Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs p.1751-1775

This section of the United States Code imposes obligations and penalties for removing livestock purchased by or for Indians with funds provided from the Revolving Loan Fund established pursuant to the acts of June 18, 1934 (48 Stat. 984), and June 26, 1936 (49 Stat. 1967), or from tribal loan funds used to purchase livestock issued to Indians as loans repayable "in kind" until such loans are repaid. A permit issued under a tribal ordinance purporting to permit the removal or disposal of cattle from the reservation would not relieve the owner of the cattle from the prohibitions and penalties imposed under the cited section of the Code.

The proposed tribal ordinance undoubtedly contemplates a dual control, both by the representatives of the tribal council and by the Superintendent, of cattle subject to Section 1157 of Title 18 of the Code, but to be clear the proposed ordinance should be drafted to contain a provision setting out that where cattle are subject to Section 1157 of Title 18 of the Code, no certificate will be issued by the tribe until the owner of the livestock presents an appropriate clearance for such livestock from the Superintendent or his duly authorized representative. It is the opinion of this office that the act of August 15, 1953, supra, does not nullify ordinances passed by councils of organized tribes dealing with the handling of non-restricted livestock raised on the reservation. The act does not, by express language or implication, impair the exercise by the tribe or its privilege of local self-government.

The ordinance in question comes within the authority of the Fort Hall Business Council set forth in Article VI, sec. 1 (1) of their constitution. That section provides:

There is on official record that such an ordinance was passed by the council and submitted to the Superintendent for his approval in accordance with Article VI, Sec. 2 of the Shoshone-Bannock Constitution. Therefore, to become effective such an ordinance must be enacted by the business council of the tribe and be approved by the Superintendent within the time provided by the Tribal constitution.

2. The answer to the second question, whether the business council has authority to require that a particular brand be placed upon all Indian owned livestock run on the reservation regardless of restricted or non-restricted status and perhaps in contravention to departmental instructions (February 17, 1954), must be premised on the same authorities as were relied upon above. A tribe may prescribe its own rules for local government by appropriate ordinances pursuant to the provisions of its own constitution. From the facts which have been presented to us it is difficult to determine whether or not a proposed ordinance requiring the use of a certain brand for all cattle on the reservation exceeds the authority of the business council. Apparently, the livestock brand proposed by the business council for use on the reservation is not favored by the Bureau. Generally, however, it is within the power of the tribe to "regulate the use and disposition of individual property among its members."¹ The requirement of a certain brand may be regarded as a regulation of the use of such property.

3. There being no legal prohibition against the regulation by the tribe with regard to branding and the securing of permits for the renewal of live stock from the reservation, the ordinance passed by the business council may also be adopted by the Fort Hall Stockman's Association. Whether such regulations should be adopted by the Association as conditions to membership is not within the province of this office, or the Bureau of Indian Affairs, to decide.²

STATUS OF LAND LYING WITHIN A DEFINED
SIXTY-FOOT BOUNDARY LINE BETWEEN
THE U. S. AND CANADA

Chippewa Indian lands ceded to the United States pursuant to acts of January 14, 1889 (25 Stat. 642) and February 20, 1904 (33 Stat. 46, 50), did not become "public lands" of the United States, but remained Indian lands until actually disposed of by the United States pursuant to the cession acts under which the United States acted as trustee for the Indians.

Presidential Proclamations of January 15, 1908 (35 Stat. 2189) and May 3, 1912 (37 Stat. 1741), setting aside a 60-foot strip of public land between the United States and Canada did not include therein ceded Indian lands as such lands were not unentered or unreserved public lands of the United States.

Indian Lands: Ceded Lands--Indian Lands: Timber--Indian Reorganization Act--President of the United States

The unentered and undisposed of ceded Indian lands of the Red Lake Indian Reservation restored to the Indians and to their reservation by Secretarial order of February 22, 1945, issued pursuant to sections 3 and 7 of the Indian Reorganization Act (48 Stat. 984), as amended, were properly restored to Indian ownership, and the timber on such restored lands may be sold under applicable laws and regulations.

To:            The Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Status of land lying within a defined 60-foot boundary line
                 between the United States and Canada

Your memorandum of February 21, 1956, requests advice in regard to the ownership of land and timber which lies within the 60-foot public reservation established by two Presidential proclamations of June 13, 1908, and May 3, 1912, within townships 166, 167 and 168 North, Range 35 West. Part of the lands therein are within the area restored to the Red Lake Indian Reservation, Minnesota, by order issued February 22, 1945, by Assistant Secretary of the Interior Oscar I. Chapman, pursuant to sections 3 and 7 of the Indian Reorganization Act (48 Stat. 984), as amended.

The Chippewa Indians' lands were ceded by an act of Congress of January 14, 1889 (25 Stat. 642; Nelson Act), which provided, among other things, for the complete cession and relinquishment in writing of all of their title and interest in and to the reservations of the Indians in the State of Minnesota, except the White Earth and the Red Lake Reservations, and to all and so much of these two reservations as in the judgment of the commission, provided for in the act, is not required to make and fill the allotments required by the act and other acts, and which shall not have been reserved by the commissioners for other purposes. This act provided that as and when each cession and relinquishment of the Indians' title had been obtained and approved as provided for in the act, it shall be the duty of the Commissioner of the General Land Office to cause the land so ceded to the United States to be surveyed in the manner provided by law for the survey of public lands. The pine lands were to be sold at not less than the appraised price at public auction to the highest bidder in 40-acre parcels. The remaining lands ceded, designated as agricultural lands, were to be disposed of to actual settlers under the provisions of the public land law. Each settler, in addition to complying with the homestead laws, was required to pay the United States for the lands entered the sum of $1.25 for each and every acre, in five equal installments.

Section 7 of the act provided that all money accruing from the disposal of the lands pursuant to the act, after deducting the expenses specified therein of making the cession, relinquishment, removal, allotments, and completing the surveys and appraisals, be placed in the Treasury of the

United States to the credit of all the Chippewa Indians in the State of Minnesota as a permanent fund to draw interest at the rate of 5 percent per annum payable annually for a period of 50 years and to be spent as provided for in the act. Legislative changes dealing with this fund have occurred from time to time, which changes, however, have no bearing on the question presented in your memorandum. No allotments were ever made to the individual Indians on the Red Lake Reservation.

Congress, by the act of February 20, 1904 (33 Stat. 46, 50), entitled "An Act to authorize the sale of a part of what is known as the Red Lake Indian Reservation, in the State of Minnesota," recited an agreement with the Red Lake Chippewa Indians negotiated by James McLaughlin, United States Indian inspector, on the 10th day of March, 1902. This agreement provided for the relinquishment and conveyance of 256,152 acres of the Red Lake Indian Reservation lying west of range line between ranges thirty-eight and thirty-nine, west of the Fifth Principal Meridian, for which, among other things, the sum of one million dollars was to be paid by the United States, as provided for therein.

Article 5 of the 1902 agreement provided that nothing in the agreement shall be construed to deprive the Indians belonging to the Red Lake Reservation of Minnesota of any benefits to which they are entitled under existing treaties or agreements not inconsistent with the 1902 agreement.

