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AUTHORITY OF STATE TO REGULATE USE OF
RESTRICTED PROPERTY UNDER PUBLIC LAW

83--280

                                                                                                                                September 15, 1965.

HON. FRANK L. FARRAR
Attorney General of South Dakota
Pierre, South Dakota 57501

DEAR MR. FARRAR:

    This responds to Assistant Attorney General Andre's letter of July 14, 1965, requesting our views on the validity of the regulation of the Secretary of the Interior recently promulgated as 25 CFR 1.4. Mr. Andre's letter refers to a resolution of the National Association of Attorneys General which submits that the regulation is contrary to the Act of August 15, 1953.

    The present regulation does not purport to deal with the use by an individual Indian or tribe of his or its own property, although we do not consider the imposition of such controls beyond the authority of the Secretary. Only the use of such property by others than the owner, under lease or other agreement which is subject to Secretarial approval, is covered by the new regulation. As such, it is clearly within those provisions of the 1953 Act which preclude state regulation of the use of trust or restricted Indian property "in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto." 18 U.S.C. §1162 (b); 26 U.S.C. §1360 (b) (1964).

    There is litigation pending in the United States District Court for the Southern District of California, Central Division, involving municipal zoning of Indian trust lands (The Agua Caliente Land of Mission Indians, et al. v. The City of Palm Springs, Civil No. 65-564-MC). The United States is not a party to the suit.

                                                                                                                    FRANK .J. BARRY,
                                                                                                                                            Solicitor.

WHETHER STATE CAN RESCIND DULY ACCEPTED
CRIMINAL AND CIVIL JURISDICTION UNDER
PUBLIC LAW 83-280--QUINAULT

                                                                                                                                            December 3, 1965.

DEAR MR. VINSON:

    This replies to your inquiry of July 7, 1965, regarding criminal and civil jurisdiction over Indians on the Quinault Indian Reservation.

    You asked our view of the legal efficacy of the January 15, 1965, proclamation of the Governor of Washington which purported to rescind his 1958 proclamation issued pursuant to Chapter 240 of the Laws of 1957 (Laws of Washington, 1957, page 941). This law authorizes the Governor on certain conditions to proclaim acceptance of criminal and civil jurisdiction over Indian country offered by Sections 6 and 7 of Public Law 280, 83rd Cong. (18 U.S.C. 1162; 28 U.S.C. 1360).

    The Supreme Court of Washington held, in State v. Paul, 53 Wash. 2d 789, 337 P. 2d 33 (1959), that Chapter 240 does not contravene the state constitution. In State v. Bertrand, 61 Wash. 2d 333, 378 P. 2d 427 (1963), as you pointed out, the court held the Governor's 1958 proclamation was a valid exercise of his powers under Chapter 240. Nevertheless, Wilkinson, Cragun and Barker, tribal attorneys for the Quinault Tribe, filed in June 1964 an action in the United States District Court for the Western District of Washington, Southern Division, to obtain a declaratory judgment that the State of Washington has no jurisdiction by reason of Chapter 240 to enforce criminal and civil laws against the Quinault Indians on the Quinault Indian Reservation and to enjoin the enforcement of such laws. The action, entitled Quinault Tribe of Indians, et al. v. A. M. Gallagher, et al., Civil No. 3112, has been dismissed by the District Court and is now pendmg on appeal before the United States Court of Appeals for the Ninth Circuit. We have been informally advised by Mr. Charles A. Hobbs of Wilkinson, Cragun and Barker that, although the case has been argued before the Court of Appeals, the decision is being held in abeyance until the Washington Supreme Court rules on an appeal from an order of a state trial court dismissing a case against an Indian for an alleged violation of state law committed on the Makah Reservation on the ground that the State had no jurisdiction be-

cause it had not amended its constitution as required by Public Law 280.

    Regardless whether the Governor can in effect repeal state law by proclamation (see Washington Constitution, Article II, Sec. 1.), we share the view expressed in Assistant Attorney General Miller's letter of January 29, 1965, that once Federal jurisdiction is extinguished by a state's duly accepting jurisdiction under Public Law 280 (18 U.K. 1162 (b) ), it cannot be reinstated by unilateral state action.

    In response to a January 25, 1965 resolution of the Business Council of the Quinault Tribal Council, a copy of which is enclosed, a court of Indian offenses was established on the Quinault Reservation pursuant to 25 CFR 11.1 (b) to deal with the law enforcement emergency resulting from the Governor's act. The court became operative February 9, 1965.

    If there is any additional information which you would like us to furnish in this matter, we shall be glad to do so.

OWNERSHIP AND TAXABILITY OF INDIAN
CATTLE

                                                                                                                                        December 30, 1965.

HON. LAURENCE J. BURTON
House of Representatives
Washington, D.C. 20515

DEAR MR. BURTON:

    Your letter of December 15, 1965, concerning ownership and taxability of Indian cattle presents questions which are impossible to answer without reference to specific facts. Cattle may be owned by Indian tribes or by individual Indians. The United States has issued livestock to individual Indians pursuant to treaty provisions and programs for economic rehabilitation. Livestock has also been purchased for individual Indians by the Federal Government, using the individual's own money. Individual Indians purchase cattle with restricted funds and with their own unrestricted funds. In each case, the status and tax consequences of ownership will depend upon the particular facts involved. For example, in United States v. Rickert, 188 U.S. 432 (1903), the Court held that personal property consisting of horses, cattle, and other property issued by the United States to the Indians and used by them on their allotment was not subject to assessment and taxation by the State. In addition, property purchased with funds held in trust by the United States for the Indians or with moneys accrued to the Indians from other federal sources is immune from taxation by the states. Federal Indian Law, 864 (1958) .

    In discussing the extent of immunity of issue property from State taxation, the writer comments as follows:

"Immunity from State taxation was [in United States v. Pearson, 231 Fed. 270 (1916)] extended to personal property which could be traced and identified as issue property, the income of issue property, property purchased with the proceeds of the sale of issue property, property purchased with the proceeds of the sale of the increase of issue property, property for which similar issue property has been exchanged for similar use, the increase of property received in such exchange, the increase of issue property exchanged for similar property for similar use, and property purchased with money given to the Indians by the United States." Federal Indian Law, supra, 865.

    The rule exempting from state taxation property purchased by Indians with restricted funds and property issued to the Indians by the Federal Government should be extended to property purchased by the Indians pursuant to a federal program for their economic rehabilitation, approved and supervised by the Government.

"*     *     * The purchase of property by the Indians themselves in accordance with an economic plan worked out with the Government is supplanting, as a method of assuring the possession by Indians of productive property, the old method of the Government's issuing such property to the Indians. From a legal viewpoint the purpose and concern of the Government are identical whether the plow or the cattle are bought by the Indian with individual Indian moneys, the expenditure of which has been approved by the Superintendent, or bought by the Indians with revolving loan funds or judgment fund money, pursuant to a plan of rehabilitation approved by the Superintendent, or bought by the Superintendent with gratuity funds and issued to the Indians. The reasoning of the courts applies equally to these procedures, except that in the cases above cited the Government had an ownership interest as the title to the property was found to be in the United States. The form of title, while indicative of the interest of the

Government, is not, in my opinion, the determining factor. The important factor is the acquisition and use of the property in execution of a government plan for the Indians." 57 I.D. 124, 127.

    We concur generally in the statement by the member of the Utah State Tax Commission in his letter to you to the effect that cattle owned by Indian tribes are not subject to state taxation.

    You have indicated that assessors are often under the impression that many cattle are owned by individual Indians, only to be taxed upon making inquiry that the cattle are tribally owned. Such misunderstandings might easily arise. Membership in a particular tribe may carry with it certain rights to use, participate and share in tribal property. The exact rights of the individual Indian in tribal property vary widely, and depend ". . . . in the last analysis, upon the governmental acts and contractual agreements of the Federal Government, the tribe and the individual Indian himself. . . . Here, as in other fields of law, general principles, no matter how confidently announced by the highest authorities, must be pared down to the facts with which they deal before they are entitled to be relied upon completely." Federal Indian Law, supra, pp. 746-747.

