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Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1929.
WASHINGTON, D. C., May 27, 1924.
MY DEAR MR. SECRETARY: I have your letter of February 12 asking my opinion on the question whether Executive order Indian reservations are subject to the leasing act of February 25, 1920 (41 Stat. 437).
On the day before the date of your request, the President asked for an opinion on the same question propounded by you. Both requests and all papers transmitted with them, together with briefs and arguments submitted in behalf of other parties interested, were fully considered and an opinion formulated and sent to the President with the suggestion that he transmit a copy thereof to you.
The opinion transmitted to the President, copy of which is handed to you herewith, and which I now also give in response to your question of February 12, is as follows:
The general leasing act (41 Stat. 437) is entitled "An act to promote the mining of coal, phosphate, oil, oil shale, gas, and sodium on the public domain." Its first section reads in part:
"That deposits of coal, phosphate, sodium, oil, oil shale, or gas, and lands containing such deposits owned by the United States, including those in national forests, but excluding lands acquired under the act known as the Appalachian Forest act, approved March 1, 1911 (36 Stat. p. 961), and those in national parks, and in lands withdrawn or reserved for military or naval uses or purposes, except as hereinafter provided, shall be subject to disposition in the form and manner provided by this act" * * *.
The title refers solely to the "public domain," and nowhere in the whole act is there any mention of Indians, Indian lands, or Indian reservations of any kind.
The long settled rule of construction is that general laws providing for the disposition of public lands or the public domain do not apply to lands which have been set aside or reserved for particular public uses, unless the contrary clearly appears from the context or the circumstances attending the legislation. (Newhall v. Sanger, 92 N. S. 761; Bardon v. Northern Pac. R. R. Co., 145 W. S. 535, 538; Mann v. Tacoma Land Co., 153 U. S. 273, 284; Union Pac. R. R. Co. v. Harris, 215 U. S. 386.) Concerning Indian reservations, Indian lands, and Indian affairs generally, Congress habitually acts only by legislation expressly and specifically applicable thereto. (Missouri, Kansas & Texas Ry. Co. v. Roberts, 152 U. S. 114, 119.)
This is true historically, and the fact is one of necessity, because Indians, and especially tribal Indians, remain a people apart, for whom it is impracticable to legislate in terms common to them and the whites. (Ex parte Crow Dog, 109 U. S. 566, 571.)
Now, however, the Secretary of the Interior, explicitly reversing the attitude of his predecessors (47 L. D. 424, 437, 489), has decided that an act of Congress purporting to deal with lands of the public domain and a certain class of reservations owned exclusively by the United States, is applicable to Executive order Indian reservations, although it contains no express or specific reference to Indians, Indian reservations, or Indian lands.
The first section of the act describes the deposits and lands to which it applies. They are deposits and lands "owned by the United States." Then follow words of inclusion which make it clear that the act applies to the national forests of the West. This language in turn is followed by expressions of exclusions, and the reserves expressly excluded are Appalachian forest lands, national parks, and lands reserved for military or naval uses.
It is obvious that the words of inclusion and the words of exclusion, taken together, do not by any means embrace all the lands "owned by the United States." Neither Indian reservations, national monuments, bird reservations, nor lighthouse reservations, are either expressly included or excluded; and of course the United States is the sole owner of other bodies of land such as the Capitol Grounds at Washington, parks, and squares in the District of Columbia, national cemeteries, etc., which are neither expressly included nor excluded.