The agreement with the Indians which is set out on pages 46, 47 and 48 of 33 Statutes at Large was modified and then ratified by Congress on February 20, 1904. This ratification provided that in consideration of the land ceded by Article I of the agreement, the United States stipulates and agrees to sell, subject to the homestead laws of the United States, under rules and regulations to be prescribed by the Secretary of the Interior, in tracts not to exceed 160 acres to each individual, all of said lands, except lands remaining unsold after five years from the first sale, which may then be sold without reference to the provisions of the homestead laws. None of such lands was to be sold for less than $4 per acre. Payments could be made in installments, the last installment to be paid within five years from the date of sale. All moneys received from such sales as provided for in the act were to be paid to the Indians.

Article VI, section 4, of the act specifically provides that nothing therein contained shall in any manner bind the United States to purchase any portion of the land therein described, or to guarantee to find purchasers for said lands, or any portion thereof, it being the intention of the act that the United States shall act as trustee for said Indians to dispose of said lands and to expend and pay over the proceeds received from the sale thereof only as received and as therein provided.

From these acts it is evident that the ceded Indian lands did not become "public lands" of the United States. The pine lands were to be sold for not less than the appraised value placed thereon and the agricultural lands were to be made available for entry through the use of the public land laws, the entryman in each case being required to pay the appraised value of the land so entered, and the moneys as received, subject to the terms and conditions of the acts of Congress, were to be paid to the Indians.

The Red Lake Indians retained an equity in the ceded lands until after they had been disposed of or entered and payments made, which, less the deductions provided for in the acts, were turned over to the Indians. These Indians, under the decision of the Supreme Court of the United States, in the case entitled Ash Sheep Company v. United States, 252 U.S. 159, were entitled to all revenue accruing from the unentered and undisposed of ceded Indian lands. Fifty-six years after the Indians ceded their lands under the 1889 act and forty-one years after they ceded their lands under the 1904 act, there remained approximately 141,000 acres for which they had received no compensation. This was the situation when, on February 22, 1945, the order of the Assistant Secretary of the Interior was issued, restoring such unentered and undisposed of ceded lands to the Red Lake Indian Reservation and the Indians thereof, pursuant to sections 3 and 7 of the Reorganization Act, supra. Such order was legally issued because those unentered and undisposed of lands were in fact ceded Indian lands in which the Red Lake Indians had an equity until they were actually disposed of and the proceeds, under the cited acts, paid to the Red Lake Indians.

The two Presidential proclamations were subsequent to the 1889 and 1904 acts of Congress. The first of these proclamations, which was issued by President Roosevelt on June 15, 1908 (35 Stat. 2189), proclaimed and made known that all unpatented public lands of the United States, lying within the 60-foot boundary line between the United States and the Dominion of Canada, were set apart as a public reservation, which should thereafter be subject only to such rights as had been theretofore legally acquired under settlements, entries, reservations, or other forms of appropriations, and were then existing, but should not be subject at any time to any other claim, use, or occupancy, except for public highways.

On May 3, 1912 (37 Stat. 1741). President Taft issued a proclamation similar to the prior one

dealing with the 60-foot strip in aid of the customs and immigration laws of the United States. This proclamation reserved from entry, settlement, or other form of appropriation and disposition under the public land laws and set apart as a public reservation all public lands lying within 60 feet of the boundary line of the United States and the Dominion of Canada.

Each of the Presidential proclamations dealt specifically with "public lands" of the United States lying within the 60-foot boundary line between the borders of the two countries. The ceded undisposed of Red Lake Indian lands were not included in the proclamations.

The acts of Congress ceding the Red Lake Indian lands were similar to the act of April 27, 1904 (33.Stat. 352, 362), entitled "An Act to ratify and amend an agreement with the Indians of the Crow Reservation in Montana, and making appropriations to carry the same into effect." The Crow agreement like the agreement with the effect." The Crow agreement like the agreement with the Red Lake Indians of March 10, 1902, was modified and amended before enactment. This Crow agreement was involved in the Ash Sheep case, supra. The Ash Sheep Company contended that the ceded Crow lands were not "Indian lands" but that they were "public lands." Terms used in the Crow Act are similar to those contained in the cession act of the Red Lake Indians. These terms are "ceded, granted, and relinquished to the United States all of their right, title and interest." The Sheep Company argued that since the United States was the owner of the fee of the land before the agreement with the Crow Indians, the effect of the grant and release of the Indians' possessory right to the ceded lands was to vest complete and perfect title in The Government, and thereby make the territory a part of the public lands with the interest of the Indians transferred to the proceeds to be derived from them.

The Supreme Court said that whether or not the Government became trustee for the Indians or acquired an unrestricted title by the cession of their lands depends in each case upon the terms of the agreement or treaty by which the cession was made. Minnesota v. Hitchcock, 185 U.S. 373, 394, 398; United States v. Mille Lac Band of Chippewa Indians, 229 U.S. 498, 509. The court further stated:

It follows, therefore, that the unentered ceded Red Lake Indian lands were restored properly to the Red Lake Indian Reservation as they were not "public lands" of the United States. They accordingly were not included within the 60-foot reservations created by the two Presidential orders as only "public lands" were affected by those orders.

You are accordingly advised that timber growing on these restored Red Lake Indian lands situated within the boundary of the 60-foot strip may be sold under authority of the applicable laws and regulations governing the sale of the timber on the Red Lake Indian Reservation.

There is no Federal law which prohibits the territory of Alaska from creating school districts in territory set aside for Alaskan Indians.

The power of local taxation cannot be asserted against the property of the Alaskan Indians without congressional authorization.

This refers to your inquiry of June 12, 1956, requesting a review of the following question: May a school district be organized under the laws of the Territory of Alaska, in country set aside by the Federal Government for the use and occupancy of Indian Tribes of Alaska?

Prior to the Organic Act of Alaska on August 24, 1912 (37 Stat. 512), it appears that schools outside of incorporated towns were supported by annual appropriation made by Congress. Starting with the Act of January 27, 1905 (33 Stat. 616), a provision was made that "the education of the Eskimos and Indians in the District of Alaska shall remain under the direction and control of the Secretary of the Interior and schools for and among the Eskimos and Indians of Alaska shall be provided for by annual appropriations." Each of the subsequent provisions of acts making appropriations for the support of schools among the natives of Alaska contained a like provision that the appropriations for the support of schools for natives of Alaska shall be under the direction of the Secretary of the Interior. A school system under the direction of the Secretary had become pretty well recognized by the time the Territory of Alaska was created by the Act of August 24, 1912, supra, in that it was provided in section 3 thereof that "the authority granted therein to the legislature to alter, amend, modify and repeal laws in force in Alaska, shall not extend to the act of January 27, 1905, supra, and the several acts amendatory thereof, which act provides that schools for and among the Eskimos and Indians of Alaska shall be provided for by an annual appropriation." Evidently, Congress intended to continue it's education program for children of non-taxpaying natives and this provision of the Organic Act of Alaska served to extend and preserve the system of education that had been established by congressional appropriation under the direction of the Secretary of the Interior.