    Perhaps the most expeditious and satisfactory manna for those concerned to resolve specific problems would be to discuss such matters with local representatives of the Bureau of Indian Affairs in Utah and the Regional Solicitor of this Department in Salt Lake City.

TITLE TO LANDS WITHIN SAN CARLOS
RESERVOIR SITE

M-36693                                                                                                                            July 23, 1966.

Indian Lands: Generally

The San Carlos Apache Indian Reservation, Arizona, is a congressionally unconfirmed executive order reserve in which the Indians have no compensable interest as against the United States. The United States did not have to look to the Act of June 7, 1924 (43 Stat. 475). which authorized the construction of the San Carlos Irrigation Project for the benefit of the Indians of the Gila River Indian Reservation, Arizona, and others, for authority to acquire lands on the San Carlos Reservation needed for dam and reservoir purposes. As .the United States already owned the lands free and clear of any legally cognizable obligation to the Indians, they could be and were devoted to the use of the Project by administrative act.

Indian Lands: Rights-of-Way

Additionally, the authority granted by the Act of June 7, 1924, to acquire rights-of-way for the project would not have limited the Government to acquiring estates in the nature of flowage easements. Even if the United States had been forced to look to that Act of authority to acquire the lands in question it could have acquired fee simple estates in them.

Indian Water and Power Resources: Irrigation Projects

The lands of the San Carlos Dam and Reservoir are own by the United States in connection, with the San Carlos Irrigation Project.

    As a matter of grace the Indians were fully compensated for them when they were put to use in connection with the Project. Accordingly, under the Act of April 4, 1938, 52 Stat. 193 (25 U.S.C. 390), the proceeds derived from the granting of concessions and leases on the lands should be used for the operation and maintenance of the San Carlos Irrigation Project.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Appeal of San Carlos Apache Tribe from the Commissioner of Indian Affairs decision of
                 October 26, 1965 concerning title to the San Carlos Reservoir site and the disposition of
                 proceeds from leases and concessions granted thereon.

Counsel for the Tribe contends that Section 5 of the Act of June 7, 1924, 43 Stat. 475, which authorized the construction of Coolidge Dam and the San Carlos Reservoir, constituted the entire authority of the Secretary to acquire lands, or interests therein, for use in connection with the San Carlos Irrigation Project; that the term "right of way" as used therein is synonymous with "easement;" that, since the lands of the San Carlos Apache Reservation used for Coolidge Dam and San Carlos Reservoir must have been taken or acquired under this section, the greatest estate that the United States can have therein is in the nature of a flowage easement; that the Tribe retains all interests in the lands not included in such easement; and that the Tribe, therefore, is entitled to any proceeds derived from the granting of concessions or leases on such lands.

"The Secretary of the Interior is authorized, in his discretion, to grant concessions on reservoir sites, reserves for canals or flowage areas and other lands under his jurisdiction which have been withdrawn or otherwise acquired in connection with the San Carlos, Fort Hall Flathead, and Duck Valley or Western Shoshone irrigation projects for the benefit in whole or in part of Indians, and to lease such lands for agricultural, grazing, or other purposes: *     *     * Provided further, That such concessions may be granted or lands leased by the Secretary of the Interior under such rules, regulations, and laws as govern his administration of the public domain as far as applicable, for such considerations, monetary or otherwise, and for such periods of time as he may deem proper, the term of no concession to exceed a period of ten years: Provided further, That the funds derived from such concessions or leases, except funds so derived from Indian tribal property withdrawn for irrigation purposes and for which the tribe has not been compensated, shall be available for expenditure in accordance with the existing laws in the operation and maintenance of the irrigation projects with which they are connected. Any funds derived from reserves for which the tribe has not been compensated shall be deposited to the credit of the proper tribe *     *     * ".

    Although we are convinced, for reasons later set forth, that the Tribe has no interest in the reservoir lands, we do not think that it is necessary to resolve this question in order to determine who is entitled to the proceeds from leases or concessions granted on the lands.

    The San Carlos Apache Reservation as presently constituted contains lands which were originally set apart by the Executive Order of November 9, 1871, I Kappler 810-812, as the White Mountain Apache Reservation and lands which were set apart by the Executive Order of December 14, 1872, I Kappler 812-813, as the San Carlos addition to the White Mountain Reservation. It appears that all of the lands affected by the San Carlos Reservoir are part of those added to the reservation by the Executive Order of 1872. The reservation created by the Executive Orders of 1871 and 1872 was thereafter diminished by a series of executive orders and two acts of Congress. These executive orders were entered on August 5, 1873, July 21 1874, April 27, 1876, January 26, 1877, March 31; 1877, and December 22, 1902, 1 Kappler 813-814 and 3 Kappler 671. Each of these orders restored parts of the reservation to the public domain. The Act of February 20, 1893, 27 Stat. 469, I Kappler 467, also restored a part of the reservation to the public domain; provided that the proceeds realized from the disposition thereof should be expended for the benefit of the Indians of the reservation, and stipulated:

"Sec. 5. That nothing herein contained shall be construed as recognizing title or ownership of said Indians to any part of said White Mountain Apache Indian Reservation, whether that hereby restored to the public domain or that still reserved by the Government for their use and occupancy."

    Section 10 of the Act of June 10, 1896, 29 Stat. 321, 358, 1 Kappler 597, 609, ratified an agreement which had been entered into on February 25, 1896, between the Apaches and an Indian inspector, by which the Indians ceded another part of the reservation to the United States for opening to mineral entry with the proceeds to be paid to the Indians. None of the executive orders which restored parts of the reservation to the public domain, including that of December 22, 1902, provided for the payment of compensation or other benefit to the Indians.

    The conclusion is inescapable that the San Carlos Apache Indian Reservation is an unconfirmed executive order reserve in which the Indians have no compensable interest as against the United States. Sioux Tribe v. United States, 316 U.S. 317 (1942); Healing v. Jones, 174 F. Supp. 211, 216 (1959) and 210 F. Supp. 125 (1962). These cases recognize that although the Executive may withdraw and reserve lands of the United States for governmental purposes, the exclusive power to dispose of or to create compensable interests in the territory or other property of the United States is vested in the Congress by Section 3, Article IV of the Constitution. It is constitutionally impossible for the Executive by unilateral act to grant compensable interests in the territory of the United States. Since nothing in the history of the San Carlos Reservation indicates Congressional confirmation of title in the Indians--indeed, there is much to the contrary--we can only conclude that the Indians use and occupy the lands thereof at the pleasure of Congress and the President.

    That this was the position of Congress and the Executive during the period that the San Carlos Irrigation Project was being considered and constructed is clear. As stated in Assistant Solicitor Soller's memorandum of January 22, 1965, the Project was conceived primarily for the benefit of the Pima Indians on the Gila River Indian Reservation. It was first considered in 1896. From that time until completion it was under more or less constant consideration by Congress and various agencies of the Executive. See House Report, Hearings before the Committee on Indian Affairs on the Condition of Various Tribes of Indians, 66th Cong. 1st sess., Vol. 2, p. 6. In 1912, Congress authorized the Army Engineers to investigate and report on the project. A Board of Engineer Officers was appointed for the purpose. Their report to the Secretary of War, dated February 25, 1914, and entitled, "San Carlos Irrigation Project, Arizona," is printed as House Document No. 791, 63d Cong., 2d sess. It contains a letter, dated October 28, 1913, to the Commissioner of Indian Affairs from A. L. Lawshe, who was superintendent of the San Carlos Apache Reservation, in which he expressed the view that the Indians should be compensated for the dam site. Addressing itself to this contention the Board stated:

"Regarding land damages it is the understanding of the board that this reservation is not owned by the Apache Nation. If the United States owns it, and if this irrigation project were solely for the benefit of the Pima Indians and entirely at the expense of the Government, it would be idle to pay damages except on improvements belonging to the Indians, for the Government would only be transferring money from one pocket to another. But the project is also for the benefit of private lands that would receive a gift if the reservoir site be assessed at less than its value. Hence the project should pay for the land regardless of where the title lies."

