Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs p.1676-1700

1676

DEPARTMENT OF THE INTERIOR

MAY 20, 1955

Where the probate court orders a sale of the property, the United States is a necessary party to the proceedings therefore where the sale concerns trust and restricted Indian lands. In the case of United States v. Hellard, 322 U.S. 363, the Supreme Court of the United States, dealing with comparable legislation in Oklahoma conferring jurisdiction in state courts, said: "The act in question purports to be no more than a jurisdictional statute. It fails to say that the United States is not a necessary party * * * we must read the act in the light of the history of restricted lands. That history shows that the United States has long been considered a necessary party to such proceedings in view of the governmental interests which are at stake. We will not infer from a mere grant of jurisdiction to a state or federal court to adjudicate claims to restricted lands and order their sale or other distribution that Congress dispensed with that long standing requirement." The United States must be served with the petition for sale, and accorded an opportunity to be heard to consent or object to the sale. It is the opinion of this office, that such service should be made upon the United States Attorney for the District of Oregon and also upon the Attorney General of the United States.

Section 9 of the act expressly repealed the provisions of 25 U.S.C. 555, and hence the heirs or devisees need not be qualified by at least 1/16th degree Indian blood of the Klamath Tribe as formerly required. By such repeal Indian heirs or devisees can be without any Indian blood of said tribe, can be a member of another tribe, or can be a non-Indian.

Old estates of persons who died prior to February 13, 1955, will be probated and closed by the federal Examiner of Inheritance and not by state court. The said examiner will not, however, probate the estates of persons who have died after February 13, 1955. The probate proceedings must be initiated by the procedure and by the person or persons prescribed eligible therefore in the Oregon statutes.

Question: Does the word "Tribe" in the last line of the section refer to the "trustee, corporation, or other legal entity" by which the individual holdings of the members who elect to remain are held?

ANSWER: Although the thought behind this question is none too clear, it may be pointed out that the tribe continues to exist as a tribe even though some of its members elect to withdraw under section 5 (a) (2). The membership of the tribe is merely diminished. The loans transferred to the tribe for collection by section 12 are assets of the tribe. Such assets, along with other tribal property, would be subject to management by the "trustee, corporation, or other legal entity" selected under the plan proposed and adopted pursuant to the provisions of section 5 (a) (5) of the act.

Question: Can a non-Indian who desires to purchase potential irrigable Indian land be given assurance that he will receive a water right with the purchase of such land? Do the Indian's water rights "run with the land" to a non-Indian purchaser?

ANSWER: It is assumed that these questions relate to tribal lands that will be sold by the Management Specialists under authority of section 5(a) (3) for the purpose of making payment to withdrawing members of the cash value of their interests in tribal property. Section 14(a) provides that nothing in the act shall abrogate any water rights of the tribe and the individual members, and defers the application of the laws of Oregon with respect to abandonment of water rights for a period of 15 years after the date of the proclamation issued pursuant to section 18 of the act. Except for deferment of the application of Oregon law with respect to abandonment, section 14(a) is merely a saving clause which operates to preserve whatever water rights the tribe and individual members may have under the law in force on the date of the enactment of the act.

The Klamath Reservation was established by the treaty of October 14, 1864 (16 Stat. 707). Under the decisions of the United States Supreme Court in Winters v. United States, 207 U.S. 564, United States v. Powers, 305 U.S. 527, and other related cases, the establishment of the reservation carried with it an implied reservation of the right, with a priority corresponding to the date of the establishment of the reservation, to use water from the streams flowing through or bordering on the reservation for the purpose of irrigating the reservation lands. The question of how far and to what extent this tribal water right attaches to and passes with a conveyance of the tribal lands to non-Indians cannot be determined from the present record, which contains no factual statement whatsoever on which such a determination could be made. The specific acreage to be conveyed must be known, together with full information concerning its irrigability and the extent to which it has been developed for irrigation purposes. It would also be desirable to have a complete picture of water development on the reservation, including information as to the acreage which is under irrigation, the acreage which is potentially irrigable, the non irrigable acreage, and the sources and quantities of available water. Upon presentation of these facts, further consideration will be given to this matter.

1677

OPINIONS OF THE SOLICITOR

MAY 20, 1955

1. Questions: Will there be a descendency of tribal fishing rights assured by the Treaty of 1864 and reserved under section 14(b) of the act? Are those rights limited to members living on August 13, 1958? Do heirs continue to enjoy these rights? Do the rights continue for those who elect to withdraw as well as those who elect to or do remain? Do those who elect to withdraw still retain fishing rights on the lands of those remaining in the tribal group?

ANSWERS: The fishing rights secured to the Indians by the treaty of 1864 and preserved by section 14(b) of the act are neither alienable nor descendible. Members who elect to withdraw cease to be members when they are paid in full for the value of their tribal interests and their fishing rights terminate with the termination of membership. Until fully paid, the withdrawing member is still a member and emitted to exercise the fishing right in common with other members. As the membership rolls closed as of midnight, August 13, 1954, living members whose names appear on that roll may exercise fishing tights. An heir may exercise the right only if the heir is a member.

2. Do the fishing rights of those who elect to remain continue on the lands which are now in Indian ownership but which will be sold to pay off withdrawing members? Are the fishing rights exclusive in the area retained as such pertains to the remaining members?

ANSWER: In the opinion of this office the fishing rights of the members do not continue with respect to the lands which are sold because such sold land is no longer retained tribal land or a part of the Indian reservation. The Klamath Tribe was given only exclusive fishing rights within the reservation. In the opinion of this office, it is considered that it was the intent of Congress that the land which is sold should be conveyed in fee simple and not be impressed with an encumbrance in the nature of fishing rights in favor of remaining .tribal members.

Relative to the exclusive nature of the fishing rights of the remaining members, section 14(b) provides that nothing in the act shall abrogate any fishing rights or privileges of the tribe or the members thereof enjoyed under federal treaty. The members of the tribe enjoy exclusive fishing rights under a federal treaty. Public Law 280, 83rd Congress, 1st Session, does not apply to the situation, as it expressly excepts from state jurisdiction and control rights acquired by federal treaty. The remaining group of members is mentioned repeatedly in the act as a "tribe." (See section 12 where remaining group is referred to as a "tribe"; section 5 (5) mentions the management of tribal property by the corporation and mentions the interest of "members who remain in the tribe"; section 12 provides that loans are transferred to "the tribe" for collection.) It is the opinion of this office that, pursuant to the above provisions of the act, the remaining members, designated as a "tribe," possess, in the area remaining, exclusive fishing rights pursuant to the provisions of the treaty with the United States.

