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lands and the right to hunt and fish on former Indian lands within an Indian reservation. That case involved the prosecution of a number of the Bad River Band of the Chippewa Tribe for hunting deer out of season on fee patented lands within the boundaries of the Bad River Reservation. The count said:

    "*     *     * But the present action involves lands fully patented to an Indian and thereafter sold and conveyed without reservation or restriction to a citizen of this state. As to such lands, may it be said that they were sold subject to an implied covenant or condition that members of the Chippewa Tribe might perpetually hunt thereon without restriction. We think it would be unreasonable so to hold. *     *     *" (Underscoring supplied)

We are aware of no ruling contrary to that which is implicit in the above question from the Johnson case.

    The holding in your memorandum that the Coeur d'Alene Indians have reserved to themselves the right to hunt and fish on fee patented ceded Indian lands is not in accord with the reservation doctrine established by the courts. And since there is nothing in the Treaty, agreement, or acts of Congress dealing with these Indians similar to the reservations in the Yakima Treaty there is no reserved right vested in the Indians authorizing their hunting or fishing on the land after the land passes out of Indian ownership. An examination of the record in the case entitled The Coeur d'Alene Tribe of Indians v. United States of America, before the Indian Claims Commission, decided December 3, 1957, Docket 81, shows no claim of rights, such as dealt with in your memorandum, was presented to the Commissioner.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

PROBATE OF RESTRICTED FUNDS IN STATE COURTS

April 11, 1960.

DEAR MR. ALBERT:

    This responds to your letter, dated April 1, 1960, addressed to the Secretary of the Interior, in which you referred to your prior communication, dated October 15, 1959, regarding the estate of Taylor Greenleaf, a deceased full-blood Creek Indian. We expressed the opinion in our reply of November 2, 1959, that Taylor Greenleaf's restricted estate, as such, was not subject to administration proceedings in the State probate courts of Oklahoma, notwithstanding the circumstance that some of his heirs may not be of the restricted class, i.e., of one-half or more Indian blood.

    Since the above conclusions by this office were based upon a consistent, and what we regard as a correct, interpretation of sections 3 (a) and 5 of the act of August 4, 1947 (61 Stat. 731), referred to in your recent communication, we did not regard it essential that our views on that statute be referred to the Attorney General for his opinion. Moreover, no circumstances are present in the Taylor Greenleaf case which can be regarded as an independent reason for requesting such an opinion.

    The position taken by this office that a claim against the restricted estate of the above decedent will require administrative consideration by officers of this Department was fully analyzed at the time the claim of W. S. Sessions was presented. For your information in that respect we are enclosing a copy of the memorandum, dated May 26, 1958, which this office sent to the Commissioner of Indian Affairs.

    We have kept in mind in our consideration of Sections 3 (a) and 5 of the act of August 4, 1947, certain pertinent observations by Mr. W. F. Semple. a member of the Tulsa, Oklahoma Bar, who has had many years of experience with the affairs of the Indians of the Five Civilized Tribes, and who also played a prominent part in connection with legislative proposals which led up to the enactment of the 1947 act. We would like to quote a complete section from Mr. Semple's treatise "Oklahoma Indian Land Titles Annotated," published in 1952, wherein he states (p. 219):

"Sec. 278. Exclusive Jurisdiction of Probate Does Not Include Trust Funds in Secretary's

Hands.--Funds arising or to arise from the sale of oil and gas from restricted lands or other trust funds continue to be in the exclusive custody of the Secretary of the Interior. Nothing in the Act of August 4, 1947, was intended to interfere with the Secretary's supervisory control over restricted trust funds. "The 1947 Act (Section 5) follows the general scheme of the Act of January 27, 1933, placing restrictions upon funds coming under the supervision of the Secretary of the Interior. The only difference in the language in the 1947 Act is that these funds are restricted and under the jurisdiction of the Secretary 'until otherwise provided by Congress' whereas in the 1933 Act the restrictions are carried forward for a period of twenty-five years, or until April 26, 1956. There is no difference in substance in the law, as Congress could change the 1933 Act, as well as this act. The matter is, after all, subject to the Congressional will. This section negatives the idea that the reference in Section 3(a) to jurisdiction of the state court to administer estates was intended to give the state courts jurisdiction to administer on restricted property. Under this section restricted funds in the custody of the Department shall continue to be beyond the jurisdiction of the probate court for administration purposes." (underscoring added.)

    The above writer's views comport with our present opinion of this matter, as well as with the view we entertained when making a report on enrolled bill H.R. 3173, which became the act of August 4, 1947. In that report, dated July 31, 1947, we advised the Director of The Bureau of the Budget that Section 3 "is not intended to confer upon the State courts any jurisdiction in probate matters over restricted funds under the control of the Secretary of the Interior, as provided in Section 5 of the bill." While we respectfully acknowledge that there are views contrary to those of this Department regarding the interpretation of the 1947 act, we have endeavored by this letter to explain the basis for the position we have taken in this matter.

    We advised you in our letter of November 2, 1959, that further consideration of the claim of  W. S. Sessions against the restricted estate of Taylor Greenleaf had to be withheld at that time because of the relationship of such matter to litigation then pending. The litigation has been concluded, and it is now proposed to renew administrative examination of the claimant's objections to the disallowance of the claim from restricted funds by the Area Director, Bureau of Indian Affairs, Muskogee, Oklahoma. The interested parties will be promptly advised when consideration of this matter has been completed.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Acting Solicitor.

CANCELLATION OF CONSTRUCTION COSTS UNDER
LEAVITT ACT--FT. BELKNAP INDIAN RESERVATION

May 11, 1960.