    The Board accepted as the value of the reservation lands required for the dam and reservoir the amount of $91,865. Op. cit., 145-146.

    At the hearings on the bill which became the Act of June 7, 1924, 43 Stat. 475, which authorized the construction of Coolidge Dam and the San Carlos Reservoir, the following exchange took place between Wendell M. Reed, Chief Engineer of the Indian Irrigation Service, Representative Carl Hayden of Arizona, and Representative Homer P. Snyder, the Chairman of the House Commit tee on Indian Affairs:

"Mr. Reed. *     *     * The $5,500,000 project which is referred to here really is simply for the dam and the necessary work in connection therewith.

The Chairman. It does not contemplate the purchase of any land that may have to be purchased or contain the supply space for the reservoir?

Mr. Reed. Yes; the reservoir is all on an Indian Reservation--San Carlos Reservation.

The Chairman. So there is no expense in purchasing of land?

Mr. Reed. There will be some expense in the purchase or in payment for condemning buildings and some small works of that kind. The estimate made by the representatives of the Indian Service was practically $200,00, and

the Army Engineers, after investigating, concurred.

Mr. Hayden. That $200,000 is included within the limit of $5,500,000?

Mr. Reed. Yes."

    Pima Indians and the San Carlos Irrigation Project, Hearings on S-966 Before the House Committee on Indian Affairs, 68th Cong. 1st Sess. (1924).

    By letter dated May 5, 1925, to the Secretary of the Interior, the Assistant Commissioner of the Office of Indian Affairs, after quoting the conclusion of the Board of Engineer Officers set forth above and noting that twelve years had elapsed since the making of the Board's report, suggested that

"*     *     * conditions make it necessary to have the matter again investigated with a view of determining the value of the lands and improvements that will be inundated by the water impounded by the reservoir.

*     *     *     *     *

"It is accordingly recommended that a Board of three members, consisting of the Assistant Chief Engineer, C. R. Olberg, the Superintendent of the San Carlos Reservation, James B. Kitch, and an Indian, a member of the San Carlos Reservation to be selected by the two other members, be appointed for the purpose of determining the extent of the damage to be suffered by reason of the construction of the Coolidge Dam, the third member of the Board not to pass on matters affecting Government buildings."

    This recommendation was approved by Assistant Secretary John H. Edwards. An appraisal board, consisting of C. R. Olberg, J. B. Kitch and Morgan Toprock--the latter having been elected by the Indians of the San Carlos Reservation--was duly constituted and commenced its work. Its report, dated February 4, 1926, and approved by Assistant Secretary Edwards on November 27, 1926, shows beyond cavil that the Indians were awarded the full value of the approximately 21,750 acres of San Carlos Reservation lands devoted to the use of the Project. Its award of $86,290.13 for "Tribal Indian Land" was constituted as follows:

"Grazing land, 20,012½ acres
    @    1.25 per acre ----------$25,015.63
Land susceptible of irrigation, 1100 acres
    @    15.00 per acre ---------$16,500.00
Irrigated and improved lands
            $100.00 basic value. Deducting credits to individual Indians for improvements leaves
            563½ acres at from $72.25 to $86.00
            per acre ----------------$36,974.50
Agency farm lands, irrigated, tribal, 78 acres
    @    $100.00 per acre -------$7,800.00
Total Appraisement Tribal Lands-$86,290.13"

    The legal and administrative histories of the San Carlos Apache Indian Reservation and the San Carlos Irrigation Project establish that it was never conceived that the United States had to acquire the lands needed for the dam and reservoir. It was always thought--and correctly--that the United States already owned the necessary lands and that it could devote them to the use of the Project simply by administrative act without incurring any obligation to the San Carlos Apache Tribe. Clearly the compensation which was paid the Tribe was awarded as a matter of grace and not of right (Cf. Sioux Tribe v. United States, supra, 331) and largely out of consideration of the fact that the Project was intended for the benefit of non-Indians as well as Indians.

    The construction of the Project did, of course, necessitate the acquisition by the Government of lands and rights from parties other than the San Carlos Apache Indians. For example, the Southern Pacific Railroad possessed a right of way over lands which were to be submerged by the reservoir. Ultimately, the Railroad was paid $1,000,000 for this right of way and to defray part of the expense of relocating about 14 miles of its line.

    Although we are convinced that the United States owned the reservoir area free and clear of any obligation to the Indians and did not require any additional authority to use it in connection with the Project, we could not, in any event, subscribe to the proposition that the use of the term "right of way" in the Act of June 7, 1924, limited the estate which the Government could acquire for the Project to a flowage easement. "Right of way" is as often used to describe an area of land as an estate in it. Cf. 64 I.D. 70 (1957). That Congress did not use the term in any restrictive sense is

manifest by the fact that in appropriating for the Project in 1925 it provided that the sum appropriated "shall be available for purchase and acquiring of land and necessary rights of way needed in connection with the construction of the project." 43 Stat. 1141, 1152.

    All else that we have discovered tends to confirm this conclusion. Most of the lands of the dam site and reservoir area were included in Water Power Designation No. 4, executed on February 1, 1917, which found them valuable for the development of water power, reserved them to the United States, and exempted them from the operation of any and all grants to the State of Arizona. In 1928, the Federal Power Commission reported to Congress that the San Carlos Apache Indians were not entitled to any additional compensation by reason of the generation of hydroelectric power at Coolidge Dam. This was based on the finding that the compensation already paid them exceeded the return to be expected if the lands were valued on the basis of combined irrigation and power development. Sen. Doc. No. 93, 70th Cong., 1st sess. 1928.

    In sum, we are firm in the opinion that under 25 U.S.C. 390, the proceeds derived from the leasing of and granting of concessions on lands in the San Carlos Reservoir area should be expended in the operation and maintenance of the San Carlos Irrigation Project. Without regard to "title", these lands have been withdrawn or otherwise acquired in connection with the Project and the San Carlos Apache Indians have been fully compensated for them. Present these facts, the statute directs that the proceeds from the lands be used for the benefit of the Project. Further, we are of the opinion that the San Carlos Apaches never had any interest in the lands enforceable against the United States; that the lands belonged to the United States free of any obligation; that no authority was needed for the United States to put them to any proper use, and that title to the lands is in the United States in connection with the San Carlos Irrigation Project.

                                                                                                                    FRANK J. BARRY,
                                                                                                                                            Solicitor.

FUNDS USED BY CALIFORNIA LEGAL SERVICES
PROGRAM TO BENEFIT INDIANS--NOT
CHARGEABLE TO INDIANS

                                                                                                                                            October 19, 1966

Mr. Gary Bellow
Deputy Director
Law Offices of California
Rural Legal Assistance
257 South Spring Street
Los Angeles, California 90012

DEAR MR. BELLOW:

    This replies to your letters of September 28 and September 30 to Mr. George Miron, Special Assistant to the Solicitor, concerning certain funds provided by the Office of Economic Opportunity and to be used by your corporation to provide legal services to indigent persons in non-urban areas and the possible application of 25 U.S.C. 81-82 to the activities of your organization. As a part of your program, you are undertaking a special project of legal research into the legal problems of indigent Indians of California, but have encountered fears and suspicions on the part of the Indians that any money spent for legal services rendered to them "would be deducted from claims they possessed against the United States or be used as basis for a lien against the property."

    You indicate there is need to assure the Indians that no part of any funds made available by the Federal Government to them or for their benefit under programs conducted by O.E.O.:

"a)    shall be deducted from any past, present, or future awards to the Indians of California by the Court of Claims;

"b)    shall be treated as a debt incurred by the California Indians and held as a lien on any of their lands;

"c)    shall be subtracted from the money held on behalf of California Indians by the Bureau of Indian Affairs."

    We must assume that the inquiry is limited to funds appropriated, programmed and granted for indigent legal assistance generally, and that the funds are not expended by the United States specifically for the benefit of the Indians of California. Act of August 13, 1946, 60 Stat. 1050, 25 U.S.C. 570a (1964). See also Act of May 18, 1928, 45 Stat. 602, 25 U.S.C. §653 (1964); Act of August 12, 1935, 49 Stat. 596, 25 U.S.C. §475a (1964).

