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A conveyance issued upon an Indian homestead allotment must be construed as to its legal force and effect in accord with the terms of the law under which it was granted and not by the terms of the patent itself. 52-367

One who contracts to acquire the title to land and subsequently conveys to a third party is estopped to deny that he had title at the time of the conveyance where the deed is passed upon the assumption of title in him and purports to convey that title. 52-411

While Sioux half-breed scrip is not assignable, yet the land located thereunder is alienable as soon as located and the holder of the scrip may give a valid power of attorney not only for the location of the land and for the erection of the improvements thereon but for its conveyance after location. 52-602

Request having been made by the ostensibly proper parties, the United States, by duly constituted agent, is warranted in executing a quitclaim deed to real property which, in 1794, with good title thereto, it sold to private parties, through its commissioners empowered to do so, and was paid in full, the deed, if executed and delivered, never being recorded, leaving record title to the property standing in the name of the United States.

54-319

Purchasers of land are charged with notice of all defects in title indicated by the recitals in the deeds in the chain of title. 58-579

An officer of the executive branch of the Government, in conveying a tract of Government land pursuant to an authorization or a directive from the Congress, cannot disregard any of the conditions which the Congress has imposed in the enabling legislation, because he is acting as the agent of the Congress and is not at liberty to substitute his judgment for that of the Congress. 60-211

When a statute authorizes and directs the Secretary of the Interior to convey a tract of Government land to a State "for and in consideration of $1," the Secretary of the Interior is required to collect $1 in connection with the conveyance. 60-211

II. INTEREST CONVEYED

The power, inherent in the tribe, to provide for the orderly distribution of the use and occupancy of tribal lands, does not, in view of the inhibitions of 25 U.S.C. 177, extend to the creation of vested enforceable interests in the individual members of the tribe. Since such a vested enforceable interest would be created by a conveyance for a consideration by the tribe to an individual member of possessory title in tribal lands with the right to transmit that title by descent, devise, or conveyance inter vivos, such a conveyance may not be made in the absence of clear congressional authority therefor. 58-218

III. RESERVATIONS AND EXCEPTIONS

Improvements made upon certain land by a Sioux half-breed cannot be used as a basis for the location of other land under scrip assigned by the half-breed. 52-602

The mineral reservation contained in the last proviso to the act of Mar. 8, 1922 (42 Stat. 414) is a covenant running with the land, and is applicable to lands within an abandoned or forfeited railroad rightof-way that have become vested in a municipality under one of the provisions of that act, notwithstanding that deeds executed by the municipality conveying these lands fail to make such reservation.

52-743

Where a deed of conveyance recited that the grantors (the Choctaw and Chickasaw Nations) conveyed to the grantee a certain tract "less 6.26 acres occupied as a rightof-way" by a certain railway, and the railway company failed to occupy the tract thus excepted, title to the 6.26 acres did not pass to the grantee under the conveyance. 55-456

COOPERATIVE AGREEMENTS

An agreement between the Soil Erosion Service of the United States and a State forest commission whereby, for a consideration, the latter is to produce and supply trees for the former, possesses the essential elements of a valid contract. 54-408

The Soil Erosion Service of the United States has authority to enter into an agreement with a State administrative institution for the supplying of material needed in connection with the checking of soil erosion. 54-408

A non-Government agency engaged in research under a cooperative agreement with the Bureau of Mines is not an instrumentality of the Federal Government, so as to exempt it from nondiscriminatory sales or use taxes imposed by a State. Such taxes are not a direct burden on the Federal Government even though the cost of a purchase is borne by the Government.

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assertion that it was pursued for that purpose being insufficent, even though good faith in its pursuit be conceded. 52-283 The Land Department has no means of enforcing its decisions and restoring to an entryman in whose favor it has decided possession to the land unlawfully detained from him by another, but his remedy is in the local courts. 52-519

In the absence of a statutory provision to the contrary, an action seeking to obtain a mandamus against an officer of the Government abates on his death or retirement from office, and his successor cannot be brought in by amendment to the proceeding or on order for the substitution of the parties, even though the latter consents to have the action revived against him.

53-232

Section 11 of the act of Feb. 13, 1925 (43 Stat. 936) affords a remedy in a suit brought in a Federal court against a public officer which would otherwise abate upon his death or separation from office by permitting substitution of his successor upon satisfactory showing to the court within six months that there is a substantial need for continuing and maintaining the cause. 53-232

The provision in subsection (c) of section 11 of the act of Feb. 13, 1925 (43 Stat. 936), requiring that before substitution is permitted in a suit the officer affected must be given reasonable notice of the application therefor and be accorded an opportunity to present any objection he may have, contemplates that the duty of substitution rests upon the original plaintiff no matter what his position may be in an appellate court. 53-232

It is solely the province of the courts to determine the constitutionality of an act of Congress, and until an act is judicially held to be unconstitutional it is the duty of the executive officers of the Government to 53-427 administer the law as written.

