation matters, including participation in the Land and Water Conservation Fund Act program. If Indian tribes in Arizona wish to participate in the Federal program, there is, of course, no objection to their complying with the requirements of Federal law which is administered, in part, by a State agency. Administrative control by the State of Arizona Outdoor Recreation Coordinating Commission over Indian lands and resources would be limited by the Federal law, the Commission acting for the Federal Government with respect to Indian lands only as authorized by the Land and Water Conservation Fund Act. Consequently, participation by Indian tribes in the program would be a departure from the usual rule that trust and restricted lands are subject to control by State agencies only to the extent provided by federal law. Cf. Solicitor's Opinion M-36175 (July 30, 1953).

    In connection with considering the applicability of the act to Indian lands and resources, an additional provision of section 5 (f) should be mentioned. After providing that funds may be transferred to political subdivisions of a State or other appropriate public agency if consistent with an approved project, the section prohibits any change in the use of property acquired or developed with assistance under the section from public outdoor recreation uses except upon approval by the Secretary on conditions specified by the statute. This apparently requires a dedication for an indefinite time of property included in a project under the act. If Indian trust or restricted land or resources were to be developed as part of an approved project with funds made available under section 5, the Indians would have to relinquish, in favor of the project, rights in the property inconsistent with the public recreational use, except as the Secretary might permit change of use. The Department has held that the Act of February 5, 1948 (62 Stat. 17; 25 U.S.C. §§ 323-328), authorizing the Secretary to grant, subject to specific conditions, rights-of-way for all purposes over and across Indian lands may be used for all facilities including reservoirs under the Colorado River Storage Project Act, 70 Stat. 105; 43 U.S.C. 5620-6200 (1964). Solicitor's Opinion, M-36395, 64 I.D. 70 (1957). If Indian tribes wish to participate in the Land and Water Conservation Fund Program, the conditions upon which trust and restricted Indian lands and resources may be included in a project may be arranged, consistently with the last-cited Solicitor's opinion, by the Indians' requesting the Secretary to grant the required interest under the 1948 right-of-way act.

                                                                                                                    FRANK J. BARRY,
                                                                                                                                             Solicitor.

____________________

    1 See Solicitor's Opinion, 57 I.D. 145 (1940), holding that an Indian tribe is a "public body" authorized to engage in low-rent housing projects under the National Housing Act of 1937 (50 Stat. 888; 42 U.S.C. § 1401 (1964) ); memorandum of August 13, 1965, G-65-1097.3, by the Associate Solicitor, Indian Affairs, holding that Indian tribes may participate under the Small Reclamation Project Act of 1956, 70 Stat. 1044; 43 U.S.C. § 422a-422k (1964); and memorandum of April 14, 1961, D-61-1031.6, by the Associate Solicitor, Water and Power, holding that the Navajo Tribe is a qualified preference customer to purchase electricity under a provision granting such preference to "municipalities and other public corporations or agencies" (53 Stat. 1187, 1194-1195; 43 U.S.C. § 485h. (c) (1964) ).


 

1971

OPINIONS OF THE SOLICITOR

NOVEMBER 30, 1967

  
WHETHER INDIAN TRIBES ARE: "PUBLIC UNITS"
WITHIN THE MEANING OF THE LAWS
GOVERNING THE FEDERAL DEPOSIT
INSURANCE CORPORATION

                                                                                                                                            September 21, 1967.

Mr. John F. Lee
General Counsel
Federal Deposit Insurance Corporation
550 17th Street, N.W.
Washington, D.C. 21429

DEAR MR. LEE:

    The statutory provisions governing the insurance of deposits in federally insured banks provide coverage to the net amount due any depositor in any such bank not to exceed $15,000 unless the deposits are made by an officer, employee, or agent of a "public unit." If deposited by an agent of a "public unit," each deposit is insured up to $15,000. 12 U.S.C. 1813 (m), as amended (Supp. I, 1965).

