laws. The Bureau of Indian Affairs would retain jurisdiction over such claims only to the extent of administering any proceeds paid to the Government by the mining claimants, such proceeds to be deposited and expended for the benefit of the Indians. We are attaching a memorandum brief which reviews the various statutes and decisions relating to the Colville Indian Reservation and an analysis to support the above conclusion. The land office manager's memorandum of July 27 is returned herewith. JOHN L. BISHOP, Assistant Regional Solicitor MINERAL RIGHTS ON LANDS WITHIN THE COLVILLE INDIAN RESERVATION OFFICE OF THE REGIONAL SOLICITOR, Portland, October 15,1956. In considering the question raised by the area administrator, Bureau of Land Management, in his memorandum of July 31, relating to mineral rights on lands patented under the Stock-Raising Homestead Act within the boundaries of the Colville Indian Reservation, it was necessary to review the history of the development of the reservation and the applicability of the public land laws to the lands within the reservation. The results of the review are recorded herein for reference purposes in connection with future questions which may arise. HISTORY The original Colville Reservation was carved from the public domain by Executive order of July 2, 1872. As the result of an agreement on May 9, 1891, between the representatives of the tribes and the United States, which provided for the cession by the Indians of the northern half of the reservation and the relinquishment of their right, title, and interest, Congress passed the act of July 1, 1892 (27 Stat. 62), restoring to the public domain the northern half of the reservation. The pertinent part of that act reads as follows: Be it enacted ***, That subject to the reservations and allotment of lands in severalty to the individual members of the Indians of the Colville Reservation in the State of Washington herein provided for, all the following described tract or portion of said Colville Reservation, namely: (description of the northern half) *the same being a portion of the Colville Indian Reservation created by executive order dated July second, eighteen hundred and seventytwo, be, and is hereby, vacated and restored to the public domain, notwithstanding any executive order or other proceeding whereby the same was set apart as a reservation for any Indians or bands of Indians, and the same shall be open to settlement and entry by the proclamation of the President of the United States and shall be disposed of under the general laws applicable to the disposition of public lands in the State of Washington. * SEC. 3. That each entryman under the homestead laws shall, within five years from the date of his original entry and before receiving a final certificate for the land covered by his entry, pay to the United States for the land so taken by him, in addition to fees provided by law, the sum of one dollar and fifty cents per acre, one third of which shall be paid within two years after the date of the original entry; but the rights of honorably discharged Union soldiers and sailors, as defined and described in sections twenty-three hundred and four and twenty three hundred and five of the Revised Statutes of the United States, shall not be abridged, except as to the sum to be paid as aforesaid. SEC. 4. That each and every Indian now residing upon the portion of the Colville Indian Reservation hereby vacated and restored to the public domain. and who is so entitled to reside thereon, shall be entitled to select from said vacated portion eighty acres of land, which shall be allotted to each Indian in severalty. It should be noted that, while the northern half was restored to the public domain and was to be opened to entry by Presidential proclamation, certain allotments were first to be made to Indians residing upon that portion of the original reservation after which the balance of the land was to be opened to entry, but each entryman under the homestead laws would be obligated to pay the sum of $1.50 per acre, in addition to the usual fees, which was to be placed in trust for the benefit of the Indians. Apparently the northern half was not opened to mineral entry pursuant to the 1892 act inasmuch as Congress subsequently passed the act of February 20, 1896 (29 Stat. 9), which opened the northern half to mineral entry without the requirement of further Executive action. That act reads in pertinent part: Be it enacted *** That the mineral-land laws of the United States be, and are hereby, extended so as to apply to all lands embraced within the Colville Indian Reservation, namely, (description of the northern half only) It is peculiar that the 1896 act still referred to the northern half lands as being embraced within the Colville Indian Reservation, when the 1892 act had previously restored that portion to the public domain. The next congressional action was the act of July 1, 1898 (30 Stat. 593), which opened to mineral entry the mineral lands in the rest of the reservation, with certain exceptions. That act reads in part: That the mineral lands only in the Colville Indian Reservation, in the State of Washington, shall be subject to entry under the laws of the United States in relation to the entry of mineral lands: Provided, That lands allotted to the Indians or used by the Government for any purpose or by any school shall not be subject to entry under this provision. The right is hereby granted to cut timber for mining and domestic purposes ***, from that portion of the Colville Indian Reservation ***, which was vacated and restored to the public domain by the Act of July first, eighteen hundred and ninety-two, * On December 1, 1905, a disputed majority of the Colville tribal members by agreement with the Government relinquished all right, title, and interest of the Indians to the lands embraced within the reduced or southern portion of the reservation provided that allotments of lands of 80 acres each were to be made to every man, woman, and child belonging to or having tribal rights on the reservation. This agreement also contained the condition that the Indians would be paid $1,500,000 in full satisfaction of the 1891 agreement pursuant to which the 1892 act restored the northern half lands to the public domain. We come next to the act of March 22, 1906 (34 Stat. 80), which provided for the sale and disposition of unallotted lands in the diminished or southern portion of the reservation. That act reads in pertinent part as follows: The Secretary of the Interior is authorized and directed, as hereinafter provided, to sell or dispose of unallotted lands in the diminished Colville Indian Reservation, in the State of Washington: SEC. 3. That upon the completion of said allotments to said Indians the residue or surplus lands-that is, lands not allotted or reserved for Indian school, agency, or other purposes-of the said diminished Colville Indian Reservation, shall be classified under the direction of the Secretary of the Interior as irrigable lands, grazing lands, timber lands, mineral lands, or arid lands, and shall be appraised under their appropriate classes by legal subdivisions, with the exception of the lands classed as mineral lands, which need not be appraised, and which shall be disposed of under the mining laws of the United States, and, upon completion of the classification and appraisement, such surplus lands shall be open to settlement and entry under the provisions of the homestead laws at not less than their appraised value in addition to the fees and commissions now prescribed by law for the disposition of lands of the value of one dollar and twenty-five cents per acre by proclamation of the President, which proclamation shall prescribe the manner in which these lands shall be settled upon, occupied, and entered by persons entitled to make entry thereof: Provided, ***: Provided further, That the lands remaining undisposed of at the expiration of five years from the opening of the said lands to entry shall be sold to the highest bidder for cash, at not less than one dollar per acre, under rules and regulations, to be prescribed by the Secretary of the Interior. *** SEC. 4. That the said lands shall be opened to settlement and entry by proclamation of the President, which proclamation shall prescribe the time when and the manner in which these lands may be settled upon, occupied, and entered by persons entitled to make entry thereof, and no person shall be permitted to settle upon, occupy, and enter any of said lands except as prescribed in such proclamation: Provided, That *** SEC. 6. That the proceeds not including fees and commissions arising from the sales and disposition of the lands aforesaid, including the sums paid for mineral and town-site lands, shall be, after deducting the expenses incurred from time to time in connection with the allotment, appraisement, and sales, and surveys, herein provided, deposited in the Treasury of the United States to the credit of the Colville and Confederated tribes of Indians belonging and having tribal rights on the Colville Indian Reservation, in the State of Washington, and shall be expended for their benefit, under the direction of the Secretary of the Interior, * SEC. 9. That nothing in this Act contained shall be construed to bind the United States to find purchasers for any of said lands, it being the purpose of this Act merely to have the United States to act as trustee for said Indians in the disposition and sales of said lands and to expend or pay over to them the net proceeds derived from the sales as herein provided. According to the 1906 act the Indian allotments and reservations for other purposes were to be created and the residue or surplus lands were to be classified as irrigable, grazing, timber, mineral, or arid lands, after which they were to be opened to settlement and entry by proclamation of the President. Apparently the mineral lands were open to mineral entry immediately upon their classification as such and did not require a Presidential proclamation. This appears to be a recognition of the mineral entry rights already granted by the 1898 act. Pursuant to the 1906 act, the President by proclamation of May 3, 1916 (39 Stat. 1778), declared the nonmineral, unallotted, and unreserved lands open to entry and settlement under the general provisions of the homestead laws. The proclamation stated: I, Woodrow Wilson, President of the United States of America, by virtue of the power and authority vested in me by the Act of Congress approved March 22, 1906 (34 Stat. L. 80), do hereby prescribe, proclaim, and make known, that all the nonmineral, unallotted, and unreserved lands within the diminished Colville Indian Reservation, in the State of Washington, classified as irrigable lands, grazing lands, or arid lands, shall be disposed of under the general provisions of the homestead laws of the United States and of the said A Congress, and shall be opened to settlement and entry and settled upon, occupied, and entered only in the manner herein prescribed: Provided, That all lands classified as timber or mineral, all lands designated for irrigation by the Government, and all lands within the following townships and parts of townships shall not be disposed of under this proclamation: The next significant legislation is the act of December 29, 1916 (39 Stat. 862), commonly known as the Stock-Raising Homestead Act. While this act is not directly related to the development of the history of the Colville Indian Reservation, it is in order to note here because under its operation a distinctive property status was created within the bounds of the reservation; that is, a homestead entry under the act separated the land surface from the minerals with the minerals being reserved to the Government. This reservation of minerals in the Government created the problem of administration and disposition of the mineral rights. The applicable parts of the 1916 act read: Be it enacted ***, That from and after the passage of this Act it shall be lawful for any person qualified to make entry under the homestead laws of the United States to make a stock-raising homestead entry for not exceeding six hundred and forty acres of unappropriated unreserved public land in reasonably compact form: Provided, however, That the land so entered shall theretofore have been designated by the Secretary of the Interior as "stock-raising lands." SEC. 2. That the Secretary of the Interior is hereby authorized, on application or otherwise, to designate as stock-raising lands subject to entry under this Act lands the surface of which is, in his opinion, chiefly valuable for grazing and raising forage crops, do not contain merchantable timber, are not susceptible of irrigation from any known source of water supply, and are of such character that six hundred and forty acres are reasonably required for the support of a family: *** SEC. 9. That all entries made and patents issued under the provisions of this Act shall be subject to and