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651

OPINIONS OF THE SOLICITOR

JUNE 25, 1936

many cases of a mortgage upon the property, the purchase of which the corporation is financing. But if title to that property is held by the United States the property could not be mortgaged to and be unable to and resold by the corporation and the corporation would be able to obtain effective security. The general effect of retaining title to individual property in the United States is to impair the power and responsibility of the incorporated tribe. As was said by the Solicitor in his memorandum of December 5, 1935, criticizing the first submitted draft of the credit regulations,

    "Money from the revolving credit fund may not be loaned to individual Indians directly. * * * The Government can deal only with the tribal authorities, and these are charged with the responsibility for making such loans to their members, or for using the funds in such ways, as will enable them to create a basis for expanding self-sufficiency. In accordance with the purpose expressed in sections 16 and 17 of the Reorganization Act, by which a large and increasing responsibility for taking care of their own welfare is placed upon the various tribes, organized for local self-government and economic activity, section 10 contemplates that funds loaned to the tribes will be, in large measure, subject to their disposition, consistent with the terms of said provision."
    I recognize that it is your desire that Indians avoid State taxation of property purchased with revolving credit funds. I do not agree, however, that the retention of Federal title is either effective or necessary to achieve this purpose. If, as your covering memorandum to the Secretary suggests, the Indians will lose a large part of the property they purchase unless the Government retains title, that is a serious argument against the entire credit program. After all, the retention of security title in the United States would only postpone, and would not prevent, such taxation if it be otherwise proper. I am confident, however, that tribal property, even though not held in the name of the United States, is not subject to direct State taxes or to levy or attachment in State courts without the consent of the corporation. It is on this assumption that tribal charters are being drafted. The following cases support this assumption:
The New York Indians, 5 Wall. 761;
The Kansas Indians, 5 Wall. 737;
Territory of Alaska v.Annette Island Packing Co., 289 Fed. 671, cert. den. 263 U.S. 708;
United States v. Higgins, 103 Fed. 348;
Wau-pe-man-qua v. Aldrich, 28 Fed. 489;
Foster v. Commissioners of Blue Earth Co., 7 Minn. 140;
Board of Commissioners v. Simons, 129 Ind. 193, 29 N.E. 420;
And cf. Indian Oil Co. v. Oklahoma, 240 U.S. 522.
    I am therefore of the opinion that the retention of Federal title is not necessary to secure exemptions from State taxation of Indian property, at least so long as title to such property is held by an Indian tribe.

    Whether such property will become subject to State taxation when it has been completely paid for and legal title is held by an individual Indian is a more difficult question. Certain of the decisions above cited sustain the claim of tax exemption  in this case as well. It is not necessary, however, to decide this question at the present time since it does not in any way affect the question here presented of whether security title should be taken in the name of the United States. If individual Indian property is subject to State taxation the Indian will have to pay taxes when he has finished paying for the property, whether or not the United States held a security title before the property was paid for. If such property is not subject to State taxation then, again, it makes no difference whether or not the United States held a security title. In short, the retention of title by the United States is ineffective to render the property permanently tax exempt if individual Indian property may be taxed by the States, and it is totally unnecessary if such property may not be taxed by the States. Until the property has been actually paid for, the retention of trust title by the United States offers no greater security under either theory than does the retention of a security title by the corporation.

    Believing that the proposed amendment to Rule 18 is legally unnecessary for the chief purpose it is designed to serve, that it imposes upon the United States legal liabilities of unknown scope, that it imposes upon the Indians a stifling burden fo procedural complications, and that it requires action by the Secretary which is contrary to the intent of the Indian Reorganization Act, I am compelled to return the attached papers to you without my approval.

Acting Solicitor.
 


 

652

DEPARTMENT OF THE INTERIOR

JUNE 30, 1936

RED LAKE RESERVATION-TITLE TO LANDS

M-28107                                                                                                                               June 30, 1936.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    At the suggestion of the Commissioner of Indian Affairs, you have requested my opinion on the following questions:

    1. Does title to the lands submerged by the waters of Lower Red Lake and that part of Upper Red Lake inside the boundaries of the Red Lake Indian Reservation in the State of Minnesota rest in the State or in the Red Lake and Pembina Bands of Chippewa Indians?

    2. What right, if any, has the State of Minnesota to interfere with the exclusive right of fishing within these waters heretofore enjoyed by the Indians of the Red Lake Reservation?

    The first question needs little consideration. In United States v. Holt Bank, 270 U.S. 49, the Supreme Court decided that the lands underlying the navigable waters within the Red Lake Indian Reservation passed to the State of Minnesota upon its admission into the Union. The court said:

    "We come then to the question whether the lands under the lake were disposed of by the United States before Minnesota became a State. An affirmative disposal is not asserted, but only that the lake, and therefore the lands under it, was within the limits of the Red Lake Reservation when the State was admitted. The existence of the reservation is conceded, but that it operated as a disposal of lands under lying navigable waters within its limits is disputed. We are of opinion that the reservation was not intended to effect such a disposal and that there was none. If the reservation operated as a disposal of the lands under a part of the navigable waters within its limits it equally worked a disposal of the lands under all. Besides Mud Lake, the reservation limits included Red Lake, having an area of 400 square miles, the greater part of the Lake of the Woods, having approximately the same area, and several navigable streams. The reservation came into being through a succession of treaties with the Chippewas whereby they ceded to the United States their aboriginal right of occupancy to the surrounding lands. The last treaties preceding the admission of the State were concluded September 30, 1854, 10 Stat. 1109, and February 22, 1855, 10 Stat. 1165. There was no formal setting apart of what was not ceded, nor any affirmative declaration of the rights of the Indians therein, nor any attempted exclusion of others from the use of navigable waters. The effect of what was done was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory; and thus it came to be known and recognized as a reservation. Minnesota v. Hitchcock, 185 U.S. 373, 389. There was nothing in this which even approaches a grant of rights in lands underlying navigable waters; nor anything evincing a purpose to depart from the established policy, before stated, of treating such lands as held for the benefit of the future State. Without doubt the Indians were to have access to the navigable waters and to be entitled to use them in accustomed ways; but these were common rights vouchsafed to all, whether white or Indian, by the early legislation reviewed in Railroad Company v. Schurmeir,7 Wall. 272, 287 289, and Economy Light & Power Co. v. United States, supra, pp. 118-120, and emphasized in the Enabling Act under which Minnesota was admitted as a State, c. 60, 11 Stat. 166, which declared that the rivers and waters bounding the State 'and the navigable waters leading into the same shall be common highways, and for ever free, as well to the inhabitants of said State as to all other citizens of the United States.' "
    In view of this decision, it must be held that the title to the beds of Upper and Lower Red Lakes, both of which are conceded to be navigable bodies of water, rests in the State of Minnesota and not in the Red Lake and Pembina Bands of Chippewa Indians. The first question is answered accordingly.

    Before discussing the second question, which presents more difficulty, it is appropriate to point out that the right of fishing in the waters of Upper and Lower Red Lakes may exist in the Indians notwithstanding State ownership of the submerged lands. If at the time of admission of the State into the Union, there existed in the Indians as a part of their larger rights in the lands used and occupied by them the right of fishing in these waters, the State may be said to have taken title to the submerged lands subject to that right. Thus in Beecher v. Wetherby, 95 U.S. 517, 525, the Supreme Court of the United States held that the State of Wisconsin, in virtue of her enabling act, took title to the sixteenth sections in the townships of that State, subject to the Indian right of use and occupancy. The court ruled that the fee was in the
 


 

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United States, subject to that right, and could be transferred whenever they chose, but added, "the grantee would take only the naked fee, and could not disturb the occupancy of the Indians; that occupancy could only be interfered with or determined by the United States." To the same effect is United States v. Thomas, 151 U.S. 577.

    As pointed out by the Commissioner of Indian Affairs, the diminished Red Lake Reservation embraces the remnant of a large domain of land formerly occupied and claimed by the Chippewa Indians but subsequently acknowledged as belonging to the Red Lake and Pembina Bands of Chippewas by the treaty of October 2, 1863 (13 Stat. 667), and the acts of January 14, 1889 (25 Stat. 642), March 2, 1903 (32 Stat. 1009), and February 20, 1904 (33 Stat. 46). Prior to the cession made pursuant to the act of January 14, 1889, supra, the Indian title extended to all of the lands surrounding Upper and Lower Red Lakes. Under that cession, however, about one half of Upper Red Lake was excluded from the reservation, leaving the remainder of that Lake and all of Lower Red Lake within the boundaries of the diminished reservation.

    An examination of the various treaties between the United States and the Chippewa Indians discloses that while the right in the Indians to hunt and fish on ceded lands was reserved in some of the earlier treaties (see Article 5, treaty of July 20, 1837, 7 Stat. 536; Article 2, Treaty of October 4, 1842, 7 Stat. 591; and Article 11, treaty of September 30, 1854, 10 Stat. 1109), no reservation of the right to hunt and fish was made with respect to the unceded lands of the Red Lake Reservation. But such a reservation was not necessary to preserve the right on the lands reserved or retained in Indian ownership. The right to hunt and fish was part of the larger rights possessed by the Indians in the lands used and occupied by them. Such right, which was "not much less necessary to the existence of the Indians than the atmosphere they breathed" remained in them unless granted away. United States v. Winans, 198 U.S. 371. Speaking of a similar situation, the Supreme Court of Wisconsin in State v. Johnson, 249 N.W. 285, 288, said:

    "While the treaty entered into did not specifically reserve to the Indians such hunting and fishing rights as they had theretofore enjoyed, we think it reasonably appears that there was no necessity for specifically mentioning such hunting and fishing rights with respect to the lands reserved to them. At the time the treaty of 1854 was entered into there was not a 'shadow of impediment upon the hunting rights of the Indians' on the lands retained by them. 'The treaty was not a grant of rights to the Indians, but a grant of rights from them-a reservation of those not granted.' United States v. Winans, 198 U.S. 371, 25 S. Ct. 662, 664, 49 L. Ed. 1089. We entertain no doubt that the rights of the Indians to hunt and fish upon their own lands continued."
    The court further recognized that as to unpatented lands inside the reservation, the fish and game laws of the State of Wisconsin were without force and effect.

    By tradition and habit the Indians as a race are hunters and fishermen, depending largely upon these pursuits for their livelihood. Their ancient and immemorial right to follow these pursuits on the lands and in the waters of their reservation is universally recognized. The Indians of the Red Lake Reservation appear to have asserted and exercised an exclusive right of fishing in the waters of Upper and Lower Red Lakes from the beginning subject only to Federal control and regulation. The right of the Indians so to do has not heretofore been disputed by the State of Minnesota but has been recognized and acquiesced in. Such recognition and acquiescence is amply shown by the fact that the State through its Game and Fish Commissioner has entered into contracts with the Federal authorities in charge of Indian Affairs authorizing it to take and remove fish from that part of the Lake within the reservation boundaries upon conditions 'requiring among other things the payment to the Indians of royalties at prescribed rates (see Indian Office File No. 44606-17 Red Lake 115). And in an opinion dated November 27, 1931, the Assistant Attorney General for the State of Minnesota advised the Director of Game and Fish that white men could not take fish in that part of Red Lake within the reservation unless permitted so to do by the Federal authorities in charge of the reservation, and that Indians were not subject to State law when taking fish for their own use within the reservation. Circumstances somewhat similar to these, coupled with the rule of liberal construction uniformly invoked in determining the rights of Indians, were cited by the Supreme Court of the United States in support of its conclusion that the Metlakahtla Indians had an exclusive right to fish in the waters adjacent to Annette Islands in Alaska notwithstanding the fact that the Act of Congress setting aside the Islands as a reservation for the Indians made no mention of the surrounding waters or the fishing rights of the Indians therein. Alaska Pacific Fisheries v. United States, 248 U.S. 86. The court said, among other things:
 


 

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    "This conclusion has support in the general rule that statutes passed for the benefit of dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians. Choatev. Trapp, 224 U.S. 665, 675, and cases cited. And it has further support in the facts that, save for the defendant's conduct in 1916, the statute from the time of its enactment has been treated, as stated in the opinion of the Alaska court, by the Indians and the public, as reserving the adjacent fishing grounds as well as the uplands, and that in regulations prescribed by the Secretary of the Interior on February 9, 1915, the Indians are recognized as the only persons to whom permits may be issued for erecting salmon traps at these islands."