Yet no one would contend that any of these latter lands are subject to the leasing act, whatever mineral deposits they may be found to contain. It is thus apparent that there are many classes of lands owned by the United States to which the leasing act does not apply, although they are not expressly excepted from it. Nevertheless, the Secretary of the Interior and others who take the same view base their conclusions mainly upon the broad language "owned by the United States." But this language is not new in the legislation of Congress. The mineral law of May 10, 1872, now embodied in Revised Statutes, section 2319, provides for the disposition of "all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed." * * * The Supreme Court had occasion to consider this language in Oklahoma v. Texas (258 U. S. 574). After quoting it the court said (pp. 599, 600):
This section is not as comprehensive as its words separately considered suggest. It is part of a chapter relating to mineral lands which in turn is part of a title dealing with the survey and disposal of 'The public lands.' To be rightly understood it must be read with due regard for the entire statute of which it is but a part, and when this is done, it is apparent that, while embracing only lands owned by the United States, it does not embrace all that are so owned. Of course, it has no application to the grounds about the Capitol in Washington or to the lands in the National Cemetery at Arlington, no matter what their mineral value; and yet both belong to the United States. And so of the lands in the Yosemite National Park, the Yellowstone National Park, and the military reservations throughout the Western States. Only where the United States has indicated that the lands are held for disposal under the land laws does this section apply; and it never applies where the United States directs that the disposal be only under other laws.
The court accordingly held that the mining laws did not apply to certain lands "belonging to the United States" and lying in the south half of the bed of Red River.
The general mining laws never applied to Indian reservations, whether created by treaty, act of Congress, or Executive order. (Noonan v. Caledonia Min. Co., 121 U. S. 393; Kendall v. San Juan Silver Min. Co., 144 U. S. 658; McFadden v. Mountain View M. & M. Co., 97 Fed. 670; Gibson v. Anderson, 131 Fed. 39.) Yet "owned by the United States" and "belonging to the United States" are equivalent expressions, and there seems to be no ground whatever for giving one a broader meaning than the other.
The foregoing considerations, I think, are conclusive. However, the leasing act contains a number of other provisions leading to the same result, two only of which will be mentioned. Section 28 declares that "rights of way through the public lands, including the forest reserves, of the United States are hereby granted for pipe-line purposes for the transportation of oil or gas." If the act were intended to provide for the leasing of Indian reservations, there would be the same need of rights of way for pipe lines through those reserves, but none are granted.
Again, the act, in section 35, provides in mandatory language for the disposition of all the royalty moneys realized. They are to be divided in certain proportions between the Treasury, the reclamation fund, and the States within which the leased lands lie. Yet, as hereafter shown, it would violate practically all legislative precedents for Congress to dispose of lands and mineral deposits in Indian reservations of any kind without directing the payment of some portion of the proceeds to the Indians. It is notable that Secretary Fall, in making his decision, realized this so strongly that, ignoring the mandatory directions of the act, he ordered the royalties from Executive order Indian reservations to be deposited in the Treasury in a special fund to await disposition by Congress.
In view of the foregoing, any reference to legislative history seems hardly necessary, yet, in fact, none of the numerous committee reports made during the long pendency of the measure before Congress shows any indication whatever of an intent to embrace Indian reservations of any kind, but they do show affirmatively an understanding that the only lands to be affected were public lands, western forest reserves, and lands withdrawn by various Executive orders to protect the minerals therein pending congressional action for their final disposal. Thus, in the report of the conference committee dated February 11, 1919, occur the following significant statements (65th Cong., 3d sess., H. Repts., vol. 2, H. R. 1059, p. 20):
This bill makes possible the leasing, in whole or in part, of approximately 700,000,000 acres of public land, approximately 365,000,000 acres of forest reserve, 35,000,000 acres of coal land, 6,000,000 acres of oil land, and 3,500,000 acres of phosphate land. Under present law all of this land may be passed to patent, without Government regulation, without Government royalties, and without the receipt of any remuneration by the Government, excepting such purchase price as may be provided for the patenting of the same.
This legislation is made necessary by certain withdrawals made by President Taft during his administration and later by President Wilson during his administration. Both Presidents Taft and Wilson and the Secretaries of the Interior under them have felt the necessity of passing this legislation.
I might stop here; but the reasons advanced by the Secretary, reinforced as they have been by arguments and briefs submitted to me in behalf of lessees or permittees now exploring Executive order reservations under this legislation, seem to require some comment. The gist of the argument is that the President could not reserve the minerals for the Indians; that they remained the property of the United States and were therfore "deposits owned by the United States" in the meaning of the leasing act.
