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charged with a statutory duty to collect construction charges, a finding by the Secretary was necessarily contemplated, and express language making provision for such a determination must be regarded as superfluous. This perfectly natural and reasonable construction would bring some order into the administration of the irrigation project.

    I am, of course, not insensible to the practical considerations which have made it seem desirable to afford the San Carlos Irrigation District some measure of relief against the resumption of construction payments.  I understand that the Indian Irrigation Service has under consideration a recommendation that in the future such payments should be made in proportion to the amount of water available in a given year. Under such circumstances the water users are naturally loath to resume payments in accordance with the existing law and their repayment contracts, even though they can afford to do so at the present time. But a change ultimately in the scheme of payment will require legislation by Congress, and cannot be achieved under existing law. It would seem desirable, perhaps, in the future in deferring the payment of construction charges pending an investigation to provide that payments shall not be resumed until after a report has been made to Congress, and Congress has acted upon the report. But the moratorium granted in the present instance was only until the investigation should be completed. I should also inform you that you may, of course, under the act of June 22, 1936, order another investigation, and defer payment of construction charges pending the investigation, but such action would require confirmation by Congress in order to make it effective.

    Finally, I must express some doubt concerning the assurances given that the San Carlos Irrigation District will pay "voluntarily" in accordance with the sliding scale suggested in the Walker Report in the event that legislation to authorize such payment fails of enactment. I am not, of course, questioning the good faith of those who are prepared to give these assurances. But the execution of the promises may be practically and legally impossible of fulfillment. Certainly if the Irrigation District does not have the requisite funds in its Treasury, it will be unable to raise them by assessment, since no assessible sum would be legally due. If it has the money in its Treasury, it may be advised that it cannot legally make a voluntary payment. An irrigation district is at least a quasi-public corporation, and as such it may not have the same freedom of action in handling funds that is accorded to private corporations.

    I would suggest that the attached letter be sent to Senator McFarland, informing him that the Department has come to the regretful conclusion that it is not legally possible to reopen the investigation.

                                                                                                                                                     FOWLER HARPER,

    The Indian Office has presented for your approval the attached letter to the Superintendent of the Osage Agency relating to the impounding of automobiles purchased with the restricted funds of Osage Indians. I recommend that you do not approve the letter.

    The Superintendent in his letter of August 21 states that on several occasions he has been requested by the parents of adult members of the Osage Tribe to impound the restricted automobiles of their children when the children were reported to be drinking excessively. He requests instructions as to his legal authority to impound such automobiles.

    The Special Attorney for the Osage Indians in his memorandum of August 11 to the Superintendent expresses the opinion that the United States, having the duty of protecting the restricted property of the Indians and having title and the right to possession of such property purchased with restricted funds, could take the restricted automobiles from the Indians and impound them to prevent their loss by the Indians' destruction. The Office of Indian Affairs expresses the opinion that the Superintendent has legal authority to take possession of restricted automobiles when the owners thereof are drinking excessively or in other cases where it appears that, the use of such automobiles by Indians addicted to the use of intoxicants or narcotics might constitute a hazard to themselves or to the traveling public. No authority is cited by the Indian Office for the opinion expressed. The cases cited by the Special Attorney are not in point since they deal with the authority of the United States, to recover the possession of restricted property from third parties. No question is presented here of the recovery of possession of the property from a third party. The question here is the right of the Superintendent to deprive the Indian owner of the use of his automobile because of his excessive drinking. In my opinion the impounding of
 
 

such cars by the Superintendent would be of doubtful legality. I know of no instant in which the Department has deprived an Indian of the use and enjoyment of personal property held under a restricted bill of sale. The object of the restricted bill of sale is to prevent the alienation of the property by the Indian. It is not designed to interfere in any way with the use of the property by the Indian whose funds were used to make the purchase.

    Aside from the above, it seems to me, that it might be unwise administratively to instruct the Superintendent that he may impound restricted automobiles "because of excessive drinking, or in other cases where it appears that the use of such automobiles by Indians addicted to the use of intoxicants or narcotics might constitute a hazard to themselves or the travelling public."  Such instructions, if issued, would place the Superintendent in the difficult position of attempting to determine in all cases brought to his attention whether a person uses alcoholic beverages to such excess that his use of an automobile constitutes a hazard to himself and the general public.

    I therefore suggest that the letter be returned to the Office of Indian Affairs with directions to delete the last paragraph thereof and to inform the Superintendent that it is not deemed advisable to confer upon him general authority to impound the restricted automobiles of adult Osage Indians.

                                                                                                                                                      FOWLER HARPER,

Approved: October 7, 1944.

OSCAR L. CHAPMAN, Assistant Secretary.

Memorandum for the Commissioner of Indian Affairs

The Secretary of the Interior may issue revocable permits for transmission line rights-of-way across public domain allotments and Indian homesteads with the consent of the Indian owners.

In the absence of specific statutory authority, he may not issue such permits without the consent of the Indian owners.
                                                                                                                                                                                                    HARPER, Solicitor:

Memorandum for the Commissioner of Indian Affairs:

    You have requested that I give further consideration to the attached letter addressed to the Superintendent of the Sacramento Agency, returned to your Office with my memorandum of October 6, 1943. The letter relates to the acquisition of transmission line rights-of-way by the Surprise Valley Electrification Corporation across three public domain allotments and one Indian homestead in California.

    I have reconsidered the letter in conjunction with your memorandum of November 13, 1943, in which you indicate that you are confused by the apparent conflict between the memorandum of this office of October 6, 1943, and that of June 24, 1943, both relating to the issuance of revocable permits across Indian lands. I have also examined the General Land Office file in connection with the application of the corporation for the desired rights-of-way. Since no application by the corporation for permission to cross the particular lands discussed in the attached letter is now before the Department, the question is moot insofar as the corporation is concerned and the attached letter should not, in any event, be submitted for departmental approval.

    You state that you are unable to distinguish between the basic facts in this case and in the case dealt with in the memorandum of June 24, 1943, in such a manner as to arrive at a conclusion that a revocable permit can be issued in the one case and not in the other. The memorandum of June 24,1943, dealt with two applications made by the Forest Service of the United States Department of Agriculture for highway rights-of-way over Indian allotments adjacent to national forests. The applications recited that the rights-of-way were urgently needed for the prosecution of the war and the accompanying papers showed that the roads would facilitate the protection and removal of Indian timber products. The holders of the majority interests in the allotments affected had consented to the granting of the permission by the Secretary and many of those contacted had expressed the view that the proposed road would be an asset to their holdings. No objection was voiced by any one having an interest in the allotments and, while I do not have the applications of the Forest Service and the accompanying papers before me at this time, it is the recollection of the members of my staff who considered the applications that every effort had been expended in an effort to secure .the consent of all of the holders of interests in the allotments and that those who had consented had done so in writing after the situation had been fully explained to them. While the statement was made in my mem-
 

orandum of October 6, 1943, that the recommendation made by this office that a revocable permit be issued to the Forest Service was largely motivated by the consideration that the Forest Service, under a cooperative agreement with the State, could have secured a permanent right-of-way under the act of March 3, 1901, it was also motivated by the considerations that the rights-of-way were urgently needed for the prosecution of the war and that the allottees themselves would be benefited and their property protected.

