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of a body of navigable water are as important to the public as the commercial. Thus, while through commercial traffic would in any event have to be allowed to pass through the Indian area of the reservoir, mere pleasure boating, which was confined to the Indian area of the reservoir, could be prohibited 

    All these factors may be considered by the Secretary in the exercise of his judgment and discretion. The problem involved here is primarily administrative, and the Secretary's discretion is limited only by his duty to maintain the paramount character of the Indians' rights of use.

    (c) The Power of the Indians to License their Rights.

    In view of the conclusion that the rights of the Indians to use the reservoir for hunting, fishing and boating are not necessarily exclusive, it would seem unnecessary at this time to decide the question whether these rights are merely personal, so that the general public may not be licensed by the Indians to enjoy them. No practical problem of licensing by the Indians would probably arise with respect to these activities unless the Secretary should make them exclusive rights, and unless the Indians should then wish to license their use by others. The resulting legal problem is as difficult as it is hypothetical, and I prefer not to resolve an issue which may never arise.

    (d) The Authority to Impose License fees.

    The question whether the Secretary may require the Indians to pay license fees in connection with their hunting, fishing and boating activities in the areas set aside for them must clearly be answered in the negative. A somewhat similar problem was presented in Tulee v. Washington, 315 U.S. 681, with respect to the treaty rights of the Yakima Indians to fish at their "usual and accustomed places" on ceded lands without paying license fees to the State of Washington. The Court held that the State could not burden the treaty right by imposing license fees. It is true that this ruling is not precisely in point here. No treaty right is involved, and the question presented is one of Federal rather than State regulation. Nevertheless the liberal approach of the Supreme Court to the problem is not without significance here. Further more, the Court expressly pointed out⁵⁶ that "the imposition of license fee is not indispensable to the effectiveness of a state conservation program." The same would seem to be true of a Federal conservation program. But all room for doubt is removed by the provision of the act itself. After making the grant of the rights, the act expressly provides that they "shall be subject only to such reasonable regulations as the Secretary may prescribe for the protection and conservation of fish and wildlife." (Italics supplied.) The Secretary may not charge the Indians a fee for hunting and fishing privileges because it would be unnecessary to an effective conservation program, and he may not charge the Indians a fee for boating because such an exaction would not be within the restricted power given to him under the act.

    4. The Administration of the Reservoir Area.

    No less than four agencies of the Department are interested in one way or another in the administration of the Columbia River Reservoir. These agencies are the Bureau of Reclamation, the Bureau of Indian Affairs, the National Park Service, and the Fish and Wildlife Service. At present the reservoir area as a whole is being administered by the National Park Service under a temporary arrangement. The Indian Service requests that it be entrusted with the administration of whatever areas are set apart for the Indians.

    The problem of administrative jurisdiction presents for consideration only a question of policy. If the applicable legislation expressly vested a particular function in relation to the reservoir area in one rather than another of the interested bureaus, some question might conceivably be raised as to the propriety of relieving it altogether of any connection with the discharge of such function. But it is obvious that each one of the interested agencies may have some function to perform in relation to the reservoir area. On the other hand, the administration of the Columbia Basin Project is vested in the Secretary, and it is the Secretary who is directed to set aside a part of the Columbia River Reservoir for the benefit of the Colville and Spokane Indians. The Secretary also has a general power of selection among the interested agencies by virtue of section 161 of the Revised Statutes (now 5 U.S.C. sec. 22), which provides that "the head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business . . ."

    5. The Question of Constitutionality. 

    The act makes the use of the reservoir by the Indians subject to "such reasonable regulations as the Secretary may prescribe for the protection and conservation of fish and wildlife." On April 6, 1940, while the legislation was under consideration, the Acting Commissioner of the Bureau of Fisheries addressed a memorandum to the Assistant Chief

_______________

    ⁵⁶At page 685.
 

Counsel of the Bureau of Reclamation which suggested that the proposed plan of Federal regulation might present a constitutional question. Strangely enough, it does not appear that this question was further explored prior to the passage of the act. However, in his memorandum of July 4, 1944, to the Solicitor, the Assistant Chief Counsel of the Bureau of Reclamation again raised the question of constitutionality, referring to the decision in Mason Co. v. Tax Commission, 302 US. 186, which involved merely the question whether the State of Washington could levy an occupation tax on a private contractor on the Grand Coulee Dam whose activities were carried on at Mason City on land ceded by the State of Washington to the Federal Government, as to which the Court held there had been no cession of exclusive jurisdiction. Moreover, there was in this case no act of Congress which expressly conferred a power of: regulation upon an officer of the Federal Government.

    Article IV, section 3, of the Federal Constitution, confers upon Congress the power to "make all needful rules and regulations respecting the territory or other property belonging to the United States." The title to the shorelands is undoubtedly in the United States in fee simple absolute. While the United States has no property interest in the waters of the reservoir, and the title to the river bed is rather complicated,⁵⁷ the property interest of the United States would seem to be sufficiently broad to justify Federal regulation. While normally State conservation laws would govern even on Federal property, there is no doubt that Congress could override them if it had reasonable basis for supposing that such a step was necessary. See Hunt v. United States, 278 U.S. 96.

    While the power to preserve fish and game is inherent in the sovereignty of a State, it is nevertheless subject to any valid exercise of authority under the Federal Constitution. New York ex rel. Kennedy v. Becker, 241 U.S. 556, 562. Among the powers of Congress is the control of the navigable waters of the United States. Although the authority of a State to regulate fishing in navigable waters of the United States within its territory was recognized at an early date, in Manchester v. Massachusetts, 139 U.S. 240, the Court declared that such regulation would be valid only "in the absence of any regulation by the United States." (p. 265) The provision of the act of June 29, 1940, obviously constitutes such regulation. Congress in carrying out its plan for the improvement of navigation on the Columbia River could validly proceed upon the assumption that the control of hunting and fishing on the reservoir required Federal regulation in whole or in part, either because such a measure was desirable in itself or because it was deemed a desirable factor in providing compensation to the Indians. It was once argued that the constitutional power of the United States over its waters was limited to control for navigation. But this narrow view was emphatically rejected in United States v. Appalachian Power Co., 311 U.S. 377, 423, et seq., in which the Court recognized that "`the authority of the United States is the regulation of commerce on its waters," and also declared: "It is no objection to the terms and to the exertion of the power that 'its exercise is at tended by the same incidents which attend the exercise of the policy power of the states.' "

    Finally, there is the plenary power of Congress over Indians and Indian affairs, which has been recognized by a long line of decisions since United States v. Kagama, 118 U.S. 375.⁵⁸ Indeed in United States v. McGowan, 302 U.S. 535, 538, the Supreme Court declared: "Congress alone has the right to determine the manner in which this country's guardianship over the Indians shall be carried out."⁵⁹ While the Federal regulation of Indian hunting and fishing in the reservoir may extend to areas as to which the Indian title has been extinguished,⁶⁰ the plenary power of Congress over Indians does not necessarily depend upon title. United States v. Thomas, 151 U.S. 577. The power of Congress to regulate the liquor traffic with Indians on lands ceded by them has been uniformly upheld, despite the fact that the Indian title has been extinguished. While in United States v. Forty three Gallons of Whiskey, 93 U.S. 188, and in Dick v. United States, 208 U.S. 340, the power to regulate such traffic was based upon the authority

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    ⁵⁷As already indicated, the complexities arising from this state of the title could be avoided by locating the Indian areas of the reservoir within the exterior boundaries of the reservations.
    ⁵⁸See Board of Com'rs. v. Seber, 318 US. 705, 716, footnote 18, in which the earlier cases are collected.
    ⁵⁹Compare the early declaration in Lone Wolf V. Hitchcock, 187 U.S. 553, 565: "Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government."
    ⁶⁰Even if it were assumed that the Indian titles to the shorelands and the river bed have both been extinguished, it would not necessarily follow that the effect was to redefine the reservation boundaries and thus to exclude the acquired lands. In United States v. Celestine, 215 U.S. 278, the Court declared in general terms that when land is fee patented it still remains within the limits of the reservation. If this is so, it is difficult to see why acquisition of title by the United States should ipso facto terminate the reservation, especially since the Indians still have a limited number of special rights in the areas in question. A reservation is not a grant and has nothing to do with title. Alaska Pacific Fisheries v. United States, 243 U.S. 78, 86.
 

of Congress to regulate commerce with the Indian tribes, in Perrin v. United States, 232 U.S. 478, 482, the Court declared that the power was also derived "in part from the recognized relation of tribal Indians to the Federal Government." Similarly the jurisdiction of the Federal courts under section 548 of title 18, United States Code, to punish the so-called major crimes when committed by Indians on fee patented lands has been upheld.⁶¹ In United States v. Ramsey, 271 U.S. 467, 471, the Court declared in general terms that "Congress possesses the broad power of legislating for the protection of the Indians wherever they may be within the territory of the United States."