    In United States v. Sturgeon (27 Federal Cases, Case No. 16,413), the court gave consideration to the rights of the Indians of the Pyramid Lake Indian Reservation in Nevada to fish in the waters of a lake inside the boundaries of their reservation and held:
    "The president has set apart the reservation for the use of the Pah Utes and other Indians residing thereon. He has done this by authority of law. We know that the lake was included in the reservation, that it might be a fishing ground for the Indians. The lines of the reservation have been drawn around it for the purpose of excluding white people from fishing there, except by proper authority. It is plain that nothing of value to the Indians will be left of their reservation if all the whites who chose may resort there to fish. In my judgment, those who thus encroach on the reservation and fishing ground violate the order setting it apart for the use of the Indians, and consequently do so contrary to law."
    In an opinion dated May 14, 1928 (M-24358), the Solicitor for this Department ruled that the State of Washington was without right to regulate or control the use of boats on navigable bodies of water within the Quinaelt Reservation in that State. The Solicitor said, and his remarks apply with equal force here:
    "Manifestly, unless the Indians of the Quinaelt Reservation are protected in the exclusive use and occupancy of their reservation including ,the waters therein, navigable or non-navigable, then their rights may become subject to serious interference, if not jeopardy, by outsiders. If we admit the right of the State to invade the reservation for the purpose of regulating or controlling the use of boats on the Queets or any other body of navigable water therein, it would be tantamount to recognizing the right of the State to regulate other activities there, including fishing. This we can not afford to do."
    Minnesota was admitted into the Union in 1858. The Indian title, as subsequently recognized by treaty and Act of Congress, then extended to all of the lands surrounding Upper and Lower Red Lakes. The Indian title was that of occupancy only, the ultimate fee being in the United States, but the right of occupancy extended to and included the right to fish in the waters of the Lakes. United States v. Winans, supra. These rights in so far as the diminished reservation is concerned have never been surrendered or relinquished by the Indians nor have they been taken away by any Act of Congress of which I am aware. In these circumstances, it is not unreasonable to hold that the State upon its admission into the Union took title to the submerged lands subject to the occupancy rights of the Indians in virtue of which the Indians possess an exclusive right of fishing in the waters of the Lakes. Beecher v. Weatherby, supra; United States v. Thomas, supra. If this be the correct view, and I think it is, the exercise by the Indians of the right of fishing is subject to Federal and not State regulation and control. United States v. Kagama, 118 U.S. 375; In re Blackbird, 109 Fed. 139; Peters v. Malin, 111 Fed. 244; In re Lincoln, 129 Fed. 246; United States v. Hamilton, 233 Fed. 685; State v. Campbell, 53 Minn. 354, 55 N. W. 553.

    In expressing the foregoing view, I am mindful of the statement of the Supreme Court in United States v. Halt Bunk, supra, that while the Indians of the Red Lake Reservation were to have access to the navigable waters therein and were to be entitled to use them in accustomed ways, "these were common rights vouchsafed to all, whether Indian or white." But when this statement is read, as it should be, in the light of the decisions cited in its support, it becomes apparent that the court had in mind rights of navigation of a public nature and not private rights of ownership such as the Indian right of fishing. The latter right was not involved and was neither considered nor discussed.

    Accordingly, since the Indian's exclusive rights
 


 

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OPINIONS OF THE SOLICITOR

JULY 3, 1936

to fish in the waters of Lower Red Lake and that part of Upper Red Lake inside the Indian reservation is supported by all of the decided cases touching on the subject, it is my opinion that continued administrative recognition of such rights as exclusive in the Indians is fully justified.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.
Approved: June 30, 1936.
OSCAR L. CHAPMAN, Assistant Secretary.

NAVAJO COAL MINING

July 1, 1936.
Memorandum for the Commissioner of Indian Affairs:

    There is returned to you herewith for further consideration a letter dated June 29 prepared for departmental approval which would authorize the mining of coal for Government use on the Navajo Reservation.

    I know of no statute authorizing the Govt. to take coal or any other minerals from tribal land without payment. Possibly there are precedents for such action and it is possible that a plausible argument supporting the legality of such action can be worked out. On the other hand, taking minerals from tribal land without the consent of the Indians is the sort of thing for which past administrations have been severely and I think justly criticized. I do not think we should be less scrupulous in this matter because in our opinion the coal will be used for the benefit of the Navajo Indians. If they agree without opinion in this matter they will probably not refuse their consent to the mining operations. On the other hand, they may conceivably feel that the chief beneficiaries of this arrangement will be Agency employees and the United States Treasury, which would otherwise bear the burden of increased appropriations for fuel brought in from outside the reservation.

    For these reasons I recommend that the Supt. of the Navajo Agency be instructed to secure the consent of the Navajo Tribal Council before opening a coal mine on tribal land.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.

 
1937 APPROPRIATION ACT
July 3, 1936.


 Memorandum for the Commissioner of Indian Affairs:

    I should like to call to your attention certain questions raised by the Interior Department Appropriations Act for 1937, approved June 22.

    This act makes appropriations out of tribal funds for various purposes, including industrial assistance, operation and maintenance of pumping plants and irrigation systems, education, general support and administration and expenses of tribal councils. Certain of the tribes, affected by these appropriations from tribal funds are, and were prior to June 22, organized under constitutions. According to these constitutions, and according to the express language of section 18 of the act of June 18, 1934, the tribe has a final veto power over any disposition of its tribal funds. Two questions which in my opinion require immediate consideration are: (1) Are the provisions of section 16 and the constitutional provisions adopted in accordance therewith applicable to these appropriations? (2) If so, what procedure shall be followed in securing the consent of the proper tribal authorities to the expenditure of the appropriated funds?

    These questions are of considerable importance since they involve the possibility of exceptions to the accounts of departmental disbursing officers, suits in the Court of Claims. Because of the im-expenditures [sic], and even a possible basis for future suits in the Court of Claims, Because of the importance of these questions I am, at the suggestion of Mr. Dodd, bringing the matter directly to your attention.

    Section 16 of the act of June 18, 1934, provides:

    "In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe, or its tribal council the following rights and powers: * * * to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; * * *".
    In accordance with this provision the various Indian constitutions have included grants of authority to tribal councils, of which the following are samples:
    "To approve or veto any sale, disposition,
 

 

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JULY 3, 1936

lease, or encumbrance of tribal lands and tribal assets which may be authorized or executed by the Secretary of the Interior, the Commissioner of Indian Affairs, or any other agency of the Government, provided that no tribal lands shall be sold or encumbered or leased for a period in excess of five years, except for Governmental purposes." (Confederated Salish and Kootenai Tribes of the Flathead Reservation, Article VI, section I(d).)

    "2. To prevent the sale, disposition, lease, or encumbrance of pueblo lands, interests in lands, or other tribal assets." (Pueblo of Santa Clara, Article IV, section 1.)

    Unless these constitutional provisions and section 16 of the act of June 18, 1934, have been repealed by the departmental appropriation act it would seem that officers of the Department authorized to expend tribal funds should secure the consent of the tribal authorities concerned to the desired expenditures. The first question presented therefore is whether the appropriations act operates to repeal, pro tanto, the requirements of section 16 of the act of June 18, 1934.

    Certainly the departmental appropriations act contains no express repealer of section 16. Repeals by implication are not favored in law, unless the later statute is logically inconsistent with the earlier statute. In this case there does not appear to be any such inconsistency. The appropriations act does not compel, but merely authorizes, the expenditure of certain funds. Actual expenditure, pursuant to the language of the appropriation, depends upon various statutes which restrict the manner of spending money. Such statutes, for example, as permit the diversion of certain appropriations to designated purposes (25 United States Code, Sec. 140), or prohibit the payment of annuities to Indians at war with the United States (25 United States Code, Sec. 128), or "within convenient reach" of intoxicating liquor (25 United States Code, Sec. 130) continue to restrict the actions of departmental officers in paying out funds actually appropriated, even though the language of the appropriation act makes no reference to these statutes, and even though these restrictions may possibly prevent any expenditure of a particular appropriation. So, too, it would seem that the Interior Department Appropriations Act of 1937 is subject to the specific restriction contained in section 16 of the act of June 18, 1934, and that tribal funds appropriated thereby may not be disbursed by officers of the Department without the approval of the proper tribal officers, in the case of organized tribes.

    Such is the meaning of section 16 as expounded by the Chairman of the House Committee reporting on the measure that was finally enacted. The following language seems to indicate that it was the intent of Congress to modify existing law, under which Indian tribes had merely an advisory function in the expenditure of tribal funds, and to confer upon organized tribes a definite veto power:

    "* * * Under existing law, tribal moneys may be appropriated for the expenses of the Indian Service. It has been estimated that since 1900 the Government has spent $500,000,000 of tribal money in per capita payments and administrative costs. Much of this money has gone to pay for routine activities of the Indian Service over which the Indians have exercised no control whatever, much has been spent for ill-advised irrigation projects which have benefited the whites rather than the Indians, without the consent of the tribe.

    "The Indians should unquestionably have a voice in the spending of their own money. The present system is in effect a totally in defensible system of 'taxation without representation' and has led to the profligate and unproductive expenditure of vast sums of money. Most of this huge expenditure represented Indian capital, derived either from the sale of land or other assets or from claims arising out of Government mismanagement of Indian property. It should be axiomatic that no Indian capital should be spent for any purpose except productive development of Indian property or enterprise. The expenditure of these vast sums of capital for routine administration or for per capita doles should be stopped. The bill would give the Indians a veto power over such expenditures."

    If I am correct in my understanding of the purpose of section 16 of the act of June 18, 1934, then it would seem that the Department should inform the Indians concerned of their rights and should inform the departmental disbursing officers of their new obligations in connection with the expenditure of tribal funds.

    I suggest therefore that you prepare for the signature of the Secretary a set of instructions or regulations proposing a workable method of handling such appropriations.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.
Approved:
Assistant Secretary.
 


 

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OPINIONS OF THE SOLICITOR

JULY 8, 1936

FLATLAND--TAKING TRIBAL LANDS FOR RESERVOIR

July 8, 1936.
Memorandum for the Commissioner of Indian Affairs:

    The attached letter presented for departmental approval, relative to the taking of tribal lands on the Flathead Reservation for reservoir purposes, is returned to you for further consideration.

    It appears from the facts therein stated that lands now held by the United States in trust for the Confederated Salish and Kootenai Tribes are needed by the Indian Irrigation Service for a reservoir site in a project designed to benefit Indian and non-Indian landowners. The Indian Irrigation Service plans to appropriate and utilize the reservoir site, leaving the matter of paying the tribe to future action by Congress. No condemnation proceedings are contemplated. No negotiations with tribal authorities for the purchase or lease of the land are contemplated. No actual withdrawal of the reservoir site has taken place. The Tribal Council and the Superintendent of the Flatland Reservation are protesting against the proposed action of the Indian Irrigation Service.

    It appears that one of the powers conferred on the Confederated Salish and Kootenai Tribes under its constitution, approved by the Secretary on October 28, 1935, is the power "To approve or veto any sale, disposition, lease, or encumbrance of tribal lands and tribal assets which may be authorized or executed by the Secretary of the Interior, the Commissioner of Indian Affairs, or any other agency of the Government, provided that no tribal lands shall be sold or encumbered or leased for a period in excess of five years, except for Governmental purposes." Under the charter of the Tribe, ratified on April 25, 1936, general powers of control over tribal property are vested in the Tribal Council subject to departmental approval or veto.