Memorandum

To:            Mr. H. Rex Lee, Deputy Commissioner of Indian Affairs
From:        Solicitor
Subject:     House Document 501, 72nd Congress, 2nd Session, dealing with cancellations
                 under the Act of July 1, 1932, 47 Stat. 564

    House Document 501 contains the Secretary of the Interior's submission to the Congress of December 15, 1932. The Secretary's report was prepared after a field study which was made by a special committee appointed for that purpose with a view to proceeding under the Leavitt Act of July 1, 1932. That act is quoted on page 2 of the document. On page 3 of the document is listed a number of items which are purported to be canceled by the Secretary of the Interior under the authority vested in him by that act. Among other items listed are $116,970.00 carried under the heading "Tribal herds" (reimbursable from tribal funds). There is also listed as being reimbursable from tribal funds items amounting to $870,353.53, under the title "Roads and bridges" (reimbursable from tribal funds) The next category of items listed on that page is under the heading "Irrigation" (reimbursable from individuals). The particular item on which you desire consideration is, in part, the item listed under Fort Belknap Reservation, Montana. amounting to $231,476.51. By referring to page 18 of the House Document, under the heading Fort Belknap Reservation, Montana, you will

note that the recommendation is made to cancel out all construction cost reimbursable to the government against Indian-owned lands on all units except $20 per acre on the Milk River (including White Bear), and $15 per acre on Three-Mile units, which totaled $35,431.67. The next item deals with operation and maintenance assessments, the cancellation of which is authorized by the Leavitt Act under the terms and conditions of that act.

    Specifically, the question is whether or not certain items incorporated in that report and submitted to Confess under date of December 15, 1932, have actually been canceled. It is recognized that the mere submission of such items to Congress does not result in cancellation of those items even though the Secretary of the Interior provides in the submission for their cancellation, unless the action taken by him was authorized by the Congressional Act, as the Secretary, in the absence of appropriate legislation, is not vested with the authority to cancel reimbursable obligations due the Government of the United States.

    The authority of the Secretary is found in the said Leavitt Act of July 1, 1932. This act vests in the Secretary of the Interior the authority "to adjust or eliminate reimbursable charges of the Government of the United States existing as debts against individual Indians or tribes of Indians in such a way as shall be equitable and just in consideration of all the circumstances under which such charges were made." (underscoring supplied) In the absence of further limitations on the authority, the action taken by the Secretary as incorporated in the document, with the exception of where tribal funds were involved, would have been final and conclusive. In this statute, however, it is provided:

    "*     *     * That the collection of all construction costs against any Indian owned lands within any Government irrigation project is hereby deferred, and no assessments shall be made on behalf of such charges against such lands until the Indian title thereto shall have been extinguished, and any construction assessments heretofore levied against such lands in accordance with the provisions of section 386 of this title, and uncollected are hereby canceled."

    This action of the Congress eliminated from further consideration the matter dealing with the construction cost of an irrigation project for as long as the lands remained in Indian ownership. The Congress specifically deferred for such period of Indian ownership of the land the collection of all costs for the construction of Indian irrigation projects. Thus, having deferred such costs for such period Congress, in effect, specified there were no costs which were debts due from the Indians to the United States. Hence, there are, during such period of Indian ownership of the land, no debts for construction which could be canceled under this act. Thereafter the construction cost attached to the land and its collection is to be undertaken only after the extinguishment of the Indian title to the land as provided by law and regulation. Since Congress had so provided, the Secretary was without authority, in our opinion, to cancel a part of those deferred costs that had formerly existed as a collectible debt against the Indian lands. It follows that the attempted cancellation was ineffective because The Secretary was not vested with the authority to cancel the obligation represented by construction costs, as such obligation was not a reimbursable charge "of the Government of the United States existing as debts against individual Indians or tribes of Indians."

    The Leavitt Act further provides that to effectuate the cancellation of any debt against an individual Indian or tribe of Indians the action of the Secretary must be reported to Congress showing the adjustment so made, and that such action of the Secretary shall not be effective until approved by Congress, unless Congress shall have failed to act favorably or unfavorably thereon by concurrent resolution within 60 legislative days.

    The purported cancellation of the construction costs amounting to $35,431.67 in the Fort Belknap raw did not, in our opinion, effectuate the cancellation of such sum as the Leavitt Act did not authorize such action. The tribal funds which had been expended and which, according to page 3 of public document 501, were included therein for cancellation. were likewise not canceled. These obligations arose not by reason of being reimbursable charges of the Government of the United States existing as debts of individual Indians or tribes of Indians, but they were the outgrowth of expenditures by the trustee, the Government of the United States, from tribal funds of the respective Indian tribes. Any obligations which may be due were

those due to the tribe and not to the United States. Tribal funds are accordingly not subject to cancellation under the Leavitt Act. Expenditures made, however, from Treasury appropriated funds for the benefit of Indian tribes and made reimbursable to the Government out of tribal funds of the particular tribe receiving such benefits were subject to cancellation under the Leavitt Act, as the obligations were not created by the expenditure of tribal funds. Any and all cancellations thus made were effective.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

SPOKANE INDIAN HUNTING, FISHING AND BOATING
RIGHTS IN THE LAKE ROOSEVELT INDIAN ZONE

                                                                                                                                            May 27, 1960.

Memorandum

To:            Commissioner of Indian Affairs
From:        Deputy Solicitor
Subject:     Re Spokane Indian Hunting, Fishing and Boating Rights in the Lake Roosevelt Indian Zone

    The Field Solicitor, Ephrata, Washington, has advised The Superintendent, Coulee Dam National Recreational Area:

    "*     *     * The Indians, *     *     * apart from their paramount use of the Indian Zones for the purposes enumerated in the Act of June 29, 1940 (54 Stat. 703), and in addition thereto, *     *     * have the same rights and opportunity for private and commercial uses and public recreational development of the entire reservoir area as any other person regardless of race, creed or color. But they do not have the exclusive right to use the Indian Zones for commercial or public recreational purposes."

We concur with this opinion.

    Paragraph 2 of section 1 of the act of June 29, 1940, supra, provides in part: "that the exercise of the Indians' rights shall not interfere with project operations." The designation of the Indian Zone on the Coulee Dam National Recreational Area is a practical method of notifying the general public of the area subject to the Indian servitude.

    In Solicitor's Opinion M-34326, December 29, 1945, 59 I.D. 149, 165, it is clearly stated that an assumption prevails that the Indian rights in the areas set aside cannot be enlarged unless the possibility of enlargement is suggested by the language of the act. We further agree that the Secretary is empowered to make such "use" an exclusive right but that he is under no duty to do so unless he finds as a matter of fact that the protection of the Indians in the exercise of their rights makes such a step necessary. Ibid, p. 170.