    The great bulk of the funds in the Treasury to the credit of the Indians of California consists of $29,100,000 appropriated by the Act of October 7, 1964, 78 Stat. 1023, 1033, to satisfy an award by the Indian Claims Commission on July 20, 1964, in Dockets No. 31, 37, 80, 80D, and 347, consolidated. See H.R. Doc. 339, 88th Cong. (1964). Annual appropriation acts for this Department have for a number of years provided that "funds derived from appropriations in satisfaction of awards of the Indian Claims Commission and the Court of Claims shall not be available for advances, except for such amounts as may be necessary to pay attorneys fees, expenses of litigation, and expenses of program planning, until after legislation has been enacted that sets forth the purposes for which said funds will be used." See, e.g., Act of May 31, 1966, 80 Stat. 170, 173.

    The only other judgment fund of the Indians of California now on deposit in the Treasury or otherwise under trust supervision of the Secretary of the 1n:terior is some $1,018,152.75 (as of April, 1966) remaining undistributed from the appropriation made by the Act of April 25, 1945, 59 Stat. 77, 94, to satisfy the judgment of the Court of Claims on December 4, 1944.

    H.R. 8021, pending in the present Congress would provide for individual share distribution of the 1964 appropriation, and for disposition to the State of California in trust for the Indians of any undistributed balance of that appropriation and of the remaining balance of the 1945 appropriation.

    Since these claims cases have been finally decided, and monies appropriated in satisfaction of the awards, we perceive no basis on which the United States could now claim as offsets against them any funds which might be expended for legal services rendered to the Indians of California as a part of a general program of indigent assistance.

    With respect to future claims, we could only speculate concerning the possibility of offsets and this, of course, we cannot do. However, so far as we are aware, the Department of Justice has not asserted as offsets in other pending claims cases expenditures benefiting Indians made under programs of the Office of Economic Opportunity. Indeed, we are convinced that the Government's claiming as offsets benefits and assistance provided under general programs of the sort conducted by the O.E.O. is specifically prohibited by the provisions of 25 U.S.C. 70a and 475a. Quite clearly, in our view, the programs of O.E.O. are generally applicable throughout the United States, are intended to relieve distress caused by unemployment and conditions resulting therefrom (i.e. poverty) and often entail public projects for the relief of  unemployment and to increase employment. As a matter of fact, the provisions of sections 70a and 475a describing the kinds of programs whose benefits may not be offset against Indian claims constitute a pithy definition of the basic objectives of the war on Poverty.

    We know of no basis on which the amounts spent for indigent legal services to Indians, as part of a general program, could be treated as a debt and held as a lien against lands of California Indians.

    There is no present authority in law for the Bureau of Indian Affairs to subtract from the money held on behalf of California Indians any amounts spent for such legal services, nor is any such authority provided in H.R. 8021 in its present form.

    Without knowing the precise arrangements your organization contemplates making with tribes of individual Indians we cannot say definitely that the provisions of 25 U.S.C. 81-85 would not apply. However, you are generally correct in your interpretation that these statutes apply only to contractual arrangements with Indians which contemplate that the other party will receive some material compensation or consideration. From what we know of the program your organization intends to sponsor, it would not appear that there will be any necessity for it to enter into formal agreements with individual Indians or tribes, other than, perhaps, representational agreements to satisfy rules of court which would be wholly gratuitous. However, if your organization contemplates formal arrangements with Indians which provide for anything approaching consideration moving to it you should submit the arrangement for opinion.

STATE TAXATION OF TRADERS ON CHEROKEE
RESERVATION IN NORTH CAROLINA

                                                                                                                                            December 19, 1966.

DEAR MR. WEISL:

    On November 25, 1966 we sent you certain papers relating to the efforts of the State of North

Carolina to collect privilege license taxes from the Eastern Band of Cherokees. As promised in that letter, there are enclosed copies of the loan agreement between the Band and the United States under which the Boundary Tree Motel Enterprises were built, and of the deposit agreement among the Band, the United States, and the First Union Bank of North Carolina, under which the accounts of the enterprise are maintained.

    There are enclosed two copies of a memorandum dated December 2, 1966 and its attachments from the Deputy Assistant Commissioner of Indian Affairs recommending that your Department be requested to take appropriate action to prevent the State from collecting the privilege license taxes from the traders. We interpret the recommendation to include a request for action to prevent the collection of the taxes from the Band. We concur. Reference of this matter has been delayed because the missing file referred to in the Deputy Assistant Commissioner's memorandum was not located by the Bureau until this week.

    The nature of the operations of Smith and Hill on the Reservation and the efforts of the State to exact privilege license taxes from them are explained in the papers accompanying the Deputy Assistant Commissioner's memorandum. It is our understanding that Smith and Hill have ignored the November 25, 1966 letter from the State revenue collector and that the matter of collecting the $2,220.00 claimed for taxes and penalties has been turned over to the Sheriff's Office. We are further informed the Sheriff has indicated to the Cherokee Indian Agency that he will wait a full thirty days from December 1, 1966 before taking action to effect collection of the taxes assessed against Smith and Hill. We are not advised as to the nature of the collection action proposed.

    Our reasons for believing the State privilege license taxes to be inapplicable to licensed Indian traders on the Cherokee Indian Reservation have been fully explained to the State of North Carolina. The State's attempt to apply the taxes to an enterprise of the Band comes as a surprise. Our reasons for thinking the taxes to be inapplicable in either case are as follows.

    In Solicitor's Opinion M-34989, 60 I.D. 31 (1947) referred to in the Deputy Assistant Commissioner's memorandum, Solicitor White sets forth the bases on which this Department recognizes the Band's tribal existence and right of self government. Decisions of the United States Court of Appeals for the Fourth Circuit have found the Band to be an Indian Tribe and the lands which the United States holds in trust for them to be an Indian Reservation. See United States v. Wright, 53 F2d. 300 (1931), and United States v. Parton, et al, 132 F. 2d 886 (1943). Consequently, the attempt of the State to impose the taxes upon a tribal enterprise of the Band operating within the Cherokee Indian Reservation is an interference with the Band's right of self-government and is, therefore, beyond the jurisdiction of the State. Williams v. Lee, 358 U.S. 217 (1959).

    The attempted imposition of the taxes upon licensed Indian traders within the Reservation is invalid in our view under the principles announced in Warren Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685 (1965). The details of our conclusions in this respect are set out in memorandums dated September 29, 1965 and August 16, 1966, respectively from the Associate Solicitor, Indian Affairs and Acting Associate Solicitor, Indian Affairs, to the Commissioner of Indian Affairs. Two copies of each of these memorandums, as well as duplicate copies of each of the items listed on the attached exhibit sheet, are enclosed.

                                                                                                                    EDWARD WEINBERG,
                                                                                                                                        Deputy Solicitor.

OMAHA TRIBAL ROLL--JUDGMENT FUND
DISTRIBUTION

                                                                                                                                        January 9, 1967.

WEISSBRODT, WEISSBRODT, AND LIFTIN
1908 Que Street, N.W.
Washington, D.C. 20009

GENTLEMEN:

    On March 3, 1965, the Acting Associate Solicitor, Indian Affairs, sustained the appeals of 22 persons, taken from decisions of the Aberdeen Area Director of the Bureau of Indian Affairs that appellants were not qualified to have their names entered on the membership roll of the Omaha Tribe of Nebraska under the Act of September 14, 1961, 75 Stat. 508. The pertinent part of that statute reads:

*     *     * the Secretary of the Interior is authorized and directed, pursuant to such regulations as may be issued by him, to prepare a roll of Omaha Indians whose names appear on the Omaha allotment rolls finally approved pursuant to the Acts of Congress of August 7, 1882 (22 Stat. 341), and March 3, 1893 (27 Stat. 612), and who are living on the date of this Act, and the descendants of such allottees who are born and living on the date of this Act and who possess Omaha blood of the degree of one-fourth or more regardless of whether such allottees are living or deceased *     *     *.

