B-142250, MAY 2, 1961

B-142250, MAY 2, 1961

TO THE SECRETARY OF THE ARMY:

THE ASSISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT) IN LETTER DATED APRIL 7, 1961, REFERS TO OUR DECISION OF JULY 25, 1960, B 142250, TO THE FORMER SECRETARY OF THE ARMY, AND REQUESTS RECONSIDERATION THEREOF.

IN THE CITED DECISION WE HELD, AS FAR AS PERTINENT HERE, THAT:

(1) UNDER SECTION 5 OF PUBLIC LAW 85-916, 72 STAT. 1766, AND PUBLIC LAW 85-923, 72 STAT. 1773, THE INDIANS OF THE CROW CREEK SIOUX RESERVATION AND THE INDIANS OF THE LOWER BRULE SIOUX RESERVATION WHOSE LANDS WERE ACQUIRED BY THE DEPARTMENT OF THE ARMY FOR THE FORT RANDALL DAM AND RESERVOIR PROJECT ARE PERMITTED TO USE, WITHOUT COST, THE LAND BETWEEN THE WATER LEVEL OF THE RESERVOIR AND THE EXTERIOR BOUNDARY OF THE TAKING AREA WHETHER THESE LANDS WERE FORMERLY OWNED BY INDIANS OR NON-INDIANS; AND

(2) THAT NEITHER THE INDIAN TRIBES, THE MEMBERS THEREOF, NOR THE DEPARTMENT OF THE ARMY, MAY LEASE THESE LANDS TO OTHERS FOR GRAZING PURPOSES.

AS INDICATED IN THE ASSISTANT SECRETARY'S LETTER, OUR DECISION, INSOFAR AS IT RELATES TO THE ABOVE HOLDINGS, WAS BASED ON THE PREMISE THAT THE LANDS OF THE NON-INDIAN OWNERS WITHIN THE CROW CREEK SIOUX AND LOWER BRULE SIOUX INDIAN RESERVATIONS WERE INCLUDED IN THE CONDEMNATION PROCEEDINGS CITED IN SECTION 1 OF PUBLIC LAWS 85-916 AND 85-923. HOWEVER, THE ASSISTANT SECRETARY ADVISES THAT THE 4,600 ACRES OF LAND WITHIN THE TWO INDIAN RESERVATIONS ACQUIRED FROM NON-INDIANS WERE ACQUIRED EITHER BY DEEDS FROM THE INDIVIDUAL NON-INDIAN OWNERS OR BY CONDEMNATION PROCEEDINGS OTHER THAN THE PROCEEDINGS CITED IN SECTION 1 OF THE ABOVE REFERRED TO PUBLIC LAWS. THIS IS THE BASIS OF THE REQUEST FOR RECONSIDERATION.

THE ASSISTANT SECRETARY'S LETTER CONTINUES:

"SECTION 10 OF PUBLIC LAW 85-915 GRANTS THE SAME PERMISSION RESPECTING GRAZING TO THE INDIANS OF THE STANDING ROCK SIOUX RESERVATION OVER LAND BETWEEN THE WATER LEVEL OF THE OAHE DAM PROJECT AND THE EXTERIOR BOUNDARY OF THE TAKING AREA. SECTION 16 OF THIS ACT DEFINES THE TAKING AREA AS THE 55,993.82 ACRES ACQUIRED FROM THE STANDING ROCK SIOUX TRIBE UNDER SECTION 1. THIS DESCRIPTION OF THE TAKING AREA DOES NOT INCLUDE SOME 12,237 ACRES WITHIN THE INDIAN RESERVATION WHICH WERE OWNED BY NON-INDIANS AND WHICH ARE BEING ACQUIRED FOR THE PROJECT FROM THE NON-INDIAN OWNERS BY SEPARATE TRANSACTIONS. WHILE PUBLIC LAW 85-915 WAS NOT CONSIDERED IN THE OPINION OF 25 JULY 1960, THE RULING OF THE ASSISTANT COMPTROLLER GENERAL IS CONSIDERED TO BE APPLICABLE TO THE LANDS ACQUIRED THEREUNDER DUE TO THE SIMILARITY OF SECTION 10 THEREOF TO SECTION 5 OF PUBLIC LAWS 85-916 AND 85 -923.'

A DECISION IN THIS MATTER IS ALSO REQUESTED.

SECTION 1 OF PUBLIC LAW 85-916, PROVIDES FOR ADDITIONAL PAYMENTS TO THE CROW CREEK SIOUX TRIBE AND THE INDIVIDUAL INDIAN OWNERS "FOR THE TAKING OF LANDS IN CONDEMNATION PROCEEDINGS ENTITLED ,UNITED STATES OF AMERICA, PLAINTIFF AGAINST 9,148.69 ACRES OF LAND, ETC., AND CROW CREEK TRIBE OF SIOUX INDIANS, ET AL., DEFENDANTS," CIVIL NUMBERED 184, AND "UNITED STATES OF AMERICA, PLAINTIFF AGAINST 365.62 ACRES OF LAND, ETC., AND STATE OF SOUTH DAKOTA, ET AL., DEFENDANTS," CIVIL NUMBERED 844, FILED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA.'