contain a reservation to the United States of all the coal and other minerals in the lands so entered and patented, together with the right to prospect for, mine, and remove the same. The coal and other mineral deposits in such lands shall be subject to disposal by the United States in accordance with the provisions of the coal and mineral land laws in force at the time of such disposal. Any person qualified to locate and enter the coal or other mineral deposits, or having the right to mine and remove the same under the laws of the United States, shall have the right at all times to enter upon the lands entered or patented, as provided by this Act, for the purpose of prospecting for coal or other mineral therein, provided he shall not injure, damage, or destroy the permanent improvements of the entryman or patentee, and shall be liable to and shall compensate the entryman or patentee for all damages to the crops on such lands by reason of such prospecting. Any person who has acquired from the United States the coal or other mineral deposits in any such land, or the right to mine and remove the same, may reenter and occupy so much of the surface thereof as may be required for all purposes reasonably incident to the mining or removal of the coal or other minerals: first, upon securing the written consent or waiver of the homestead entryman or patentee; second, upon payment of the damages to crops or other tangible improvements to the owner thereof, where agreement may be had as to the amount thereof; or, third, in lieu of either of the foregoing provisions, upon the execution of a good and sufficient bond or undertaking to the United States for the use and benefit of the entryman or owner of the land, to secure the payment of such damages to the crops or tangible improvement of the entryman or owner, as may be determined and fixed in an action brought upon the bond or undertaking in a court of competent jurisdiction against the principal and sureties thereon, such bond or undertaking to be in form and in accordance with rules and regulations prescribed by the Secretary of the Interior and to be filed with and approved by the register and receiver of the local land office of the district wherein the land is situate, subject to appeal to the Commissioner of the General Land Office: Provided, That all patents issued for the coal or other mineral deposits herein reserved shall contain appropriate notations declaring them to be subject to the provisions of this Act with reference to the disposition, occupancy, and use of the land as permitted to an entryman under this Act. Another act of importance is the act of February 27, 1917 (39 Stat. 944; 30 U. S. C. 86-89), dealing with coal lands. That act reads as follows: Be it enacted ***, That in any Indian reservation heretofore or hereafter opened to settlement and entry pursuant to a classification of the surplus lands therein as mineral and nonmineral, such surplus lands not otherwise reserved or disposed of, which have been or may be withdrawn or classified as coal lands or are valuable for coal deposits, shall be subject to the same disposition as is or may be prescribed by law for the nonmineral lands in such reservation whenever proper application shall be made with a view of obtaining title to such lands, with a reservation to the United States of the coal deposits therein and of the right to prospect for, mine, and remove the same: Provided, That such surplus lands, prior to any disposition hereunder, shall be exmained, separated into classes the same as are the nonmineral lands in such reservations, and appraised as to their value, exclusive of the coal deposits therein, under such rules and regulations as shall be prescribed by the Secretary of the Interior for that purpose. SEC. 3. That if the coal-land laws have been or shall be extended over lands applied for, entered, or patented hereunder the coal deposits therein shall be subject to disposal by the United States in accordance with the provisions of the coal-land laws in force at the time of such disposal. *** SEC. 4. That the net proceeds derived from the sale and entry of such surplus lands in conformity with the provisions of this Act shall be paid into the Treasury of the United States to the credit of the same fund under the same conditions and limitations as are or may be prescribed by law for the disposition of the proceeds arising from the disposal of other surplus lands in such Indian reservation: Provided, That the provisions of this Act shall not apply to the lands of the Five Civilized Tribes of Indians in Oklahoma. This act opened to homestead entry the surplus lands classified as coal lands within the reservation, with the coal being reserved in the Government to be disposed of in accordance with the provisions of the coal-land laws. By the act of May 11, 1938 (52 Stat. 347; 25 U. S. C. 394), authority was given to lease unallotted lands within any Indian reservation for mining purposes. That act reads as follows: Be it enacted ** That hereafter unallotted lands within any Indian reservation or lands owned by any tribe, * * * under Federal jurisdiction, except those hereinafter specifically excepted from the provisions of this Act (Colville Reservation not excepted) may, with the approval of the Secretary of the Interior, be leased for mining purposes, by authority of the tribal council or other authorized spokesman for such Indians, for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities. SEC. 5. That the Secretary of the Interior may, in his discretion, authorize superintendents or other officials in the Indian Service to approve leases for oil, gas, or other mining purposes covering any restricted Indian lands, tribal or allotted. It appears to us that the minerals reserved in the Government by virtue of the stockraising homestead entries would constitute such lands as are subject to the 1938 act. The next legislation of note is the act of June 18, 1934 (48 Stat. 984; 25 U. S. C. 461 et seq.), commonly known as the Indian Reorganization Act. Portions of that act read as follows: Be it enacted ***, That hereafter no land of any Indian reservation, created or set apart by treaty or agreement with the Indians, Act of Congress, Executive order, purchase or otherwise, shall be allotted in severalty to any Indian. * SEC. 3. The Secretary of the Interior, if he shall find it to be in the public interest, is hereby authorized to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened, or authorized to be opened, |