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826

DEPARTMENT OF THE INTERIOR

MAY 14, 1938

    A lease or allotment obviously is not an exclusive means of acquiring control of base property. A showing of a right to possession or a right to ust the base property, whether by consent of the owner or otherwise, clearly would be sufficient to establish "control." It of course would be necessary to point out definite base property, in order that it might be classified and rated, but this requirement appears to be satisfactorily met by the following language, if accurate, quoted from a letter dated April 1, from the Special Attorney for the Pueblo Indians to the chairman of the advisory board:

    "* * * Nevertheless the applications that have been presented to you for the various pueblos and the showing made before your Board very clearly and unequivocally shows that definite amounts of range land are set aside in each pueblo for use of the livestock owners of the Pueblo who are applicants for permits. It is true at the present time no individual Indian stockholder member of the Pueblo either owns, leases or has an allotment of a definite describable area of range land. Yet the livestock owners of each Pueblo who are applicants do have a definite amount of range land for their use. This land, of which the applicants are occupants, should serve as an adequate base property. Under the grazing regulations of the Secretary of the Interior and those adopted by the respective Pueblos the said range lands on the reservations do round out a year's operation for those members of the community who use and occupy reservation range land which is dependent upon the use of public domain close thereto. * * *"
It goes without saying, of course, that the same property could not be used as a base to the full extent of its rating for more than one license or permit.

    The foregoing comments concerning grazing applications by individual Indians have been included in order that both the Division of Grazing and the Office of Indian Affairs may have the benefit of a complete expression of opinion. Whether the applications should be filed by the Pueblos alone, by the individual Indians alone, or in their joint names, is a matter for administrative determination and the form best suited to one service may be less conveniient to the other. It is sufficient to say, without further detailed discussion, however, that nothing in either the Taylor Act or the Federal Range Code justifies an adverse recommendation on an application filed in any one of the three forms enumerated merely on that ground.

Question 4.

    This question must be answered in the negative. Whether a showing of compliance with the Slate brand and sanitary laws should be made a condition precedent to the issuance ot a license or permit to graze on lands of the United States is a matter of policy for administrative determination and I offer no opinion on the desirability of such a requirement. It is sufficient to say that neither the Taylor Act nor the Federal Code contains such a requirement and an advisory board, whose functions in any event are limited to making recommendations, is without authority to base those recommendations on factors outside the scope defined by the Congress in the act and by the Department in the rules.

    In summary, it is my opinion that a grazing license or permit application filed either in the name of a Pueblo alone, in the name of an individual Indian, or in their joint names, is in acceptable form, since the facts submitted indicate clearly that either has a sufficient interest in the livestock to qualify as a "stock owner" within the meaning of the Taylor Act and the Federal Range Code and that either is in a position to show the necessary ownership or control of base property without, in the case of an individual Indian, a lease, allotment or other right to the exclusive use of the property. It is further my opinion that in the absence of a departmental rule requiring compliance with State brand and sanitary laws by applicants, the satisfaction of such a requirement cannot be made a condition precedent to the issuance of a grazing license or permit.

                                                                                                                                                FELIX S. COHEN,

Acting Solicitor.
Approved: May 14, 1938.
HAROLD L. ICKES, Secretary of the Interior.

TRIBAL COUNCIL--DELEGATION OF POWER


May 14, 1938.


 Memorandum to the Commissioner of Indian Affairs.

    The time within which these two ordinances of the Oglala Sioux Tribal Council, dated February 18, 1938, can be rescinded by the Secretary of the Interior expires on May 19. In my opinion, one of
 



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OPINIONS OF THE SOLICITOR

MAY 24, 1938

these ordinances should be rescinded and I trust that you can give the matter immediate consideration so that the necessary action may be taken within the time remaining. My objection is concerned with the first ordinance providing a general license fee upon salesmen and peddlers and is as follows:

    This ordinance provides that a flat license fee shall be required of certain types of salesmen but that farmers and dairymen selling their own products shall be exempt, "as also shall certain others when it is determined by the Superintendent of the reservation to be advisable to do so and where he determines that the services are such that they should be exempt from this fee." Aside from any question of the administrative propriety of delegating such authority to the Superintendent, in my opinion, this delegation of authority is open to objection as a delegation to an administrative officer of a legislative power vested in the tribal council. The ordinance in effect provides that certain salesmen shall be subject to a license fee but that the Superintendent may determine in his discretion that they shall not be subject to the fee. It is a well established. principle of constitutional law that legislative power cannot be delegated to administrative officers, although administrators may be authorized to determine how, when and to whom legislation shall apply where standards are provided in the legislation to guide the determinations made by the administrators. These standards are not sufficient if they are so vague and indefinite as to leave room for arbitrary or capricious action on the part of the administrators or to leave up to them decisions of legislative policy (Panama Refining Co. v. Ryan 293 U.S. 388; State v. Grosjean, 182 La. 298, 161 So. 871). In the latter case a statute permitting the Governor to reduce the amount of a tax in certain circumstances was upheld only be cause the court found that there was "no uncertainty" as to the legislative intent or policy" and that "no discretion is attempted to be given to the Governor to determine what the policy shall be."

    Article IV section 1 (h) of the Oglala Tribal Council places the power to levy license fees in the tribal council, and section 1 (t) of that article authorizes the tribal council to delegate the powers of Article IV only to certain boards, officers and cooperative associations of the tribe, with a reservation of a right to review the action in the tribal council. In my opinion this ordinance violates the tribal constitution in delegating to the Superintendent the power to determine who shall and who shall not be subject to the license fee. The provision in the ordinance "when it is determined by the Superintendent of the reservation to be advisable to do so and where he determines that the services are such that they should be exempt from this fee", leaves to him determinations of policy which should be made in the tribal ordinance itself, and fails to provide any standards to govern his decisions.

    In order to save delay in view of the short time remaining in which action can be taken by the Department, I have drafted for your consideration the attached letter to the council which would rescind the ordinance on the grounds given.

                                                                                                                                                FELIX S. COHEN,

Acting Solicitor.
LOANS--PREFERENCE--DEGREE OF INDIAN BLOOD


May 24, 1938.


 Memorandum to the Assistant Secretary:

    In a memorandum addressed to you dated April 15 from the Indian Office, Commissioner Collier states that certain credit problems have arisen in Oklahoma due to the fact that the Oklahoma Indian Welfare Act makes credit available to all Indians regardless of their degree of blood, and that as a result a large number of applications are being made by people with a very small degree of Indian blood. He states that the Five Civilized Tribes agency staff, in particular, which has previously had supervision only over restricted Indians, being those of one-half or more Indian blood, is unable to provide the assistance and supervision necessary to handle the loan applications from the unrestricted Indians and credit funds are entirely inadequate to provide credit for all the Indian applicants. In view of these circumstances, he asks whether, as a matter of policy, it would be possible to instruct the field staff that preference should be given to loans to restricted Indians and that loans to unrestricted Indians should not be approved unless fully secured. He reports that the Indian Office has already instructed the superintendent that the assistance of his field staff in the preparation of applications should be confined to the assistance of restricted Indians. It is assumed that the memorandum deals with loans to Indians by county credit associations, as well as loans to Indians directly from the United States.

    The regulations governing loans to Indian credit associations provide that a credit association to be eligible to receive a loan from the Government must include in its articles of association the following obligations "to carry on the business of borrowing
 



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DEPARTMENT OF THE INTERIOR

MAY 24, 1938

money from the United States and relending it to its members under instructions and regulations prescribed from time to time by the Secretary of the Interior and the Commissioner of Indian Affairs." In view of this regulation which is carried over into the articles of association, and the loan application of the credit association, it is my opinion that instructions on the policies of loaning funds to members of the association may be issued from time to time by the Commissioner, provided the instructions are consistent with the credit regulations. Instructions consistent with the regulations covering loans by the United States to individual Indians may likewise be issued by the Commissioner for the guidance of the field staff.

    The existing regulations should be looked to first in determining the possibility of instructions requiring full security in certain cases. Section 2 of the regulations for loans by Indian credit associations provides that the granting or refusal of a loan shall be governed by a number of considerations which are stated, including "the character and past performance of the borrower, both generally and in the particular work involved in the enterprise, and the amount and kind of security offered." The loans by the credit associations are to be approved by the superintendent and the credit agent who are directed to take into consideration the loan policies enumerated in section 2. Section 2 of the regulations governing loans from the United States to individual Indians contains a statement of the considerations upon which the granting or refusal of a loan would depend, which statement is similar to that in section 2 of the regulations governing loans by a credit association.

    It would be .reasonable, in my opinion, for the Commissioner of Indian Affairs to supplement the statement of loan policies in section 2 of these regulations by instructing the superintendent and the credit agent to require greater security in certain circumstances than in others where other considerations may compensate for the offering of slight security. However, I would not advise that these instructions be issued in terms of restricted or unrestricted Indians or differences in the degree of blood of the Indians as these terms relate to the legal status of the applicant for the loan rather than to the propriety of granting the loan. The Oklahoma Indian Welfare Act makes no distinction among Indian applicants on any such grounds of status, but the Act does vest discretion in the Department to grant or reject loans on the basis of their soundness and propriety. In other words, I would see no objection if the Indian Office found it advisable to instruct the field staff to require full security in cases where they were not familiar with the past performance of the borrower and were not in a position to supervise his future activities, or in cases where the applicant has no restricted property which can be relied upon as a source of income and permanent base for his activities, or in cases where the applicant has access to other sources of credit, particularly by reason of the unrestricted status of his property.

    The foregoing considerations also apply to the question whether instructions could be issued by the Indian Office to the field staff to give preference to loans to restricted Indians. The credit regulations as now drafted place all eligible applicants upon an equal footing and do not leave room for definitions of preference by the Indian Office. The only provision in the regulations setting up preference is that providing that preference shall be given to agricultural enterprises and to enterprises within or adjacent to Indian agricultural communities. Some, at least, of the loan applications of county credits associations provide in their plans of operation that first consideration will be given to the most needy cases.

    It is therefore my opinion that any further statement of preference should take the form of a revision of the relevant regulations, rather than an instruction from the Commissioner to the field staff. I believe the Secretary of the Interior would have authority under the Oklahoma Act to provide in his regulations for preference among loans where preference to some over others must be given because the applications exceed in amount the available credit funds. However, here again it is believed that it would be more consistent with the provisions of the Act if the preference could be based upon considerations relating to the propriety of the loans rather than upon considerations relating to the legal status of the applicants. Furthermore, in the case of loans by credit associations, particularly where the credit associations have been already established under existing regulations, it would be appropriate for determination of preference to be made by the credit associations in view of the provisions of the articles of association and bylaws placing supervision and control of the business and affairs of the association in the board of directors.

    The instruction issued by the Indian Office to the agency staff to confine their assistance in the preparation of applications to Indians under the supervision of the agency is a matter of administration for the determination of the Indian Office.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.



829

OPINIONS OF THE SOLICITOR

JUNE 3, 1938

SHOSHONE RESERVATION--RENEWAL OF
OIL LEASES

June 3, 1938.
Memorandum for the Assistant Secretary:

    You will recall that the information presented by various applicants for renewal of oil leases in the Maverick Springs field of the Shoshone Indian Reservation in Wyoming showed that in a number of instances contracts had been entered into by the lessees providing for the payment of over-riding royalties in large amounts. These over-riding royalties are, of course, in addition to the one-eighth royalties payable to the Indians. In one instance involving the largest lease in the field, the amount the lessee is required to pay out of production is in excess of 50 percent of the oil produced from the premises. Conditions such as these not only constitute an impediment to profitable operation of the leases, but it is a fair assumption that they have contributed materially to the long delay in marketing the production from this field. Such a situation which is seriously detrimental to the interests of the Indians should not, of course, be allowed to continue. For this reason I have given consideration to the question of whether the Secretary of the Interior may not lawfully impose as one of the conditions of renewal the requirement that the operating royalty, including that due the Indians, shall in no event exceed the maximum economic royalty.

