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many cases of a mortgage upon the property, the purchase of which the corporation is financing. But if title to that property is held by the United States the property could not be mortgaged to and be unable to and resold by the corporation and the corporation would be able to obtain effective security. The general effect of retaining title to individual property in the United States is to impair the power and responsibility of the incorporated tribe. As was said by the Solicitor in his memorandum of December 5, 1935, criticizing the first submitted draft of the credit regulations,

    "Money from the revolving credit fund may not be loaned to individual Indians directly. * * * The Government can deal only with the tribal authorities, and these are charged with the responsibility for making such loans to their members, or for using the funds in such ways, as will enable them to create a basis for expanding self-sufficiency. In accordance with the purpose expressed in sections 16 and 17 of the Reorganization Act, by which a large and increasing responsibility for taking care of their own welfare is placed upon the various tribes, organized for local self-government and economic activity, section 10 contemplates that funds loaned to the tribes will be, in large measure, subject to their disposition, consistent with the terms of said provision."

The New York Indians, 5 Wall. 761;
The Kansas Indians, 5 Wall. 737;
Territory of Alaska v.Annette Island Packing Co., 289 Fed. 671, cert. den. 263 U.S. 708;
United States v. Higgins, 103 Fed. 348;
Wau-pe-man-qua v. Aldrich, 28 Fed. 489;
Foster v. Commissioners of Blue Earth Co., 7 Minn. 140;
Board of Commissioners v. Simons, 129 Ind. 193, 29 N.E. 420;
And cf. Indian Oil Co. v. Oklahoma, 240 U.S. 522.

    Whether such property will become subject to State taxation when it has been completely paid for and legal title is held by an individual Indian is a more difficult question. Certain of the decisions above cited sustain the claim of tax exemption  in this case as well. It is not necessary, however, to decide this question at the present time since it does not in any way affect the question here presented of whether security title should be taken in the name of the United States. If individual Indian property is subject to State taxation the Indian will have to pay taxes when he has finished paying for the property, whether or not the United States held a security title before the property was paid for. If such property is not subject to State taxation then, again, it makes no difference whether or not the United States held a security title. In short, the retention of title by the United States is ineffective to render the property permanently tax exempt if individual Indian property may be taxed by the States, and it is totally unnecessary if such property may not be taxed by the States. Until the property has been actually paid for, the retention of trust title by the United States offers no greater security under either theory than does the retention of a security title by the corporation.

    Believing that the proposed amendment to Rule 18 is legally unnecessary for the chief purpose it is designed to serve, that it imposes upon the United States legal liabilities of unknown scope, that it imposes upon the Indians a stifling burden fo procedural complications, and that it requires action by the Secretary which is contrary to the intent of the Indian Reorganization Act, I am compelled to return the attached papers to you without my approval.

M-28107                                                                                                                               June 30, 1936.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    At the suggestion of the Commissioner of Indian Affairs, you have requested my opinion on the following questions:

    1. Does title to the lands submerged by the waters of Lower Red Lake and that part of Upper Red Lake inside the boundaries of the Red Lake Indian Reservation in the State of Minnesota rest in the State or in the Red Lake and Pembina Bands of Chippewa Indians?

    2. What right, if any, has the State of Minnesota to interfere with the exclusive right of fishing within these waters heretofore enjoyed by the Indians of the Red Lake Reservation?

    The first question needs little consideration. In United States v. Holt Bank, 270 U.S. 49, the Supreme Court decided that the lands underlying the navigable waters within the Red Lake Indian Reservation passed to the State of Minnesota upon its admission into the Union. The court said:

    "We come then to the question whether the lands under the lake were disposed of by the United States before Minnesota became a State. An affirmative disposal is not asserted, but only that the lake, and therefore the lands under it, was within the limits of the Red Lake Reservation when the State was admitted. The existence of the reservation is conceded, but that it operated as a disposal of lands under lying navigable waters within its limits is disputed. We are of opinion that the reservation was not intended to effect such a disposal and that there was none. If the reservation operated as a disposal of the lands under a part of the navigable waters within its limits it equally worked a disposal of the lands under all. Besides Mud Lake, the reservation limits included Red Lake, having an area of 400 square miles, the greater part of the Lake of the Woods, having approximately the same area, and several navigable streams. The reservation came into being through a succession of treaties with the Chippewas whereby they ceded to the United States their aboriginal right of occupancy to the surrounding lands. The last treaties preceding the admission of the State were concluded September 30, 1854, 10 Stat. 1109, and February 22, 1855, 10 Stat. 1165. There was no formal setting apart of what was not ceded, nor any affirmative declaration of the rights of the Indians therein, nor any attempted exclusion of others from the use of navigable waters. The effect of what was done was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory; and thus it came to be known and recognized as a reservation. Minnesota v. Hitchcock, 185 U.S. 373, 389. There was nothing in this which even approaches a grant of rights in lands underlying navigable waters; nor anything evincing a purpose to depart from the established policy, before stated, of treating such lands as held for the benefit of the future State. Without doubt the Indians were to have access to the navigable waters and to be entitled to use them in accustomed ways; but these were common rights vouchsafed to all, whether white or Indian, by the early legislation reviewed in Railroad Company v. Schurmeir,7 Wall. 272, 287 289, and Economy Light & Power Co. v. United States, supra, pp. 118-120, and emphasized in the Enabling Act under which Minnesota was admitted as a State, c. 60, 11 Stat. 166, which declared that the rivers and waters bounding the State 'and the navigable waters leading into the same shall be common highways, and for ever free, as well to the inhabitants of said State as to all other citizens of the United States.' "

    Before discussing the second question, which presents more difficulty, it is appropriate to point out that the right of fishing in the waters of Upper and Lower Red Lakes may exist in the Indians notwithstanding State ownership of the submerged lands. If at the time of admission of the State into the Union, there existed in the Indians as a part of their larger rights in the lands used and occupied by them the right of fishing in these waters, the State may be said to have taken title to the submerged lands subject to that right. Thus in Beecher v. Wetherby, 95 U.S. 517, 525, the Supreme Court of the United States held that the State of Wisconsin, in virtue of her enabling act, took title to the sixteenth sections in the townships of that State, subject to the Indian right of use and occupancy. The court ruled that the fee was in the
 

United States, subject to that right, and could be transferred whenever they chose, but added, "the grantee would take only the naked fee, and could not disturb the occupancy of the Indians; that occupancy could only be interfered with or determined by the United States." To the same effect is United States v. Thomas, 151 U.S. 577.