    Consequently, although the Solicitor's Opinion M-34326 does not specifically resolve the problem of whether the Indians as a matter of legal right have the power to issue licenses to others as an incident of "paramount use," ibid, p. 171, the determination that the Colville and Spokane tribes do not have exclusive rights to the Indian Zones appears to preclude them from effectively asserting any power to license others to operate boats or hunt or fish under the sanction of the Tribe. Cf. Solicitor's Opinion (M-34739), January 3, 1947; Solicitor's Opinion (M-31480), February 12, 1943.

    It is our opinion that the Field Solicitor is correct in the view that under the present Agreement of December 18, 1946, among the Bureau of Reclamation, National Park Service, and the Office of Indian Affairs, the Indians, like anyone else, must make application to the Park Service to obtain a permit for the development and operation of public concessions within the Indian Zones. Therefore, we cannot agree with the attorneys for the tribe who contend that the Field Solicitor's opinion deprives the Indians of special rights given them by Congress. Nor do we take the position that the "paramount use" of the Indian Zones is abridged by the proposed development of four other sites for recreational activities on Lake Roosevelt. The Bureau of Indian Affairs has full opportunity under the Agreement of December 18, 1946, to present whatever it deems desirable in support of a tribal application for concessions anywhere on Lake Roosevelt and in event of adverse action by the National Park Service, the opportunity to bring the matter to the attention of the Secretary. It is our view that further negotiations along this line could well result in a satisfactory understanding between the National Park Service and the tribe.

IRS LEVY AGAINST PER CAPITA PAYMENTS TO
MEMBERS OF CONFEDERATED SALISH AND
KOOTENAI TRIBES

                                                                                                                                            June 20, 1960.

Memorandum

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Levy of Internal Revenue Service against per capita payments to members of
                 Confederated Salish and Kootenai Tribes

    This replies to your memorandum of August 10, 1959, requesting advice, for the instruction of the Superintendent of the Flathead Reservation, as to the propriety of giving priority over levies for delinquent federal income taxes to an assignment of a distributed per capita payment when given as security for a short term tribal loan. The attorneys for the tribe have asserted that the Federal government has a fiduciary responsibility to the tribe to protect the tribal interest at the expense of any other Federal interest, irrespective of any priority.

    There appears to be no question but that the funds of the individual Indian on deposit with the United States may be levied upon by the Secretary of the Treasury or his delegate if the Indian is liable to pay any tax and neglects or refuses to pay the tax. (26 U.S.C. 6331.) Further, that any person who fails or refuses to surrender the funds subject to levy, upon demand by the Secretary of the Treasury or his delegate, shall be liable in his own person and estate for an equal sum (26 U.S.C. 6332). However, when money in an individual Indian money account which is received as a per capita payment is pledged to secure a tribal loan before the tax lien attaches, such money is unavailable as a source for satisfaction for the lien, and the Superintendent is not required to surrender such funds. (.See 26 CFR 601.104 (c) (3) .)

                                                                                                                    GEORGE W. ABBOTT,
                                                                                                                                        The Solicitor.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

PROPOSED EXCHANGE OF LANDS AT ZUNI
PUEBLO--ACT OF AUG. 13, 1949

                                                                                                                                        June 20, 1960.

Memorandum

To:            Director, Bureau of Land Management
From:        The Solicitor
Subject:     Legal questions raised by the proposed Private Exchange of the Pueblo
                 of Zuni, New Mexico 059933. Act of August 13. 1949 (63 Stat. 605;
                 25 U.S.C. 622)

    Your memorandum of November 2, 1959, requested our opinion on the legal questions raised by the proposal of the Pueblo of Zuni to exchange certain lands added to the Zuni Indian Reservation by the Act of June 20, 1935 (49 Stat. 393) for certain public land adjacent to the Reservation. It has been suggested that the exchange might be authorized under either section 8 of the Taylor Grazing Act (43 U.S.C. 315 (g) ), or under section 2 of the act of August 13, 1949 (63 Stat. 605; 25 U.S.C. 622).

    Section 8 of the Taylor Grazing Act authorizes the Secretary of the Interior to accept "privately owned lands" within or without the exterior boundary of a grazing district in exchange for public lands of equal value, whenever the Secretary determines that it is to the best interest of the Government. However, the Solicitor has ruled that the term "privately owned lands" in section 8 of the Taylor Grazing Act does not include Indian lands. See Solicitor's Opinion, M-36183 (August 14, 1953). Therefore, section 8 of the Taylor Grazing Act cannot be relied upon as authority for the proposed exchange.

    Section 2 of the Act of August 13, 1949 (63 Stat. 605; 25 U.S.C. 622), provides that for the purpose of consolidation of Indian lands the Secretary of the Interior is authorized, under such regulations as he may prescribed, to exchange any lands or interests within the area set apart by section 1 of the act for the Pueblos and the Canoncito Navajos for other lands in this area or in the areas declared to be public domain in section 1 of the act or with in any public domain in New Mexico.

    The Commissioner, Bureau of Indian Affairs, in connection with this exchange proposed by the Pueblo of Zuni, has expressed the opinion that the Department's regulations, now 43 CFR 149.23, 149.24, issued pursuant to section 2 of the act of August 13, 1949, defeat the intention of the act in not providing for the exchange of Indian lands for public domain lands.

    The Department has never considered the scope of the regulations to correspond with the scope of

the authority granted to the Secretary under section 2 of the act to effectuate exchanges. In a memorandum of July 12, 1950, from the Solicitor to the Director, Bureau of Land Management, commenting upon the first draft of proposed regulations submitted to the Secretary under that act, it was stated in pertinent part as follows:

    "Section 149.84 of the draft implies that section 2 of the 1949 Act only authorizes exchanges in those instances where privately owned or State owned lands located in the Indian area set apart by the act for the Pueblos and the Canoncito Navajos are to be obtained in exchange for lands under the control of this Department and situated within the Indian area or within the public domain areas specified in the act. Such a limitation is not found in the language used by Congress in section 2 of the Act. On the contrary, the Secretary's authority to effect exchanges under section 2 is very broad. It extends to 'any lands or interests therein' under his control and he may exchange such lands or interests therein for 'other lands, water rights, and improvements of similar value' situated within the Indian area or within the public domain areas specified in the 1949 act.

