APRIL 3, 1924, 3 COMP. GEN. 716

APRIL 3, 1924, 3 COMP. GEN. 716

FEDERAL AID - HIGHWAY CONSTRUCTION WITHIN INDIAN RESERVATIONS UNDER SECTION 3 OF THE FEDERAL HIGHWAY ACT OF NOVEMBER 9, 1921, 42 STAT., 212, WHICH PROVIDES FOR THE CONSTRUCTION OF HIGHWAYS WITHIN INDIAN RESERVATIONS, THE ENTIRE COST TO BE ASSUMED BY THE FEDERAL GOVERNMENT, THE TERM "WITHIN INDIAN RESERVATIONS" DOES NOT INCLUDE ALL HIGHWAYS WHICH ARE GEOGRAPHICALLY WITHIN THE EXTERIOR BOUNDARIES OF THE INDIAN RESERVATIONS, BUT INCLUDES ONLY THOSE HIGHWAYS OVER LAND WITHIN THE EXTERIOR BOUNDARIES OF THE RESERVATIONS OVER WHICH THE SECRETARY OF THE INTERIOR HAS JURISDICTION AND CONTROL, SUFFICIENT TO AUTHORIZE HIM TO COOPERATE WITH THE SECRETARY OF AGRICULTURE IN THE CONSTRUCTION OF THE ROADS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, APRIL 3, 1924:

I HAVE YOUR LETTER OF MARCH 8, 1924, REQUESTING DECISION AS TO WHAT MAY BE CONSIDERED HIGHWAYS ,WITHIN INDIAN RESERVATIONS" UNDER SECTION 3 OF THE ACT OF NOVEMBER 9, 1921, 42 STAT., 212, AMENDING THE FEDERAL HIGHWAY ACT AND AS USED IN DECISION OF THIS OFFICE, DATED MAY 27, 1922.

THE STATUTORY PROVISION IS AS FOLLOWS:

THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO COOPERATE WITH THE STATE HIGHWAY DEPARTMENTS, AND WITH THE DEPARTMENT OF THE INTERIOR IN THE CONSTRUCTION OF PUBLIC HIGHWAYS WITHIN INDIAN RESERVATIONS, AND TO PAY THE AMOUNT ASSUMED THEREFOR FROM THE FUNDS ALLOTTED OR APPORTIONED UNDER THIS ACT TO THE STATE WHEREIN THE RESERVATION IS LOCATED.

THE DECISION OF MAY 27, 1922, HELD AS FOLLOWS:

THE PROVISIONS OF THE ACT OF NOVEMBER 9, 1921, RELATE GENERALLY TO THE CONSTRUCTION OF RURAL POST ROADS IN COOPERATION WITH STATES. IT HAS THE GENERAL PURPOSE OF GOVERNMENT ASSISTANCE TO THE STATES IN THE CONSTRUCTION OF ROADS. THE PARTICULAR PARAGRAPH IN WHICH THE CLAUSE IN QUESTION APPEARS IS AN AUTHORIZATION FOR THE DOING OF ROAD WORK WHICH IS NOT THE GENERAL ROAD WORK AUTHORIZED BY THE ACT, AND THUS THE APPLICATION THERETO OF MONEYS FROM THE ALLOTMENTS AUTHORIZED TO THE STATES IS A SPECIAL AUTHORITY. IT IS ENTITLED TO AND THE LAW REQUIRES THAT THE ROAD WORK WHICH IT AUTHORIZES BE CONSIDERED A PROJECT FOR SUBMISSION BY THE STATE AND APPROVAL BY THE SECRETARY OF AGRICULTURE, BUT WHAT THAT AUTHORITY IS IN THE AMOUNT THAT MAY BE ASSUMED IS NOT EXPRESSED IN THE CLAUSE ITSELF. IF IT WERE SUBJECTED TO THE OTHER PROVISIONS OF THE ENACTMENT WHICH RELATE TO THE GENERAL ROAD WORK, IT APPARENTLY WOULD RESULT IN A LIMITATION UPON THE AMOUNT THAT MAY BE ASSUMED, WHICH WOULD NOT BE ALTOGETHER IN HARMONY WITH THE SPECIAL AUTHORITY THE CLAUSE GIVES. THERE IS A DISCRETION AND RESPONSIBILITY GIVEN TO THE SECRETARY OF AGRICULTURE AND I AM CONSTRAINED TO THE VIEW THAT IF A PROJECT IS SUBMITTED BY THE STATE WHICH EMBRACES A HIGHWAY WITHIN AN INDIAN RESERVATION IT IS FOR THE SECRETARY OF AGRICULTURE TO DETERMINE IN THE USE OF THE ALLOTMENTS TO THE STATES THE PORTION OF THE AMOUNT INVOLVED IN THE INDIAN HIGHWAY, AND IN SO FAR AS THAT PART OF THE PROJECT IS CONCERNED ITS WHOLE COST MAY BE THE AMOUNT ASSUMED FOR PAYMENT UNDER THE STATE ALLOTMENT IF THE STATE HAS SO SUBMITTED THE PROJECT.