    As pointed out by the Commissioner of Indian Affairs, the diminished Red Lake Reservation embraces the remnant of a large domain of land formerly occupied and claimed by the Chippewa Indians but subsequently acknowledged as belonging to the Red Lake and Pembina Bands of Chippewas by the treaty of October 2, 1863 (13 Stat. 667), and the acts of January 14, 1889 (25 Stat. 642), March 2, 1903 (32 Stat. 1009), and February 20, 1904 (33 Stat. 46). Prior to the cession made pursuant to the act of January 14, 1889, supra, the Indian title extended to all of the lands surrounding Upper and Lower Red Lakes. Under that cession, however, about one half of Upper Red Lake was excluded from the reservation, leaving the remainder of that Lake and all of Lower Red Lake within the boundaries of the diminished reservation.

    An examination of the various treaties between the United States and the Chippewa Indians discloses that while the right in the Indians to hunt and fish on ceded lands was reserved in some of the earlier treaties (see Article 5, treaty of July 20, 1837, 7 Stat. 536; Article 2, Treaty of October 4, 1842, 7 Stat. 591; and Article 11, treaty of September 30, 1854, 10 Stat. 1109), no reservation of the right to hunt and fish was made with respect to the unceded lands of the Red Lake Reservation. But such a reservation was not necessary to preserve the right on the lands reserved or retained in Indian ownership. The right to hunt and fish was part of the larger rights possessed by the Indians in the lands used and occupied by them. Such right, which was "not much less necessary to the existence of the Indians than the atmosphere they breathed" remained in them unless granted away. United States v. Winans, 198 U.S. 371. Speaking of a similar situation, the Supreme Court of Wisconsin in State v. Johnson, 249 N.W. 285, 288, said:

    "While the treaty entered into did not specifically reserve to the Indians such hunting and fishing rights as they had theretofore enjoyed, we think it reasonably appears that there was no necessity for specifically mentioning such hunting and fishing rights with respect to the lands reserved to them. At the time the treaty of 1854 was entered into there was not a 'shadow of impediment upon the hunting rights of the Indians' on the lands retained by them. 'The treaty was not a grant of rights to the Indians, but a grant of rights from them-a reservation of those not granted.' United States v. Winans, 198 U.S. 371, 25 S. Ct. 662, 664, 49 L. Ed. 1089. We entertain no doubt that the rights of the Indians to hunt and fish upon their own lands continued."

    By tradition and habit the Indians as a race are hunters and fishermen, depending largely upon these pursuits for their livelihood. Their ancient and immemorial right to follow these pursuits on the lands and in the waters of their reservation is universally recognized. The Indians of the Red Lake Reservation appear to have asserted and exercised an exclusive right of fishing in the waters of Upper and Lower Red Lakes from the beginning subject only to Federal control and regulation. The right of the Indians so to do has not heretofore been disputed by the State of Minnesota but has been recognized and acquiesced in. Such recognition and acquiescence is amply shown by the fact that the State through its Game and Fish Commissioner has entered into contracts with the Federal authorities in charge of Indian Affairs authorizing it to take and remove fish from that part of the Lake within the reservation boundaries upon conditions 'requiring among other things the payment to the Indians of royalties at prescribed rates (see Indian Office File No. 44606-17 Red Lake 115). And in an opinion dated November 27, 1931, the Assistant Attorney General for the State of Minnesota advised the Director of Game and Fish that white men could not take fish in that part of Red Lake within the reservation unless permitted so to do by the Federal authorities in charge of the reservation, and that Indians were not subject to State law when taking fish for their own use within the reservation. Circumstances somewhat similar to these, coupled with the rule of liberal construction uniformly invoked in determining the rights of Indians, were cited by the Supreme Court of the United States in support of its conclusion that the Metlakahtla Indians had an exclusive right to fish in the waters adjacent to Annette Islands in Alaska notwithstanding the fact that the Act of Congress setting aside the Islands as a reservation for the Indians made no mention of the surrounding waters or the fishing rights of the Indians therein. Alaska Pacific Fisheries v. United States, 248 U.S. 86. The court said, among other things:
 

    "This conclusion has support in the general rule that statutes passed for the benefit of dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians. Choatev. Trapp, 224 U.S. 665, 675, and cases cited. And it has further support in the facts that, save for the defendant's conduct in 1916, the statute from the time of its enactment has been treated, as stated in the opinion of the Alaska court, by the Indians and the public, as reserving the adjacent fishing grounds as well as the uplands, and that in regulations prescribed by the Secretary of the Interior on February 9, 1915, the Indians are recognized as the only persons to whom permits may be issued for erecting salmon traps at these islands."

    "The president has set apart the reservation for the use of the Pah Utes and other Indians residing thereon. He has done this by authority of law. We know that the lake was included in the reservation, that it might be a fishing ground for the Indians. The lines of the reservation have been drawn around it for the purpose of excluding white people from fishing there, except by proper authority. It is plain that nothing of value to the Indians will be left of their reservation if all the whites who chose may resort there to fish. In my judgment, those who thus encroach on the reservation and fishing ground violate the order setting it apart for the use of the Indians, and consequently do so contrary to law."

    "Manifestly, unless the Indians of the Quinaelt Reservation are protected in the exclusive use and occupancy of their reservation including ,the waters therein, navigable or non-navigable, then their rights may become subject to serious interference, if not jeopardy, by outsiders. If we admit the right of the State to invade the reservation for the purpose of regulating or controlling the use of boats on the Queets or any other body of navigable water therein, it would be tantamount to recognizing the right of the State to regulate other activities there, including fishing. This we can not afford to do."

    In expressing the foregoing view, I am mindful of the statement of the Supreme Court in United States v. Halt Bunk, supra, that while the Indians of the Red Lake Reservation were to have access to the navigable waters therein and were to be entitled to use them in accustomed ways, "these were common rights vouchsafed to all, whether Indian or white." But when this statement is read, as it should be, in the light of the decisions cited in its support, it becomes apparent that the court had in mind rights of navigation of a public nature and not private rights of ownership such as the Indian right of fishing. The latter right was not involved and was neither considered nor discussed.

    Accordingly, since the Indian's exclusive rights
 

to fish in the waters of Lower Red Lake and that part of Upper Red Lake inside the Indian reservation is supported by all of the decided cases touching on the subject, it is my opinion that continued administrative recognition of such rights as exclusive in the Indians is fully justified.

                                                                                                                                        FREDERIC L. KIRGIS,

    There is returned to you herewith for further consideration a letter dated June 29 prepared for departmental approval which would authorize the mining of coal for Government use on the Navajo Reservation.

    I know of no statute authorizing the Govt. to take coal or any other minerals from tribal land without payment. Possibly there are precedents for such action and it is possible that a plausible argument supporting the legality of such action can be worked out. On the other hand, taking minerals from tribal land without the consent of the Indians is the sort of thing for which past administrations have been severely and I think justly criticized. I do not think we should be less scrupulous in this matter because in our opinion the coal will be used for the benefit of the Navajo Indians. If they agree without opinion in this matter they will probably not refuse their consent to the mining operations. On the other hand, they may conceivably feel that the chief beneficiaries of this arrangement will be Agency employees and the United States Treasury, which would otherwise bear the burden of increased appropriations for fuel brought in from outside the reservation.