    While the contracts giving rise to these additional payments are not before me, I assume that they contain provisions making them effective during the period of the original leases and any renewals thereof. Such contracts, however, like the original leases, were made with knowledge of and subject to the terms and conditions of August 21, 1916 (39 Stat. 519).

    That act provides, among other things, that:

"Leases shall be for a period of twenty years, with the preferential right in the lessee to renew the same for successive periods of ten years each upon such reasonable terms and conditions as may be prescribed by the Secretary of the Interior."
    The right of renewal provided for in this provision, it is to be observed, is not absolute. The renewal may be obtained upon such reasonable conditions as the Secretary may prescribe and not otherwise. The power to determine the conditions of renewal has thus been committed to the Secretary by Congress. Such power obviously cannot be taken away by any act of the lessee through contract or otherwise. The only limitation to which the power is subject is that the conditions of renewal must be reasonable. The authority to determine the reasonableness of the conditions is also committed to the Secretary and in its exercise he is necessarily invested with broad discretion. That this power and authority extend to the imposition as a condition for renewal, a requirement that the operating royalty shall not exceed a figure to be determined by the Secretary to be the maximum economic royalty, I have little doubt. The creation of outstanding royalty or production interests in owners who are not chargeable with the costs and expenses of development has long been regarded as an unwholesome practice. Proper limitations imposed upon such a practice appear to be reasonably necessary, not only for the protection of the interests of the Indians, but as an assurance that the leaseholds will be properly and efficiently developed and operated.

    In view of the foregoing, I suggest that consideration be given to the matter of requiring all applicants for renewal of the Maverick Springs leases to submit a satisfactory showing that no contracts are in existence requiring the payment of royalties in excess of such maximum royalty as may be determined upon, and that the renewal leases contain appropriate provisions prohibiting the payment of royalties in excess of such determined amount during the period of the lease. Mr. Soyster of the Geological Survey, I believe, has heretofore suggested that the allowable royalty payment, including that due the Indians, should not exceed 25 percent. This figure might be adopted as the maximum.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.
REVOLVING CREDIT LOANS--
GOVERNMENT EMPLOYEES
June 14, 1938.
Memorandum to the Assistant Secretary:

    The Indian Office has presented for your consideration and approval two applications for loans from corporation credit funds made by members of the tribal corporations concerned who are also regular employees of the Government. Under section 24 (b) of the credit regulations governing loans by tribal corporations, loans to regular employees of the Government must be approved by the Com-
 



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DEPARTMENT OF THE INTERIOR

JUNE 14, 1938

missioner of Indian Affairs. The Commissioner has approved these applications but is concerned whether the Department should continue to permit such loans in view of the ruling of the Attorney General dated July 12, 1937. The Commissioner states that if this opinion were held to apply to irregular and emergency employees the activities of the tribal corporations would be badly handicapped and the benefits of the revolving fund seriously restricted.

    In the opinion of the Attorney General referred to this Department was advised against revising the regulations dealing with licensed traders to permit Government employees to join and deal with Indian cooperative associations. The question presented to the Attorney General by this Department involved white and Indian employees becoming members of, and purchasing supplies through, an association which was formed by Indians for the particular purpose of dealing in supplies for members. While the question before the Attorney General was considerably different from the present question in the facts involved, the opinion of the Attorney General indicates an approach to the interpretation of the statutes concerned which has considerable bearing upon this question. The statutes involved are sections 68 and 87 of Title 25, United States Code, which read as follows:

  "Sec. 68. Employees not to trade with Indians.-No person employed in Indian affairs shall have any interest or concern in any trade with the Indians, except for, and on account of, the United States; and any person offending herein, shall be liable to a penalty of $5,000, and shall be removed from his office."

  "Sec. 87. Interest of agents and employees in Indian contracts.-No agent or employee of the United States Government or of any of the departments thereof, while in the service of the Government, shall have any interest, directly or indirectly, contingent or absolute, near or remote, in any contract made, or under negotiation, with the Government or with the Indians, for the purchase or transportation or delivery of goods or supplies for the Indians * * *. The violation of any of the provisions of this section shall be a misdemeanor, and shall be punished by a fine of not less than $500 nor more than $5,000, and by removal from office; and, in addition thereto, the court shall, in its discretion, have the power to punish by imprisonment of not more than six months."

    In discussing the statutes the Attorney General stated that they have been "broadly construed to prohibit Government employees from in any way being connected with or concerned in 'trade in articles bought for, supplied to, or received from the Indians'." The common concept of trade is the purchase and sale of commodities, but the borrowing and loaning of money is a commercial transaction which cannot be successfully distinguished from other forms of trade. In one of the few cases involving section 68 of Title 25 the Indian Farm Agent, who was held to have violated this provision, had an interest not only in the purchase and sale of commodities by Indians but in borrowing and loan transactions undertaken by them. United States v. Hutto, 256 U. S. 524. Moreover, such financial transactions present the same opportunity for undue influence and misuse of position by Government employees as the Attorney General and the courts have found it to be the purpose of the statutes to prevent.

    Section 10 of the Indian Reorganization Act contemplates and authorizes loans by tribal corporations to members of the tribe. If it were possible I should like to reconcile this section with the statutes above quoted by determining that loans may be made to members of the tribe regardless of their status of employment. However, a precisely similar question of statutory construction was invoked in United States v. Douglas, 190 Fed. 482, in which case it was held that a school teacher who was a member of the Crow Tribe violated section 68 of Title 25 in purchasing restricted cattle from Crow Indians. It was argued in that case that the statute prohibiting the sale of restricted cattle except to members of the tribe, without the approval of the Superintendent (Sec. 195, Tit. 25), permitted these transactions but the court held that the statutory permission for purchase of Indian cattle by members of the tribe did not extend to the Government employee who, although a member, was prohibited from such transactions by section 68 of Title 25.

    In view of those opinions I must advise against the approval of those applications and further affirmative action by the Department in approving loans to regular employees of the Government.

    The credit regulations governing loans by tribal corporations do not deal with the making of loans by the tribes to irregular and emergency employees, and affirmative action by the Department is not involved in such cases. The departmental regulations governing the duties of superintendents and other employees approved May 9, 1929, repeat the prohibitions of sections 68 and 87 of Title 25 in connection with regular employees. No application of the statutes is made in these regulations to irregular employees, and emergency employees are not covered by these regulations. Since the Depart-
 



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OPINIONS OF THE SOLICITOR

JUNE 14, 1938

ment, therefore, has thus far not formally applied these statutes to irregular and emergency employees, and since the problem is not presented by the credit regulations or the loan applications, I believe the question of the application of these statutes to such employees may be passed over at the present time if the Indian Office is willing to withdraw the question. In the meantime the situation might be clarified through obtaining amendatory legislation. While the Attorney General, in a letter to this Department dated February 28, 1938, supplemental to his opinion of July 12, 1937, held that the distinction proposed by this Department in positions in the Indian Service on the basis of the trust and influence they entailed would not be valid under the statutes quoted, this letter did not decide the precise question whether irregular and emergency employees were "employed in Indian affairs" and otherwise within the terms of the statutes.

    In connection with one of these applications the regular employee of the Government is proposing to lease certain tribal land from the tribal corporation, and this proposed lease is called to your attention by the Indian Office. Such a lease, far from being permitted by any existing regulations, is expressly prohibited by section 39 of the regulations governing duties of superintendents and other employees previously referred to. This section prohibits any sale or lease of Indian land by a regular employee as in violation of section 68 of Title 25. I believe such a prohibition is justified. A purchase of Indian land by a Government employee was held to violate this section in the case of Ewart v. Blue Jacket, 259 U. S. 129, and a lease of Indian lands would fall within the same type of prohibited transaction.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.

LEASE--CONSENT OF INDIAN


June 14, 1938.


 Memorandum to the Commissioner of Indian Affairs:

    The attached letter authorizes Supt. W. O. Roberts of the Pine Ridge Agency, South Dakota, to execute a lease on behalf of Mr. White Bull, an Oglala Sioux allottee, in favor of Mr. Charles E. Gorenson. It appears that Mr. White Bull on June 29, 1937, signed an application to lease his allotment to Mr. Gorenson for a one-year term beginning on March 1, 1938, but that he has, however, refused to sign the lease. He first refused on October 25, 1937, claiming that he wanted his rental money paid to him at once. On December 15, 1937, Mr. Gorenson sent in to the Pine Ridge Agency a check for $27.50. Mr. White Bull then returned to the agency on January 6 of this year, apparently "ready to sign the contract", but once again refused when he was requested to apply all or part of his rental on the payment of a reimbursable obligation of $15.11 which had been due for some years. Thereupon the Superintendent requested authority to execute the lease on behalf of Mr. White Bull and to deduct $15.11 from his rental check to liquidate his reimbursable debt.

    There is no legal authority of which I am aware that authorizes the Superintendent to execute this lease without the consent of the Indian lessor. On the contrary, Mr. White Bull's consent is clearly required (sec. 395, Tit. 25, U.S.C.; sec. 3, Regulations Governing the leasing of Indian Allotments for Farming, Grazing and Business Purposes).

    The letter suggests, however, that Mr. White Bull's signature on the application to lease conferred upon the Superintendent effective authority to sign the lease if at any time or for any reason the Indian refused to do so. The language relied upon is the following:

"Furthermore, should We or I, for any reason whatsover, fail to sign a contract drawn in accordance therewith, we without reservation, hereby authorize the Supt. of the Pine Ridge Agency to sign the contract in our stead."
Although this stipulation sought to vest in the Superintendent an irrevocable power, it is my opinion that the power was, in fact, revocable and that it terminated upon the Indian's refusal to sign the lease on October 25, 1937, and his declaration at that time that he was unwilling to lease unless an advance payment was made on the lease.

    Under certain circumstances, a third person may have such an interest in a power of attorney given as security for performance of a contract as to make the power irrevocable (Hunt v. Rousmanier, 8 Wheat. 174), but as between himself and his agent the principal always has power to revoke the agency unless it is coupled with an interest on the part of the agent in the subject matter of the agency. Missouri v. Walker, 125 U.S. 339; Flanagan v. Brown, 11 Pac. 706; Brown v. Pforr, 38 Cal, 550. The power to revoke exists even though the revocation may in certain circumstances, as where a consideration has been given for the agency, or .where a definite period for performance is fixed in the agency agreement, render the principal liable in damages to the agent. Shawver v. Ewing, 1 F. (2d) 423; Mecham, Agency, secs. 614, 620, 211; Tiffany on Agency (2d ed.) sec.
 



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DEPARTMENT OF THE INTERIOR

JUNE 14, 1938

86. In Shawver v. Ewing the court said, in holding the defendants not liable for a commission on a sale of an oil lease assignment made by an agent after his authority to sell had been revoked but before the date set by agreement for completion of the sale:

" 'It is the general rule of law that the authority of the agent may be revoked by the principal at his will at any time with or without good reason therefor.' * * * That rule is too firmly established to call for further discussion. It is equally well established that to exercise that power of revocation within a specified period. If the principal violates such a contract he will be liable in damages. That liability, however, does not destroy his power to revoke. If the principal revokes the agency before performance by the agent, that ends the agency, notwithstanding that the principal may be liable in damages if he has by a binding contract agreed not to revoke."
In the instant case the Indian had, not only a power to revoke the agency created by him in his agreement of June 29, 1937, but a right to revoke it as well. No consideration was given for the agency by the Superintendent, nor does the Superintendent have any such interest in the subject matter of the agency, namely, the signing of the lease, as to make the agency irrevocable. Such an interest must be a property interest (Hunt v. Rousmanier, 8 Wheat. 174), and the Superintendent has no such interest in the lease. Nor was the agreement limited as to time. The mere fact that the agency was for a single act which had to be performed before March 1, 1938, the date of the beginning of the lease, would not make it an agency for a definite term (Mecham, Agency, sec. 614); Shawver v. Ewing; 1 F. (2d) 423). As between the Indian and the Superintendent, therefore, the Indian had both the power and right to revoke the power of attorney, which the Indian exercised on October 25, 1937.

