B-142250, JUL. 25, 1960

B-142250, JUL. 25, 1960

TO THE SECRETARY OF THE ARMY:

A LETTER DATED MARCH 8, 1960, FROM THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER, PERSONNEL AND RESERVE FORCES), PRESENTS CERTAIN QUESTIONS CONCERNING LANDS ACQUIRED BY THE UNITED STATES IN CONNECTION WITH THE FORT RANDALL DAM AND RESERVOIR PROJECT IN SOUTH DAKOTA.

THE ASSISTANT SECRETARY STATES THAT IN CONNECTION WITH THE CONSTRUCTION, OPERATION AND MAINTENANCE OF THE FORT RANDALL DAM AND RESERVOIR, SOUTH DAKOTA, AUTHORIZED BY THE FLOOD CONTROL ACT OF 1944, 58 STAT. 887, 891, THE DEPARTMENT OF THE ARMY ACQUIRED TITLE TO APPROXIMATELY 9,500 ACRES IN THE CROW CREEK SIOUX INDIAN RESERVATION AND 7,900 ACRES IN THE LOWER BRULE SIOUX INDIAN RESERVATION, BOTH IN SOUTH DAKOTA. THE ASSISTANT SECRETARY ALSO STATES THAT WITHIN THESE INDIAN RESERVATIONS THERE WERE INTERSPERSED SEVERAL TRACTS COMPRISING APPROXIMATELY 4,600 ACRES WHICH WERE ACQUIRED FOR THE PROJECT FROM NON INDIAN OWNERS.

CONDEMNATION PROCEEDINGS FOR THE ACQUISITION OF THE LANDS IN QUESTION WERE BEGUN IN 1953. SUBSEQUENTLY THESE PROCEEDINGS WERE ABANDONED, SINCE BY THE ACT OF JULY 6, 1954, 68 STAT. 452, THE CHIEF OF ENGINEERS AND THE SECRETARY OF THE INTERIOR WERE JOINTLY AUTHORIZED AND DIRECTED TO NEGOTIATE SEPARATE CONTRACTS WITH THE CROW CREEK AND LOWER BRULE SIOUX INDIAN TRIBES FOR THE ACQUISITION OF THE REQUIRED LANDS. WE UNDERSTAND THAT NEGOTIATIONS WITH THE INDIAN TRIBES PROVED UNSUCCESSFUL AND THE DEPARTMENT OF THE ARMY WITH THE CONCURRENCE OF THE SECRETARY OF THE INTERIOR REQUESTED THE ATTORNEY GENERAL TO PROCEED WITH CONDEMNATION PROCEEDINGS. ON JANUARY 2, 1955, DECLARATIONS OF TAKING WERE FILED VESTING TITLE IN THE UNITED STATES TO THE INDIAN LANDS WITHIN THE TAKING AREA OF THE FORT RANDALL DAM. IN THE MEANTIME CONSTRUCTION OF THE FORT RANDALL DAM HAD BEEN COMPLETED, AND IN JULY 1952, THE GATES OF THE DAM WERE CLOSED AND THE LAND COMPRISING THE FORT RANDALL RESERVOIR WAS INUNDATED.

PUBLIC LAW 85-916, APPROVED SEPTEMBER 2, 1958, 72 STAT. 1766, PROVIDES FOR ADDITIONAL PAYMENTS TO THE INDIANS OF THE CROW CREEK SIOUX RESERVATION WHOSE LANDS WERE ACQUIRED FOR THE FORT RANDALL DAM AND RESERVOIR PROJECT. PUBLIC LAW 85-923, APPROVED ON THE SAME DATE, PROVIDES FOR LIKE BENEFITS FOR THE INDIANS OF THE LOWER BRULE SIOUX RESERVATION. EACH OF THESE ACTS CONTAIN THE FOLLOWING IDENTICAL PROVISION:

"SEC. 5. AFTER THE RANDALL DAM GATES ARE CLOSED AND THE WATERS OF THE MISSOURI RIVER IMPOUNDED, THE SAID INDIAN TRIBE AND THE MEMBERS THEREOF SHALL BE GIVEN EXCLUSIVE PERMISSION, WITHOUT COST, TO GRAZE STOCK ON THE LAND BETWEEN THE WATER LEVEL OF THE RESERVOIR AND THE EXTERIOR BOUNDARY OF THE TAKING AREA. THE SAID TRIBAL COUNCIL AND THE MEMBERS OF THE SAID INDIAN TRIBE SHALL BE PERMITTED TO HAVE, WITHOUT COST, ACCESS TO THE SHORELINE OF THE RESERVOIR INCLUDING PERMISSION TO HUNT AND FISH IN AND ON THE AFORESAID SHORELINE AND RESERVOIR, SUBJECT, HOWEVER, TO REGULATIONS GOVERNING THE CORRESPONDING USE BY OTHER CITIZENS OF THE UNITED STATES.'