Although Congress made sure that its schools for the native children of the far reaching Alaskan rural areas were preserved, in no way did Congress attempt to restrict the maintenance and establishment of schools by the Territorial Legislature of Alaska. In fact, Congress expressly granted to the Territory power of legislation for school purposes by the Act of March 3, 1917 (39 Stat. 1131). It was after the enactment of this act that territorial schools came more and more into existence. The ultimate result was, of course, a dual system of schools in Alaska. There were those for the education of white and colored children and "children of mixed blood who lead a civilized life," established and maintained by appropriation from Territorial funds; and those for education of Indians and other natives provided for by the annual appropriations of Congress.

The problems that arose between the United States Government school program and Territorial school program nearly always resulted in the encouragement and expansion of the Territorial school system. The decision in the case of Jones v. Ellis (8 Alaska 146) directed the Territorial school officials to admit both white and native children. This decision indicates a directive by the court requiring the Territorial legislature to expand its school system.

Later, action was taken by Congress which helped and encouraged the Territorial Legislature of Alaska to expand its school facilities. Congress authorized the annual appropriation to be used by the Secretary of the Interior in the support of both the Territorial schools of incorporated towns as well as the rural schools. It soon became a matter of mutual assistance and cooperation between the Secretary and the Territorial School Boards.

On May 13, 1930 (46 Stat. 321) Congress authorized the Secretary to contract with the Territory's school boards that maintained schools in certain cities and towns for the education of non-

taxpaying natives, including those of mixed native and white blood, and Congress authorized the leasing of school buildings owned by the United States to such school boards, and to pay the school boards for services rendered an amount not in excess of the cost of operating a school for natives under present appropriations in such town. Thereafter Congress enacted the Johnson-O'Malley Act April 16, 1934 (48 Stat. 596; as amended, 49 Stat. 1458; 25 U.S.C. 452, 454), and the Territorial Legislature authorized the Board of Administration of the Territory of Alaska to enter into contracts with the Secretary of the Interior for education and welfare work among the Alaskan natives. (Chapter 85, Laws of Alaska, 1935.)

This concept of mutuality of interest between the United States Government and the Territorial Government of Alaska in providing for education of Alaskan children has been prevalent throughout the whole struggle for Alaskan school facilities. Because of the diversified population of Alaska, it is only natural for the Territory of Alaska to concentrate on the densely populated areas, while the United States Government shoulders the burden of providing schools in the more isolated areas where non-taxpaying natives are located. The later extension of the Territorial schools into areas where native children were located was in no way discouraged by the United States Government. In fact, I am aware of no laws passed by Congress which would even indicate an attempt to restrict this expansion of Territorial schools. Actually, the record shows that Congress at all times attempted to encourage and support the establishment of a territorial school system which would reach out and be available for all the children of Alaska, including the Indian and native children.

In my opinion, this historical background of the education program of Alaska clearly indicates that there is no federal order, decision or statute which prohibits the Territory of Alaska from extending its school system into territory set aside for Alaskan Indians.

A study of the 1949 Compiled Laws of Alaska providing for the incorporation of school districts indicates that the purpose of their incorporation is to provide a school board elected according to the laws therein provided for the purpose of the managing and administering all school matters of the district under such rules and regulations as might be promulgated by the Commissioner of Education of the Territory of Alaska. In other words, the district electors themselves elect a school board to whom they may look for the purposes of the erection, maintenance and support of schools. In fact, the school board of the particular school district is restricted to the purpose of providing an administrative body for the sole purpose of maintenance and support of public schools. This being the purpose of a school district of Alaska, there is no objection legally or morally to their creation to include lands set aside by the Federal Government for the use and occupancy of the Indians of Alaska.

In this respect, it should be observed that the Courts within the United States have refused to object to the incorporation of school districts on Indian Reservations. (Lebo v. Griffith (173 N.W. 840); State ex rel. Baker v. Mountrail County (149 N.W. 120.) It is also well recognized that in many respects natives of Alaska are wards of the Government at least to such an extent to bring them within the spirit, if not within the exact letter of the laws relating to American Indians. (49 L.D. 592.) Other cases have expressly said that Indians and natives of Alaska are in the same category as the Indians of the United States. (50 L.D. 315.)

The fact must not be overlooked, however, that a school district is also vested with certain recognized powers as a body politic. And, although the law will not prevent their creation, the powers of the district may come into direct conflict with federal laws protecting the rights of Indians.

The laws of the Territory of Alaska expressly provide that the school board shall have the power and it shall be their duty to appoint an assessor who shall act as a tax collector. (Title 37, Section 3-12 Alaskan Compiled Laws, 1949) and Section 3-23 of Title 37 provide that the school board shall have the power to levy and collect taxes upon real and personal property within the limits of their respective districts not exempt therefrom by existing law, and not to exceed 29; of the assessed value of such property. It is this power that the Federal Government and the Federal Courts have consistently refused to recognize if asserted against Indian property within the protective scope of federal Indian law. (50 L.D. 315; 5 L.D. 155; Alaska Pacific Fisheries v. U.S., 248 U.S. 78; Territory of Alaska v. Annette Island Packing Co., 289 Fed. 671.)

On the other hand, although the territory may not tax property owned and occupied by an Alaskan Indian Tribe, there is no law which prevents its taxation of the property of non-Indians even though non-Indian's property is located upon tribal land under lease from the Indians. Thomas v. Gray, 169 U.S. 264. The Supreme Court in the Helvering v. Producers Corp., 303 1T.S. 376, held that immunity from non-discriminatory taxation sought by a private person for his property or gains because he is engaged in operation under a government contract or lease cannot be supported by merely theoretical conceptions of interference

with the function of government. In upholding a tax upon profits of a private individual operating under a government contract, the Helvering case said: "* * * there are no sufficient grounds for holding that the effect upon the Government is other than indirect and remote * * *." Furthermore, it is well established that, if the land of the Indian Tribe passes from the tribe or individual Indian to a non-Indian, such property becomes subject to real and personal property taxation. (Choctaw, O. & G. R.R. v. Mackey, 256 U.S. 531.)

EFFECT OF TERMINAL LEGISLATION
UPON REVOCABLE RIGHTS-OF-WAY
AND OTHER ENCUMBRANCES
ON INDIAN LANDS

The Secretary of the Interior has authority to make a notation in a patent for tribal or allotted Indian land concerning the encumbrance thereon and such a notation is administratively desirable.

Rights-of-way and other encumbrances are not to be arbitrarily altered by conveyances relying for authority upon Indian Termination Legislation.

Revocable permits for rights-of-way over trust or allotted Indian land need no longer be issued since the enactment of the act of February 8, 1948 (62 Stat. 17, 26 U.S.C. 323) authorized the Secretary to grant rights-of-way.

Rights-of-way, leases and other encumbrances on property transferred pursuant to termination legislation, subject to the Secretary of the Interior's power of revocation, cannot be revoked solely to facilitate termination of guardianship activities.