    Under the circumstances the protest seems justified, and the legal arguments advanced in the letter submitted seem to me to be without force.

    It is urged, in the proposed letter to the Superintendent of the Flathead Reservation, that "It should be distinctly understood that the conditions so vehemently complained of by you were brought about primarily by express legislation by Congress rather than by administrative action either by the present project management, this Office or this Department." However, no statute is cited authorizing the withdrawal for reservoir purposes of the tribal land here in question. A general appropriation for the purchase of land, such as is cited, clearly does not authorize an involuntary transfer of land without condemnation proceedings. Nor does the act of March 3, 1909 (35 Stat. 781, 795) empowering the Secretary to withdraw surplus lands of the Flathead Reservation from entry and sale have any application to the instant case. For one thing, this authority is no longer applicable in the face of the provisions of the act of June 18, 1934, which prohibit the sale of any restricted Indians lands and likewise prohibit any disposition of lands or interests in lands of an organized tribe without the consent of the tribe. In the second place, the Secretary has not attempted to exercise any such authority in the current controversy. In the third place, the land is not subject to entry and sale, in the light of the act of June 18, 1934, and therefore the Secretary could not withdraw such land from entry and sale pursuant to the cited act of March 3, 1909:

    It is further argued in the proposed letter that Congress intended to construct an irrigation project, that in order to complete the project it is necessary to acquire this particular reservoir site and that therefore the taking of the site is justified. Granted the premises, the conclusion does not follow. The land in question belongs, equitably, to the Tribe and may not be taken from the Tribe except through due process of law. It is not sufficient to inform the Tribe that Congress has already offered a sum of money (regarded by the Tribe as insufficient and accordingly rejected) to pay for reservoir sites taken many years ago, and that "there is an implied obligation to compensate the Indians for the area in question."

    The further argument is advanced in the proposed letter that "While the constitution, bylaws and charter of the Confederated Salish and Kootenai tribes of the Flathead Reservation grant to the tribe certain rights and powers with respect to tribal property, in its final analysis such grant is not effective against the United States in its sovereign capacity." It is true that the United States in its sovereign capacity may condemn tribal land for certain purposes and may even appropriate tribal land by act of Congress subject to constitutional requirements of compensation. But the rights and powers with respect to tribal property granted by the Constitution and Charter of the Confederated Salish and Kootenai Tribes are effective against officers of the United States not acting under direct mandate of Congress. Indeed, unless officers of the Department can be restrained by the Tribe from disposing of tribal property, all meaning has vanished from the provision in section 16 of the Indian Reorganization Act granting to an organized tribe the power "to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe." The only persons against whom this provision can be directed are officers of the United
 


 

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States. Private individuals never have had the power to sell tribal land or to dispose of tribal assets. If then, as suggested in the proposed letter, the restrictions contained in the above-quoted provision do not run against the United States, they are meaningless and the constitutional provisions enacted in accordance therewith are a false promise.

    No such proposition can be derived from the ruling of the Attorney General cited in the proposed letter. (Opinion dated February 7, 1935) It was there held by the Attorney General that individually owned restricted land might be sold to the United States for the construction of an Indian school. The ruling certainly does not warrant a taking of property without condemnation proceedings. It may be doubted whether even condemnation proceedings are authorized where the land is owned by an Indian tribe and is desired for the benefit of non Indians as well as Indians. That, however, is a question that I pass over, since it will undoubtedly be considered by the Attorney General if he is required to institute condemnation proceedings to secure the land in question.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.
SWINOMISH LAW AND ORDER CODE
July 9, 1936.
Memorandum for the Commissioner
of Indian Affairs:

    The Attached letter approving the Land and Order Code adopted by the Senate of the Swinomish Indian Reservation is returned herewith.

    I am in entire agreement with the recommendations contained in this letter but believe an additional caution should be included with reference to the final suggestion in Superintendent Upchurch's letter as to the payment of judges' salaries. As has already been suggested, any arrangement whereby the compensation of a judicial officer depends upon his convicting a defendant should be discouraged by the Department. This does not mean that judicial fines and fees may not be used to supplement other sources of income in paying a fixed salary to a judge. I do believe, however, that the Superintendent should be advised that the authority conferred upon him by chapter 4, section 5 of the departmental regulations to approve the use of court receipts for various purposes, should not be exercised in such a manner as to make judicial compensation depend upon the collection of fines. It would be well, I think, if similar instructions were sent to all reservations where the question of payment of judicial salaries out of court receipts arises.

    It is my recommendation that a statement of office policy on this issue be included in the proposed letter.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.
UTE ATTORNEY'S CONTRACT
July 13, 1936.
Memorandum for the Secretary:

    Herewith is a contract between the Uintah, White River and Unconpahgre Bands of Ute Indians and Captain R. T. Bonnin. With the contract are memoranda by Assistant Secretary Chapman and Commissioner Collier recommending approval of the contract unless there is some legal objection thereto. A memorandum by Assistant Commissioner Zimmerman questions the propriety of the employment on administrative grounds. There is also with the record a letter from Senator Thomas urging approval of the contract, and a brief which has been filed by Captain Bonnin.

    Captain Bonnin is not a licensed attorney and this gives rise to two questions-one administrative and the other legal.

1. The administrative question.

    The administrative question is whether approval of Captain Bonnin's contract is consistent with Commissioner Collier's memorandum of January 10, approved by you January 12, 1935, which memorandum pronounced it to be the policy of the Department not to approve contracts for legal services between Indian tribes and lay or nonlegal agents. This question has been considered heretofore by yourself and Commissioner Collier and from the correspondence reviewed in Captain Bonnin's brief it appears that the Commissioner, with your approval, advised Captain Bonnin that the memorandum of January 10 ought not to preclude Captain Bonnin from representing Indians in matters that do not entail litigation. While services in the prosecution of litigation are expressly excluded from Captain Bonnin's contract, I deem it advisable to call your attention to the fact that the contract does provide for the performance of legal services. The contract recites that Captain Bonnin is employed as "general counsel" for a period of three years from the date of approval of the contract and declares that it shall
 


 

659

OPINIONS OF THE SOLICITOR

JULY 13, 1936

be his duty to "render general legal advice and services of the character usually performed by general counsel." The contract further empowers Captain Bonnin to associate with him, subject to the approval of the Secretary of the Interior, such assistants, included "attorneys", as he may select. You will doubtless recall that in conformity with the policy announced in the memorandum of January 10 the Department declined to approve a contract between the Snake or Paiute Indians and one Father Heuel, who was not a lawyer. I venture the suggestion that approval of Captain Bonnin's contract in its present form will likely result in a charge by Father Heuel and perhaps others of unfair discriminations.

2. The legal question.

    Section 4 of the contract provides that Captain Bonnin

"shall receive an annual retainer of three thousand dollars payable in twelve equal installments of two hundred and fifty dollars each from tribal funds; Provided that no money is to be paid The Agent unless and until tribal funds are made available for that purpose by Congress."
    The Comptroller General has ruled that the Secretary of the Interior is without authority to approve a contract of employment between an Indian tribe and an attorney where the contract provides for payment of the compensation or expense involved from tribal funds unless there is a specific appropriation or other express statutory authorization therefore. See Comptroller's decisions of October 20, 1932 (A. 45091), July 1, 1929 (A. 27759), May 8, 1930 (A. 29173) and January 26, 1931 (A. 34858). Under these decisions you would be without authority to approve Captain Bonnin's contract unless Congress has authorized it or has made an appropriation which is available for the payment of the compensation provided for in the contract. It is contended by Captain Bonnin that such authority or appropriation is contained in the following item of the First Deficiency Act:
    "For pay of General Counsel, Confederated Bands of Ute Indians in the Uintah and Ouray agency, Utah (tribal funds) : The Secretary of the Interior is authorized to expend the sum of $3,000 or so much thereof as may be necessary, from the tribal funds of the Confederated Bands of Ute Indians of the Uintah and Ouray agency Utah, in the Treasury of the United States, upon proper vouchers approved by him, for services rendered by general counsel under a contract approved by the Commissioner of Indian Affairs and the Secretary of the Interior."
    Senator Thomas in his letter of June 30 states that the foregoing provision contemplates payment "to one Captain Raymond T. Bonnin under a contract which he had presented to the Commissioner of Indian Affairs and yourself for your approval." The statute, however, makes no mention of Captain Bonnin. It provides for payment only to "general counsel" employed under a contract approved by the Commissioner of Indian Affairs and the Secretary of the Interior. If the term "counsel" as used in the statute does not include one who has not been admitted to the practice of law, the statute obviously confers no authority for the approval of Captain Bonnin's contract and the funds appropriated thereby may not be used in payment of the compensation provided for in the contract. I find nothing in the cases cited by Captain Bonnin to support the contention that the word "counsel" may be properly construed to embrace one not a licensed attorney. In Mulligan v. Smith, 76 Pac. 1063, and Dunlap v. Lebus, 65 S. W. 441, the defendants were held liable under contracts executed by them for services performed by persons who were not licensed attorneys. With a view to escaping liability the defendants attempted to invoke State statutes prohibiting unlicensed persons from practicing law, but the court in both cases ruled that such statutes were inapplicable because the services were not of a character the performance of which would be engaging in the practice of law. In M'Whorter v. Bloom 3 N. J. Law Repts., 134, erroneously cited in the brief as "Pierson v. Foster, 3 N. J. Law 546", the court while criticizing the practice expressed the view that in the trial of small cases the Justices might in their discretion admit an unlicensed attorney where the subject was not controlled by statute. No interpretation of the word "counsel" was involved in either of these cases. That word is a common one in many State statutes and constitutional provisions and according to its well understood and established. meaning it does not include one not admitted to the practice of law. See 15 C. J. 351; State v. Russell, 53 N. W. 441, 442; Harkins v. Murphy and Bolanz, 112 S. W. 136, 138; Baker v. State, 130 Pac. 821, 820. In the absence of anything to show that Congress used the word in any other sense, I am constrained to hold that the moneys appropriated by the item reproduced above from the First Deficiency Act are not available for the payment to Captain Bonnin of the compensation provided for in the contract under consideration. If this be the correct view it follows from the decisions of the Comptroller cited above that you
 


 

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DEPARTMENT OF THE INTERIOR

JULY 13, 1936

are without authority to approve Captain Bonnin's contract.

    While I am unable for the reasons stated above to recommend approval of Captain Bonnin's contract, it may be observed that the question of your authority to approve the contract hinges upon the availability of the appropriation made by the First Deficiency Act. As questions of this nature are primarily for determination by the Comptroller General it may be advisable in the event you want to approve the contract to refer the question to the Comptroller General. If you conclude to adopt this course the letter of submission can be prepared here or in the Indian Office as you prefer.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.

 
PAWNEE ESTATE--DEFECT IN LEASEHOLD
TITLE--WHETHER AGREEMENT SIGNED BY
SUPT. FOR MINORS CANCELS DEFECT
July 21, 1936.
Memorandum to the Commissioner
of Indian Affairs:

    Your letter of July 11 to the Superintendent of the Pawnee Indian Agency advising that Pawnee Oil and Gas Lease No. 941 will be cancelled upon the filing by the administrator of the estate of J. A. Walker, deceased, of an application for the surrender of the lease, is returned.

    Presumably it is your intention to waive delinquencies in payments of advance royalties and annual rentals which the record indicates amount to about $120. Presumably also this action is induced by an apparent defect in the leasehold title, occasioned by the failure of the Superintendent to execute the lease on behalf of Ralph Weeks Allen and Mary Catherine Allen, minor Indian owners of the fee subject to a life estate in Ida Weeks Allen, which life estate appears to have terminated with the death of the life tenant in 1929. The attorney for the estate contends that the lease, al though executed for a period expiring October 3, 1935, terminated with the death of the life tenant, she alone having signed the lease.