AS INDICATED ABOVE, THE GATES OF THE DAM WERE CLOSED AND THE WATERS OF THE MISSOURI RIVER IMPOUNDED IN JULY 1952. FURTHER, WE UNDERSTAND THAT PRIOR TO SEPTEMBER 2, 1958, THE LANDS BETWEEN THE WATER LEVEL OF THE RESERVOIR AND THE EXTERIOR BOUNDARY OF THE TAKING AREA WERE LEASED BY THE GOVERNMENT TO BOTH INDIANS AND NON-INDIANS AND RENTALS COLLECTED THEREFOR AND THAT THE TWO INDIAN TRIBES CLAIM THEY ARE ENTITLED TO ALL SUCH RENTALS.

IN THE LEASING OF LANDS NOT FOR THE TIME REQUIRED FOR PUBLIC USE, THE SECRETARY OF THE ARMY IS REQUIRED BY THE PROVISIONS OF 10 U.S.C. 2667 TO COVER MONEY RENTALS INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. SECTION 206 OF PUBLIC LAW 780--- 83D CONGRESS (68 STAT. 1248, 1266; 33 U.S.C. 7016 -3), REQUIRES THAT 75 PERCENT OF ALL MONEYS RECEIVED AND DEPOSITED IN THE TREASURY OF THE UNITED STATES DURING ANY FISCAL YEAR ON ACCOUNT OF THE LEASING OF LANDS ACQUIRED BY THE UNITED STATES FOR FLOOD CONTROL AND ALLIED PURPOSES, ETC., SHALL BE PAID AT THE END OF SUCH YEAR BY THE SECRETARY OF THE TREASURY TO THE STATE IN WHICH SUCH PROPERTY IS SITUATED, TO BE EXPENDED AS THE STATE LEGISLATURE MAY PRESCRIBE FOR THE BENEFIT OF PUBLIC SCHOOLS, ETC.

FOR THE GUIDANCE OF YOUR DEPARTMENT IN CONNECTION WITH THE LEASING OF LANDS NOT IMMEDIATELY REQUIRED FOR THE FORT RANDALL DAM AND RESERVOIR PROJECT, THE ASSISTANT SECRETARY PRESENTS FOR DECISION THE FOLLOWING QUESTIONS:

"1. WHAT DISPOSITION SHOULD THIS DEPARTMENT MAKE OF THE MONEY RENTALS RECEIVED FROM LEASING THOSE LANDS FORMERLY OWNED BY NON INDIANS?

"2. WHAT DISPOSITION SHOULD THIS DEPARTMENT MAKE OF THE MONEY RENTALS RECEIVED FROM THE LEASING OF THE LANDS FORMERLY OWNED BY THE INDIANS?

"3. IN VIEW OF THE EXCLUSIVE PERMISSION TO GRAZE STOCK TO WHICH THEY ARE ENTITLED UNDER SECTION 5 OF PUBLIC LAW 85-916 AND PUBLIC LAW 85-923, DO THE INDIAN TRIBES HAVE THE RIGHT TO LEASE TO OTHERS ANY OF THE LANDS NOT NEEDED BY THEM FOR GRAZING AND TO COLLECT AND RETAIN THE RENTALS OR IS SUCH LEASING THE RESPONSIBILITY OF THE DEPARTMENT OF THE ARMY?

"4. IS IT REQUIRED THAT OCCUPANCY OF THE LANDS BY THE INDIAN TRIBES FOR THE PURPOSES INDICATED IN SECTION 5 OF THESE ACTS BE EVIDENCED BY A FORMAL PERMIT FROM THE DEPARTMENT OF THE ARMY?