The Area Office and members of the Oregon State Bar have asked several questions pertaining to this section, as follows:

1. Whose responsibility is it to cause the appointment of guardians in proper cases?

    2. Is the Secretary to be the moving party for the appointment of a guardian?
        a. If so, by what guide lines or standards does he approve of the guardian
            and the guardianship proceedings?

3. What is meant by the language of the section "by such other means as he may deem adequate"?

ANSWERS: Section 15 obviously anticipates the date on which Federal supervision and control will be terminated over the property of persons who are under the legal disability of minority or unsoundness of mind or who, in the judgment of the Secretary, are otherwise in need of assistance, by requiring the Secretary to cause the appointment of guardians in courts of competent jurisdiction or by taking such other means as he may deem to be adequate for their protection.

The appointment of the guardian will, of course, be controlled by the laws of the State of Oregon. Since the Secretary may employ other means for protection of the incompetent member, he is not required to seek the appointment of a guardian

1678

DEPARTMENT OF THE INTERIOR

MAY 20, 1955

guardianship, he may, of course, recognize the guardian and deliver the property of the ward to him. As the sole responsibility for the appointment of a guardian resides in the court, approval of the appointment of the guardian by the Secretary would not be necessary as a matter of law. However, no impropriety is seen in the appearance of the Secretary through an authorized representative in a guardianship proceeding for the purpose of assisting the court in making a proper appointment. Although it would be preferable in seeking the appointment of a guardian for the petition to be made by some member of the immediate family of the ward, I find nothing in the Oregon statutes that would preclude the Secretary, acting through an authorized representative, from filing such a petition or that would prevent the court from appointing a guardian pursuant to such a petition. Doubtless appropriate procedures with respect to these matters could be worked out in cooperation and consultation with the court, and that course of action is suggested for immediate consideration by the representatives of the Bureau of Indian Affairs.

"By such other means as he may deem adequate" has been interpreted by the Office of the Solicitor to include a transfer of the trust and restricted personal property without a guardianship to the minor himself if the Secretary believes the minor competent to handle the money, to a state or county welfare agency or institution, delivery to a parent as the natural guardian of the minor if the parent is considered able to look after the child's interest, or the establishment of a private trust and the delivery of the money to the private trustee.

A question has been asked relative to per capita payments from the capital reserve fund of the Klamath Indians, under section 16 of Public Law 587. In an opinion rendered by the Office of the Regional Solicitor on February 3, 1955, it was stated:

Question: Are the Klamaths disbanded as a tribe upon completion of the provisions of the act and publication of the proclamation provided for in this section?

ANSWER: Section 14 (a) of the act provides that the laws of Oregon with respect to the abandonment of water rights by non-use shall not apply to the tribe and its members until 15 years after the date of the proclamation. This language indicates that the tribe will continue in existence beyond the date of the proclamation. The remaining group of members who do not elect to withdraw are repeatedly mentioned in the act as a "tribe." (See section 12 of the act.) Likewise, in section 14 (b) of the act it is provided that nothing in the act shall abrogate any fishing rights or privileges of the tribe or the members thereof enjoyed under federal treaty. If nothing in the act can abrogate such fishing rights or privileges of the tribe, then it would appear obvious that the proclamation date would not abrogate such rights or privileges of the tribe, and that the tribe would continue as such for the purpose of exercising such rights and privileges.

Contracts: Discrimination--Executive Orders and Proclamations--Indians: Receipt of Government Benefits--Labor: Non-Discrimination

Other than in contracts for the construction of projects undertaken pursuant to the Navajo-Hopi Rehabilitation Act of April 19, 1950 (64 Stat. 44, 45; 25 U.S.C. 633), the provisions in construction contracts executed by officers of the Bureau of Indian Affairs which require contractors to afford Indians a preference right to employment is in conflict with the non-discrimination requirement of E.O. 10557 (19 F.R. 5655; September 3, 1954) and should be discontinued.

To:            Commissioner, Bureau of Indian Affairs
                 Attention: Assistant Commissioner, Administration
From:        Office of the Solicitor
Subject:     Indian preference employment provision included
                 in construction contracts

Reference is made to the memorandum of July 26, 1954, from the Acting Assistant Commissioner, Administration, concerning the legality and continued use of the following provisions in construction contracts executed by the Bureau of Indian Affairs:

E.O. 10557 (19 F.R. 5655; September 3, 1954) provides, with certain exceptions not pertinent here, that the contracting agencies of the Government shall include in all contracts executed by them the following provision:

It is my opinion that E.O. 10557 prohibits discrimination both in favor of, as well as against, minority racial groups, such as the Indian population, and that, with the exception noted below, the use of the above "Employment Service" provision in the Bureau's construction contracts is in conflict with E.O. 10557 and should therefore be discontinued.

The exception to which I refer is contained in Section 3 of the Navajo-Hopi Rehabilitation Act of April 19, 1950 (64 Stat. 44, 45; 25 U.S.C. 633), which provides that:

In view of the purpose of the Rehabilitation Act and the magnitude of the projects authorized by Section 1 thereof, I believe it only reasonable to conclude that Congress, when referring to "all projects undertaken pursuant to this Act," intended to include construction projects performed under contract as well as force account. I am informally advised by your Bureau that approximately 75% of all such construction projects currently undertaken with funds appropriated pursuant to the authorization of this Act are being performed under contract. This interpretation of the Rehabilitation Act is also supported by the general rule that "statutes passed for the benefit of de-

1680

DEPARTMENT OF THE INTERIOR

JUNE 15, 1955

pendent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians." Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89 (1918).

With respect to E.O. 10557, I would not assume that the President, in promulgating that Order, intended to relieve your Bureau of the duty imposed by Congress of requiring contractors to give Navajo and Hopi Indians the preference in employment mentioned in Section 3 of the Rehabilitation Act. Therefore, I believe that your Bureau may continue to include the "Employment Service" provision in contracts for the construction of projects pursuant to the Rehabilitation Act, but provided that its language is modified so as to limit the class of Indians mentioned therein to members of the Navajo and Hopi Tribes. In addition, the non-discrimination provision set forth in E.O. 10557 must also be included in such contracts, but as this provision will in part conflict with the "Employment Service" provision, I suggest that the latter provision be further modified, for purposes of contractual clarity, by adding a concluding sentence as follows:

In the blank should be inserted the number of the clause in the contract containing the standard non-discrimination provision.

Indian Lands: Individual Rights in Tribal Property: Annuity and Per Capita Payments--Indian Tribes: Terminal Legislation

The requirement of the Act of June 15, 1934 (48 Stat. 964), that a member of the Menominee Tribe be living on the last day of the fiscal year in order that his estate share in a per capita payment out of stumpage earned during that fiscal year, has been repealed by Section 3 of the Act of June 17, 1954 (68 Stat. 250) with respect to per capitas payable from stumpage earned during a fiscal year ending on a date subsequent to June 17, 1954, since the 1954 Act vested in each member on the final roll an individual, undivided share in the property of the Tribe.