    There is implicit in the doubts expressed concerning the constitutionality of the act the idea that the question ought to be avoided by conforming the regulations issued under the authority of the act to the provisions of State law. Upon the question whether such a course ought to be adopted on independent grounds of policy as the best practical measure I need express no opinion. It is plain, however, that such a course need not be adopted because of the supposed desirability of avoiding constitutional doubts, which have no substantial basis. I see no reason to doubt the amplitude of the constitutional power of Congress in providing for Federal regulation of the Indian reservoir areas.

                                                                                                                    WARNER W. GARDNER,
                                                                                                                                                    Solicitor.

JUDICIAL AND DEPARTMENTAL
CONSTRUCTION OF THE WORDS
"INDIAN RESERVATION"

                                                                                                                                    December 29, 1945.
Mr. K. S. Haskell,
406 Senate Office Building,
Washington, D.C.
 

MY DEAR MR. HASKELL :

    This will refer to your informal request concerning the judicial and departmental construction which has been placed on the words "Indian reservation."

    As a result of the limited research which I have been able to do on the subject, I find that the courts have not laid down a general definition of the term. They have more often been concerned with whether particular land was an "Indian reservation" or "Indian country" within the meaning of certain criminal statutes, or whether certain Indians had title to or a compensable interest in land rather than in the question of what was an Indian reservation. The discussion of Indian reservation has been incidental to the other phases of the cases presented for consideration. The courts have usually been concerned with the manner in which Indian reservations have been established or recognized. Thus, in the case of Minnesota v. Hitchcock, 185 U.S. 373, 389 (1901), the Court said:

    ". . . The mere calling of the tract a reservation instead of unceded Indian lands did not change the title. It was simply a convenient way of designating the tract.
    "Yet if it was necessary to determine the question we should have little doubt that this was a reservation within the accepted meaning of the term. Prior to the treaty of October 2, 1863, the boundaries of the lands occupied by the Chippewa Indians had been defined by sundry treaties, and by that treaty a large portion of the lands thus occupied were ceded by the Indians; that is, the Indians ceded to the United States all their interest and right of possession. While there was no formal action in respect to the remaining tract, the effect was to leave the Indians in a distinct tract reserved for their occupation, and in the same act this tract was spoken of as a reservation. Now, in order to create a reservation it is not necessary that there should be a formal cession or a formal act setting apart a particular tract. It is enough that from what has been done there results a certain defined tract appropriated to certain purposes. Here the Indian occupation was confined by the treaty to a certain specified tract. That became, in effect, an Indian reservation. Spaulding v. Chandler, 160 U.S. 395, is in point. There, as here, was presented the question of the origin of a reservation, and in respect thereto it was said (pp. 403, 404) :
    " 'It is not necessary to determine how the reservation of the particular tract, subsequently known as the "Indian reserve," came to be made. It is clearly inferable from the evidence contained in the record that at the time of the making of the treaty of June 16, 1820, the Chippewa tribe of Indians were in the

________________

    ⁶¹See Eugene Sol Louie v. United States, 274 Fed. 47 (C.C.A. 9th) : State v. Johnson, 249 N.W. 284 (Wis.). There are dicta pro and con in United States v. Kiya, 126 Fed. 879 (D.C.N.D.); Ex parte Tilden, 218 Fed. 920 (D.C. Idaho); State v. Big Sheep, 243 Pat, 1067 (Mont.); State v. Columbia George, 65 Pac. 604 (Ore.); United States v. Gardner, 189 Fed. 690 (D.C.E.D.Wis.); People v. Pratt, 80 P. (2d) 87 (D.C.A. Cal.) Quagon v. Riddle, 5 F. (2d) 608 (C.C.A. 8th). The disagreement in the authorities is based upon the language of' the statute rather than upon constitutional considerations.

 

actual occupation and use of this Indian reserve as an encampment for the pursuit of fishing. . . . But whether the Indians simply continued to encamp where they had been accustomed to prior to making the treaty of 1820, whether a selection of the tract, afterwards known as the Indian reserve, was made by the Indians subsequent to the making of the treaty and acquiesced in by the United States Government, or whether the selection was made by the Government and acquiesced in by the Indians, is immaterial. . . If the reservation was free from objection by the Government, it was as effectual as though the particular tract to be used was specifically designated by boundaries in the treaty itself. The reservation thus created stood precisely in the same category as other Indian reservations, whether established for general or limited uses, and whether made by the direct authority of Congress in the ratification of a treaty or in directly through the medium of a duly authorized executive officer.' "

    Your attention is also called to the following cases decided by the Supreme Court in which the status of lands occupied by the Indians is discussed: United States v. Celestine, 215 U.S. 278 (1909); Donnelly v. United States, 228 U.S. 243 (1912); United States v. Sandoval, 231 U.S. 28 (1913); United States v. Pelican, 232 U.S. 442 (1914); United States v. McGowan, 302 U.S. 535 (1938); Sioux Tribe of Indians v. United States, 316 U.S. 317 (1941); and United States v. Oklahoma Gas & Electric Co., 318 U.S. 206 (1943).

    I do not find that the Department has ever attempted to make a general definition of the term. Like the courts, it has construed the words "Indian country" in relation to the criminal statutes. It has also construed the prohibition contained in the acts of May 25, 1918 (40 Stat. 570, 25 U.S.C. sec. 211), and March 3, 1927 (44 Stat. 1347, 25 U.S.C sec. 398d), against the creation of Indian reservations without statutory authority. Copies of two of these opinions are attached for your information.

    If I can be of further assistance to you in this matter, please feel free to call upon me.

                                                                                                                    WARNER W. GARDNER,
                                                                                                                                                    Solicitor.

ACQUISITION OF LANDS BY AN INDIAN
TRIBE BY ADVERSE POSSESSION

M-34330                                                                                                                           January 3, 1946.

Although statutes of limitation do not run against the United States as the sovereign, the United States may avail itself of the limitation statutes as a valid defense in an action brought against it. 

The United States and its instrumentalities, including Indian tribes, may perfect valid title by adverse possession.

In California owners of adjacent tracts are bound by a common fence line long acquiesced in and treated as a common boundary.

Long and continued occupancy of land by an Indian tribe within a recognized boundary vests valid title in the United States in trust for the tribe, regardless of the results of any resurvey of the area.

Memorandum for the Commissioner of Indian Affairs:

    You have requested my opinion concerning the status of the title to certain land on the western boundary of the Laguna Mission Indian Reservation in California. The lands in question are a part of the SE 1/4 SE1/4 Sec. 29 and the NE 1/4 NE 1/4 Sec. 32, T. 14 S., R. 5 E., S.B.M.

    In accordance with the provisions of the act of January 12, 1891 (26 Stat. 712), the Mission Commission, better known as the Smiley Commission, selected for allotment to the Laguna Indians the S 1/2 Sec. 28, NW 1/4 and N 1/2 SW 1/4, Sec. 33, T. 14 S., R. 5 E., S.B.M. Trust patents were issued to the Laguna Indians in 1893 and in 1911. These lands are adjacent to Secs. 29 and 32.