    Nor did the prospective lessee in this case have such an interest in the exercise of the power of attorney by the Superintendent as to make the power irrevocable by the Indian. It is true that many authorities recognize such an interest. Hunt v. Rousmanier, 8 Wheat. 174; Tiffany on Agency (2d ed.) sec. 88. In South Dakota, however, a different rule applies, in accordance with specific statutory provision. Section 1285, Rev. Codes S.D. (1929), provides:

"Unless the power nf an agent is coupled with an interest in the subject of the agency, it is terminated, as to every person having notice thereof, by:

    1. Its revocation by the principal."

Under South Dakota law only an agency coupled with an interest is irrevocable. A third person's interest is not such an interest. The interest must be that of the agent himself. Hunt v. Rousmanier; 8 Wheat. 174, clearly distinguishes an agency coupled with an interest from an agency given as security for performance of a contract. See also Brown v. Pforr, 38 Cal. 550.

    For the foregoing reason , I believe the authority given by the Indian on June 29, 1937, to the Superintendent was a revocable power of attorney under South Dakota law and that it was, in fact, revoked by the Indian on October 25, 1937. The Indian's signature is, therefore, now required on the lease.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.

RESTORATION TO TRIBAL OWNERSHIPS
UTE LANDS

56 I.O. 330
M-29798                                                                                                                                                      June 15, 1938.

Synopsis
Solicitor's Opinion

Re:

Authority of the Secretary of the Interior, under section 3 of the act of June 18, 1934 (48 Stat. 984), to restore to tribal ownership the remaining undisposed of lands in Colorado, not adjacent to the Southern Ute Reservation, ceded by the Confederated Bands of Ute Indians under the act of June 15, 1880 (21 Stat. 199).

Held:

The remaining undisposed of lands in Colorado ceded by the Confederated Bands of Ute Indians under the act of June 15, 1880 (21 Stat. 199) come within the designation in section 3 of the act of June 18, 1934 (48 Stat. 984) of "remaining surplus lands of any Indian reservation heretofore opened * * * to sale, or any other form of disposal * * * by any of the public land laws of the United States" and may, therefore, be restored to tribal ownership, whether or not situated adjacent to the Southern Ute Reservation, if the Secretary of the Interior finds any such restoration to be in the public interest.
 



833

OPINIONS OF THE SOLICITOR

JUNE 15, 1938

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    At the instance of the Commissioner of Indian Affairs you have requested the opinion of this office on the authority of the Secretary of the Interior to restore to tribal ownership under section 3 of the Indian Reorganization Act (June 18, 1934, 48 Stat. 984), the remaining undisposed of lands in Colorado ceded by the Confederated Bands of Ute Indians under the act of June 15, 1880 (21 Stat. 199). In phrasing the question, the Indian Office has asked whether section 3 is applicable to these lands in Colorado, "not situated adjacent to the existing Southern Ute Reservation." While this phrasing appears to restrict the question, it is believed that the Indian Office intends to request that all angles concerning the applicability of section 3 of the Indian Reorganization Act be determined. It is my intent to determine the matter in a comprehensive manner in view of the fact that the land involved is unusually large in extent, consisting of approximately 4,000,000 acres, and in view of the complicated legal and practical problems involved.

    Section 3 of the Indian Reorganization Act reads as follows:

    "Sec. 3. The Secretary of the Interior, if he shall find it to be in the public interest, is hereby authorized to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened, or authorized to be opened, to sale, or any other form of disposal by Presidential proclamation, or by any of the public-land laws of the United States: Provided, however, That valid rights or claims of any persons to any lands so withdrawn existing on the date of the withdrawal shall not be affected by this Act: Provided further, That this section shall not apply to lands within any reclamation project heretofore authorized in any Indian reservation: * * *" (Further provisos deal only with Papago Reservation-.
    This section lays down two prerequisites for the application of the section to ceded Indian lands. First, the Secretary of the Interior must find that the restoration to tribal ownership will be in the public interest. Secondly, the lands involved must be "remaining surplus lands of any Indian reservation heretofore opened, or authorized to be opened to sale, or any other form of disposal by Presidential proclamation, or by any of the public land laws of the United States." The finding of public interest, while a requirement of law, involves the determination of administrative questions which need not be discussed in this opinion. It is sufficient to point out that a restoration is not a mandatory but a discretionary act to be weighed as a matter of public interest. The second prerequisite involves the determination whether, as a matter of law, the description of the lands subject to restoration applies to these ceded Colorado Ute lands. In making this determination the applicability of the various terms used in the description will be discussed.

I.

The Colorado Ute area as an
"Indian reservation"

    Lands to be restored must be surplus lands "of any Indian reservation." Therefore a first question involves the history and background of the Colorado Ute lands as an Indian reservation. In the first 20 years following the treaty of Guadalupe Hidalgo with Mexico in 1848, the United States entered into negotiations with various of the Indian tribes occupying the area acquired from Mexico. Among the treaties made was one with the "Utahs" (December 30, 1849, 9 Stat. 984) for obtaining free passage through the "territory of the Utahs." In 1863, a treaty was made with the Tabeguache Band of Ute Indians (proclaimed December 14, 1864, 13 Stat. 673), by which the Band relinquished its right and interest in all lands within the United States except a designated area. The treaty expressly declined to recognize any title or right of the Band to the area ceded or reserved except that possessed by the Indians under the laws of Mexico. It has been claimed that the Indians had no title or interest under the laws of Mexico in the lands which they occupied and were not recognized by the United States as having the right of occupancy conceded to other Indian tribes in the United States. However, whatever may have been the interest of the Ute Indians in the lands occupied by them in this period, the treaty of March 2, 1868 (15 Stat. 619), with various bands of Ute Indians, who have since been commonly known as the Confederated Bands of Ute Indians, established a reservation for these Indians having the same status as any other Indian reservation in the United States. This treaty set apart a defined territory, consisting of approximately 15,000,000 acres, for the "absolute use and occupation" of these Ute Indians. The status of this territory as a reservation has been uniformly recognized by the Congress, the Court of Claims (The Ute Indians v. the United States, 45 Ct. Cls. 440) and the Department. The definition of an
 



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DEPARTMENT OF THE INTERIOR

JUNE 15, 1938

Indian reservation by the Supreme Court in Minnesota v. Hitchcock (185 U.S. 373, 389, 390), that an Indian reservation is created when from what has been done there results a certain defined tract appropriated to Indian purposes, clearly covers the reservation of the Utes established by the 1868 treaty. In 1874 (18 Stat. 36), this reservation was reduced by approximately 3 1/2 million acres through a cession by the Indians in consideration of a specified perpetual annuity, and the Indians retained no further interest in the lands thus ceded.

    The reservation of the Confederated Bands of Ute Indians, as diminished by the 1874 cession, was the subject of the 1880 act under which the Confederated Bands ceded the lands involved in this opinion. The specific provisions of the 1880 act, its purpose and legal effect will be set forth in some detail later in this opinion. The actual result of the 1880 act, however, was that the Confederated Bands were divided into three groups, the Uncompahgre and White River Utes being located in Utah and the Southern Utes remaining in the southern portion of the reservation. All of the remainder of the reservation has been sold, set apart as national forests, or otherwise disposed of, except the four million acres which are the subject of this opinion.

    It might be claimed that in view of the above described results of the 1880 act, the reservation of the Confederated Bands was actually extinguished and that, therefore, the lands involved in this opinion are not surplus lands "of any Indian reservation." In my judgment, even if the reservation of the Confederated Bands of Utes were held no longer to exist, that fact alone would not negative the application of section 3 of the Indian Reorganization Act to the remaining undisposed of lands of that reservation. The phrase "of any Indian reservation" must be used in section 3 to describe the character and location of the lands at the time they were opened to disposal under the public laws. The lands which may be restored to tribal ownership must be lands which were part of any Indian reservation, not of any forest or military reservation or of any other class of lands. Section 3 cannot mean that the lands must now have the character of Indian reservation lands, as they are not reservation lands but lands capable of being restored to reservation status under the Indian Reorganization Act. Nor can section 3 mean that the lands must be located within the geographical limits of an Indian reservation. In many instances of surplus land cessions entire portions of Indian reservations were cut off from the reservations and opened to disposal, while in other instances, by similar legal instruments, areas located within the reservations were opened to disposal. Whether the lands opened to disposal were cut off from or out of existing Indian reservation is a matter of historical circumstance and not of legal significance. Moreover, nothing in section 3 requires the remaining undisposed of lands to lie in any particular geographic relation to an existing Indian reservation. Such a requirement would ignore the well-known facts that the location of such lands is purely fortuitous and that the lands, by their very nature, are scattered tracts.

II.

Colorado Ute lands opened to disposal
under the public land laws

    The surplus lands of the Colorado Ute Indian Reservation were opened to disposal in designated ways under the public land laws by section 3 of the act of June 15, 1880. The relevant parts of the section read as follows:

"all the lands not so allotted, the title to which is, by the said agreement of the confederated bands of the Ute Indians, and this acceptance by the United States, released and conveyed to the United States, shall be held and deemed to be public lands of the United States and subject to disposal under the laws providing for the disposal of the public lands, at the same price and on the same terms as other lands of like character, except as provided in this act: Provided, That none of said lands, whether mineral or otherwise, shall be liable to entry and settlement under the provisions of the homestead law; but shall be subject to cash entry only in accordance with existing law * * *."
    This act was supplemented by the act of July 28, 1882 (22 Stat. 178), which provided that that portion of the Ute Reservation lately occupied by the Uncompahgre and White River Utes shall be "subject to disposal from and after the passage of this act, in accordance with the provisions and under the restrictions and limitations of section 3 of the act of Congress approved June 15, 1880 * * *." These provisions clearly bring the remaining undisposed of lands involved in this opinion within so much of section 3 of the Indian Reorganization Act as refers to remaining lands of an Indian reservation "heretofore opened * * * to sale, or any other form of disposal * * * by any of the public land laws of the United States."
 



835

OPINIONS OF THE SOLICITOR

JUNE 15, 1938

III.

Ceded Colorado Ute lands as "surplus lands"

    The key question in connection with the application of section 3 to the remaining Colorado Ute lands, is, in my opinion, the question whether these lands come within the designation of "surplus lands" in section 3. The word "surplus" means that which remains over and above what is required. It might be argued that practically all lands ceded by Indians were surplus lands according to this definition since they were doubtless considered as not being required by the Indians. However, Congress could not have intended that all remaining undisposed of ceded lands should be available for restoration to tribal ownership, as such lands would embrace practically all of the remaining public domain. The Interior Department has taken the position that section 3 is not intended to cover all ceded lands but those ceded lands in which the Indians have retained an interest by reason of the fact that the lands were ceded to the United States to be disposed of by the United States in specified ways, the proceeds of the sale to be held for the benefit of the Indians. This type of ceded land was evidently in the mind of Congress at the time of the passage of the Reorganization Act. The debates on the bill in the Senate show that section 3 was discussed as a provision making possible the restoration of the use of the lands to the Indians in place of the proceeds to which they were entitled from any sale. (Congressional Record, 73d Congress, 2d session, page 11135.)