    No such circumstances appear in the instant case. On October 3, 1938, the Surprise Valley Electrification Corporation filed an application with the United States Land Office at Sacramento, California, for a right-of-way across three public domain allotments and one Indian homestead. The applicant stated that under its contract with the Rural Electrification Administration it was not authorized to pay land owners for rights-of-way. No showing was made that the erection of transmission lines across the lands in question would actually be of any benefit to the land owners or that the Indians desired to or would use electricity furnished by the contemplated line. No act was cited in the application under which the right-of-way was requested but the General Land Office considered the application as though it had been filed under the act of February 15, 1901.² On November 2, 1938, your Office was requested by the Geological Survey to furnish a report and recommendation on the granting of the requested right-of-way. Your Office did not respond to the inquiry of the Geological Survey until September 10, 1942, when it reported that damages covering the four tracts had been appraised at $50.50, that the owners of the three public domain allotments and a majority of the Indians owning an interest in the homestead allotment had consented to the granting of the right-of-way, conditioned upon the payment of damages. Your Office stated that the consent of the owners was evidenced by signed statements of consent on file in your Office and that the applicant had deposited the appraised damages with the Superintendent. The statement was made that the issuance of a permit for the rights-of-way, subject to the payment of damages, would be agreeable to your Office. On February 17, 1943, action on the application was suspended to await the decision of the United States Supreme Court on the appeal by the United States from the decision of the Circuit Court of Appeals, Tenth Circuit, in the case of United States v. Oklahoma Gas and Electric Company.³  Following the decision by the Supreme Court in the case ⁴  the General Land Office rejected the application and suggested that it would be necessary for the corporation to obtain from each of the Indians owning the land a permit or an easement deed covering the segment of the right-of-way across his or her individual allotment or homestead land, subject to the approval of the Department. The corporation was informed of its right to appeal from the decision but no appeal was taken and, so far as I know, the corporation has made no further effort to obtain permission to cross the Indians' lands. Presumably it has constructed its line across other lands.

    You suggest that the Secretary should grant a revocable permit in this case because the owners may be widely scattered and their addresses unknown, because the corporation is sponsored by the Rural Electrification Administration and because applicants so sponsored generally have no funds for making payment for the acquisition of rights-of-way or for the costs of condemnation proceedings. None of these factors, in my opinion, presents a valid reason for recommending that the Secretary issue a revocable permit without the consent of the Indians.

    In the case of the application by the Forest Service we have the situation of one branch of the Federal Government requesting permission to cross lands for purposes directly connected with the prosecution of the war and the issuance of a revocable permit only after all efforts had been exhausted to obtain the consent of the parties. There the Department of Agriculture could legalize the temporary trespass immediately by condemnation proceedings should the Indians who had not consented voice objection to the crossing of their lands. In the instant case there is no showing that the erection of the transmission line across these particular lands has any relation to the war effort, that the transmission line will be of any benefit to the Indians, much less afford any protection to their property, or even that the corporation still desires to cross the lands with its line. You now admit that in all probability the corporation would not be able to stand the cost of acquiring the rights-of-way either by easement deed or by condemnation, although you previously stated to the Geological Survey that the company had already deposited the appraised damages.

    In the case of the application by the Forest Service this office suggested that there was a legal way in which the Forest Service might acquire the rights-of-way for road purposes. However, because of the urgency of the matter this office suggested that a short cut might be taken. No emergency exists in

____________
    ¹ 31 Stat. 1058, 1084, 25 U.S.C. sec 311.

    ² 31 Stat. 790, 43 U.S.C. sec. 959.

    ³ 127 F. (2d) 43.

    ⁴ 318 U.S. 206
 

the present case. Indeed, your Office allowed the request of the Geological Survey for a report on the application to rest in your Office without action from November 1938 until September 1942, a period of almost four years.

You state that the suggestion this office made regarding the acquisition of the rights-of-way by the State authorities for the Department of Agriculture does not appear to be feasible in view of the fact that the Attorney General of Oklahoma has held that counties in that State are without authority to acquire right-of-way for the Federal Government under such circumstances. Without having before me a copy of the decision of the Attorney General of Oklahoma and without knowing the basis of the decision, I cannot, of course, express any opinion as to its applicability to other States or to other situations.

    You take the position that if the end sought to be accomplished can be accomplished by legal means--in this case easement deeds or the consent of the owners--it can be accomplished by another method, namely the issuance of a revocable permit. You lose sight of the fact that in the first instance the consent of the allottee has been obtained and in the second instance it has not been obtained. It was only because of the unusual circumstances presented by the application of the Forest Service, having a direct bearing on the prosecution of the war, that this office felt justified in recommending to the Secretary that he issue a revocable permit. Certainly you realize that in war times the technical rights of individuals must sometimes be subordinated to the interest of the good of the Nation. Actions taken in such circumstances should in no event be regarded as precedents for other cases where the need for immediate action in the interests of national defense is not involved.

    You seem to be under the impression that this office holds that a revocable permit across Indian lands can never be issued even with the consent of the Indian owners. Such is not the case. We recognize that the Secretary can, with the Indians' consent, issue a revocable permit for the use of his lands. However, the Secretary's authority results not from the statutes cited in the attached letter but from the authority he derives from the various statutes permitting alienation by the Indian owner with Secretarial consent. I regret that anything contained in my memorandum of October 6, 1943, may have led you to believe that this office was insisting that revocable permits could not be issued in the absence of specific statutory authority to issue such permits even with the consent of the Indian owners.

                                                                                                                                                      FOWLER HARPER,

Lands acquired by the United States with funds appropriated by the Emergency Relief Appropriation Act of April 8, 1935 (49 Stat. 115), can under section 5 of that act be leased for mining purposes by the President. The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. The authority and control of the President over the lands involved having been transferred by Executive order to the Secretary of the Interior, the Secretary may lease the lands for mining purposes if he deems it administratively advisable to do so.

HARPER, Solicitor:

Memorandum for Assistant Secretary Chapman:

    On August 9, 1943, Victor Rakowsky of Joplin, Missouri, made formal application for prospecting permits on approximately 200,000 acres of land located in Adair, Cherokee, and Sequoyah Counties, Oklahoma. These lands consisted of (1) restricted Indian lands allotted to the Cherokee Indians, (2) lands acquired by the United States in trust for the Cherokee nation pursuant to the provisions of the Oklahoma Welfare Act of June 26, 1936 (49 Stat. 1967, 25 U.S.C. sec. 501), and (3) lands acquired by the United States with funds appropriated by sundry Emergency Relief Appropriation Acts.

    Under date of September 18, 1943, I addressed a memorandum to you outlining the legal requirements to be met with reference to the restricted Indian lands. At that time you were advised that it was my understanding that certain of the lands under consideration may have been purchased under the Oklahoma Welfare Act of June 26, 1936, supra, or that some of them may have been acquired under authority of Title II of the National Industrial Recovery Act of June 16, 1933 (48 Stat. 296), or the Emergency Relief Appropriation Act of April 8, 1935 (49 Stat. 115), or section 55 of Title I of the act of August 24, 1935 (49 Stat. 751, 781), and that as soon as I was informed as to the status of these lands and the particular statutes under which they were acquired, I would advise you as to what authority, if any, there existed for the issuance of prospecting per-
 

mits and leases of the nature desired by Mr. Rakowsky.

    Instructions concerning the issuance of permits and leases on lands acquired under the act of June 26, 1936, supra, are contained in your memorandum of February 7,1944, to the Assistant Commissioner of Indian Affairs.

    The Department of Agriculture has now indicated that the lands known as the Adair County Project LI-OK-5, Indian Meridian, T. 14 N., R. 25 E., Sets. 1 to 3, 10 to 15, 22 to 27, and 34 to 36 inclusive; also T. 14 N., R. 26 E., were acquired by the United States with funds appropriated by the Emergency Relief Appropriation Act of April 8, 1935 (49 Stat. 115), section 5 of which provided:

    "In carrying out the provisions of this joint resolution the President is authorized (within the limits of the appropriation made in section 1) to acquire, by purchase or by the power of eminent domain, any real property or any interest therein, and improve, develop, grant, sell, lease (with or without the privilege of purchasing), or otherwise dispose of any such property or interest therein."