    On May 19, 1893, a selection and application for a patent to the SE 1/4 SE 1/4 Sec. 29 and the NE 1/4 NE 1/4 Sec. 32, T. 14 S., R. 5 E., S.B.M. were filed in the United States Land Office at Los Angeles by the State of California on the basis of a deficit in section 36 lands. The application was accepted on December 29, 1893, and on November 20, 1896, the lands were included in clear list No. 21. The list was certified to the State on December 4, 1896, which was tantamount to the issuance of a patent. In 1891 one Eli A. Harper filed an application with the State of California for a patent to the lands and a certificate of purchase was issued to him by the State in 1894. According to the records, the Laguna Indians were then occupying and using all of the above-described lands and had been in possession thereof since about the year 1856. By order dated February 28, 1895, the Secretary withdrew the SE 1/4 SE1/4 Sec. 29 and the NE 1/4 NE 1/4 Sec. 32 from all forms of entry. During the year 1895 Harper furnished the wire and posts and the Indians furnished the labor, and a fence was constructed, known as the Harper Fence, which has been maintained to this day. The Laguna Indians were using and actually occupying the land within the enclosure when the State filed its application for a

 

patent in 1893, and when Harper filed his application for a patent from the State in 1891, and the Indians have been occupying and using the land continuously since the fence was erected in 1895. At the present time the Indians maintain an Indian cemetery, a corral, and a water tank on the land in question and derive their water supply from springs located thereon.

    By mesne conveyances Charles Luckman holds the record title to the SE 1/4 SE 1/4 Sec. 29 and the NE 1/4 NE 1/4 Sec. 32. Patent therefore was issued by the State of California in the name of Eli A. Harper on July 1, 1941. Luckman now claims that the Harper Fence is located some 400 feet to the west of the corners common to Sec. 28, 33, 29 and 32, according to the original survey, and that therefore the true west boundary of the Laguna Mission Indian Reservation is some 400 feet east of the fence.

    Section 325 of the Code of Civil Procedure of California (Deering 1941) provides that persons who have cultivated or improved land protected by a substantial enclosure for 5 years continuously have established title by adverse possession. The land within the enclosure is now used and occupied by the Laguna Indians, as it has been for 50 years. Although statutes of limitation do not run against the United States as the sovereign, the United States may avail itself of limitation statutes as a defense in any action brought against it. Stanley v. Schualby, 147 U.S. 508 (1892). The United States and Indian Tribes may perfect a valid title by adverse possession. Garcia et al. v. United States, 43 F. (2d) 873 (1930). In addition thereto, the law in California is to the effect that owners of adjacent tracts are bound by the erection of a fence and continued recognition of it as the boundary line. Columbet v. Pacheco, 48 Calif. 395 (1874).

    It is my opinion that valid title to the lands within the enclosure is vested in the United States in trust for the Laguna Mission Indians, irrespective of the results of any resurvey.
 

                                                                                                                    WARNER W. GARDNER,
                                                                                                                                                    Solicitor.

AUTHORITY FOR TAKING TITLE IN THE
NAME OF THE U.S. IN TRUST FOR THE
VARIOUS PUEBLO INDIANS
 

M-34262                                                                                                                         January 5, 1946.

The act of June 7, 1924 (43 Stat. 636), did not indicate the manner of taking title. Solicitor's opinion August 7, I929 (52 L.D. 694), ruled that title so acquired should be taken in the name of the pueblo acquiring the land. Subsequent ruling by Acting Solicitor Kirgis dated April 23, 1938, advised that under the act of 1933 titles could be taken at the request of the pueblo by the United States in trust for the pueblos. The soundness of this ruling not questioned in view of seven years' administrative practice there-under and since it gave effect to customary mode of taking title to lands acquired for Indian tribes with funds held in trust for them by the United States and in that respect conforms to the doctrine of substitution of trusts which is of familiar application in Indian administration.

GARDNER, Solicitor:

Memorandum for Theodore H. Haas, Chief Counsel, Office of Indian Affairs:

    Reference is made to your memorandum of October 19 concerning the authority under which title to various tracts of land acquired since 1941 was taken by the United States in trust for the Pueblo of Laguna and the various other pueblos, in view of the Solicitor's opinion of August 7, I929 (52 L.D. 694), which held that title to lands acquired under the act of June 7, 1924 (43 Stat. 636), should be taken in the name of the pueblos.

    The act of June 7, 1924, did not indicate the manner in which title to lands should be taken. The moneys used in effecting such land purchases belonged to the Indians as a result of appropriations made by Congress to compensate them for the lass of lands and water rights, title to which became vested in non-Indians. These moneys were carried in the United States Treasury to the credit of the pueblos entitled thereto. (See sec. 7 of the act of 1924,) The tracts to be purchased and restored to Indian ownership were originally held by the Indians in communal fee simple and the Solicitor held in the opinion of August 7, 1929, that title to such land should be taken in the names of the respective pueblos in order that the lands might be restored to their original status.

    The act of May 31, 1933 (48 Stat. 108), authorized appropriations for the purpose of restoring lands to Indian ownership as provided in the 1924 act and also authorized the Secretary to acquire other lands for the pueblos.

    Acting Solicitor Frederic L. Kirgis, on April 23, 1938, advised Mr. Brophy, however, after consideration of the Solicitor's opinion of August 7, 1929, that under the act of 1933 the governing authorities of the pueblos could authorize the conveyance of title to the United States in trust for the pueblos. He cited the act of 1933 as authority for the taking of title in the United States in trust for the pueblo. Since the lands conveyed to the

pueblos under authority of the acts of 1924 and 1935 are not taxable (M. 27145, August 4, 1932), Mr. Brophy was further advised that the taking of title in the United States in trust for the pueblos would remove any possible controversy over the tax question. Thereafter, in many pueblo land acquisitions, title was taken in the name of the United States in trust for the pueblo. 

    The Acting Solicitor's letter of April 25, 1938, gave effect to the customary mode of taking title to lands acquired for Indian tribes with funds held in trust for them by the United States. The doctrine of substitution of trusts is, moreover, one of familiar application in Indian administration. I see no reason, especially after more than 7 years of practice under the Acting Solicitor's opinion, to question its soundness. Whatever doubts might have been present originally seem to me to have effectually been removed by the actual administrative practice.

    In addition to the statutes relied upon by the Acting Solicitor, your attention is called to section 5 of the Indian Reorganization Act of June 18, 1934, which expressly authorizes the conveyance of lands, acquired under that act for Indian tribes, to the United States in trust. This act is applicable to all of the pueblos in New Mexico with the exception of the Pueblo of Jemez, which voted to reject the provisions of the act. See in this connection Solicitor Harper's memorandum of July 7, 1944, to Assistant Secretary Chapman.

Copies of the Acting Solicitor's letter of April 23, 1938, are enclosed.

                                                                                                           WARNER W. GARDNER, 
                                                                                                                                              Solicitor.

DELEGATION OF AUTHORITY TO PERFORM
CERTAIN FUNCTIONS RELATING TO
ATTORNEY CONTRACTS WITH INDIAN

                                                                                                                                January 22, 1946.

Sections 2103-2106 of the Revised Statutes (tit. 25, sets. 81-84, U.S.C.) provide, among other things, for dual action by the Secretary of the Interior and the Commissioner of Indian Affairs in connection with the approval of contracts between attorneys and Indian tribes and the approval of payments made thereunder. The express language of this legislation, as well as its legislative history, show that it was intended that these provisions be complied with literally, and for this reason the Secretary may not delegate to the Commissioner the functions mentioned which are committed to the Secretary. Similar functions, however, which are committed to the Secretary by section 16 of the act of June 18, 1934 (48 Stat. 984), are merely veto powers given the Secretary under legislation designed to enlarge the scope of tribal responsibility, and these powers may be delegated to the Commissioner by the Secretary if he so desires.