    "Of course, the Secretary is not obliged to exercise his authority under section 2 of the 1949 act to the fullest possible extent, and there is certainly no legal objection to the adoption by the Secretary of the limitation proposed in section 149.84 of the draft of regulations. However, the language of section 149.84 should be revised so as to remove the implication that the scope of the regulations corresponds to the scope of the controlling statute."

    Section 149.84 of the regulations finally approved its Circular 1763 (15 Fr. 6221, September 16. 1950), clearly indicated that as a matter of Departmental policy exchanges authorized therein were limited to privately owned or State owned lands. This section on exchanges was renumbered as section 149.82 in the 1954 edition of 43 CFR The current regulation, 43 CFR 149.23, 149.24 (Circular 2036, 25 Fr. 649, January 26, 1960), however, does not make it clear that exchanges authorized therein are limited to privately owned or State owned lands as a matter of Departmental policy. In this respect the current regulation is subject to the same criticism that the Solicitor made in regard to the first proposed regulations under section 2 of the 1949 act in his memorandum of July 12, 1950.

    It is our opinion that the language of section 2 of the 1949 act, authorizing the Secretary for tile purpose of consolidation of Indian lands to elect exchanges of "any lands or interests therein," would necessarily include Indian trust lands within the area set apart by section 1 of the act for the Pueblo and the Canoncito Navajos. The "Memorandum of Information" which accompanied the Department's report on the bill, S. 1323, 81st Cong., 1st Sess., and which was made a part of the Senate Committee's report indicates that it was considered some exchanges of Indian trust lands would be authorized by the enactment of the bill. Paragraph V of this "Memorandum of Information" stated in part as follows:

    "The bill further would authorize the blocking out of the Indian and non-Indian areas by permitting exchanges of land within the respective areas for other land in the areas described or in any other part of the public domain in New Mexico. It is contemplated that by this means solid use areas will be developed within a reasonable time." See Senate Report No. 549, 81st Cong., 1st Sess., p. 17.

    Since the act authorizes the Secretary to exchange lands "under such regulations as he may prescribe," until he prescribes regulations authorizing the exchange of Indian trust lands, no applications for exchanges of such lands may be allowed. The question as to whether the Department's policy in regard to exchanges of land under authority of section 2 of the act of August 13, 1949, should now be modified is of course for administrative determination.

                                                                                                                    GEORGE W. ABBOTT,
                                                                                                                                        The Solicitor.

                                                                                                                    C. R. BRADSHAW,
                                                                                                                                        Associate Solicitor.
                                                                                                                                    Division of Public Lands.

NATIVES WAIVE MINERAL RIGHTS WHEN
ACQUIRING LAND

                                                                                                                    July 29, 1960.

DEAR SENATOR BARTLETT:

    In your letters of March 17, 1960, to Mr. Edward Woozley, and to Mr. Glenn L. Emmons, you re-

quest our views on the conclusion contained in Resolution No. 18-10 of the Alaska Native Brotherhood that the "natives waive their mineral rights when they acquire land whether by allotment or buy the land."

    The Alaska Allotment Act of May 17, 1906 (34 Stat. 197) specifies that "not to exceed one hundred and sixty acres of non-mineral land in the District of Alaska *     *     *" may be allotted to native Indians and Eskimos, as provided therein. An allotment of mineral band would, therefore, be improper under this act. Also the validity of the allotment might be questioned if minerals were found therein to such an extent that the allotment could be characterized as "mineral land." It would follow that an Indian would be protected in his allotment by waiving any right to minerals found within the allotment obtained under this act. This we understand has been required in allotments under the 1906 act. It is not, however, a reservation of mineral rights by the United States.

    As to the waiver of mineral rights in the purchase of land, we are unaware of any waiver of such rights. The natives may have occasionally done so by voluntary agreement in favor of the seller.

    With respect to allotted lands, the question of the advisability of including mineral rights cannot arise under the limited allotment act now effective, which deals only with non-mineral lands. This policy of reserving mineral rights is a general policy, as indicated in the reservation of coal, oil and gas in lands believed to contain them in all the public land states, including Alaska. It applies equally to whites and Indians. This has been a consistent congressional policy for many years. Mineral lands also have been uniformly withheld from disposal under the agricultural land laws, except for leasing act minerals and with minor exceptions where hinds could be acquired with a reservation of all minerals to the United States.

                                                                                                                    GEORGE W. ABBOTT,
                                                                                                                                        The Solicitor.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

RANCHERIA ACT OF AUGUST 18, 1958

                                                                                                                    August 1, 1960.

Memorandum

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Request for opinion on "Rancheria Act" of August 18, 1958 (72 Stat. 619)

    Pursuant to your request, we have considered the questions which appear to prevent the insuring of title to the Rancheria tracts now being conveyed by the United States pursuant to the Act of August 18, 1959 (72 Stat. 619). We believe that this indecision results largely from lack of knowledge of the facts concerning these transactions, so we are setting them forth in detail.

    As a result of congressional action commencing about 1893, approximately 58 small tracts of land called "rancherias" were purchased in central California by the Secretary of the Interior, who permitted Indians living nearby, generally in groups, to occupy such tracts. This permissive use was referred to as an "assignment" to such Indians.

    The Act of March 3, 1893, 27 Stat. 612, 628, appropriated $10,000 for the acquisition of land at Jackson, California, "for the support of the Digger Indians of Central California. . ."

    "*     *     * That the Secretary of the Interior be, and he is hereby, authorized to expend not to exceed one hundred thousand dollars to purchase for the use of the Indians in California now residing on reservations which do not contain land suitable for cultivation, and for Indians who are not now upon reservations in said State, suitable tracts or parcels of land, water, and water rights in said State of California, and have constructed the necessary ditches, flumes, and reservoirs for the purpose of irrigating said lands, and the irrigation of any lands now occupied by Indians in said State, and to construct suitable buildings upon said lands, and to fence the tracts of land so purchased, and fence, survey, and mark the boundaries of such Indian reservations in the State of California as the Secretary of the Interior may deem proper. One hundred thousand dollars, or so much thereof as may be necessary, is hereby appropriated, out of any funds in the Treasury not otherwise appropriated, for the purpose of carrying out the provisions of this Act." Act of June 21, 1906, 34 Stat. 325, 333; also the act of April 30, 1908, 35 Stat. 76.