That the President had authority at the date of the orders to withdraw public lands and set them apart for the benefit of the Indians, or for other public purposes, is now settled beyond the possibility of controversy. (United States v. Midwest Oil Co., 236 U. S. 459; Mason v. United States, 260 U. S. 545.) And aside from this, the
general Indian allotment act of February 8, 1887 (24 Stat. 388, sec. 1), clearly recognizes and by necessary implication confirms Indian reservations "heretofore" or "hereafter" established by Executive orders.
Whether the President might legally abolish, in whole or in part, Indian reservations once created by him, has been seriously questioned (12 L. D. 205; 13 L. D. 628) and not without strong reason; for the Indian rights attach when the lands are thus set aside; and moreover, the lands then at once become subject to allotment under the general allotment act. Nevertheless, the President has in fact, and in a number of instances, changed the boundaries of Executive order Indian reservations by excluding lands therefrom, and the question of his authority to do so has not apparently come before the courts.
When by an Executive order public lands are set aside, either as a new Indian reservation or an addition to an old one, without further language indicating that the action is a mere temporary expedient, such lands are thereafter properly known and designated as an Indian reservation; and so long, at least, as the order continues in force the Indians have the right of occupancy and use, and the United States has the title in fee. (Spalding v. Chandler, 160 U. S. 394; In re Wilson, 140 U. S. 575.)
But a right of "occupancy" or "occupancy and use" in the Indians, with the fee title in the sovereign (the Crown, the original States, the United States), is the same condition of title which has prevailed in his country from the beginning, except in a few instances, like those of the Cherokees and Choctaws, who received patents for their new tribal lands on removing to the West. And the Indian right of occupancy is as sacred as the fee title of the sovereign.
The courts have applied this legal theory indiscriminately to lands subject to the original Indian occupancy, to reservations resulting from the cession by Indians of part of their original lands and the retention of the remainder, to reservations established in the West in exchange for lands in the East, and to reservations created, by treaty, act of Congress, or Executive order, out of public lands. The rights of the Indians were always those of occupancy and use, and the fee was in the United States. (Johnson v. McIntosh, 8 Wheat., 543; Mitchell v. United States, 9 Pet. 711, 745; United States v. Cook, 19 Wall. 591; Leavenworth, etc., R. R. Co. v. United States 92 U. S. 733, 742; Seneca Nation v. Christy, 162 U. S. 283, 288-289; Beecher v. Wetherby, 95 U. S. 517, 525; Minnesota v. Hitchcock, 185 U. S. 375, 388 et seq.; Lone Wolf, v. Hitchcock, 185 U. S. 553; Jones v. Meehan, 175 U. S. 1; Spalding v. Chandler, 160 U. S. 394; McFadden v. Mountain View Min. & Mill. Co., 97 Fed. 670, 673; Gibson v. Anderson, 131 Fed. 39.)
In Spalding against Chandler, supra, which involved an Executive order Indian reservation, the Supreme Court said (pp. 402, 40-3):
It has been settled by repeated adjudications of this court that the fee of the lands in this country in the original occupation of the Indian tribes was from the time of the formation of this Government vested in the United States. The Indian title as against the United States was merely a title and right to the perpetual occupancy of the land, with the privilege of using it in such mode as they saw fit until such right of occupation had been surrendered to the Government. When Indian reservations were created, either by treaty or Executive order, the Indians held the land by the same character of title, to wit, the right to possess and occupy the lands for the uses and purposes designated.
In McFadden v. Mountain View Min. & Mill Co., supra. the Circuit Court of Appeals for the Ninth Circuit said (p. 673):
On the 9th day of April, 1872, an Executive order was issued by President Grant, by which was set apart as a reservation for certain specified Indians, and for such other Indians as the Department of the Interior should see fit to locate thereon, a certain scope of country "bounded on the east and south by Columbia River, on the west by the Okanagon River, and on the north by the British possessions," thereafter known as the "Colville Indian Reservation." There can be no doubt of the power of the President to reserve those lands of the United States for the use of the Indians. The effect of that Executive order was the same as would have been a treaty with the Indians for the same purpose, and was to exclude all intrusion upon the territory thus reserved by
any and every person other than the Indians for whose benefit the reservation was made, for mining as well as other purposes.