    Section 4 of the regulations approved July 7, 1925, provides that the officer in charge, in this case the Superintendent, shall execute leases on behalf of incompetent and minor Indians and the legality of leases so executed has been upheld in opinions of the Solicitor for this Department dated August 28, 1916, and August 23, 1920. While the Superintendent did not actually execute the lease in the instant case on behalf of the minors, there is attached to the lease an agreement signed by him in their behalf and by the life tenant which agreement, after making appropriate reference to the lease, provides for a division of the proceeds therefrom between the life tenant and the minor remaindermen. The execution of this agreement amounted to an adoption and confirmation of the lease making immaterial the original defect in execution. No good reason appears, therefore, for waiving the existing delinquency and any application for the surrender of the lease should be accompanied by a remittance of all amounts due under the terms of the lease.

Solicitor.
OKLAHOMA INDIANS--LOANS--
WHEELER-HOWARD ACT
July 31, 1936.
Memorandum to the Secretary:

    The Acting Commissioner of Indian Affairs has inquired whether money appropriated under the Wheeler-Howard Act for loans to Indians chartered corporations may be used under authorization contained in the so-called Oklahoma Indian Welfare Act for loans to individual Indians and unincorporated associations of Indians in Oklahoma. Although the case is before me as a submission for formal opinion, I am expressing my views in this memorandum because I believe the matter is one which should be submitted to the Comptroller General for decision.

    The Wheeler-Howard Act (48 Stat. 984) from certain benefits of which the Indians of Oklahoma were excluded, authorized the expenditure of money for the purchase of land (section 5), for the corporate organization of tribal groups (section 9) for the establishing of a revolving fund for the benefit of incorporated groups (section 10) and for the making of educational loans (section 11).

    Such of these benefits as were originally denied to the Indians of Oklahoma have now been made available to them by the Oklahoma Indian Welfare Act, approved June 26, 1936. That act provides for the acquisition of land (section 1), the organization of chartered Indian groups (section 3), the organization of Indian cooperative associations (sections 4, 5) and the making of loans to individuals, associations, and incorporated groups
 


 

661

OPINIONS OF THE SOLICITOR

JULY 31, 1936

(section 6). In addition, section 7 of the new act provides as follows:

    "All funds appropriated under the several grants of authority contained in the Act of June 18, 1934, (48 Stat. 984), are hereby made available for use under the provisions of this Act, and Oklahoma Indians shall be accorded and allocated a fair and just share of any and all funds hereafter appropriated under the authorization herein set forth: * * *".
    The only authorization of a new or special appropriation for the carrying out of the Oklahoma Act is an authorization for the appropriation of $2,000,000 "to make loans to individual Indians and to associations or corporate groups organized
pursuant to this act." See section 6.

    Thus, in construing section 7 of the Oklahoma Act the question arises whether a fund appropriated for a particular purpose under the Wheeler Howard Act must be used for a like purpose authorized under the Oklahoma Act, or whether funds appropriated for any purpose under the Wheeler-Howard Act may be devoted to any other purpose which is lawful under the Oklahoma Act. Stated somewhat differently, the question is whether the expenditure of Wheeler-Howard funds under section 6 of the Oklahoma Act must be consistent with both the terms of original appropriation and some authorization to be found in the Oklahoma Act, but outside of section 6.

    It should be noted that except for educational loan funds, which might be made available to Oklahoma Indians even under the Wheeler-Howard Act, each Wheeler-Howard appropriation has a counterpart in some type of undertaking expressly authorized in the Oklahoma Act. Thus, in the Interior Department Appropriation Act for 1937 (public No. 741, 74th Congress, approved June 22, 1936) appropriations are made pursuant to the Wheeler-Howard Act for "expenses of organizing Indian chartered corporations", for "the acquisition. of land" and for "the establishment of a revolving fund for the purpose of making loans to Indian chartered corporations." Asalready pointed out in this memorandum, each type of "undertaking thus financed is expressly authorized for Oklahoma by the new Oklahoma Welfare Act. Moreover, the only new enterprises authorized in the Oklahoma Act, namely, the organization of Indian cooperative associations and the making of loans to individuals and cooperative associations, are covered by the only authorization of new appropriations which appears in the Oklahoma Act. Thus, it is arguable that since the language of section 7 can be given effect without changing original purposes of appropriation, such a construction should be preferred to one which would allow the use of money for undertakings wholly unrelated to such original purposes.

    On the other hand, the language of section 7 making "all funds" appropriated under the Wheeler-Howard Act available for expenditure "under the provisions of" the Oklahoma Act does literally embrace the use of any Wheeler-Howard money for any of the undertakings authorized in the Oklahoma Act quite without regard for any identity or even similarity of purpose. Moreover, Wheeler-Howard educational funds could not be spent "under the provisions of" the Oklahoma Act except by devoting such money to some purpose other than educational loans because no provision is made for such loans in the Oklahoma Act.

    The Congressional Committee hearings on the Oklahoma bill shed little light on the question under discussion. It does appear that in the House of Representatives the Committee on Indian Affairs considered the question of special advantage to the Oklahoma Indians in getting the right to share in Wheeler-Howard appropriations and also the right to a special appropriation of $2,000,000 under the new act. See pp. 17 ff. of House hearings. However, the question of the use of Wheeler Howard Funds for purposes different than those of the original appropriation seems not to have been discussed.

    The report upon the bill made in the House of Representatives (Report No. 2408) is somewhat more illuminative. Concerning section 7 the Committee report makes the following comment:

    "In addition to the loan appropriation authorized by section 6, Oklahoma Indians, under the provisions of section 7 will also share in any or all appropriations heretofore or hereafter made to carry out the provisions of the Indian Reorganization Act of June 18, 1934. Thus appropriations for expenses of organization, for land acquisition, for student loans, and for industrial loans, may be used for the benefit of Oklahoma Indians."
    It is doubtful whether such language would have been used if the Committee had contemplated that in Oklahoma particular money might be used for purposes different from those stated in the appropriation of the fund and, therefore, restrictive of its use in other areas. Indeed, it is quite possible that the language "under provisions of this act" as used in section 7 was intended to
 


 

662

DEPARTMENT OF THE INTERIOR

JULY 31, 1936

mean no more than "for the benefit of the Indians of Oklahoma by virtue of this act."

    I have stated at some length the competing contentions which may be advanced in the construction of section 7 of the Oklahoma Act to indicate that this section presents such a doubtful question concerning the meaning of an authorization to spend money that this Department cannot resolve the issue with assurance. Certainly, until the question is decided by the Comptroller General, it would not be safe to spend for the making of loans to individuals, as the Indian Office proposed money which has been appropriated for loans to chartered corporations.

    In these circumstances, I believe that this Department should not attempt to decide the issue presented by the present submission, but rather should submit the question to the Comptroller General for authoritative decision.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.

 
FIVE TRIBES--AGRICULTURAL AND
GRAZING LEASES

 
August 7, 1936.

 Memorandum for the Assistant Commissioner of Indian Affairs:

    The attached regulations to govern the leasing of restricted lands of Indians of the 5 Civilized Tribes for agricultural and grazing purposes under the act of February 11, 1936, are returned for further consideration of section 4 of the proposed
regulations.

    Section 4 deals in part with exceptional leasing cases such as, (a) the leasing of lands of nonresident Indians whose whereabouts are unknown; (b) the leasing of lands of Indians who refuse to lease where a lease would be to his best interests, and (c) the leasing of inherited lands where the owners of the majority interests want to lease and the minority owners refuse to do so. The regulations provide that these three classes of cases shall be submitted to the Commissioner of Indian Affairs with all the facts and circumstances and the Superintendent's recommendation for appropriate consideration and action. The Commissioner will then determine whether the leasing of the land without the consent of the absent or nonassenting Indians, as the case may be, is justified and will issue instructions accordingly.

    The act of February 11, 1936, provides that leases on behalf of minors and Indians non compos mentis may be made by the Superintendent but requires that leases on lands of Indians not laboring under the disability of minority or unsoundness of mind be made by the owner subject to the approval of the Superintendent. In view of these statutory provisions, I am definitely of the opinion that any lease of lands in class (b) above made without the consent of the Indian owner is unauthorized, and that, consequently, the regulations should be altered by the elimination of the provision for the issuance of lease against the express wish of the Indian owner or owners of the entire or a majority interest in the land.

    As to cases falling within class (a) I believe that there is sufficient legal justification for signature by the Superintendent if in fact the Indian owner or owners cannot be found. Whether cases of that type are to be handled by the Superintendent alone or whether they are to be submitted to Washington, is, of course, a matter for your administrative determination.

    As to the cases falling in class (c) the legality of the issuance of a lease without the concurrence of the owners of a minority interest is a question which must be dependent upon the facts in each individual case. In those circumstances I suggest that the regulation provide that cases of that type be submitted to the Secretary of the Interior through the Commissioner of Indian Affairs for appropriate consideration and action.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.

 
LEASING OF RESTRICTED ALLOTMENTS IN
CASES OF NONCONSENTING HEIRS

 
August 10, 1936.
Memorandum for the Acting Commissioner of Indian Affairs:

    The attached letter authorizing the Superintendent of the Cheyenne and Arapaho Agency to sign leases for nonconsenting heirs is returned to you for further consideration.

    The letter purports to authorize the Superin-
 


 

663

OPINIONS OF THE SOLICITOR

AUGUST 10, 1936

tendent to sign the name of nonconsenting heirs owning less than a majority in interest of the estate, in two cases: (1) Where the nonconsenting heirs "by reason of their absence from the reservation, or unknown whereabouts, cannot be reached after a reasonable effort has been made"; and (2) where the nonconsenting heirs "refuse to sign without giving good and sufficient reason for refusing."

    In the first mentioned case, legal authority for action by the Superintendent can probably be derived from a relation of agency between the absent heir and the Superintendent. No objection is raised to this portion of the letter. In the second case, however, such special legal justification is lacking, and full weight must therefore be given to the governing leasing statute which provides that restricted allotments "may be leased for farming and grazing purposes by the allottee or his heirs, subject only to the approval of the Superintendent * * *." (Act of March 3, 1929, 41 Stat. 1232, 25 U.S.C., Sec. 393) Unless special circumstances exist to provide a legal justification for signature by the Superintendent on behalf of protesting heirs, it appears that the statute prohibits such action on his part.

    In those circumstances and in recognition of the practical necessity of action in cases where protest is made by heirs holding only a minority interest, I suggest for your consideration two methods of procedure: (1) The Superintendent might be required to submit each such case to the Secretary of the Interior through the Commissioner of Indian Affairs for a determination as to whether there are circumstances which will supply legal justification for the signing of the lease by him: or (2) the Superintendent might be authorized to approve a lease signed simply by heirs holding a majority in interest. Such a lease would not be legally binding upon the nonconsenting heirs, but they would have an election whether to accept a proportionate part of the rental, thus ratifying the lease, or to repudiate the lease as to their undivided interests, in which event they would be entitled to make beneficial use of a proportionate part of the land over which they are co-tenants, or with the approval of the Superintendent, to enter into a new lease conveying their undivided interests to the same or a different lessee, or to seek a partition of the land by application to the Secretary of the Interior. Riddle v. Ellis, 139 Okla. 68, 281 Pac. 286.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.

 
OSAGE OIL LEASE

 M-28184                                                                                                                            August 10, 1936.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on whether, under provisions of Osage oil and gas mining leases, the use of gas for repressuring oil wells is a use of the product for drilling and operating purposes and whether royalty must be paid on gas sold for such purpose. The two questions are involved in a proposed contract between Philtex Oil Company, holder of Osage oil mining leases, and the Indian Territory Illuminating Oil Company, holder of a gas mining lease on the Osage Indian Reservation, which provides for sale of gas by the gas lessee to the oil lessee for repressuring purposes, the price to be paid being "based on the assumption by both applicant and company that no royalty is payable by company on said gas to the Osage Tribe of Indians," and which stipulates further that "it is hereby agreed by the parties hereto, that this contract shall be submitted by the parties hereto to the Superintendent of the Osage Indian agency at Pawhuska, to be by him submitted in due course to the Secretary of the Interior for approval."