    From 1914 to 1929, and again in 1937, Congress made small appropriations, designating them substantially as follows: "for the purchase of lands for the homeless Indians in California, including improvements thereon, for the use and occupancy of said Indians. . . . Said funds to be expended under such regulations and contentions as the Secretary of the Interior may prescribe " (See Act of

August 1, 1914, 38 Stat. 582, 589; Act of August 9, 1937, 50 Stat. 564, 573, ". . . for the relief of homeless Indians of that state . . .")

    The "assignment" in the rancheria cases, occasionally referred to as "allotment," differs from the usual "assignment," which is the tribal action of allocating tribal land to individual members. The rancheria assignments are referred to as formal when in writing-informal when oral. They were in the nature of revocable permits, or, at the most, possessory estates, terminating upon abandonment of possession. Actual occupancy was occasionally required. Legal title and ownership interest remains in the United States (Comm. to Representative Lea, 4/4/36). The following assignment is typical:

    "TO WHOM IT MAY CONCERN:

    This is to certify that Mollie Wright, the widow of Jim Wright, is hereby given permission to use Lot No. 4 of the Pineliville Rancheria as shown by the plat of the said Rancheria by the files at this office. That this document does not give the said Mollie Wright any right of title, only that of occupancy, but that as long as she resides on the land and makes it her home her right of use and occupancy will not be questioned.

    Superintendent of the Sacramento
    Indian Agency, Having Jurisdiction
    over the Pineliville Indian Rancheria

    Dated at Sacramento, California, this 21st day of February, 1927."

    In connection with this permit, the Commissioner ruled that "right of possession by inheritance cannot be recognized." He also ruled that:

    "2. Tracts relinquished or abandoned should be reassigned. In case of abandonment, absence for a period of two years is regarded as sufficient reason for reassigning the land to another.

    "3. The acquisition by individuals of additional tracts through inheritance must not be allowed, except where the survivors are landless and are entitled to land, in which cases formal reassignment should be made.

    "4. The leasing by individuals of tracts other than their own, and for their own benefit, should be discontinued. By leasing their own assigned lands for a period of two years would place such cases in the abandoned class and subject them to reassignment. The Office would prefer to have each assignee utilize all of his own land. However, where only part is used and the remainder could be leased for a nominal consideration, it is believed such action should not be opposed, but the assignee be permitted to make the lease, collect the rental and use it as he might see fit." (Comm. to Supt., Sacramento Agency, April 13, 1927)

    In actual practice, Indians occasionally moved onto the property without any assignment, occupying a parcel abandoned or never assigned. Such possession was not disturbed since these occupants were also "Indians of California" for whose use the land was acquired. The Indians of Central California had not at first been regarded as subject to Federal guardianship because they were not members of a tribe having treaty relations with the United States, did not live on reservations, and held no restricted allotments. In 1933, the problem of placing these Indians on lands acquired for them was reconsidered, since very few had moved to these rancherias or had remained there. It was then believed that this was because the Indians were too poor to build homes there, or water was not available. (See report to Comm., Aug. 15, 1933) In some cases, as in the Jackson rancheria in Amador County, houses had been built for Indian families, who later deserted them. (Letter Sept. 5, 1933, file 49-75 l-26-308.2 Sacramento) By 1950, it had be come evident that the rancheria program for the California Indians should be liquidated.

    Few congressional acts have received the amount of consideration as was given to the problem of liquidating the California rancheria. In response to the congressional resolution (H. Con. Res. 108, 83d Congress, August 1, 1953) to terminate Federal Indian supervision in the State of California and elsewhere, the Department of the Interior, on January 4, 1954, submitted a proposed bill to provide for the distribution of the land and assets of the rancherias, and extensive hearings were held. Similar bills had been considered by the 82d Congress. The State of California had, in 1951, requested Congress to dispense with all restrictions upon California Indians, and the State has also conducted extensive investigations on this subject.

or set a-side for their occupation.

    On January 14, 1957, Congressman Moss introduced H.R., 2824, which the Secretary recommended with minor amendments. It included fourteen rancherias when enacted by the House.

    Three other bills were introduced in the House on the same subject, of which two were withdrawn and one combined with H.R., 2824. The House Subcommittee on Indian Affairs conducted extensive hearings on this measure in May and June, 1957. The Senate Subcommittee's only change of substance was to add a number of rancherias. The bill as enacted is not mandatory. The Indians "who hold formal or informal assignments on each reservation or rancheria, or the Indians of such reservations or rancherias, or the Secretary of the Interior after consultation with such Indians," will prepare a plan of distribution for approval or rejection by a majority of those voting at each rancheria. Both the Senate and the House report notes that no membership roll is required to identify the beneficiaries because the groups are not well defined." Moreover, the reports state that the lands to be distributed "were for the most part acquired or set aside by the United States for Indians in California, generally, rather than for a specific group of Indians, and the consistent practice has been to select by administrative action the individual Indians who may use the land. The bill provides for the distribution of the land, or the proceeds from the sale of the land, primarily on the basis of plans prepared or approved by these administratively selected users of the land." (Sen. Report No. 1874. July 22, 1958)

    Section 2 (c) provides that granters "shall receive an unrestricted title to the property conveyed. . . ." Prior to the conveyance, surveys, of such a nature as "necessary or appropriate for the conveyance of marketable and recordable titles," must be made, and certain other action specified must be taken (Sec. 3).

    Plans have been approved and deeds issued in the following rancherias: Cache Creek, Buena Vista, Mark West, Paskenta, Ruffeys, Strawberry Valley, Table Bluff.

    It has been suggested that the United States cannot dispose of this property in this fashion because it held the property in trust for specific bands, who had a vested interest therein.

    It has been decided, administratively, that these lands are not allottable, even to the members of the band for whom acquired, and that they could not be sold without legislation, even if the purpose was to acquired land more suitable for the same band (see Ruffey's Band, File 74408/07/311). They could be used for any landless California Indians, and not merely for the specific band for whom purchased, since neither the deed conveying the property to the United States nor the act appropriating the purchase money contained "any limitation or provision as to what Indians should be settled thereon." (See Marshal and Sebastapol. File 310, Part 21, letter Comm., July 6, 1937.)