SECTION 1 OF PUBLIC LAW 85-923, PROVIDES FOR ADDITIONAL PAYMENTS TO THE INDIANS OF THE LOWER BRULE SIOUX TRIBE AND THE INDIVIDUAL INDIAN OWNERS "FOR THE TAKING OF LANDS IN CONDEMNATION PROCEEDINGS ENTITLED "UNITED STATES OF AMERICA, PLAINTIFF AGAINST 7,996.62 ACRES OF LAND ETC. AND LOWER BRULE TRIBE OF SIOUX INDIANS ET AL., DEFENDANTS," CIVIL NUMBERED 186, FILED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA.'

SECTION 5 OF PUBLIC LAWS 85-916 AND 85-923 PROVIDES THAT:

"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.'

SECTION 1 OF PUBLIC LAWS 85-916 AND 85-923 REFERS TO THE "TAKING OF LANDS" IN CERTAIN CONDEMNATION PROCEEDINGS AND SECTION 5 PROVIDES THAT THE INDIAN TRIBES INVOLVED SHALL BE GIVEN EXCLUSIVE PERMISSION TO GRAZE STOCK, WITHOUT COST, ON LAND BETWEEN THE WATER LEVEL OF THE RESERVOIR AND THE EXTERIOR BOUNDARY OF THE "TAKING AREA.' THE ONLY LANDS REFERRED TO IN THE PUBLIC LAWS INVOLVED WHICH WERE "TAKEN" WERE THOSE LANDS TAKEN IN THE CONDEMNATION PROCEEDINGS CITED IN SECTION 1 OF BOTH ACTS. THUS, THE PHRASE "TAKING AREA" AS USED IN SECTION 5 COULD ONLY HAVE REFERENCE TO THE LANDS TAKEN IN THE CONDEMNATION PROCEEDINGS CITED IN SECTION 1, IN THE ABSENCE OF SOME OTHER PROVISION IN THE ACTS PROVIDING OTHERWISE. SINCE THE ASSISTANT SECRETARY ADVISES THAT THE 4,600 ACRES OF LAND WITHIN THE TWO INDIAN RESERVATIONS ACQUIRED FROM NON-INDIAN OWNERS WERE ACQUIRED EITHER BY DEEDS OR BY CONDEMNATION PROCEEDINGS OTHER THAN THE PROCEEDINGS CITED IN SECTION 1 OF THE ACTS INVOLVED, SECTION 5 WOULD NOT BE FOR APPLICATION TO THESE 4,600 ACRES OF LAND. OUR DECISION OF JULY 25, 1960, B-142250, IS MODIFIED TO THE EXTENT THAT IT IS IN CONFLICT WITH THE FOREGOING. THAT IS TO SAY, UNDER SECTION 5 OF PUBLIC LAW 85-916 AND PUBLIC LAW 85-923 THE INDIAN TRIBES REFERRED TO THEREIN AND THE MEMBERS OF SUCH TRIBES ARE GIVEN EXCLUSIVE PERMISSION TO USE FOR GRAZING PURPOSES, WITHOUT COST, THE LAND TAKEN IN THE CONDEMNATION PROCEEDINGS CITED IN SECTION 1 OF THE PUBLIC LAWS WHICH LIES BETWEEN THE WATER LEVEL OF THE RESERVOIR AND THE EXTERIOR BOUNDARY OF THE LAND TAKEN IN SUCH PROCEEDINGS. FURTHER, ANY LANDS NOT INCLUDED IN THE CONDEMNATION PROCEEDINGS CITED IN SECTION 1 OF THE ACTS INVOLVED MAY, IF OTHERWISE PROPER, BE LEASED BY THE DEPARTMENT OF THE ARMY.

CONCERNING SECTION 10 OF PUBLIC LAW 85-915, 72 STAT. 1762, SECTION 16 OF THE SAME PUBLIC LAW DEFINES OR DESCRIBES THE "TAKING AREA" REFERRED TO THEREIN. THE PROVISIONS OF SECTION 10 WOULD NOT BE APPLICABLE TO ANY LANDS NOT PART OF THE "TAKING AREA" AS DEFINED OR DESCRIBED IN SECTION 16. SINCE THE ASSISTANT SECRETARY STATES, IN EFFECT, THAT THE DEFINITION OR DESCRIPTION OF THE ,TAKING AREA" IN SECTION 16 DOES NOT INCLUDE SOME 12,237 ACRES OF LAND WITHIN THE INDIAN RESERVATION WHICH WERE OWNED BY NON -INDIANS AND WHICH ARE BEING ACQUIRED FROM SUCH OWNERS BY SEPARATE TRANSACTIONS, SECTION 10 WOULD NOT BE APPLICABLE TO THE "SOME 12,237 ACRES.'