    The Area Director rejected the appellants' enrollment applications on the ground that they did not possess Omaha blood of the degree of one-fourth or more as required by the 1961 Act. The Acting Associate Solicitor concluded that the appellants qualified for enrollment as possessors of the required amount of Omaha blood on the basis that the Indian blood of their ancestors who by marriage, adoption, or other tribal formality were recognized as members of the Omaha Tribe prior to the Omaha Allotment Act of August 7, 1882, should be considered Omaha blood within the meaning of the 1961 Act.

    On March 29, 1965, the Omaha Tribal Council, by Resolution No. 31-65, requested you as General Council for the Omaha Tribe to take steps to cause the Acting Associate Solicitor's construction to be withdrawn and to cause the appeals sustained on the basis thereof to be dismissed. The Council's resolution recites that it has always understood the term "Omaha blood", as used in the 1961 Act, to exclude other Indian blood and believes the construction of the Acting Associate Solicitor to be contrary to the intention of the statute.

    Pursuant to the direction of the Omaha Tribal Council, you filed with this office written arguments urging reconsideration of the decisions made March 3, 1965. Pending determination of the Tribe's petition, no distribution of per capita payments has been made to those persons whose enrollment is opposed by the petition.

    Senate Report No. 598, 87th Cong., 1st Sess. (1961), on S. 1518, which became the 1961 Act in question, sets forth the purpose of the legislation as follows:

The purpose of S. 1518 is to provide for the disposition of a judgment awarded the Omaha Tribe of Indians by the Indian Claims Commission. The amount of the award was $2, 900,000, which was appropriated by the Second Supplemental Appropriations Act of 1960 and deposited in the Federal Treasury. Attorneys' fees and expenses reduced the net amount of the judgment to $2,648,581, which has drawn interest at 4 percent. The current balance amounts to $2,722,228.

The Indian Claims Commission found that the Tribe was acting on its own behalf and in a representative capacity on behalf of the aboriginal tribe and nation. It also found that some of the descendants of the aboriginal nation were not presently enrolled as members of the trilbe, but that they are entitled to share in the judgment. S. 1518 directs the Secretary of the Interior to prepare a roll that includes all persons eligible to share in the judgment, and also makes that roll the official membership roll of the tribe.

The bill provides that the judgment will be used to make a $750 per capita payment to each enrolled member and the balance of the judgment may be used for other purposes authorized by the tribal council and approved by the Secretary. While the total enrollment of the tribe cannot be anticipated, it is estimated that approximately $1.5 million will be used for per capita payments, leaving about $1.2 million for other uses.

  
On March 8, 1961, the members of the tribe met in a general meeting and adopted a resolution, which is on file with the committee, endorsing the provision of this legislation *     *     *.

    House of Representatives Report No. 1004, 87th Cong. 1st Sess. (1961), contains similar statements regarding the purpose of S. 1518.

    In the Department's report of June 26, 1961, which is included at pages 2-4 of Senate Report No. 598, the matter of the preparation of a tribal roll under the provisions of S. 1518 received the following comments:

The Omaha Tribe of Nebraska is organized under the Indian Reorganization Act of June 18, 1934 (48 Stat. 984). Although the judgment was recovered in the name of the organized tribe, the Indian Claims Commission found that the tribe was acting on its own behalf and in a representative capacity on behalf of the aboriginal tribe and nation. The Commission further found that some of the descendants of the aboriginal tribe and nation are not presently actually enrolled as members of the Omaha Tribe of Nebraska, but that they are entitled to share in the judgment. It is estimated that over 2,000 persons are presently enrolled as members of the Omaha Tribe of Nebraska, and that approximately 200 of them are of less than one-fourth Omaha Indian blood and will not qualify for enrollment on the new roll which is required under the provisions of the bill. The number of Indians who are not presently enrolled and who will be entitled to enrollment is not known.

Under these circumstances it would be improper to place the entire judgment under the control of the Omaha Tribe of Nebraska as organized under the Indian Reorganization Act unless all persons entitled to share in the judgment are made eligible for membership in the tribal entity. Otherwise, the Omaha Tribe of Nebraska could use all of the judgment funds for the benefit of its members and exclude the other Omaha Indians who are entitled to share in the judgment fund but who cannot meet the requirements for membership prescribed in the Omaha tribal constitution. This problem is resolved adequately by the bill by providing for a new roll that includes all persons eligible to share in the judgment, and by making that roll the membership roll of the tribe. The enrollment of children subsequently born will be governed by the tribal constitution. The tribe has endorsed this procedure by a formal resolution. Op. cit. p. 3.

    It is quite clear, therefore, that the attention of Congress was focused upon the need for preparing a tribal roll which would include the descendents of the aboriginal Omaha tribe, who, in addition to the members of the Omaha Tribe of Nebraska, were found by the Indian Claims Commission to be entitled to share in the $2,900,000.00 award to be disposed of by S. 1518. With respect to the entitlement of members of the Omaha Tribe of Nebraska to share in the award, the first of the findings of fact of the Indian Claims Commission made in the matter of the request of the plaintiffs and defendant in the proceedings entitled, Omaha Tribe of Nebraska et. al., v. United States, Docket Numbers 225--A, 225--B, 225--C, and 225--D, for approval of the $2,900,000.00 compromise settlement filed with the Commission, reads:

1. The Plaintiff, in each of the above entitled docket numbers, the Omaha Tribe of Nebraska, is a recognized Indian Tribe organized under a constitution and by-laws ratified by the tribe on February 15, 1936, and approved by the Secretary of the Interior on March 30, 1936 pursuant to the Indian Reorganization Act. The membership of the Omaha Tribe of Nebraska is prescribed (1) by the official census roll of the Omaha Tribe of Nebraska, as of April 1, 1934, with the supplement thereto of January 1, 1935, and (2) by Article II of its Constitution and By Laws, and (3) by such ordinance as shall be hereafter enacted by the Tribal Council, subject to review by the Secretary of the Interior. As of the latest count, completed in July 1955, there were 2,223 enrolled members of the Omaha Tribe of Nebraska. Each of these members is in part descended from one or more members of the aboriginal Omaha Tribe. * * * (Emphasis added)

    In light of the explanation to Congress of the need to add to the membership of the Omaha Tribe of Nebraska, other descendants of the aboriginal Omaha tribe, and the finding of the Indian Claims Commission that all members of the Omaha Tribe of Nebraska are descended from members of the aboriginal Omaha tribe, we are unable to conclude that when Congress used "Omaha blood" in the 1961 Act it considered only some of the Indian blood of Omaha allottees to be Omaha blood for purposes of the act.

    Although you assert that the Omaha blood quantum test contained in the legislation was derived from the tribal constitution, and that its meaning in the statute is therefore the same as in the tribal constitution, we find no confirmation in the legislative history that it was explained to Congress how "Omaha Indian blood" was used in the tribal constitution or that, if so, Congress intended to adopt such meaning for "Omaha blood" in the legislation. Indeed, we find indications in our legislative file on S. 1518 which suggest that you provided Congress an interpretation of "Omaha blood" as applied to the then members of the Omaha Tribe of Nebraska which is more an explanation in the vein of the finding of the Indian Claims Commission than an exposition of the meaning of "Omaha Indian blood" as used in the tribal constitution.

    To be specific, on March 21, 1961, you sent to United States Representative Ralph F. Beermann, a proposed bill providing for the disposition of judgment funds of the Omaha Tribe of Indians; a memorandum regarding the proposed bill; and a copy of the March 8, 1961, resolution of the general meeting of the Omaha Tribe of Nebraska, which is referred to in Senate Report No. 598 and is quoted in H.R. Report No. 1004. In explaining the provisions of the proposed bill regarding entitlement to enrollment, which are the same as those contained in the 1961 Act, it is stated on the second page of your memorandum:

The roll to be prepared by the Secretary under the proposed bill will, in general, include the names of Omaha Indians whose names appear on the Omaha allotment rolls finally approved pursuant to the said Acts of Congress of August 7, 1882 and March 3, 1898 and who are living on the date the bill is enacted in to law, and the descendants of such allottees who are born and living on the date the bill is enacted into law and who possess Omaha blood of the degree of one-fourth or more.