    The United States has accepted the fact that it long ago acquired the lands of the California In-

divans, extinguishing their Indian title. The Act of May 18, 1928, 45 Stat. 602, authorized the attorney general of the state of California to bring suit in the Court of Claims on behalf of the "Indians of California" for claims they might have against the United States "by reason of land's taken from them in the state of California by the United States without compensation . . .," any decree to be based upon the compensation proposed in certain ratified treaties of 1851-1852. Section 3 of that act provides: "Any payment which may have been made by the United States or moneys heretofor or hereafter expended . . . for the benefit of the Indians of California, made under specific appropriations for the support . . . of Indians of California, including purchases of land, . . . may be pleaded by way of set-off`."

    It will be noted that this action in favor of the California Indian's is not a payment for money due the Indians, since the basis of the litigation and judgment is that these Indians lost their rights by reason of lathes. Nor did this involve all lands of the California Indians. The payment is in the nature of a gift, equitable because the United States Senate failed to ratify an agreement with the Indians concerning those particular lands. The claims of the California Indians, based upon aboriginal title, is now in process of litigation. This suit also is based upon acquisition of the Indians' lands by the United States.

    The subsequent plan of distribution of the rancheria land was considered with knowledge of the then recent action of Congress and of the Federal courts in subtracting from the amount to be given to the Indians of California, and thus to each such Indian, under the special act of 1928, the amount expended by the Government for all the rancheria land. The result, as Congress must have foreseen, was that some Indians, who would receive no share in rancheria land, had pro rata deductions made from their distributive share under the 1928 Act based upon the value of this rancheria land, where as others received the same amount and also will participate in the actual distribution of this off-set land. It should be noted that deductions were also made for other services rendered by the United States which did not directly benefit all.

    A practical answer to this seeming inequity is that the Indians of California had the occupation of this rancheria land during a period when many of them needed it, which was the purpose of the legislation. Moreover, the rancheria distribution is generally regarded, even by the Indians, as the most satisfactory method of terminating this program of governmental aid. From a legal point of view, the acquisition by the United States of the rancheria land was for occupancy during a temporary period of Federal supervision. Congress has indicated that the program has now served its purpose. It is the sole judge of the extent of guardianship and of its duration. See United States v. Hellard, 322 U.S. 363, 367 (1944); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). Moreover, Congress can, under the Constitution, dispose of this property as it pleases, the property belonging to the United States as part of the public domain, U.S. Constitution, Art. IV, sec. 3, cl. 2; Hallowell v. United States, 221 U.S. 317 (1911); Alabama v. Texas, 347 U.S. 272 (1954).

    It is also suggested that the legislation is so indefinite in its designation of beneficiaries as to be invalid. Congress recognized the difficulty of being specific (see Committee Report, supra). It concluded to distribute the property among the assignment holders or other Indians, now occupying the rancherias. The plan would designate the distribution. Although no Indian has a vested right in this land, Congress had provided that notice "of the contents of the plan" shall be given so that "any Indian who feels that he is unfairly treated in the proposed distribution of the property shall be given an opportunity to present his views and arguments for the consideration of the Secretary," (sec. 2 (b) ) The Secretary has the power of approval or rejection of the Plan (sec. 10 (a) ) Thus, the Secretary is Congress' delegated authority to determine whether the plan properly designates the beneficiaries. The Secretary also is authorized to issue the documents necessary to carry out the distribution. This delegation of power to the Secretary is no greater than that given him in many other cases providing for distribution of property to Indians. Regardless of Indian group or tribal action where distributees are members thereof, the Secretary is generally and properly authorized to determine whether the tribal membership roll is accurate. See Stephens v. Cherokee Nation, 174 U.S. 445, 490 (1899). In the cases in which deeds have so far been issued, there has been no doubt concerning

the beneficiaries, and no objection has been received to the plans formulated.

    It is suggested that rights may have been acquired by other Indians in the property. If rights were acquired prior to purchase by the United States, those rights should be disclosed in the abstract. This was one reason for obtaining title insurance then. When passing upon conveyances under the Rancheria Act, title insurance will protect against any rights acquired prior to acquisition by the United States. Since the acquisition by the United States, rights in the property could not be acquired against the owner. "It is beyond the power of a state, either through statutes of limitation or adverse possession, to affect the interests of the United States." U.S. v. 7,405.3 acres of land, 97 Fed. 2d., 417 (1938).

    In conclusion, the rancheria properties belong to the United States, in law and equity; the disposition of these rancheria properties has been properly undertaken by Congress in the method usually employed in the distribution of property among groups of Indians temporarily occupying United States property; and the method of determining distributees is clearly set forth, following the customary practice of delegating to the Secretary of the Interior the authority and responsibility of deter mining the individual Indian beneficiaries. This does not relieve a title insurance company from the usual responsibility, for which it is paid, of insuring a distributee's title against any defects not set forth in its policy of insurance.

                                                                                                                    GEORGE W. ABBOTT,
                                                                                                                                        The Solicitor.

                                                                                                                    FRANKLIN C. SALISBURY,
                                                                                                                                        Assistant Solicitor,
                                                                                                                                    Indian Legal Activities.

REFUND OF TAXES PAID BY HEIRS OF ALLOTTEE
--ACT OF JUNE 11, 1940

                                                                                                                    August 4, 1960.

Memorandum

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Refund of taxes paid by heirs of Allottee Lou Roberts--Act of June 11, 1940

    "*     *     * the Secretary of the Interior is hereby authorized, in his discretion, to cancel any patent in fee simple issued to an Indian allottee or to his heirs before the end of the period of trust described in the original or trust patent issued to such allottee, or before the expiration of any extension of such period of trust by the President, where such patent in fee simple was issued without the consent or an application therefore by the allottee or by his heirs."

    The amendment includes cases where the patentee or his heirs have sold a portion of the land or have mortgaged any part of it.

    In order to issue this trust patent, a finding was required that the fee simple patent had been issued without the consent or application of the allottee or his heirs. That conclusion was reached by the authorized representatives of the Secretary of the Interior.