The rights of persons and concerns having leases, rights-of-way, permits, licenses, liens or other contracts encumbering real property to be disposed of pursuant to Terminal Legislation are not affected by such legislation (citing Section 22 of the Klamath Termination Act (68 Stat. 723; 25 U.S.C. 564u) ).

The Secretary is authorized to grant leases, permits, licenses, rights-of-way, liens and other contracts encumbering real property to be disposed of pursuant to Terminal Legislation, after the date of enactment of such legislation and until the effective date of termination of federal responsibility. Such encumbrance may even extend beyond the final date of termination of responsibility, but in all such cases the written consent of all persons in interest should be obtained.

Provisions in Terminal Legislation (see Section 22, Klamath Termination Legislation, 68 Stat. 723; 25 U.S.C. 564u) empowering the Secretary of the Interior to transfer "powers, duties or other functions with respect to the property subject to" leases, rights-of-way or other contracts encumbering land to be disposed of, are not mandatory. Whether the Secretary extinguishes them, retains them, or transfers them as therein provided, is a matter of administrative nature, involving governmental policy.

Secretary's authority to revoke permit for right-of-way is not arbitrary. He cannot employ this power solely to facilitate Termination Legislation.

Notation of an encumbrance on a fee patent for tribal or allotted land issued pursuant to Terminal Legislation is within the Secretary of the Interior's authority and is administratively desirable.

To:            Regional Solicitor, Portland
From:        The Solicitor
Subject:     Effect of Termination Legislation upon revocable rights-of-way and
                 other real property encumbrances on Indian lands disposed of pursuant
                 thereto

A question has been raised as to the status of a Weyerhauser Timber Company's logging railroad right-of-way permit on the Klamath Indian Reservation in view of the subsequent enactment of the

Klamath Termination Legislation (act of August 13, 1954, 68 Stat. 718; 25 U.S.C., sec. 564-564 (w) ). The Klamath Termination Act provides for the termination of Federal supervision over the property of the Klamath Tribe of Indians located in the State of Oregon and of its individual members. One permit in question is in the nature of a contract for a right-of-way granted to the timber company in September 1940 by the Secretary of the Interior on behalf of the owners of the tribal and allotted lands encumbered thereby. The Secretary retained the power of revocation of the easement, and the permittee timber company obligated itself to certain undertakings. The permittee paid in advance a scheduled amount for the benefit of each owner of the properties so encumbered. It appears that the consents of all such property owners were previously obtained by the Reservation Superintendent.

We are also informed that in a similar case involving a revocable permit for a spur siding, known as the "Mayamor spur siding," a 50-year permit was obtained by this same company "superseding a revocable permit." Apparently, the new permit was granted after the passage of Public Law 587, the Klamath Termination Act. The Superintendent of the reservation now raises a question as to his authority to grant this permit.

The problems presented by these cases are common to all leases, rights-of-way, or other agreements involving property which is or will be included in Indian termination legislation. A discussion of the various problems raised and our conclusion concerning the legal questions follow:

The Solicitor has previously ruled in a case involving a patent for allotted land that the Secretary of the Interior has authority to make a notation therein concerning a permit of a right-of way for logging. He has also observed that, although such a notation is not necessary to protect the rights of the permittee, the notation is administratively desirable. (Opinion M-36158, November 28, 1952.) To the same effect see Washington Water Power Co. v. Harbaugh, 253 Fed. 681, Idaho 1918; Swendig v. Washington Water Power Co., 281 Fed. 900 (9th Cir. 1922).

This same principle is applicable to fee patents issued pursuant to Public Law 587, and to other similar termination legislation, which may involve patents for tribal land as well as for allotted land.

The rights of the Timber Company and of other persons or concerns having rights-of-way, permits, or other property or contract interests are not to be arbitrarily altered by conveyances relying for authority on the Klamath "Termination" Legislation. Section 22 of that Act (68 Stat. 723) specifically provides that its provisions for disposing of property shall not "abrogate any valid lease, permit, license, right-of-way, lien, or other contract heretofore approved." This provision makes no distinction between disposition of Indian lands among Indians and sales to third persons, nor should there be in such cases.

Conveyances of Indian Land Subject to
Encumbrance, the Conveyance Not Being
Made Pursuant to Termination Act

It is suggested that some sales of allotted Oregon Indian Land encumbered by a right-of-way may not be made pursuant to Public Law 587, and therefore Section 22 thereof would not apply.

The provisions of Section 22, quoted above, are common to other termination acts and, in effect, incorporate the Constitutional mandate of the Fifth Amendment forbidding the impairment of property rights. That principle is applicable to the disposal of Indian lands not specifically effected pursuant to Public Law 587 and other similar termination legislation.

Congress also recognized that, upon termination of Federal supervision of the Indian properties involved, a problem would arise in those cases where the Secretary had been given by prior law discretionary powers, such as that of revocation in the disposition of property rights involving Indian lands. This same Section 22 provides that "When ever any such instrument" (referring to leases, rights-of-way, or other contracts previously mentioned in the section) "places in or reserves to the Secretary any powers, duties or other functions with respect to the property subject thereto, the Secretary may transfer such functions, in whole or in part, to any Federal agency with the consent of such agency and may transfer such functions, in whole or in part to a State agency with the consent of such agency and the other party or parties to such instrument." (August 13, 1954, c. 732, sec. 22 (68 Stat. 723) .) It should be noted that the transfer of these functions is not mandatory. Whether the Secretary extinguishes them, retains them or transfers them as therein provided, is a matter of an administrative nature, involving governmental policy. The Secretary will consider, in making his decision, whether those functions are to be retained for the benefit of the public, of Indians generally, or of a particular Indian or group of Indians. It should also be noted that

some of these permits, rights-of-way and other similar encumbrances are granted by the Secretary of the Interior pursuant to specific statutory authority, which may also provide that the right or privilege granted is revocable, as in the case of power transmission line and telephone line rights-of-way. (See Washington Water Power Company cases, cited above.)

In some cases the Commissioner of Indian Affairs acts without specific statutory authority but pursuant to a general supervisory authority conferred upon him by Congress "to have the management of all Indian Affairs." (Act July 9, 1832, c. 174, 4 Stat. 564, 25 U.S.C. Sec. 2.) The desire of the Department of Interior to further logging operations on Indian land in order to benefit the Indians having an interest therein resulted in the revocable permits herein considered without reliance upon specific statutory mandate but pursuant to said supervisory authority.

The more recent act of February 8, 1948 (62 Stat. 17, 25 U.S.C. sec. 323) authorizes the Secretary of the Interior to grant rights-of-way "for all purposes, subject to such conditions as he may prescribe, over and across any lands now or hereafter held in trust by the United States for individual Indians or Indian tribes, communities, bands or nations, or any lands now or hereafter owned, subject to restrictions against alienation * * * by such Indians." Payment of just compensation is required and there is also a statutory provision requiring, in most cases, consent of the Indians involved. (Secs. 2 and 3 of the Act.) This statute removes the necessity of employing the "revocable permit" in such cases.