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Park Service, and the Fish and Wildlife Service are all interested in the Columbia River Reservoir area, its administration is vested in the Secretary of the Interior rather than in any particular bureau, and the Secretary, by virtue of section 161 of the Revised Statutes (now 5 U.S.C. 22), may select any one or more of the interested agencies to administer any part of the reservoir area. 59-149

Although the President, by virtue of his office and constitutional powers, exercises general supervision over the departments and independent establishments which comprise the executive branch of the Government, he is not required to exercise his supervisory and coordinating responsibilities personally, but may delegate functions to the heads of the various departments or to other officials in the executive branch of the Government.

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Under general principles governing the delegability of Secretarial powers, the function of reviewing or approving tribal legislation can be delegated to the Commissioner of Indian Affairs as well as to the Under Secretary and the Asssistant Secretaries of the Interior. 59-556

The statutes delegating to the Secretary of the Interior the authority to make rules and regulations with respect to the use and management of the national parks do not constitute an unconstitutional delegation of legislative power to an executive officer of the Government. 60-169

Functions vested in subordinate officers of the Department or in departmental employees or agencies by legislation enacted after May 24, 1950, are not affected by section 1(a) of Reorganization Plan No. 3 of 1950. 60-449

II. AUTHORITY TO MAKE The power of appointment lodged in the head of a department by act of Congress cannot be delegated to a subordinate official without clear and specific legislative

authority therefor, and the only specific authority in that respect conferred upon the Secretary of the Interior is that contained in the act of May 22, 1926 (44 Stat. 620), which empowers that officer to delegate the appointive power to supervisory officers to make temporary or emergency appointments of persons for duty in the field, subject to later confirmation thereof by him. 52-723

The general rule that an agent in whom is reposed trust or confidence, or who is required to exercise discretion or judgment, is not authorized to entrust the performance of his duties to another without the consent of his principal, is subject to the exception that he may delegate to another the execution of acts that are solely clerical, mechanical, or ministerial in their nature after he has exercised his discretion and determined the propriety of the act. 53-514

The duty imposed upon the Secretary of the Interior by section 4 of the act of June 7, 1924 (43 Stat. 475), to approve the appraisal and purchase price of any tract of land on the San Carlos reclamation project sold prior to the time when more than one-half of the construction charge remains unpaid, cannot be delegated to another, but that officer may delegate to a subordinate a mere ministerial or clerical act involved in the approval of the sale. 53-515

The transfer of insane persons of the Army, Navy, or Marine Corps, committed to St. Elizabeths Hospital by the Secretary of War or the Secretary of the Navy pursuant to section 4843, Revised Statutes, to the rolls of the Veterans' Administration does not affect the authority of the hospital to continue to hold such patients until released or discharged by the committing officer. 53-545

Transfer of insane persons of the Army, Navy, or Marine Corps, confined in St. Elizabeths Hospital to the rolls of the Veterans' Administration is one of the functions, powers and duties which the Administrator of Veterans' Affairs is authorized to delegate to the Medical Director of that organization by section 5 of the World War Veterans' Act of June 7, 1924 (43 Stat. 607), as amended by the act of July 3, 1930 (46 Stat. 1016).

53-545

Unless "personal" action by the Secretary or Acting Secretary is specifically required, the Secretary by appropriate order may prescribe and delegate to the Under Secretary, the First Assistant Secretary and the Assistant Secretary the authority to perform any of his duties. So long as such delegated authority remains unrevoked, any action done pursuant thereto is of as much effect as though done personally by the Secretary or Acting Secretary.

57-262

The Secretary, as the head of the Department of the Interior, has the general power of delegating those functions that fall within the province of the various bureaus of the Department to the respective heads of such bureaus, even though the discharge of such functions involves the exercise of judgment or discretion. This power is derived not only from section 161 of the Revised Statutes but also from the multifarious character of the duties of the Secretary, and the relationship between the Secretary and the heads of the bureaus. The vesting of a power in the "Secretary" rather than the "Department" of the Interior is usually not significant since these terms are as a rule used interchangeably in legislation and legisla tive debate. 58-499

The Secretary of the Interior may, subject to existing rules and regulations and the decisions and practices of the Department, delegate to the Commissioner of Indian Affairs his powers in connection with the alienation of Indian lands. Undue weight should not be given to variations of phraseology in the relevant statutes since the administration of Indian property should be considered as a single activity dominated by common conceptions of policy in particular phases of its history. The debates concerning the relevant legislation and the size of the subsequent appropriations to carry it out reveal a full awareness on the part of Congress that the real decisions as to the alienation of Indian property were made in the Indian Office, and that they were departmental rather than personal. Although some of the early statutes require the Secretary's "approval," such a provision should be regarded only as equivalent to the requirement that the action to be taken should be