    The reference to surplus lands in section 3 of the Reorganization Act refers, however, primarily to surplus lands remaining after the actual or contemplated allotment of the Indians, such surplus lands having been ceded to be disposed of for the benefit of the Indians. The term "surplus lands" has been used commonly in connection with the allotment system and allotted reservations to refer to the lands not allotted or set aside for allotment and not reserved for administrative or tribal purposes. In the consideration of section 3 in Congress, the term "surplus lands" was defined in this manner. (Senate Report of the Committee on Indian Affairs on S. 3645, No. 1080, 73d Congress, 2d session; Congressional Record, 73d Congress, 2d session, page 11136.) The policy of the general allotment act and the allotment acts for specific reservations was to settle the individual Indians as farmers on individual tracts of land and to open the remainder of the reservation to disposal to white people. The purpose was different from that involved in previous disposals of Indian land since it was aimed at settling permanently and civilizing the individual Indians and at the same time opening their existing reservation to the advancing white settlers. The difference in purpose and effect between the conditional surplus land cession involved in the allotment acts and the previous type of cession in which the Indians were removed to another reservation to be held in common in the same manner as their previous reservation in which they then lost all interest is analyzed by the Supreme Court in the case of Minnesota v. Hitchcock, supra.

    The 1880 cession agreement with the Colorado Ute Indians is one of the early examples of conditional surplus land cessions; in fact the provisions of the 1880 act set forth a plan of allotment and disposal of surplus lands which became stereotyped in later allotment acts. A commission was appointed to make a census of the Indians, to select lands to be allotted, to survey sufficient of these lands for allotment, and to cause allotments to be made. The provisions of section 3 of this act, quoted above, are significant in that they provide for the disposal only of these lands within the reservation "not so allotted." The legislative history of this 1880 act makes clear that the chief purpose of the act was the immediate allotment within the Colorado Ute Reservation of the individual Indians of various Ute bands and the opening to disposal of the remaining surplus lands. The opening up of the surplus lands was described as essential in view of the thousands of settlers and prospectors on the borders of the reservation who could not successfully be kept from entering the reservation by military or other means. The plan of allotment of the Indians was favored and bitterly opposed as the entering wedge in the allotment of the tribes generally throughout the United States. In fact a general allotment act was pending in that session of Congress. (See House debates on the 1880 agreement, Congressional Record, 46th Congress, 2d session, June 7, 1880, pages 4251-4263.)

    From the foregoing it definitely appears that the fact that this cession occurred several years before other allotment-cessions does not mean that this cession falls within the earlier type of outright cession and removal. This cession was rather a forerunner and a model of later allotment acts and differs in no important respect from these later acts. The fact that two of the three main groups of Indians were subsequently not allotted within the borders of the Colorado Ute Reservation does not alter my conclusion. The 1880 act did not provide for establishing new reservations but for supplying the Indians with allotments, and where allotments occurred outside the reservation, the Indians were to be charged a price of $1.25 an acre to be paid from the proceeds of the land sold from the Colorado Ute Reservation. The al-
 



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DEPARTMENT OF THE INTERIOR

JUNE 15, 1938

lotments off the reservation were therefore in the nature of lieu allotments and, in the case of the Uncompahgre Utes, were made only because of the fact that insufficient agricultural lands were found within the Colorado Ute Reservation. (See Report of the Commissioner of Indian Affairs, 1881, at 19, 325, et. seq.)

    There can be no doubt that the surplus lands remaining after allotment were to be sold for the benefit of the Ute Indians. The original agreement between the Government and the chiefs of the Confederated Bands of Ute Indians which preceded the 1880 act contemplated an outright sale of the surplus lands, remaining after allotment in consideration of an annuity of $50,000. In Congress it was pointed out that there would be realized in one year from one mine within the Colorado Ute Reservation nearly 20 times the entire principal sum from which these annuities to the Indians would be paid. The land was described as rich in minerals and of great value. As a result of the realization of the complete inadequacy of the annuity as a consideration for the relinquishment of the Indian right of occupancy in these lands, and in order that "full justice" might be done the Indians, the original agreement was amended by the 1880 act to provide that after the United States' had been reimbursed the amount of the annuities paid the Indians and other expenses connected with the act, any further proceeds received from the sale of the land should be placed to the credit of the Indians. (Congressional Record, 46th Congress, 2d session, June 7, 1880, page 4261, June 12, 1880, page 4487.) The amended agreement as embodied in the 1880 act was subsequently accepted by the requisite number of Indians of the Confederated Bands.

    The amended agreement was described by the Court of Claims in the case of The Ute Indians v. The United States, supra, page 464, as entitling the Ute Indians to receive all the proceeds of the reservation after the reimbursement and as providing for a transaction which was of no benefit to the United States, except the indirect benefit of opening a desirable territory to civilization. In the Court of Claims case the Indians were awarded a judgment for the value of the lands within the reservation which had been set apart for public reservations and thereby been excluded from sale. The Interior Department has consistently recognized that the Indians are entitled to the proceeds from the disposal of these lands. 3 L.D. 296; 7 L.D. 191; 47 L.D. 560. The jurisdictional act which authorized suit in the Court of Claims provided that upon the rendition of final judgment the principal fund from which the annuities of the Indians were obtained should be abolished and from that date no further annuities should be paid. As a result, therefore, since the 1910 decision the interest of the United States in the proceeds of the sale to the extent of $50,000 annually has not existed and the remaining undisposed of surplus lands within the reservation have been subject to disposal for the unencumbered benefit of the Indians.

IV.

Effect of declaration of lands as "Public Lands"

    From the foregoing it is my conclusion that the remaining undisposed of lands within the Colorado Ute Reservation are "surplus lands" within the meaning of section 3 of the Indian Reorganization Act. There remains only the question whether these
lands must nevertheless be excluded from the scope of section 3 because of the fact that in the 1880 cession and in the subsequent act of was provided that the lands not allotted "shall be held and deemed to be public lands of the United States." It has been urged that in the usual cession of surplus lands remaining after allotment no declaration that the lands ceded shall be public lands is made. As a consequence it is argued that these lands are not Indian lands in accordance with the holding in the case of Ash Sheep Co. v. United States (252 U.S. 159). In that case the undisposed of ceded surplus lands of the Crow Reservation were held to be "Indian lands" within the meaning of a statute requiring the consent of the Indians to the use of the land for grazing purposes. The lands involved were ceded under the act of April 27, 1904 (33 Stat. 352), which provided that a designated portion of the reservation should be sold to the United States but that the United States should serve as trustee for the disposal of the lands for the benefit of the Indians.

    In my opinion, the declaration in the 1880 act that the surplus ceded lands shall be public lands does not alter the fact that these lands are remaining surplus lands of an Indian reservation heretofore opened to disposal under the public land laws, within section 3 of the Indian Reorganization Act, even if the declaration lessened the interest of the Indians in the lands ceded during the time they were held by the United States and before they were sold. However, it is also my opinion that this declaration did not make the 1880 cession different in legal effect from the Crow cession of other usual surplus land cessions where the Indians were to receive the proceeds of the sale. The significant legal effect of these cessions is that the United
 



837

OPINIONS OF THE SOLICITOR

JUNE 15, 1938

States becomes a trustee for the disposal of the land ceded. Regardless of the particular language of the cession, the result is that the Indians retain an equitable interest in the land until they have received the consideration bargained for, and the United States becomes a "trustee in possession." Minnesota v. Hitchcock, supra; Ash Sheep Co. v. United States, supra.

    Surplus ceded lands to be disposed of for the Indians are frequently referred to in acts of Congress and departmental actions both as public lands and Indian lands. An example of the application by Congress of the term "public domain" to ceded surplus lands which would be "Indian lands" under the Ash Sheep Co. case, supra, occurs in the act of May 29, 1908 (35 Stat. 460), under which the Cheyenne River and Standing Rock Reservations in South Dakota were allotted. In this act it was provided that the Indians might use the timber upon the ceded surplus lands so long as these lands remained a part of the "public domain," and yet act provided that the United States should only as trustee for the Indians in the sale of lands. In the act of Congress dismembering the Great Sioux Reservation, a provision that the unreserved lands shall be restored to the public domain two places with obviously different meanings. In section 21 it is provided that the unreserved land shall be "restored to the public domain: to be disposed of to actual settlers only, the proceeds to go to the Indians. However, it is then provided that if the lands are not disposed of at the end of 10 years, they shall be paid for by the United States at a designated rate, and that the lands so purchased should then become "a part of the public domain." The first provision restoring the lands to the public domain could have had no legal effect to alter the equitable interest of the Indians in the land until sold or purchased by the United States.

    The evident purpose of designating lands ceded for disposal for Indian benefit as public lands or public domain is to indicate that the lands are subject to disposal under public land laws. Lands so designated by Congress would seem therefore to be peculiarly within rather than without the scope of section 3 of the Indian Reorganization Act which refers to lands subject to disposal under the public land laws.

  Surplus lands ceded to be disposed of for the Indians are in fact qualified public lands and also qualified Indian lands. They are public lands in that the United States has the legal title and has secured from the Indians a release of their right of occupancy and has arranged to dispose of them, but they are not public lands in the full sense of the term as they are to be disposed of only in limited ways and upon certain conditions. Minnesota v. Hitchcock, supra. It should be noted that both the 1880 and the 1882 acts concerning the Ute land qualified the reference to the land as public land and subject to disposal under the public land laws by stated conditions and restrictions.

    Surplus lands are also properly designated as Indian lands in view of the interest of the Indians in the proceeds of any disposal of the lands. This equitable interest is the significant condition attached to the lands which distinguishes them from the public lands generally as Indian lands. Since this condition was attached to the lands ceded by the Confederated Bands of Utes, the undisposed of lands may be as appropriately termed Indian lands as the lands ceded by other Indian tribes to be disposed of for their benefit. Under the regulations of the Interior Department of July 25, 1912, for governing the use of vacant ceded land (Regulations of the General Land Office, 1930, page 669) it was contemplated that remaining surplus lands, the proceeds of the disposal of which were for the benefit of the Indians, would be cooperatively administered by the Indian Office and the General Land Office, the Indian Office retaining jurisdiction of the use of: the lands before they were sold and the General Land Office administering. the final disposition of the lands. It is true that this administration by the Indian Office has not occurred in connection with these surplus Colorado Ute lands. The reason for that, however, is not the result of any legal difference but the result of practical considerations since the Indians were in fact allotted only in the southern part of the reservation, and since the surplus lands covered a vast area.

V.

Summary of Conclusions

    In view of the foregoing consideration, and in summary of my conclusions, it is my opinion that the undisposed of lands in Colorado ceded by the Confederated Bands of Ute Indians under the act of June 15, 1880, subject to the provisions and conditions set forth in that act, come within the designation in section 3 of the Indian Reorganization Act of remaining surplus lands of any Indian reservation opened to disposal by the public land laws, and that they are, therefore, available for restoration to tribal ownership, provided the Secretary of the Interior finds the restoration to be in the public interest. It is immaterial as a matter
 



838

DEPARTMENT OF THE INTERIOR

JUNE 15, 1938

of law whether the area to be restored is adjacent to the Southern Ute Reservation.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


Approved: June 15, 1938.
OSCAR L. CHAPMAN, Assistant Secretary.

LEASE--CONSENT OF INDIAN


June 15, 1938.


 Memorandum to the Commissioner of Indian Affairs:

    The attached letter to Supt. W. O. Roberts of the Pine Ridge Indian Agency, South Dakota, proposes to give him authority to approve a three year lease in favor of Mr. George B. Comer of Gordon, Nebraska, covering the allotment of Kills First, deceased Oglala Sioux allottee. It appears that one of the two heirs of Kills First, each of whom has a half interest in the land, has signed the lease, but the other refuses to do so for the reason that he feels the rental to be insufficient and that he would prefer to lease the land for a one-third share of the crop.