The latter decision was reversed by the Supreme Court and on an entirely different ground (180 U. S. 533). The views expressed in the McFadden case were reaffirmed by the same court in Gibson v. Anderson, supra, involving a reservation created by Executive order for the Spokane Indians.
The general Indian allotment act of February 8, 1887 (24 Stat. 388, sec,. 1), is based upon the same legal theory as the decisions of the courts, for it is expressly made applicable to "any reservation created for their use either by treaty stipulation or by virtue of an act of Congress or Executive order setting apart the same for their use," etc.
If the extent of the Indian rights depended merely on definitions, or on deductions to be drawn from descriptive terms, there might be some question whether the right of "occupancy and use" included any right to the hidden or latent resources of the land, such as minerals or potential water power, of which the Indians in their original state had no knowledge. As a practical matter, however, that question has been resolved in favor of the Indians by a uniform series of legislative and treaty provisions beginning many years ago and extending to the present time. Thus the treaty provisions for the allotment of reservation lands all contemplate the final passing of a perfect fee title to the individuals of the tribe. And that meant, of course, that minerals and all other hidden or latent resources would go with the fee. The same is true of the general allotment act of 1887, which applies expressly to Executive order reservations as well as to others. Then, beginning years ago, many special acts were passed—with or without previous agreements with the Indians concerned—whereby surplus lands remaining to the tribe after completion of the allotments were to be sold for their benefit. In all these instances Congress has recognized the right of the Indians to receive the full sales value of the land, including the value of the timber, the minerals, and all other elements of value, less only the expenses of the Government in surveying and selling the land. Legislation and treaties of this character were dealt with in Frost v. Wente (157 U. S. 46, 50); Minnesota v. Hitchcock (185 U. S. 373); Lone Wolf v. Hitchcock (187 U. S. 553); United States v. Blendaur (128 Fed. 910, 913); Ash Sheep Co. v. United States (252 U. S. 159).
Similar provisions have been made in many other cases for the sale of surplus tribal lands, all the proceeds of all elements of value to go to the tribe. In a recent act for further allotment of Crow Indian lands (41 Stat. 751), the minerals are reserved to the tribe instead of passing to the allottees (sec. 6); and moreover, unallotted lands chiefly valuable for the development of water power are reserved from allotment "for the benefit of the Crow Tribe of Indians" (sec. 10). The Federal water power act of June 10, 1920 (41 Stat. 1063), applies to tribal lands in Indian reservations of all kinds, but it provides (sec. 17) that "all proceeds from any Indian reservation shall be placed to the credit of the Indians," etc.
Again, by a provision in the Indian appropriation act of June 30, 1919, the Secretary of the Interior was authorized to lease, for the purpose "of mining for deposits of gold, silver, copper, and other valuable metalliferous minerals," and part of the unallotted lands within "any Indian reservation" within the States of Arizona, California, Idaho, Montana, Nevada, New Mexico, Oregon, Washington, or Wyoming heretofore withdrawn from entry under the mining laws. These States contain numerous Executive order reservations, and yet the act declares that all the royalties accruing from such leases shall be paid to the United States "for the benefit of the Indians." (41 Stat. 3, 31-33.)