    On December 31, 1936, the President, by Executive Order No. 7530, transferred control and authority over these lands from the Resettlement Administration to the Secretary of Agriculture.

    On April. 15, 1938, the President, by Executive Order No. 7868, transferred control and administration of these lands from the Secretary of Agriculture to the Secretary of the Interior.

    The question for consideration is whether the Secretary of the Interior has the authority to enter into mining leases covering the lands thus placed under his control and administration. It is clear that the President has authority to enter into such leases by reason of section 5 of the act of April 8, 1935, supra. The President likewise speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties.¹

    Since it is a well-settled principle, adopted in practice and recognized by the courts, that the President acts in the performance of his duties through an appropriate department of the Government and through the chief officers charged with the immediate supervision of the affairs of that department, and since the act under consideration specifically gives authority to the President to lease the lands, which authority is now vested in the Secretary of the Interior by Executive Order No. 7868, it is my opinion that the Secretary may lease the lands described herein for mining purposes if he deems it administratively advisable to do so.

                                                                                                                                                       FOWLER HARPER,

Approved: November 7, 1944.

OSCAR L. CHAPMAN, Assistant Secretary.

M-33857

The Secretary of the Interior may properly delegate to the Commissioner of Indian Affairs his functions of stating accounts between the United States and the Indian tribes under reimbursable appropriations and of making the necessary payments thereunder.

HARPER, Solicitor:

Memorandum for Mr. Northrop,
Director, Division of Budget and Administrative Management:

    Reference is made to your memorandum of October 23, in which you inquire whether the Assistant Secretary must approve personally the accounts between the United States and the Indian tribes under reimbursable appropriations or whether this function may be delegated properly to the Commissioner of Indian Affairs.

    It is my opinion that the function of approving the accounts in question may properly be delegated by the Secretary to the Commissioner of Indian Affairs.

    The statutes involved are the acts of April 4, 1910 (36 Stat. 270), and June 10, 1921 (42 Stat. 24), presently set out, as follows, in 25 U.S.C. sec.
145:

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    ¹ See Porter v. Coble, 246 Fed. 244 (C.C.A. 8th, 1917); George G. Belt's Executrix v. The United States, 15 Ct. Cl. 92; Maresca et al. v. United States, 277 Fed. 727; Emery C. Weller v. The United States, 41 Ct. Cl. 324;  Wilcox v. Jackson, 38 U.S. 498; Wolsey v. Chapman, 101 U.S. 755;   Hegler v. Faulkner, 153 U.S. 109.
 

    "The Secretary of the Interior shall cause to be stated annual accounts between the United States and each tribe of Indians arising under appropriations made, which by law are required to be reimbursed to the United States, crediting in said accounts the sums so reimbursed, if any; and the Secretary of the Interior shall pay, out of any fund or funds belonging to such tribe or tribes of Indians applicable thereto and held by the United States in trust or otherwise, all balances of accounts due to the United States and not already reimbursed to the Treasury, and deposit such sums in the Treasury as miscellaneous receipts; and such accounts shall be received and examined by the General Accounting Office and the balances arising thereon certified to the Secretary of the Treasury."

    "From the general framework of section 161 of the Revised Statutes [now 5 U.S.C. sec. 22], authorizing broadly the delegation of the Secretary's duties, and section 461 [Revised Statutes, now 25 U.S.C. sec. 2], authorizing with equal breadth the management of all Indian Affairs by the Commissioner, arises a very strong presumption that the Indian matters committed to the Secretary may be delegated to the Commissioner."

    "Each statute vesting a power in the Secretary or the Commissioner of Indian Affairs must be read against the background of sections 161 and 463 of the Revised Statutes, which constitute the basic framework for each specific allocation of function."

    The conclusion that phrases in a statute such as "to pay" and "to invest" may mean "shall cause to be paid" and "shall invest" is reached in Work v. Lynn, 266 U.S. 161, 168 (1924), which construes section 4 of the act of March 3, 1921 (41 Stat. 1249), involving payment of tribal income to the Osage Indians. That section provides in part:

    ". . . the Secretary of the Interior shall cause to be paid at the end of each fiscal quarter to each adult member of the Osage Tribe having a certificate of competency his or her pro rata share, either as a member of the tribe or heir of a deceased member, of the interest on trust funds, the bonus received from the sale of leases, and the royalties received during the previous fiscal quarter, and so long as the income is sufficient to pay to the adult members of said tribe not having a certificate of competency $1000 quarterly . . . and to invest the remainder after paying all taxes of such members either in United States bonds or in Oklahoma State, county, or school bonds, or place the same on time deposits at interest in banks of the State of Oklahoma for the benefit of each individual member under such rules and regulations as the Secretary of the Interior may prescribe . . ."

    "The obviously mistaken use of the words 'to pay' and 'to invest' in some of the clauses instead of 'shall cause to be paid' and 'shall invest,' or their equivalents does not introduce any uncertainty into the section or affect its meaning. The sense is made plain by the context.

    "In our opinion the section must be taken as making it the plain duty of the Secretary to cause the several payments of income to be made in the amounts and at the times specified, and to invest the excess, where there is such in prescribed securities, or to deposit it in prescribed banks, for the benefit of those to whom it is owing."

    If you decide to revise Form No. 5-116 in conformity with this opinion, I suggest that you submit the revision to the Comptroller General for approval. The Budget and Accounting Act of 1921(42 Stat. 25, 31 U.S.C. sec. 49) provides:

    "The Comptroller General shall prescribe the forms, systems, and procedure for administrative appropriation and fund accounting in the several departments and establishments, and for the administrative examination of fiscal officers' accounts and claims against the United States."

 Memorandum for the Commissioner of Indian Affairs:

    In your memorandum of October 26 you inquire whether the revenues available from the operations of the Navajo Sawmill may be handled in accordance with the provisions of the 1945 Appropriation Act, and the regulations promulgated there under on September 23, 1944 (25 CFR sec. 21.17 and 21.19).

    It seems that $165,000 was appropriated by the 1942 Appropriation Act (55 Stat. 303, 316) for the operation and maintenance of the sawmill, as follows:

    "Operation and maintenance, Navajo tribal sawmill (tribal funds) : Not to exceed $165,000 of the funds on deposit to the credit of the Navajo Indians are hereby made available for advance to the Navajo Tribe for the operation and maintenance of the Navajo tribal saw mill enterprise: Provided, That revenue derived from the operation of the mill shall be available upon request of the Secretary of the Interior for advance to the tribe for the same purposes."

    "Provided further, That funds available under this paragraph may be used for the establishment and operation of tribal enterprises when proposed by Indian tribes and approved under regulations prescribed by the Secretary: Provided further, That enterprises operated under the authority contained in the foregoing proviso shall be governed by the regulations established for the making of loans from the revolving loan fund authorized by the Act of June 18, 1934 (25 U.S.C. 470): Provided further, That the unexpended balances of prior appropriations under this head for any tribe, including reimbursements to such appropriations and the appropriations made herein, may be advanced to such tribe, if incorporated, for use under regulations established for the making of loans from the revolving loan fund authorized by the Act of June 18, 1934 (25 U.S.C. 470)."