    From that time on, real estate taxes were levied and collected upon this property. Suit was instituted in 1937 by the United States on behalf of the allottee's heirs to recover the taxes so paid, and judgment was rendered against the allottee. No appeal was taken from this judgment. The Secretary of the Interior informed the Attorney General that if "failure to appeal this case will result only in inability to recover from the county the amount of taxes paid prior to cancellation of the fee patent, we should interpose no objection if an appeal is not had. (Feb. 1, 1938)

    Partially because of this, in any event, to cure such inequitable cases, Congress, on June 11, 1940, enacted a provision for the relief of Indians who had paid taxes "on allotted lands upon which patents and fees were issued without application by or consent of the allottee." The act is as follows:

    "*     *     * the Secretary of the Interior is hereby authorized, under such rules and regulations as he may prescribe, to reimburse Indian allottees and Indian heirs of allottees for all taxes paid on so much of their allotted lands as, having been patented in fee prior to the expiration of the patentee, has been or may be restored to trust status through cancellation (sic) of the fee patent by the Secretary of the Interior. Provided further, That in any case in which a claim has been reduced to judgment and such judgment has been satis-

fied, the Secretary of the Interior is authorized, upon proof of satisfaction thereof, to reimburse the state, county, or political subdivision thereof, for the actual amount of judgment." (54 Stat. 298, H.R. 952, 76, 3d Sess.)

    It does not appear that the suit to recover taxes had anything to do with the question of consent to the fee patent; but even if it did, Congress authorized this question to be determined by the Secretary, and he reached his determination and acted accordingly. The 1940 act clearly was intended to repay those individuals such as Roberts' heirs, who had been issued a trust patent to replace the fee patent, and had paid taxes in the interim of the fee patent. The House Committee Report (see Senate Report No. 1488, 76 Cong. 3d Sess.) states that the fee patents in question resulted from an erroneous interpretation of the 1906 act; that the county authorities were not at fault in levying the taxes; and the Indians had to pay the taxes to save their lands. The Secretary of the Interior made the same comment to the House Committee on Indian Affairs.

    We believe that the attached latter should be reconsidered in the light of these facts.

                                                                                                                    GEORGE W. ABBOTT,
                                                                                                                                        The Solicitor.

                                                                                                                    FRANKLIN C. SALISBURY,
                                                                                                                                        Assistant Solicitor,
                                                                                                                                    Indian Legal Activities.

CLAIMS FOR CEDED COLVILLE INDIAN
RESERVATION LAND

                                                                                                                    August 10, 1960.

MR. D. N. GILLATLY, Secretary
Consolidated Mines & Smelting Co., Ltd.
Star Route
Wilbur, Washington

DEAR MR. GILLATLY:

    Although your letter of July 17, to the Secretary, which has been referred to me for answering, mentions no particular mining claims we assume that you have in mind those claims for ceded Colville Indian Reservation lands temporarily withdrawn by the departmental order of September 19, 1934 (54 I.D. 559), and which have been the subject of considerable correspondence with the President of Consolidated Mines & Smelting Co., Ltd., and with other persons.

    In the case of Clark v. Jones, 249 Pac. 552, which you cite, the Department left the mineral claimants in possession after their claim was declared null and void, as the unpatented townsite entry was no bar to location if the land was mineral in character, and as the land was neither needed nor withdrawn for any governmental purpose or for carrying out the will of Congress. As stated by the court "Appellants were in possession and had a right to maintain such possession against every one, except the United States and any one holding from it by right or title superior to theirs." (Underscoring added.)

    Generally speaking, if a person whose claim has been declared null and void remains in physical possession of the ground, he does so at his peril and at the sufferance of the Government if the land has been withdrawn from further location. Through appropriate governmental action he may be ousted and possibly held liable for trespass. But where a claim has been declared null and void for lack of a valid discovery, at various times the Department has allowed the holder to remain in possession where he is diligently engaged in seeking such a discovery and the land is not withdrawn from location because of some governmental need or purpose or for some other reason. In such a situation the former holder of the location may be permitted to remain on the land, merely as a prospector, so long as he is diligently engaged in seeking a discovery sufficient to support a mining location. Cole v. Ralph, 252 U.S. 286.

    There is no provision of the United States Mining Laws for the location of mining claims on land withdrawn from location where the withdrawal is a temporary one. Probably you have in mind the act of June 25, 1910 (36 Stat. 847), which as amended (43 U.S.C. secs. 141, 142), authorizes the President to temporarily withdraw lands for certain purposes and provides that lands withdrawn under the act "shall at all times be open to exploration, discovery, occupation, and purchase under the mining laws of the United States, so far as the same apply to metalliferous minerals." But the order of September 19, 1934, was not issued under authority of the act of 1910, as amended. It was issued under the implied authority of the Secretary to make temporary withdrawals "by virtue of his broad authority and responsibility in connection with the administration of Indian affairs" and the authority to make such withdrawals "was recognized and confirmed by the Congress in section 4 of the Act of March 3, 1927 (44 Stat. 1347; 25 U.S.C., 1946 Ed., sec. 398 (d) )." See Solicitor's Opinion of May 24, 1949 (60 I.D. 318).

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Acting Solicitor.

AUTHORITY OF COUNTY ASSESSOR TO LEVY AND
COLLECT PERSONAL TAXES AGAINST INDIANS
OF THE FLATHEAD INDIAN RESERVATION

                                                                                                                    September 8, 1960.

DEAR SENATOR MANSFIELD:

    This refers further to our letter in response to an inquiry you received from Mr. Don Butler, treasurer of Lake County, Montana, concerning taxing problems.

    The County Treasurer's inquiry deals with authority of the County Assessor to levy and collect personal taxes against four Indians of the Flathead Indian Reservation who apparently are employed at the Kerr Dam, located within the Flathead Reservation. The County Assessor states these Indians refuse to pay personal property taxes to the county.