    The Hualapai Tribe of Arizona maintains several accounts in federally insured banks and has asked to be advised whether Indian tribes qualify as "public units" within the meaning of the statute. "Public unit" is defined in Title 12 as the United States, any state or territory of the United States, or any county, municipality, or political subdivision thereof.

    Indian tribes have always been considered to be political units possessed of all powers of internal sovereignty not expressly denied them by Congress. Generally, these include the power to choose a form of government, to govern themselves, to determine tribal membership, to regulate the domestic relations of members, to levy taxes, to regulate the use of property, to control the conduct of tribal members, and to administer justice. U.S. Department of Interior, Federal Indian Law, 395 (1958). The legal status of tribes has been described, at various times, as that of dependent nations (Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) ), territories of the United States (Mackey v. Coxe, 59 U.S. (18 How.) 100 (1855) ), and municipalities (Turner v. United States, 248 U.S. 354 (1919) ). Fundamentally, however, Indian tribes are "*     *     * distinct, independent, political communities *     *     * " Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).

    In view of the political nature of Indian tribes we have little doubt that they are "public units" within the meaning of 12 U.S.C. § 1813 (m). However, before rendering advice on the subject, we would like to have the benefit of your opinion.

    We have been asked whether it is permissible for a public unit to maintain various accounts subject to the order of the same officers or whether to obtain the benefit of the statute it is necessary for the accounts to have different custodians. We note that most of the accounts maintained by the Hualapai Tribe are subject to the order of the Chairman and the Treasurer.

    For your information, we are enclosing a copy of the list of accounts maintained by the Hualapai Tribe together with the names and titles of those authorized to act for the tribe with respect to those accounts.

                                                                                                                EDWARD WEINBERG,
                                                                                                                                    Deputy Solicitor.

ADOPTION OF INDIAN CHILDREN
IN STATE COURTS

74 I.D. 397

M-36714                                                                                                                     November 30, 1967.

Indians: Domestic Relations--Indians: Civil Jurisdiction--Indians: Care of Children

Where an Indian court has properly terminated the relationship of natural Indian parents to a child, Indian court standing in loco parentis may submit child to the jurisdiction of the state courts to secure his adoption, regardless that child is resident of an Indian reservation.

Memorandum

To:            Commissioner of Indian Affairs
                 Attention: Assistant Commissioner, Community Services Field Solicitor, Billings, Montana
From:        Associate Solicitor, Indian Affairs
Subject:     Jurisdiction of state courts to entertain adoption proceedings involving Indian children

    The Field Solicitor, Billings, in a memorandum dated June 28, 1967, and officers of the Bureau of Indian Affairs, in conferences held both in the field and at headquarters, have requested our opinion as to the legality of the following procedure:

    An Indian child residing on a reservation is produced before a tribal court upon a proper petition alleging that he is dependent and neglected and that his natural Indian parents have demonstrated that they are unable or unwilling to provide the care and support he requires, and pray-


 

1972

DEPARTMENT OF THE INTERIOR

NOVEMBER 30, 1967

ing that the parent-child relationship and the rights of the parents with respect to the child be terminated. After proper proceedings in the tribal court a decree is entered terminating the rights of the parents with respect to the child and making the child a ward of the court. Thereafter, the tribal court, or an agency or person acting on its behalf and as its instrument, presents the child to an appropriate state court for the purpose of invoking state procedures to procure his adoption. Alternatively, we suppose, the tribal court or its agent may place the child with an appropriate state agency which in turn invokes the jurisdiction of the state court to procure his adoption.

    It has been suggested that state courts are without jurisdiction to entertain adoption proceedings brought in this manner because the Indian child concerned is a resident of an Indian reservation. This suggestion apparently proceeds from some such premise as state courts are without jurisdiction over Indians on Indian reservations.

    The suggestion is without substance. Under the circumstances posed there can be no doubt that the state court would have jurisdiction to entertain adoption proceedings brought on behalf of an Indian child.