AS INDICATED ABOVE, BOTH PUBLIC LAW 86-916 AND PUBLIC LAW 85-923, WERE APPROVED ON SEPTEMBER 2, 1958. UNDER SECTION 5 OF THESE PUBLIC LAWS, THE INDIAN TRIBES REFERRED TO THEREIN AND THE MEMBERS OF SUCH TRIBES ARE TO BE GIVEN "EXCLUSIVE PERMISSION," AS DISTINGUISHED FROM "RIGHT," TO GRAZE STOCK "WITHOUT COST" ON THE LAND BETWEEN THE WATER LEVEL OF THE RESERVOIR AND THE EXTERIOR BOUNDARY OF THE TAKING AREA. IT IS CLEAR FROM THE HOUSE AND SENATE REPORTS (SENATE REPORTS NOS. 2368 AND 2369; HOUSE REPORTS NOS. 2054 AND 2086) ON THE BILLS WHICH BECAME THE ABOVE-CITED LAWS THAT THE SENATE AND HOUSE COMMITTEES ON INTERIOR AND INSULAR AFFAIRS WERE AWARE THAT THE GATES OF THE RANDALL DAM WERE CLOSED ON JULY 21, 1952, AND THE LAND INUNDATED. IN VIEW OF THIS KNOWLEDGE AND THE LANGUAGE USED IN THE ABOVE-CITED PUBLIC LAWS, IT IS APPARENT THAT IT WAS INTENDED UNDER THESE STATUTES THAT THE INDIANS BE PERMITTED TO USE, WITHOUT COST, THE LAND BETWEEN THE WATER LEVEL OF THE RESERVOIR AND THE EXTERIOR BOUNDARY TAKING AREA FROM THE DATE THE RANDALL DAM GATES WERE CLOSED AND THE WATER OF THE MISSOURI RIVER IMPOUNDED, WHETHER THESE LANDS WERE FORMERLY OWNED BY INDIANS OR NON-INDIANS. THEREFORE, RENTS RECEIVED BY THE UNITED STATES FROM THE INDIAN TRIBES OR THE MEMBERS THEREOF FOR LANDS BETWEEN THE WATER LEVEL OF THE RESERVOIR AND THE EXTERIOR BOUNDARY OF THE TAKING AREA FOR ANY PERIOD AFTER THE DATE THE GATES OF RANDALL DAM WERE CLOSED AND THE WATER OF THE MISSOURI RIVER IMPOUNDED SHOULD BE RETURNED TO THE INDIAN TRIBES OR THE MEMBERS THEREOF, WHICHEVER IS APPROPRIATE.

AS INDICATED ABOVE, SECTION 5 OF BOTH PUBLIC LAWS PROVIDES THAT THE INDIAN TRIBES AND THE MEMBERS THEREOF SHALL BE GIVEN "EXCLUSIVE PERMISSION" TO GRAZE STOCK ON THE LANDS INVOLVED AND NOT AN EXCLUSIVE RIGHT.' "PERMISSION" INVOLVES LEAVE AND LICENSE BUT IT GIVES NO RIGHT. FLAHERTY V. NIEMAN, 101 N.W. 280; MANN V. DES MOINES RY.CO., 7 N.W.2D 45. A "LICENSE" IS AN AUTHORITY TO DO SOME ACT ON THE LAND OF ANOTHER WITHOUT PASSING AN ESTATE IN LAND, AND BEING A MERE PERSONAL PRIVILEGE CAN ONLY BE ENJOYED BY THE LICENSEE ITSELF AND IS NOT ASSIGNABLE. CF. FISHER V. GENERAL PETROLEUM CORP., 267 P.2D 841; KELLY ET AL. V. RAINELLE COAL CO., 64 S.E.2D 606; AND BURNHAM V. BURNHAM, 156 A. 823. SINCE "PERMISSION" IN EFFECT, IS A LICENSE AND A LICENSE CONVEYS NO INTEREST IN LAND BUT IS A PERSONAL PRIVILEGE WHICH CAN ONLY BE ENJOYED BY THE LICENSEE OR PERMITTEE AND IS NOT ASSIGNABLE, THE INDIAN TRIBES INVOLVED HERE OR THE MEMBERS THEREOF MAY NOT LEASE TO OTHERS ANY OF THE LANDS DESCRIBED IN SECTION 5 OF THE ABOVE-CITED PUBLIC LAWS NOT NEEDED BY THEM FOR GRAZING PURPOSES. MOREOVER, SINCE SECTION 5 PROVIDES THAT THE INDIAN TRIBES AND THE MEMBERS THEREOF "SHALL" BE GIVEN EXCLUSIVE PERMISSION TO GRAZE STOCK ON THE LANDS IN QUESTION, THE DEPARTMENT OF THE ARMY MAY NOT LEASE THESE LANDS TO OTHERS FOR GRAZING PURPOSES.