GARDENER, Solicitor:

Memorandum for the Commissioner of Indian Affairs:

    You have requested my views on the question of whether the Secretary may lawfully delegate to you or to the Assistant Commissioner the following functions: (1) The approval of attorney contracts with Indian tribes under sections 2103 to 2106 of the Revised Statutes (tit. 25, secs. 81-84, U.S.C.) and sections 16 of the act of June 18, 1934 (48 Stat. 984); and (2) The approval of payments, such as fees and expenses, under such contracts.

    I am of the opinion that the functions of approving contracts and approving payments thereunder which are committed to the Secretary of the Interior by sections 2103 to 2106, supra, may not be delegated, but that the similar functions which are committed to the Secretary by section 16 of the 1934 act, supra, may be delegated.

    Sections 2103 to 2106 deal with the making and assignments of contracts with Indian tribes relative to their lands or to claims, section 2103 laying down six specific requirements as to the form and the manner of execution of such contracts. So far as pertinent here, those requirements are:

    "S . 2103 . . . "It [the contract] shall be executed before a judge of a court of record, and bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs endorsed upon it.

*     *     *     *     *

    "All contracts or agreements made in violation of this section shall be null and void, and all money or other thing of value paid to any person . . . on account of such services, in excess of the amount approved by the commissioner and secretary for such services, may be recovered by suit in the name of the United States . . ."

Section 2104 provides, in part:

    ". . . no money or thing shall be paid to any person for services under such contract or

agreement, until such person shall have first filed with the Commissioner of Indian Affairs a sworn statement, showing each particular act of service under the contract, giving date and fact in detail, and the Secretary of the Interior and Commissioner of Indian Affairs shall determine therefrom whether, in their judgment, such contract or agreement has been complied with or fulfilled; if so, the same may be paid, and, if not, it shall be paid in proportion to the services rendered under the contract."

    Section 2106 prohibits the assignment of contracts coming within the scope of section 2103 "unless the consent of the Secretary of the Interior and the Commissioner of Indian Affairs to such assignment be also indorsed thereon."

    This legislation was enacted to protect the Indians in their contractual dealings with attorneys and agents, a field in which the Indians were not without sad experience. The Indians had previously been the victims of monstrous and shameful frauds perpetrated by agents and attorneys, and this legislation which drastically curtailed the right to contract was obviously intended as an extreme measure designed to remedy what was regarded as a great evil. That Congress considered the matter one of major importance is well shown by this statement taken from the report of the House Committee on Indian Affairs:

    "This law . . . , if faithfully executed, will prevent in future this godless robbery of those defenseless people that has been so long permitted, to our great and lasting shame, and against their progress." ^l

    It is against this historical background that these sections of the Revised Statutes have always been construed. As early as 1886 the Attorney General held that nothing less than literal compliance with the requirements of the act was essential, and that the Secretary was not empowered to dispense with any of those requirements.² Since that time the courts have uniformly held unenforceable those contracts which failed in any particular to meet the requirements of the act.³ As recently as 1935 the Solicitor held that a contract which extended by its terms for five years and so long thereafter as would be necessary to complete the litigation failed to meet the requirement of section 2103 that such contract "shall have a fixed, limited time to run, which shall be distinctly stated . . ." ⁴

    In view of the history of the legislation and its unambiguous language, it is apparent that those provisions requiring dual action by the Secretary and the Commissioner must be literally followed. It is not the action of the Department that is required but the action of the two officials-the Secretary and the Commissioner. The idea that departmental sanctions of a contract could supplant that required by the express terms of the statute was rejected by the Supreme Court in the following language in Green v. Menominee Tribe: ⁵

    ". . . But manifestly the right to deal did not confer power to deal by making unlawful contracts. And this consideration also answers the proposition so much insisted upon that because the asserted contract was made in the presence of and with the assent of an agent of the Interior Department, therefore the provisions of section 2103 should not be held applicable. We say the prior reasoning is controlling since it cannot be held that the presence of the agent of the Interior Department authorized the doing of that which was expressly prohibited by law. In other words, that an unlawful contract became lawful because of the presence, at its making, of a public officer whose obvious duty it was to see to it that the law was not violated . . ."

    The functions exercised by the Secretary under section 16 of the 1934 act, supra, rest on an entirely different footing. Indian tribes organized under that act may employ legal counsel, "the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior." The purpose of this provision, as heretofore recognized, was to give the tribes a greater degree of responsibility in their dealings with attorneys than they had enjoyed under sections 2103-2106 of the Revised Statutes, with the result that organized tribes may contract with attorneys subject only to the limitations imposed by section 16 of the 1934 act, supra.⁶ The power conferred upon the Secretary by section 16 is merely a veto power over the choice of counsel and the fixing of fees, and I know of no reason why that power may not be delegated in accordance with the principles discussed in my memorandum of August 26, 1943. I conclude, therefore, that the Secretary has legal

____________________

    ¹ Investigation of Indian Frauds. H. Rept. No. 98. 42d Cong.. 3d sess., March 3. 1873.
    ² 18 Op. Atty. Gen. 498.
    ³ E.g., Gwen v . Menominee Tribe, 233 U.S. 558 (1914): Pueblo of Santa Rosa v. Fall, 273 US. 315 (1927) : McMurray v. Choctaw Nation, 62 C. Cls. 458 (1926); cert. denied 275 U.S. 524 (1927).
    ⁴ Op. Sol., I.D., M. 28033, June 4. 1935.
    ⁵ 233 U.S. 558. at p. 570 (1914).
    ⁶ Memo. Sol., I.D., January 23, 1937.

authority, if he desires to use it, to delegate to the Commissioner or Assistant Commissioner the functions mentioned with respect to those tribes organized under section 16 of the 1934 act, supra. Any order prepared for the purpose of effecting such a delegation should contain a provision which gives interested parties the right to appeal to the Secretary from actions of the Commissioner or Assistant Commissioner.

                                                                                                           WARNER W. GARDNER, 
                                                                                                                                              Solicitor.

RIGHTS OF INDIANS TO ALLOTMENTS ON

M-34056                                                                                                                         January 29, 1946.

This Department has jurisdiction at any time prior to the issuance of a patent to investigate the character of the public land.

Issuance of a patent for land to a railroad company pursuant to a grant which excepts mineral land imports a final determination that the land patented is not mineral in character.

Upon issuance of such a patent this Department's jurisdiction over the land ceases. 

Where land was patented to a railroad company pursuant to a grant which excepted mineral land and where the patent was subsequently cancelled by a Federal District Court in a suit brought by the United States on behalf of Indian occupants whose claims were found to be superior to that of the railroad company, equitable title to the land, including any minerals which may be contained therein, was vested in the Indian occupants.

The land recovered for the Indians should be conveyed to them by trust patents pursuant to section 4 of the General Allotment Act.

GARDNER. Solicitor:

Memorandum for the Secretary:

    The Commissioner of the General Land Office has requested to be informed whether applications by Indians for allotments under section 4 of the General Allotment Act, as amended,¹ may be allowed for public land in a national forest where the land has been occupied by the Indians from time immemorial and where such land is reported to be valuable for metalliferous or other minerals. The Commissioner also requests to be advised what steps should be taken to protect the Indians' right of occupancy in the event public land which is mineral in character is not subject to allotment to Indians, other than the notation of the Indian claims on the records of the General Land Office and the district land office. The Commissioner calls attention to the regulations of the Department under which allotments may be made within national forests of land containing coal, oil and gas with reservations of the minerals to the United States but not for land valuable for metalliferous minerals,² and to various decisions of the Department which the Commissioner considers to be in conflict with these regulations.

    The questions are presented in connection with the formal applications made in 1934 by Addie M. Ramus, Kate Martin, Jake Offield, and Beecher Morgan³ for individual allotment of separate and distinct portions of the SW1/4 of Sec. 31, T. 46 N., R. 10 W., M.D.M., California, amounting, in the aggregate, to less than 20 acres. The land applied for is within the exterior boundaries of the Klamath Forest Reserve, proclaimed on May 6, 1905.