A census made in 1956 listed approximately 2,350 persons of Omaha blood. It is estimated that of these persons, approximately 2,000 may meet the one-quarter blood test and other requirements specified in the proposed bill. *     *     *

Based on said 1956 census, it appears that over 1800 of the aforesaid estimated 2,000 persons who may qualify for enrollment reside within the Reservation districts in Nebraska or in other neighboring communities, towns and cities in Nebraska.

Based on available information, it also appears that the great bulk of the estimated 350 persons who may fail to qualify are individuals who have long since left the Reservation area for outlying regions, and who by reasons of intermarriages have Omaha blood of one-eighth or less, and who for many years have maintained no interest or concern with Omaha tribal affairs. (Underscoring added)

    Thus, the explanations placed before Congress regarding the "Omaha blood" of the then members of the Omaha Tribes of Nebraska were simply to the effect that some two or three hundred such members would be ineligible for enrollment under the bill which became the 1961 legislation; not because they had no Omaha blood, but because they did not have a sufficient degree of it. Clearly, therefore, it would be unreasonable to conclude that Congress intended that the Indian blood of some Omaha allottees should be considered something other than "Omaha blood" for purposes of the 1961 Act.

    This office on a previous occasion considered the meaning of a statutory requirement that an applicant for enrollment with an Indian tribe be of the blood of the tribe. In 1956 we were asked whether the blood of Indians adopted into the Umpqua Tribe qualified as being of the blood of the Umpqua Tribe within the meaning of the provision, "Indians of the blood of *     *     * the Confederated Bands of the Umpqua Tribe of Indians *     *     * living on the date of this Act," appearing in the Act of August 30, 1954, 68 Stat 979; 25 U.S.C. 771. On examining the legislative history of the act, the then Associate Solicitor of Indian Affairs concluded that it justified an interpretation of the language so as not to exclude any person of Indian blood whose ancestors were members of the tribe involved whether they were members by birth, adoption, or any other recognized tribal formality. Solicitor's Opinion M-36328 (January 16, 1956). Commenting upon the problem of recognition of Indian blood as being that of a particular tribe, the Associate Solicitor said, at pages two to three of the opinion:

It is quite possible that the language 'of the blood' of a certain tribe might be read literally so as to prohibit participation in an enrollment by persons if any of their ancestors had been adopted into a tribe. However, this construction would create a difficult problem of administration of the act in view of the fact that it would be impossible to completely determine whether any of the ancestors of persons involved may have at some prior date

been adopted into a tribe. This is particularly true in view of the widespread use of 'adoption' to continue family lines in Indian tribes. Whole Indian nations have been adopted and recognized as of the blood of the adopting tribe. *     *     *

    We further observe with respect to Opinion M-36328 that one of the adopted Umpquas from whom an applicant claimed eligibility for enrollment in the Umpqua Tribe participated as a Chief of the Umpqua Tribe in the signing of a treaty between the United States and the Umpquas. Six of the 22 applicants whose appeals were upheld March 3, 1965, are grandchildren of Joseph LaFlesche, who, though of the blood of another tribe, was adopted as a boy into the Omaha Tribe and signed the treaty of March 16, 1854, 10 Stat. 1043, as one of the Omaha Chiefs, and the treaty of March 6, 1865, 14 Stat. 667, as Head Chief of the Omaha Tribe. Under the interpretation of the 1961 statute urged on behalf of the Omaha Tribal Council his six grandchildren would not qualify for enrollment on the ground that he did not have "Omaha blood."

    As for your contention that if "Omaha blood" had been understood by the Department to include all Indian blood of the Omaha allottees there would have been an indication of this in the Omaha enrollment regulations, 25 CFR Part 50, we think it sufficient to point out that after the 1956 opinion of the Associate Solicitor enrollment regulations were adopted for the Western Oregon Tribes, including Umpqua, 25 CFR Part 44, which, like the Omaha regulations, simply use statutory language and do not further define "blood of the tribes."

    We are sending a copy of this letter to the Commissioner of Indian Affairs and advising him that the decisions of March 3, 1965, of the Acting Associate Solicitor may be given effect by adding the successful appellants' names to the roll of the Omaha Tribe of Nebraska and paying to them the per capita share authorized by the 1961 Act.

CONSTRUCTION CHARGES--INDIAN OWNED LAND--
WIND RIVER IRRIGATION PROJECT, WYOMING

M-36708                                                                                                                            July 18, 1967.

Indian Lands: Fee Lands--Indians: Contracts--Indian Water and Power Resources: Irrigation Projects

The purchase in fee simple of irrigable land within the Wind River irrigation project by an Indian from a non-Indian does not cancel or suspend performance of a contract for repayment of irrigation charges against the land which is like a covenant that runs with the land and is binding on subsequent purchasers.

Indian Lands: Fee Lands--Indian Lands: Irrigation

The first proviso of the Leavitt Act (47 Stat. 564; 25 U.S.C. 5 386a) deferring the collection of irrigation construction charges and prohibiting the assessment of such charges applies only to trust and restricted Indian lands. Land purchased in fee simple by an Indian is not Indian owned land within the first proviso of the act.

Indians: Fiscal and Financial Affairs--Indian Tribes: Fiscal and Financial Affairs--Indian Water and Power Resources: Irrigation Projects

Although the first proviso of the Leavitt Act defers the collection and prohibits the assessment of irrigation construction charges against trust and restricted lands in Government irrigation projects, reimbursable construction costs for such lands are accrued obligations which are debts owing to the United States and are subject to adjustment or cancellation under the first clause of the Leavitt Act. Deputy Solicitor's memorandum of May 11, 1960, to the Deputy Commissioner of Indian Affairs holding to the contrary with respect to Leavitt Act cancellations by House Document 501, 72d Congress, 2d Sess., overruled.

Indians: Fiscal and Financial Affairs--Indian Tribes: Fiscal and Financial Affairs Statutory Construction: Generally

The first clause of the Leavitt Act, as distinguished from the first proviso, authorizes the Secretary to adjust reimbursable charges of the United States which are debts of Indians and Indian tribes, and is not limited to irrigation charges or affected by the type of interest of Indians in their lands.

Memorandum

To:            Commissioner of Indian Affairs
From:        Deputy Solicitor
Subject:     Construction charges, Indian-owned lands; Wind River irrigation project, Wyoming

    This replies to your request for our opinion on several questions relating to irrigation construction charges against Indian-owned lands within the Wind River irrigation project, Wyoming.

    On August 8, 1953, an Indian trust allotment within the Wind River project was conveyed by warranty deed to Richard Elshire, a non-Indian, who signed an irrigation repayment contract in connection with the transfer. The contract, presumably on Form 5-462-B, entitled "Agreement to Pay Construction and Operation and Maintenance Charges," was recorded in appropriate county records.¹ By warranty deed dated March 27, 1954, Elshire sold the land to Steve Cook, a non-Indian. Cook then sold and conveyed the land to Louis Twitchell, an enrolled Shoshone Indian. You ask whether the Leavitt Act of July 1, 1932 (47 Stat. 564; 25 U.S.C. § 386a (1964) ), requires deferring the collection of construction charges against the land of an Indian who purchased irrigable land in fee simple in his own name from a non-Indian, and whether the Act cancels the repayment contract when ownership of the tract passed from the non-Indian back to the Indian.

    The purchase in fee simple of irrigable land by an Indian from a non-Indian does not cancel or suspend performance of a contract for repayment of irrigation charges against the land in the circumstances here under consideration. However, the extent to which such an agreement is enforceable against the Indian grantee depends, in part, upon adjustments which may be made, under the first clause of the Leavitt Act during the time the land is owned by an Indian, or under the Acts of February 14, 1920 (41 Stat. 408, 409), and June 22, 1936 (49 Stat. 1803; 25 U.S.C. §§ 389-389e (1964)), when non-Indian land is involved. Several statutory provisions, as interpreted by the Department and the Attorney General, and the Bureau's practice in carrying them out over a long period of time need to be summarized in explaining our answers to your questions.