    This office has had occasion frequently to point out that the general rule for the leasing of Indian allotments is that the signatures of the Indian owner or owners must be obtained before approval can be given to a lease. In a memorandum dated October 28, 1937, the Solicitor, in dealing with a similar factual situation, held that section 7 of the leasing Regulations as revised by departmental circular of December 18, 1936, while authorizing a substantial majority of the heirs of allotted land in heirship status to execute a lease thereof does not authorize an heir or heirs representing only a half interest in the land to do likewise. It was pointed out that the Department was without legal power to approve a lease, where the owner, or the owners of a majority interest, were unable to agree to the lease, except in such special cases as infancy, mental disability, or pending heirship determinations. These exceptions are not to be broadened into unlimited administrative discretion. The special circumstances where the Department may act without the consent of the Indian owner, or a majority interest, are those cases where there is no owner, or owners, legally capable of executing a valid lease of the land. They are not every case where Department officials may feel that some of the Indians are acting unwisely or capriciously, or to the detriment of the other Indians interested in the land.

    In the present case, one heir, Jennie Kills First, has signed the lease. The other heir, Benjamin Kills First refuses, however, to sign it. There is no legal authority, therefore, to take the action proposed in the letter. Neither heir holds such a substantial majority interest in the land as to enable him or her to bind the other. The Indian owners are known and are capable of executing a valid lease. Their motives in signing, or not signing, are not relevant at this point.

    The special circumstances do indicate the need for the heirs agreeing to some disposition of the land that will enable it to be of economic value to both of them. Since Benjamin Kills First does not live on the Pine Ridge Reservation, but resides in Oklahoma, and since he appears not to need the income from the land, it is suggested that the matter of deeding the land to the other heir be taken up with him, or that an attempt be made to partition the land in a manner satisfactory to both heirs, consistent. with its proper economic utilization.
 

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.


ALLOTMENT--RIGHT-OF-WAY

June 30, 1938.


Memorandum to the Assistant Secretary:

    In this case application has been made by the Board of Commissioners of Blaine County, Oklahoma, for public highway and drainage ditch and dike rights of way over an allotment in the Cheyenne and Arapaho Reservation. The Indian Office recommends the approval of the highway right of way but states that a drainage ditch right of way under the act of March 3, 1891 (26 Stat. 1101), as amended by the act of March 4, 1917 (39 Stat. 1197), cannot be granted as an Indian allotment cannot be considered either in the category of public lands or reservations within the meaning of those acts. The Indian Office therefore proposes that the Secretary grant a revocable permit for the drainage ditch under his general supervisory authority over Indian affairs.

    The statement of the Indian Office that an Indian allotment is not embraced within the 1891 and 1917 acts is in my opinion not correct. It has been held by the courts that an Indian allotment cawed out of a reservation is a reservation within the meaning of the general laws. United States v. Pelican, 232 U.S. 442; United States v. Ramsey, 271
 



839

OPINIONS OF THE SOLICITOR

JULY 1, 1938

U.S. 467. Moreover, the Department has already twice expressly held that Indian allotments are reservations within the meaning of the 1891 right of way act. 35 L. D. 550; 45 L. D. 563. Since an application for a right of way over an Indian allotment is covered by the 1891 act, in my opinion the Secretary is not privileged to withhold the right of way and to issue instead merely a temporary revocable permit for drainage ditch purposes if the other conditions of the act are met. The 1891 act grants a right of way upon the public lands and reservations of the United States to persons who fulfill the conditions specified in the act.

    Since the applications for a highway right of way and a drainage ditch right of way have been handled together, the entire matter should be returned to the Indian Office for revision of the disposition of the application for the drainage ditch right of way.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.


INDIAN SCHOOL LAND, RIGHT-OF-WAY

July 1, 1938.


 Memorandum to the Assistant Secretary:

    The letter prepared for your signature addressed to Mr. Kenneth W. Simons, concerning the application of the City of Bismarck for an irrigation ditch right of way across the lands of the Bismarck Indian School, should, in my opinion, be returned to the Indian Office for revision. The letter contains a statement that the act of March 3, 1891 (26 Stat. 1101), authorizing the grant of irrigation ditch rights of way across reservations of the United States is not applicable to a tract acquired by purchase, as was the land in question. This statement was made in view of the memorandum to the Indian Office from the General Land Office dated June 8 in which it was stated that the word "reservations" as used in the act of March 3, 1891 "is considered as referring to reservations created out af the public domain and not to lands which have been purchased by the Government and reserved for some particular purpose."

    The Bismarck Indian School lands were acquired by the United States under the acts of Congress of March 3, 1901 (31 Stat. 1078) and April 21, 1904 (33 Stat. 225), which appropriated funds for an Indian industrial school on lands to be donated to the Government for that purpose. The right of way statute involved grants "the right of way through the public lands and reservations of the United States" for irrigation and drainage ditches.

    A construction of the word "reservation" in this statute to refer only to reservations created out of the public domain and to exclude reservations where the land has been acquired by purchase, donation or otherwise unduly restricts the application of the act of Congress by departmental interpretation. No previous formal decision of this Department nor any court opinion has been found which interprets the term "reservation" in right of way statute in the manner proposed. On the contrary in the Icicle Canal Co. case, 44 I. D. 511 at 512, it is reported that a reservation purchased by and trust patented to the Indians was held by the Department to be within the term "public lands and reservations of the United States" in the high way right of way statutes. The courts have generally given the term "reservation" a broad meaning to include any lands set apart by the Government for any purpose. (See United States v. Port-neuf-Marsh Valley Irrigation Co., 213 Fed. 601, at 603). In this connection it is relevant to refer to the case of United States v. McGowan decided in the Supreme Court on January 3, 1938 (302 U.S. 535, 82 Sup. Ct. 305). That opinion overruled the holding of the lower Federal courts that the Reno Indian Colony was not Indian country nor an Indian reservation since it was purchased by the Government for the Indians from private owners and not set apart out of the public domain. The court repeated the definition of the term "Indian reservation" as including any area validly set apart for the use of the Indians under the superintendence of the Government and found that the lands purchased for .Indian use had been "validly set apart for the use of the Indians."

    In view of the fact that there are many instances in which lands are set apart for Indian purposes where the lands were acquired by purchase by the Indians or by the Government, this Department should not without strong reason restrict the application of the term "reservation" to exclude such lands with the result that these areas are not covered by the right of way statutes. I therefore, suggest that the letter be revised to omit a reference to a distinction among lands reserved for Indian purposes on the basis of their manner of acquisition.

    If, as seems to be true, the Bismarck Indian School lands were set apart and recognized as a reservation for Indian school purposes, the fact that they were acquired by donation rather than set aside from the public domain should not affect the application of the right of way statute.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


840

DEPARTMENT OF THE INTERIOR

JULY 12, 1938

ADOPTION OF MEMBERS

July 12, 1938.
Memorandum to the Commissioner of Indian Affairs:

    I am returning herewith the letter to the Rosebud Sioux Tribal Council requesting further information in connection with the adoption of two persons into the tribe in order that a further matter may be included in this letter.

    The tribal ordinance of January 14, 1938, under which these adoptions appear to have been made, provides that the action of the tribal council adopting persons into the tribe must be by "a record vote of 2/3 majority of the members of the Council". The resolution for the adoption of Mrs. Grandsinger Gran was passed by a unanimous vote of 18 members of the council and the resolution adopting Mr. Paul Grandsinger showed a favorable vote of 16 to 2. As the total membership of the tribal council is reported to be 28, neither of these persons appears to have been adopted by a two-thirds vote of the tribal council. The council should therefore be informed that the resolutions are not effective and new action must be taken before this Department can pass upon the matter.

    The purpose of the discussion of the circular of November 15, 1935 is not entirely clear to me as the policy set forth therein is directed at the drafting of constitutions and ordinances and does not seem to be applicable to a situation such as is now presented where all adoptions are submitted to the Department for approval under a tribal ordinance already in effect. If the discussion is intended to indicate that adoptions of persons of Indian descent related by blood or marriage to members of the tribe will be approved but other adoptions might not be if "the evidence warranted it", a clearer definition of policy governing the approval of adoptions might be stated for the future guidance of the council and the Department.

    I entirely agree that the resolutions submitted present insufficient facts upon which to base departmental action. For the purpose of establishing an orderly procedure it might be desirable to request that copies of the papers and reports submitted to the council, as required by the tribal ordinance, be submitted to the Department for its information.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.


LOANS--MORTGAGES

July 19, 1938.


Memorandum for the Commissioner of Indian Affairs:

    In your letter of July 6, to the Superintendent of the Salem School, submitted for the approval of the Department, you advise the Superintendent that a mortgage on fee patented land to secure a reimbursable loan from the United States to an Indian should be executed in favor of the Superintendent on behalf of the United States. Mortgages to secure the payment of loans to individual Indians in Oklahoma from revolving credit funds are executed in favor of the United States. No reason is seen why mortgages to secure loans from reimbursable funds should not also be executed in favor of the United States. In each case it is proper for mortgages to the United States to be made and released under the instructions of the Secretary of the Interior.

    In addition to the foregoing matter you may wish to reconsider the making and the method of handling this loan, in view of the expiration date of the fiscal year from the funds of which was requested.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.
QUAPAW--MINING LEASES--TYPE OF SURETY

Memorandum to the Assistant Secretary:

    In his memorandum to you of July 14, in the underlying file, the Acting Commissioner of Indian Affairs has inquired whether it would not be advisable to insist upon a corporate surety in the Hawkins matter.

    The provisions of the act of Congress of August 13, 1894 (28 Stat. 279), provide as follows:

    "Whenever any recognizance, stipulation, bond, or undertaking conditioned for the faithful performance of any duty, or for doing or refraining from doing anything in such recognizance, stipulation, bond, or undertaking specified, is by the laws of the United States required or permitted to be given with one surety or with two or more sureties, the execution of the same or the guaranteeing of the performance of the condition thereof shall be
 


841

OPINIONS OF THE SOLICITOR

AUGUST 1, 1938

sufficient when executed or guaranteed solely by a corporation incorporated under the laws of the United States or of any State having power to guarantee the fidelity of persons holding positions of public or private trust, and to execute and guarantee bonds and undertakings in judicial proceedings. Such recognizance, stipulation, bond, or undertaking shall be approved by the head of department, court, judge, officer, board, or body executive, legislative, or judicial required to approve or accept the same. No officer or person having the approval of any bond shall exact that it shall be furnished by a guaranty company or by any particular guaranty company." (Italics supplied.)


    It may be noted also that section 13 of the Regulations of the Indian Service entitled "Lead and Zinc Mining Operations and Leases, Quapaw Agency" approved by the Secretary May 5, 1934, requires every mineral lease made and entered into thereunder "be accompanied by a surety bond, executed by the lessee and by a responsible surety company or two or more satisfactory sureties * * *."

    In view of the foregoing I do not think that bond of a corporate surety company can be required.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.

LAND EXCHANGE-FORFEITURE-MINNESOTA

M-29791                                                                                                                                                     August 1, 1938.

Synopsis of Solicitor's Opinion

Re:

(1) Question whether the title to lands which the State of Minnesota acquires through tax forfeiture would be acceptable to the United States in connection with a land exchange program for the benefit of the Indians.

(2) Question whether undisposed of ceded Red Lake lands subjected to State drainage assessments under the act of May 20, 1908 (35 Stat. 169), may be restored to tribal ownership under section 3 of the act of June 18, 1934 (48 Stat. 984).

Held:
(1) (a) Title acquired by the State of Minnesota to tax-forfeited lands will probably not be acceptable to the United States, but may be acceptable in certain instances if it is found by proper agencies that there is a complete statutory bar to court action to recover such tax-forfeited lands or that the State may take action to quiet title.