    For these reasons I recommend that the Supt. of the Navajo Agency be instructed to secure the consent of the Navajo Tribal Council before opening a coal mine on tribal land.

                                                                                                                                        FREDERIC L. KIRGIS,

 Memorandum for the Commissioner of Indian Affairs:

    I should like to call to your attention certain questions raised by the Interior Department Appropriations Act for 1937, approved June 22.

    This act makes appropriations out of tribal funds for various purposes, including industrial assistance, operation and maintenance of pumping plants and irrigation systems, education, general support and administration and expenses of tribal councils. Certain of the tribes, affected by these appropriations from tribal funds are, and were prior to June 22, organized under constitutions. According to these constitutions, and according to the express language of section 18 of the act of June 18, 1934, the tribe has a final veto power over any disposition of its tribal funds. Two questions which in my opinion require immediate consideration are: (1) Are the provisions of section 16 and the constitutional provisions adopted in accordance therewith applicable to these appropriations? (2) If so, what procedure shall be followed in securing the consent of the proper tribal authorities to the expenditure of the appropriated funds?

    These questions are of considerable importance since they involve the possibility of exceptions to the accounts of departmental disbursing officers, suits in the Court of Claims. Because of the im-expenditures [sic], and even a possible basis for future suits in the Court of Claims, Because of the importance of these questions I am, at the suggestion of Mr. Dodd, bringing the matter directly to your attention.

    Section 16 of the act of June 18, 1934, provides:

    "In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe, or its tribal council the following rights and powers: * * * to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; * * *".

    "To approve or veto any sale, disposition,
 

lease, or encumbrance of tribal lands and tribal assets which may be authorized or executed by the Secretary of the Interior, the Commissioner of Indian Affairs, or any other agency of the Government, provided that no tribal lands shall be sold or encumbered or leased for a period in excess of five years, except for Governmental purposes." (Confederated Salish and Kootenai Tribes of the Flathead Reservation, Article VI, section I(d).)

    "2. To prevent the sale, disposition, lease, or encumbrance of pueblo lands, interests in lands, or other tribal assets." (Pueblo of Santa Clara, Article IV, section 1.)

    Certainly the departmental appropriations act contains no express repealer of section 16. Repeals by implication are not favored in law, unless the later statute is logically inconsistent with the earlier statute. In this case there does not appear to be any such inconsistency. The appropriations act does not compel, but merely authorizes, the expenditure of certain funds. Actual expenditure, pursuant to the language of the appropriation, depends upon various statutes which restrict the manner of spending money. Such statutes, for example, as permit the diversion of certain appropriations to designated purposes (25 United States Code, Sec. 140), or prohibit the payment of annuities to Indians at war with the United States (25 United States Code, Sec. 128), or "within convenient reach" of intoxicating liquor (25 United States Code, Sec. 130) continue to restrict the actions of departmental officers in paying out funds actually appropriated, even though the language of the appropriation act makes no reference to these statutes, and even though these restrictions may possibly prevent any expenditure of a particular appropriation. So, too, it would seem that the Interior Department Appropriations Act of 1937 is subject to the specific restriction contained in section 16 of the act of June 18, 1934, and that tribal funds appropriated thereby may not be disbursed by officers of the Department without the approval of the proper tribal officers, in the case of organized tribes.

    Such is the meaning of section 16 as expounded by the Chairman of the House Committee reporting on the measure that was finally enacted. The following language seems to indicate that it was the intent of Congress to modify existing law, under which Indian tribes had merely an advisory function in the expenditure of tribal funds, and to confer upon organized tribes a definite veto power:

    "* * * Under existing law, tribal moneys may be appropriated for the expenses of the Indian Service. It has been estimated that since 1900 the Government has spent $500,000,000 of tribal money in per capita payments and administrative costs. Much of this money has gone to pay for routine activities of the Indian Service over which the Indians have exercised no control whatever, much has been spent for ill-advised irrigation projects which have benefited the whites rather than the Indians, without the consent of the tribe.

    "The Indians should unquestionably have a voice in the spending of their own money. The present system is in effect a totally in defensible system of 'taxation without representation' and has led to the profligate and unproductive expenditure of vast sums of money. Most of this huge expenditure represented Indian capital, derived either from the sale of land or other assets or from claims arising out of Government mismanagement of Indian property. It should be axiomatic that no Indian capital should be spent for any purpose except productive development of Indian property or enterprise. The expenditure of these vast sums of capital for routine administration or for per capita doles should be stopped. The bill would give the Indians a veto power over such expenditures."

    I suggest therefore that you prepare for the signature of the Secretary a set of instructions or regulations proposing a workable method of handling such appropriations.

                                                                                                                                        FREDERIC L. KIRGIS,

    The attached letter presented for departmental approval, relative to the taking of tribal lands on the Flathead Reservation for reservoir purposes, is returned to you for further consideration.

    It appears from the facts therein stated that lands now held by the United States in trust for the Confederated Salish and Kootenai Tribes are needed by the Indian Irrigation Service for a reservoir site in a project designed to benefit Indian and non-Indian landowners. The Indian Irrigation Service plans to appropriate and utilize the reservoir site, leaving the matter of paying the tribe to future action by Congress. No condemnation proceedings are contemplated. No negotiations with tribal authorities for the purchase or lease of the land are contemplated. No actual withdrawal of the reservoir site has taken place. The Tribal Council and the Superintendent of the Flatland Reservation are protesting against the proposed action of the Indian Irrigation Service.

    It appears that one of the powers conferred on the Confederated Salish and Kootenai Tribes under its constitution, approved by the Secretary on October 28, 1935, is the power "To approve or veto any sale, disposition, lease, or encumbrance of tribal lands and tribal assets which may be authorized or executed by the Secretary of the Interior, the Commissioner of Indian Affairs, or any other agency of the Government, provided that no tribal lands shall be sold or encumbered or leased for a period in excess of five years, except for Governmental purposes." Under the charter of the Tribe, ratified on April 25, 1936, general powers of control over tribal property are vested in the Tribal Council subject to departmental approval or veto.

    Under the circumstances the protest seems justified, and the legal arguments advanced in the letter submitted seem to me to be without force.