    Indian reservations are not extraterritorial to the states wherein they are located. They are places where special laws often apply to Indian people. But the Indian residents of a reservation are full citizens of the state wherein they reside, as well as of the United States, and are entitled to all the rights and privileges appertaining to that status.1

    With respect to many subject matters, Indian activities on Indian reservations are subject to special Federal and tribal jurisdictions which are exclusive of the states'. For example, where a state has not been given or assumed such jurisdiction,2 special exclusive jurisdictions exist in the Federal and tribal governments to take cognizance of offenses committed by or against Indians on Indian reservations.3 Similarly, special jurisdictions, exclusive of the states', have been assigned to tribal governments with respect to reservation-based transactions involving Indians and with respect to matters involving internal government.4 On the other hand, the maxim that Indian reservations are not extraterritorial to the states wherein they are located, is demonstrated by the fact that generally the states possess exclusive jurisdiction of activities thereon which involve neither Indian persons, property nor affairs. The states, for example, have long been conceded exclusive jurisdiction over offenses committed by non-Indians against non-Indians on Indian reservations.5 Again, it has long been recognized, with some important exceptions not here relevant, that the off-reservation activities of Indians are within the cognizance of the states and their courts. In short, Indians, simply because of their status as such, are neither beyond state jurisdiction or disqualified to invoke it. Although it cannot be said that, for purposes of jurisdiction, the Indian reservation is wholly without territorial significance (because the special and exclusive jurisdictions over certain subject matters involving Indians which have been assigned to the Federal and tribal governments are frequently coterminous with the Indian reservations or country), the touchstone of jurisdiction in cases involving Indians is ultimately neither personal status nor the situs of the activity. It is, rather, the subject matter.

    The shibboleth that a state categorically is without jurisdiction over Indians on Indian reservations does not survive analysis. The heavy authorities customarily cited to support it, products of an era in which Indian tribes were truly regarded and treated as foreign nations, have little relevance in the seventh decade of the 20th Century.6

    There is no generic bar to a state's exercising jurisdiction over Indians on reservations. There are, however, broad classes of matters which have been subjected by Federal law to exclusive Federal or tribal cognizance. Internal government and the relations of members inter se are examples of classes of matters over which jurisdiction has been left by the Federal Government largely in the tribes. The test of the propriety of state action which approaches these areas is whether it interferes with powers reserved to the tribes.7

    Clearly, the activity of the state courts in the situation posited does not interfere with reservation self-government. Indeed, it is positively in aid of it. It may be that the legality of the procedure here could be sustained on other grounds, because it likely entails the physical presence of the child before the state court, off the reservation. As noted, it has long been recognized that Indians off the reservation are generally subject to the jurisdiction of the state courts, just as other citizens. We are satisfied that there can be no question of the competence of a state court to enter

____________________

    1 Kake Village v. Egan, 369 U.S. 60 (1961).
    2 See Act of August 15, 1953, 67 Stat. 588, as amended 28 U.S.C. 1360 and 18 U.S.C. 1162 (1966).
    3 See 18 U.S.C. 1151-1153 (1966). Williams v. United States, 327 U.S. 711 (1946).
    4 Williams v. Lee, 358 U.S. 217 (1958).
    5 United States v. McBratney, 104 U.S. 621 (1881)
    6 Kake Village v. Egan, supra.
    7 Compare Williams v. Lee, supra, with Kake Village v. Egan, supra.


 

1973

OPINIONS OF THE SOLICITOR

JANUARY 8, 1968

tain adoption proceedings on behalf of an Indian child under the circumstances presented because the exercise of such jurisdiction does not involve trespass upon ally area reserved to the exclusive cognizance of the Federal or tribal governments.

    It is difficult to conceive what possible impediment to a state court's jurisdiction could be suggested were the natural parents of the Indian child to bring the child before the court for the purpose of terminating their relationship to him and secur ing his adoption. In the circumstances presented, assuming that the parental relationship has been properly terminated by the tribal court, that court then stands in loco parentis and has the same power as had the natural parents to submit the child to the jurisdiction of a state court to secure his adoption.