    The Act of March 3, 1905, 33 Stat. 1016, 1017, by which the Shoshone Indians ceded part of their reservation to the United States in trust to be sold, the proceeds to be credited to the Indians, provided that the proceeds were to be used, among other things, for the construction of an irrigation system within the diminished reservation. Thereafter, special appropriations for the Wind River project, most of which were made reimbursable as provided by the Act of March 3, 1905, supra, were contained in annual appropriation acts for the Bureau through 1920.

"*     *     * Provided further, That the Secretary of the Interior is hereby authorized and directed to apportion the cost of any irrigation project constructed for Indians and made reimbursable out of tribal funds of said Indians in accordance with the benefits received by each individual Indian so far as practicable from said irrigation project, said cost to be apportioned against such individual Indian under such rules, regulations and conditions as the Secretary of the Interior may prescribe *     *     *." (38 Stat. 583)

    The Act of February 14, 1920 (41 Stat. 408, 409; 25 U.S.C. § 386), hereafter called the 1920 Act, contained the following substantive provisions affecting irrigation construction costs:

"*     *     * The Secretary of the Interior is hereby authorized and directed to require the owners of irrigable land under any irrigation system heretofore or hereafter constructed for the benefit of Indians and to which water for irrigation purposes can be delivered to begin partial reimbursement of the construction charges, where reimbursement is required by law, at such times and in such amounts as he may deem best; all payments hereunder to be credited on a per acre basis in favor of the land in behalf of which such payments shall have been made and to be deducted from the total per acre charge assessable against said land *     *     *."

    In a decision of September 2, 1921 (33 Op. Atty. Gen. 25), the Attorney General held that the above-quoted proviso in the 1914 Act was to be construed as substantive legislation imposing an individual liability upon Indians having irrigable allotments. The opinion pointed out that the proviso is directed to and refers only to Indians and to the requirement of reimbursability from

    ¹ For many years, Departmental regulations governing the sale of irrigable lands within Indian irrigation projects have required the execution, acknowledgment, and recording of Form 5-462-B in connection with purchasing irrigable lands. See 25 CFR 128.1 (formerly numbered 154.1) and the note following the regulation.

Indian funds. Thus, until 1920, the requirement of reimbursability of irrigation charges was held to impose a personal liability on individual Indians benefited. See Solicitor's Opinion, 5 1 I.D. 613 (1926); 49 I.D. 370, 373 (1922). When the quoted provisions from the 1914 and 1920 Acts are read together, they indicate an intent that the obligation of repaying construction costs created by specific statutes like the 1905 Wind River Act be shifted away from tribal funds to the individual Indian benefited, and later, under the 1920 Act, that repayment be based on a per acre assessment against the land.

    The Leavitt Act of July 1, 1932, modified the statutory provisions relating to reimbursable obligations of Indians in a number of ways. The Act provides:

"That the Secretary of the Interior is hereby authorized and directed 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: 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 the Act of February 14, 1920 (41 Stat. L. 409), and uncollected, are hereby canceled.

Provided further, That a report shall be made to Congress annually on the first Monday in December, showing adjustments so made during the preceding fiscal year: Provided further, That any proceedings hereunder shall not be effective until approved by Congress unless Congress shall have failed to act favorably or unfavorably thereon by concurrent resolution within sixty legislative days after the filing of said report, in which case they shall become effective at the termination of the said sixty legislative days."

    The first clause of the Act grants general authority to the Secretary to adjust or eliminate, in an equitable and just way, any reimbursable charges of the Government of the United States which are debts against individual Indians or tribes of Indians. This general grant of authority is subject to three provisos, the first of which defers the collection of all construction costs against any Indian-owned lands within any Government irrigation project, forbids the assessment of construction charges against such lands until the Indian title to the lands shall have been extinguished, and cancels uncollected assessments levied under the 1920 Act.

    Your question whether the Leavitt Act requires deferring the collection of all construction charges against land purchased in fee simple by an Indian from a non-Indian is answered in the negative because it is not "Indian owned" land within the first proviso of the Leavitt Act, and only irrigation construction costs against lands within the scope of the proviso are deferred by it. The phrase "Indian owned lands" in this context means trust and restricted lands, the Indian title to which has not been extinguished by conveyance after June 30, 1932, to a non-Indian, with the exception noted below as to trust and restricted lands purchased for Indians after July 1, 1932. There would be no purpose or function in the phrase "until Indian title shall have been extinguished" if the prohibition against the assessment of construction costs were intended to be operative whenever an Indian acquired title to irrigable land. If the "until" phrase were omitted, the proviso would prohibit the assessment of construction charges against all Indian-owned land, but as written, the "until" phrase excludes from the operation of the proviso land acquired in fee simple by an Indian after the enactment of the Leavitt Act. This does not in any way modify the ruling that restricted and trust lands acquired by Indians after July 1, 1932, are subject to the first proviso of the Leavitt Act. (See Solicitor's opinion, M-30133, April 13, 1939, holding that lands purchased for Indian tribes after the enactment of the Leavitt Act are subject to the proviso deferring the collection of irrigation construction costs.)

    The first clause of the Leavitt Act, unlike the first proviso, authorizes the Secretary generally to adjust or eliminate reimbursable charges of United States which are debts against individual Indians or tribes of Indians without regard as to whether the individually owned lands are trust or fee lands or whether debts for irrigation costs or other types of reimbursable charges are involved. From the time of the enactment of the Leavitt Act, reimbursable operation and maintenance costs of irrigation projects, and reimbursable charges for other types of construction, such as roads and bridges, have been subject, continuously, to adjustment and cancellation under the general authority in the first clause of the Leavitt Act. Accordingly, construction charges against lands purchased in fee by an

Indian from a non-Indian, like those here involved, may be adjusted under the first clause of the Act, as circumstances warrant, where the charges are debts owed to the United States by an individual Indian although the collection of such charges is not subject to deferment under the first proviso of the Act.

    In this connection, the cancellation of certain reimbursable charges under the Leavitt Act, including irrigation construction charges, by letter of December 15, 1932, from the Secretary of the Interior to the Speaker of the House of Representatives needs to be considered. The second and third provisos of the Leavitt Act require that a report be made to Congress annually showing adjustments made pursuant to the Act and provide that any proceedings under the Act shall not be effective until approved by Congress unless Congress shall have failed to act within sixty legislative days of filing the report. In accordance with these provisions the Secretary by letter of December 15, 1932, reported to Congress the cancellation of designated reimbursable charges including both operation and maintenance costs and construction costs of a number of irrigation projects. The action has never been disapproved by Congress. H.R. Doc. No. 501, 72d Cong. 2d Sess. (1932) is a reprint of the Secretary's letter of December 15, 1932, and material supporting the cancellation of reimbursable costs pursuant to the Leavitt Act, including the irrigation construction costs. Among the charges listed for cancellation were reimbursable irrigation construction charges of $35,431.67 against Indian-owned lands on the Fort Belknap Indian Reservation with exceptions as to part of the costs on two units.

    A Deputy Solicitor's memorandum of May 11, 1960, to the Deputy Commissioner of Indian Affairs held, in part here material, that the submission of such items as the Fort Belknap construction charges to Congress did not result in their cancellation since no irrigation construction costs were existing as debts due the United States, and therefore the charges could not be cancelled under the Leavitt Act. We conclude, however, that the irrigation costs listed in H.R. Doc. No. 501 relating to Fort Belknap and other projects were in fact and in law accrued obligations owing to the United States on July 1, 1932.