To:            Regional Solicitor, Denver, Colorado
From:        Solicitor
Subject:     Per capita payments

Reference is made to the memorandum dated May 11, 1955, from your office, with which was enclosed a copy of a letter dated May 3, 1955, from Mr. B. O. Angell, concerning the matter of per capita payments to the estates of deceased members of the Menominee Indian Tribe.

Section 4 of the Act of March 28, 1908 (35 Stat. 51), as amended by the Act of June 15, 1934 (48 Stat. 964) provides in part, that:

Section 3 also authorizes appeals to the Secretary by persons whose applications for enrollment are not approved by the tribe and further provides that:

"When the Secretary has made decisions on all appeals, he shall issue and publish in the Federal Register a Proclamation of Final Closure of the roll of the tribe and the final roll of the members. Effective upon the date of such proclamation, the rights or beneficial interests of each person whose name appears on the roll shall constitute personal property and shall be evidenced by a certificate of beneficial interest which shall be issued by the tribe. Such interests shall be distributable in accordance with the laws of the State of Wisconsin. Such interests shall be alienable only

1681

OPINIONS OF THE SOLICITOR

JUNE 23, 1955

By letter to the Minneapolis Area Director dated December 9, 1954, the Commissioner authorized a per capita payment from tribal funds pursuant to the 1934 Act quoted above. The Commissioner's letter, however, instructed the Area Director to withhold the "possible shares of deceased members" pending advice from this Office.

It is my opinion that the effect of said Section 3 was to vest, as of June 17, 1954, in each member on the final roll prepared pursuant to said Section, an individual, undivided share in the property of the Tribe, and thus to allow the member's estate to succeed to such share in the event of the member's death subsequent to June 17, 1954. Section 3, by vesting this right in each member on the final roll, is thus clearly inconsistent with the requirement in the 1934 Act that the member be living on the last day of the fiscal year, and consequently it is my opinion that the 1954 Act has repealed that requirement with respect to per capita payments authorized by the 1934 Act and payable from stumpage earned during a fiscal year ending on a date subsequent to June 17, 1954.

OCCUPANCY RIGHTS ON NAVAJO TRIBAL
LAND GRANTED TO PRESBYTERIAN CHURCH
BY GOVERNMENT--DISCUSSION OF TREATY
AND SUBSEQUENT CONGRESSIONAL ACTS

On May 6, 1919, the Assistant Secretary of the Interior set apart to the Presbytery of Northern Arizona 32.5 acres of land of the Navajo Indian Reservation at Chin Lee, Arizona, for temporary use and occupancy for mission purposes. Shortly thereafter, a question arose concerning the authority of the Secretary of the Interior to permit such use of the tribal land in view of Article 2 of the Navajo Treaty of June 1, 1868 (15 Stat. 667), which provides that:

By letter dated June 14, 1921 (32 Op. Atty. Gen. 586) the Attorney General concluded that this provision of the Treaty did not limit the Secretary's authority to set apart the land for this purpose. The Presbytery of Northern Arizona subsequently transferred its occupancy rights to this tract to the Board of National Missions of the Presbyterian Church, and on November 3, 1931, the First Assistant Secretary of the Interior approved the transfer of said occupancy rights.

The Board of National Missions of the Presbyterian Church has now requested that this Department issue to it a patent in fee to this 32.5 acre tract, pursuant to section 3 of the Act of September 21, 1922 (42 Stat. 994, 995; 25 U.S.C. 280) which provides:

Objection to the issuance of this patent has been raised by the Tribe's attorney, on the ground that such action is prohibited by Article 10 of the Treaty of 1868, above, which provides that:

Consent to the proposed patent has not been given by three-fourths of the adult male Indians of the Navajo Tribe nor by the tribal governing body.

1682

DEPARTMENT OF THE INTERIOR

JUNE 23, 1955

The Commissioner of Indian Affairs has requested our opinion on the legal propriety of the issuance of the requested patent in these circumstances.

The 1922 Act, above, does not require, as a condition for the issuance of a patent thereunder, either that the consent of the Indians be obtained or that monetary compensation be paid them. Moreover, the Secretary does not appear to have any discretion to decline to issue the patent if it is shown that the religious organization has satisfied the requirements set forth in the Act, since upon such showing he is both "authorized and directed" to issue the patent. Furthermore, no Indian tribe is excepted from the provisions of this Act, and by its terms it operates with respect to land set apart "on any Indian reservation." (Emphasis supplied.) It is well settled that Congress has the power to abrogate provisions of an Indian treaty. Lone Wolf v. Hitchcock, 187 U.S. 553. Accordingly, I am prepared to advise the Commissioner of Indian Affairs that, in the circumstances, the patent which has been requested in this case should be issued, and notwithstanding the provisions of Article 10 of the 1868 Treaty. I do not know, however, whether your Department, in defending the United States against claims being asserted by the Navajo Tribe or other Indian tribes pursuant to the Indian Claims Commission Act of August 13, 1946 (60 Stat. 1049; 25 U.S.C. 70), has had occasion to arrive at an interpretation of the 1922 Act in circumstances analogous to those here presented. As I do not wish to issue an opinion which might in any way interfere with your litigation of any of these pending claims, I should appreciate your advising this Office whether your Department has any objection to our advising the Commissioner of Indian Affairs of our foregoing interpretation of the 1922 Act.

In issuing trust patents for allotments under the Act of March 3, 1921 (41 Stat. 1455), the Department reasonably construed Sections 4 and 6 as requiring a mineral reservation to the tribe only when the allotted lands were classified as mineral in character.

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Minerals reserved to the Font Belknap Tribe under the
                 Fort Belknap Allotment Act of March 3, 1921 (41 Stat. 1355)

You have requested my opinion whether the Act of March 3, 1921, which provided for the allotment of land on the Fort Belknap Reservation required in Section 6 that all allotments contain a reservation of minerals to the tribe or whether under Section 4 minerals were to be reserved to the tribe only when allotments covered land which was classified as mineral.

The Secretary approved the schedule of allotments and the lands were classified as to their mineral character by the Geological Survey. Allotment patents for lands classified as mineral contained a reservation of the minerals under the Act of March 3, 1921. Allotment patents for lands classified as non-mineral were issued to the allottees without a mineral reservation to the tribe.

The approval of the allotment schedule by the Secretary on October 3, 1925, was silent with respect to minerals, and there has been found nothing in the legislative history of the Act which would give definite indication that the minerals were required to be reserved in all the allotments regardless of the mineral character of the land. The intention of Congress must be sought then in the provisions of the Act itself.