    The Kerr Dam is under Federal Power License No. 5, Montana, issued to the Montana Power Company. The title to the land covered by the Federal Power license is held by the United States in trust for the Flathead Tribe. Apparently, the four Indians are Flathead Indians and presumably are residing on tribal lands of the Three Affiliated Tribes of the Flathead Reservation. In connection with the liability of individual Indians on their reservation to pay personal property taxes to the county, there is no clearly defined law on the subject. Your attention is invited to Federal Indian Law, revised 1958 edition, pages 864-866, wherein the following appears:

    "Wherever personal property is acquired by or for tribal Indians for use in Indian reservation lands in connection with or in furtherance of the policy adopted by the Government in encouraging the Indians to cultivate the soil and to establish permanent homes and families, or otherwise aid in their economic rehabilitation, such property may not be taxed by the State. The immunity exists whether the property be purchased with moneys held in trust by the United States for the Indians or with moneys accruing to the Indians from other Federal sources. The reason behind this doctrine of immunity is that the State has no power, by taxation or otherwise, to retard, impede, burden, or control the operations or instrumentalities employed by the Federal Government in carrying into execution the powers lawfully vested in it.

*     *     *     *     *     *

    "There are apparently no cases determining the right of the State to tax personal property of an Indian on a reservation which is not used pursuant to some Federal plan."

    In Montana, Indian royalty revenues derived from oil wells on allotted Indian lands have been held to be immune from State taxation. Santa Rita Oil & Gas Co. v. State Board of Equalization, 101 Mon. 268, 279, 54 P. 26 117. But there are no other Montana decisions bearing on the taxability of Indian personal property located on Indian reservations. United States v. Porter (9 CCA 1927) 22 F. 2d 365, related to the taxability of Indian personal property located off an Indian reservation. Language in this case suggests that the 9th Circuit Court of Appeals might have little patience with claims for Indian tax immunity where the United States had no well-defined interest in the property to be taxed. But the language might be treated as obiter, and the personnel of the court has since changed. In the circumstances, we cannot predict with assurance the outcome of any suit testing the taxability of personal property of an Indian, where such property is located on an Indian reservation.

    In view of the foregoing uncertain state of the law where the personalty is not trust or restricted or acquired pursuant to a Federal Indian program, as appears to be the situation here, this Department is not in a position to issue instructions advising that such personal property of Indians residing on their reservation is subject to the personal property taxes of Lake County, Montana.

                                                                                                                    GEORGE W. ABBOTT,
                                                                                                                                        The Solicitor.

                                                                                                                    EDMUND T. FRITZ,
                                                                                                                                        Deputy Solicitor.

TITLE STATUS OF TIDELANDS COMPRISING THE
JUNEAU INDIAN VILLAGE

M-36604                                                                                                     September 16, 1960.

Alaska: Possessory Rights--Alaska: Tidelands--Alaska: Statehood Act--Indian Tribes: Alaskan Groups

The established congressional policy to reserve those lands, including tidelands, used and occupied by the Alaskan Natives, under the absolute jurisdiction and control of the United States in aid of further legislation was continued by virtue of Section 3 (c), Act of September 7, 1957, and Section 4 of the Alaska Statehood Act.

Memorandum

To:            Commissioner of Indian Affairs
From:        The Solicitor
Subject:     Title status of the tidelands comprising the Juneau Indian Village

    A question has been raised as to whether the tidelands upon which the Juneau Indian Village is located were granted by Act of Congress to the State of Alaska.

    We are of the opinion for the reasons set forth below that the United States retained the fee simple title to the tidelands occupied by the Indians within the Juneau Indian Village and no transfer of these lands has been effected by Act of Congress.

    The Juneau Indian Village was not included in the survey of May 8, 1892, which established the Juneau townsite nor has any official government survey been made of the Village to date. It appears that the Indians had their homes and buildings constructed on poles or pilings to keep them out of water at high tide, not only at the time of the townsite survey but long before the summer of 1880 when the founders of the City of Juneau arrived at the Indian Village. A history of the Indian occupancy in the Juneau Indian Village is found in United States v. 10.95 Acres of Land in Juneau, 75 F. Supp. 841, 842 (1948).

    Congress, at an early date, enacted legislation to protect the Indians in their use and occupancy of lands in the Territory of Alaska. The first Organic Act for Alaska, the Act of May 17, 1884, 23 Stat. 24, 26, provided in Section 8:

    "That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for further legislation by Congress *     *     *."

    Subsequent legislation likewise contained provisions protecting the Alaskan Natives in the use and occupancy of land occupied by them at the time. Act of March 3, 1891, 26 Stat. 1095, 1100; Act of June 6, 1900, 31 Stat. 321, 330; Act of May 1, 1936, 49 Stat. 1250. This legislation shows a consistent congressional policy to reserve lands occupied by natives in Alaska in aid of further legislation, Thus, in Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 278, 288 (1953), it was held that the Congress did not grant to the Alaskan Indians by the 1884 act, supra, or the Act of June 6, 1900, supra, any compensable rights or ownership in the land occupied by them, the intention of the legislation being merely to retain the status quo until further congressional action was taken.

    This Department, pursuant to the legislative intent indicated by Congress, has consistently acknowledged and respected the use and occupancy by the Alaska natives. 13 L.D. 120 (1891); 23 L.D. 335 (1896); 26 L.D. 517 (1898); 28 L.D. 427 (1899); 37 L.D. 334 (1908); 50 L.D. 315 (1924); 52 L.D. 597 (1929); 53 L.D. 194 (1930); 53 I.D. 593 (1932).

    It was decided at an early date in Heckman v. Sutter, 119 F. 83, 88 (1902), that the tidelands are included in the prohibition contained in Section 8 of the 1884 act, supra, against disturbing Indians in the use or possession of any lands in Alaska. In Heckman v. Sutter, 120 F. 393, 395 (1904), the Court considered it as well settled that prior to Statehood Congress can grant rights in or title to the tidelands of the territories in any manner it deems proper.

    In two recent legislative enactments wherein it was provided for the transfer of the title to the tidelands, the policy of preserving the status quo on the question of Indian use and occupancy of Alaskan lands appears to have been maintained by specifically reserving such lands from the grants made by the acts.

    "*     *     * (c) any land which, on the date of approval of this Act, is held, or any land in which, on the date of approval of this Act, any interest is held, by the United States for the benefit of any tribe, band, or group of Indians, Aleuts, and Eskimos or for individual Indians, Aleuts, and Eskimos; *     *     *."

    The tidelands comprising the Juneau Indian Village come within the scope of the aforequoted Section 3 (c) since on the date of the act they were clearly held by the United States for the benefit of the Indians.