    It is urged, in the proposed letter to the Superintendent of the Flathead Reservation, that "It should be distinctly understood that the conditions so vehemently complained of by you were brought about primarily by express legislation by Congress rather than by administrative action either by the present project management, this Office or this Department." However, no statute is cited authorizing the withdrawal for reservoir purposes of the tribal land here in question. A general appropriation for the purchase of land, such as is cited, clearly does not authorize an involuntary transfer of land without condemnation proceedings. Nor does the act of March 3, 1909 (35 Stat. 781, 795) empowering the Secretary to withdraw surplus lands of the Flathead Reservation from entry and sale have any application to the instant case. For one thing, this authority is no longer applicable in the face of the provisions of the act of June 18, 1934, which prohibit the sale of any restricted Indians lands and likewise prohibit any disposition of lands or interests in lands of an organized tribe without the consent of the tribe. In the second place, the Secretary has not attempted to exercise any such authority in the current controversy. In the third place, the land is not subject to entry and sale, in the light of the act of June 18, 1934, and therefore the Secretary could not withdraw such land from entry and sale pursuant to the cited act of March 3, 1909:

    It is further argued in the proposed letter that Congress intended to construct an irrigation project, that in order to complete the project it is necessary to acquire this particular reservoir site and that therefore the taking of the site is justified. Granted the premises, the conclusion does not follow. The land in question belongs, equitably, to the Tribe and may not be taken from the Tribe except through due process of law. It is not sufficient to inform the Tribe that Congress has already offered a sum of money (regarded by the Tribe as insufficient and accordingly rejected) to pay for reservoir sites taken many years ago, and that "there is an implied obligation to compensate the Indians for the area in question."

    The further argument is advanced in the proposed letter that "While the constitution, bylaws and charter of the Confederated Salish and Kootenai tribes of the Flathead Reservation grant to the tribe certain rights and powers with respect to tribal property, in its final analysis such grant is not effective against the United States in its sovereign capacity." It is true that the United States in its sovereign capacity may condemn tribal land for certain purposes and may even appropriate tribal land by act of Congress subject to constitutional requirements of compensation. But the rights and powers with respect to tribal property granted by the Constitution and Charter of the Confederated Salish and Kootenai Tribes are effective against officers of the United States not acting under direct mandate of Congress. Indeed, unless officers of the Department can be restrained by the Tribe from disposing of tribal property, all meaning has vanished from the provision in section 16 of the Indian Reorganization Act granting to an organized tribe the power "to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe." The only persons against whom this provision can be directed are officers of the United
 

States. Private individuals never have had the power to sell tribal land or to dispose of tribal assets. If then, as suggested in the proposed letter, the restrictions contained in the above-quoted provision do not run against the United States, they are meaningless and the constitutional provisions enacted in accordance therewith are a false promise.

    No such proposition can be derived from the ruling of the Attorney General cited in the proposed letter. (Opinion dated February 7, 1935) It was there held by the Attorney General that individually owned restricted land might be sold to the United States for the construction of an Indian school. The ruling certainly does not warrant a taking of property without condemnation proceedings. It may be doubted whether even condemnation proceedings are authorized where the land is owned by an Indian tribe and is desired for the benefit of non Indians as well as Indians. That, however, is a question that I pass over, since it will undoubtedly be considered by the Attorney General if he is required to institute condemnation proceedings to secure the land in question.

                                                                                                                                        FREDERIC L. KIRGIS,

    The Attached letter approving the Land and Order Code adopted by the Senate of the Swinomish Indian Reservation is returned herewith.

    I am in entire agreement with the recommendations contained in this letter but believe an additional caution should be included with reference to the final suggestion in Superintendent Upchurch's letter as to the payment of judges' salaries. As has already been suggested, any arrangement whereby the compensation of a judicial officer depends upon his convicting a defendant should be discouraged by the Department. This does not mean that judicial fines and fees may not be used to supplement other sources of income in paying a fixed salary to a judge. I do believe, however, that the Superintendent should be advised that the authority conferred upon him by chapter 4, section 5 of the departmental regulations to approve the use of court receipts for various purposes, should not be exercised in such a manner as to make judicial compensation depend upon the collection of fines. It would be well, I think, if similar instructions were sent to all reservations where the question of payment of judicial salaries out of court receipts arises.

    It is my recommendation that a statement of office policy on this issue be included in the proposed letter.

                                                                                                                                        FREDERIC L. KIRGIS,

    Herewith is a contract between the Uintah, White River and Unconpahgre Bands of Ute Indians and Captain R. T. Bonnin. With the contract are memoranda by Assistant Secretary Chapman and Commissioner Collier recommending approval of the contract unless there is some legal objection thereto. A memorandum by Assistant Commissioner Zimmerman questions the propriety of the employment on administrative grounds. There is also with the record a letter from Senator Thomas urging approval of the contract, and a brief which has been filed by Captain Bonnin.

    Captain Bonnin is not a licensed attorney and this gives rise to two questions-one administrative and the other legal.

1. The administrative question.

    The administrative question is whether approval of Captain Bonnin's contract is consistent with Commissioner Collier's memorandum of January 10, approved by you January 12, 1935, which memorandum pronounced it to be the policy of the Department not to approve contracts for legal services between Indian tribes and lay or nonlegal agents. This question has been considered heretofore by yourself and Commissioner Collier and from the correspondence reviewed in Captain Bonnin's brief it appears that the Commissioner, with your approval, advised Captain Bonnin that the memorandum of January 10 ought not to preclude Captain Bonnin from representing Indians in matters that do not entail litigation. While services in the prosecution of litigation are expressly excluded from Captain Bonnin's contract, I deem it advisable to call your attention to the fact that the contract does provide for the performance of legal services. The contract recites that Captain Bonnin is employed as "general counsel" for a period of three years from the date of approval of the contract and declares that it shall
 

be his duty to "render general legal advice and services of the character usually performed by general counsel." The contract further empowers Captain Bonnin to associate with him, subject to the approval of the Secretary of the Interior, such assistants, included "attorneys", as he may select. You will doubtless recall that in conformity with the policy announced in the memorandum of January 10 the Department declined to approve a contract between the Snake or Paiute Indians and one Father Heuel, who was not a lawyer. I venture the suggestion that approval of Captain Bonnin's contract in its present form will likely result in a charge by Father Heuel and perhaps others of unfair discriminations.

2. The legal question.

    Section 4 of the contract provides that Captain Bonnin

"shall receive an annual retainer of three thousand dollars payable in twelve equal installments of two hundred and fifty dollars each from tribal funds; Provided that no money is to be paid The Agent unless and until tribal funds are made available for that purpose by Congress."

    "For pay of General Counsel, Confederated Bands of Ute Indians in the Uintah and Ouray agency, Utah (tribal funds) : The Secretary of the Interior is authorized to expend the sum of $3,000 or so much thereof as may be necessary, from the tribal funds of the Confederated Bands of Ute Indians of the Uintah and Ouray agency Utah, in the Treasury of the United States, upon proper vouchers approved by him, for services rendered by general counsel under a contract approved by the Commissioner of Indian Affairs and the Secretary of the Interior."

are without authority to approve Captain Bonnin's contract.