A question is also raised that, it the Secretary exercises his power of revocation in a specific logging right-of-way permit, the obligations assumed by the company in the granting of such permit may be affected. The answer appears to be that, if the Secretary considers extinguishing or transferring this power of revocation, a modification of the permit agreement is necessary, to which the permittee and the Indians whose property would be affected should be parties. This may apply to any case in which the Secretary alters the character of a revocable permit, as for instance, by transferring the power to a State agency, since it affects the permittee who has certain vested rights under the permit. It should be observed that the Secretary's power to revoke is not an arbitrary power. He can not employ his power of revocation solely to facilitate the termination of his Indian guardianship activities.

In the present case it appears to have been the intention of the Secretary, upon issuing the logging rights-of-way revocable permits, that these permits should continue in effect as long as the logging contracts should be faithfully performed. So far as such logging rights-of-way on Indian lands are concerned, the statutory retention of the power to revoke in the Secretary is for the benefit of Indians and not of the public generally. There is no reason why the Secretary should retain this power, since the purpose of the termination legislation is to relieve him of such supervisory tasks.

Effect of Right-of-way or Other Contract
made after Enactment of Terminating
Legislation

A further question is considered, whether a "valid lease, permit, license, right-of-way, lien or other contract" may be granted by the Secretary for land to be disposed of under such an act as the Klamath Termination Act, supra, after the date of the enactment of such legislation. This question arises from the choice of language in Section 22 of Public Law 587, supra, that nothing in the law "shall abrogate any valid lease, permit, license, right-of-way, lien, or other contract heretofore approved * * *." (underlining supplied.) It is suggested that this express protection of permits and other contracts granted prior to the date of the enactment of that law may imply a prohibition on the further granting of permits or other encumbrances on such lands between the date of the enactment and the effective date of the act especially if such encumbrances extend beyond the final liquidation date.

We have already suggested that the purpose of Section 22 was merely to clarify existing constitutional law respecting the non-impairment of property rights. If this provision were to be interpreted as preventing the Secretary from changing, after the date of the enactment of the Termination Act, any lease, permit, or other contract right, even with the consent of the other parties thereto, it would nullify, considerably, the responsibility imposed on the Secretary as the guardian of Indian Affairs to terminate his supervisory activities in a manner designed to safeguard the interests of his wards.

In view of the purpose of this termination legislation to permit the Indians to assume responsibility, it would be unwise, however, for the Secretary to enter into long term encumbrances affecting property which is the subject of such legislation without receiving the written approval of the owners of the affected property, or their representatives.

Our conclusion, therefore, is that the authority of the Secretary or his delegate to enter into agreements for rights-of-way, leases, or other interests in Indian lands held in trust by the United States continues after the date of enactment of termination legislation until the effective date set forth in such act for such termination of Federal responsibility over the Indian properties involved. Any question as to the validity of such agreements entered into after the date of enactment of such termination legislation will be avoided by obtaining the written consent thereto of all persons in interest. Especially is this so in the case of agreements which are to continue in effect beyond such date of termination of responsibilities.

Patents or other documents conveying property pursuant to Indian termination legislation should recite those encumbrances on such property as are to continue in effect.

INTERPRETATION OF THE ACT OF AUGUST 3, 1956
(70 STAT.982) RELATING TO THE MANAGEMENT
OF THE RED LAKE INDIAN FOREST
AND SAWMILL

The provision of Item (e) of the Act of August 3, 1956, 70 Stat. 982, stating that the Secretary of the Interior is to employ with the consent of the Tribal Council, such persons and use such means as he may find necessary to carry out the purposes of the foregoing provisions, is interpreted as meaning that the authority of the Secretary of the Interior to employ individuals is modified by the phrase "with the consent of the Tribal Council" only to the extent that the Tribal Council's consent is necessary for the initial selection of individuals to fill the particular positions in connection with the operations of the Red Lake tribal sawmill.

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Interpretation of Item (e) of the Act of August 3, 1956, 70 Stat. 982,
                 relating to the management of the Red Lake Indian forest and sawmill

This refers to your memorandum of September 14, 1956, requesting my opinion as to the correct interpretation of Item (e) of the Act of August 3, 1956, supra, which reads as follows:

You have asked this office to express an opinion as to certain questions raised by Mr. Holtz, the Area Director of the Minneapolis Area Office, in his letter of August 29, 1956. These questions are as hereinafter set out in this memorandum:

1. Logging Foreman Clarence W. Cavanaugh has applied for retirement, effective October 31, 1956. This is a key position which must be filled November 1 without delay. Will it be necessary that the Tribal Council "consent" to the employment of Mr. Cavanaugh's successor?

2. Is Tribal Council "consent" required for promotion of present employees to positions of higher responsibility?

3. Will tribal "consent" be required to contract with individuals who do piece work, such as cutting pulp cordage and bolts by the piece?

4. Is tribal council "consent" required to "use such means as he may find necessary to carry out the purposes of the foregoing provisions"? Examples of this item are: approval of wage rates to be paid mill and woods employees, selecting individuals to cut isolated salvage areas following fires and/or blow-downs, establishment of rates to be paid for piece work, mill organization, and many other decisions required in the operation.

The first question must be answered in the affirmative. The answer to the second question depends upon whether or not the promotion of the present employee is a selection of that individual for a new and different position. If it is, the Tribal Council's consent is necessary. But, if the promotion merely involves an increase in the responsibility or salary of the present employee in his existing position, the Tribal Council's consent is not necessary. That part of the fourth question which involves the selection of individuals for employment must be answered in the affirmative and the rest of the fourth question is answered in the negative.

It should be noted that inclusion of the phrase "with the consent of the Tribal Council" in Item (e) of the act did not by itself destroy the equally forceful directive of the provision of Item (e) which states that the Secretary is "to employ" such persons and to use such means as he may find necessary to carry out the purposes of the foregoing provisions of the act. Certainly, the hiring and firing of individuals as well as the many other

decisions necessarily involved in their employment are as important as any other single means to the fulfillment of the Secretary's duties prescribed by the law.

It is well established that the power of removal from employment is a necessary incident to the power of employment. Myers v. United States, 272 U.S. 52 (1926); Keim v. United States, 177 U.S. 290 (1900); Creshaw v. United States, 134 US. 99 (1889); 43 A.J. 183. Although most of these cases involve an executive officer of the United States Government whose power of appointment has been made subject to the consent of the Senate, the principles involved therein are controlling in this problem.

In this respect, I believe the ruling in the leading case of Myers v. United States, supra, is decisive. Therein the following language on page 164 of the opinion is particularly appropriate:

In the Myers case the court was concerned with the executive power of the President to control postmasters and the court held that the control of the President extends to their removal without the consent of the Senate, although the consent of the Senate was required for the appointment and that a statute providing for tenure of office, insofar as the statute attempted to prevent the President from removing executive officers who had been appointed by and with the consent of the Senate, was invalid.

The court in the Myers case expressly held that any question of efficiency or competency of employees after an individual had been hired, were matters peculiarly within the province of those who are in charge of and superintending the department. The policy behind the decision was the duty of the President to see that the laws were faithfully executed, and in this case the policy is of equal weight in that the Secretary is bound as trustee to use such means as he may find necessary to carry out the purposes of the Act of August 3, 1956, supra.