    The adoption laws and practices of most states are worked into relatively refined programs administered by the courts and welfare agencies to protect the interests of dependent children and to find good foster homes for those needing them. Programs of the sort conducted by the states are generally beyond the capacities and resources of tribal governments. The transcendent concern must be the welfare of the children and where tribal governments chose to utilize state programs for securing the adoption of dependent Indian children they should not be deterred by the interposition of baseless legal objections.

                                                                                                                    RICHMOND F. ALLAN,
                                                                                                                                        Associate Solicitor,
   
                                                                                                                                                     Indian Affairs.

Approved:
EDWARD WEINBERG, Deputy Solicitor.

RESTORATION TO INDIAN TRIBES OF FUNDS HELD
FOR UNCLAIMED PER CAPITA PAYMENTS WHERE
PAYMENT CHECKS ARE OUTSTANDING

M-36741                                                                                                                        January 8, 1968.

Funds: Generally--Accounts: Payments--Act of September 22, 1961, 75 Stat. 584--Indian Tribes: Fiscal and Financial Affairs--Indians: Fiscal and Financial Affairs

The Act of September 22, 1961, 75 Stat. 584 25 U.S.C. § 164-5 (1964) requires that monies representing per capita shares or other individualizations, which have been unpaid for a period of six years, be restored to Indian tribal accounts even if such individualizations are represented by government checks which may be outstanding. Such restoration would cut off the claims of the payees of such checks but not the rights of holders in due course who are protected by the Act of August 21, 1957, 31 U.S.C. § 132 (1964).

Mr. Fred B. Smith
General Counsel
Department of the Treasury
Washington, S.C. 20220

DEAR MR. SMITH:

    This is in response to the informal request of Mrs. Charlotte T. Lloyd, Assistant General Counsel, for information on the background of the Act of September 22, 1961, 75 Stat. 584, 25 U.S.C. §§164-5 (1964), which provides for the restoration of unclaimed per capita payments to Indian tribes; particularly, information concerning the statute's relation to the Act of August 21, 1957, 71 Stat. 464, 31 U.S.C. 5132, governing the payment of checks drawn on the Treasurer of the United States. It is our understanding that your office has been requested to give advice on whether it is proper to cancel checks on the basis of 25 U.S.C. §§164-5 in the course of restoring unclaimed per capita payments to tribal ownership.

    Although the legislative history of 25 U.S.C. §§164-5 contains no indication of consideration by Congress of the fiscal procedures involved in the restoration of funds under the legislation, it would be unreasonable to conclude that Congress intended the act to be effective only where there are no outstanding checks against funds otherwise subject to restoration to tribal ownership, since to so limit its effectiveness would frustrate the accomplishment of its purpose. Of the purpose of the act we think there can be no question. As clearly indicated in H.R. Rep. No. 1005, 87th Cong., 1st Sess. and S. Rep. 276, 87th Cong., 1st Sess., the act was intended to authorize, without exception, the restoration of a per capita share to tribal ownership whenever, "for any reason such share cannot be paid to the individual entitled thereto and remains unclaimed for a period of six years from the administrative directive to make the payment, or one year from the date of this act, whichever occurs later." Furthermore, since for many years all per capita shares derived from tribal funds have been distributed solely by checks drawn by disbursing officers of the Bureau of Indian Affairs on the Treasurer of the United States, we think it may be presumed that Congress legislated with knowledge of this practice. Consequently, it is fair to conclude Congress did not intend the provisions


 

1974

DEPARTMENT OF THE INTERIOR

JANUARY 8, 1968

of 31 U.S.C. §132 relating to payment of checks to bar restoration under 25 U.S.C. §§164-5.

    Indeed, we see no conflict between the two statutes. The 1957 legislation was enacted to remove the 10-year limit which formerly existed on payment of checks drawn on the Treasurer of the United States, a limitation that required checks more than 10 years old to be presented for settlement to the General Accounting Office, and to simplify in other ways the accounting procedures connected with the handling of government checks. H.R. Rep. No. 666, 85th Cong., 1st Sess. (1957). The 1961 Act is concerned with cutting off the claims of individuals for payments which are evidenced by checks drawn on the Treasurer of the United States. In so doing the statute does not operate in any way to terminate the right of a holder in due course to payment of any per capita check he has acquired.