    While I am unable for the reasons stated above to recommend approval of Captain Bonnin's contract, it may be observed that the question of your authority to approve the contract hinges upon the availability of the appropriation made by the First Deficiency Act. As questions of this nature are primarily for determination by the Comptroller General it may be advisable in the event you want to approve the contract to refer the question to the Comptroller General. If you conclude to adopt this course the letter of submission can be prepared here or in the Indian Office as you prefer.

                                                                                                                                        FREDERIC L. KIRGIS,

    Your letter of July 11 to the Superintendent of the Pawnee Indian Agency advising that Pawnee Oil and Gas Lease No. 941 will be cancelled upon the filing by the administrator of the estate of J. A. Walker, deceased, of an application for the surrender of the lease, is returned.

    Presumably it is your intention to waive delinquencies in payments of advance royalties and annual rentals which the record indicates amount to about $120. Presumably also this action is induced by an apparent defect in the leasehold title, occasioned by the failure of the Superintendent to execute the lease on behalf of Ralph Weeks Allen and Mary Catherine Allen, minor Indian owners of the fee subject to a life estate in Ida Weeks Allen, which life estate appears to have terminated with the death of the life tenant in 1929. The attorney for the estate contends that the lease, al though executed for a period expiring October 3, 1935, terminated with the death of the life tenant, she alone having signed the lease.

    Section 4 of the regulations approved July 7, 1925, provides that the officer in charge, in this case the Superintendent, shall execute leases on behalf of incompetent and minor Indians and the legality of leases so executed has been upheld in opinions of the Solicitor for this Department dated August 28, 1916, and August 23, 1920. While the Superintendent did not actually execute the lease in the instant case on behalf of the minors, there is attached to the lease an agreement signed by him in their behalf and by the life tenant which agreement, after making appropriate reference to the lease, provides for a division of the proceeds therefrom between the life tenant and the minor remaindermen. The execution of this agreement amounted to an adoption and confirmation of the lease making immaterial the original defect in execution. No good reason appears, therefore, for waiving the existing delinquency and any application for the surrender of the lease should be accompanied by a remittance of all amounts due under the terms of the lease.

    The Acting Commissioner of Indian Affairs has inquired whether money appropriated under the Wheeler-Howard Act for loans to Indians chartered corporations may be used under authorization contained in the so-called Oklahoma Indian Welfare Act for loans to individual Indians and unincorporated associations of Indians in Oklahoma. Although the case is before me as a submission for formal opinion, I am expressing my views in this memorandum because I believe the matter is one which should be submitted to the Comptroller General for decision.

    The Wheeler-Howard Act (48 Stat. 984) from certain benefits of which the Indians of Oklahoma were excluded, authorized the expenditure of money for the purchase of land (section 5), for the corporate organization of tribal groups (section 9) for the establishing of a revolving fund for the benefit of incorporated groups (section 10) and for the making of educational loans (section 11).

    Such of these benefits as were originally denied to the Indians of Oklahoma have now been made available to them by the Oklahoma Indian Welfare Act, approved June 26, 1936. That act provides for the acquisition of land (section 1), the organization of chartered Indian groups (section 3), the organization of Indian cooperative associations (sections 4, 5) and the making of loans to individuals, associations, and incorporated groups
 

(section 6). In addition, section 7 of the new act provides as follows:

    "All funds appropriated under the several grants of authority contained in the Act of June 18, 1934, (48 Stat. 984), are hereby made available for use under the provisions of this Act, and Oklahoma Indians shall be accorded and allocated a fair and just share of any and all funds hereafter appropriated under the authorization herein set forth: * * *".

    Thus, in construing section 7 of the Oklahoma Act the question arises whether a fund appropriated for a particular purpose under the Wheeler Howard Act must be used for a like purpose authorized under the Oklahoma Act, or whether funds appropriated for any purpose under the Wheeler-Howard Act may be devoted to any other purpose which is lawful under the Oklahoma Act. Stated somewhat differently, the question is whether the expenditure of Wheeler-Howard funds under section 6 of the Oklahoma Act must be consistent with both the terms of original appropriation and some authorization to be found in the Oklahoma Act, but outside of section 6.

    It should be noted that except for educational loan funds, which might be made available to Oklahoma Indians even under the Wheeler-Howard Act, each Wheeler-Howard appropriation has a counterpart in some type of undertaking expressly authorized in the Oklahoma Act. Thus, in the Interior Department Appropriation Act for 1937 (public No. 741, 74th Congress, approved June 22, 1936) appropriations are made pursuant to the Wheeler-Howard Act for "expenses of organizing Indian chartered corporations", for "the acquisition. of land" and for "the establishment of a revolving fund for the purpose of making loans to Indian chartered corporations." Asalready pointed out in this memorandum, each type of "undertaking thus financed is expressly authorized for Oklahoma by the new Oklahoma Welfare Act. Moreover, the only new enterprises authorized in the Oklahoma Act, namely, the organization of Indian cooperative associations and the making of loans to individuals and cooperative associations, are covered by the only authorization of new appropriations which appears in the Oklahoma Act. Thus, it is arguable that since the language of section 7 can be given effect without changing original purposes of appropriation, such a construction should be preferred to one which would allow the use of money for undertakings wholly unrelated to such original purposes.

    On the other hand, the language of section 7 making "all funds" appropriated under the Wheeler-Howard Act available for expenditure "under the provisions of" the Oklahoma Act does literally embrace the use of any Wheeler-Howard money for any of the undertakings authorized in the Oklahoma Act quite without regard for any identity or even similarity of purpose. Moreover, Wheeler-Howard educational funds could not be spent "under the provisions of" the Oklahoma Act except by devoting such money to some purpose other than educational loans because no provision is made for such loans in the Oklahoma Act.

    The Congressional Committee hearings on the Oklahoma bill shed little light on the question under discussion. It does appear that in the House of Representatives the Committee on Indian Affairs considered the question of special advantage to the Oklahoma Indians in getting the right to share in Wheeler-Howard appropriations and also the right to a special appropriation of $2,000,000 under the new act. See pp. 17 ff. of House hearings. However, the question of the use of Wheeler Howard Funds for purposes different than those of the original appropriation seems not to have been discussed.

    The report upon the bill made in the House of Representatives (Report No. 2408) is somewhat more illuminative. Concerning section 7 the Committee report makes the following comment:

    "In addition to the loan appropriation authorized by section 6, Oklahoma Indians, under the provisions of section 7 will also share in any or all appropriations heretofore or hereafter made to carry out the provisions of the Indian Reorganization Act of June 18, 1934. Thus appropriations for expenses of organization, for land acquisition, for student loans, and for industrial loans, may be used for the benefit of Oklahoma Indians."

mean no more than "for the benefit of the Indians of Oklahoma by virtue of this act."

