timber from any of the lands within the Minnesota National Forest are required to be placed to the credit of the Chippewa Indians of Minnesota.

DEPARTMENT OF JUSTICE,

January 24, 1917.

SIR: I have the honor to respond to the request contained in your letter of August 2, 1916, for an opinion upon certain questions relating to the administration of the Minnesota National Forest.

The lands within this national forest are a portion of the lands ceded to the United States by the various tribes or bands of Chippewa Indians in Minnesota as the result of an agreement negotiated with them by a Federal commission, approved by the President March 4, 1890 (H. Ex. Doc. No. 247, 51st Cong., 1st sess.), pursuant to the act of January 14, 1889 (25 Stat. 642).

The act of 1889 declared that the cession so obtained should be "for the purposes and upon the terms in this act provided" (sec. 1). The act provided that all of the ceded lands should be classified either as "pine lands" or as "agricultural lands" (sec. 4), that the pine lands should be sold in 40-acre tracts at public auction to the highest bidder or at private sale for their appraised value (sec. 5), that the agricultural lands should be sold to homestead settlers at $1.25 per acre (sec. 6), and that all moneys accruing from such sales, after deducting the expenses incurred in carrying out the provisions of the act, should be "placed in the Treasury of the United States to the credit of all the Chippewa Indians in the State of Minnesota as a permanent fund" to "draw interest at the rate of 5 per centum per annum (sec. 7).

By way of amendment to the act of 1889 the act of June 27, 1902 (32 Stat. 400), provided for sale by the Secretary of the Interior of "all the merchantable pine timber, whether the same be green or dead, standing or fallen, now on such pine lands," and for sale of the cut-over pine lands as agricultural lands; all such sales of timber and land to be subject to the following provisions:

For "the purpose of reforestation" there was reserved from sale" 5 per centum of the pine timber" on 200,000 acres

of the pine lands, to be selected as "forestry lands" by the Forester of the Department of Agriculture with the approval of the Secretary of the Interior, the lands so selected, upon removal of the other 95 per centum of the timber, forthwith to "become and be a part of the forest reserve," to be administered the same as other forest reserves, the Forester to "have power at all times to patrol and protect said lands and forests."

In similar manner 10 sections were required to be selected "in lots not less than 320 acres each in contiguous areas." These tracts were reserved from sale both as to the land and the timber thereon, but they were not designated as "forestry lands." The islands in Cass Lake and Leech Lake, not less than 160 acres at the extremity of Sugar Point, on Leech Lake, and Pine Point Peninsula approximating 7,000 acres, were reserved both as to land and timber "to remain as Indian land under the control of the Department of the Interior." Of the agricultural lands there were also reserved from sale those within or contiguous to the "forestry lands" not to exceed 25,000 acres to be designated by the Forester and to "become and be a part of the forest reserve." No provision was made for compensation to the Indians for the land or timber so reserved from sale.

The act of February 1, 1905 (33 Stat. 628), transferred from the Secretary of the Interior to the Secretary of Agriculture the control and administration of forest reserves.

The act of May 23, 1908 (35 Stat. 268), amending the acts of 1889 and 1902, created the Minnesota National Forest out of the "forestry lands" selected and reserved under the act of 1902, describing it by metes and bounds and also specifically including the 10 sections which had been selected by the Forester, all the islands in Cass Lake, the 160 acres at the extremity of Sugar Point, and the Pine Point Peninsula.

By section 2 of this act the Secretary of the Interior was authorized "to proceed with the sale of the merchantable pine timber upon the above described land outside of said 10 sections and said islands and points, in conformity

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with" the act of 1902,"reserving 10 per centum of such timber from sale" to be designated by the Forester; "and as to the timber upon said 10 sections and said islands and points," the Forester was authorized, under rules and regulations prescribed by him "to sell and dispose of so much of the standing timber thereon as he may deem wise and advisable in the conduct of a national forest."

Following these provisions in the same section, the act required that a commission "shall at once be appointed" and "shall proceed forthwith" to appraise the value of the 5 per centum of timber reserved from sale by the act of 1902, the 10 per centum to be reserved under this act, and the timber upon said 10 sections and upon the unallotted land on said islands and points; to ascertain the acreage of the land covered by this act; and to the estimated value of the reserved timber to add an amount equal to $1.25 for each and every such acre; and the total amount, when approved by the President, was required to be certified to the Secretary of the Treasury and placed to the credit of the Chippewa Indians in Minnesota as a part of the permanent fund of said Indians provided for in the act of 1889.