Section 4, after providing that prior to allotment the Geological Survey should make a survey of the reservation lands for the purpose of determining their mineral character, authorizes the allotment of lands classified as mineral but with the condition that such mineral shall remain tribal property. Sec. 6 of the Act provides that all the minerals, including oil and gas, on any of the lands granted or to be allotted thereunder are reserved to the tribe for a period of 50 years from the date of the Act. At the expiration of such period, or as it may be extended by the Congress, the minerals are to become the property of the allottees or their heirs. Under a well-established rule of statutory construction the two sections must be construed together when that would remove uncertainty and make their provisions harmonious. Sec. 4 apparently was designed to limit the mineral reservation in allotted lands to those which were classified as mineral. Seemingly, the provision for the classification of the lands as to their

1683

OPINIONS OF THE SOLICITOR

JULY 25, 1955

mineral character was to serve that purpose. Consistent with this, Sec. 6 defined the scope and duration of the minerals to be reserved under Sec. 4 in allotments of land classified as mineral and in addition reserved minerals to the tribe in other lands granted by the Act. This appears to have been the view taken by the Department at the time of allotment since the patents which were issued for lands classified as mineral contained a mineral reservation to the tribe, and allotment patents for lands that were not found to be mineral in character were issued without a mineral reservation. For the reasons stated above, this practical interpretation of the statute is not unreasonable and should not be disturbed where it has remained unchallenged for a period of nearly thirty years.

Where the Congress has clothed the Secretary of the Interior with authority to manage and operate an electric power system, that authority may not be transferred to a private utility or independent board without a clear indication on the part of Congress that such action may be taken.

Officers and employees of the United States are without authority to sell or lease property belonging to the United States unless specifically authorized by the Congress to do so.

An opening agreement between the Secretary of the Interior and private utilities defining the areas to be served by each may properly be entered into where the relevant statutes contain no prohibition against such an agreement.

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Authority to manage and dispose of the San Carlos power system

At the suggestion of Assistant Secretary Lewis you have requested my opinion on certain questions relating to the management and disposition of the San Carlos power system. These questions have arisen, it appears, in connection with certain proposals which have been submitted with respect to the operation and management of the power system. One of these proposals involves an offer by a private utility to acquire the power system by purchase or lease. Under another proposal, a board of equal representation by Indian and non-Indian landowners would be formed to take over the operation and management of the power system. The particular questions raised, upon which my advice is requested, are:

The San Carlos power system became necessary as the result of the construction of the San Carlos Indian irrigation project. The main structure of the San Carlos Indian irrigation project, the Coolidge Dam, was authorized by the act of June 7, 1924 (43 Stat. 475, 476). Section 1 of this act authorized the Secretary of the Interior, through the Indian Service, to construct a dam across the canyon of the Gila River near San Carlos, Arizona, as a part of the San Carlos irrigation project for the purpose, first, of providing water for the irrigation of lands allotted to Pima Indians on the Gila River Reservation, Arizona, then without an adequate supply of water, and, second, for the irrigation of such other lands in public or private ownership as, in the opinion of said Secretary, can be served with water impounded by the dam without diminishing the supply necessary for the Indian lands.

1684

DEPARTMENT OF THE INTERIOR

JULY 25, 1955

Pursuant to the authority contained in this act, the San Carlos Indian irrigation project was formed. The nucleus of the project, previously authorized by the act of May 18, 1916 (39 Stat. 123, 130), and such additional land in the Gila River Indian Reservation and public and privately owned lands outside of the reservation to bring the total area of the project to 100,000 acres, one-half of which area is within the Gila River Indian Reservation.

The act of June 7, 1924, did not authorize power development at the Coolidge Dam. The reservoir created by the dam had a capacity of 1,200,000 acre-feet of water. Based on the then available water data extending over approximately 35 years, it was estimated that the reservoir would store sufficient water for the irrigation of 80,000 acres of the project lands. The remaining 20,000 acres of the project were to receive its water from the San Pedro River, return flow and underground pumped water. In order to provide electric power for pumping purposes, and for the sale of excess power, the dam was planned to provide for hydroelectric development. This hydroelectric development was authorized by Congress on March 7, 1928 (45 Stat. 200, 210). This act authorized the Secretary of the Interior, in addition to appropriating the funds for construction purposes pursuant to the act of June 7, 1924, supra, to incur obligations and enter into contracts for the development of electric power at the Coolidge Dam as an incident to the use of the Coolidge Reservoir for irrigation, and such action was deemed to be a contractual obligation of the Federal Government for the payment of the cost thereof, with the proviso that no such obligation

The act authorized the Secretary of the Interior to sell surplus power developed at the Coolidge Dam in such manner and upon such terms and for such prices as he shall think best, with the provision that the net revenues from sales of power at that plant, shall be devoted, first, to reimbursing the United States for the cost of developing electric power, such cost to be determined by the Secretary of the Interior; second, to reimburse the United States for the cost of the San Carlos irrigation project; and third, to payment of operation and maintenance charges and the making of repairs and improvements on the project. A further provision of the act required that reimbursement to the United States from the power revenues shall not reduce the annual payments from landowners on account of the principal sum constituting the cost of construction of the power plant or the project works until such sum shall have been paid in full.

The 1928 act also authorized the Secretary of the Interior to effect a merger of the Florence Casa Grande project in whole or in part with the San Carlos project and to accept conveyances to the United States for the benefit of the San Carlos project of canals, reservoirs, pumping plants, water rights, lands, and rights-of-way.

The San Carlos Irrigation and Drainage District was formed pursuant to the laws of the State of Arizona for the purpose of embracing the non-Indian lands, brought within the San Carlos Indian irrigation project in compliance with the said acts of June 7, 1924, and March 7, 1928. The district executed the repayment contract with the Secretary of the Interior on June 7, 1931. This contract, among other things, obligates the district to repay its share of the total construction cost (including the cost of the power development), and of the operation and maintenance costs assessed against the district lands. The net power revenues accruing in favor of the district lands were to shorten the time during which the construction costs payments shall be made without diminishing the annual payments until the entire debt due the United States has been extinguished.

By supplemental contract between the parties, approved September 17, 1936, as authorized by the act of June 5, 1934 (48 Stat. 881), the interest charge provided for in the act of June 7, 1924, against the district lands was eliminated from the payments to be made by the district on behalf of such construction costs of the San Carlos project, including the cost of the power development at the

¹The use of the term "Florence Casa-Grande Water Users' Association" was in error. This association executed the contract with the Secretary under the act of May 18, 1916. The landowners of that project, in the main, filed Landowners' Agreement with the Secretary requesting their land to be incorporated in the San Carlos project. The organization with which the Repayment Contract was executed was the San Carlos Irrigation and Drainage District. It may be said that this reference to the Florence Casa-Grande Water Users' Association was an inadvertence. There was no power project authorized under the act of May 18 1916.