    I have stated at some length the competing contentions which may be advanced in the construction of section 7 of the Oklahoma Act to indicate that this section presents such a doubtful question concerning the meaning of an authorization to spend money that this Department cannot resolve the issue with assurance. Certainly, until the question is decided by the Comptroller General, it would not be safe to spend for the making of loans to individuals, as the Indian Office proposed money which has been appropriated for loans to chartered corporations.

    In these circumstances, I believe that this Department should not attempt to decide the issue presented by the present submission, but rather should submit the question to the Comptroller General for authoritative decision.

                                                                                                                                        FREDERIC L. KIRGIS,

    The attached regulations to govern the leasing of restricted lands of Indians of the 5 Civilized Tribes for agricultural and grazing purposes under the act of February 11, 1936, are returned for further consideration of section 4 of the proposed
regulations.

    Section 4 deals in part with exceptional leasing cases such as, (a) the leasing of lands of nonresident Indians whose whereabouts are unknown; (b) the leasing of lands of Indians who refuse to lease where a lease would be to his best interests, and (c) the leasing of inherited lands where the owners of the majority interests want to lease and the minority owners refuse to do so. The regulations provide that these three classes of cases shall be submitted to the Commissioner of Indian Affairs with all the facts and circumstances and the Superintendent's recommendation for appropriate consideration and action. The Commissioner will then determine whether the leasing of the land without the consent of the absent or nonassenting Indians, as the case may be, is justified and will issue instructions accordingly.

    The act of February 11, 1936, provides that leases on behalf of minors and Indians non compos mentis may be made by the Superintendent but requires that leases on lands of Indians not laboring under the disability of minority or unsoundness of mind be made by the owner subject to the approval of the Superintendent. In view of these statutory provisions, I am definitely of the opinion that any lease of lands in class (b) above made without the consent of the Indian owner is unauthorized, and that, consequently, the regulations should be altered by the elimination of the provision for the issuance of lease against the express wish of the Indian owner or owners of the entire or a majority interest in the land.

    As to cases falling within class (a) I believe that there is sufficient legal justification for signature by the Superintendent if in fact the Indian owner or owners cannot be found. Whether cases of that type are to be handled by the Superintendent alone or whether they are to be submitted to Washington, is, of course, a matter for your administrative determination.

    As to the cases falling in class (c) the legality of the issuance of a lease without the concurrence of the owners of a minority interest is a question which must be dependent upon the facts in each individual case. In those circumstances I suggest that the regulation provide that cases of that type be submitted to the Secretary of the Interior through the Commissioner of Indian Affairs for appropriate consideration and action.

                                                                                                                                        FREDERIC L. KIRGIS,

    The attached letter authorizing the Superintendent of the Cheyenne and Arapaho Agency to sign leases for nonconsenting heirs is returned to you for further consideration.

    The letter purports to authorize the Superin-
 

tendent to sign the name of nonconsenting heirs owning less than a majority in interest of the estate, in two cases: (1) Where the nonconsenting heirs "by reason of their absence from the reservation, or unknown whereabouts, cannot be reached after a reasonable effort has been made"; and (2) where the nonconsenting heirs "refuse to sign without giving good and sufficient reason for refusing."

    In the first mentioned case, legal authority for action by the Superintendent can probably be derived from a relation of agency between the absent heir and the Superintendent. No objection is raised to this portion of the letter. In the second case, however, such special legal justification is lacking, and full weight must therefore be given to the governing leasing statute which provides that restricted allotments "may be leased for farming and grazing purposes by the allottee or his heirs, subject only to the approval of the Superintendent * * *." (Act of March 3, 1929, 41 Stat. 1232, 25 U.S.C., Sec. 393) Unless special circumstances exist to provide a legal justification for signature by the Superintendent on behalf of protesting heirs, it appears that the statute prohibits such action on his part.

    In those circumstances and in recognition of the practical necessity of action in cases where protest is made by heirs holding only a minority interest, I suggest for your consideration two methods of procedure: (1) The Superintendent might be required to submit each such case to the Secretary of the Interior through the Commissioner of Indian Affairs for a determination as to whether there are circumstances which will supply legal justification for the signing of the lease by him: or (2) the Superintendent might be authorized to approve a lease signed simply by heirs holding a majority in interest. Such a lease would not be legally binding upon the nonconsenting heirs, but they would have an election whether to accept a proportionate part of the rental, thus ratifying the lease, or to repudiate the lease as to their undivided interests, in which event they would be entitled to make beneficial use of a proportionate part of the land over which they are co-tenants, or with the approval of the Superintendent, to enter into a new lease conveying their undivided interests to the same or a different lessee, or to seek a partition of the land by application to the Secretary of the Interior. Riddle v. Ellis, 139 Okla. 68, 281 Pac. 286.

                                                                                                                                            FREDERIC L. KIRGIS,

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    My opinion has been requested on whether, under provisions of Osage oil and gas mining leases, the use of gas for repressuring oil wells is a use of the product for drilling and operating purposes and whether royalty must be paid on gas sold for such purpose. The two questions are involved in a proposed contract between Philtex Oil Company, holder of Osage oil mining leases, and the Indian Territory Illuminating Oil Company, holder of a gas mining lease on the Osage Indian Reservation, which provides for sale of gas by the gas lessee to the oil lessee for repressuring purposes, the price to be paid being "based on the assumption by both applicant and company that no royalty is payable by company on said gas to the Osage Tribe of Indians," and which stipulates further that "it is hereby agreed by the parties hereto, that this contract shall be submitted by the parties hereto to the Superintendent of the Osage Indian agency at Pawhuska, to be by him submitted in due course to the Secretary of the Interior for approval."

    The two questions for determination involve the construction to be put on the following provisions of the oil and gas leases. Section 14 of the gas mining lease provides:

    "The gas lessee shall furnish the oil lessee, free of royalty, sufficient gas for drilling and operating purposes at a rate to be agreed upon, or on failure to agree, the rate shall be fixed by arbitration: Provided, That the oil lessee shall at his own expense furnish the necessary pipe and fittings to connect at and with the well, and all such connections shall be subject to the approval of the inspector: Provided, further, That the gas lessee shall not be required to furnish oil lessees with gas except from gas wells located within the area covered by their respective oil leases and during such period of time as may be determined by the Superintendent."

    "The gas lessee shall furnish the oil lessee, free of royalty, sufficient gas for drilling and
 

operating purposes at a rate to be agreed upon, or on failure to agree the rate shall be fixed by arbitration: Provided, That the oil lessee shall make necessary connections between the well and the meter whenever possible."

