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torneys and Indian tribes and the approval of payments made thereunder. The express language of this legislation, as well as its legislative history, show that it was intended that these provisions be complied with literally, and for this reason the Secretary may not delegate to the Commissioner the functions mentioned which are committed to the Secretary. Similar functions, however, which are committed to the Secretary by section 16 of the act of June 18, 1934 (48 Stat. 984), are merely veto powers given the Secretary under legislation designed to enlarge the scope of tribal responsibility, and these powers may be delegated to the Commissioner or Assistant Commissioner by the Secretary if he so desires. 59-189

The clerical and ministerial details which would be involved in the leasing and permitting of Indian lands are not prescribed by most of the leasing statutes. To the extent that they are prescribed, they may nevertheless be delegated to an Indian tribe, which for this purpose may be regarded as an instrumentality of the United States. The express statutory power of the Secretary of the Interior to establish tribal enterprises under appropriate regulations, which exists under the annual Appropriation Act, further supports such delegation.

59-329

The Indian Delegation Act (act of Aug. 8, 1946, 60 Stat. 939; 25 U.S.C. 1a), contemplates that the Secretary of the Interior will issue in regulation form various rules and standards which are to govern the administration of Indian affairs; and he cannot properly delegate to the Commissioner of Indian Affairs authority to issue regulations or authority to depart from or ignore the regulations issued by the Secretary of the Interior. 59-358

The Secretary cannot properly delegate to the Commissioner of Indian Affairs the authority to waive the limitation imposed by Order No. 420, as modified by Order No. 498 (25 CFR (Cumm. Supp.) 241.12a) (Revoked, 20 F.R. 617. Jan. 28, 1955; see also Part 121, CFR, 1958 Rev.) upon the sale of trust or restricted Indian lands and to approve the sale of such lands in individual cases which do not fall within any of the categories specified in the modified order as being appropriate for such approval.

59-358

If the Congress should extend the provisions of the reclamation laws to the State of Arkansas, and the Department should subsequently construct in Arkansas multiple-purpose projects under such laws, the Secretary of the Interior could properly assign to the Southwestern Power Administration the function of marketing any surplus electric power from such projects. 59-453

Under section 161 of the Revised Statutes, the head of a Department can, without specific congressional authorization, delegate to subordinate officials of the Department many functions which require the exercise of judgment or discretion.

59-453

The discretionary authority of the Secretary to delegate the function of marketing electric power from reclamation projects is not affected by the act of May 26, 1926 (44 Stat. 657) defining the scope of the position of the Commissioner of Reclamation, or by the act of Dec. 19, 1941 (55 Stat. 842) expressly authorizing the Secretary to delegate his powers and duties under the reclamation laws to specified officials of the Bureau of Reclamation.

59-453

Under section 161 of the Revised Statutes, the Secretary possesses broad discretionary authority to determine the extent to which his functions in connection with the marketing of electric power from reclamation projects shall be delegated and in selecting the officials or agencies of the Department to whom or to which the delegation shall be made. 59-453

The President properly delegated to the Secretary of the Interior the President's functions with respect to coordinating the activities of the several departments and other agencies of the Government as they relate to oil and gas matters, and the President's powers and functions in connection with the administration of the 59-552 Connally "Hot Oil" Act.

When a tribal constitution or charter provides that certain types of ordinances or resolutions shall be subject to review or approval by the Secretary of the Interior, the Secretary's function is delegable and personal consideration and action by 59-555 the Secretary is not required.

If the Secretary issues general regulations to guide the Commissioner of Indian Affairs in the exercise of the delegated authority, the Secretary has unfettered discretion in the matter of delegating to the Commissioner authority to act under the regulations in particular instances or situations which come within the scope of the regulations. 59-556

The Indian Delegation Act (48 Stat. 984) authorizes the Secretary to delegate to the Commissioner of Indian Affairs the power to review or approve tribal legislation. 59-556

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 Assistant Secretaries of the Interior. 59-556

The Secretary of the Interior is authorized by the Indian Delegation Act to delegate to the Commissioner of Indian Affairs the Secretary's power concerning the approval under section 2103, Revised Statutes, of contracts between unorganized Indian tribes and attorneys.

60-142

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Domestic Allotment Act, as modified by Reorganization Plan No. IV, for the performance of soil and moisture conservation activities. 60-437

III. EXTENT OF

Where the statute authorizes an Assistant Secretary of an executive department to perform such duties as may be assigned to him by the Secretary, he acts with full power equal to that of the Secretary within the scope of his assignment, but has no power beyond that prescribed; when acting as Secretary he is authorized to perform the duties of the head of the department. 52-230

The act of Feb. 10, 1927 (44 Stat. 1068), which authorized the heads of certain departments to designate, each for his own department, an employee thereof residing in Alaska to be ex-officio Commissioner for that Territory for the department from which he is selected makes no specific provision for the delegation of the appointive power, and an order issued by the Secretary of the Interior pursuant to that act, transferring the Reindeer Service from the Office of Education to the jurisdiction, control, and exercise of that official, does not include the power of appointment of employees in that service. 52-723

The discretionary authority of the Secretary to delegate the function of marketing electric power from reclamation projects is not affected by the act of May 26, 1926 (44 Stat. 657) defining the scope of the position of the Commissioner of Reclamation, or by the act of Dec. 19, 1941 (55 Stat. 842) expressly authorizing the Secretary to delegate his powers and duties under the reclamation laws to specified officials of the Bureau of Reclamation.