    The two questions for determination involve the construction to be put on the following provisions of the oil and gas leases. Section 14 of the gas mining lease provides:

    "The gas lessee shall furnish the oil lessee, free of royalty, sufficient gas for drilling and operating purposes at a rate to be agreed upon, or on failure to agree, the rate shall be fixed by arbitration: Provided, That the oil lessee shall at his own expense furnish the necessary pipe and fittings to connect at and with the well, and all such connections shall be subject to the approval of the inspector: Provided, further, That the gas lessee shall not be required to furnish oil lessees with gas except from gas wells located within the area covered by their respective oil leases and during such period of time as may be determined by the Superintendent."
    Section 13 of the oil mining leases provides:
    "The gas lessee shall furnish the oil lessee, free of royalty, sufficient gas for drilling and
 

 

664

DEPARTMENT OF THE INTERIOR

AUGUST 10, 1936

operating purposes at a rate to be agreed upon, or on failure to agree the rate shall be fixed by arbitration: Provided, That the oil lessee shall make necessary connections between the well and the meter whenever possible."

    Under these provisions, if the use of gas for repressuring purposes is a use for "drilling and operating purposes" no royalty need be paid on such gas. Gas used for such purposes is "royalty free."

    The question whether the use of gas for repressuring is a use for drilling and operating purposes has already been decided by the courts. In Utilities Production Corporation v. Carter Oil Company, 72 Fed. (2d) 655, it was held that the use of residue gas produced by an oil lessee for repressuring wells covered by the lease was a use for drilling and operating purposes and that no royalty need be paid thereon. No sale of gas by a gas lessee to the oil lessee was involved in this case, but the question at issue now was distinctly and definitely passed upon. I am of the opinion, therefore, that the use of gas for repressuring purposes is a use of same for drilling and operating purposes, and that no royalty is payable on such gas.

    In the case above referred to, the court specifically refrained from passing upon or determining the interest of the Osage Tribe in the matter in controversy, since the Tribe was not a party to the proceedings. It held further (at p. 661) that,

    "It is open to it to claim, for example, that it has been deprived of royalties on residue gas by an improvident use of it for repressuring purposes-that the oil recovered by that process was not worth the gas expended in the recovery: or any other claim it has to make against either lessee."
If under the proposed contract, it should appear that the use of gas for repressuring purposes was not producing a return in the form of increased oil production, or that the return was inadequate relative to the amount of gas so consumed, the Tribe could assert its claim to royalties on oil and gas produced on its land. The use must be a legitimate and economical one. If it is, however, the Tribe has no cause for complaint and no royalty need be paid.

    By resolution of the Osage Tribal Council, section 13 of oil leases executed subsequent to September 24, 1935, has been modified by omitting the phrase "free of royalty." By a resolution of the Council dated November 23, 1935. a similar change was to be made in the gas lease of the Indian Territory Illuminating Company. This change was accepted by the company, to be effective, however, from January 1, 1936. On March 2, 1936, the Council accepted the company's amendment. The change in the gas lease was approved by the Secretary of the Interior on June 3, 1936.

    The scope of this opinion should, therefore, be regarded as limited only to oil and gas leases in which the above changes have not been made and as to leases which have been changed only to gas used for repressuring purposes prior to the effective date of such changes. Subject to this qualification, I am of the opinion that gas used for repressuring purposes is a use of gas for drilling and operating purposes and that no royalty is payable on said gas.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.
Approved: August 10, 1936.
OSCAR L. CHAPMAN, Assistant Secretary.

NAMBE PUEBLO--WITHDRAWAL OF LAND

August 21, 1936.
Memorandum for the Secretary:

    I concur in the recommendation of the Acting Commissioner of Indian Affairs, that the attached draft of Executive order withdrawing land from the Pueblo of Nambe should not be signed.

    As pointed out in that memorandum, the Executive order is not necessary if the occupants of the land had valid rights when the area was added to the Pueblo. If these claimants did not have valid rights, then a withdrawal of the land from the Pueblo would be in violation of section 4 of the act of March 3, 1927, forbidding changes in reservation boundaries, and would also be contrary to the spirit of the act of June 18, 1934, embodying a general policy of this administration against the alienation of Indian lands. The statement of the Acting Commissioner that this course of action would be in conflict with section 16 of that act is not well taken for the reason that Nambe Pueblo has not organized under a written constitution and is therefore not protected by section 16. Despite this minor error the conclusions of the Acting Commissioner are, in my opinion, sound.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
 


 

665

OPINIONS OF THE SOLICITOR

AUGUST 22, 1936

PYRAMID LAKE--CANCELLED ENTRIES

August 22, 1936.
Memorandum for Assistant Secretary Chapman:

Re: Cancelled Entries on Pyramid Lake Indian Reservation.

    In response to your informal request, I submit a report on the above entitled entries.

    Certain white settlers had made settlements within the Pyramid Lake Indian Reservation, and suit had been brought in the Federal Court for Nevada to eject them. While the litigation was pending, Congress passed the act of June 7, 1924 (43 Stat. 596), for the relief of the settlers, the pertinent parts of which provided as follows:

    "That the Secretary of the Interior is hereby authorized to sell to settlers or their transferees, under such terms, conditions, and price per acre as the said Secretary may prescribe any lands in the Pyramid Lake Indian Reservation, in the State of Nevada, that have been settled upon, occupied and improved by said settlers and their transferees in good faith for a period of twenty-one years or more immediately preceding the passage of this Act: Provided, That no more than six hundred and forty acres shall be sold to any one person or corporation: Provided further, That said sales shall be by private cash entry after it has been shown to the satisfaction of the Secretary of the Interior that the lands applied for have been settled upon, occupied, and improved as required by this Act, and in addition to such price per acre as may be fixed by the Secretary of the Interior all entrymen hereunder shall pay the same fees and commissions as provided by law where public lands are disposed of at $1.25 per acre. The proceeds of said sales shall be deposited in the Treasury of the United States and be subject to appropriations by Congress for the Paiute Indians of the said Pyramid Lake Indian Reservation.

    "Sec. 4. All sales in accordance with section 1 of this Act shall be made through the local land office within ninety days after the price of the land shall have been fixed by the Secretary of the Interior: Provided, That where entry is not made within the time specified, the United States shall enter upon the premises and take possession thereof for the use and benefit of the Paiute Indians of the Pyramid Lake Indian Reservation."

    Pursuant to the statute, the Secretary fixed terms and price. The entrymen here in question were in default as to payment of purchase price and interest and the Commissioner of the General Land Office on April 1, 1935, directed that said entrymen be called upon to pay in full the unpaid purchase money with interest, or interest only to December 31, 1934, under penalty of cancellation of the entries for failure to comply.

    The entrymen appealed. By decisions of November 25, 1935, the Department modified the Commissioner's requirements in the following particulars:

    " (1) All interest must be paid within 30 days from the date of service hereof;

    " (2) One third of the unpaid principal now outstanding must be paid within 6 months from the date hereof;

    " (3) The unpaid principal will be computed on the basis of the 1934 reappraisal;

    " (4) Interest will be computed by the General Land Office from the date of default."

    The attorney for the parties was served with notice and copies of the decisions. Thereafter the Commissioner served notice upon each entryman to make payment within 30 days from receipt of such notice, One entryman paid interest as required and his time was extended to September 10, 1936, to pay one-third of the purchase money then due.

    The other five entrymen failed to make any payment of purchase money, or interest only, after being given full opportunity to do so, and on May 13, 1936, the Department cancelled the five entries entirely in default and closed the cases.

    The cancellations were, under the act cited, within the power of the Department, and the record shows that the proceedings were entirely regular.

    Upon cancellation of the entries, the lands embraced therein reverted to Indian ownership and became subject to the provisions of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984). The act of June 7, 1924, supra, under which the entries were made, contemplated the conveyance of fee simple title to the entrymen. Reinstatement of the cancelled entries would, therefore, result in alienation of the land in contravention of section 4 of the Indian Reorganization Act, which section, with exceptions not here material, forbids all forms of alienation of restricted Indian lands.

    The rights of the Indians in and to these lands are further protected by section 16 of the Indian Reorganization Act declaring that the tribes organized thereunder shall have the power, among others, to prevent the sale, disposition, lease or
 


 

666

DEPARTMENT OF THE INTERIOR

AUGUST 22, 1936

encumbrance of tribal land. The constitution adopted by the Paiute Tribe of the Pyramid Lake Reservation and approved by the Secretary of the Interior not only empowers the Tribal Council to approve or veto any sale, disposition, lease, or encumbrance of tribal lands which may be authorized or executed by the Secretary of the Interior, the Commissioner of Indian Affairs, or any other official or agency of the Government, but further declares that no tribal lands shall ever be sold. Art. VI, Sec. 1 (c); Art. VII, Sec. 1. While these constitutional provisions enable the Tribal Council to veto action by the Secretary of the Interior looking to the disposition of their tribal lands through reinstatement of the cancelled entries or otherwise, the inhibition against sales in addition effectively prevents the Tribal Council from assenting to such a disposal.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

 
OCCUPANCY-RIGHT-OF-WAY-RECLAMATION

M-28589                                                                                                                              August 24, 1936.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY :

    The Assistant Commissioner of the Office of Indian Affairs in a letter dated June 17, 1936, has recommended that you submit to me for opinion the apparent conflict of rights between the Bureau of Reclamation and the Indian Service, affecting particularly the occupation and use of fractional sections 4 and 6, sections 8 and 16, fractional section 20, W 1/2 section 22, SW1/4 SW1/4 section 26, fractional sections 28 and 34, township 16 north, range 21 west and fractional section 12, township 16 north, range 22 west, G. & S. R. M.

    The land is required by the Bureau of Reclamation for flowage purposes by reason of the construction of Parker Dam across the Colorado River near Parker, Arizona. It appears from the records in the Department that the lands described above were withdrawn by the Secretary of the Interior for reservoir purposes under the provisions of the act of June 17, 1902 (32 Stat. 388), by departmental orders of January 31 and September 8, 1903. These same lands, with others, were withdrawn as an addition to the Fort Mojave Indian Reservation by Executive order of February 2, 1911, which superseded Executive order of December 1, 1910.

    The Bureau of Reclamation contends that the Indians under the Executive order acquired no rights superior to the reclamation project and therefore the lands can be flooded without the payment of damages to the Indians. It is the contention of the Indian Service that the Executive orders either revoked the earlier departmental withdrawals or at least that they should be considered a confirmation of the rights of the Indians acquired through long-continued use and occupancy.