The opening to entry by Congress of a part of the Colville Reservation, established in Washington by Executive order, has been cited as an exception to this line of precedents. (Act July 1, 1892, 27 Stat. 62.) But the exception is more apparent than real, for Congress, though it expressly declined to recognize affirmatively any right in the Indians "to any part" of that reservation (sec. 8), yet, in fact, preserved the right of allotment, requiring the entrymen to pay for the lands, and set aside the proceeds for the benefit of the Indians for an indefinite period. Later the proceeds of timber sales from the former reservation lands were secured to the Indians, but the mineral lands were subjected to the mineral laws without any express direction
for the disposal of the proceeds, if any. (Act July 1, 1898, 30 Stat. 571, 593.) The committee reports show that the reservation was considered as improvidently made, excessive in area, and that the action taken was really for the best interests of the Indians. (Senate Rept. No. 664, 52d Cong., 1st sess., vol. 3; House Rept. No. 1033, 52d Cong., 1st sess., vol. 4.)
In respect to legislation and treaties of this character two views are possible. First, that the right of occupancy and use extends merely to the surface and the United States, in providing that the Indians shall ultimately receive the value of the hidden and latent resources, merely gives them its own property as an act of grace. Second, that the Indian possessions extended to all elements of value in or connected with their lands, and the Government in securing those values to the Indians recognizes and confirms their preexisting right. If it were necessary here to decide as between these opposing views I should incline strongly to the latter; mainly because the Indian possession has always been recognized as complete and exclusive until terminated by conquest or treaty, or by the exercise of that plenary power of guardianship to dispose of tribal property of the Nation's wards without their consent. Lone Wolf v. Hitchcock (187 U. S. 554). Moreover, support for this view is found in many expressions of the courts. Thus, in the case just cited, the court quotes from Beecher v. Wetherby (95 U. S. 517, 525) as follows:
But the right which the Indians held was only that of occupancy. The fee was in the United States, subject to that right, and could be transferred by them whenever they chose. The grantee, it is true, would take only the naked fee, and could not disturb the Indians; that occupancy could only be interfered with or determined by the United States.
If a transfer by the United States would convey only the naked fee, it goes without saying that the complete equitable property was in the Indians. The earlier and fundamental decisions make this plain. In Worchester v. Georgia (6 Pet. 515, 543, 544) Chief Justice Marshall clearly states that the right asserted in behalf of the discovering European nations was merely a right, as against each other, which he defines as "the exclusive right of purchasing such lands as the natives were willing to sell." As late as 1872 the Supreme Court said:
Unmistakably their title was absolute, subject only to the preemption right of purchase acquired by the United States as the successors of Great Britain, and the sign * * * to prohibit the sale of the land to any other governments or their subjects. (Holding v. Joy, 17 Wall. 211, 244.)
The important matter here, however, is that neither the courts nor Congress have made any distinction as to the character or extent of the Indians' rights as between Executive order reservations and reservations established by treaty or act of Congress. So that if the general leasing act applies to one class there seems to be no ground for holding that it does not apply to the others.
You are, therefore, advised that the leasing act of 1920 does not apply to Executive order Indian reservations.1
Respectfully,
HARLAN F. STONE, Attorney General.
Hon. HUBERT WORK,
Secretary of the Interior, Washington, D. C.
DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SOLICITOR,
Washington, March 6, 1926.
The SECRETARY OF THE INTERIOR.
MY DEAR MR. SECRETARY: My opinion has been requested as to the extent or character of title acquired by the Indians in lands withdrawn for their benefit by Executive order.