59-453

Delegations of authority by the head of an executive department must be kept within the framework of the particular department and can be made only to the officers and employees of that department, in the absence of an express authorization for the shifting of the responsibility elsewhere. 60-232

IV. REDELEGATIONS

The Secretary properly delegated to the Oil and Gas Division the task of assisting him in the discharge of the responsibilities

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Regulations of Nov. 27, 1928, taxation of entries within reclamation projects prior to issuance of final certificate, act of Apr. 21, 1928 (45 Stat. 439), Cir. No. 838 (49 L.D. 168) revoked (Cir. No. 1176). 52-511

Instructions of July 30, 1930, desert-land entries within abandoned reclamation projects under act of June 6, 1930 (46 Stat. 502). General reclamation circular, May 18, 1916 (45 L.D. 385), amended. (Cir. No. 1229).

53-151

Repayment of the purchase money paid in connection with a desert-land entry regularly allowed for land subject thereto and canceled for default is not authorized by the act of June 16, 1880 (21 Stat. 287) where the entry could have been completed by complying with the reclamation law

and no legal obstacle prevented its confirmation, nor can it be allowed under the act of Mar. 26, 1908 (35 Stat. 48) where the claim is barred by the limitation contained in the amendatory act of Dec. 11, 1919 (41 Stat. 366). Heirs of James Byrne (50 L.D. 161), J. M. Hudson (50 L.D. 297), and Olive M. Harrison (50 L.D. 418). 53-576 Instructions of Apr. 24, 1934, relief in desert-land entries, act of Feb. 14, 1934 (Cir. No. 1323). 54-429

The act of Mar. 28, 1908 (35 Stat. 52; 43 U.S.C. 324, 326, 333), invites the occupancy and reclamation of unsurveyed desert lands, and acceptance of the invitation initiates an interest in the lands. 59-110

The 90-day limitation in the act of Mar. 28, 1908 (35 Stat. 52), giving a preference right of entry to qualified persons who performed certain acts on unsurveyed lands before they are surveyed, is intended for the protection of the right of desertland claimants and homestead settlers as among themselves. In the absence of asserted adverse claims of desert-land reclamation or of homestead settlement, a desert-land claimant who, upon the filing of the plat of survey, fails to make timely assertion of his right of entry forfeits no rights and does not lose his lands because of a withdrawal not previously operative upon them. 59-111

Where a person takes possession of unsurveyed land and reclaims it, his right to make entry under the desert-land laws is governed by section 1 of the act of Mar. 28, 1908 (35 Stat. 52; 43 U.S.C., 1946 ed., 326). The right to make the entry must have been initiated prior to the withdrawal of the land from entry. 60-198

II. APPLICATIONS

Under the long-established rule of the Department, the quarter quarter section, or the fractional lot, is ordinarily the minimum unit of land for classification and disposal. Deviation from the rule is permitted only where no public interest is prejudiced and where it facilitates the administration of the public lands. 60-198

III. ASSIGNMENT

Recognition of an assignment by a qualified entryman who filed a desert-land application for lands then subject thereto and made the initial payment required by

law is not precluded by a suspension of the application pending determination as to whether the lands should be included within a reclamation project. 52-225

IV. CANCELLATION

A desert-land entry is not to be canceled for defects not appearing on the face of the record without notice to the entryman and without the holding of a hearing, if the entryman demands one. 61-172

Unentered public land designated by the Department as subject to the Smith Act carried with it a valid existing right in the Imperial Irrigation District to impose a lien against such land for its proportionate share of construction and operation and maintenance charges, with a view toward having such a lien satisfied by an applicant for entry as a condition precedent to entry. Because of the existence of this right, a subsequent first-form reclamation withdrawal did not operate to withdraw such land from public entry, as contemplated by the Smith Act; hence, the original allowance of the appellant's desert-land entry was correct and its subsequent cancellation improper. 61-437

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VI. CULTIVATION AND RECLAMATION Section 5 of the act of June 27, 1906 (34 Stat. 519), which provides that the time that a desert-land entryman is hindered or prevented from making improvements on or from reclaiming the lands in his entry by reason of the fact that the land has been within a reclamation withdrawal, shall not be computed in determining the period within which he must complete his entry, is not applicable where the method of irrigation is by the use of water to be procured from wells sunk on the land, and the failure to make timely reclamation is due solely to lack of funds. 53-21