    On the other hand, it was clearly the purpose of the 1945 Appropriation Act, in providing for the use of tribal funds by all tribes, whether incorporated or not, to establish a uniform system in the handling of such funds. This appears from the statement submitted by your office to the Subcommittee of the Committee on Appropriations of the House of Representatives (Hearings, Part 2, page 62), which reads as follows:

"The Interior Department Appropriation Act, 1944 (Public Law 133, 78th Cong., 1st sess.), authorized not to exceed $600,000 of the revolving fund established pursuant to the act of June 18, 1934 (48 Stat. 986) to be loaned to individual Indians and Indian organizations otherwise ineligible to participate in said fund Loans will be made to unincorporated tribes under this authority, to conduct tribal enterprises and to make loans to members and associations of members, on much the same basis as is being done by incorporated tribes with loans from the revolving fund. It is not practicable in the case of unincorporated tribes to operate an enterprise partly with revolving and partly with tribal funds, as revenues derived from enterprises operated with tribal funds are required to be covered into the Treasury, whereas those operated with revolving funds can be used for continued operation, expan-

sion, or repayment, in accordance with the tribes loan contract with the United States. Likewise there is no authority to advance tribal funds to unincorporated tribes to make loans to members and associations of members, as may be done with revolving funds. The language change will permit a uniform credit system to be established by unincorporated tribes, and permit the tribes to supplement borrowed revolving funds with their tribal funds."

                                                                                                                                                      FOWLER HARPER,

 Memorandum for the Commissioner of Indian Affairs:

    I find the attached letter to the Superintendent of the Taholah Agency, relating to the granting of a right-of-way to the Crown Zellerbach Corporation for a logging road over allotted land on the Makah Reservation not under timber contract by the applicant, very confusing and not entirely responsive to the Superintendent's request for instructions as to how the corporation may secure the right to construct a logging road across the allotments. The corporation has offered to buy the allotments and to present them to the tribe in exchange for a permanent right-of-way. You suggest that the Superintendent "advise the corporation and the Indians in regard to the methods outlined" in order that they may "determine what method will be used to obtain the necessary road right-of-way." It does not seem to me that you have outlined clearly any method by which the corporation may obtain the right to construct the proposed road.

    In the first place, the corporation apparently desires to use the road, after its construction, not only for the term of its timber contract, which terminates in 1955, but for an indefinite period thereafter. After the termination of its timber contract the corporation proposes to use the road for the transportation of logs and supplies from lands outside of the reservation to its headquarters camp at Neah Bay on the reservation. The Superintendent states that it would be a severe loss to the Indians if the company were required to move elsewhere after the reservation timber had been logged, and that the corporation plans to improve its present camp at considerable expense if it can secure the right to use the road after the termination of its timber contract. Your answer seems to indicate that no right to use the land in question beyond the period of the timber contract can be granted at this time. I know of no legal objection to the granting of a right-of-way or the issuance of a revocable permit with the consent of the Indian owners beyond the period of the timber contract. If there are factors which make it unwise from an administrative standpoint to consider at this time any proposal which the company might make in order to secure the right to use these lands after the termination of its timber contract, it seems to me that the corporation should be so informed, even though this may result in the corporation's plan to move its headquarters camp from the reservation at the termination of its present timber contract.

    You refer to the fact that one of the allottees refuses to consent to the granting of a right-of-way across his allotment unless the sum of $10,000 is paid for 10 acres informally appraised at $20 an acre. You make no further reference to the problem presented by this Indian's refusal to permit the company to cross his lands other than your statement that under the rulings of this office "a revocable permit for the transportation of timber from non-reservation land over Indian land may not be granted over the objection of an Indian." The Superintendent should be informed that in the absence of statutory authority this Department cannot permit the use of Indian land for any purpose without the consent of the Indian owner. This is true regardless of whether the permission sought is for the transportation of timber from non-reservation or reservation lands. In the present case apparently the company desires to use this Indian's land, at least for the present, for the transportation of reservation timber.

    On the first page of your letter you refer to a revocable permit while on the second page you discuss easement deeds. I am afraid that the Superintendent will not be able to tell from your letter whether you are proposing as one method to secure the desired permission to cross the allotments the
 

issuance of revocable permits with the consent of the Indian owners and, as another method, the execution of easement deeds by the Indian owners with the approval of the Secretary.

    The second and third paragraphs on page two of the letter are ambiguous. In the second paragraph you state that because many inherited interests in the allotments are probably held by minors or incompetents it would not be feasible to issue fee patents to the Indians so that the patentees might sell the land to the company which, in turn, would convey to the tribe in exchange for a permanent right-of-way. Yet in the third paragraph you suggest that the Indians might execute deeds conveying their allotments to the United States in trust for the tribe "excepting therefrom the land to be contained in the right-of-way." Will there not be just as many minors and incompetents involved in the conveyances to the United States as if the lands were being conveyed to the corporation? Perhaps you mean to suggest that, since many of the allotments affected are in heirship status, the Secretary could sell the inherited land to the tribe without the necessity of securing deeds from the heirs, under the authority of the act of June 25, 1910 (36 Stat. 855, 25 U.S.C. sec. 372), and as a part of the same transaction grant a right-of-way to the corporation. If that is what you had in mind there would, of course, be a much smaller number of persons from whom deeds would have to be obtained. May I suggest that, in any event, the Superintendent should be informed that the Secretary can sell the heirship lands to the tribe and that the tribe can acquire the lands with the money furnished by the corporation.

    I do not understand, from the third paragraph on page two, whether you propose that there be two instruments executed covering each allotment, (1) a conveyance of the allotment to the United States in trust for the tribe "excepting therefrom the land to be contained in the right-of-way" and (2) an easement deed to the corporation covering the portion of the allotment excepted from the conveyance to the United States in trust for the tribe, with a provision therein that the portion covered by the right-of-way shall vest in the United States in trust for the tribe at the termination of the right-of-way, or whether there is to be only one instrument conveying the allotment to the United States in trust for the tribe except the right-of-way for the road which, by the same instrument, is to be granted to the corporation for a definite period, at the termination of which the right-of-way will be merged with the fee in the tribe. Is it your intention that only the portions of the allotments not needed for the road shall be conveyed to the United States in trust for the tribe and that separate easement deeds be executed to the corporation for the remaining portions of the allotments? In any event, appropriate words of conveyance should be suggested to the Superintendent to accomplish what you have in mind.

    Since there is nothing to indicate that the company would be willing to make a present of the allotments to the tribe in exchange for a right-of-way limited to its timber contract on the reservation, and since its offer was apparently based on the acquisition of a permanent or indefinite right-of-way, it might be wiser, if the right-of-way is to be limited to the period of the timber contract, to place more emphasis on the possibility of granting rights-of-way by easement deeds to the corporation by the owners with the approval of the Department or to the granting of revocable permission by the Department with the consent of the owners than on the acquisition by the tribe of the allotments at this time.

    One other matter discussed in your letter remains for consideration. You state that under section 1 of Article VIII of the constitution of the Makah Tribe the lands may be condemned by any agency of the State of Washington, the Federal Government or by the tribe itself, and you suggest that since the logging road is a necessity for the removal of tribal timber and will be of benefit to the tribe as a whole the tribe itself should institute condemnation proceedings.

    I do not agree that condemnation by the tribe should be suggested as a method of securing to the corporation the right to cross the allotments. In the first place, I doubt that the tribe could successfully maintain a suit to condemn these lands. The Makah constitution provides that allotted lands may be condemned "under existing law." Section 3 of the act of March 3, 1901 (31 Stat. 1084, 25 U.S.C. sec. 357), authorizes the condemnation of allotted lands "for any public purpose under the laws of the State." The United States would be an indispensable party to any suit affecting these lands¹, and, unless condemnation proceedings are authorized by that act, I know of no way in which the United States could be made a party to the action.

    The tribe would have difficulty in establishing the "public purpose" of the proposed road under the laws of the State of Washington. True, those laws permit the taking of private ways of necessity for logging roads.²  That permission is granted,

____________
    ¹Minnesota v. United States, 305 U.S. 382 (1938).

    ² Remington's Revised Statutes of Washington, section 936-1, 1940 Supplement.
 

however, by virtue of section 16, Article I, of the State constitution which provides that private property shall not be taken for private use "except for private ways of necessity", and that whenever any attempt is made to take private property for a use alleged to be public the question of whether the contemplated use is public shall be for judicial determination.