    These opposing claims present questions, the solution of which might present some difficulty if the answer depended upon sole consideration of the conflicting orders issued by the Secretary and the President. Subsequent congressional action, however, removes any doubt about the paramount nature of the Executive order of February 2, 1911. This legislation is found in the act of May 23, 1934, (48 Stat. 795) which reads:

    "That the Secretary of the Interior is hereby authorized to accept, in his discretion, under rules and regulations to be prescribed by him, conveyances to the Government of privately owned lands contiguous to the even-numbered sections added to the Fort Mojave Indian Reservation, Arizona, by Executive order of February 2, 1911, and to permit lieu selections of lands approximately equal in value from the even-numbered sections by those surrounding their holdings, so that the lands retained and acquired through exchange for Indian use may be consolidated and held in a solid area so far as may be possible: Provided, That upon conveyance of any privately owned lands to the Government pursuant thereto, the Secretary of the Interior is hereby authorized to issue to the person or persons making the conveyance, patent of appropriate form and legal effect for the lieu lands. The areas consolidated in the Government pursuant to this Act are hereby declared to be held for the benefit of the Indians of the Fort Mojave Reservation: Provided further, That the title or claim of any person or persons who refuse to convey to the Government shall not be affected by this Act."
    It is to be observed that the foregoing enactment makes specific reference to the lands added to the Fort Mojave Indian Reservation by the Executive order of February 2, 1911, and recognizes Indian ownership thereof by authorizing such exchanges for privately owned lands as may be necessary to consolidate into a solid area the Indian holdings with the declaration that the consolidated area shall be held for the benefit of the Indians of the Fort Mojave Reservation. This definite recog-
 


 

667

OPINIONS OF THE SOLICITOR

AUGUST 25, 1936

nition of Indian ownership of the lands added to the Fort Mojave Reservation by the Executive order of February 2, 1911, must be regarded as a legislative confirmation of that order operating to supersede and nullify all prior orders in conflict therewith, including the orders issued by the Secretary of the Interior in 1903 under the act of 1902.

    It is my opinion, therefore, that the orders of 1903 are without force and effect and may not be invoked as authorizing the taking of these lands for reservoir purposes in connection with the construction of the Parker Dam project. I am further of the opinion that the Executive order of February 2, 1911, as confirmed by the act of May 23, 1934, supra, effectively made the lands a part of the Fort Mojave Indian Reservation. The Indians of the Reservation are accordingly entitled to receive full compensation for such of said lands as may be flooded by the construction of the Parker Dam project.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
Approved: August 24, 1936.
OSCAR L. CHAPMAN, Assistant Secretary.

SAN CARLOS IRRIGATION PROJECT--O AND M
CHARGES

August 25, 1936.
Memorandum for the Acting Commissioner of Indian Affairs:

    There is returned to you herewith for further consideration a proposed order fixing maintenance and operation charges on the San Carlos project, Arizona, for the calendar year 1937, with accompanying papers.

    The proposed order contemplates an equal division of the total operation and maintenance charges between white owned lands and Indian owned lands, although it appears that the area of Indian owned land under the project is less than the area of white owned land. The proposed division of costs is, in my opinion, unauthorized.

    The repayment contract between the United States and the San Carlos Irrigation and Drainage District specifically provides that the cost of operating and maintaining the works of the project "shall be divided equally on a per-acre basis among all the lands of the project, and regardless of whether they are irrigated or not." The last qualification indicates that land under constructed works is subject to operation and maintenance charges whether or not the water available is actually used. It cannot be argued from this phase that land not under constructed works is to be assessed for the cost of operating and maintaining an irrigation project from which it can derive no benefit. The imposition of any such charge would be, in my opinion, entirely unfair and unjustified, and not less so be cause the Department hopes at a later date to cancel the charge.

    As I read the terms of the repayment contract and the act of June 7, 1924, under which it was executed, the Secretary is obliged to divide operation and maintenance costs "equally on a per acre basis among all the lands of the project." The only discretion allowed to the Secretary under this contract is that of determining precisely what acreage of land is now under the project.

    The repayment contract provides that white owned lands under the project "shall not exceed 50,000 acres," and imposes a similar maximum limit upon the Indian lands to be included in the project. There is no provision in the contract for a minimum area either of Indian lands or of white lands actually to be brought under the project. If it had turned out that not more than 10,000 acres of white-owned land had been brought under the project, together with 50,000 acres of Indian owned land, there would be no legal basis for imposing upon the white-owned lands a higher per acre charge than upon Indian lands. The same rule must work both ways.

    For the foregoing reasons I recommend that the computation of costs in the attached order should be revised and should be placed on a per-acreage basis. The proposed order should furthermore contain a finding as to the total acreage under constructed works at the present time, or, if future calculations can be made, on January 1, 1937.

    I note that the proposed imposition of a reimbursable debt upon the Gila River Pima-Maricopa Indian Community for operation and maintenance charges on tribal land for the fiscal year 1937, has not been referred to the authorized council of the Community for its approval, as required by section 16 of the act of June 18, 1934, and by Article V, section 1 (c) of the Constitution of the said Community, approved by the Secretary of the Interior May 14, 1936.

    As suggested in the memorandum to you from Acting Solicitor Kirgis, approved by the Assistant Secretary on July 6, 1936, section 16 of the act of June 18, 1934, and constitutional provisions enacted in accordance therewith, constitute a limitation upon the spending power of the Secretary of the Interior. I therefore recommend that an effort be made to secure the consent of the proper Indian authorities to any expenditure of reimbursable appropriations for the benefit of tribal lands.

Solicitor.


 

668

DEPARTMENT OF THE INTERIOR

AUGUST 31, 1936

PURCHASES UNDER WHEELER-HOWARD ACT

August 31, 1936.

 Memorandum for the Office of Indian Affairs:

    The Office of Indian Affairs has submitted several titles for examination covering land in Mississippi being purchased under authority granted by the Wheeler-Howard Act (48 Stat. 984). Several opinions have been rendered and in one case the deed has been recorded and accepted. In every case submitted, the deed designates the grantee as the United States in trust for the Choctaw Tribe of Mississippi.

    A further examination reveals that this designation is incorrect because there is in fact no existing tribe of Indians in Mississippi known as the Choctaw Tribe. The Choctaw tribe or nation of Indians, formerly of Mississippi, removed to Oklahoma and became one of the Five Civilized Tribes. Certain members of the tribe remained in Mississippi, taking allotments there and becoming citizens of the State, in accordance with the Dancing Rabbit Creek Treaty concluded September 27, 1830 (7 Stat. 333). Thereafter, when Oklahoma lands were allotted, some of the Indians remaining in Mississippi were permitted to enroll as citizens of the Choctaw nation in Oklahoma provided they removed to the Choctaw country. Those who remained, already citizens of Mississippi, thereby severed their relations with the Choctaw tribe. They therefore cannot now be regarded as a tribe.

    The Wheeler-Howard Act, however, authorizes the purchase of land for Indians and defines the term "Indian" to include those persons of one half or more Indian blood regardless of membership in a recognized Indian tribe under Federal jurisdiction and regardless of residence on an Indian reservation. (Sec. 19 of the act of June 18, 1934, supra.) In so far as the Indians in Mississippi fall within this definition as to degree of blood, purchases may be made for their benefit. Moreover, these Indians may be organized under the provisions of the Wheeler-Howard Act after land has been acquired for them. Therefore, I suggest that the titles now being acquired be taken as follows:

    "The United States in trust for such Choctaw Indians of one-half or more Indian blood, resident in Mississippi, as shall be designated by the Secretary of the Interior, until such time as the Choctaw Indians of Mississippi shall be organized as an Indian tribe pursuant to the act of June 18, 1934 (48 Stat. 984), and then in trust for such organized tribe."
    Several titles have already been examined, as I noted above, and no objection was made to the designation of the grantee there employed. In all of those cases where the title papers have already been returned to the field, instructions should be given to the field agents to have the deeds corrected before they are recorded. In that case where the deed has already been recorded and accepted, it will be necessary to secure a new deed. The necessary corrections will be made in the other cases which are now pending in this office.

    The error discussed herein arises perhaps out of unusual circumstances, but is one that might have been avoided. I suggest that further difficulties of this kind can be reduced or eliminated by having the Indian Organization Unit of your office formally approve the designation of the grantee in each project undertaken. This formal approval should be recited in each title case submitted for my examination.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor.
ISLETA AND SANTO DOMINGO PUEBLOS-
RIGHTS-OF-WAY
September 2, 1936.
Memorandum for the Commissioner of Indian Affairs:

    I am returning for further consideration your letters of July 28 and August 26, dealing with grants of rights of way over lands of the Isleta and Santo Domingo Pueblos in New Mexico to the A. T. & S. F. Railway Company and the Postal Telegraph-Cable Company.

    While I agree with your conclusion that these grants may be made under authority of the acts of Congress cited in your letters I do not agree with the statement that the agreements entered into between the respective pueblos and the companies named above, are in violation of the restrictive provisions contained in the Indian Reorganization Act of June 18, 1934 (48 Stat. 984). The restrictive provisions to which you refer are contained in section 4 of the Reorganization Act and declare, with exceptions not here material, that "No sale, devise, gift, exchange or other transfer of restricted Indian lands * * * shall be made or approved." The right conveyed by these right of way grants is in interest in land and if the conveyance of such
 


 

669

OPINIONS OF THE SOLICITOR

SEPTEMBER 3, 1936

an interest is prohibited by the provision just quoted the conveyance cannot be made or approved whether it be in the form of an agreement between the Indians and the companies or is accomplished by approval of a map of definite location under the acts of Congress cited in your letters.

    In my memorandum of September 6, 1934, I had occasion to consider the restrictive provisions contained in section 4 of the Reorganization Act and, after pointing out that such provisions had no application to conveyances of estates less than the fee, such as grants of rights of way in the nature of easements, held that such rights of way might be granted where there was a specific act of Congress so authorizing. Such acts of Congress are not superseded or repealed by anything contained in the Reorganization Act. The only limitations which the Reorganization Act imposes upon the exercise of authority conferred by such specific acts of Congress are: (a) a tribe organized under section 16 may veto the grant under the broad power given it by that section "to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe" and (b) a tribe incorporated under section 17 may be given the power to make such grants without restriction.

    Inasmuch as the Santo Domingo and Isleta Pueblos have not as yet organized or incorporated, limitations (a) and (b) above, are without application. The easement in each case, however, has received the approval of the pueblo. Approval may be given under the acts cited in your letters, but such letters should be revised to eliminate the erroneous statements referred to above.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

 
FLATHEAD IRRIGATION PROJECT O AND M CHARGES

 
September 3, 1936.
Memorandum for the Commissioner of Indian Affairs:

    On August 10 you submitted for the approval of the First Assistant Secretary a letter concerning the unpaid operation and maintenance charges against certain lands on the Flatland Indian irrigation project recently purchased by Franklin M. Truax. In your letter you state that "under the provisions of the act of May 18, 1916 (39 Stat 123), a lien was created against the lands under this project to secure repayment of irrigation charges properly assessed there against." The land referred to is described as lot 4 and the SE1/4 SW1/4 Sec. 18 T. 18 N., R. 19 W., M.M. It is within the limits of the Flatland Indian irrigation project and contains 69.7 acres of irrigable land. This unit was allotted to Edward L. Trout. Trust patent issued to him, and in 1930 a fee patent was issued in the manner required by the regulations. At the time of issuance of fee patent there had been accumulated against the property unpaid construction charges and operation and maintenance charges in the amount of $507.57. Since that time charges in varying amounts have been levied up to and including the year 1932. The allottee conveyed the land to a white man who on June 5, 1934, conveyed by warranty deed to Franklin M. Truax, who now claims to be the owner. The purchaser states: "We have now discovered that there are operation and maintenance bills for the years 1924 to 1932 attached to the land." The Attorney of the grantor asserts that the old operation and maintenance bills do not constitute a valid lien on the land, while the office of the Flathead Irrigation Service at St. Ignatius asserts that the old operation and maintenance bills do constitute a valid lien. The record indicates that the only charges involved are operation and maintenance charges accrued during the years 1924 to 1932, inclusive, and represent amounts fixed by orders issued by the Secretary of the Interior.

    In 45 L. D. 600, 602, in an approved departmental decision concerning liens to be recited in patents on the Flathead and other Indian projects, the Department stated:

    "In the matter of patents for allotments in the Flathead Project, the act is silent on the matter of liens to be recited in such patents, nor do I find such authority in any legislation relating to those lands. However, in the matter of the partition of the allotment of Dorothy Bigjohn Plant, Flathead allottee 835, (G.L.O. 660322), the Department, on November 14, 1916 directed the issuance of a patent in fee to Michel Plant for the land set apart to him-

    "Said patent to contain a clause reserving a lien for the cost of construction of projected irrigation works in accordance with said Act of May 18, 1916."