    The question whether the use of gas for repressuring is a use for drilling and operating purposes has already been decided by the courts. In Utilities Production Corporation v. Carter Oil Company, 72 Fed. (2d) 655, it was held that the use of residue gas produced by an oil lessee for repressuring wells covered by the lease was a use for drilling and operating purposes and that no royalty need be paid thereon. No sale of gas by a gas lessee to the oil lessee was involved in this case, but the question at issue now was distinctly and definitely passed upon. I am of the opinion, therefore, that the use of gas for repressuring purposes is a use of same for drilling and operating purposes, and that no royalty is payable on such gas.

    In the case above referred to, the court specifically refrained from passing upon or determining the interest of the Osage Tribe in the matter in controversy, since the Tribe was not a party to the proceedings. It held further (at p. 661) that,

    "It is open to it to claim, for example, that it has been deprived of royalties on residue gas by an improvident use of it for repressuring purposes-that the oil recovered by that process was not worth the gas expended in the recovery: or any other claim it has to make against either lessee."

    By resolution of the Osage Tribal Council, section 13 of oil leases executed subsequent to September 24, 1935, has been modified by omitting the phrase "free of royalty." By a resolution of the Council dated November 23, 1935. a similar change was to be made in the gas lease of the Indian Territory Illuminating Company. This change was accepted by the company, to be effective, however, from January 1, 1936. On March 2, 1936, the Council accepted the company's amendment. The change in the gas lease was approved by the Secretary of the Interior on June 3, 1936.

    The scope of this opinion should, therefore, be regarded as limited only to oil and gas leases in which the above changes have not been made and as to leases which have been changed only to gas used for repressuring purposes prior to the effective date of such changes. Subject to this qualification, I am of the opinion that gas used for repressuring purposes is a use of gas for drilling and operating purposes and that no royalty is payable on said gas.

                                                                                                                                            FREDERIC L. KIRGIS,

    I concur in the recommendation of the Acting Commissioner of Indian Affairs, that the attached draft of Executive order withdrawing land from the Pueblo of Nambe should not be signed.

    As pointed out in that memorandum, the Executive order is not necessary if the occupants of the land had valid rights when the area was added to the Pueblo. If these claimants did not have valid rights, then a withdrawal of the land from the Pueblo would be in violation of section 4 of the act of March 3, 1927, forbidding changes in reservation boundaries, and would also be contrary to the spirit of the act of June 18, 1934, embodying a general policy of this administration against the alienation of Indian lands. The statement of the Acting Commissioner that this course of action would be in conflict with section 16 of that act is not well taken for the reason that Nambe Pueblo has not organized under a written constitution and is therefore not protected by section 16. Despite this minor error the conclusions of the Acting Commissioner are, in my opinion, sound.

                                                                                                                                            NATHAN R. MARGOLD,

Re: Cancelled Entries on Pyramid Lake Indian Reservation.

    In response to your informal request, I submit a report on the above entitled entries.

    Certain white settlers had made settlements within the Pyramid Lake Indian Reservation, and suit had been brought in the Federal Court for Nevada to eject them. While the litigation was pending, Congress passed the act of June 7, 1924 (43 Stat. 596), for the relief of the settlers, the pertinent parts of which provided as follows:

    "That the Secretary of the Interior is hereby authorized to sell to settlers or their transferees, under such terms, conditions, and price per acre as the said Secretary may prescribe any lands in the Pyramid Lake Indian Reservation, in the State of Nevada, that have been settled upon, occupied and improved by said settlers and their transferees in good faith for a period of twenty-one years or more immediately preceding the passage of this Act: Provided, That no more than six hundred and forty acres shall be sold to any one person or corporation: Provided further, That said sales shall be by private cash entry after it has been shown to the satisfaction of the Secretary of the Interior that the lands applied for have been settled upon, occupied, and improved as required by this Act, and in addition to such price per acre as may be fixed by the Secretary of the Interior all entrymen hereunder shall pay the same fees and commissions as provided by law where public lands are disposed of at $1.25 per acre. The proceeds of said sales shall be deposited in the Treasury of the United States and be subject to appropriations by Congress for the Paiute Indians of the said Pyramid Lake Indian Reservation.

    "Sec. 4. All sales in accordance with section 1 of this Act shall be made through the local land office within ninety days after the price of the land shall have been fixed by the Secretary of the Interior: Provided, That where entry is not made within the time specified, the United States shall enter upon the premises and take possession thereof for the use and benefit of the Paiute Indians of the Pyramid Lake Indian Reservation."

    The entrymen appealed. By decisions of November 25, 1935, the Department modified the Commissioner's requirements in the following particulars:

    " (1) All interest must be paid within 30 days from the date of service hereof;

    " (2) One third of the unpaid principal now outstanding must be paid within 6 months from the date hereof;

    " (3) The unpaid principal will be computed on the basis of the 1934 reappraisal;

    " (4) Interest will be computed by the General Land Office from the date of default."

    The other five entrymen failed to make any payment of purchase money, or interest only, after being given full opportunity to do so, and on May 13, 1936, the Department cancelled the five entries entirely in default and closed the cases.

    The cancellations were, under the act cited, within the power of the Department, and the record shows that the proceedings were entirely regular.

    Upon cancellation of the entries, the lands embraced therein reverted to Indian ownership and became subject to the provisions of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984). The act of June 7, 1924, supra, under which the entries were made, contemplated the conveyance of fee simple title to the entrymen. Reinstatement of the cancelled entries would, therefore, result in alienation of the land in contravention of section 4 of the Indian Reorganization Act, which section, with exceptions not here material, forbids all forms of alienation of restricted Indian lands.

    The rights of the Indians in and to these lands are further protected by section 16 of the Indian Reorganization Act declaring that the tribes organized thereunder shall have the power, among others, to prevent the sale, disposition, lease or
 

encumbrance of tribal land. The constitution adopted by the Paiute Tribe of the Pyramid Lake Reservation and approved by the Secretary of the Interior not only empowers the Tribal Council to approve or veto any sale, disposition, lease, or encumbrance of tribal lands which may be authorized or executed by the Secretary of the Interior, the Commissioner of Indian Affairs, or any other official or agency of the Government, but further declares that no tribal lands shall ever be sold. Art. VI, Sec. 1 (c); Art. VII, Sec. 1. While these constitutional provisions enable the Tribal Council to veto action by the Secretary of the Interior looking to the disposition of their tribal lands through reinstatement of the cancelled entries or otherwise, the inhibition against sales in addition effectively prevents the Tribal Council from assenting to such a disposal.