    The first proviso of the Leavitt Act which, since July 1, 1932, has deferred the collection of irrigation construction costs against Indian-owned lands does not change the fact that such construction costs become accrued obligations or debts owing to the United States as soon as the amounts are spent. Moreover, H.R. Doc. No. 501 (supra, pp. 42, 43, 45, 47), indicates that most of the Fort Belknap construction costs were unassessed as of June 30, 1932, arid that these costs had been held reimbursable in accordance with the 1914 Act (HR. Doc. 501, supra, p. 15). The total amounts expended for irrigation costs which were recommended for cancellation and so reported in H.R. Doc. 501 are designated "reimbursable from individuals" (H.R. Doc. 501, supra, p. 3), indicating that they were regarded as debts against individual Indians subject to cancellation under the first clause of the Leavitt Act. See Appendix A attached hereto which briefly summarizes the legislative history of the Act. We have no doubt that the irrigation construction costs listed in H.R. Doc. No. 501, supra, were subject to cancellation and were cancelled in accordance with the Secretary's letter of December 15, 1932. The ruling to the contrary in the memorandum of May 11, 1960, is incorrect, and will not be followed. This conclusion is likewise applicable to construction costs listed for cancellation and reported to Congress by the Secretary in 1933, 1934, and subsequent years, and applies to amounts spent both before and after the enactment of the Leavitt Act. We conclude that amounts owing under the repayment contract here involved which was executed in 1953, and subsequently accrued charges including construction charges, are subject to adjustment and elimination under the Leavitt Act as circumstances may warrant.

    In attempting to carry out the 1920 Act consistently with the opinions of the Attorney General and the Solicitor referred to herein, the Commissioner of Indian Affairs approved a repayment contract form under which a purchaser of an irrigable allotment was required to pay accrued irrigation charges assessed against the land prior to approval of the sale and also agreed to pay all irrigation charges to be assessed against the land in the future. (See note 1.) The current repayment agreement on Form 5-462-B contains identical provisions with that issued on June 13, 1925, and concludes with the following provision:

"This agreement shall be binding upon the purchaser, his heirs, executors, administrators, and assigns. The purchaser further agrees to pay recordation fees at time of executing this agreement."

    The only purpose of including the provision binding the purchaser's successors under the repayment agreement was the intention that successive owners of land on which irrigation charges, assessed under the 1920 Act, were owing should become obligated under the contract. This and the provisions for recording the agreement indicate an intention that the repayment contract be binding on the successors of the purchaser from the Indian allottee. Courts in different jurisdictions have held that such a contract which is recorded is, or will be treated as if it were, a covenant running with the land.² In accordance with those decisions, we think that Form 5-462-B may be so regarded. It may be desirable, however, to base the requirement of construction cost repayment on a more immediate instrument than a form executed by a remote purchaser from an Indian allottee. The delivery of water to a purchaser of land on which construction charges are owing under the 1920 Act may be conditioned upon each successive owner's executing a repayment contract (though not Form 5-462-B since it is limited to purchasers of allotments), as the 1920 Act requires each owner to repay, in accordance with the Secretary's regulations, construction charges assessed on a per acre basis under the Act. A purchaser who does not agree to repay such charges is not entitled to have irrigation water delivered to his land (cf. Solicitor's opinion, 51 I.D. 613, 621 (1926)).

    Irrigation construction charges which are required by statute to be reimbursed are subject, under the 1920 Act, "to partial reimbursement at such times and in such amounts" as the Secretary may deem best. This is a much more flexible provision than regulations under the 1920 Act indicate. Since the 1920 Act makes the time for and amount of repayment completely discretionary, you may wish to consider amending applicable regulations to permit more flexibility in payment of amounts owing than is now possible.

    In any event, the authority to adjust and cancel reimbursable construction charges under the Leavitt Act and the authority to amend regulations under the 1920 Act permit much greater flexibility in administering these statutory provisions than past practice indicates.

APPENDIX A

    The Leavitt Act was intended to benefit Indians owning irrigable lands, many of which were burdened with old debts arising from costs for irrigation systems which the Indians had not requested, which sometimes were inadequate, and for which the Indians were unable to pay. Moreover, the existence of these old debts was especially detrimental because it hindered the sale of Indian allotments. That it was the purpose of the sponsors of the Leavitt Act to wipe out or permit the cancellation of at least some of the old debts against Indian lands for unpaid irrigation construction charges was expressed throughout Congressional discussion of the legislation (75 Cong. Rec. pp 8142-8144; 14313 ff.; Sen. Rep. No. 752 on H.R. 10884, 72d Cong. 1st Sess. (1932) ), which, in combination with parts of another bill (H.R. 8898, 72d Cong. 1st Sess. (1932) ), became the Leavitt Act; see also Solicitor's Opinion M-30133 (April 13, 1939), discussing the first proviso in the Leavitt Act.

    ² When a covenant runs with the land, the benefit or burden of the covenant passes to each successive owner and assignee of the land and the transfer of the property operates as an automatic assignment of the covenant. Bolles v. Pecos Irr. Co., 167 P. 280 (New Mexico 1917). A covenant runs with the land if the parties to the agreement meant to charge the land, if the covenant touches or concerns the land and also if the covenant entered into the consideration for which the land or some interest in it to which the covenant is annexed passed between the covenanter and the covenantee. (Annotation, "Affirmative Covenants Running With Land", 118 A.L.R 982; Tiffany, Real Properly §§ 848-857 (Third ed.); 7 Thompson, Real Property, §§ 3622-3630 (1940 ed.); 20 Am. Jr. 2d "Covenants", §§ 29-42.) )
    So, a covenant in a deed to pay assessments against the grantor's adjoining property for the opening of a street was held to run with the land (Maher v. Cleveland Union Stockyards Co., 9 N.E. 2d 995 (Ohio 1936). Similar covenants to pay for both existing and proposed improvements on land have been held to be covenants which run with the land. Mendrop v. Harrell, 103 So. 2d 418 (Miss. 1958); Neponsit Property Owners' Association, Inc. v. Emigrant Industrial Savings Bank, 15 N.E. 2d 793; 16 N.E. 2d 852 (N.Y. 1938); Phillips v. Smith, 38 N.W. 2d 87 (Iowa 1949); and see United States v. Florea et al., 68 F. Supp. 367 (D. Ct. D. Ore. 1945).
    There is authority which conflicts with these casts (see Lingle Water Users' Association v. Occidental Building & Loan Association, 297 P. 38.5 (Wyo. 1931) holding that the promise to pay both construction and operation and maintenance costs in connection with the delivery of water to land did not run with the land, but this is contrary to the weight of the cases. See United States v. Florea, supra, p. 369 and note 8.
    In any event, when an agreement is recorded, as are agreements to pay the irrigation costs here involved, the purchaser of land covered by the agreement takes the land subject to an equitable servitude of which he had notice, and a court of equity will commonly enforce any reasonable agreement affecting land against a purchaser with notice of the agreement. Mendrop v. Harrell, supra; Thompson, supra, sec. 3615; and see United States v. Florea, supra, pp. 374-375.

    Probably the first clause of the Leavitt Act was intended to apply to all reimbursable charges against Indians and Indian tribes. It passed the House first as a separate bill, H.R. 10884, and was interpreted as permitting adjustments of accumulated debts against restricted funds of individual Indians as well as adjustments of accumulated debts against Indian lands. (See House report on H.R. 10884, H. Rep. No. 951, 72d Cong. 1st Sess.) H.R. 10884 was passed by the Senate after having been amended by adding parts of H.R. 8898. The latter bill, which had been passed separately by the House, contained the provisions relating to irrigation construction charges which became the first proviso of the Leavitt Act. Because the great bulk of reimbursable debts charged against Indians and Indian tribes arose out of irrigation charges, much of the discussion about both bills centered around irrigation construction costs and obscured the fact that the first clause grants broad authority to the Secretary to adjust virtually any kind of debt owing to the United States by individual Indians or Indian tribes.

    Various statements of the Commissioner of Indian Affairs and of Congressman Scott Leavitt, principal sponsor in Congress of the legislation, indicate that it was the intention of administrative and Congressional authors of this legislation that existing accrued amounts owing to the United States by reason of irrigation construction charges and assessed against Indian lands on a per-acre basis should be written off and the accumulation of accrued charges in the future was to be prevented by prohibiting the assessment of such costs against Indian lands. In Congressman Leavitt's words, "*     *     * we want to have the