This decision appears to direct the issuance of a patent which would contain a lien for irrigation charges even though the provisions of the act did not authorize the creation of a lien. In 51 L.D.
 


 

670

DEPARTMENT OF THE INTERIOR

SEPTEMBER 3, 1936

613, 621, the Department was again considering the matter of lien for irrigation charges against Indian land and stated:

    "Where no lien exists for repayment of the irrigation charges and where purchasers buy direct from the Indians without having agreed to assume an indebtedness resting against the former Indian owner such purchasers can not be required to assume the indebtedness by a refusal to deliver water until he agrees to pay. This would savor too largely of arbitrary action without due regard to the rights and equities of the respective parties in the premises."
I concur in this statement of the law and believe that no lien could be created except by statutory authority. (Burke v. Southern Pacific Railroad Company, 234 US. 669.)

    In the act of March 7, 1928 (45 Stat. 200, 210), it is provided:

   "* * * Provided further, That the costs of irrigation projects and of operating and maintaining such projects where reimbursement thereof is required by laws shall be apportioned on a per acre basis against the lands under the respective projects and shall be collected by the Secretary of the Interior as required by such law, and any unpaid charges outstanding against such lands shall constitute a first lien thereon which shall be recited in any patent or instrument issued for such lands."
This provision of law has been reenacted in each annual appropriation act for the Interior Department. I conclude, therefore, that a lien for unpaid operation and maintenance charges attaches to the project lands subsequent to March 7, 1928. The trust patent was issued October 8, 1908, and fee patent issued in 1931. The act of March 7, 1928, supra, being effective when the fee patent issued, such patent should contain the appropriate lien provision. Any unpaid charges for operation and maintenance of the tract of land above described subsequent to the date of March 7, 1928, are a lien on the land which can be released only after payment of such charge with accrued penalties. You will so advise Mr. Truax.

                                                                                                                                              NATHAN R. MARGOLD,

Solicitor.
Approved:
Under Secretary

COLORADO RIVER TRIBES--CONSTITUTION

September 15, 1936.
Memorandum for the Assistant Commissioner of Indian Affairs:

    In connection with the proposed constitution for the Colorado River Indian Tribes you have raised a question involving the jurisdiction of the tribes over the reservation in view of the act of March 3, 1865 (13 Stat. 559), which created the reservation. That act reads as follows:

    "All that part of the public domain in the Territory of Arizona, lying west of a direct line from Half-way Bend to Corner Rock on the Colorado River, containing about seventy-five thousand acres of land, shall be set apart for an Indian reservation for the Indians of said river and its tributaries".
Your position is that this act gives the Secretary of the Interior authority to settle on the reservation any Indians from the region of the Colorado River and its tributaries and that, therefore, the constitution should have some provision in it to keep the organization open for such Indians. Various provisions have been suggested, particularly a provision which would make it compulsory upon the tribes to adopt newcomers and a provision requiring representation of the newcomers in their council.

    In my opinion the above-quoted act does not require any special provisions in the constitution. This act was passed in 1865 before most of the other reservations in the Southwest were created and the Indians settled upon them. The designation in the act of the Indians of the Colorado River and its tributaries is so general and vague as to be almost meaningless without reference to administrative action taken thereunder. It would be absurd today to say that this reservation belongs to all the Indians of the Colorado River and its tributaries, since that would embrace most of the Indians of the Southwest. The only practical solution is to refer to the administrative action which has been taken and completed many years ago in settling on this reservation the wandering Indians along the Colorado River, and to take the position that this action finally determined to which Indians the reservation belonged. This position is substantiated by the fact that the Indians of this reservation have long been officially known as the Colorado River Indian Tribes and have funds in the Treasury under that name.
 


 

671

OPINIONS OF THE SOLICITOR

SEPTEMBER 17, 1936

    However, aside from the considerations in this case which lead me to this conclusion, it should be noted that frequently the Executive orders creating reservations expressly give the Secretary of the Interior discretion as to what Indians to locate on the reservation, and that this fact has not caused any difficulties in the organization of the Indians residing on those reservations. These cases are even stronger than the instant case, since the 1865 act does not expressly give any authority to the Secretary. Your attention is called particularly to the organization of the Northern Cheyenne Tribe of the Tongue River Reservation and the organization of the Shoshone-Paiute Tribes of the Duck Valley Reservation. The Executive Order of November 26, 1884, creating the Northern Cheyenne Reservation stated that it was for the use and occupation of the Northern Cheyenne Indians "and such other Indians as the Secretary of the Interior may see fit to locate thereon". However, the Northern Cheyenne Constitution provides for a tribal organization with membership of those whose names appear on a certain census roll, the same as in the proposed Colorado River Constitution. Similarly, the Duck Valley Reservation was enlarged by the Executive Order of May 4, 1886, for the use and occupation of the Paddy Caps Band of Pi-Utes "and such other Indians as the Secretary of the Interior may see fit to settle thereon?". Here, again, the constitution provides for a tribal organization with membership of those on a definite census roll. Other examples where the Indian occupants of the reservation was left vague when the reservation was created are the Executive order of July 5, 1875, creating the Fort Belknap Reservation, and the Executive order of July 2, 1873, creating the Blackfeet Reservation.

    In short, it is my opinion that in the organization of Indian tribes which have had exclusive possession of their reservations for a long period of years, any initial vagueness in the designation of beneficiaries in the creation of the reservation can now be disregarded in the drafting of a constitution unless there is at the present time some actual controversy as to whom the reservation belongs.

    Your attention is called to a minor matter in the proposed letter submitting comments on the pro posed constitution to the constitutional committee. The first point, dealing with the preamble, is now unnecessary since it appears to have been so revised that the suggested name of the Indians corresponds to the name which they themselves originally proposed.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
FIVE TRIBES--RIGHTS-OF-WAY
September 17, 1936.
Memorandum for the Commissioner of Indian Affairs:

    The attached letter to the Superintendent for the 5 Civilized Tribes, holding that hereafter rights of way for public highways across restricted lands of members of the 5 Civilized Tribes must be acquired under section 4 of the act of March 3, 1901 (31 Stat. 1084), is returned for further consideration.

    While I agree with your conclusion that section 1 of the act of May 27, 1908 (35 Stat. 312), in so far as it pertains to the acquisition of rights of way for public purposes, is confined to condemnation and hence could not in any event repeal or supersede section 4 of the act of 1901, which authorizes the Secretary of the Interior to grant rights of way through allotted Indian lands, I nevertheless question the propriety of holding that section 4 of the act of 1901 is applicable to lands allotted to members of the 5 Civilized Tribes. In the first place, the administrative practice for nearly 30 years has been to the contrary. In the second place, it is seriously questionable as a matter of law whether section 4 of the act of 1901 applies. If section 4 of the act of 1901 was intended to be applicable to lands of members of the 5 Civilized Tribes there would have been no necessity for including in the subsequent allotment agreements with the Creek and Cherokee Nations specific provisions for the granting of section-line highways with further provision for the establishment of public highways elsewhere whenever necessary for the public good, subject to the condition that the Secretary of the Interior should determine the actual value of the land taken elsewhere than along section lines. (See section 37 of the Cherokee allotment agreement, approved and ratified in 1902, 32 Stat. 716, and section 10 of the supplemental Creek agreement, also ratified and approved in 1902, 32 Stat. 500.) The allotment agreements with the remaining Nations comprising the 5 Civilized Tribes, that is, the Choctaw, Chickasaw and Seminole Nations made no mention of public highway rights of way but by section 24 of the act of April 26, 1906 (34 Stat. 137), Congress authorized the establishment of section-line highways in these Nations, with the declaration that all allottees, purchasers, and other, should take title subject thereto.

    These specific provisions in the allotment agreements and the act of 1906 indicate that neither Congress nor the tribes regarded the general pro-
 


 

672

DEPARTMENT OF THE INTERIOR

SEPTEMBER 17, 1936

vision in the act of 1901 as having application to the 5 Civilized Tribes, and in the face of the administrative practice referred to above, I doubt if any-court would hold the act of 1901 to be applicable, particularly as such a holding would have the effect of impairing or clouding titles to existing rights of way heretofore acquired in good faith.

    If in your opinion the granting of rights of way over lands of members of the 5 Civilized Tribes, under section 4 of the act of 1901, is desirable from the viewpoint of adequate protection of the interests of the Indians, I suggest that before invoking that section legislation be obtained extending it to the lands of these Indians. In the meantime the existing practice may be continued, or, if you prefer, the State and county authorities may be required to obtain easement deeds where the right of way does not follow the section line or exceeds the width specified in the allotment agreements and the act of 1906, such easement deeds to be subject to the approval of the Secretary of the Interior. I see no reason for questioning the validity of such an approved easement deed even though the restrictions have not been first removed from the land by formal order of the Secretary of the Interior. See Willmott v. United States, 27 F. (2d) 277.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
REGISTRATION
September 19, 1936.
Memorandum for the Commissioner of Indian Affairs:

    The attached memorandum on registration of Indians is returned herewith for further consideration.

    Certain statements in the memorandum as drafted suggest that where doubt exists as to the blood quantum of an applicant the decision should be based upon certain social considerations.

    There is no objection, of course, to considering habits of living and association with other Indians as evidence in determining whether a person is one half blood or more. Several sentences, however, in the memorandum submitted seem to go much further than this and to suggest that weight be given to the social considerations aside from their actual probative value. The third sentence in the first paragraph of page 2 and the paragraph before the last on page 3 are subject to the foregoing criticism.

    I do not believe that the Department is justified in stretching the interpretation of section 19 in the manner suggested, although I agree that considerations of a social nature must be considered at a later stage in administration, when questions of allocating land, educational loans, and other benefits under the act are presented. I suggest that the objectionable statements be omitted or modified.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
IRRIGATION PROJECT ASSESSMENT-FORT HALL
RESERVATION

56 ID. 7

M-28701                                                                                                                            September 24, 1936.

The Honorable
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have referred to me for opinion a question submitted by the Commissioner of Indian Affairs:

    Have the Indians on the Fort Hall Indian Reservation the right to receive water from the irrigation project there located without payment of assessments for operation and maintenance (a) where the restricted fee patented land is still held by the original allottee or his heirs, (b) where restrictions have been removed and the land is still held by the original allottee or his heirs, and (c) where the restricted Indian land is leased for one or more years?
    In my opinion, the answer is that with the single exception of Indian lands which are leased for a term longer than three years, the Indian owners of lands on the Fort Hall Indian Reservation do have the right to receive water without payment of assessments for operation and maintenance, regardless of the nature of or restrictions on their title, or whether the lands are still held by the original allottee or his heirs.

    The act of March 1, 1907 (34 Stat. 1015), was the Indian Department Appropriation Bill for the year ending June 30, 1908. In it special provision was made for construction of an irrigation system at the Fort Hall Reservation. For such purpose $350,000 was appropriated. This sum was to be reimbursed the United States from moneys obtained from the sale of water rights to owners of lands in private ownership at the rate of $6 per acre.
 


 

673

OPINIONS OF THE SOLICITOR

SEPTEMBER 24, 1936

These lands were in that part of the reservation which the Fort Hall Indians had theretofore ceded to the United States.

    Among other things, it was provided:

    "The land susceptible of irrigation under the system herein provided and owned by Indians in severalty or in common shall be deemed to have a right to so much water as may be required to irrigate said lands without cost to the Indians so long as the title remains in said Indians or tribe, but any such lands leased for a longer term than three years shall bear their pro rata part of the cost of the maintenance of the system that may be constructed, and when the Indian title is extinguished these lands shall also bear their pro rata cost of maintenance." (34 Stat. 1024. This will hereafter be referred to as the 1907 exemption provision.)
    Thus it was unequivocally said that with the one exception of lands leased for more than three years, Indian owned lands were to receive water without the imposition of operation and maintenance charges. This provision was not the result of any general condition common to all Indians. It was justified by special circumstances peculiar to these particular Indians, and known to Congress when the statute was enacted.