(b) In any case State lands cannot be exchanged for Indian lands unless the pending amendment to the State Constitution is adopted and implementing legislation is passed.

(2) The undisposed of ceded Red Lake lands may be restored to tribal ownership under section 3 of the act of June 18, 1934 (48 Stat. 984), subject to the existing lien of the State drainage assessments.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have referred to me for an opinion certain questions presented by the Indian Office in connection with a plan for the exchange of lands of the State of Minnesota with lands ceded by the Red Lake Band under the act of January 14, 1889 (25 Stat: 642). As a preliminary to the exchange, it is contemplated that these ceded lands will be restored to tribal ownership under Section 3 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984). Upon these ceded lands State drainage assessments have been placed pursuant to the act of May 20, 1908 (35 Stat. 169). The lands of the State to be used in the exchange are lands which have reverted to the State through tax forfeiture. Some of the State lands are thought to be subject to drainage assessments.

    In view of these facts, the first question raised by the Indian Office is whether the title to such State lands would be acceptable to the United States in connection with the land exchange program. The second question is whether the Red Lake ceded lands may be restored to tribal ownership under the Indian Reorganization Act in spite of the fact that these ceded lands are subject to State drainage assessments under the 1908 act. These two questions are dealt with in the order presented by the Indian Office in its letter to you of April 27, 1938.

I.

    The question whether title acquired by the State of Minnesota through tax forfeiture would be acceptable to the United States cannot be answered conclusively by me since insufficient information is provided as to the location and character and forfeiture date of the State lands, and since questions of interpretation of State law are in-
 



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volved upon which I cannot pass finally. However, certain tentative conclusions can be stated which may prove helpful in future negotiations and preparation for the exchange.

    The statutes of Minnesota concerning the title and disposition of lands bid in for the State at delinquent tax sales, contain numerous variant provisions depending upon such circumstances as the time of the sale, the taxes for which the land was sold and where the land is located. In analyzing these provisions two questions should be kept distinct, (a), the nature of the title acquired by the State and, (b), the ability of the State to dispose of these lands in the exchange arrangement contemplated. Where sections of the statutes are referred to in the discussion, Mason's Minnesota Statutes, 1927, will be referred to as the 1927 Compilation, and the 1938 Supplement thereto will be referred to as the 1938 Supplement.

    (a) In discussing the nature of the title of the State, the law existing before the passage of section 2139-2, 1927 Compilation, 1938 Supplement. (Chapter 119 of the laws of 1927), I should be considered separately from the law following the passage of that act. Before that act, it appears that lands bid in for the State at delinquent tax sales were either to be assigned (section 2137, 1927 Compilation) or sold (section 2138, 1927 Compilation). It is not clear what provision was made for the State obtaining title. However, title acquired through tax sale was uncertain. A delinquent tax sale could not be set aside or held invalid unless an action was brought within three years after the expiration of the period of redemption, but an action on the ground the land was exempt from taxation or that the taxes had been paid at the time of the sale, could be brought, or a defense on such grounds interposed, at any time (section 2147, 1927 Compilation). In view of the exception in section 2147 to the bar on the bringing of actions, it would appear that whatever title the State had might be defeated at any time in the future and, therefore, such title is not one the United States would be willing to accept in acquiring lands for Indians, unless some action might be taken by the State to prevent such possible defeasance. The authority for actions by the State to quiet title will be discussed later in connection with lands forfeited to the State after 1927.

    Chapter 119 of the laws of 1927 (section 2139-2, 1927 Compilation, 1938 Supplement) provides that lands thereafter bid in for the State at a delinquent tax sale shall at the expiration of five years "be the absolute property of the State" without the doing of any act or thing whatsoever and without the right of redemption. Within these five years the land is subject to redemption. The act further provides that no action, defense or application attacking the validity of the sale at the delinquent tax sale shall be entertained unless brought within five years from the date of the sale. Title to each tract acquired by the State is to be held in trust by the State for each and all of the taxing districts interested in the taxes for which the land is forfeited. This act has been modified by various subsequent acts extending the period of redemption from five to seven or more years (sections 2139-13, 28, 1938 Supplement), by acts permitting the owner to re-purchase certain lands within one year after the expiration of the redemption period (section 2176-3, 21, 1938 Supplement), by acts requiring 12 months' notice (section 2164-1, 1938 Supplement), and by acts providing that no trust shall attach to lands acquired by the State within the Red Lake Game Preserve or forest projects or other conservation areas (section 2164-14, 1938 Supplement).

    Where lands have been bid in for the State under section 2139-2 and all periods of redemption and repurchase have expired and the necessary notice has been given, it would appear that the State acquires a complete and absolute title, which in some cases is held in trust for the taxing districts, and which is probably not subject to defeasance by subsequent suits. The proviso in section 2139-2 that "no action or defense" may be entertained after the period of redemption would seem to place an absolute bar on actions to recover lands forfeited under that statute in spite of the fact that the pre-existing statute, discussed above, on the bringing of actions to recover tax-forfeited land is general in terms and was not specifically repealed as to lands forfeited under the 1927 act. The effectiveness of section 2139-2 as an absolute bar upon actions to defeat the title of the State does not appear to have been the subject of decision in the State courts. In the absence of State interpretation of this legislation complete reliance cannot be placed upon the conclusiveness of State titles, even when required under section 2139-2.

    As a rule, almost universally followed, titles acquired by the State through tax forfeitures are not acceptable to the United States. The only exception is where it is clear that there is an absolute bar upon future defeasance of the title. In view of the uncertainty of the Minnesota law on this point and the fact that it is fairly clear that lands acquired by the State before 1927 may be subject to defeasance in certain circumstances, State lands will probably not be acceptable in the proposed exchange unless the State quiets title through court action or, in addition to the conveyance by the State, quitclaim deeds can be obtained from all private parties who might have an interest in the land.
 



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    The Minnesota statutes contain only one general provision authorizing actions to quiet title, which does not appear to apply to the State itself. This statute (section 2188, 1927 Compilation) provides that an action may be brought after the period of redemption by any person holding a tax certificate in order to quiet title. In referring to persons holding tax certificates the section seems to be limited to private parties purchasing at tax sales or acquiring by assignment lands bid in for the State. This view would seem to be supported in the fact that there is a statute specifically authorizing the State Attorney General to quiet title in the case of lands sold for taxes delinquent prior to 1891. (Section 6515, 1927 Compilation). Accordingly, it may be necessary to have specific statutory authority in order for the State to quiet title to the lands involved in the proposed exchange. This also is a question primarily for interpretation by the State courts and the State Attorney General. The State Commissioner of Conservation reports that the question is in doubt until a test case can be had.

    (b) Assuming that a clear and absolute title may be established by the State for these lands, the question remains whether the State is authorized to dispose of these lands by exchange. The Minnesota statutes contain various methods for the sale of the land and the disposition of the proceeds. Where the lands are held in trust by the State for the taxing districts, the proceeds are for the benefit of these districts. The statutes do not contain any authority for the exchange of tax-forfeited lands for other lands. It is clear that such a statute is necessary in view of the fact that there is now pending an amendment to the Constitution of the State of Minnesota designed specifically to permit the State to exchange public lands of the State for public lands of the United States or private lands. This amendment was proposed in Chapter 492 of the laws of 1937 and the amendment is to be voted upon in the 1938 general election. The amendment provides that the lands acquired by the State in exchange are to be held subject to the same trust, if any, as existed in the case of the lands exchanged and that the State shall reserve all mineral and water power rights in the lands exchanged. If this amendment is adopted, therefore, the Red Lake Indians may acquire State lands by exchange but could acquire no rights in the minerals or water power of such lands. Since this amendment must be adopted before further action can be taken, and if adopted, supplementary legislation implementing the amendment must be passed, opportunity will be available for obtaining further interpretation of the State law by the State officials and for carrying on such further negotiations as may be necessary.

II.

    The question whether the undisposed of ceded lands may be restored to tribal ownership in view of the drainage assessments upon these lands is raised because of the uncertainty of the Indian Office as to whether the placing of these lands in tribal ownership is inconsistent with the law making these lands subject to sale for drainage assessments. The act of May 20, 1908 (35 Stat. 169, 43 U.S.C.A., sections 1021-1028), subjects all public lands in Minnesota, when subject to entry, to the laws of the State relating to the drainage of lands for agricultural purposes to the same extent as lands held in private ownership. The charges assessed against the public lands are to be enforced by sale in the same manner as private lands. Upon the sale of unentered lands patent is to be issued to the purchaser upon certain conditions. That this law is applicable to the lands ceded under the 1889 act by the Red Lake Indians which have been opened to entry is made clear by section 8 of the act (43 U.S.C., section 1028), by the regulations of the General Land Office issued under this act, Circular No. 470, April 15, 1916, and by the opinion of the Attorney General, 29 Ops. Atty. Gen. 455.

    The State laws provide that drainage assessments shall be first and paramount liens upon the land and shall become due and payable at the same time and in the same manner and shall be subject to and collected with like penalties "as all other taxes" (sections 6648, 6658, laws of 1927). These provisions make it clear that the drainage assessments are of the same nature as taxes. Section 3 of the Indian Reorganization Act provides that undisposed of surplus lands opened to disposal under the public land laws may be restored to tribal ownership, provided "that valid rights or claims of any persons to any lands so withdrawn existing on the date of the withdrawal shall not be affected by this Act." It is suggested that this proviso would be violated by a restoration of assessed lands to tribal ownership as tribal lands under the Indian Reorganization Act cannot be sold and thus the lien would be defeated. In my opinion the ceded lands may be restored to tribal ownership, subject to the lien of the drainage assessments. As a result of such restoration the Indians would have the beneficial ownership of the land but the land would remain subject to the existing assessments and if these assessments are not paid or cancelled the lands could be sold as provided in the 1908 act.

    While tribal lands generally are not subject to sale, there is no constitutional inhibition on their sale and in certain special cases Congress has per-
 



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mitted them to be encumbered by liens which may entail their sale. An example in point is the tribal land of the Sac and Fox Reservation in Iowa which Congress expressly permitted to be subject to State taxation.

    Section 4 and other provisions of the Indian Reorganization Act forbid the alienation of restricted Indian lands. These provisions, however, are primarily aimed at voluntary alienation and it is not believed that they extend or were intended to extend to involuntary alienation as a result of the enforcement of valid pre-existing liens. The purpose of section 3 is to authorize the return of ceded surplus lands to Indian ownership on the theory that the lands may be more useful to the Indians than the proceeds. In providing that the restoration shall be subject to outstanding claims, it may be assumed that Congress intended to permit the Indians to obtain the beneficial ownership of such lands in so far as consistent with the outstanding claims, although the Indians might not obtain as complete and inalienable a title as they would if lands were acquired for them by other means. In this connection it might be said that tax forfeited State lands which are subject to drainage assessments should not be accepted in exchange for Indian lands unless all liens are removed from the land. Such acquisition of lands for Indians presents a different problem from the restoration of encumbered publics lands in which the Indians have an interest.

    Where, therefore, ceded lands in which the Indians have retained a right to the proceeds were subjected to drainage assessments of the State prior to the passage of the Indian Reorganization Act, it is my opinion that they may be restored to tribal ownership subject to the assessments existing at the time of restoration. After the Red Lake lands are restored, they would remain charged with the assessments on existing drainage ditches but they would no longer be available for future State drainage work nor liable for assessments therefor nor otherwise subject to the provisions of the State drainage laws, as they would no longer be public lands open to entry under the terms of the 1908 act.