The solicitor for this department had occasion to deal somewhat extensively with this matter in connection with the applicability of the public land leasing act
of February 25, 1920 (41 Stat. 437), to lands within Indian reservations created by Executive order, and in an opinion dated February 12, 1924, it was held that the title to such lands rests in the United States. It was further therein pointed out, however, that with but few exceptions this was equally true with respect to unallotted lands in Indian reservations created by treaty or by act of Congress. That is, as to all three classes of lands or the lands within all three classes or reservations—treaty, act of Congress, or Executive order—the legal title is in exactly the same place, to wit, the United States. It was there held that the public land leasing act did not apply to lands within Indian reservations created by Executive order and on submitting the matter to the Attorney General those views were upheld in an opinion by that officer dated May 27, 1924 (34 Op. Atty. Gen. 181). The conclusions so reached are amply fortified by a long line of court decisions, including the Supreme Court of the United States. From an early date the latter court laid down the rule that under the doctrine of "discovery" the fee to the lands in this country, in the absence of an express grant from the sovereign, was not in its aborigines and that the only right or title existing in them was that of use and occupancy. This doctrine was ably expounded by Chief Justice Marshall, of the Supreme Court, in Johnson v. McIntosh (8 Wheat. 543), and was again reiterated by the same court in Beecher v. Wetherby (95 U. S. 517), wherein the court said (pp. 525-526)
But the right which the Indians held was only that of occupancy. The fee was in the United States, subject to that right, and could be transferred by them whenever they chose. The grantee, it is true, 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. It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Be that as it may, the propriety or justice of their action toward the Indians with respect to their lards is a question of governmental policy, and is not a matter open to discussion in a controversy between third parties, neither of whom derives title from the Indians. The right of the United States to dispose of the fee of lands occupied by them has always been recognized by this court from the foundation of the Government.
In both of the decisions referred to it was further stated:
The right of the Indians to their occupancy is as sacred as that of the United States to the fee, but it is only a right of occupancy. The possession, when abandoned by the Indians, attaches itself to the fee without further grant.
During earlier times, at least, Congress accorded to the Chief Executive a broad discretion about setting apart lands from our public domain for various national purposes, including the protection of the Indians (228 U. S. 243), and the power so resting in the President was never seriously questioned or curtailed until June 30, 1919, when Congress by act of that date (41 Stat. 3-34), provided:
That hereafter no public lands of the United States shall be withdrawn by Executive order, proclamation, or otherwise, for or as an Indian reservation except by act of Congress.
That the title to lands within Indian reservations created by Executive order rests on .substantially the same basis as lands with reservations created by treaty or by act of Congress is amply illustrated by that holding of the Supreme Court in Spaulding v. Chandler (160 U. S. 394-402), wherein it was said:
It has been settled by repeated adjudications of this court that the fee of the lands in this country in the original occupation of the Indian tribes was from the time of the formation of this Government vested in the United States. The Indian title as against the United States was merely a title and right to the perpetual occupancy of the land with the privilege of using it in such mode as they saw fit until such right of occupation had been surrendered to the Government. When Indian reservations were created, either by treaty or Executive order, the Indians held the land by the same character of title, to-wit, the right to possess and occupy the lands for the uses and purposes designated.
Even as to Indian treaty reservations, however, the same court in Lone Wolf v. Hitchcock (187 U. S. 553-565), held that the plenary power of Congress over tribal
Indian property is such that the provisions of an existing treaty with the Indians could be abrogated without their consent, but that presumably such action would not be had without full consideration of justice, humanity, and public policy. It will be seen therefore that it is largely a question of policy for Congress to determine and this gave rise to that further ruling by the same court in Blackfeather v. United States (190 U. S. 368), wherein it was held that the moral obligation of the Government toward the Indians are for Congress alone to recognize and that the courts can exercise only such jurisdiction over the subject matter as Congress has or from time to time may see fit to confer upon them.
Manifestly, from the foregoing, the extent or character of the Indian title in lands withdrawn for their benefit by Executive order is not easily defined with particularity. Admittedly, the legal title to such lands is in the United States. A reservation so created is not in the nature of a private grant, but is rather a setting apart of designated lands for a manifest public purpose, subject to such further grant or recognition of title as Congress from time to time may see fit to accord.
While this disposes of the strictly legal aspects of the situation generally, yet I am reluctant to dismiss it without inviting attention to the further fact that Executive orders withdrawing lands for Indian purposes are by no means uniform. For instance:
THE WHITE HOUSE, October 20, 1910.
It is hereby ordered that the following-described lands in the State of Arizona, viz, all of sections 1 and 12 in township 1 north, range 4 east of the Gila and Salt River meridian, be, and the same are hereby, withdrawn from settlement, entry, and sale, and set apart as an addition to the Salt River Indian Reservation: Provided, That nothing herein shall affect any existing valid rights of any person to the lands described.