    Congress has not authorized condemnation of allotted lands for all purposes permitted by the State laws but only for "any public purpose" under those laws. The State of Washington itself recognizes that a private way of necessity is not a public purpose. The case cited by you does no more than uphold the constitutionality of the Washington statute authorizing the taking of private property for a private way of necessity.

    In the second place, even if the tribe were successful in maintaining a condemnation suit and if title to the land were vested in the tribe, the tribe could not grant permission to the corporation to use the tribal lands even for the entire period of the timber contract without an amendment to its corporate charter. That charter limbs leases and permits covering tribal land to a period of five years. Amendment of the charter requires approval by the Secretary and ratification by a. majority vote of the adult members of a popular referendum. Presumably the corporation would not be willing to stand the cost of a condemnation suit as well as the cost of the allotments and of building the road without assurance that it could use the road at least until it had fulfilled its timber contract on the reservation.

    I suggest, therefore, that, notwithstanding the desirability of acquiring these allotments for the tribe, the less cumbersome way of securing to the corporation the right to build this logging road over the allotments for the purpose of enabling it to fulfill its timber contract would be by the issuance of a revocable permit by the Secretary with the consent of the Indians or by the execution of easement deeds from the Indians to the corporation with the approval of the Secretary. Since there appears to be only one allottee who will not agree to let the corporation cross his lands it might be well if the Superintendent were to point out to him the fact that his refusal is inimical to the interest of the tribe as a whole. Perhaps if the tribal interest were properly explained to the Indian he would agree to whatever plan is adopted by the other Indian landowners.

                                                                                                                                                      FOWLER HARPER,

M-33510                                                                                                                                                 January 11, 1945.

Memorandum:

Lands allotted to Indians of the Sac and Fox, Iowa, Cheyenne and Arapaho Tribes are not reservation lands within the meaning of the Act of February 15, 1901 (31 Stat. 790, 43 U.S.C. sec. 959), which authorizes the Secretary to issue grants of rights-of-way over certain lands.

The organization of the Sac and Fox, Iowa, Cheyenne and Arapaho Indians under the Oklahoma Indian Welfare Act did not affect the status of allotted lands within the boundaries of their former reservations which had been dissolved by agreements of cession duly ratified by the Congress.

HARPER, Solicitor:

Memorandum for Assistant Secretary Chapman:

    At the request of the Commissioner of Indian Affairs, the Commissioner of the General Land Office has presented the question of whether his rejection of the applications of the Central Rural Electric Cooperative, the Cimarron Electric Cooperative, and the Kiwash Electric Cooperative, Inc., for rights-of-way for electric transmission lines over land allotted to Iowa, Sac and Fox, and Cheyenne and Arapaho Indians should be reconsidered. These applications had been submitted on November 9, 1942, November 24, 1942, and January 6, 1943, respectively, pursuant to the provisions of the acts of February 15, 1901 (51 Stat. 790, 43 U.S.C, sec. 959), and March 4, 1911 (36 Stat. 1253, 43 U.S.C. sec. 961). They were held in abeyance pending disposition by the Supreme Court of the case of United States v. Oklahoma Gas and Electric Company (318 U.S. 206). After the Court had decided that the above-mentioned acts did not apply to allotments within the boundaries of the former Kickapoo Reservation in Oklahoma, the Commissioner of the General Land Office informed the applicants that their applications could not be granted because the lands involved were in the same category as the allotted lands of the Kickapoo Indians. The Commissioner's decisions on the applications of the Central Rural Electric Cooperative and the Kiwash Electric Cooperative, Inc., were approved by the Department on May 12, 1943, and October 29, 1943, respectively. The decision on the application of the Cimarron Elec-
 

tric Cooperative was not presented for departmental review.

    In 1890 agreements of cession were obtained from the Cheyenne and Arapaho, the Sac and Fox and Iowa Tribes. These agreements were negotiated in pursuance of the then general policy of reducing Indian reservations and allotting lands in severalty to individual Indians. The agreements with the Sac and Fox and Iowa Tribes were ratified by the act of February 13, 1891 (26 Stat. 749), and the agreement with the Cheyenne and Arapaho Tribe was ratified by the act of March 3, 1891 (26 Stat. 989, 1022). Each of these agreements ceded to the United States specifically described tracts of land then in tribal ownership for a money consideration and allotments of land in severalty within the ceded areas to members of the tribes. The Cheyenne and Arapaho agreement reserved from allotment certain lands "now used or occupied for military, agency, school, school farm, religious, or for other public purposes." But the reserved lands were not excluded from the cession. The Iowa agreement excluded from the cession and reserved to the tribe a 10-acre tract of land for religious, education and burial purposes. The Sac and Fox excluded from the cession and reserved to the tribe a quarter section of land on which the Sac and Fox Agency was located, and a whole section of land then set apart for school and farm. With these exceptions the cessions made by these Indian tribes differed in no respect from the cession agreement interpreted by the Supreme Court in United States v. Oklahoma Gas and Electric Company, supra, and in conformity with the decision in that case it must be held that the ceded lands including the allotments subsequently made ceased to be a "reservation" as that term is used in the acts of February 15, 1901, and March 4, 1911, supra.

    No change in this situation has been wrought by subsequent legislation. In the case of the Iowa and Sac and Fox, neither executive nor legislative recognition of the existence of reservations subsequent to the cession has been found. In the case of the Cheyenne and Arapaho, the Congress has by sundry appropriation acts enacted during the years 1894 to 1923 made appropriations for the support of the Cheyenne and Arapaho "who have been collected on the reservation set apart for their use and occupation in Oklahoma."¹  In 1908² Congress authorized the sale of a part of the school reserve "for the benefit of the Indians of the Cheyenne and Arapaho Reservations," and in 1938³ Congress set aside certain lands "for the use and benefit of the Indians of the Cheyenne and Arapaho Reservation." These references to a "reservation" or "reservations" of the Cheyenne and Arapaho fall far short of restoring the allotted lands to a reservation status. None of them had that purpose in mind. With the sole exception of the act of April 13, 1938, which has no application to allotted lands and which could be regarded as giving reservation status only to the limited acreage described therein, none of the acts purported to restore the tribal title which had previously been conveyed to the United States. The terms "reservation" or "reservations" evidently were used not to indicate an understanding of the Congress that the dissolved reservation had been re-established but rather in a geographic sense "to describe a region in Oklahoma as of a time subsequent to the dissolution." See United States v. Oklahoma Gas and Electric Company, supra. Any possible doubt about this conclusion would appear to be removed by the act of June 17, 1910 (36 Stat. 533), in which the Congress, with full knowledge concerning the status of the lands,⁴ correctly referred to "what was formerly Cheyenne and Arapaho Indian Reservation."

    The Commissioner of Indian Affairs suggests that by organization under the Oklahoma Indian Welfare Act of June 26, 1936 (49 Stat. 1967, 25 U.S.C. secs. 501-509), these tribes acquired jurisdiction of the lands formerly included in their reservations and that the approval of the tribal constitution should be regarded as recognition of the existence of the re-established reservations. This suggestion is without merit. There is nothing in the Oklahoma Indian Welfare Act itself, or in its legislative history, to indicate an intent on the part of Congress to re-establish merely by organization there under any dissolved Indian reservation. Section 3, which deals with the organization of tribes, does not make any reference to reservations. Lands acquired under the act for the use and benefit of the tribe and held in trust by the United States may no doubt acquire a reservation status.⁵

    This office has apparently taken the view in its memorandum of June 30, 1938 (before the decision in the Oklahoma Gas and Electric Company case), that an allotment "in the Cheyenne and Arapaho reservation" is part of a reservation within the meaning of the drainage ditch right-of-way act of March 3, 1891 (26 Stat. 1101). The memorandum assumes the continued existence of the reservation without discussing that point, and deals solely with the question of whether an allot-

______________
    ¹ See, e.g., acts of August 15, 1894 (20 Stat. 286, 302), and January 24, 1923 (42 Stat. 1174, 1195) .