THE GENERAL QUESTION PRESENTED IS WHETHER THE TERM "WITHIN INDIAN RESERVATIONS" FOR WHICH THE ENTIRE CONSTRUCTION COSTS MAY BE ASSUMED OUT OF THE STATE'S FEDERAL AID ALLOTMENT REFERS TO HIGHWAYS GEOGRAPHICALLY WITHIN THE EXTERIOR BOUNDARIES OR ONLY TO HIGHWAYS OVER INDIAN LANDS UNDER THE JURISDICTION AND CONTROL OF THE UNITED STATES AS DISTINGUISHED FROM FORMER INDIAN LANDS WHICH HAVE BEEN ALIENATED AND PUBLIC LANDS NOT RESERVED FOR INDIAN USE, ALTHOUGH WITHIN THE EXTERIOR BOUNDARIES OF THE RESERVATION. YOU MAKE THE FOLLOWING STATEMENT AS ILLUSTRATIVE OF THIS GENERAL QUESTION AND SUBMIT A SPECIFIC CASE OF WHICH DECISION IS ALSO REQUESTED, AS FOLLOWS:

(1) WITHIN SOME OF THE INDIAN RESERVATIONS, THERE ARE TRACTS OF LAND FOR WHICH FEE PATENTS HAVE BEEN ISSUED TO INDIAN MEMBERS OF THE TRIBE, WHO HAVE SUBSEQUENTLY SOLD THE LAND COVERED THEREBY TO UNITED STATES CITIZENS OR OTHERS, WITH THE RESULT THAT SUCH LAND HAS CEASED TO BE ACTUALLY A PART OF THE INDIAN RESERVATION AND HAS BECOME SUBJECT TO STATE TAXATION. THERE ARE INSTANCES WHERE A CONSIDERABLE BODY OF LAND, THUS "WITHIN" AN INDIAN RESERVATION, IS HELD IN PRIVATE OWNERSHIP AND, WHEN SUCH A TRACT IS TRAVERSED BY A PUBLIC HIGHWAY TO BE CONSTRUCTED UNDER THE FEDERAL HIGHWAY ACT, THE DEPARTMENT HAS FELT THAT, EVEN THOUGH THE HIGHWAY IS THUS STILL GEOGRAPHICALLY "WITHIN" AN INDIAN RESERVATION, THE PORTION OF IT WHICH IS LOCATED UPON THE ALIENATED LANDS SHOULD BE FINANCED IN THE SAME MANNER AS THE ORDINARY PROJECT WHICH PASSES THROUGH LANDS WHICH ARE SUBJECT TO STATE OR LOCAL TAXATION, OR THROUGH LANDS OF THE UNITED STATES NOT SET APART FOR THE USE OF INDIANS, AND THEREFORE NOT IN THE MANNER PROVIDED IN SECTION 3OF THE ACT. IN SUCH CASES, THE DEPARTMENT HAS REFUSED TO ALLOW THE USE OF FEDERAL AID FUNDS UP TO 100 PERCENT FOR THAT PART OF THE HIGHWAY SO LOCATED, ALLOWING ONLY THAT PORTION OF THE COST THEREOF AS IS ALLOWED BY THE GENERAL PROVISIONS OF THE ACT.