DRILLING OF A WELL ON THE SAN CARLOS
RESERVATION FOR MUNICIPAL USE IN
THE CITY OF GLOBE, ARIZONA

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Drilling of a well on the San Carlos Reservation for municipal use
                 in the city of Globe, Arizona

In your memorandum of April 6, 1956, you ask for an opinion by this office concerning the authority of the San Carlos Apache Tribe to enter into a contract or lease with the city of Globe, Arizona, under which the city would drill a well on lands within the San Carlos Reservation for the purpose of maintaining a municipal water supply.

The desire of the city of Globe to augment its water supply in the manner indicated above was brought to your attention by a letter from the mayor of the city dated April 16, 1956. In that letter it is asserted that the waters to be tapped by the well are "ground or percolating waters." No authoritative determination of that fact has, however, been made, and it would be improper to proceed on that basis until such an authoritative determination has been made. It may be observed also in this connection that under Arizona law the use of percolating waters by a landowner is generally limited to the purpose of reasonable use of the waters on the land from which the waters are taken. See Bristor v. Cheatham, 255 P. 2d 173 (Ariz. 1953). Although in our view the State law on the subject is not applicable to the Indians, it is applicable to the city of Globe and the city may thus be seeking to enter into contractual relations that are inconsistent with the laws of its own State.

The site of this proposed well, we are informed, is in the Gila River watershed, and hence it is quite possible that the well would tap the under ground flow of the Gila River. If so, the proposed lease or contract might well run afoul of the water allocations and priorities determined and set out in the decree entered on June 29, 1935, in the case

of United States v. Gila River Irrigation District et al., Globe Equity No. 59, in the District Court of the United States in and for the District of Arizona.

Another complicating factor is that the water rights claimed for and in behalf of these Indians are now involved in the case of Arizona v. California et al., Original No. 10 in the Supreme Court of the United States. Pending a determination of what those rights are, it would appear to be improper or unwise to enter into or approve a contract or lease such as that proposed with the city of Globe.

For the foregoing reasons, I recommend that the proposed contract or lease be not entered into or approved at this time.

STATUS OF OSAGE OIL AND GAS LEASES
AFTER TERMINATION OF PERIOD WHEN
MINERALS ARE RESERVED TO TRIBE

In the event the present period during which the oil, gas, and other minerals are reserved to the Osage Tribe should expire and the oil, gas, and mineral title is individualized, the transfer of such title will be subject to any valid subsisting oil or gas lease.

To:            Commissioner of Indian Affairs
From:        Solicitor
Subject:     Status of Osage oil and gas leases after termination of period during
                 which oil, gas and other minerals are reserved to the Osage Tribe

In a memorandum dated February 10, 1956, our Regional Solicitor at Tulsa, Oklahoma, requested my opinion for use of the Osage Tribal Council upon the following question:

The original Osage Allotment Act of June 28, 1906, 34 Stat. 539, provided for the allotment of the Osage Reservation to individual members of the tribe and the making of a final roll of tribal membership. Section 3 of the act reserved for the benefit of the Osage Tribe in common all the minerals covered by the lands to be allotted under the act, for a period of 25 years from and after April 8, 1906. It provided for the leasing of the lands for oil, gas, and other mineral development purposes by the Osage Tribal Council subject to the approval of the Secretary of the Interior. This leasing provision of the act reads as follows:

At an early date the Secretary of the Interior and the Osage Tribal Council adopted the plan of leasing separately the oil and gas underlying the lands of the Osage Reservation. Blanket gas leases covering virtually the entire reservation area were made and approved. Oil leases were offered from time to time on numerous units of approximately 160 acres each for lease to the highest responsible bidder. Both forms of lease provided for a term that should in no event extend beyond April 8, 1931, the date upon which the tribal title to the mineral estate in the lands would terminate. As this date approached, the Osage Tribe was faced with the condition of extreme concern. New leases for the short period of tribal ownership remaining were not attractive to the industry. Time was running out on the operation of existing leases, and this brought about intensive and wasteful efforts on the part of the operators to get the oil out of the sands in the shortest possible time. These aggravated conditions led the tribe and the Department to seek legislation which would extend the period of tribal ownership of the minerals and which would also provide for a leasing period long enough to assure orderly development and an adequate return to the tribe for its mineral re-

sources. Earlier versions of this proposed legislation (see S. 4039, 63d Cong., 3d sess., 1921) proposed to extend the period of tribal ownership of the minerals and to extend for a like period existing oil and gas leases which would otherwise expire by their terms in 1931. This earlier proposed legisiation also contained a further provision to the effect that the extended leases should not run longer than the period of tribal ownership of the minerals. This latter provision, however, was stricken, and the legislation as finally enacted into the act of March 3, 1921, 41 Stat. 1249, reads:

It is quite clear from the foregoing language that all oil and gas leases which were in force on April 7, 1931, were renewed and extended not only for the extended period of tribal ownership of the minerals but beyond that period so long as the leases produced oil or gas in paying quantities.

By the acts of March 2, 1929, 45 Stat. 1478, and June 24, 1938, 52 Stat. 1034, the period of tribal ownership of the minerals was again extended. The 1929 act extended this period to April 8, 1958, and the 1938 act extended the period to April 8, 1983. These two acts contain identical provisions with respect to the extension of existing leases. It is quoted below from the 1938 act:

By this statutory declaration there was written into each valid oil and gas lease then in force on Osage lands the indefinite term that they were to remain in effect for as long as oil or gas is found in paying quantities. The statute contains no other limitation which would operate to terminate the leases with the termination of the period of tribal membership of the minerals. Such a limitation was deliberately and advisedly omitted by the Congress for, as we have seen, good reason. If there should be no further extension of the period of tribal ownership of the minerals, it is, therefore, my opinion that ail such leases, if in good standing and if producing in paying quantities in 1983, will remain in full force and effect so long as such production continues.

There can be no question concerning the power of the Congress to extend these leases. The power of the Congress to extend the period of tribal ownership of the minerals was considered and upheld in Adams v. Osage Tribe of Indians, 10th Cir. 1932, 59 F. 2d 653, cert. denied 287 U.S. 652. In so holding, the Court said:

Like reasoning, of course, supports the action of the Congress with respect to the leases on the oil and gas deposits. The individuals who would succeed to the mineral title in the event the Congress fails to extend the period of tribal ownership in 1983 have no vested estate in the minerals, either present or in remainder. Adams v. Osage Tribe of Indians, supra. If and when they succeed to the mineral title, they take that title subject to valid subsisting leases. Indeed this is the normal situation where the tribal title to lands covered by existing leases is individualized through the allotment process.