    ² Act of May 29, 1908 (35 Stat. 444, 447).

    ³ Act of April 13, 1938 (52 Stat. 213).

    ⁴ See H.R. Rep. 704, 62d Cong., 2d sess., 1912.

    ⁵ Solicitor's opinions M. 30582, August 24, 1942, and M. 33246, September 16, 1943.
 

ment can be considered to be a part thereof. There is no doubt that an Indian reservation may include individual allotments. However, there must be a recognized reservation with definite boundaries within which the allotment is located before this principle can be applied. United States v. Sutton, 215 U.S. 291.

    The situation discussed in our opinion of September 16, 1943 (M-33246), concerning the reservation of the Siletz Indians of Oregon covers a somewhat different fact situation. There the reservation continued to exist in spite of the allotments and we found a continuation of the general body and boundaries of the reservation.

    Practically, the result of a determination that these allotted lands are not within the scope of the acts of February 15, 1901, and March 4, 1911, is simply that it will be necessary for the companies to obtain from each allottee, subject to approval of the Department, a permit or an easement deed covering the segment of the right-of-way across his or her individual allotment. The files indicate that statements of consent have already been obtained from most of the individuals concerned.

    While it is my conclusion that the prior decisions in this matter are correct and that they should not be disturbed, I express no opinion on the question whether the lands involved could properly be considered as reservations lands for purposes other than the application of the acts of February 15, 1901, and February 4, 1911, supra.

                                                                                                                                                      FOWLER HARPER,

Approved: January 11, 1945.

OSCAR L. CHAPMAN, Assistant Secretary.

M-33937                                                                                                                                              January 26, 1945.

Memorandum for Assistant Secretary Chapman:

    At the conference held in the office of Assistant Secretary Straus on December 8, 1944, concerning construction of the Palo Verde weir authorized by the act of April 1, 1944 (Public Law 279, 78th Cong., 2d sess.), you made a request to Mr. Seagle that this office consider two questions in connection therewith, as follows:

    (1) Has the Bureau of Reclamation acquired the necessary rights in connection with the construction of the weir as directed in paragraph 2 of the Secretary's memorandum of May 3, 1944?

    (2) If not, is there authority to condemn such interest in tribal lands as may be necessary 20 make possible the construction of the weir?

    I have examined such files as have been submitted by the Indian Office, and the files of the Bureau of Reclamation, relating to the negotiations for the right-of-way. It appears that on March 18, 1944, S. A. McWilliams, the Construction Engineer at the Parker Dam Power Project, wrote to the Colorado River Tribal Council requesting that "permission be granted" to the Bureau of Reclamation to erect and maintain a cable-way tail-tower on either or both of Lots 1 and 2 of Section 35, Township 5 North, Range 22 West, Gila and Salt River Base & Meridian, together with a right of ingress and egress over other tribal lands from established highways to the location of the tail-tower. To this letter the Tribal Council replied on March 25, 1944, informing Mr. McWilliams that it had adopted a resolution to the effect that his request would be held in abeyance until such time as the Indian Service engineers could determine whether the construction of the weir would be detrimental to the reservation lands. However, the file also contains the minutes of a meeting of the Tribal Council on May 31, 1944, at which E. W. Ryland, an engineer at the Parker Dam discussed the construction of the weir further with the Council, and requested the grant of the necessary rights. The minutes of the meeting record that--

    "After much discussion the Council agreed to the right of way and a letter was sent to Mr. McWilliams of Parker Dam advising him that the Council had agreed to grant the United States Bureau of Reclamation permission to erect and maintain a Palo Verde Valley Intake and an access highway to reach this point. The Council set a rate of $5.00 per acre per annum for all land used in the necessary access highway after its departure from the established trail which generally parallels the telephone line and for the land contained in Lots 1 and 2 of Section 35, Township 5 North, Range 22 West. A formal permit to be drawn after acreage had been determined by the Reclamation Service, same to terminate six months after the war is over."

    "This letter is in the nature of a reply to

your letter addressed to this Tribal Council under date of March 18, 1944, in which letter you requested permission from the Colorado River Tribal Council for the United States Bureau of Reclamation to erect and maintain a cableway tail-tower on the Arizona side of the river opposite the Palo Verde Valley Intake and an access highway to reach this point.

    "Your request, as you know, was held in abeyance pending information from the Indian Office. This information was received here May 29.

    "After reading the Secretary of the Interior's Memorandum of May 3 and conferring with your Mr. Ryland today, the Council in special session today has agreed to grant you the permission you request at the rate of $5.00 per acre per annum for all land used in the necessary access highway after its departure from the established trail which generally parallels the telephone line and for the land contained in Lots 1 and 2 of Section 35, Township 5 North, Range 22 West.

    "After the acreage has been determined by you a formal permit will be drawn to terminate six months after the war is over."

    In the same letter of November 14 it is also intimated that the Bureau of Reclamation submitted a form of permit eliminating the provision limiting the terms of the permit to the duration of the war and six months thereafter. I find it difficult, however, to believe that this was done in view of the Secretary's instruction in his memorandum of May 3, which specified "the period of said permit to extend from the date of execution to six months after the termination of the present war." Moreover, it is suggested by some documents in the files of the Bureau of Reclamation that the statement in the letter of November 14 is based upon a misunderstanding of some objection made in a memorandum dated October 23 from District Counsel Coffey to the Regional Director of the Bureau of Reclamation at Boulder City to a form of permit submitted by the Tribal Council, which apparently contained two articles relating to the term of the permit, one of which the District Counsel thought to be redundant. However, the revised permit attached to his memorandum does not show that the language limiting the permit to the duration of the war and six months thereafter was eliminated. Under these circumstances, there is no reason to think that the Bureau of Reclamation had withdrawn from whatever arrangement had originally been made.

    The formal permit contemplated in the Tribal Council's motion and letter of May 31, 1944, has not been executed because the Indians have insisted upon the insertion of a clause therein requiring the Bureau of Reclamation to assume liability for any damages to reservation lands, and providing for the removal of the weir upon termination of the war. The Bureau of Reclamation refused to sign any permit containing such a clause, taking the position that it could not do so without express legislative authority. The Tribal Council is now taking the position that continued occupancy of the reservation site by the Bureau of Reclamation will be construed by it as an acceptance of the permit in the form desired by it but it is hardly necessary to say that such a result could not be accomplished by the unilateral action of the Tribal Council.

    Whether as a result of the negotiations, the Bureau of Reclamation has acquired whatever rights are necessary to proceed with the construction of the weir must in turn depend upon the answer to the question whether the contract which it has made with the Tribal Council is so definite and certain that equity would grant specific performance thereof. The general test of certainty is the absence of reasonable doubt as to the intention of
 

the parties. See Amer. Juris. vol. 49, SW. 22 of title "Specific Performance," and cases there cited. While the Tribal Council may not be subject to suit, the Bureau of Reclamation has entered upon and taken possession of the necessary lands, and therefore no decree of specific performance is required. If any action is taken, it would have to be initiated by the Tribal Council.