left to the Secretary's discretion—a form of provision which does not in itself prevent delegation by the head of a department. Although the act of Mar. 1, 1907 (34 Stat. 1015, 1018; 25 U.S.C. 405), and section 1 of the act of May 29, 1908 (35 Stat. 444; 25 U.S.C. 404), entrust the management of the proceeds derived from any disposition to the Commissioner of Indian Affairs, it would be misleading to imply a presumption against delegation of a function entrusted to the Secretary merely because another has been entrusted to the Commissioner, especially since the separate allocation of each of the functions does not prevent the Secretary from exercising both, and its only practical effect is to enable the Commissioner to act without awaiting instructions from the Secretary. It is significant that section 1 of the final act of June 25, 1910 (36 Stat. 855; 25 U.S.C. 372), contains the provision: "All sales of lands alloted to Indians authorized by any other Act shall be made under such rules and regulations and upon such terms as the Secretary of the Interior may prescribe," a form of provision which clearly supports a power of delegation. While the alienation of restricted land is a matter of more than routine importance, and the Indian is a ward of the United States, these considerations go only to the policy of delegation. If regarded as decisive in determining the legal power to delegate, they would prevent any delegation in the field of Indian affairs. 58-499

The Secretary of the Interior may delegate to the Commissioner of Indian Affairs authority to approve advance authorizations for the sale of restricted lands pledged to tribes as security for loans made to Indian chartered corporations. While it is true that the execution of the form, which cannot be revoked by the Indian debtor, creates in effect an encumbrance on restricted land, it is in favor of the United States against whom the restrictions do not run and in any event the ultimate approval of the conveyance would constitute necessarily an approval of a prior encumbrance. The delegation could, therefore, be made even if the approval of the conveyance were not delegable.

58-500

The Secretary of the Interior may delegate to the Commissioner of Indian Affairs authority to approve "Receipt and Release Agreements" settling claims of damage to alloted lands of the Five Civilized Tribes. Whatever the precise nature of these agreements, they are contracts affecting restricted land which are subject to approval by the Secretary under the terms of the statutes governing the lands of the Five Civilized Tribes. Since the Secretary may delegate authority to remove restrictions, he may obviously also delegate the authority to approve an agreement which may not amount to a transfer of an interest in the restricted lands. No substantial risk of litigation would moreover be involved in such delegation.

58-500

Under sections 1 and 2 of the act of June 25, 1910 (36 Stat. 855, 856; 25 U.S.C. 372 and 373), and the act of Dec. 24, 1942 (56 Stat. 1080), the Secretary of the Interior may, subject to appeal to himself, delegate to the Commissioner of Indian Affairs power to determine heirs and approve wills, under applicable regulations, which prescribe the governing factors and the procedure in minute detail. While this function of the Secretary is quasi-judicial, it has little or no discretionary aspect. The original requirement of section 2 of the act of June 25, 1910, that wills must be approved by the Commissioner of Indian Affairs, as well as by the Secretary of the Interior, was repealed by the act of Feb. 14, 1913 (37 Stat. 678, 25 U.S.C. 373), and the repeal must be regarded as deliberate. Moreover, the motive originally may have been not so much to secure the personal approval of both the Commissioner and the Secretary, but to save the time of the latter by permitting the former to disapprove the will, so that no further action by the Secretary would be necessary. 58-500

Because the requests for further delegation are not clear, no final opinion is expressed concerning (1) correspondence involving trespass, grazing privileges, hunting and fishing rights; (2) leases and permits on tribal lands except where tribal constitutions or statutes require departmental approval; (3) approvals and denials of extensions of time within which

timber must be removed, and timber sales and contracts for the cutting and delivery of logs on the Menominee Reservation; and (4) claims for enrollment rights in Indian tribes. 58-501

The Secretary of the Interior may delegate to the Commissioner of Indian Affairs authorization for the expenditure of tribal industrial assistance funds for tribal enterprises. Such delegation has in fact already been made under the terms of the amendments to Part 29 of the Credit Regulations approved on July 2, 1943. The delegation may be made because the applicable legislation does not require approval by the Secretary; it required only that the regulations shall be Secretarially prescribed.

58-501

The Secretary of the Interior may delegate to the Commissioner of Indian Affairs the approval of authorizations for travel which under the existing orders of the Secretary require his approval. The reason for this conclusion is the same as that stated in Solicitor's memorandum M-33180 of June 14, 1943, which held that such a delegation could be made because the Standardized Government Travel Regulations permitted delegation, and such delegation could be made by the Secretary to the head of a bureau in conformity with the legislation governing the relationship of the Secretary to the bureau. 58-501

The Secretary of the Interior may delegate to the Commissioner of Indian Affairs authority to make contracts pursuant to the Johnson-O'Malley Act of Apr. 16, 1934, as amended (25 U.S.C. 452-455). The fact that the making of the contract involved discretionary elements does not prevent delegation, especially since the Secretary of the Interior is given wide rule-making authority under the statute. 58-501

The Secretary may delegate to the Commissioner of Indian Affairs the function of approving applications under the provisions of section 5 of the act of Apr. 18, 1912 (37 Stat. 87) (funds of Osage allottees). 58-737

Sections 2103-2106 of the Revised Statutes (25 U.S.C. 81-84, 1952 ed.) provide, among other things, for dual action by the Secretary of the Interior and the Commissioner of Indian Affairs in connection with the approval of contracts between at

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