Section 5 required "that all moneys received from the sale of timber from any of the lands set aside by this act for a national forest, prior to the appraisal herein provided for, including all moneys received for timber under sales made by the Secretary of the Interior, as authorized by existing laws and section 2 of this act, shall be placed to the credit of the Chippewa Indians in the State of Minnesota," and "after said appraisal the national forest hereby created, as above described, shall be subject to all general laws and regulations from time to time governing national forests, so far as said laws and regulations may be applicable thereto."

The commission provided for in the act of 1908 has never been appointed, nor has appraisal of the reserved timber, ascertainment of acreage of the reserved land, or adjustment of the amount due the Indians for such timber and land ever been made.

A demand has arisen for certain species of timber on these forest lands other than merchantable pine. A heavy

windstorm has blown down large quantities of all species of the timber on all parts of the forest reserve, estimated at between 2,000,000 and 3,000,000 feet board measure. This down timber is deteriorating and unless sold will become a total loss.

Differences having arisen between your Department and the Interior Department respecting the jurisdiction of the departments to effect necessary sales of this down timber and desirable sales of other than pine timber, and respecting the application of the proceeds of such sales, you have submitted for my opinion the following questions, together with memoranda from the law officers of both departments:

"1. Is the Secretary of Agriculture authorized to sell standing timber, of species other than that covered by the term 'merchantable pine timber,' as used in the act of 1908, not within the ten sections, islands, or points?

"2. Is the Secretary of Agriculture, or the Secretary of the Interior, authorized to sell down 'merchantable pine timber' other than that upon the ten sections, islands, and points, or that reserved under the five and ten per cent provisions?

"3. Is the Secretary of Agriculture authorized to sel the down 'merchantable pine timber' reserved under the five and ten per cent provisions, and the down timber of any species on the ten sections, islands, and points?

"4. What disposition is to be made of the moneys received from the sale of each of the above classes of timber?"

1. So far as concerns the power of the Secretary of Agriculture to sell timber of any species or condition on any part of this national forest, there is no distinction in the act of 1908 between the lands outside and those inside the 10 sections, islands, and points, except the authority granted to the Secretary of the Interior to sell a certain percentage of the merchantable pine within the outside area. With this exception, all the lands within the national forest by its creation were placed under the jurisdiction of the Department of Agriculture (act of Feb. 1, 1905, 33 Stat. 628), and no express grant of authority to sell timber in the ordinary course of the conduct of a national forest was necessary.

The reason for the provision in section 2 authorizing the Forester "to sell and dispose of so much of the standing timber" on the 10 sections and on the islands and points

as he may deem wise and desirable in the conduct of a national forest" evidently was intended only to except this area more clearly from the authority of the Secretary of the Interior, just previously granted, to sell 90 per cent of the merchantable pine on other parts of the forest reserve. It is not, therefore, to be taken as intended to exclude the general authority of the Department of Agriculture to sell timber outside the 10 sections, islands, and points, but rather as an affirmance of such authority, which is to be taken as granted by the creation of the national forest, and from which is excepted only the percentage of merchantable pine authorized to be sold by the Secretary of the Interior.

The provision of section 5 making this forest "subject to all general laws and regulations from time to time governing national forests, so far as said laws and regulations may be applicable," after the appraisal of the timber reserved for forestry purposes, does not postpone the operation of the forestry laws and regulations, except such as relate to the application of the proceeds of timber sales. As will be more fully shown in the discussion of question 4, the sole purpose of this appraisal was to credit the Indians with the value of the reserved timber, in fulfillment of the Government's obligation under the act of 1889, after which. but not before, the forestry laws and regulations relating to the proceeds of timber sales could properly apply.

I therefore answer to the first question that the Secretary of Argiculture may sell any timber, whether standing or down, of species other than merchantable pine, on these forestry lands outside the 10 sections and the islands and points, in conformity with the general forestry laws and regulations.

2. Section 2 of the act of 1908 authorizes the Secretary of the Interior "to proceed with the sale of the merchantable pine timber" outside of the 10 sections, islands, and points, "in conformity with" the act of 1902, which act