One further question needs to be considered. This question relates to oil and gas leases executed and approved subsequent to the last extension act of 1938. Under the broad authority conferred on the Osage Tribe and the Secretary of the Interior by the Allotment Act of 1906 and each of the sub sequent extension acts, it is quite competent for the tribe and the Secretary to fix the period of leases, and the lease contracts themselves will thus be controlling with respect to the question whether they will endure beyond the period of tribal ownership of the minerals. As pointed out above, the oil and gas deposits underlying the Osage Reservation lands are leased separately. The oil lease form in use subsequent to 1938 provides for a term of five years "and as long thereafter as oil is produced in paying quantities." Leases executed and approved on such forms will accordingly remain in force, if otherwise in good standing, as long as production continues, even though the tribal ownership of the mineral deposits may have terminated in the meantime. In such event, the individual owners who succeed to the tribal title would take that title burdened with the existing leases.

The gas lease form in use subsequent to 1938, like the oil lease form, provides for a period of five years "and as long thereafter as gas is produced in paying quantities." Unlike the oil lease form, however, the gas lease form contains the additional limitation that nothing contained therein "shall be construed as extending this lease beyond the Trust Period of the Osage Tribe." Gas leases executed and approved on this form subsequent to 1938 will not survive the period of tribal ownership of the minerals.

To:            Regional Solicitors
From:        Solicitor
Subject:     Necessity of acknowledging Bureau orders which are recorded under State laws

A study has recently been made in this office on the question whether State laws providing for acknowledgment, as a condition precedent to the recording of certain instruments affecting interests in realty, apply to patents, leases and other orders issued pursuant to acts of Congress by Federal agencies. The results of investigation into this matter reveal that instruments presented for recordation in a county office for the purpose of obtaining whatever prerogatives the State law accords to that record must substantially comply with the statutory requirements as to form, manner of execution and attestation which are prescribed by that State.¹

A case in point involves an Order Removing Restrictions Against Alienation of land belonging to an Indian. The clerk of an Oklahoma county refused to record such an order on the ground that it did not bear an acknowledgment as required by Oklahoma statute (16 Okla. St. Ann. Sec. 26), which provides:

Federal orders are of record when filed in designated Government offices.² However, for many

¹ A county auditor may not be compelled, by a writ of mandamus, to record an instrument which fails to meet the statutory requirement as to acknowledgment. Eggert v. Ford, 21 Wash. 2d 152, 150 P. 2d 719 (1944); Adkins v. Arnold, 121 Pac. 186 (1912) affd. 235 U.S. 417. Federal courts passing on the effect to be given registration statutes, and the failure to comply with them, are bound by the decisions of State courts interpreting such statutes. Firestone Tire and Rubber Co., 17 F. 2d 417 (1927).
² Anchor Oil Co. v. Gray, 257 Fed. 277, CCA 361 (1919) affd. 256 U.S. 519: United States v. Davidson (Mont. 1923) 2302-33-321. See Webb. "Record of Title" see. 25, 2 Iowa Law Bul. 51, 61 (1916).

years it has been the practice to file all instruments affecting interests in land in the county where the land is situated as well as in the Federal office prescribed by statute. In most cases, this duplicate recording merely provides the convenience of greater accessibility and a more adequate notice to purchasers. The general rule pertaining to patents and other lesser interests granted by the Government is that such conveyances need not be recorded under State law unless a recording under State law is expressly mentioned in the Federal statute authorizing the transfer, or in the duly promulgated regulations of a Federal Agency having authority over the matter.³

Between the parties, an unrecorded deed properly signed and delivered will pass title. An unrecorded conveyance is generally valid against everyone except creditors and purchasers, without notice, who have subsequently derived title from the grantor. Acknowledgment merely gives solemnity to the execution of the instrument. "In some jurisdictions the only purpose of certificates of acknowledgment is to entitle instruments to be recorded. Generally, however, the purpose is not only to entitle the instrument to be recorded but also to authorize its introduction in evidence without further proof of its execution. The due execution of an instrument acknowledged and recorded is deemed to be proved, at least prima facie. As against subsequent bona fide purchasers, it operates as an estoppel." 1 Am. Jur. 317.

In most States, official records (including documents filed in Federal agencies designated by statute as offices of record) will be admitted into evidence upon the disclosure of the identity and official character of the public officer who has issued the document. Where the certificate contains his name and official title and a recital showing he is acting in his official capacity, an acknowledgment may be appended to support the recital in the certificate as to these matters.⁴ A formal acknowledgement of such certified document is regarded as superfluous. Where a document has been properly recorded in an office of record it is generally proper to present, for admission into evidence, a certified copy of the record with such proof as is required by the laws of the particular State. Following this theory, some States provide by statute that the certified copy of the record of any conveyance may be recorded in any county with the same force and effect that the original instrument would have if so recorded. ⁵

It has been the practice of the Indian Bureau to issue orders transferring inherited interests in land, orders removing restrictions and certificates of competency without making provision for an acknowledgment in the forms used in preparing these orders. When these documents are presented for recording in a county, they are often accepted solely on the strength of their official character. But if, as in the instant case, the unacknowledged instrument is refused, then the Area Director merely appears before a notary public to make the necessary acknowledgment in compliance with State law.

The county courts of Oklahoma are, under the Act of May 27, 1908, as amended (35 Stat. 312), recognized as Federal agencies for the removal of restrictions against alienation of land inherited by or devised to Indians of the Five Civilized Tribes of one-half or more Indian blood. United States v. Easley, 33 F. Supp. 442 (1940), cf. Parker v. Richard, 250 U.S. 235, United States v. Bond, 108 F. 2d 504 (1939).⁶ In all other instances an Order removing restrictions may be issued only by the Secretary of the Interior or his duly authorized representative. The matter of removing restrictions from the property of Indians and the matter of issuing fee patents for trust lands are matters for the discretion of the Secretary of the Interior and mandamus will not lie to compel him to perform such a discretionary action. Spriggs v. McKay, 119 F. Supp.

³ Eg. Act of May 27 1908 (35 Stat. 312. 315), Act of August 13, 1954 (68 Stat. 722, 25 U.S.C. 564b), Act of March 29, 1956 (70 Stat. 62); 25 CFR 21.9, 28.11, 242.5, 241.52.
    ⁴ I Am. Jur. 363. In Carpenter v. Dexter, 8 Wall. 513 Justice Field wrote, "Unless the statute requires evidence of official character to accompany the official act which it authorizes, none is necessary."
    ⁵ Cf. Minnesota Statutes § 507.25.
    ⁶ The Secretary of the Interior is also empowered to remove the restrictions from such lands by the Act of August 11, 1955 (69 Stat. 666).

232 (1954). The power to approve the alienation of restricted property cannot be generally transferred to any other governmental agency. Solicitor's Opinion M-25258 (June 26, 1929).

In form, the Order is a departmental ruling by which the legal incapacity of an Indian desiring to transfer his vested interests in land is declared to be terminated.⁷ The important difference between such an order and a patent or deed conveying a fee simple title is that the order is issued only after the grantee has already been vested with both legal and equitable interests by a restricted fee patent.⁸ Where a trust patent has been issued, the trust and incidental restrictions against alienation are properly terminated by the issuance of a fee simple patent which conveys the title. United States v. Flory County, 24 F. Supp. 399; cf. Larkin v. Paugh, 287 U.S. 431, or by a deed from the Indian to another which has received the approval of the Secretary of the Interior. Cf. United States v. Getzelman, supra. In either event the action of the Department would not be filed separately as is the case here.