    The terms of the agreement between the Tribal Council and the Bureau of Reclamation are unquestionably definite and certain with respect to its duration, the description of the premises, and the consideration. The term would run from the date the Bureau of Reclamation. took possession of the premises to six months after the termination of the war. The premises to be covered by the agreement were not precisely fixed in either the request of the Bureau of Reclamation nor in the Tribal Council's motion of May 31, 1944, but it was left to the Bureau of Reclamation to determine unilaterally the extent of the acreage that would be needed. The Bureau has determined the premises to be occupied by taking possession of them, and by describing them formally in the permit subsequently submitted to the Tribal Council. It has been said that "the fact that some of the terms of a contract are left to future determination does not preclude specific enforcement of the contract upon the ground of indefiniteness or uncertainty, where the contract itself provides the method of means by which such uncertain terms may be made certain . . ." Amer. Juris. vol. 49, sec. 24 of title "Specific Performance," and cases there cited. The consideration provided in the agreement is $5 per acre per annum for all land used, whether for the access highway, or the lots 1 and 2 of Section 35, Township 5 North, Range 22 West.

    It is true that the motion adopted by the Council contemplated and stated that "a formal permit" was to be drawn after the acreage had been determined by the Reclamation Service. But the mere provision for the execution of a formal agreement does not imply that a present agreement has not already been reached informally, especially where as here one of the parties to the agreement has acted upon it. Thus it has been held that the provision for the execution of a lease in the future does not necessarily show that a mere contract for a future lease is intended, since such language may be inserted merely to secure the execution of a more formal instrument. See Tiffany, H. I.: Law of Real Property, 3d ed. 1939, section 84, and cases there cited.

    While considerable confusion is revealed by the papers with reference to the nature of the interest which the Tribal Council intended to grant, and the Bureau of Reclamation to acquire, it is reasonably certain that this interest was either an easement or irrevocable license for the period of the war emergency. That it was the intention to secure merely a revocable license is ruled out by the fact that the agreement was for a definite term and for a valuable consideration, and contemplated the use of the land for specific purposes.

    I must consider also, however, whether the agreement is invalidated by any provision of the tribal constitution and bylaws. Article IX, section 2 of the bylaws requires that "final decisions of the Council on matters of temporary interest" shall be embodied in resolutions. The Tribal Council here acted by motion rather than resolution. A motion has been held to be, however, equivalent to a resolution, and to satisfy the requirement of the adoption of a resolution. City of Spokane v. Ridpath, 132 Pac. 638 (Wash.); Monroe v. Pearson, 157 N.W. 849 (Iowa); State v. Summers, 144 N.W. 730 (S.D.). However, Article VI, section 1, subdivision (c), provides that "no tribal lands shall ever be encumbered or sold, or leased for a period exceeding five years . . .," and an easement would appear to be an "encumbrance." Brownback v. Spangler, 139 Atl. 524, 525 (N.J.); Lavey v. Graessie, 224 N.W. 436, 437 (Mich.); Thackeray v. Knight, 192 Pac. 263, 265 (Utah); Shaw v. Morrison, 14 S.W. (2d) 953, 955 (Tex.); Moore v. Clarke, 289 Pac. 520, 523 (Wash.) Huyck v. Andrews, 20 N.E. 581, 582 (N.Y.); Cohen v. Shapiro, 147 Atl. 838, 839 (Pa.); Knotzer v. Clark, 174 Pac. 657, 658 (Cal.); Mitchell v. Warner, 5 Conn. 497, 527. Since the easement will subsist until six months after the termination of the war, which means the legal termination of the war, it may have been granted for a period longer than that permitted by the tribal constitution. On the other hand, this is only a possibility and should not affect the present validity of the easements.

    Since I must thus conclude that the Bureau of Reclamation has acquired valid easements across tribal lands for a period not to exceed five years, there is no need to consider the second question, which is whether condemnation proceedings may be maintained. In conclusion, however, I should point out that the grant by the Indians of the rights necessary to permit the construction of the weir was not a waiver by them of any claim for compensation which they may have by reason of incidental damage to reservation lands which may result from the permission granted. If the Bureau of Reclamation is without authority under existing law to contract with the Indians for payment of just compensation, or for the construction of works which might prevent such damage, the necessary legislative authority ought to be obtained. It is my understanding that the intention to secure such leg-
 

islation was expressed at the conference of December 8, 1944.

                                                                                                                                                FELIX S. COHEN,

M-34030                                                                                                                                                        April 3, 1945.

There is no legal requirement that a deduction for a proportionate share of operating costs be made from the travel allowance of an employee using a Government automobile on official business because he is accompanied by an unofficial passenger. Section 13 (a), Subsistence Expense Act of 1926 (44 Stat. 688), 5 Comp. Gen. 289, 290 (1943).

HARPER, Solicitor:

Memorandum for the Under Secretary:

    Reference is made to the attached memorandum to you of February 22 from Paul L. Fickinger, signing for the Commissioner of Indian Affairs, in answer to your memorandum of January 5, and to the attached draft of a letter which he proposes be sent to the Comptroller General, with respect to the necessity for deducting from a travel expense voucher of Charles L. Leech, an employee of the Bureau, a part of the expense of operating a Government-owned automobile used by Mr. Leech for travel purposes because he was accompanied on his official travel by his wife.

    It is my opinion that there is no legal requirement that the deduction be made, and that since the letter to the Comptroller General accordingly will accomplish no useful purpose, it should not go forward. The question involved is one of administrative policy and procedure rather than of law or accounting.

    As pointed out in your memorandum of January 5, there is no provision in the Standardized Government Travel Regulations, issued pursuant to the provisions of the Subsistence Expense Act of 1926 (44 Stat. 688, 5 U.S.C. sec. 821, et seq., as amended, and no other provision of law has been discovered, which now requires that a proportionate deduction be made from the travel allowance of an employee using a Government automobile because he is accompanied by an unofficial passenger.

    The position taken by the Bureau of Indian Affairs that a proportionate deduction should be made appears to result from past administrative practice, the necessity for which no longer exists. On February 16, 1938, E. J. Armstrong, signing for the Commissioner of Indian Affairs, issued Circular No. 3233, titled "Use of Government Property" to all officers and employees of the Bureau having custody of Government property. In commenting upon the use of Government property for unofficial purposes, the circular called attention to the now familiar provision which appeared in the Post Office Department Appropriation Act, 1938 (act of May 14, 1937, 50 Stat. 137, Title II, Section 3 (b)), prohibiting the expenditure of appropriated funds for the maintenance, operation, or repair of any Government-owned, passenger-carrying vehicle not used exclusively for official purposes. Circular No. 3233 then provided, in paragraph 7, that "When unofficial travelers accompany an employee on a trip, . . .whether in a personal or Government car, proportionate deductions must be made from the expense of operation (this does not apply to mileage allowance) for such travelers. . . . Information as to number . . . of passengers should appear on the travel voucher covering reimbursement for expenses of operation and proper deductions should be made pursuant to 5 Comp. Gen. 110 and other decisions by the Comptroller General."

    In 5 Comp. Gen. 110 (1925), Comptroller General McCarl held as proper the deduction from the travel allowance of a Government employee of one-half the cost of gasoline and oil used by him for an official automobile trip on which he was accompanied by his wife. That ruling which appears to have formed the basis upon which Circular No. 3233 required partial deductions was made prior to the issuance of the Standardized Government Travel Regulations. Section 13 (a) of the Regulations, as first promulgated, provided that "If the accommodations [on trains and steamers] are shared by the traveler, the fact should be stated in the expense account and he may be reimbursed only the proportionate share of the costs. See par. 13 (d), 95." By an amendment of the Regulations, effective November 15, 1942 (see Bureau of the Budget Circular No. 401, dated October 8, 1942), however, the quoted sentence was eliminated, thus effecting a repeal of the provision requiring proportionate deduction. In ruling that this requirement was no longer in force, Comptroller General Warren, on October 20, 1943, stated:

    ". . . the omission from the amended regulation here involved properly may be construed to mean that the full amount of the charge for a berth may be allowed a Government employee traveling on official business, notwithstanding the fact that a member of his

family may have shared the berth. The rule stated in the decision of January 30, 1928, 7 Comp. Gen. 450, and in other decisions which required a division of the cost of a berth under such circumstances is, by virtue of the amended regulation here involved, no longer in effect." 23 Comp. Gen. 289, 290.