    The General Accounting Office has concurred in the view that restoration action under 25 U.S.C. §§164-5 terminates a payee's right to payment. See enclosed copies of a letter dated December 8, 1964, and enclosures, from Chief, Branch of Finance, Bureau of Indian Affairs, to the General Accounting Office, and of the GAO settlement certificate dated January 26, 1965.

    Restoration action which has heretofore been taken pursuant to the 1961 Act has followed procedures agreed upon by Treasury and Bureau of Indian Affairs officials. See the enclosed copies of memoranda for the record of meetings held on December 5 and November 12, 1963, between Treasury and Bureau officials. In these restorations, provision has been made to earmark part of the funds involved to pay any claim which may be presented by holders in due course. See, for example, the enclosed copies of a letter dated February 13, 1964, from the Special Assistant Treasurer and a letter dated May 13, 1964, from the Acting Chief, Branch of Budget and Finance, Bureau of Indian Affairs. See also enclosed copies of an undated "Statement: Proceeds of Oneida Annuity Checks Restored to Tribal Membership." The practice of holding funds to pay any holders in due course has not presented difficulties in the past, and it is not expected to do so in the future.

    It is of considerable concern to this Department that restoration to Indian tribes of funds presently held for unclaimed per capita payments be accomplished as rapidly as possible. Therefore, if we may furnish any additionai information which will aid in resolving the question raised in your Department, please let us know.

                                                                                                                    EDWARD WEINBERG,
                                                                                                                                        Deputy Solicitor.

VALIDITY OF LEASE FOR TRADING POST
ON GOVERNMENT LANDS AT FORT
WINGATE, NEW MEXICO

                                                                                                                                        August 19, 1968.

Memorandum

To:            Secretary
From:        Deputy Solicitor
Subject:     Tenure of Paul Merrill on Government lands at Fort Wingate, New Mexico

    This is in response to the request made on your behalf by your Special Assistant, James E. Officer, that we review the file on the above-mentioned matter and recommend a course of action. Under date of July 17, 1968, Mr. Merrill wrote to Mr. Officer enclosing a legal memorandum, dated June 10, 1968, with attachments, prepared by his attorney, Mr. Karl D. Byrd.

    The memorandum expresses doubt that this Department has definitely ruled on the validity of the purported lease of the land involved given to Mr. Merrill in 1957, for a term of 25 years from January 1, 1955. It concludes with the petition that the lease be upheld and the cloud over Mr. Merrill's tenure dispelled.

    Mr. Merrill's letter of July 17, 1968, concludes with a request that a meeting be held to work out an arrangement which would afford him tenure of sufficient firmness and duration to be acceptable as security to lending institutions.

    The facts have previously been stipulated and presented to the Department by a letter dated June 1, 1967, from Mr. Byrd to the Field Solicitor, Albuquerque, and memoranda dated October 26, 1967, and February 7, 1968, from the Field Solicitor to the Associate Solicitor, Indian Affairs. The memorandum of February 7, 1968, was approved by Mr. Byrd.

    In addition to the documents and attachments hereinbefore referred to, we had before us and considered the following:

    (1)    Letter dated November 10, 1967, to Field Solicitor from Mr. Byrd;
    (2)    Letter dated November 21, 1967, to Mr. Byrd from Field Solicitor;
    (3)    Letter dated February 7, 1968. to Mr. Byrd from Field Solicitor;
    (4)    Memoranda dated March 19, 1968, (opinion and transmittal) to Field Solicitor from Assistant Solicitor,
             Indian Legal Activities;
    (5)    Letter dated March 29, 1968, to Mr. Byrd from Field Solicitor;


 

1975

OPINIONS OF THE SOLICITOR

AUGUST 19, 1968

    (6)    Letter dated April 26, 1968, to Mr. Byrd from Field Solicitor.