    Consideration of the circumstances surrounding the occupancy by these four applicants of the particular lands applied for, the action which has previously been taken by the Department--both before and after the creation of the forest reserve--and of a decree entered by a Federal district court affecting this land leads me to conclude that the law and regulations which govern the allotment to Indians of public land within national forests is not applicable to the land now applied for. Since answers to the specific questions raised by the Commissioner would be of no assistance in the proper disposition of the four applications for allotment now under consideration, I shall not discuss those questions but I shall confine myself to a discussion of the rights of these applicants to receive trust patents for the land applied for.

    It is my opinion (1) that the Department long ago lost its jurisdiction to determine whether the land is or is. not mineral in character; (2) that the four applicants now have the equitable title to the land applied for, including any minerals which may be contained therein; (3) that the Department has no authority to withhold the land from the Indians even if it is mineral land; and (4) all that remains to be done is to issue appropriate trust patents to the applicants.

The SW1/4 of Sec. 31, T. 46 N., R. 10 W., M.D.M., California, was patented to the Central Pacific Railroad Company pursuant to the act of
____________________

    ¹ 24 Stat. 388: 26 Stat. 794, 795; 36 Stat. 855, 859 (25 U.S.C. secs. 334 and 336).
    ² 52 LD. 36b. 391: 43 CFR 176.15.
    ³ Serial Nos. Sacramento 029099, 029100, 029101, and 029102, respectively.

July 25, 1866,⁴ "An Act granting lands to aid in the Construction of a Railroad and Telegraph Line from the Central Pacific Railroad in California to Portland, in Oregon," Under that act mineral lands were excepted from the grant as were such lands as "shall be found to have been granted, sold, reserved, occupied by homestead settlers, preempted, or otherwise disposed of." The act provided for the issuance of patents to the grantee upon compliance with certain conditions. A patent covering the quarter section in question was issued to the company on February 12, 1896.

    Under well-settled doctrines for the construction of railroad land grants, this Department has jurisdiction, at any time prior to the issuance of a patent, to investigate the character of the land,⁵ but the issuance of a patent for land to a railroad company pursuant to a grant which excepts mineral land imports a final determination that the land patented is not mineral in character. Upon the issuance of the patent, this Department's jurisdiction over the land ceases. ⁶

    The patent issued in this case operated not only to divest the Government of its title to the land in question but it also stopped the Government from questioning the character of the land conveyed thereby except in a direct proceeding brought by the Government to have the patent set aside and annulled.

    On March 3, 1891, prior to the issuance of the patent covering the land now under consideration, Congress passed an act whereby suits by the United States to vacate and annul any patent thereafter issued might only be brought within six years after the date of the issuance of the patent. Shortly after the issuance of the patent to the company in this case, and on March 2, 1896, Congress extended the time within which to bring actions for the annulment of railroad grant patents previously issued, to five years from the passage of that act. ⁸ Thus the time within which to bring a suit to vacate the patent in the present case expired in March of 1901. The United States did not bring such a suit and it could not have succeeded, in its own right, at a later date in having the patent annulled.⁹

    Such was the situation when, in 1905, the forest reserve was created. The land was not at that time public land of the United States, and, since the proclamation dealt only with public land, the particular land now under discussion was not affected by the reservation. As far as the United States was concerned, complete title to the land was at that time in the railroad company, or its successor in interest. Nothing which has occurred since that time has resulted in this land becoming a part of the forest reserve.

    Some 25 years after the issuance of the patent to the company and at least 25 years ago, this Department considered the claims of the present applicants together with the claims of other Indians residing in the same vicinity that they and their ancestors had occupied portions of the land patented to the Central Pacific Railroad Company for its successor long prior to the grant to the company. On the recommendation of this Department, suits were instituted by the United States on behalf of the Indians to have certain of the patents cancelled as to specific legal subdivisions of land. The rights of some of these Indians, the present applicants not being among them, were determined by the United States Supreme Court in Cramer et al v. United States,¹⁰ and the principles announced by the Court in that case are those which must be applied here. The Court found that the Indians in whose behalf that suit was brought had lived continuously on defined portions of the patented land since as early as 1859; that they had constructed and maintained dwelling houses and other improvements thereon, and that their individual occupancy of the land was entitled to protection. The Court said:

    "In our opinion the possession of the property in question by these Indians was within the policy and with the implied consent of the Government. That possession was definite and substantial in character and open to observation when the railroad grant was made, and we have no doubt falls within the clause of the grant excepting from its operation lands 'reserved . . . or otherwise disposed of.'"

The Court considered the contention made on behalf of the company that any rights which these Indians might otherwise have, had been barred by the provisions of the act of March 3, 1851,¹¹ which required every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican Governments to present the

____________________

    ⁴ 14 stat. 239.
    ⁵ Barden v. Northern Pacific R.R. Co., 154 US. 288 (1894); West v. Standard Oil Co., 278 U.S. 200 (1929); 12 Lb. 608; 39 L.D. 289: 56 I.D. 201.
    ⁶ West V. Standard Oil Co., 278 U.S. 200 (1929); 5 L.D. 193; 19 L.D. 410; cf. 54 I.D. 475.
    ⁷ 26 Stat. 1093, 1099 (43 U.S.C. sec. 1166).
    ⁸ 29 Stat. 42.
    ⁹ United States v. Winona & St. Peter R.R. Co., 165 US. 463 (1897); United States v. Whited and Whelless, Ltd., et al., 246 U.S. 552 (1918). Putnam, et al., v. Ickes, et al., 78 F. (2d) 223 (1935), cert. denied, 296 U.S. 612.
    ¹⁰ 261 US. 219 (1922).
    ¹¹ 9 Stat. 631.

same for settlement to a commission created by that act. It determined that the 1851 act had no application because the Indians did not belong to any of the classes described in the act because their claims were in no way derived from the Spanish or Mexican Governments and because, further, it did not appear that the Indians were occupying the lands in question in 1851.¹²

    In disposing of the contention made that the suit was barred by the act of March 3, 1891, supra, the Court said:

    "The object of that statute is to extinguish any right the Government may have in the land which is the subject of the patent, not to foreclose claims of third parties. Here the purpose of the annulment was not to establish the right of the United States to the lands, but to remove a cloud upon the possessory rights of its wards. As stated by this Court in United States v. Winona & St. Peter R.R. Co., 165 U.S. 463, 475, the statute was passed in recognition of 'the fact that when there are no adverse individual rights, and only the claims of the Government and of the present holder of the title to be considered, it is fitting that a time should come when no mere errors or irregularities on the part of the officers of the land department should be open for consideration.' After the lapse of the statutory period, the patent becomes conclusive against the Government but not as against claims and rights of others, merely because the relation of the Government to them is such as to justify or require its affirmative intervention. See Northern Pacific Ry. Co. v. United States, 227 U.S. 355, 367; La Rogue v. United States, 239 U.S. 62, 68."

    In conclusion the court said:

    "We think, however, the Circuit Court of Appeals erred in holding that the right of the Indians extended to the entire area of each legal subdivision, irrespective of the enclosure, and we agree with the District Court in confining the right to the lands actually enclosed . . . Here the claim for the Indian is based on occupancy alone, and the extent of it is clearly fixed by the enclosure, cultivation and improvements. The evidence does not disclose any act of dominion on their part over, or any claim or assertion of right to, any lands beyond the limits of their actual possessions as thus defined. Under the circumstances, their rights are confined to the limits of actual occupancy and not be extended constructively to other lands never possessed or claimed, simply be cause they form part of the same legal subdivisions."