THE WHITE HOUSE, March 22, 1911.
It is hereby ordered that Executive order of June 14, 1879, creating a reservation for use of the Pima and Maricopa Indians, be, and the same is hereby, amended so as to make said reservation available for use of the Pima and Maricopa Indians, and such other Indians as the Secretary of the Interior may see fit to settle thereon.
WHITE HOUSE, November 14, 1901.
It is hereby ordered that the following-described tract of country in Arizona, viz, cerrimencing at a point where the south line of the Navajo Indian Reservation (addition of January 8, 1900) intersects the Little Colorado River; thence due south to the fifth standard parallel north; thence east on said standard to the middle of the south line of township 21 north, range 15 east; thence north on the line bisecting townships 21, 22, 23, 24, said range 15 east, to the south line of the Moqui Reservation; thence due west to the place of beginning, be, and the same is hereby, withdrawn from sale and settlement until such time as the Indians residing thereon shall have been settled permanently under the provisions of the homestead laws or the general allotment act approved February 8, 1887 (24 Stat. 388), and the act amendatory thereof, approved February 28, 1891 (26 Stats. 794).
Omitting a description of the lands involved, which is quite lengthy, Executive order of February 1, 1917, reads:
Executive orders dated June 16, 1911, December 5, 1912, and January 14, 1916, withdrawing certain lands in Arizona for the benefit of the Papago Indians, be, and the same hereby are, revoked, and, exclusive of a tribal right to the minerals therein contained, all surveyed land and all unsurveyed land which, by protraction of the regular system of public-land surveys from the township corner at the intersection of the Gila and Salt River meridian with the third
standard parallel south, would fall within the townships and ranges listed below, be, and the same hereby are, withdrawn and set apart as a reservation for the benefit of the Papago Indians in Arizona.
The foregoing reservation is hereby created with the understanding that all mineral lands within the reservation which have been or which may be shown to be such and subject to exploration, location, and entry under the existing mining laws of the United States and the rules and regulations of the Secretary of the Interior applying thereto, shall continue to be subject to such exploration, location, and entry notwithstanding the creation of this reservation; and town sites necessary in connection with the development of the mineral resources of the reservation may be located within the reservation under such rules and regulations as the Secretary of the Interior may prescribe, and patented under the provisions of the town-site laws of the United States: Provided, That nothing herein contained shall affect any existing legal right of any person to any of the lands herein described.
These but illustrate the fact that as to particular reservations, or a particular tribe or band of Indians, relevant facts and circumstances surrounding the creation of the reservation should not be disregarded in determining the character or extent of the Indian title. It may also be mentioned that by Executive orders of November 9, 1907, and January 28, 1908, some 3,000,000 acres in Arizona and New Mexico were added to the Navajo Reservation. Out of this area some 328,000 acres were allotted in severalty to 2,064 members of the Navajo Tribe, authority for this latter action being found in section 1 of the general allotment act of February 8, 1887 (24 Stat. 388), as amended. The surplus or unallotted land within this addition to the Navajo Reservation, approximating 2,600,000 acres, have since been restored to the public domain as required by section 25 of the act of May 29, 1908 (35 Stat. 444-457). Needless to add, the unallotted lands were so restored to the public domain without compensation to the Indians. This alone amply illustrates the power of Congress over the subject matter.
Respectfully,
E. O. PATTERSON, Solicitor.
Approved, March 6, 1926.
JOHN H. EDWARDS, Assistant Secretary.
DEPARTMENT OF THE INTERIOR,
Washington, March 6, 1926.
The ATTORNEY GENERAL.
MY DEAR MR. ATTORNEY GENERAL: Some question having arisen as to the character or extent of the title resting in the Indians to lands withdrawn for their benefit by Executive order, your opinion in the matter is respectfully requested.
For your information in this connection I am inclosing an opinion by the solicitor of this department on the question here presented. In so far as consistent with your other duties an early expression of your views would be appreciated.
Very truly yours,
HUBERT WORK.
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