1685

OPINIONS OF THE SOLICITOR

JULY 25, 1955

Coolidge Dam and the transmission line or lines, which costs are required to be repaid in 40 equal annual installments, beginning on December 1, 1935. On June 14, 1945 (59 Stat. 469), Congress amended section 3 of the San Carlos Act (43 Stat. 475, 476), as supplemented and amended, so as to provide that the construction charges on account of the non-Indian lands in the San Carlos irrigation project shall be repaid in variable annual payments to be determined by the number of acre feet of water stored in the San Carlos Reservoir on March 1 of each year, beginning on the first day of March 1945, in accordance with the schedule set out in section 1 of the act.

Section 4 of the act authorized and directed the Secretary of the Interior to enter into a supplemental agreement with the San Carlos Irrigation and Drainage District modifying the repayment provisions of the existing repayment contract, as amended, in accordance with the act.

On June 21, 1945 (59 Stat 487), Congress authorized the Secretary of the Interior to modify the provisions of a contract for the purchase of a power plant from the Christmas Copper Corporation for use in connection with the San Carlos Indian irrigation project. This plant consisted of a diesel electric generator unit of the corporation previously acquired under contract with the corporation as a part of the San Carlos power system of the United States.

A further supplemental contract between the Secretary of the Interior and the San Carlos Irrigation and Drainage District was executed on May 29, 1947, to incorporate the requirements of section 4 of the act of June 14, 1945, supra, and the provisions of the act of July 3, 1945 (59 Stat. 318, 330). The last cited act authorized the settlement of claims in the sum of $114,400 of which $104,400 was paid to the Buckeye Irrigation Company and $10,000 to the Arlington Canal Company. These payments were conditioned upon the execution of an appropriate repayment contract with the San Carlos Irrigation and Drainage District, obligating the district to repay its proportionate amount properly chargeable to the non-Indian lands in the San Carlos Irrigation and Drainage District. The contract was subject to the approval of the Secretary of the Interior and the obtaining of an appropriate resolution by the Gila River Pima-Maricopa Indian Community Council consenting to the charge of the proportionate amount as construction costs against the Indian lands within the San Carlos Indian irrigation project, subject to the provisions of the act of July 1, 1932 (25 U.S.C. 386).

Because of the lack of funds with which to extend the distribution system to prospective customers from the generating plants and existing power lines and distribution system of the San Carlos project, Congress by the act of June 22, 1936 (49 Stat. 1822, 1823), amended the act of March 7, 1928 (45 Stat. 210), and acts amendatory thereof or supplementary thereto, so as to provide that the net revenues from the sale of surplus power developed at the Coolidge Dam and other generating plants of the San Carlos project and transmitted over existing transmission lines shall be devoted, first, to reimbursing the United States for the cost of developing such electric power; second, to reimbursing the United States for the cost of the San Carlos irrigation project, and, third, to the payment of operation and maintenance charges and the making of repairs and improvements on said project. The 1936 act also provided that all net power revenues derived from the sale of power transmitted over such additional transmission lines as may thereafter be constructed by the San Carlos Irrigation and Drainage District for the benefit of the San Carlos project shall first be devoted to the repayment of the construction costs of such additional transmission lines. It was further provided that the United States and the San Carlos Irrigation District shall enter into an appropriate repayment contract to be approved by the Secretary of the Interior. The statute required that the contract provide that the additional transmission lines thus constructed by the district shall, upon completion of construction, be conveyed to the United States. After the reimbursement to the district from such net power revenues of the cost of the construction of the additional transmission lines, the net power revenues received from the power transmitted over the additional transmission lines were to be applied in the same manner as the net revenues derived from the sale of power transmitted over the existing transmission lines of the San Carlos project were to be applied.

Pursuant to the authority of the act of June 22, 1936, the San Carlos Irrigation and Drainage District, under date of March 15, 1937, entered into a construction loan contract with the United States through the Administrator of the Rural Electrification Administration for the construction of such additional transmission lines.

The San Carlos Irrigation and Drainage District, as required by the act of June 2, 1936, supra, on April 29, 1937, executed another contract with the United States acting through the First Assistant Secretary of the Interior. Section 10 (b) of this contract provides that immediately upon the completion of the construction of the additional lines, the district will by a good and valid deed convey to the United States for the San Carlos project

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DEPARTMENT OF THE INTERIOR

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such additional lines, together with rights-of-way therefore and all equipment and appurtenances belonging thereto. The district is obligated to accompany such conveyance by evidence of title satisfactory to the Secretary of the Interior and to be in all respects in accordance with the loan contract, the execution of which was duly authorized by the qualified electors of the San Carlos Irrigation and Drainage District at a special election held on September 21, 1936. The lines were constructed and placed in operation, and payment therefore from the net power revenue derived therefrom, as provided for in the contract, is being made. According to a teletype dated January 20, 1955, by the Acting Commissioner of the Indian Bureau to the Acting Area Director, Phoenix, Arizona, the conveyance of the title to the transmission lines by the district to the United States has not been consummated.

To supplement the generated electric power at the power plants of the United States on the San Carlos Indian irrigation project, a contract was entered into between the Commissioners of the Bureau of Reclamation and the Bureau of Indian Affairs and approved by the Under Secretary on April 25, 1952, under the Davis Dam power is made available for the use of the San Carlos Indian irrigation project to the extent of 14,000 kilowatts as a preference customer.

The United States has leased certain electric transmission lines of Electric District No. 2, an Arizona corporation, by contract dated July 6, 1949, which was approved by the Acting Assistant Secretary on September 20, 1949. These lines are managed, operated, and maintained by the United States during the period of the contract in accordance with policy and regulations of the Secretary of the Interior for the San Carlos Indian irrigation project (25 CFR 133.21) for the sale and delivery of electric power by the project to the landowners served by Electric District No. 2. The net revenues derived from the operation of the lines leased from Electric District No. 2 are dealt with the same as all other net revenues derived from operation of the power system.

The several acts of Congress vest the title of the power works and facilities in the United States with the exception of the property of Electric District No. 2, which is being operated under contract with the United States. In the operation of the project, electric energy is essential for the operation of the pumping apparatus required in order to supply underground water for 20,000 acres of the 100,000-acre project. The net revenues derived from the operation of the electric properties are required by Congress to be used as provided for in the 1928 act, supra, as supplemented and amended by the acts heretofore cited. To these requirements of the act, the original contract and the supplemental contracts between the United States and the San Carlos Irrigation and Drainage District have been entered into between the district and the United States, acting through the Secretary of the Interior.