    Thereafter patents were issued to the Indians whose claims were considered in the Cramer case under section 4 of the General Allotment Act.¹³

    Prior to the decision in the Cramer case, suit had been filed covering the claims of the present applicants.¹⁴ The complaint alleged Indian occupancy of the entire SW1/4 of Sec. 31. However, after that decision, this Department, on June 5, 1928, agreed to a decree being entered embracing all of the land actually occupied by the Indians. The Department, in its letter to the Department of Justice, stated that if the case were settled on that basis the matter of determining the boundaries of the tracts belonging to each Indian occupant could be taken up and appropriately disposed of. Apparently, at that time, no Government survey was made of the land actually occupied by the Indians and, on January 14, 1929, the district court entered its decree canceling the patent issued to the railroad company for so much of the SW1/4 of Sec. 31 as the Court found to have been occupied by the Indians. A description of that land is embodied in the decree and the Commissioner of the General Land Office states that the land covered by the present applications is the land described in the decree. The Court declared subsequent conveyances of that land to be null and void and the company and its successors were decreed to have no right, title or interest in and to any of that land. The decree provided:

    ". . . that the said lands hereinafter described and the whole thereof, be and they hereby are invested in the plaintiff but in trust for the Indian occupants thereof and for the use, possession and occupancy of the Indians residing and living thereon in accordance with the rights of said Indians as they shall be hereafter determined by the plaintiff herein, and to be conveyed by said plaintiff to said Indian occupants thereof in the manner
therein provided by law."

The effect of that decree was to vest the naked legal title to the land in United States. Equitable title to the land was vested in the Indians. The

____________________

    ¹² Nothing in the present record indicates that these Indians claim under a Spanish or Mexican grant or that they occupied the land as early as 1851.
    ¹³ Patents Nos. 1069529 and 1069530.
    ¹⁴ United States v. Sarah S. Totten, et al., Equity No. 246. in the Northern Division of the United States District Court for the Northern District of California.

right of these applicants to specified portions of the public domain, which the Department had already determined to be nonmineral in character, was found to antedate and to be superior to that of the railroad company. Since the Government could not have recovered this land on its own behalf and since it recovered it in trust for the occupants, it follows that the equitable title to the minerals, if any, in the land recovered is in the Indians and this Department has no authority to withhold those minerals from the owners of the equitable title.

    The decree placed upon the Government the burden of determining the areas, within the land described, which were owned by the individual Indian occupants and of issuing appropriate patents to those found entitled thereto. The Department has not carried out the decree of the court. It has not conveyed the individual portions of the land to the individual occupants.

    In 1933 the Superintendent of the Hoopa Valley Indian Agency, on behalf of the four applicants, inquired when the applicants would receive their trust patents. In reply, he was advised by the Office of Indian Affairs that no segregation survey had been made to determine the boundaries of the individual claims within the area and that trust patents under section 4 of the General Allotment Act, supra, could not be issued until such survey were made. The Commissioner continued: "Pending survey and allotment of the land, there is no danger that the Indians will be interfered with as their right to this land has been fixed by the court."

    Thereafter, on May 24, 1934, the four applications were filed at the local land office, evidently in an effort to prod the Government into carrying out the decree. Surveys of the tracts were completed in 1940 and thereafter the General Land Office caused an examination to be made to determine whether the land was valuable for minerals. In 1943 special reports were filed by a field examiner of the General Land Office stating that the land embraced in the four applications was essentially mineral in character, containing deposits of placer gold.

    As I have indicated above, it is my opinion that the only duty which rested upon this Department after the decree of the court was entered in 1929 was to define the areas occupied by the individual Indians and to issue appropriate patents to the rightful owners. The areas have now been defined and, regardless of the report that the land is mineral in character, trust patents to the individual applicants should be issued immediately. I know of no reason why patents, similar to those issued to the Indians involved in the Cramer case, may not be issued to the present applicants pursuant to section 4 of the General Allotment Act, supra, since these applicants meet the requirements of that act.

                                                                                                                WARNER W. GARDNER,
                                                                                                                                                Solicitor.

Approved: January 31, 1946.

OSCAR L. CHAPMAN, Assistant Secretary.

SALE OF LIQUOR TO INDIAN FOR PURPOSE
OF RESALE ON RESERVATION

                                                                                                                                        January 30, 1946.

Memorandum for the Commissioner
of Indian Affairs:

    I am returning for further consideration the letter to the Attorney General prepared in your office, concerning the sale of intoxicating liquor to an Indian woman who has received a State license to operate a tavern at Odanah, Wisconsin. The liquor would be sold to her for purposes of resale, and the question has been raised by the local United States Attorney whether such sales would violate 25 U.S.C. sec. 241. The Attorney General has transmitted his query to this Department with request for advice.

    There is no case that supports the suggestion that it makes any difference that the intoxicating liquor is sold to an Indian for the purposes of resale if the Indian in question comes within one of the classes described in 25 U.S.C. sec. 241. Under the provision sales are prohibited only when made to an Indian "to whom an allotment of land has been made while the title to the same shall be held in trust by the Government; or to any Indian who is a ward of the Government under charge of any Indian superintendent or agent, or to any Indian, including mixed bloods, over whom the Government through its departments exercises guardianship." There is no information in the file from which it can be determined whether the Indian woman holds a trust allotment, or is a ward Indian. Since she is married to a white man, she may have abandoned tribal relations.

    Apparently the tavern where the liquor would be sold is located on land within the Indian town site of Odanah, Wisconsin, which was established pursuant to the acts of June 21, 1906 (34 Stat 381, 382), and August 1, 1914 (38 Stat. 607, 608). It is stated in the second paragraph of your proposed letter to the Attorney General: "The village of Odanah, Wisconsin, is located within the exterior boundaries of the Bad River Indian Reservation." It is stated, however, in the letters of the United

States Attorney that the tavern is located off the reservation. While it is apparent from the 1906 and 1914 acts that the Odanah townsite would necessarily be within the exterior boundaries of the reservation, there may be a question whether the village of Odanah and the townsite of Odanah are coextensive. In any event, this office should like to be advised also to what extent the lands within the townsite or village are unrestricted, and whether the land on which the tavern is located is restricted,¹ and whether the land on which the tavern is located borders on the exterior boundaries of the reservation. See memorandum opinion from the Acting Secretary of the Interior to the Commissioner of Indian Affairs dated September 28, 1939, with reference to the sale of liquor at Mason City located on the edge of the Colville Indian Reservation.

    If, in fact, the tavern is located on restricted land within the exterior boundaries of the reservation, the special statutes cited in your proposed letter would seem to add nothing to the provisions of the Indian liquor laws contained in Title 25 of the U.S. Code. If, on the other hand, the tavern is located off the reservation, there would have to be considered the applicability of the act of June 27, 1934 (48 Stat. 1245, 25 U.S.C. sec. 254), which has been overlooked in your proposed letter. Thus in the third paragraph of this letter you refer to Article 7 of the treaty of September 30, 1854 (10 Stat. 1109), pursuant to which the Bad River Reservation was created. Article 7 of the treaty prohibits the manufacture, sale or use of "spirituous liquors" on the territory ceded under the treaty. This was an outright cession, and the lands are no longer therefore part of the Bad River Reservation. The act of June 27, 1934, which applies to ceded lands, would have the effect of lifting this prohibition except for sale to restricted Indians. So far as the treaty is concerned liquor could legally be sold to
non-Indians.

    You refer also to provisions of the 1906 and 1914 acts relating to intoxicating liquors. The acts are identical except in two respects: (1) The 1906 act provided for the issuance of patents "on such terms as may be approved by the Secretary of the Interior" while the 1914 act provides for the issuance of trust patents under the General Allotment Act; (2) the 1906 act provided for the forfeiture of land conveyed if the liquor prohibitions were violated while the 1914 act directly made applicable the provisions of the laws prohibiting the introduction of intoxicants Pinto the Indian country. As a matter of form the 1914 act did not amend or repeal the 1906 act, and therefore if any patents have been issued under the 1906 act, they would still be subject to its provisions. If any patents have been issued, on the other hand, after the effective date of the 1914 act, they would be governed by its provisions. But it is not indicated under what act any patent which may have been issued for the land on which the tavern is located was actually issued. Further confusion is created with reference to the location of this land by your reference to the intoxicating liquor provision of the 1914 act governing the making of allotments under this act. This provision has no relevancy unless the tavern is located on an allotment rather than a townsite lot.

    I am sending a letter to the Attorney General supplying such advice as may be given pending the receipt of the additional information requested herein.