                                                                                                                                            NATHAN R. MARGOLD,

M-28589                                                                                                                              August 24, 1936.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY :

    The Assistant Commissioner of the Office of Indian Affairs in a letter dated June 17, 1936, has recommended that you submit to me for opinion the apparent conflict of rights between the Bureau of Reclamation and the Indian Service, affecting particularly the occupation and use of fractional sections 4 and 6, sections 8 and 16, fractional section 20, W 1/2 section 22, SW1/4 SW1/4 section 26, fractional sections 28 and 34, township 16 north, range 21 west and fractional section 12, township 16 north, range 22 west, G. & S. R. M.

    The land is required by the Bureau of Reclamation for flowage purposes by reason of the construction of Parker Dam across the Colorado River near Parker, Arizona. It appears from the records in the Department that the lands described above were withdrawn by the Secretary of the Interior for reservoir purposes under the provisions of the act of June 17, 1902 (32 Stat. 388), by departmental orders of January 31 and September 8, 1903. These same lands, with others, were withdrawn as an addition to the Fort Mojave Indian Reservation by Executive order of February 2, 1911, which superseded Executive order of December 1, 1910.

    The Bureau of Reclamation contends that the Indians under the Executive order acquired no rights superior to the reclamation project and therefore the lands can be flooded without the payment of damages to the Indians. It is the contention of the Indian Service that the Executive orders either revoked the earlier departmental withdrawals or at least that they should be considered a confirmation of the rights of the Indians acquired through long-continued use and occupancy.

    These opposing claims present questions, the solution of which might present some difficulty if the answer depended upon sole consideration of the conflicting orders issued by the Secretary and the President. Subsequent congressional action, however, removes any doubt about the paramount nature of the Executive order of February 2, 1911. This legislation is found in the act of May 23, 1934, (48 Stat. 795) which reads:

    "That the Secretary of the Interior is hereby authorized to accept, in his discretion, under rules and regulations to be prescribed by him, conveyances to the Government of privately owned lands contiguous to the even-numbered sections added to the Fort Mojave Indian Reservation, Arizona, by Executive order of February 2, 1911, and to permit lieu selections of lands approximately equal in value from the even-numbered sections by those surrounding their holdings, so that the lands retained and acquired through exchange for Indian use may be consolidated and held in a solid area so far as may be possible: Provided, That upon conveyance of any privately owned lands to the Government pursuant thereto, the Secretary of the Interior is hereby authorized to issue to the person or persons making the conveyance, patent of appropriate form and legal effect for the lieu lands. The areas consolidated in the Government pursuant to this Act are hereby declared to be held for the benefit of the Indians of the Fort Mojave Reservation: Provided further, That the title or claim of any person or persons who refuse to convey to the Government shall not be affected by this Act."

nition of Indian ownership of the lands added to the Fort Mojave Reservation by the Executive order of February 2, 1911, must be regarded as a legislative confirmation of that order operating to supersede and nullify all prior orders in conflict therewith, including the orders issued by the Secretary of the Interior in 1903 under the act of 1902.

    It is my opinion, therefore, that the orders of 1903 are without force and effect and may not be invoked as authorizing the taking of these lands for reservoir purposes in connection with the construction of the Parker Dam project. I am further of the opinion that the Executive order of February 2, 1911, as confirmed by the act of May 23, 1934, supra, effectively made the lands a part of the Fort Mojave Indian Reservation. The Indians of the Reservation are accordingly entitled to receive full compensation for such of said lands as may be flooded by the construction of the Parker Dam project.

                                                                                                                                            NATHAN R. MARGOLD,

    There is returned to you herewith for further consideration a proposed order fixing maintenance and operation charges on the San Carlos project, Arizona, for the calendar year 1937, with accompanying papers.

    The proposed order contemplates an equal division of the total operation and maintenance charges between white owned lands and Indian owned lands, although it appears that the area of Indian owned land under the project is less than the area of white owned land. The proposed division of costs is, in my opinion, unauthorized.

    The repayment contract between the United States and the San Carlos Irrigation and Drainage District specifically provides that the cost of operating and maintaining the works of the project "shall be divided equally on a per-acre basis among all the lands of the project, and regardless of whether they are irrigated or not." The last qualification indicates that land under constructed works is subject to operation and maintenance charges whether or not the water available is actually used. It cannot be argued from this phase that land not under constructed works is to be assessed for the cost of operating and maintaining an irrigation project from which it can derive no benefit. The imposition of any such charge would be, in my opinion, entirely unfair and unjustified, and not less so be cause the Department hopes at a later date to cancel the charge.

    As I read the terms of the repayment contract and the act of June 7, 1924, under which it was executed, the Secretary is obliged to divide operation and maintenance costs "equally on a per acre basis among all the lands of the project." The only discretion allowed to the Secretary under this contract is that of determining precisely what acreage of land is now under the project.

    The repayment contract provides that white owned lands under the project "shall not exceed 50,000 acres," and imposes a similar maximum limit upon the Indian lands to be included in the project. There is no provision in the contract for a minimum area either of Indian lands or of white lands actually to be brought under the project. If it had turned out that not more than 10,000 acres of white-owned land had been brought under the project, together with 50,000 acres of Indian owned land, there would be no legal basis for imposing upon the white-owned lands a higher per acre charge than upon Indian lands. The same rule must work both ways.

    For the foregoing reasons I recommend that the computation of costs in the attached order should be revised and should be placed on a per-acreage basis. The proposed order should furthermore contain a finding as to the total acreage under constructed works at the present time, or, if future calculations can be made, on January 1, 1937.

    I note that the proposed imposition of a reimbursable debt upon the Gila River Pima-Maricopa Indian Community for operation and maintenance charges on tribal land for the fiscal year 1937, has not been referred to the authorized council of the Community for its approval, as required by section 16 of the act of June 18, 1934, and by Article V, section 1 (c) of the Constitution of the said Community, approved by the Secretary of the Interior May 14, 1936.

    As suggested in the memorandum to you from Acting Solicitor Kirgis, approved by the Assistant Secretary on July 6, 1936, section 16 of the act of June 18, 1934, and constitutional provisions enacted in accordance therewith, constitute a limitation upon the spending power of the Secretary of the Interior. I therefore recommend that an effort be made to secure the consent of the proper Indian authorities to any expenditure of reimbursable appropriations for the benefit of tribal lands.

    The Office of Indian Affairs has submitted several titles for examination covering land in Mississippi being purchased under authority granted by the Wheeler-Howard Act (48 Stat. 984). Several opinions have been rendered and in one case the deed has been recorded and accepted. In every case submitted, the deed designates the grantee as the United States in trust for the Choctaw Tribe of Mississippi.

    A further examination reveals that this designation is incorrect because there is in fact no existing tribe of Indians in Mississippi known as the Choctaw Tribe. The Choctaw tribe or nation of Indians, formerly of Mississippi, rem