    Mr. Merrill operates a trading post on a tract of land comprising approximately 15 acres at Fort Wingate, New Mexico, The tract is part of the land transferred by the Act of June 20, 1950, 64 Stat. 248, from the Department of the Army to the Department of the Interior, for use by the Bureau of Indian Affairs. The Act provides that: "Title to the land . . . shall remain in the United States for the use of the Bureau of Indian Affairs."

    The land has clearly been reserved by Congress for Government purposes.

    Without attempting a complete restatement of the facts which are fully set out in the Field Solicitor's memoranda of October 26, 1967, and February 7, 1968, it appears that on February 12, 1957, a purported lease was executed by and between the United States of America (acting through the Commissioner of Indian Affairs, and signed by his delegate, W. Wade Head, Area Director, Bureau of Indian Affairs), as lessor, and Mr. Merrill, as lessee, whereby the latter was demised the 15-acre tract for a term of 25 years commencing on January 1, 1955, renewable for a further term of like duration. Early in 1961 Mr. Merrill was advised that the Department regarded the lease as invalid because its execution was not authorized by law and was beyond the authority of its officers. In 1963 Mr. Merrill accepted a revocable use permit covering the tract reserving whatever rights he might have under the lease.

    The question of the validity of the lease was submitted upon a stipulation of facts to the Division of Indian Affairs of the Office of the Solicitor. On March 19, 1968, the Assistant Solicitor, Indian Legal Activities, rendered a memorandum opinion which concluded that the lease was invalid and that the only rights possessed by Mr. Merrill with respect to the tract were those accorded by the revocable use permit. It also concluded that Mr. Merrill is in default under the permit, having failed to pay certain rents or fees required. thereby.

    As noted, Mr. Merrill and his attorney have expressed doubt that the memorandum opinion or any administrative action heretofore taken constitutes a final determination by this Department of the issue of the validity of the lease.

    The Constitution provides: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . ." Art. IV, § 3. No grant of an interest in property of the United States may be made except by virtue of Congressional authorization. Osborne v. United States, 145 F. 2d 892, 896 (9 Cir. 1944).

    While the Secretary of the Interior has been empowered by Congress to administer a number of laws which make provision for the disposition of lands and interests therein owned by the United States, it has passed no law authorizing the Secretary to dispose of lands or interests therein set apart, as the lands here involved have been, by Congress for administrative purposes of this Department. See Solicitor's Opinion M-34331, 59 I.D. 313 (1946).

    The only general authority which the Secretary has with respect to lands in the status of those here involved is provided by 5 U.S.C. 301, to "prescribe regulations for the government of [the Department of the Interior] . . . and the custody, use, and preservation of its . . . property." This authority has been construed to permit the head of an Executive department, when he finds it to be in the public interest, to issue revocable licenses for the use of real property under his administration. 30 Op. A.G. 470, 483. The existence and limits of this authority are recognized by the regulations of this Department which provide that "[t]he Secretary may grant permits on Government land" (25 CFR 131.2 (c) ), and define "permit" as "a privilege revocable at will in the discretion of the Secretary and not assignable, to enter on and use a specified tract of land for a specified purpose" (25 CFR 131.1 (e) ).

    The conclusion is inescapable that the granting of the purported lease to Mr. Merrill in 1957 was beyond the authority of any officer of this Department and that the lease is null and void.

    The authority of the Secretary to dispose of lands in the status of those here involved is no greater today than it was in 1957. Mr. Merrill has requested a meeting with representatives of the Department to work out a lease which would accord him tenure similar to that provided by the instrument executed in 1957. As it is beyond the power of the Department to grant what he wants, and as the Department already has given by issuing the revocable permit all that it is able to give, we do not believe that more can be done.

    We suggest that you send a copy of this memorandum to Mr. Merrill and inform him that it constitutes a final determination by the Department that the purported lease given him in 1957 was beyond the authority of any officer of this Department to grant and is null and void. Mr. Merrill can then attempt to test the correctness of this conclusion in such manner as he is advised.

                                                                                                                    RICHMOND F. ALLAN,
                                                                                                                                            Deputy Solicitor.

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