Answering question No. 1 specifically, it is quite clear from the foregoing statement that the authority to manage and operate the San Carlos power system, including the authority to sell surplus power in such manner and upon such terms and for such prices as the Secretary of the Interior shall think best, now rests in the Secretary and his authorized representatives.

With respect to question No. 2, it is quite clear also, I think, that the authority of the Secretary to manage and operate the power system may not be transferred to a private utility or to a board composed of an equal number of Indian and non Indian landowners without enabling legislation by the Congress where, as here, the responsibility for such operation and management has been placed in the Secretary of the Interior by that body. See in this connection the opinion of the Attorney General dated October 4. 1929 (36 Op. A.G. 98), wherein it was held that where Congress had committed to the Secretary of the Interior supervision and control over Indian properties, the Secretary was without authority to delegate such control and supervision to outside agencies. See also opinion of the Solicitor dated July 30, 1953 (M-36175), in which it was held that while the power of the Secretary of the Interior to delegate his functions to officials and agencies of his own Department was virtually unlimited, the power could not be exercised with respect to the transfer of Indian irrigation projects to State irrigation districts in the absence of a clear indication by the Congress that such a step may be taken.

A similar answer must be given to question No. 3 with respect to the sale or lease of the power system. The title to the physical works, such as power houses, generators and transmission lines, with one minor exception, is in the United States. It is a familiar rule requiring no citation here that no Federal officer or employee is empowered to dispose of the properties of the United States either by sale or lease unless such action has been specifically authorized by the Congress. No such authority is contained in any of the statutes relating to this project.

It is assumed that the territorial agreement referred to in question No. 4 would be an agreement which would define the areas to be served

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OPINIONS OF THE SOLICITOR

AUGUST 2, 1955

by the project power system and those areas to be served by other power interests. I find nothing in the statutes relating to this project which would prevent the execution of an operating agreement along this line on behalf of the United States by the Secretary of the Interior and the other party or parties concerned defining the areas to be served by each. In this connection, I note from the record that such an agreement was in fact entered into by the Secretary of the Interior in 1937. However, the interests of the San Carlos Irrigation and Drainage District and the Gila River Pima-Maricopa Indian Community in this matter are such that their consent should be obtained before any such agreement is entered into.

The Act of June 17, 1954 (68 Stat. 250) terminates the responsibility of the United States to maintain and repair roads on the Menominee Indian Reservation after December 31, 1958, or upon such earlier date as the rights-of-way therefore are relinquished to the tribe or transferred to another agency under Section 7.

The United States is not liable under the Federal Tort Claims Act for damages sustained after its responsibility to maintain roads on the Menominee Indian Reservation has terminated.

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Legal obligations of the Federal Government on Menominee roads

You have inquired by a memorandum dated September 28, 1954, into the liability of the United States under the Federal Tort Claims Act, 28 U.S.C. (1346 (b) and (c) ), 2671 et seq., obviously with a view to finding out if there is any requirement on the part of the United States to remain responsible for maintenance and repair of roads on the Menominee reservation after the termination date of December 31, 1958, under the Termination Act (P.L. 399, 83d Cong., 2d Sess.; 68 Stat. 250).

Under section 7 of the Menominee Act, the Tribe is enabled to formulate and submit to the Secretary a plan for the future control of the tribal property and service functions now conducted by or under the supervision of the United States, including roads on the reservation. Section 8 authorizes and directs the Secretary to transfer to the Tribe, no later than the termination date, the title to all property, real and personal, held in trust by the United States for the Tribe. Section 10 provides that when the title to the property of the Tribe has been transferred, individual members of the Tribe shall not thereafter be entitled to any of the services performed by the United States for Indians because of their status as Indians, and the laws of the State shall apply to the Tribe and its members. Presumably not only the individual members of the Tribe but also the Tribe itself will no longer be entitled to Federal services for Indians.

The act would seem to contemplate that the United States will no longer maintain Indian Service roads and the rights-of-way therefore would terminate at the same time. Unlike Federally-owned schools or other structures on an Indian reservation, integral road improvements have little removable value and the United States rights thereto, such as hard surfacing, bridges, culverts and guards, would also terminate along with the rights-of-way. The provisions of Section 7 that the Tribe shall submit plans for control and maintenance of roads when read in conjunction with Section 10 which terminates services performed by the United States, tends to terminate the duty to maintain and improve such roads after the transfer of the title of all trust property. While the act itself would operate as a Federal relinquishment of the rights-of-way and improvements on Indian Service roads, the Secretary may execute a formal instrument of relinquishment to complete the Tribe's title. This would be in furtherance of the purposes of Section 8 which directs the Secretary to convey trust property to the Tribe so that the Tribe will have an instrument of title showing it is the owner of the property.

When the rights-of-way and improvements are relinquished to the Tribe or transferred to another agency in accordance with the plans under Section 7, the Federal Tort Claims Act would have no application to injuries sustained by reason of the faulty condition of the Indian Service roads on the Menominee Indian Reservation.

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DEPARTMENT OF THE INTERIOR

AUGUST 2, 1955

This opinion to the effect that the Federal supervision and control and responsibility for these roads will cease on or before the termination date of December 31, 1958, certainly does not preclude the continued improvement and working out of amicable agreements between the Menominee Indians, the State and the counties involved, to provide for the transfer of such roads. It is noted in Mr. Trier's memo of September 15, 1954, which accompanied your request for an opinion, that in recent years the Bureau has been engaged in an intensified program of turning Indian Bureau roads over to local governmental units for maintenance and improvement and that the agreements cover first an improvement of the road to local government standards at Bureau expense before making the dedication.

Indian Lands: Ceded Lands--Indian Lands: Allotments: Generally--Indian Lands: Water Rights

An allotment to an Indian of the Colville Reservation made under Section 4 of the Act of July 1, 1892 (27 Stat. 62), on the ceded area of the reservation became entitled to share in the available waters for the irrigation thereof under the doctrine of the Winters case.

Public domain allotments made subsequent to the creation of the State in which situated and which were never a part of an Indian reservation would be subject to the laws of the State in the acquisition of a water right for such land.

To:            Regional Solicitor, Portland
From:        Solicitor
Subject:     Water right for public domain allotments made to Indians of the Colville Reservation

We have carefully considered the draft of tentative opinion on the above subject submitted by your memorandum of April 29.

Section 1 of an Act of Congress approved July 1, 1892 (27 Stat. 62) restored to the public domain an area of approximately 1,500,000 acres of land of the Colville Reservation created by Executive Order of July 2, 1872. Section 4 of the Act of July 1, 1892, accorded Colville Indians then residing on the restored portion of the Reservation the right to take allotments of land thereon, selections to be made within six months after the date of the President's Proclamation opening the lands for settlement. The Act of July 1, 1898 (30 Stat. 593) contained a similar provision. The President's Proclamation opening the lands was dated April 10, 1900 (31 Stat. 1963).