(2) LIKE CONDITIONS EXIST WHERE MINERAL LANDS HAVE BEEN OPENED TO ENTRY AND PATENTED OR WHERE TOWNSHIPS OR TOWN SITES HAVE BEEN ESTABLISHED WITHIN THE BOUNDARIES OF AN INDIAN RESERVATION, SUCH TRACTS THUS BECOMING SUBJECT TO STATE AND LOCAL TAXATION. UNDER SUCH CONDITIONS, WHERE THE LAND HAS ACTUALLY CEASED TO BE INDIAN LAND, AS ALSO IN THE CASE OF A POWER-SITE WITHDRAWAL WITHIN AN INDIAN RESERVATION, THE DEPARTMENT HAS FELT THAT A HIGHWAY CONSTRUCTED OVER LANDS OF THIS CHARACTER IS NOT PROPERLY ELIGIBLE FOR FEDERAL AID UP TO 100 PERCENT OF THE CONSTRUCTION COSTS, EVEN THOUGH THE PUBLIC HIGHWAY, TO THE EXTENT THAT IT IS LOCATED ON SUCH NON-INDIAN LAND, IS STILL GEOGRAPHICALLY "WITHIN" THE RESERVATION.

THE PARTICULAR CASE GIVING RISE TO THIS REQUEST FOR AN OPINION IS ONE WHERE THE DEPARTMENT BELIEVES THAT THE CONDITIONS ARE SUCH THAT THE PROPOSED HIGHWAY BEING GEOGRAPHICALLY "WITHIN" AN INDIAN RESERVATION,MAY POSSIBLY BE LEGALLY ELIGIBLE FOR FEDERAL AID UP TO 100 PERCENT, EVEN THOUGH LOCATED ON LAND WHICH IS ACTUALLY NOT A PART OF THE INDIAN RESERVATION. HOWEVER, BEFORE APPROVING THE PROJECT AND ENTERING INTO AN AGREEMENT INVOLVING SUCH A PAYMENT OUT OF FEDERAL AID FUNDS THE DEPARTMENT DESIRES TO BE ADVISED AS TO WHETHER SUCH PAYMENT IS PROPERLY WITHIN THE CONTEMPLATION OF THE PARAGRAPH OF THE FEDERAL HIGHWAY ACT, ABOVE QUOTED.

THE FACTS OF THIS PARTICULAR CASE ARE AS FOLLOWS:

"A PART OF THE RIGHT-OF-WAY OF THE NORTHERN PACIFIC RAILROAD, IN THE STATE OF MONTANA, CONSISTS OF A STRIP OF LAND 200 FEET WIDE, EXTENDING FOR A NUMBER OF MILES ACROSS, AND BOUNDED ON BOTH SIDES BY, THE FLATHEAD INDIAN RESERVATION. THIS STRIP OF LAND IS BEYOND QUESTION GEOGRAPHICALLY ,WITHIN" THE RESERVATION AND, UP TO 1882, IT WAS ACTUALLY A PART THEREOF, BUT, IN THAT YEAR, THE CONFEDERATED FLATHEAD, KOOTENAY, AND UPPER PENDE D- OREILLE INDIAN TRIBES, FOR A GOOD AND VALUABLE CONSIDERATION, RELINQUISHED TO THE UNITED STATES ALL "THEIR RIGHT, TITLE, AND INTEREST," IN AND TO SAID STRIP OF LAND, THUS SEVERING IT FROM THE RESERVATION AS SUCH. THE STRIP THUS RETURNED TO THE UNITED STATES IS UNDER GRANT TO THE RAILROAD COMPANY FOR RIGHT-OF WAY PURPOSES AND IT IS NOW PROPOSED TO CONSTRUCT A PUBLIC HIGHWAY, UNDER THE PROVISIONS OF THE FEDERAL HIGHWAY ACT, UPON THIS RAILROAD RIGHT-OF-WAY, AN EASEMENT FOR THIS PURPOSE OVER A SUFFICIENT WIDTH AND LENGTH THEREOF HAVING BEEN GRANTED BY THE RAILROAD.'