                                                                                                                WARNER W. GARDNER,
                                                                                                                                                Solicitor.

ATTORNEY CONTRACTS WITH INDIVIDUAL
INDIANS NOT INVOLVING TRIBAL
FUNDS

                                                                                                                                        January 31, 1946.

Section 85, 25 U.S.C. does not apply to contracts between individual Indians and attorneys unless specific tribal funds or property held by the United States are the subject of the contract.

GARDNER, Solicitor:

Memorandum for Assistant Secretary Chapman:

    Attached is a letter to William L. Paul, Jr., concerning a contract of employment between Mr. Paul and the Tlingit Indians of the Village of Douglas, Alaska. There is also attached a letter relating to a contract of employment between the Seneca-Cayuga Tribe of Indians of Oklahoma, and N. M. Coursolle and W. C. Preus. In both letters it is suggested that contracts may be executed between individual Indians and attorneys and that it is only where payment of fees or expenses out of restricted funds under the control of this Department is contemplated that approval of such contracts becomes necessary.

    A question has been raised as to the applicability of 25 U.S.C. sec. 85 to such individual contracts becomes necessary.

"No contract made with any Indian, where such contract relates to the tribal funds or

____________________

    ¹See the attached copy of a memorandum from Mr. Hancock of the General Land Office to Mr. Wasserman, Chief Counsel of the General Land Office, dated January 16, 1946, to whom this memorandum was submitted.

property in the hands of the United States, shall be valid, nor shall any payment for services rendered in relation thereto be made unless the consent of the United States has previously been given. (June 30, 1913, c. 4 § 18, 38 Stat. 97.)"

    It is my opinion that section 85 does not apply to contracts between individual Indians and attorneys unless specific tribal funds or property held by the United States are the subject matter of the contract. It has no application where it is contemplated merely that a claim is to be prosecuted against the United States by such Indians. The legislative history of section 85 indicates that the type of contract which it was intended to prohibit dealt with tribal funds or property which the United States was holding in trust for the Indians. The legislative history also reveals that it was the intention of Congress that such funds or property should be delivered to the Indians undiminished in quantity and without the necessity for the employment of attorneys, and the consequent payment of fees to them, to prod the Government to do something which it was already obliged to do. (50 Cong. Rec., pp. 2043-2046, 2080-2082.) Therefore, I believe that the language which has been used in the two attached letters concerning contracts between individual Indians and the respective attorneys is legally correct.

                                                                                                                WARNER W. GARDNER,
                                                                                                                                                Solicitor.

DRIVING GOVERNMENT AUTOMOBILES ON
SHORT DETOUR AS USE FOR "OTHER
THAN OFFICIAL PURPOSES"

                                                                                                                                February 11, 1946.

A detour of three miles in a 30-mile automobile trip on Government business, made for the personal pleasure of the driver, is not a deviation sufficient to constitute as a matter of law use of the Government-owned vehicle for "other than official purposes" within the meaning of Section 202 (b) of the Independent Offices Appropriation Act, 1945.

GARDNER, Solicitor:

Memorandum for the Director of Personnel:

    Reference is made to your memorandum of October 25, 1945, inquiring whether certain actions of an employee of the Five Civilized Tribes Agency, Muskogee, Oklahoma, constitute an unofficial use of a Government automobile. It is assumed that you have in mind the prohibition contained in section 202(b) of the Independent Offices Appropriation Act, 1945, against such unofficial use.

    The facts, so far as pertinent to a decision of your question, appear briefly to have been as follows: An employee of the Five Civilized Tribes embarked upon an official trip from Muskogee to Tuskahoma, Oklahoma, and on the way picked up a second, 18 year-old girl, employee who was on annual leave and who accompanied him for the rest of the day. Later on the same day, these employees were joined by a farm agent employee for the Five Civilized Tribes, who lived in Wilburton. Thereafter the three proceeded in the automobile from Wilburton to Tuskahoma. The farm agent employee, at the request of the Indian Bureau employee, drove the Government automobile on the return trip during the course of which the Indian Bureau employee requested that the car be driven off the main highway to a bootlegger establishment where he purchased a gallon of whiskey. Available information indicates that the distance to and from the establishment was about three miles. In the evening of the same day, the Indian Bureau employee, after leaving the farm agent at Wilburton, requested the girl employee to drive the Government automobile from Wilburton back to Muskogee headquarters. During the course of the return trip an accident occurred, resulting in almost total destruction of the Government automobile.

    The record indicates that due consideration is being given by you and the Bureau of Indian Affairs to disciplinary action for whatever other acts of misconduct occurred, in accordance with the Department's established personnel procedures. Although your inquiry is to be advised whether the employee in question "has made unofficial use of a Government automobile," I therefore take it that you are interested only in being advised whether the 3-mile detour of the employee on a mission of his own in the course of official business violates the provisions of the 1945 Appropriation Act, thereby requiring you to dismiss him summarily.

    It is my opinion, in view of all the circumstances, that the 3-mile detour cannot be regarded as a violation of the act so as to require the summary dismissal of the employee in question.

    Section 202 (b) provides:

"(b) For the maintenance, operation, and repair of any Government-owned motor-propelled passenger-carrying vehicle not used exclusively for official purposes; and 'official purposes' shall not include the transportation of officers and employees between their domiciles

and places of employment, except in case of medical officers on out-patient medical services and except in cases of officers and employees engaged in field work the character of whose duties makes such transportation necessary and then only as to such latter cases when the same is approved by the head of the department or establishment concerned. Any officer or employee of the Government who uses or authorizes the use of any Government-owned motor-propelled passenger-carrying vehicle, or of any motor-propelled passenger-carrying vehicle leased by the Government, for other than official purposes otherwise violates the provisions of this subsection shall be summarily removed from office. The limitations of this subsection (b) shall not apply to any motor vehicles for official use of the President, the heads of the executive departments, Ambassadors, Ministers, charges d'affaires, and other principal diplomatic and consular officials."
(Italics supplied.)

    The prohibition on the use of Government automobiles for personal business can be traced back to section 4 of the Post Office Appropriation Act, 1933 (47 Stat. 604), where its application was limited to "passenger-carrying vehicles" purchased with funds appropriated to the Post Office Department. By the next year the prohibition was extended to appropriations "available for the executive departments and independent establishments," by section 3(b) of the Post Office Appropriation Act, 1934 (43 Stat. 450). It continued in the annual appropriation acts of the Post Office Department until March 25, 1940, when it appeared as section 302 (b) of the Treasury and Post Office Appropriation Act, 1941 (54 Stat. 78). In 1943, the prohibition became section 262 (b) of the Independent Offices Appropriation Act, 1944 (57 Stat. 195). It was reenacted on June 27, 1944, as section 282 (b) of the Independent Offices Appropriation Act, 1945. The noticeable change in 1945 was the inclusion of the penalty provision.

    It appears that prior to enactment of the penalty provision of misuse of Government property, including automobiles, was the subject of disciplinary action in accordance with established procedures of the Department. See, in this connection, paragraphs numbered 7 and 11, on pages 2 and 3, of "Regulations for the Operation of Motor Vehicles by Employees of the Department of the Interior on Official Business," issued by the Secretary in February 1942, which are still in effect. Between 1942 and 1944 the Byrd Committee of the Congress made exhaustive studies and reports on the reduction of non-essential Federal expenditures, including automobiles. Out of these investigations grew the request for the prohibition against the unofficial use of Government automobiles as it appears in the 1945 Appropriation Act. Very little in the way of recorded legislative history exists. I am reliably informed by a representative of the Bureau of the Budget, who attended all of the discussions and hearings on that phase of the Byrd Committee reports, however, that considerable latitude undoubtedly was intended to be allowed the head of any Department to decide as a matter of policy how strict a construction should be placed upon the language of the statute in determining, in the light of all the circumstances, what constitutes use "for other than official purposes." The complaints seemed to be aimed primarily at such types of abuse as result from the taking of a Government automobile in the first instance with the intention of using it primarily or solely for personal use. The discussion, it appears, did not indicate clearly whether the Committee had in mind only the misuse of automobiles in towns where other modes of transportation were available, the source of the major portion of the complaints, or in isolated parts of the country as well, where transportation facilities are scarce or nonexistent. Some of the abuses discussed were the use of Government cars by members of the families of officials, by employees to go to and from their homes, for vacation trips, to go to and from eating places, and to attend social events in the evening. It appears that no discussion occurred on the specific question whether after an employee has embarked upon an official trip and then detours for any reason from the main route of travel, resuming the official trip thereafter, such action should be regarded as a violation of the statute.