The Department held in an opinion rendered October 6, 1906 (35 L.D. 220), that it was not the purpose of the 1892 Act to break up the Colville Tribe but rather to permit certain members to retain their established rights on the restored lands and that they should be considered with respect to determining the rights of their children for allotments "* * * just as if no division of the reservation had been made."

In two decided cases on the Fort Hall Reservation where Indians elected to take allotments on the ceded area, the courts have held that the lands have reservation water rights. See Scheem, et al. v. United States, et al., 273 F. 93, and United States v. Hibner, 27 F. (2d) 909. In the recent case of Merrill v. Bishop, 237 Pac. (2d) 186 (1951), the court held that under the agreement of March 3, 1905 (33 Stat. 1016), waters were available to irrigate lands allotted to Indians on the ceded portion of the Wind River Reservation allotments. There was an earlier case on the Wind River Reservation, unreported, entitled United States v. Albert Hampleman, No. 753 in the United States District Court of Wyoming, involving the right of the State Engineer to close the ditches leading to a ceded area allotment for the delivery of water. Pending determination of the case by the court, arrangements were made under which water was delivered to the lands. On June 26, 1916, the court entered its decree which held that the lands, ditches and water rights of the Indian allottee named in the plaintiff's bill of complaint "are within the absolute and exclusive jurisdiction of the plaintiff."

It is not stated in the record submitted by you whether the two allotments in question were selections made by Indians on the restored part of the Colville reservation. If they were they would have a reservation or Winters doctrine water right, which was not lost by the Government reducing the size of the reservation after the Indians had settled on the lands and were permitted to retain their rights thereon to the allotments.

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OPINIONS OF THE SOLICITOR

AUGUST 24, 1955

After rather extensive search no case has been found where an Indian allotment on the public domain, never a part of an Indian reservation, has been held to have a reservation water right. There would be no basis for extending the reservation right to such a case. The theory of the Winters doctrine (207 U.S. 564), is based on a right belonging to the Indian tribe which was not given up when the reservation was created by treaty or otherwise. No such reservation right could exist in the case of a public domain allotment if the particular State, in which the allotment was made, had been created prior to the making of the public domain allotment. The allottee, in order to obtain a water right for such an allotment, would have to comply with the laws of the State, as the water would belong to the State in trust for the people of the State and could be acquired only by compliance with the law of prior appropriation and beneficial use applicable in the particular State.

Upon the issuance of a proclamation, Indians who are subject to section 23 of the act of August 27, 1954 (68 Stat. 868, 877), will not be entitled to preferment in employment by the Bureau of Indian Affairs.

The positions of Indians subject to section 23 of the act of August 27, 1954, who are presently employed by the Bureau of Indian Affairs will remain in the excepted category in which they have been placed by the Civil Service Commission so long as the Commission's regulations remain unchanged.

To:            Commissioner, Bureau of Indian Affairs
From:        The Solicitor
Subject:     The effect of section 23 of the act of August 27,
                 1954 (68 Stat. 868, 877) on Indian preference in employment

You have asked me whether the laws providing a preference for the employment of Indians in the Bureau of Indian Affairs will be applicable to certain Uintah and Ouray Indians of mixed blood as to whom a proclamation is issued pursuant to section 23 of the act of August 27, 1954 (68 Stat. 868, 877), and how the Indians to whom the act applies who are presently serving in the Bureau of Indian Affairs under excepted appointments will be affected.

It seems clear that the language used in the provision quoted is broad enough to exclude the Indians to whom it is applicable from the operation of all Federal laws affecting Indians because they are Indians. This interpretation is confirmed by the construction which the Department put upon identical language which it drafted with respect to the Klamath Indians. In its submission to the Congress on January 4, 1954, of the draft of a proposed bill to provide for the termination of Federal supervision over the property of that tribe, it stated with reference to a comparable provision:

"Section 18 of the bill provides that when Federal restrictions are removed from the property of the tribe and its members a proclamation will be published in the Federal Register, and thereafter such Indians will have the same status under State and Federal law as any other person or citizen. * * *" ¹

¹ Similar language was used in a number of departmental reports concerning other termination legislation. Language substantially identical to that used in section 23 is to be found in the following acts:

    Act of June 17, 1954, 68 Stat. 250 (Menominee Indians);
    Act of August 13, 1954, 68 Stat. 718 (Klamath Indians);
    Act of August 13, 1954, 68 Stat. 724 (various Oregon tribes);
    Act of August 23, 1954, 68 Stat. 768 (Alabama and Coushatta tribes);
    Act of September 1, 1954, 68 Stat. 1099 (Paiute Indians in Utah).

Substantially the same words were also used in other termination bills in the 83d Congress: S. 2750 and H.R. 7319, relating to the Flathead Indians: S. 2749 and H.R. 7322. relating to the California Indians; S. 2748 and H.R. 7316, relating to the Sac and Fox Kickapoo and Potawatomie tribes; and S. 2748 and H.R. 7316, relating to the Turtle Mountain Indians. North Dakota.

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DEPARTMENT OF THE INTERIOR

AUGUST 24, 1955

The statutory provisions that establish a preference for Indians in employment by the Bureau of Indian Affairs (see 25 U.S.C., secs. 44-47, 472) are, of course, laws that affect Indians because they are Indians. It follows, therefore, that the Indians who are subject to section 23 of the act of August 27, 1954, will not be entitled to preferment in employment by the Bureau of Indian Affairs, but, upon the issuance of a proclamation, are to be treated like any other person or persons with respect to employment.

The preference in favor of the employment of Indians by the Bureau of Indian Affairs has been given effect through regulations of the Civil Service Commission, 5 CFR 6.1, 6.100, 6.110 (c) (1), excepting from the competitive civil service "Positions in the Bureau of Indian Affairs, Washington, D.C., and in the field when filled by the appointment of Indians who are of one-quarter or more Indian blood."² These positions, as pointed out in Opinion M-36205, dated June 4, 1954, are therefore not subject to the laws or regulations applicable to positions in the competitive service, when the positions are held by Indians.

It would seem, therefore, that so long as the Civil Service Commission regulations remain unchanged, positions held by Indians subject to section 23 of the act of August 27, 1954, will remain in the excepted category.

There is undoubtedly a question, however, whether, in the light of the new provisions of the law, the Civil Service Commission will deem it proper to continue in the excepted category the positions occupied by the Indians in question. What the standing of the Indians occupying these positions will be if and when the positions are restored to the competitive civil service is a question which it appears to me the Civil Service Commission must answer.