    In summary of the foregoing, in answer to question 1, no positive assurance can be given that any lands forfeited to the State for taxes will be acceptable to the United States, and it is suggested that pending the adoption of laws under which State lands may be exchanged for Red Lake lands, the opinion of the Attorney General for Minnesota be requested, first, as to the extent to which lands bid in for the State may be recovered by court action after the period of redemption has expired, and, secondly, as to the authority for the State to sue to quiet title to lands forfeited to it. In reply to the second Indian Office question, it is my opinion that the undisposed of ceded Red Lake lands subject to State drainage assessments may be restored to tribal ownership, subject to the lien of the assessments existing on the date of the restoration.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.
Approved: August 1, 1938.
OSCAR L. CHAPMAN, Assistant Secretary.

AUTHORITY OF OFFICERS OF INDIAN SERVICE

M-29669 Supp.                                                                                                                                           August 1, 1938.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    In my opinion dated March 16, 1938 (M. 29669), I expressed the belief that the authority of the Chief Special Officer, the Special Officers and the Deputy Special Officers of the Indian Service, as such, is limited to the suppression of the traffic in intoxicating liquor, marijuana and deleterious drugs among Indians. My opinion is now requested as to whether, in view of the wording of the 1939 appropriation item relating to these officers, their authority may be said to extend generally to the maintenance of law and order among Indians and on Indian reservations.

    The Interior-Department Appropriation Act, 1939 (Public No. 497, 75th Congress) contains the following provisions:

    "For maintaining law and order on Indian reservations, including pay of judges of Indian courts, pay of Indian police, and pay of employees engaged in the suppression of the traffic in intoxicating liquors, marihuana, and deleterious drugs among Indians, and including travelling expenses, supplies and equipment, $237,290."
    Thus, it may be seen that the general purpose of the foregoing appropriation is specifically stated to be the maintenance of law and order on Indian reservations. The authority to take the necessary steps to accomplish this purpose is inherent in the legislation. Clearly, the Secretary is enabled to employ persons with the appropriated funds to enforce generally the laws of the United States for the purpose of maintaining law and order on
 



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Indian reservations. It appears equally clear that the Secretary, in accomplishing the maintenance of law and order on Indian reservations as provided in the section, may extend the scope of the duties of persons employed thereunder for a special purpose to include the general enforcement of laws of the United States for the purpose of maintaining law and order on Indian reservations. This, of course, is applicable to the Chief Special Officer, the Special Officers and Deputy Special Officers of the Indian Service, who are employed pursuant to the appropriation in question for the purpose of suppressing the traffic in intoxicating liquors, marihuana and deleterious drugs among Indians, since their authority is not limited by statute. The authority of these officers may be extended to embrace, in addition to their work of liquor and drug law enforcement, the maintenance of law and order generally on Indian reservations.

    Indeed, the appropriation item was drafted specifically to accomplish this result and this was brought to the attention of Congress. See pages 59, 60 and 64 of Part II of the Hearings before the Subcommittee of the Committee on Appropriations, House of Representatives, 76th Congress, 3d Session, on the Interior Department Appropriation Bill for 1939. In these circumstances, the passage by Congress of the bill containing the appropriation as drafted discloses an intention by Congress to sanction an extension, of the authority of the Special Officers and Deputies to embrace, in addition to their work of liquor law enforcement, the maintenance of law and order generally on Indian reservations. See United States v. Bowling, 256 U.S. 484, 489.

    It is my opinion, therefore, that there may be included in the prescribed duties of the Chief Special Officer, the Special Officers and the Deputy Special Officers the duty of enforcing generally the laws of the United States for the purpose of maintaining law and order on Indian reservations.

                                                                                                                                       FREDERICK L. KIRGIS,

Acting Solicitor.
Approved: August 1, 1938.
OSCAR L. CHAPMAN, Assistant Secretary.

MINING LEASES--DEDUCTION FOR SURVEY

August 2, 1938.
Memorandum to the Commissioner of Indian Affairs:

    You have presented for the approval of the Assistant Secretary a circular letter instructing all Superintendents to deduct 10 percent from the proceeds of mining leases, both tribal and allotted, for the purpose of holding them in a special deposit, pending further instructions, for reimbursement of expenditures of the Geological Survey, in view of the reimbursement provision in the Interior Department Appropriation Act of May 9, 1938.

    The circular does not take into account two legal problems in connection with organized. tribes. (1) The contemplated deductions from the proceeds of tribal leases would probably constitute a disposition of tribal assets which under section 16 of the Indian Reorganization Act organized tribes are empowered to prevent without their consent. (2) The circular provides no method of collection of the 10 percent deduction where the proceeds of tribal mining leases may be paid to the Treasurer of the tribe rather than to the Superintendent.

    In view of the foregoing I would suggest that the circular be modified to provide that in the case of mining leases with organized tribes the 10 percent deduction shall be made only with the consent of the tribal council and that where proceeds of tribal mining leases are paid to the treasurer of an organized tribe, the tribal council shall be requested to authorize the treasurer to deposit the necessary percent of the proceeds. for the purpose of reimbursement to the Geological Survey. In order to meet the problem of collecting the deduction in the case of future mining leases with organized tribes, it may be desirable to consider provisions to be included in such mining leases providing for the direct payment of the required deduction by the lessees.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.

CLAIMS AGAINST UNITED STATES


August 6, 1938.


 Memorandum for the Commissioner of Indian Affairs:

    You submitted for the approval of the Assistant Secretary a contract dated April 20, 1938, between the Nez Perce Tribe of Indians and Attorneys Dill and Jewett for the prosecution of the claims of the tribe against the United States. The contract provides that it shall continue for a period three years subject to the provision that it may be extended without change in terms and conditions "for further periods, not to exceed two (2) years in any instance, in the discretion of the Commissioner of Indian Affairs."
 



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    The provision for the extension of the contract in my opinion makes the term of the contract indefinite and therefore not in conformity with section 81 of title 25 of the United States Code which provides that contracts with Indian tribes for services shall have a fixed limited time to run, distinctly stated. In the Solicitor's opinion of June 4, 1935 (M. 28033), it was held that an attorney's contract providing for a definite term, but subject to extension on certain conditions, did not fulfill the requirements of that section. The amendment of this section by the act of June 26, 1936 (49 Stat. 1984), validated contracts providing for an indefinite term approved prior to the date of that act. Since this contract is made subsequent to the date of that amendment, it does not come within its terms and the law existing prior to the amendment must govern.

    As the contract is otherwise in conformity with the applicable statutes, the contract may be approved at this time, to continue for a period of three years only, subject to the condition that the modification in the term of the contract is agreed to in writing by the parties to the contract.

    It is therefore suggested that this contract be resubmitted providing for a conditional approval along the lines outlined above. It is also suggested that the application of Garry W. Jewett, Esq. for admission to practice before the Department, and similar applications presented in the future, be submitted separately from the attorney's contract as such applications are considered by the Chief Clerk rather than by the Assistant Secretary.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.

 
TRIBAL ORDINANCES--FEDERAL CONSTITUTION

 
August 8, 1938.

 Memorandum for the Commissioner of Indian Affairs:

    The attached letter addressed to the Chairman of the Lower Brule Sioux Tribal Council concerning law and order ordinance is returned for further consideration.

    On page 4 of the letter the following statement is made:

    "It is recognized that the laws of South Dakota do make it an offense to traffic in this article. However, it must also be recognized that in South Dakota, as well as many other states, Indians have for years used peyote as a sacrament in connection with a religious service and that under the Constitution of the United States religious liberty is a guarantee of all citizens of the country. Any effort to control the use of peyote, where it is part of a religious ceremony or service, therefore, will be in conflict with not only the spirit, but the letter of the Constitution of the United States. This section should, therefore, be amended so as to make a distinction between the use of peyote for religious and non-religious purposes."
    The constitutional objection to the ordinance is not well taken. The first amendment to the Federal Constitution is expressly limited to legislation enacted by Congress and has no application to ordinances passed by an Indian tribe. In Talton v. Mayes, 163 U.S. 376, the question was presented as to whether the fifth amendment of the Federal Constitution operated as a limitation upon the legislation of the Cherokee Nation. A law of the Cherokee Nation authorized a grand jury of five persons to institute criminal proceedings. A person indicted under this law and held for trial in the Cherokee courts sued out a writ of habeas corpus alleging that the law in question violated the fifth amendment to the Constitution of the United States since a grand jury of five was not a grand jury within the contemplation of the fifth amendment. The Supreme Court held that the fifth amendment applied only to the acts of the Federal Government; that the sovereign powers of the Cherokee Nation, although recognized by the Federal Government, were not created by the Federal Government; and that the judicial authority of the Cherokee was, therefore, not subject to the limitations imposed by the bill of rights.

    I suggest that the objections to the ordinance in question be based upon administrative grounds rather than on the ground that the ordinance violates the first amendment to the Federal Constitution.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.
TRIBAL FUNDS SUPPLEMENTAL TO PAY OF
OFFICERS OF U.S., TRIBAL POLICE AND JUDGES
August 10, 1938.
Memorandum to the Assistant Secretary:

    In connection with the review of the attached resolutions of the Flathead Tribe to supplement
 



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the pay of the chief of police and the chief judge of the tribal court, my attention has been called, by a memorandum prepared in the Indian Office, to section 66 of title 5 of the United States Code, reading as follows:

    "Receiving salary from source other than United States. No Government official or employee shall receive any salary in connection with his services as such an official or employee from any source other than the Government of the United States, except as may be contributed out of the treasury of any State, county, or municipality, and no person, association, or corporation shall make any contribution to, or in any way supplement the salary of, any Government official or employee for the services performed by him for the Government of the United States. Any person violating any of the terms of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than $1,000 or imprisonment for not less than six months, or by both such fine and imprisonment as the court may determine. (Mar. 3, 1917, c. 163, sec. 1, 59 Stat. 1106.) "
    In considering this section the first question is the status of the chief of police and the chief judge as employees of the Federal Government. The chief of police is evidently a Federal employee as he is paid from Federal funds and is appointed by the superintendent, with the approval of the Commissioner, under Chapter 6 of the law and order regulations. The chief judge is partially a tribal employee in that he is appointed and removed by the mutual action of the tribal council and the Commissioner and as he holds an office created by the tribal council. However, he is also a Federal employee in that he is at present paid from Federal funds. The law and order ordinances of the Flathead Tribe, approved March 19, 1937, contain the following provision concerning the compensation of the chief judge:
    "The chief judge shall be compensated on a monthly basis either from Federal funds or tribal funds or both and at a salary to be established by law or to be determined by the council."
The resolution of the tribal council now before the Department carries out the original law and order ordinances in providing compensation for a chief judge from tribal funds as well as Federal funds.

    However, even if both the chief judge and the chief of police are considered Federal employees, in my opinion the proposed supplement to the salaries of these officers from tribal funds does not violate the section of the code above quoted. The statute has been interpreted as prohibiting the supplementing of, or contribution to, salaries of Government employees from private sources (International Ry. Co. v. Davidson, 257 U.S. 506) and has been held not to be applicable to the supplementing of salaries of Government officials by governmental agencies. Wickersham v. Smith, 7 Alaska 522, 1927; United States v. Morse, 292 Fed. 273 (S.D. N.Y., 1922). In the Wickersham case the salary of the secretary to the Governor of Alaska was paid partially from Federal funds and partially from territorial funds and the payment from territorial funds was upheld by the court. The Morse case involved an employee of the Emergency Fleet Corporation. In both cases the opinion emphasized that section 66 of title 5 of the Code was intended to prohibit addition to the Government salaries from private sources.