In United States v. Reily, 290 U.S. 33, it was held that the restriction imposed on alienation of Indian land is not personal to the allottee but runs with the land. Nor does the Citizenship Act of June 2, 1924 (43 Stat. 252) affect such restrictions. Therefore, Indian heirs do not inherit free of the restriction. Drummond v. United States, 131 F. 2d 568.⁹ Even the issuance of a fee patent to an Indian for his own allotment does not have the effect of releasing restrictions against alienation of land which has been inherited by him from other Indians to whom patents had not been issued. Spriggs v. McKay, supra.¹⁰

The Order Removing Restrictions Against Alienation provides that whereas the Indian acquired certain described land subject to a condition that when the title is in the grantee, or his heirs, no sale or encumbrance thereof shall be valid without the consent of the Secretary of the Interior, and whereas the owner has applied to have these restrictions removed and it is found that the best interests of the applicant will be served by removing the restrictions on the described land, therefore by virtue of the provision of the deed of conveyance and the authority delegated to the Area Director by Secretarial Order, the restrictions are removed. A similar result is obtained through the issuance of a Certificate of Competency. 25 U.S.C. 372. The importance of this document as a matter for record is not the creation of new rights and interests, but rather the notification it imparts that henceforth the owner freely, and in his own name, may validly transfer his interests in the land. In this respect it is similar to a court order terminating a guardianship. When such an instrument is required by State statute to be acknowledged prior to being recorded but is written into record without being acknowledged, the record is not constructive notice to subsequent purchasers or anyone else. However, orders removing restrictions are issued chiefly in the States of Oklahoma and Washington where it is commonly known that in transactions involving Indian lands no title search which is limited to the county records is complete. In all States where such transfers frequently occur, the doctrine of caveat emptor applies, Humphrey v. Baker, 71 Okla, 272, 176 Pac. 896. Therefore, a purchaser who fails to inform himself of matters on record at the Agency where records pertaining to the allotment are kept may later discover that he has invested in restricted lands. As has been stated previously, the practice is becoming more and more widespread for Indian patents to be recorded under State law in the county where the land lies, and often such record provides all the information which is necessary to insure a marketable acquisition of interest. We have noted, however, that persons desiring to make substantial investment in the development of such lands make a complete search of all records available.

The recording statutes of the several States have been examined for the purpose of determining whether it would be necessary or desirable to include a provision for acknowledgment in all forms used by the Bureaus of this Department to create, modify or terminate various restrictions or interests in lands.¹¹ No State statutes contain express provisions relating to or specifying Orders Removing Restrictions Against Alienation of Land.

The results show that acknowledgment of the execution of a conveyance by the grantor is generally required. States accepting documents for rec-

    ⁷ 25 U.S.C. 391 (a), 392. 25 CFR 241.35. 241.36, 24.
    ⁸ 25 U.S.C. 348: United States v. Getzelman, 89 F. 2d ,531 cert. den. 302 U.S. 708. Ex Parte Peru, 99 F. 2d (1939) cert. den. 306 U.S. 643.
    ⁹But cf. Mullen v. U.S., 224 U.S. 448 (1912) which held that heirs of patent applicant who died before patent was issued may convey without restrictions.
    ¹⁰ But cf. U.S. v. Mullendore, 30 F. Supp. 13 (1939) when a non-Indian heir enters into possession of land the restrictions against alienation are thereby ended.
    ¹¹ Certain Interior Department forms now require acknowledgment. Among these are: Application for a patent in fee or sale of Indian land, deeds, business leases, and tribal resolutions authorizing tribal leases. Among forms not providing for acknowledgment are: Order transferring inherited interests in land, revocable permits, release of interest in a lease, agricultural lease.

ord without acknowledgment are: Illinois,¹² Vermont,¹³ Virginia,¹⁴ Colorado,¹⁵and Louisiana.¹⁶ However, in nearly every State there is some exception made for United States Government documents or some curative provision for unacknowledged or defectively acknowledged documents on record for a specified period of time.

1. The following States have a registry type of recording statute providing either that no estate shall pass until conveyance recorded, or that instruments shall not be effectual to hold lands against any person but the grantor and his heirs unless recorded as provided in the laws of the State:

Arizona	--c. 1939, 7 1.405
California	--CC. 1214
Connecticut	--Gen. Stat. 1949, § 7085
Delaware	--C. Ann. Title 25, § 15 1
Georgia	--c. 1933, 29-401, 405
Indiana	--Burns Ann. Stat. (1951) 56--103
Kentucky	--Rev. Stat. (1953) 382.080
Maine	--Rev. Stat. (1930) C. 87, § 14
Maryland	--Ann. C. (1951) Art. 21, § 7
Massachusetts	--Anno. Laws (1933) C 183, §§ 4, 5
Minnesota	--Code 507-34
Nebraska	--Rev. Stat. (1943) 76-216
New Hampshire	--C. 477:3
North Carolina	--Gen. Stat. (1950) 47-18
Ohio	--Page Gen. Code (1938) § 8510
Pennsylvania	--stat. 21--42
Rhode Island	--Gen. Law (1938) C-435, § 1
Tennessee	--Michie Tenn C. (1938) § 7630
Texas	--Vernon Anno. Civ. Stat. (1948) § 6626
Vermont	--Stat. Rev. (1947) § 2643
Virginia	--c. 55-107
Washington	--Rem. Rev. Stat. § 1055 1, 1060 (i)
Wyoming	--Comp. Stat. (1945) 66-108

Rhode Island, Connecticut, Georgia, Indiana, Louisiana, and Maine make no exceptions to the recording requirement. The other States make the following exceptions to the rule that all instruments recorded must be acknowledged.

Arizona	--All grants from the United States. Code (1939) 71--422
California	--Letters patent, Leases with United States as lessor, copies of certified inter-departmental letters or decisions, copies of documents filed in General Land Office. Government § 27285.
Delaware	--Deeds on Record at date of Curative Act deemed duly acknowledged. C. 25--132.
Illinois	--Registry of all writings relating to real estate but such instruments are deemed as being of record from the time of filing though not acknowledged or proved according to law. However, unacknowledged deeds do not constitute constructive notice to subsequent purchasers or creditors nor may they be read as evidence unless their execution is proved according to the rules of evidence. 30 Smith-Hurd (1934) § 30.
Kentucky	--Exempts deeds made or executed under and in accordance with the laws of the United States. Such deeds are entitled to be recorded and given the same force and effect as though they has been acknowledged in accordance with the laws of the State. C. 382--170 (516).
Maryland	--Excepts leases for an initial term of not more than seven years. C. Vol. 1, Art. 21, sec. 7.
Massachusetts	--The requirement of acknowledgment shall not apply to conveyances from the United States. Anno. Laws 183, § 29.
Minnesota	--Permits the recording of a certified copy of any instrument on record elsewhere. C. 507.34.
Nebraska	--Curative legislation for defectively acknowledged deeds executed prior to 1867. Other proof is allowed. Rev. Stat. 76--216, 221.
New Hampshire	--Unacknowledged deeds may be recorded and are as effective as i