    The original appropriation bill did not provide for a Fort Hall irrigation system. Senator DuBois moved to add the provisions therefor to the act. In support of the amendment he submitted to the Senate a written statement of his own and a letter from the Commissioner of Indian Affairs to him. They were referred to the Committee on Indian Affairs and ordered printed. The Committee, of which the Senator was a member, approved the amendment and incorporated his statement and the letter of the Commissioner in its report. (Cong. Rec., Vol. 41, p. 1427; Senate Dot. No. 230, 59th Cong. 2nd sess.; Senate Rep. No. 5689, 59th Cong. 2d sess., pp. 14, 15.)

    These documents reveal that the following factors induced Congress to enact the exemption provision. The white owned lands on the ceded portion of the reservation were worthless without water, The white owners were to be charged $6 per acre for water rights. "A large sum of money" belonging to these Indians had already been spent on an irrigating canal. These Indians had by treaties three times ceded portions of their lands to the United States. The Lemhi Indians were about to be moved to the Fort Hall Reservation and take lands in severalty. "Under all the circumstances it does not seem fair nor equitable that the Indians should pay for this additional irrigation system * * *. It is fair that the whites should pay for this storage system." The bill was to accomplish the desired object, "without working an injustice to the Indians of the Fort Hall Reservation, who are certainly entitled to some consideration in the matter of securing water for their lands."

    The act of August 1, 1914 (38 Stat. 582), was an appropriation act for the Bureau of Indian Affairs for the year ending June 30, 1915. It did not expressly repeal or even mention the act of March 1, 1907, or any part of it. But the claim has been made that it impliedly repealed the 1907 exemption provision.

    In 1907 Congress granted the Fort Hall Indians an exemption which, in its considered judgment, was equitably due them. If for no known reason it intended seven years later to withdraw the grant, it could easily enough have said so. May we justifiably say that such an intent is implicit in the words of the 1914 statute? The evidence to support a conclusion that it is, should be clear, convincing, unmistakable.

1.

    Repeals by implication are not favored. They will be implied only if the two statutes are irreconcilable and it is impossible reasonably to give effect to both. The implication must be necessary. The intention of the legislature to repeal must be clear and manifest. More particularly, "where there are two statutes upon the same subject, the earlier being special and the later general, the presumption is, in the absence of an express repeal, or an absolute incompatibility,* that the special is intended to remain in force as an exception to the general." "When the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms or treating the subject in a general manner and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all." (Washington v. Miller, 235 U.S. 422, 428; Posadas v. National City Bank, 296 U.S. 497, 503, 504; Rodgers v. United States, 185 U.S. 83, 88, 89.)

    Among other things, the later act appropriated $335,000 for general irrigation work on Indian reservations. Attached to the provision therefor were several provisos, three of which relate to payment of construction and maintenance charges. These three provisos, separately discussed here-
__________
    * Unless otherwise stated, all underscoring is supplied.
 


 

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DEPARTMENT OF THE INTERIOR

SEPTEMBER 24, 1936

after, make no mention of any particular Indians, reservations or irrigation systems. They constituted general legislation. The 1907 exemption provision applied to a particular group of Indians, the Fort Hall Reservation and its irrigation system. It was special legislation enacted as a result of conditions peculiar to the Fort Hall Indians. Thus its survivorship is aided by the general rule against the implication of a repeal, as well as the even more emphasized subsidiary rule against the implied repeal of a special statute by a general one. Guided by these rules, I think the conclusion that there was no implied repeal is inescapable.

    (a) The only one of the three 1914 provisos which mentions maintenance charges is this:

"* * *; and for lands irrigable under any such system or project the Secretary of the Interior may fix maintenance charges which shall be paid as he may direct, such payments to be available for use in maintaining the project or system for which collected." (38 Stat. 583. This will hereafter be referred to as the maintenance proviso.)
    When the word "may" is used in the statutory grant of a power, it is assumed the power was intended to be permissive, discretionary, rather than mandatory. Only where the context or subject matter compels such construction, is it ever construed to mean "shall" and the power to be mandatory. Neither context nor subject matter compels such construction here. In the next proviso it is said that moneys "shall" be reimbursable. And in the following one, the Secretary is "authorized and directed to apportion." The statute clearly distinguishes between the permissive and the mandatory. By this proviso the Secretary was merely authorized, not directed, to fix and collect maintenance charges. (Farmers Bank v. Federal Reserve Bank, 262 U.S. 649; United States v. Thoman, 156 U.S. 353; Terre Haute v. Indiana, 194 U.S. 579.)

    A permissive power to collect maintenance charges has a flexible range. To authorize, but not direct, the exercise of a power, presupposes the existence of occasions when it need not or is not to be exercised. The 1907 act made provision for one such occasion. The result of giving effect to both is simply this: The Secretary has the general power to collect maintenance charges. At Fort Hall too he may collect these charges, but the burden of payment is to be borne by those users who are not Indian landowners and those Indian landowners who lease their lands for more than three years. The later statute expressly grants a general permissive authority. The earlier one merely regulates its exercise in a limited area. There is consistency, compatibility, harmony. Both may reasonably be given effect without conflict. A repeal cannot be implied. (Washington v. Miller, Rodgers v. United States, Posadas v. National City Bank, supra; Ex parte Crow Dog, 109 U.S. 556; United States v. Healey, 160 U.S. 136; Knapp v. Byram, 21 Fed. (2d) 226.)

    In the second portion of the proviso, it was provided that the moneys collected were to be avail able for maintaining the project for which collected. This concerned merely the mechanics of handling such moneys as were collected; not how nor from whom the money was to be collected. It therefore does not merit serious consideration in determining whether there was an implied repeal. And yet legislative records present convincing proof that it was this portion of the proviso in which the primary purpose animating its enactment found expression.

    The maintenance proviso is actually the second half of a longer proviso. The two portions are separated by a semicolon. The first half provides "that the proceeds of sales of material utilized for temporary work and structures shall be covered into the appropriation made therefor and be available for the purpose of the appropriation." Both portions have this in common: Moneys received were again to be directly used for particular irrigation purposes. Both were intended to achieve related objectives.

    The following is from the justification submitted by the Assistant Commissioner of Indian Affairs to the House Committee:

    "Under the present laws and decisions by the comptroller, the funds derived from the sale of such articles must be deposited to the credit of the United States and are no longer available for construction of the projects for which they were appropriated: and this, so far as the irrigation work is concerned, amounts to a reduction of the appropriation * * *. The acreage cost for maintenance on these projects is fixed by the Secretary of the Interior each year, and the necessity for some specific authority of law for collecting maintenance charges has become apparent. The Comptroller of the Treasury has decided in the case of Fort Hall, which would undoubtedly apply to other reservations, that the moneys so collected must be deposited to the credit of the United States. It is therefore unavailable for the purpose for which it was intended, unless later appropriated by Congress. * * * If legislation as suggested in the draft of the bill prepared by the Indian Office is passed, the amount of money available for the con-
 

 

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SEPTEMBER 24, 1936

struction of a project will equal the appropriation, and the money collected for maintenance * * * will be used, for the purpose of maintaining and operating the various systems." *

Moneys paid in discharge of obligations to pay for operation and maintenance charges were to be used as indicated instead of being deposited to the credit of the United States. This purpose is wholly unrelated to an existing exemption from liability to pay such charges.

    It is true there was some mention of the necessity for authority to collect maintenance charges. But the necessity was not for creating the authority; it was for obtaining "specific authority of law." The implied power had theretofore been assumed to exist, unchallenged, so far as appears. Thus in a letter from the Assistant Secretary to the Fort Hall Superintendent of Irrigation, dated April 2, 1913, it was said that "although there appears to be no specific authority of law for the assessment of maintenance charges, yet the express authority for the Secretary of the Interior to do whatever is necessary to carry out the purposes of the act of March 1, 1907 * * * is believed to cover the situation." The 1907 exemption provision itself furnishes proof of the existence of the implied power. In enjoining collection from a particular group, the existence of a general power to collect is implicit.

    Legislative records relating to the maintenance proviso reveal its purposes to be clearly consistent with the survival of the 1907 exemption provision.

    (b) The next proviso is this:

    "That all moneys expended heretofore or hereafter under this provision shall be reimbursable where the Indians have adequate funds to repay the Government, such reimbursements to be made under such rules and regulations as the Secretary of the Interior may prescribe." (38 Stat. 583. This will hereafter be referred to as the reimbursable proviso.)
    All these provisos were attached to a general irrigation appropriation. In addition to the three already mentioned there was another. It provided that "no part of this appropriation shall be expended on any irrigation system or reclamation project for which specific appropriation is made in this Act or for which public funds are or may be available under any other Act of Congress." Previous appropriation bills also included such general irrigation appropriations and similar commands against the use thereof. Both in the 1914 Act and previous ones, specific appropriations were made for the Fort Hall project (act of April 4, 1910, 36 Stat. 270, 274; act of March 3, 1911, 36 Stat. 1059, 1063; act of August 24, 1912, 37 Stat. 518, 524; act of June 30, 1913, 38 Stat. 78, 87; act of August 1, 1914, 38 Stat. 583, 589).

    The reimbursable proviso speaks of moneys being "reimbursable where the Indians have adequate funds to repay the Government." The meaning of both reimbursement and repayment is the return of an equivalent received. Congress could not have intended that reimbursement or repayment of the general irrigation appropriations was to be made by persons who had not received and were not to receive any benefit therefrom.

    That this proviso was intended to apply to those projects which were financed out of this and previous general appropriations and not such projects as Fort Hall is made clear by legislative history and records. Referring to the general irrigation appropriation, the Senate Committee reported:

"This is the general item for irrigation work amongst the Indians. The appropriation provides for the general irrigation force of the Indian Office, the payment of salaries and expenses, as well as providing for the construction of small irrigation projects for Indians who are without funds. In other portions of the bill are found specific items for irrigation which are reimbursable. This item is a gratuity, excepting for the proviso: 'That all moneys * * *.' " (Report of Senate Committee on Indian Affairs, Sen. Rep. No. 519, 63d Cong. 2d sess., p. 8.)
    Assistant Commissioner Merritt testified during committee hearings to the same effect. He said this proviso was intended to apply to certain small irrigation projects which had been constructed out of previous general appropriations for Indians who were without funds. In the belief that they might "ultimately be able to pay for the construction cost" the Department desired the authority to require the Indians whose lands had been Committee Hearings, supra, pp. 190, 276; incorirrigated "to pay for that construction." (Senate

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* Hearings before Subcommittee of House Committee on Indian Affairs, on the Indian Appropriation Bill, 1913, page 34; incorporated by reference in Hearings before Senate Committee on Indian Affairs On H. R. 12579, 1914, page 278: relevant Senate Hearings included by reference, Senate Rep. No. 519. 63d Cong. 2d sess., page 8.

    Here, as elsewhere in this opinion, legislative records are used as an aid in ascertaining legislative intent. That such use is sanctioned, see Penn. Mutual Co. v. Lederer, 252 U.S. 523, 534; Gooch v. United States, 297 U.S. 124, 127; Duparquet v. Evans, 297 U.S. 216, 220; Omaochevarria v. Idaho, 246 U.S. 343, 351; O'Hare v. Luckenbach, 269 U.S. 364, 367, 368; Fed. Tr. Comm. v. Raladam Co., 283 U.S. 643, 650; District of Columbia v. Reuter, 15 App. D. C. 237, 241; The Courts and Committee Reports. J. P. Chamberlain. 1 Univ. of Chicago Law Rev. 81; A Note on "Statutory Interpretation", Landis 43, Harvard Law Rev. 886.
 


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