A desert-land entryman who has met all the requirements which he could possibly meet and has his entry ready for irrigation, but who through no fault of his own

has been unable to effect reclamation as required by law because of his inability to obtain a sufficient water supply within the lifetime of the entry, or within any extension of time that could have been granted under existing law, may be permitted to purchase the land under the rellef act of Mar. 4, 1929 (45 Stat. 1548), notwithstanding that the land is within a first form withdrawal in connection with a reclamation project for which a water supply is to be provided. 53-644 One who takes possession of unreserved, unsurveyed desert land, who begins to reclaim it, and who is continuing his reclamation operations at the date of the inclusion of the land within a withdrawal, has initiated a valid claim upon which the withdrawal does not operate. The claim may be asserted by the filing of a proper desertland application as soon as the lands are surveyed, if at that time the claimant is in possession of the lands and is complying with the appropriate regulations. 59-110

VII. EXTENSION OF TIME

Settlement upon a tract of surveyed desert land prior to the filing of an application to make entry thereof will not confer a preferred status upon an entryman and the doctrine of relation cannot be invoked to bring such a claim within the remedial provisions of section 5 of the act of Mar. 4, 1915 (38 Stat. 1161). 52-62

Instructions of Apr. 19, 1929, relief of desert-land entrymen, act of Mar. 4, 1929 (45 Stat. 1548) (Cir. No. 1188). 52-618

Section 5 of the act of June 27, 1906 (34 Stat. 519), which provides that the time that a desert-land entryman is hindered or prevented from making improvements on or from reclaiming the lands in his entry by reason of the fact that the land has been within a reclamation withdrawal, shall not be computed in determining the period within which he must complete his entry, is not applicable where the method of irrigation is by the use of water to be procured from wells sunk on the land, and the failure to make timely reclamation is due solely to lack of funds. 53-21

The Land Department has no authority to grant extension of time for reclamation of the land embraced within a desert-land entry beyond the period authorized by the

act of Feb. 25, 1925 (43 Stat. 982). 53-21 Instructions of May 17, 1930, relief of desert-land entrymen in Chucawalla Valley, California, under act of Apr. 17, 1930 (46 Stat. 171). (Cir. No. 1223). 53-104

Regulations of Aug. 22, 1933, extensions of time for homestead and desert-land proofs (Cir. No. 1311, superseding Cirs. 1269 (May 20, 1932, 53 I.D. 663) and 1288 (Aug. 24, 1932, 54 I.D. 139).) 54-274 Instructions of Aug. 14, 1935, extensions for homestead and desert-land proofs under act of July 26, 1935 (49 Stat. 504). (Cir. No. 1365.) 55-320

VIII. LANDS SUBJECT TO

Desert-land and enlarged-homestead entries cannot be allowed on land withdrawn as a game refuge by an Executive order which reserved the land for the conservation and development of natural wildlife resources and for the protection and improvement of public grazing lands and natural forage resources. The withdrawn land has been segregated from the public domain and is not subject to private acquisition under the public land laws. 59-81

One who takes possession of unreserved, unsurveyed desert land, who begins to reclaim it, and who is continuing his reclamation operations at the date of the inclusion of the land within a withdrawal, has initiated a valid claim upon which the withdrawal does not operate. The claim may be asserted by the filing of a proper desert-land application as soon as the lands are surveyed, if at that time the claimant is in possession of the lands and is complying with the appropriate regulations. 59-110

Lands which are timbered are not enterable under the Desert-Land Act. 61-294 Unentered public land designated by the Department as subject to the Smith Act (39 Stat. 506) carried with it a valid exist. ing right in the Imperial Irrigation District to impose a lien against such land for its proportionate share of construction and operation and maintenance charges, with a view toward having such a lien satisfied by an applicant for entry as a condition precedent to entry. Because of the existence of this right, a subsequent first-form

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The Desert Land Act, passed Mar. 3, 1877 (19 Stat. 377), left with each State the right to determine for itself to what extent the rule of appropriation or the common law rule in respect to riparian rights should obtain; does not bind or purport to bind the States to any policy; and simply recognizes and gives sanction, insofar as the United States and its future grantees are concerned, to the State and local doctrine of appropriation, and seeks to remove what otherwise might be an impediment to its full and successful operation (California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142). 55-371

The Department rejected an application for a desert-land entry on the ground that the water conservation district on which the applicant relied as a source of water had been denied approval by the Department, but the applicant was allowed to apply for a hearing stating what she expected to prove. She filed a request for a hearing in which she said "that we expect to show that there is an ample water supply for the lands embraced in the exterior boundaries of the Arizona Water Conservation District." A special agent demurred to the request.

56-4

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