    The questioned voucher of Mr. Leech covers travel performed in October 1944, after the above-noted amendment of the Travel Regulations. Any action looking toward a deduction, therefore, must necessarily be based upon an administrative determination that such a procedure is desirable for some reason, rather than upon a requirement of law. In the absence of a Department-wide requirement that deductions from travel allowances be made in such circumstances, I question the wisdom of such a procedure with respect to employees of a particular bureau. In any event, if Circular No. 3233 is to be invoked by the Bureau of Indian Affairs as authority for making such deductions, it would seem advisable that it be immediately amended to reflect correctly the present state of the law and to clarify the fact of the administrative nature of the requirement.

    In view of the foregoing, it is my recommendation that the letter to the Comptroller General not go forward.

                                                                                                                                                      FOWLER HARPER,

 Memorandum for the Secretary:

    Analysis of the opinions of the Supreme Court in the case of Northwestern Bands of Shoshone Indians, Petitioners v. United States, decided March 12, indicates that-quite apart from the merits of the actual decision, which was that the Northwestern Shoshone jurisdictional act of February 28, 1929 (45 Stat. 1407), does not permit suit on the land claims of the Northwestern Shoshone Indians,-opinions expressed by the various Justices on four matters which had not been argued in the case and were not essential to the decision appear to involve some misunderstanding of the past activity of this Department and are likely to result in considerable confusion in its future activity within the field of Indian administration. These four matters are: (1) The "taking" of Indian lands; (2) the extent of Indian claims; (3) the character of Indian occupancy; and (4) the nature of Federal obligations in the absence of treaty provisions. I offer the following brief comments on these points:

    1. The "taking" of Indian Lands. The question of when or whether a "taking" of the Northwestern Shoshone lands occurred was not properly before either court, since the Court of Claims held that no acknowledged title ever existed, and there could therefore be no occasion to determine whether or when any such title was extinguished. The question was not argued: it was "not yet in the record" (Pet. Br., p. 16); it was "inconsequential" (Resp. Br., p. 27). Yet relying apparently upon an allegation in the complaint not supported by any proof, the opinion of Mr. Justice Reed and that of Mr. Justice Jackson both assume that whatever aboriginal title these Indians may have held was long ago extinguished. The opinion of Mr. Justice Jack son suggests that such a taking occurred at a time so remote that all the Indians from whom the land was taken and all .the whites who participated in the taking have by now gone to "the Happy Hunting Ground." (p. 15.) Yet the only specific takings shown by the record involve the establishment of certain national forests on and after November 5, 1906. There are general intimations, not supported by any specific evidence, that portions of the area in question have been homesteaded or otherwise disposed of by the Federal Government, but this Department cannot shut its eyes to the fact that a large, perhaps the larger, portion of this area has never been homesteaded or otherwise disposed of. It would thus appear that any "taking" of Indian aboriginal possessions in this case is not an ancient wrong, as assumed by the Court, but may very well be rather a continuing wrong.¹ Congress, this Department, and the interested States sought through this litigation to put in repose land titles in the area covered by this outstanding claim. The prevailing opinions of the court appear not only to preclude such settlement of titles as was contemplated but actually to further unsettle and confuse

_____________
   ¹ See United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 348-355; 34 Op. Atty. Gen. 171 (1924).
 

the legal status of these lands by an inaccurate statement of their history. If the question of whether or when a "taking" occurred is irrelevant to the decision, it is submitted that the expressions of the Court thereon are unwarranted; if the question is relevant, opportunity should be given to argue it.

    2. The Extent of Indian Claims. Since it found no valid claim under the jurisdictional act, the Court of Claims did not examine the extent or value of the Indian land claims. (R. 64, 66, 72, Resp. Br., pp. 14-17.) The only issue considered was whether or not there could be any recovery at all under the jurisdictional act for a taking of land. Nevertheless the prevailing opinion of Mr. Justice Reed appears to present the issue as one whether or not the petitioners shall "recover from the United States damages estimated at $15,000,000 for the taking of some 15,000,000 acres of the lands held by these Indians by aboriginal or immemorial title." (p. 1) The opinions of Mr. Justice Reed and Mr. Justice Jackson strongly suggest the unreasonableness of such a claim presented on behalf of a small number of Indians. But the record of the case, and the records available to this Department, indicate that the area exclusively occupied by these Indians may have been considerably less than the stated acreage,-the only land specifically described in the Northwestern Shoshone Treaty is the area between the Raft River and the Portneuf Mountains, which amounts to 4,200,000 acres (R. 98), and further indicate that the value of this land, much of which brings an annual income of about one cent an acre today, may be considerably less than $1 an acre. The suggested amount at stake further fails to take account of applicable offsets for sums expended on behalf of the petitioner Indians over a period of 80 years. In the light of these circumstances, the Court's reference to the $15,000,000 claimed in the complaint and its emphasis on the financial aspects of the case strongly suggest that these Indians may have been denied their day in court because the attorneys who drafted their complaint resolved all doubts as to areas and values in favor of their clients. If the question of the extent and value of Indian title is irrelevant to the decision, it is submitted that the expressions of the Court on the extent and value of that title are unwarranted, prejudicial to the claims of other persons, Indian and non-Indian, and unjust to the Federal Government, which stands indicted for a moral wrong of vast proportions that no evidence supports; if the question is relevant to the decision in the case, is is submitted that opportunity should be given to argue it and to present evidence thereon.

    3. The Character of Indian Occupancy. The Court of Claims did not consider that any issue was presented as to the attitude of the Shoshone Indians cowards the land they occupied or the character of the use they made of it. The opinion of Mr. Justice Reed intimates, however, and that of Mr. Justice Jackson expressly declares, that the petitioner Indians "had no sense of property in land" and that "the Indians did not have a word for it [the property concept]." This conclusion is opposed not only to the great weight of modem anthropological evidence, but also to the sustained practice of the Federal Government for more than a century in dealing with the Indian tribes. It is worthy of note that of the various tribes whose aboriginal holdings surrounded the holdings of the Shoshone, namely, the Klamath,² the Confederated Tribes of Middle Oregon,³ the Walla Walla, Cayuse and Umatilla,⁴ the Nez Perce,⁵ the Plathead,⁶ the Crow,⁷ the Sioux, Northern Cheyenne and Arapahoe,⁸ the Arapahoe and the Cheyenne,⁹ the Ute¹⁰ and the Paiute, all but the last named (where the record of informal agreement is obscure) entered into valid treaties with the United States expressly setting forth boundary lines which conform with the boundary lines of the Shoshone claims. Among the Shoshone themselves other bands entered into treaties of a type which the Supreme Court has characterized as "treaties . . . for delimitation of their occupancy rights or for the settlement or adjustment of their boundaries." ¹¹ The honor of this Department and of the United States will be seriously compromised if this decision is read as requiring the Federal Government to construe away obligations to native peoples on the basis of an assumption (not based on proof, argument, or apparent research) that the people in question lacked words in its language to describe precisely some obligation assumed by the United States. Moreover, the assumption that the petitioner Indians made a less intensive, or less permanent, use of their country than do the stockmen who now use most of it for 6-month seasonal grazing, finds no support in the record. It is an interesting question whether the number of white men who today make their living in the country that Pocatello claimed for his band in 1863 is greater or

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   ² Treaty of October 14, 1864 (16 Stat. 707).