    There was no Appropriation Committee discussion of the language included in the appropriation bill and nothing occurred at the Appropriation Hearing because the House Committee did not discuss it. The provision was put in in the Senate, but the Senate Committee did not discuss it either. It appears to be generally assumed that it came about as a result of the Byrd Committee action. See the statements of the Byrd Committee appearing in 88 Cong. Rec., pp. 4225-4232 (May 15, 1942); S. Doc. No. 5, 78th Cong., 1st sess., dated February 15, 1943; S. Doc. No. 198, 78th Cong., 2d sess., pp. 2 and 5,

    From the foregoing, it is my conclusion that it was intended that a rule of reason should be applied when invoking the statute with respect to seeming violations. The application of such a rule could well be regarded as justifying the differentiation between the case of a Government vehicle taken by an employee with the intention in the first instance of using it for personal reasons, and the incidental use of such a vehicle for personal reasons

incidental to the conduct of official business. As to what in such circumstances would constitute a permissible detour or deviation, it would appear to be necessary to turn for legal analogy to decide cases dealing with the liability of employees or their employers to third persons for the consequences of accidents caused by employees while using their employers' vehicles on business of their own, a field which for precise guidance is as unsatisfactory as the recorded history of the act, and which may be said in the final analysis to fall back upon what appears to be reasonable in the light of all of the circumstances of each case. See, for example, Ritchie v. Wailer, 63 Conn. 155, 28 Atl. 29 (1893); Lee v. Pierce, 112 Okla. 212, 239 Pac. 989 (1925); Hickson v. Walker Co., 110 Conn. 604, 149 Atl. 400 (1930).

    I accordingly am constrained to hold that in the light of the legislative history of the statute, the prohibition against the use or authorization of the use of a Government-owned vehicle "for other than official purposes" does not refer to an incidental use of the nature here involved.

                                                                                                                WARNER W. GARDNER,
                                                                                                                                                Solicitor.

OKLAHOMA COMMUNITY PROPERTY ACT--
INTERPRETATION RE FILING INCOME
TAX RETURNS

                                                                                                                                      March 11,1946.

Mr. H. A. Andrews,
Superintendent, Quapaw Indian Agency,
Miami, Oklahoma.

MY DEAR MR. ANDREWS:

    The receipt is acknowledged of your letter dated February 29, addressed to the Secretary, inquiring whether restricted Indians of the Quapaw Tribe may take advantage of the Oklahoma Community Property Act of April 28, 1945, in filing income tax returns.

    A similar question was recently raised by the Superintendent of the Five Tribes Agency, Muskogee, Oklahoma. Under date of February 4 this office advised the Superintendent that the Bureau of Internal Revenue in a letter dated December 27, 1945, to the Governor of Oklahoma, held that citizens of Oklahoma could take advantage of the community property statute in the filing of Federal income tax returns covering income subsequent to July 26, 1945, the effective date of the statute. For your convenient reference and guidance a copy of the letter to the Superintendent is enclosed. You will note that this decision offers the possibility of effecting a saving in income taxes of married Indians whose income is large enough to reach into more than the first surtax bracket by filing separate returns of the community income, which may be divided equally between them.

    It would appear to be the advantage of the restricted members of the Quapaw Tribe to file their Federal income tax returns in such a manner as to take advantage of the Community Property Act. It must be remembered that, while section 51 (b) of the Internal Revenue Code permits a husband and wife to elect between filing a joint or separate return, the election becomes irrevocable after the due date of the return. See Buttoluh v. Commissioner 29 F. (2d) 695; Rose v. Grant, 39 F. (2d) 340, appeal dismissed 283 U.S. 867; Einstein v. Commissioner, 10 B.T.A. 240. While the filing of separate returns will undoubtedly impose an added burden upon your office, especially in view of the change brought about by the Community Property Act during the taxable year, the savings that may be effected by filing such returns will generally be so large that joint returns should not be filed. If it is not possible to file separate returns before March 15, you should seek an extension of time for the filing of the returns from the office of the local Collector.

                                                                                                                            FELIX S. COHEN,
                                                                                                                                        Acting Solicitor.

COMPARATIVE GRAZING RIGHT PRIVILEGES
OF UTE INDIANS AND NON-INDIANS
ON PUBLIC LANDS

                                                                                                                                            April 3, 1946.

Ernest L. Wilkinson, Esq., 
Attorney for the Ute Indians,
c/o Supt., Uintah and Ouray Agency, 
Fort Duchesne, Utah.

Messrs. Knox Patterson and Hugh C. Colton, 
Attorneys for the Albert Smith Investment
    Co.. a corporation. 
The David Smith Estate, a co-partnership,
Blanche, Moroni & Emory Smith, a
    co-partnership, 
Steve Chuturas, H. A. Tyzack and D. R. Seeley,
    Salt Lake City, Utah.

GENTLEMEN:

    Under Secretary Chapman has asked me to look into the comparative rights of the Ute Indians

and the non-Indians named above with respect to grazing privileges on certain public lands lying partly within the boundaries of the former Uncompahgre Indian Reservation in Utah. The particular lands involved comprise what is now known as Unit G within Grazing District No. 8, established pursuant to the provisions of the Taylor Grazing Act.

    A substantial portion of the lands were originally a part of the Uncompahgre Indian Reservation established by Executive order of January 5, 1882. With the exception of lands allotted to some 83 individual Indians, the reservation was restored to the public domain by the act of June 7, 1897 (30 Stat. 87). The Indian title was thus extinguished. It is my understanding that the remaining lands, prior to withdrawal, were part of the public domain free of any claim of Indian title or ownership. Despite efforts extending over a decade, legislation proposing to establish an Indian reserve has not been enacted and the possibility of its enactment now seems remote. Until it is enacted, no title to, or ownership by the Indians of, the withdrawn lands can be recognized. Nevertheless, in virtue of long prior use of at least a part of the lands within this area and the expenditure of approximately $300,000, including $169,000 of tribal funds, in the purchase of base properties in this area, which expenditures were made with the expectation that a permanent reserve would be established by the Congress for the Indians, the equitable position of the Indians is strong.

    The non-Indian users can claim no vested rights under the provisions of the Taylor Grazing Act, even if that act were applicable, since the act in section 3 expressly declares that the creation of a grazing district or the issuance of a permit pursuant to the provisions of the act "shall not create any right, title or estate in or to the lands." At the time of the passage of the Taylor Grazing Act, the lands were covered by the temporary withdrawal of September 26, 1933. Administration of the lands under range management in conformity with the Taylor Grazing Act as provided in the agreement of 1935 was temporary and limited. This agreement was superseded by the agreement of 1943, under which the Indians now hold a permit for the entire area under discussion subject to the issuance to the non-Indian users of permits for grazing privileges on the terms and conditions set forth in the agreement. The non-Indian users, although entitled to equitable consideration by reason of prior use over the years, have nevertheless refused to accept permits tendered to them under the agreement of 1943 and are, therefore, in the position of occupying the range without lawful authority.

    No adjudication of the grazing privileges that would attach to the base properties of either party under the Taylor Grazing Act has ever been completed. I have concluded that while neither the Indians nor the non-Indians have any legally enforceable rights to grazing privileges on these lands, both appear to have equities of such substance that justice would be done by the issuance to them of grazing permits or licenses substantially in conformity with the provisions of the Taylor Grazing Act. Subject to reconsideration upon receipt of your views. I propose to make the following recommen