    It would be in harmony with the intent and previous interpretation of this statute, in my opinion, to construe the statute as not applying to payments made by an incorporated tribe, which has not only been held to be a Federal instrumentality (Solicitor's opinion, M-27810, December 13, 1934, at pages 25, 26) but, by virtue of its charter, is a "body politic and corporate" of the Federal Government in the nature of a municipality. As such municipality or quasi-municipality, its contribution comes within the express exception contained in the statute to contributions made by municipalities. Contribution by a tribal community to the salary from the Government of employees performing tribal functions, at least partially under its direction, would seem to be a legitimate part of the transition from full Federal employment to full tribal employment implicitly sanctioned by Congress in the Indian Reorganization Act, and it is consistent with the established practice of paying Indian Service employees from tribal funds.

    In reviewing this matter I note that section 70 of title 5 of the United States Code contains a related prohibition which might be disposed of at this time. That section reads as follows:

    "Extra allowances. No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states




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that it is for such additional pay, extra allowance, or compensation. (R.. S. section 1765.)"

    In order that there may be no doubt about the inapplicability of this section it may be pointed out that neither the chief of police nor the chief judge is an officer of the United States nor any person "whose salary, pay or emoluments are fixed by law or regulations." Officers of the United States are persons appointed by the President, by the Federal courts, or by the heads of departments. Neither the chief of police nor the chief judge are so appointed. Moreover, it has been expressly held that an Indian policeman is not an officer of the United States. United States v. Mullin, 71 Fed. 682. Nor is the pay of the policeman or judge fixed by law or regulation, as there is no law nor regulation setting up salaries for employees in those positions. Each appointment to the office of policeman or judge is made under a particular instruction from the Indian Office providing for a salary particular to each case. To come within the provisions of section 70, the salary must be fixed under a law or regulation applying a general rule to a general class of people. Landram v. United States, 16 Ct. Cls. 74; Hedrick v. United States, 16
Ct. Cls. 88.

    In view of the foregoing construction of sections 66 and 70 of title 5 of the Code, there appears to be no legal objection to the Flathead resolutions or, therefore, to your signature of the attached letter to the President of the Flathead Tribe, passing without objection the resolutions of the tribal council.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.
Approved
Assistant Secretary.

IRRIGATION-WORKS-DAMAGES

M-29908                                                                                                                                                   August 25, 1938.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have requested my opinion on the question whether the abandonment by the Government, on a reclamation project, of a canal and its right of way and the construction of another ditch, will permit the collection of damages by the landowner for the cost of refilling the abandoned ditch in order to reclaim the area thus abandoned.

    It appears that William F. Medaris is the owner of lots 4 and 5 (W1/2 NW1/4) Sec. 6, T. 11 N., R. 19 E., Willamette Meridian, containing 97 acres, all located within the limits of the Wapato Indian Irrigation project, Washington. In constructing the project the Indian Office built a canal known as Lateral B, across the tract of land owned by Medaris. It constituted a part of the original distribution system of the project. The canal was later abandoned by the Indian Office and a lateral designed to perform the same service was constructed across another part of the farm and the original Lateral B was abandoned. When the second lateral was dug across the farm on a new location it would be a reasonable thing to fill the old lateral as a part of the construction involved in making the change. The employees of the project failed to complete the plan of reconstruction by filling the abandoned ditch, and the landowner filled the ditch and leveled the land in order that he might resume its cultivation and use. The cost of doing the work is agreed to be $185.

    The act of February 20, 1929 (49 Stat. 1252), provides among other things,

    "That the Secretary of the Interior be, and he is hereby, authorized to pay out of funds available for the Indian irrigation projects for damages caused to owners of lands or other private property of any kind by reason of the operations of the United States, its officers or employees, in the survey, construction, operation, or maintenance of irrigation works of such projects and which may be compromised by agreement between the claimant and the Secretary of the Interior, or such officers as he may designate: * * *."
    It is my opinion that this statute grants to the Secretary authority to adjust a claim for the cost of refilling the abandoned canal. On the Wapato project the United States is engaged in the construction, operation and maintenance of a large irrigation project. All of the canal rights of way are reserved to it under the act of August 30, 1890 (26 Stat. 391). The United States had the unquestioned right to construct Lateral B across the Medaris land and use it as a part of the irrigation project. It could claim right of way for a revised canal location but it could not, without payment of damages, justify reconstruction whereby more land was damaged than was needed for the project. Two canals were not needed in this instance and, indeed, the original canal was abandoned, although it was left in such condition that it remained as an unnecessary cause of damage to the claimant's land. In such circumstances the Sec-
 



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retary of the Interior is authorized to effect a compromise settlement by the act of February 20, 1929, supra. In my opinion it contains ample authority to permit settlement and payment of this claim for damages for the cost of refilling the abandoned canal. The damage was caused by acts of the officers and employees of the United States while engaged in the construction, operation and maintenance of the irrigation works of the project, as prescribed in the statute.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.
Approved: August 25, 1938.
OSCAR L. CHAPMAN, Assistant Secretary.

LAW AND ORDER--NON-MEMBERS

August 26, 1938.
Memorandum for the Commissioner of Indian Affairs:

    I am returning herewith for your further consideration a proposed letter to the Superintendent of Rocky Boy's Agency relative to certain law and order problems on that reservation. This letter has been held up pending a comprehensive study of the jurisdiction of Indian Tribal Courts.

    I am in entire agreement with the general point made in the proposed letter that the Indian court has no jurisdiction over persons who are not "ward Indians" and that the only action which is clearly authorized, with respect to such persons, is removal from the reservation. However, the phrase "non-ward" is often loosely used and it would seem advisable to direct a further inquiry to Superintendent Wooldridge as to the exact status of the Indians described as "non-wards." If, as the letter seems to indicate, some of these Indians have lived on the reservation for many years, it may be that they fall within the definition of "Indian" in section 19 of the Indian Reorganization Act, which is applicable to this reservation.

    If Indians, within the definition embodied in section 19 of the Indian Reorganization Act, who are not members of the Chippewa Cree Tribe of the Rocky Boy's Reservation are involved in this situation, the administrative advisability of having the Secretary delegate to the tribal court authority to deal with such Indians, as is suggested in the attached letter and order relating to the Blackfeet Reservation, should receive your consideration.

   The penultimate paragraph of the proposed letter seems to me to make an erroneous assumption in suggesting the necessity of "compensation" where alien lawbreakers are removed from the reservation. The land of the Rocky Boy's Reservation is tribal land. Property of alien lawbreakers consists either of personal effects, which can be carried away by the deported individual, or improvements on tribal land. Presumably permission to place such improvements on tribal land was conditioned upon conformity to the ordinances of the tribe. Upon violation of such ordinances the right to use the land may be withdrawn. The lawbreaker, of course, retains a right to sell or remove the improvements. The tribe, of course, has the privilege but is under no obligation to purchase such improvements.

    Would it not be worth while to suggest to Superintendent Wooldridge that the problem which now exists on the reservation might be alleviated if those non-member Indians who have apparently lived on the reservation for some time, making their homes on tribal land, and who are related to members of the tribe, were to be adopted into full tribal membership?

    The ordinance proposed is entirely. proper. I suggest that the covering letter submitted be revised, particularly with respect to the penultimate paragraph, and that you consider the advisability of including in the revised letter the various policy suggestions above made.

                                                                                                                                            NATHAN R. MARGOLD,

Solicitor.

 
SOUTHERN UTES--TRIBAL LANDS

 
August 27, 1938.

 Memorandum for the Acting Secretary:

    In the attached memorandum dated August 23 the Assistant Commissioner of the General Land Office questions the legality of an order proposing to restore to tribal ownership of the Southern Ute Indians in Colorado 200,000 acres of land heretofore opened to disposal under the public land laws by Presidential proclamation issued under authority of the act of February 20, 1895 (28 Stat. 677). The order was prepared in the Indian Office and is submitted for your signature under authority of section 3 of the act of June 18, 1934 (48 Stat. 984), which reads:

    "The Secretary of the Interior, if he shall find it to be in the public interest, is hereby authorized to restore to tribal ownership the remaining surplus lands of any Indian reser-
 


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vation heretofore opened, or authorized to be opened, to sale, or any other form of disposal by Presidential proclamation, or by any of the public-land laws of the United States: * * *."

    The views expressed by the Assistant Commissioner of the General Land Office are inconsistent with those expressed by the Commissioner of Indian Affairs with the concurrence of the Commissioner of the General Land Office and the approval of the Department in 1934 when lands in Colorado which the Ute Indians had ceded to the United States under the act of June 15, 1880 (21 Stat. 199), were temporarily withdrawn ) 54 I.D. 559). They are also inconsistent with the views expressed by the Acting Solicitor in an opinion dated and approved on June 15, 1938. That opinion holds that lands ceded by the Utes under the act of 1880 were subject to restoration under section 3 of the act of 1934 notwithstanding the declaration in the act that the lands were to be deemed to be public lands of the United States in which the interest of the Indians extended to the proceeds derived from sales. The opinion of the Acting Solicitor makes no mention of the act of February 20, 1895, supra. The provisions of that act, however, leave no doubt that the lands opened thereunder are subject to restoration under section 3 of the act of 1934. After the allotments and reserves had been made as provided in the act, the remaining or surplus lands were to be opened by Presidential proclamation to disposal under the public land laws for the benefit of the Indians. The undisposed of lands so opened meet all of the requirements of section 3 of the act of 1934.

    Certain provisions of the free homestead act of May 17, 1900, are referred to by the Assistant Commissioner of the General Land Office. To these provisions I attach no significance in so far as they relate to your authority for the reason that the act recognizes and confirms the Indian interest in lands affected thereby and imposes upon the United States the obligation to reimburse the Indian tribes for any moneys released by that act to which the Indians would otherwise be entitled.

    The Assistant Commissioner of the General Land Office further refers to the act of June 28, 1938 (Public No. 771, 75th Cong.), as having a bearing on the question of your authority to make the proposed restoration. That act confers jurisdiction on the Court of Claims to hear and render judgment on claims of the various bands of Ute Indians against the United States. Section 6 adds certain lands to the Southern Ute Reservation, vacates any and all orders attempting to restore to tribal ownership any portion of the lands in Colorado north of Range 35 and forbids the restoration by departmental order of any lands "north of and including Range 35". The lands included within the proposed order are not within the forbidden area.

    I recommend that the proposed order be signed.

                                                                                                                                            NATHAN L. MARGOLD,

Solicitor.

 
PROBATE OF RESTRICTED PERSONALITY

 
August 30, 1938.

 Memorandum to the Assistant Secretary:

    Attached hereto is a letter prepared for your approval from the Assistant Commissioner of Indian Affairs setting forth certain general considerations concerning the probate of personal property of deceased Indians and certain temporary methods of procedures. As the statements in the letter are based upon an understanding reached in this office with representatives of the Probate Division of the Indian Office, and as the statements are not entirely clear in reflecting the decisions reached, I am taking this opportunity to supplement, the statements, upon request from the Probate Division, in order to clarify the situation.

    The Indian Office letter deals with the necessity for affirmative action by the Indian tribes to establish definite rules for the method and manner of distributing property before the distribution of decedents' estates can be handled by tribal agencies. This memorandum is directed particularly to discussing the need for further tribal action in the premises.

    1. Where an Indian court is established under departmental regulations or tribal codes, there is already a forum and a procedure as well as a substantive law covering the distribution of unrestricted Indian property. Your attention is called to the fact that the departmental law and order regulations now provide for action by the Courts of Indian Offenses in the distribution of property other than trust property and provide that in such distribution the customs of the tribe shall be applied where such customs are proved. Provisions governing procedure and substantive law in inheritance cases are usually included in the tribal codes. Therefore, I believe it would be inappropriate for the Department to require further action by tribal agencies before the disposition of unrestricted property is undertaken by the tribal agencies. In any event, the distribution of such property is not under the jurisdiction of this Department, and I see no legal reason why this De-
 


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