AS TO THE RENTALS RECEIVED BY THE GOVERNMENT FROM NON-INDIANS FOR LEASED LANDS IN THE TAKING AREA, BETWEEN THE DATE TITLE TO THE LANDS IN QUESTION VESTED IN THE UNITED STATES AND SEPTEMBER 2, 1958, THE DATE PUBLIC LAWS 85 -916 AND 85-923 WERE APPROVED, THERE WAS NOTHING TO PREVENT THE CORPS OF ENGINEERS FROM LEASING LANDS WITHIN THE TAKING AREA TO NON-INDIANS FOR GRAZING PURPOSES. WHILE SECTION 5 IS RETROACTIVE IN EFFECT, THERE IS NOTHING THEREIN WHICH PROVIDES OR REQUIRES THAT RENTALS PAID TO THE UNITED STATES BY NON-INDIANS PRIOR TO SEPTEMBER 2, 1958, BE PAID OVER TO THE INDIAN TRIBES. AS INDICATED ABOVE, THE INDIAN TRIBES MAY NOT LEASE THE LANDS IN QUESTION TO OTHERS IF THEY DO NOT DESIRE TO USE THEM FOR GRAZING PURPOSES. HENCE, IT MAY NOT BE SAID THE LANDS WERE LEASED BY THE GOVERNMENT TO THE NON-INDIANS FOR THE BENEFIT OF THE INDIANS SO AS TO ENTITLE THE INDIANS TO THE RENTALS RECEIVED BY THE GOVERNMENT FROM THE NON -INDIANS. FURTHER, EVEN THOUGH THE CORPS OF ENGINEERS MAY HAVE NO AUTHORITY TO LEASE THE LANDS INVOLVED TO NON-INDIANS FOR GRAZING PURPOSES ON OR AFTER SEPTEMBER 2, 1958, THERE IS NOTHING IN SECTION 5 OF THE PUBLIC LAWS INVOLVED WHICH PROVIDES OR REQUIRES THAT IF THE CORPS OF ENGINEERS DO LEASE SUCH LANDS TO NON-INDIANS, THE RENTS RECEIVED ON ACCOUNT OF SUCH LEASES SHALL BE PAYABLE TO THE INDIAN TRIBES. THUS, WE SEE NO LEGAL BASIS FOR PAYING TO THE ABOVE-NAMED INDIAN TRIBES MONEYS RECEIVED BY THE GOVERNMENT FROM NON-INDIANS AS RENT FOR THE GRAZING LANDS INVOLVED HERE REGARDLESS OF WHO FORMERLY OWNED SUCH LANDS. INSTEAD, SUCH MONEYS WOULD APPEAR TO BE FOR DISPOSITION IN ACCORDANCE WITH SECTION 206 OF THE ACT OF SEPTEMBER 3, 1954, 68 STAT. 1248, 1266, 33 U.S.C. 701C-3, SINCE THE LAND IN QUESTION WAS ACQUIRED FOR FLOOD CONTROL AND ALLIED PURPOSES.

QUESTIONS 1, 2, AND 3, ARE ANSWERED ACCORDINGLY.

CONCERNING QUESTION 4, THERE IS NOTHING IN SECTION 5 WHICH SPECIFICALLY REQUIRES THAT THE OCCUPANCY OF THE LANDS BY THE INDIAN TRIBES FOR THE PURPOSES INDICATED THEREIN BE EVIDENCED BY A FORMAL PERMIT FROM THE DEPARTMENT OF THE ARMY. NEITHER IS THERE ANYTHING IN SECTION 5 WHICH SPECIFICALLY PROHIBITS THE ISSUANCE OF A FORMAL PERMIT IF THE DEPARTMENT OF THE ARMY ADMINISTRATIVELY DETERMINES IT DESIRABLE TO DO SO. THUS, WHETHER A FORMAL PERMIT SHOULD BE ISSUED TO EVIDENCE OCCUPANCY OF THESE LANDS IS A MATTER WITHIN THE ADMINISTRATIVE DISCRETION OF YOUR DEPARTMENT.