THE TERM "WITHIN INDIAN RESERVATIONS," AS USED IN THE PROVISION HERE UNDER CONSIDERATION, IS TO BE CONSTRUED IN CONNECTION WITH THE AUTHORITY THEREIN GIVEN FOR COOPERATION WITH THE INTERIOR DEPARTMENT AND WITH A VIEW TO THE APPARENT PURPOSE OF THIS PROVISION AND OTHER LAWS INTENDED TO RELIEVE THE STATE OF THE EXTRA BURDEN BY REASON OF LARGE AREAS FROM WHICH NO REVENUE IS DERIVED FROM TAXATION.

UNDER THE TITLE "THE PUBLIC LANDS" IN THE REVISED STATUTES, APPEAR THE FOLLOWING SECTIONS:

SEC. 2477. THE RIGHT OF WAY FOR THE CONSTRUCTION OF HIGHWAYS OVER PUBLIC LANDS, NOT RESERVED FOR PUBLIC USES, IS HEREBY GRANTED.

SEC. 2478. THE COMMISSIONER OF THE GENERAL LAND-OFFICE, UNDER THE DIRECTION OF THE SECRETARY OF THE INTERIOR, IS AUTHORIZED TO ENFORCE AND CARRY INTO EXECUTION, BY APPROPRIATE REGULATIONS, EVERY PART OF THE PROVISIONS OF THIS TITLE NOT OTHERWISE SPECIALLY PROVIDED FOR.

SECTION 4 OF THE ACT OF MARCH 3, 1901, 31 STAT., 1084, PROVIDES AS FOLLOWS:

THAT THE SECRETARY OF THE INTERIOR IS HEREBY AUTHORIZED TO GRANT PERMISSION, UPON COMPLIANCE WITH SUCH REQUIREMENTS AS HE MAY DEEM NECESSARY TO THE PROPER STATE OR LOCAL AUTHORITIES FOR THE OPENING AND ESTABLISHMENT OF PUBLIC HIGHWAYS, IN ACCORDANCE WITH THE LAWS OF THE STATE OR TERRITORY IN WHICH THE LANDS ARE SITUATED, THROUGH ANY INDIAN RESERVATION OR THROUGH ANY LANDS WHICH HAVE BEEN ALLOTTED IN SEVERALTY TO ANY INDIVIDUAL INDIANS UNDER ANY LAWS OR TREATIES BUT WHICH HAVE NOT BEEN CONVEYED TO THE ALLOTTEES WITH FULL POWER OF ALIENATION.

SECTION 11 OF THE ACT OF NOVEMBER 9, 1921, 42 STAT., 214, PROVIDING FOR THE 50/50 BASIS OF PAYMENT FOR CONSTRUCTION OF HIGHWAYS BY THE GOVERNMENT AND THE STATE, MADE THE FOLLOWING XCEPTION:

* * * EXCEPT THAT IN THE CASE OF ANY STATE CONTAINING UNAPPROPRIATED PUBLIC LANDS EXCEEDING 5 PERCENTUM OF THE TOTAL AREA OF ALL LANDS IN THE STATE, THE SHARE OF THE UNITED STATES PAYABLE UNDER THIS ACT ON ACCOUNT OF SUCH PROJECTS SHALL NOT EXCEED 50 PERCENTUM OF THE TOTAL ESTIMATED COST THEREOF PLUS A PERCENTAGE OF SUCH ESTIMATED COST EQUAL TO ONE-HALF OF THE PERCENTAGE WHICH THE AREA OF THE UNAPPROPRIATED PUBLIC LANDS IN SUCH STATE BEARS TO THE TOTAL AREA OF SUCH STATE: * * *.