DETERMINATION OF FULL-BLOOD MEMBERSHIP
OF THE UTE TRIBE FOR PURPOSE OF PARTICIPATION
IN DEVELOPMENT PROGRAM

The determination of the full-blood membership of the Ute Tribe of the Uintah and Ouray Reservation in Utah for the purpose of participating in the development program provided for in section 24 of the act of August 27, 1954 (68 Stat. 868; 25 U.S.C. 677), is controlled by the provisions of the act and not by the constitution and bylaws of the Ute Indian Tribe.

To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Determination of full-blood membership in the Uintah and
                 Ouray Reservation in Utah for the purpose of participation
                 in the development program provided for in section 24 of
                 the act of August 27, 1954 (68 Stat. 868: 25 U.S.C. 677)

You have requested my opinion on the question whether membership in the full-blood group of the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah, for the purpose of participating in the development program provided for that group by section 24 of the act of August 27, 1954, is to be determined by the constitution and bylaws of the Ute Tribe or by the provisions of the act of August 27, 1954.

It is quite clear, I think, that the provisions of the act control the determination of membership in the full-blood group for the purposes of section 24.

Prior to the enactment of the act of August 27, 1954, the membership of the tribe was controlled by the constitution and bylaws which the tribe had adopted under the provisions of the Indian Reorganization Act of 1934 and such ordinances pertaining to membership as the tribe may have enacted thereunder. However, the act of August 27,

³ This regulation was amended on March 29, 1955 (19 F.R. 1861) to include positions elsewhere in the Department of the Interior directly and primarily relating to the providing of services to Indians when filled by Indians.

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OPINIONS OF THE SOLICITOR

SEPTEMBER 7, 1955

1954, contemplated an entirely different tribal organization setup, under which there was to be a partition and distribution of the assets of the tribe among the mixed-blood and full-blood members of the tribe, termination of Federal supervision over the property of the mixed-blood members, and a development program for the full blood members of the tribe.

To bring about these results, the term "full blood" was defined to mean a member of the tribe who possesses one-half degree of Ute Indian blood and a total of Indian blood in excess of one-half, and the term "mixed-blood" was defined to mean a member of the tribe who does not possess sufficient Indian or Ute Indian blood to fall within the full-blood class. Members falling within the full-blood class could become mixed-bloods by choice. Elaborate provisions are made in the act for the preparation of separate rolls of the two groups which, after the determination by the Secretary of the Interior of all appeals in individual cases, must be published in the Federal Register by the Secretary, and upon such publication, the rolls, under section 8 of the act, are declared to be final for the purposes of the act. Section 5 of the act also declares that upon publication of the final rolls, as provided in section 8, the tribe shall thereafter consist "exclusively of full-blood members" and that mixed-blood members shall have no interest therein except as otherwise provided in the act.

The development program provided for in the foregoing provision plainly is to be formulated for the benefit of the full-blood group, the membership of which is controlled by the statutory provisions referred to above and not by anything contained in the constitution and bylaws of the Ute Tribe. Under section 3 of the act, the constitution and bylaws and any tribal ordinances in force on the date of the act may be utilized only for the purpose of determining the "Ute Indian blood" of the mixed or full-blood member as those terms are defined in the act.

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Mineral leasing on the Klukwan Indian Reservation, Alaska

The position is taken in the attached copies of opinion dated May 11, 1954, by Mr. Walter E. Walsh, General Attorney--Indian Affairs, Juneau, Alaska, that neither the United States nor the natives residing on the Klukwan Indian Reservation in Alaska can execute a valid mineral lease covering lands within that reservation. Upon review of the opinion, this office is not disposed to take a contrary position.

It appears that the Indian reservation in question was established for the use of the natives by Presidential Executive Order. Consequently, no authority is apparent under which the lands included within the order can be leased under the general leasing or mining laws of the United States. It has been held that the mineral leasing act of February 25, 1920 (41 Stat. 437, 30 U.S.C., 1952 ed., sec. 181 et seq.) does not apply to lands within executive order Indian reservations, since that act is limited in its application to public lands of the United States. See 34 O.A.G. 171 (1924). The mining laws of the United States would likewise be inapplicable since those laws too are considered to apply only to public lands.

While the view may be advanced that authority exists for the mineral leasing of the above lands by or on behalf of the Indians or natives, and for their benefit, pursuant to the act of March 3, 1927 (44 Stat. 1347, 25 U.S.C., 1952 ed., sec. 398a), as amended by the act of May 11, 1938 (52 Stat. 347, 25 U.S.C., 1952 ed. 396 a-f), nevertheless, in view of the decisions cited in Mr. Walsh's opinion and the recent case entitled Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (Preliminary Print, 1955), some doubts arise concerning the extent of

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DEPARTMENT OF THE INTERIOR

SEPTEMBER 7, 1955

the Indian or native rights to lands in Alaska occupied or used by them. In fact, the existing situation is best reflected by a reference in the dissenting opinion in the Tee-Hit-Ton case to the view apparently taken by the majority of the court with respect to those provisions in the Organic Act for Alaska, dated May 17, 1884 (23 Stat. 24), whereby Congress had reserved to itself the ultimate determination of titles to Alaskan lands in the possession of Indians and used, occupied or claimed by them. Thus, on page 291, of the dissenting opinion, it is stated:

In these circumstances, including the fact that Congress has by the 1884 Act, supra, reserved the right to declare the terms under which titles to Alaskan lands may be acquired, it is suggested that legislation is essential which would definitely describe or fix the authority with respect to the leasing for mining purposes of lands within the Klukwan and like Indian reservations in Alaska. Accordingly, the matter is submitted for your consideration and action in that respect.

To:            Secretary of the Interior
From:        Solicitor
Subject:     Solicitor's Opinion M-36291 of July 11, 1955, concerning
                 the mineral provisions of the act of March 3, 1921 (41 Stat. 1355)

This refers to the letter of July 22, 1955, from the Fort Belknap Community Council requesting reconsideration of my opinion of July 11, 1955.

In making allotments on the Fort Belknap Reservation trust patents were issued to allottees containing a reservation of minerals only when the land was so classified under Section 4 of the act. The opinion takes the position that the action of the Secretary was reasonably supported by the language of the act. The reversal of this opinion is sought, first, on the ground that it is inconsistent with Commissioner Emmons' letter of March 22, 1955, to the Area Director, stating that minerals were reserved to the Tribe by the provisions of Section 6 of the act in grants of school land to the State; and, secondly, on the ground that there was a case in which a fee patent was issued to an allottee containing a reservation of minerals when no mineral reservation was present in the trust patent. We have not been able to identify this special case but we have been informally advised that not more than three or four fee patents have been issued to allottees on the Fort Belknap Reservation. It would seem, therefore, that the issuance of the fee patent with a mineral reservation when the lands were not so classified was an inadvertent error.

With respect to the school lands, they were not subject to be granted to the Stat