of the Indian Affairs, dated November 30, 1937 (quoted in 69 I.D. 195), the Solicitor's Office of the Interior Department adhered to this interpretation of the definition of the term 'surplus lands of any Indian reservation.'
On June 15, 1938, the then Assistant and later Secretary of the Interior, Oscar L. Chapman, reaffirmed the Department's interpretation of 'surplus lands,' as used in section 3 of the Wheeler-Howard Act, in the following language, which also plainly covers the San Carlos Mineral Strip.
'The word 'surplus' means that which remains over and above what is required. It might be argued that practically all lands ceded by Indians were surplus lands according to this definition since they were doubtless considered as not being required by the Indians. However, Congress could not have intended that all remaining undisposed-of ceded lands should be available for restoration to tribal ownership, as such lands would embrace practically all of the remaining public domain. The Interior Department has taken the position that section 3 is not intended to cover all ceded lands but those ceded lands in which the Indians have retained an interest by reason of the fact that the lands were ceded to the United States to be disposed of by the United States in specified ways, the proceeds of the sale to be held for the benefit of the Indians. This type of ceded land was evidently in the mind of Congress at the time of the passage of the Reorganization Act. The debates on the bill in the Senate show that section 3 was discussed as a provision making possible the restoration of the use of the lands to the Indians in place of the proceeds to which they were entitled from any sale.' (Emphasis added.) 56 I.D. 330, 334.
Assistant Secretary Chapman further determined in his 1938 opinion that, to qualify for restoration, land need have been part of a reservation only at the time it was ceded to the United States.
In an opinion issued January 17, 1960, holding that certain ceded lands previously reserved for school and agency purposes could be restored by the Secretary to the Kiowa, Comanche and Apache Indians under section 3, even though no trust relationship as such was involved, the Solicitor observed:
'The rationale of the interpretations and the administration by the Department of section 3 of the 1934 Act is that the significant and controlling factor under this legislation is the existence of a tribal right to proceeds from the sale of the lands and not the narrower question of the existence or absence of a trust title. This interpretation is in harmony with the language of the act and its broad purpose to augment the tribal land base.' 67 I.D. 10.
Lastly, as already indicated supra, on November 28, 1962, the Solicitor of the Interior Department in an opinion, 69 I.D. 195, expressly held that undisposed of lands in the Mineral Strip are surplus lands of an Indian reservation within the context of section 3 of the Indian Reorganization Act and that the Secretary of the Interior has discretionary authority to restore such lands to tribal ownership.
Hence, from 1934 through 1962, the Department of the Interior has repeatedly and consistently construed section 3 of the Indian Reorganization Act as authorizing restoration to tribal ownership of lands in the class of the Mineral Strip. "To sustain the Commission's application of this statutory term, we need not find that its construction is the only reasonable one or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings." Unemployment Compensation Comm'n of Territory of Alaska v. Aragon, 329 U.S. 143, 153, 67 S. Ct. 245, 90 L. Ed. 412 (1946), as quoted in Udall v. Tallman, supra, 380 U.S. at 16, 85 S. Ct. at 801. Since the Interior Department's interpretation was based in the first instance on the knowledge of the plight of the San Carlos and similarly situated Indians and the fact that this legislation was sought to alleviate their situation, that section 3 was not interpreted narrowly to apply only to land surplus to allotment but was given a broader interpretation to include land surplus to other needs of the Indians when ceded, is not -- in the opinion of this Court -- an unreasonable position to take in light of all the circumstances surrounding the enactment of the legislation. "It therefore comes within the rule that the practical construction given to an act of Congress, fairly susceptible of different constructions, by those charged with the duty of executing it is entitled to great respect and, if acted upon for a number of years will not be disturbed except for cogent reasons." McLaren v. Fleischer, 256 U.S. 477, 481, 41 S. Ct. 577, 65 L. Ed. 1052 (1921), as quoted in Udall v. Tallman, supra, 380 U.S. at 18, 85 S. Ct. at 802.
Such an interpretation is likewise in keeping with the well-recognized canon of statutory construction that treaties with Indian tribes and laws affecting Indians must be liberally construed for their benefit and protection. Tulee v. State of Washington, 315 U.S. 681, 684-85, 62 S. Ct. 862, 86 L. Ed. 1115 (1942); Choate v. Trapp, 224 U.S. 665, 675, 32 S. Ct. 565, L. Ed. 941 (1912); Jones v. Meehan, 175 U.S. 1, 10-11, 20 S. Ct. 1, 44 L. Ed. 49 (1899).
By accepting the Interior Department's interpretation that section 3 applies to ceded 'lands the proceeds of which, if sold, would be deposited in the Treasury of the United States for the benefit of the Indians,' the Court need not determine whether such an arrangement creates an actual trust relationship between the United States and the San Carlos Apache Indians. See Ash Sheep Co. v. United States, 252 U.S. 159, 40 S. Ct. 241, 64 L. Ed. 507 (1920). What is important insofar as the Secretary of the Interior's authority to restore the lands in the Mineral Strip to tribal ownership under this statute is concerned, is the fact that the 1896 agreement between the United States and the Tribe clearly created this type of arrangement, and the Secretary has recognized that agreement as meeting the requirements of the Act from the time he took his first action under the Act by withdrawing the Mineral Strip from disposal of any kind (in September, 1934).
For the foregoing reasons, the Court concludes that the Secretary of the Interior has the authority under sections 3 and 7 of the Indian Reorganization Act to restore the subsurface of the undisposed of lands of the San Carlos Mineral Strip in question to tribal ownership, for the use and benefit of the San Carlos Apache Tribe of Indians.
This memorandum opinion shall comprise the Court's findings of fact and conclusions of law in the case.
It is further ordered that the preliminary injunction granted to the plaintiffs in this case on September 13, 1963 is hereby vacated and set aside.
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