IF PUBLIC LANDS, OTHER THAN INDIAN LANDS, WITHIN THE EXTERIOR BOUNDARIES OF INDIAN RESERVATIONS ARE INCLUDED AS UNAPPROPRIATED PUBLIC LANDS IN DETERMINING THE TOTAL AREA OF UNAPPROPRIATED PUBLIC LANDS WITHIN A STATE CONTAINING UNAPPROPRIATED PUBLIC LANDS EXCEEDING 5 PERCENT OF ITS TOTAL AREA FOR THE PURPOSES OF THE PROVISION JUST QUOTED, THEREBY INCREASING FEDERAL EXPENDITURE FOR THE CONSTRUCTION OF HIGHWAYS WITHIN A STATE BY REASON THEREOF, NO ADDITIONAL INCREASE OF FEDERAL EXPENDITURE IS JUSTIFIED UNDER THE PROVISIONS OF SECTION 3 OF THE ACT BECAUSE THE PUBLIC LAND IS WITHIN THE EXTERIOR BOUNDARIES OF INDIAN RESERVATIONS.

THE QUOTED PORTION OF SECTION 3 OF THE ACT OF NOVEMBER 9, 1921, DIRECTS COOPERATION AMONG THE SECRETARY OF AGRICULTURE, THE SECRETARY OF THE INTERIOR, AND THE STATE AUTHORITIES WITH RESPECT TO HIGHWAYS CONSTRUCTED "WITHIN INDIAN RESERVATIONS.' IT MAY BE CONCLUDED THAT THE ONLY HIGHWAY CONSTRUCTION "WITHIN INDIAN RESERVATIONS" CONTEMPLATED WOULD BE THAT OVER WHICH THE SECRETARY OF THE INTERIOR HAS JURISDICTION OR CONTROL SUCH AS WOULD ENABLE HIM TO COOPERATE WITH THE SECRETARY OF AGRICULTURE AND THE STATE AUTHORITIES. UNDER SECTIONS 2477 AND 2478, REVISED STATUTES, THE SECRETARY OF THE INTERIOR WOULD HAVE AUTHORITY TO COOPERATE IN THE CONSTRUCTION OF HIGHWAYS "OVER PUBLIC LANDS, NOT RESERVED FOR PUBLIC USES.' IF PUBLIC LANDS NOT FOR THE USE OF INDIANS WITHIN THE EXTERIOR BOUNDARY OF THE INDIAN RESERVATIONS ARE NOT INCLUDED IN DETERMINING THE STATE'S TOTAL AREA OF UNAPPROPRIATED PUBLIC LANDS UNDER THE QUOTED EXCEPTION APPEARING IN THE ACT OF NOVEMBER 9, 1921, SUPRA, SUCH LAND MAY BE CONSIDERED AS "WITHIN INDIAN RESERVATIONS," AND HIGHWAYS CONSTRUCTED OVER SAME MAY BE AT THE EXPENSE OF THE GOVERNMENT FROM THE AMOUNT ALLOTTED TO THE STATE IN ACCORDANCE WITH THE PREVIOUS DECISION OF MAY 27, 1922.

UNDER THE ACT OF MARCH 3, 1901, SUPRA, THE JURISDICTION OF THE SECRETARY OF THE INTERIOR IS LIMITED TO LANDS WITHIN INDIAN RESERVATIONS OVER WHICH HE HAS CONTROL. A PATENT IN FEE EITHER TO AN INDIAN OR ANY OTHER PERSON DISPOSSESSES THE GOVERNMENT AND THE SECRETARY OF THE INTERIOR OF ANY JURISDICTION OVER THE LAND, UNLESS SOME RESERVATION IS MADE IN THE PATENT, AND SUCH LAND, AFTER PATENT, BECOME SUBJECT TO STATE TAXATION. ACCORDINGLY, THE SECRETARY OF THE INTERIOR WOULD HAVE NO JURISDICTION TO COOPERATE WITH THE SECRETARY OF AGRICULTURE IN THE CONSTRUCTION OF HIGHWAYS OVER PRIVATELY OWNED LAND WITHIN INDIAN RESERVATIONS. THE SAME IS TRUE REGARDLESS OF THE CHARACTER OF THE LAND PATENTED WHETHER MINERAL, HOMESTEAD, OR TOWN SITE, PROVIDED THE GOVERNMENT IS DISPOSSESSED OF THE FEE IN THE LAND, WITHOUT RESERVATION AFFECTING HIGHWAY CONSTRUCTION. WITH RESPECT TO POWER-SITE WITHDRAWALS, THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO COOPERATE WITH THE SECRETARY OF AGRICULTURE WOULD DEPEND ON WHETHER THERE IS RETAINED ANY JURISDICTION BY THE SECRETARY OF THE INTERIOR, SUBSEQUENT TO THE WITHDRAWAL FOR POWER-SITE PURPOSES, SUFFICIENT TO AUTHORIZE THE COOPERATION.

ACCORDINGLY, IN ANSWER TO THE GENERAL QUESTION AS ILLUSTRATED BY (1), (2), AND YOUR PRELIMINARY STATEMENT THERETO, THE TERM "WITHIN INDIAN RESERVATIONS" AS USED IN THE FEDERAL HIGHWAY ACT DOES NOT EMBRACE ALL LAND WITHIN THE EXTERIOR BOUNDARIES OF THE RESERVATIONS, BUT ONLY LAND WITHIN THE EXTERIOR BOUNDARIES OVER WHICH THE SECRETARY OF THE INTERIOR HAS JURISDICTION AND CONTROL AUTHORIZING HIM TO COOPERATE WITH THE SECRETARY OF AGRICULTURE.

THE SPECIFIC CASE PRESENTED IS THAT OF THE NORTHERN PACIFIC RAILROAD RIGHT-OF-WAY WITHIN THE FLATHEAD INDIAN RESERVATION. BY THE ACT OF JULY 4, 1884, 23 STAT., 89, $16,000 WAS APPROPRIATED BY CONGRESS TO PAY THE INDIANS FOR THE SURRENDER AND RELINQUISHMENT OF THE LAND EMBRACED IN THIS RIGHT-OF-WAY AND ALSO FOR THE LAND COVERED BY STATION GROUNDS, ALL OF WHICH WAS PURSUANT TO THE AGREEMENT OF SEPTEMBER 2, 1882, BETWEEN THE GOVERNMENT AND THE INDIANS RESPECTING SUCH A CESSION. THE OFFICE HAS BEEN ADVISED THAT THIS CONSTITUTED AN ABSOLUTE CONVEYANCE BY THE INDIANS TO THE GOVERNMENT OF THE INDIAN LANDS WITHIN THE FLATHEAD RESERVATION COVERED BY THE RIGHT-OF-WAY, AND THAT IN ALL PATENTS ISSUED TO INDIANS OR OTHERS, OVER WHICH THE RIGHT-OF-WAY EXTENDED, THE RIGHT-OF-WAY AREA HAS BEEN EXPRESSLY EXCLUDED FROM THE PATENTS AND THE INDIANS GRANTED LANDS IN LIEU THEREFOR. THE GOVERNMENT GAVE AN ABSOLUTE GRANT TO THE RAILROAD COMPANY, THERE HAVING PREVIOUSLY BEEN PAID INTO THE TREASURY THE SUM OF $16,000. WHILE IT IS RECOGNIZED THAT THE HIGHWAY OVER SUCH RIGHT-OF-WAY WILL BENEFIT THE INDIANS OWNING PROPERTY ADJACENT TO THE RIGHT-OF-WAY, THERE WOULD APPEAR TO BE NO DISTINCTION BETWEEN THIS CASE AND ANY OTHER LAND OVER WHICH THE SECRETARY OF THE INTERIOR HAS LOST JURISDICTION AND CONTROL. ACCORDINGLY, THE LAND EMBRACED WITHIN THE RIGHT-OF-WAY TO THE NORTHERN PACIFIC RAILROAD CO. MAY NOT BE CONSIDERED AS ,WITHIN" AN INDIAN RESERVATION, UNDER THE STATUTE AND THE DECISION OF MAY 27, 1922, BUT THE GOVERNMENT'S PROPORTIONATE COST OF ANY HIGHWAY CONSTRUCTED OVER SUCH AREA IS FOR DETERMINATION UNDER THE GENERAL PROVISIONS OF THE CONTROLLING STATUTE.