ens the impression that no one was very interested in, much less had specific designs on, the land.

There is a similar lack of evidence as to how the Indians understood the agreement to affect the status of the nonirrigable lands. It must be remembered that Article VI of the agreement did not refer to the cession or sale of nonirrigable lands, nor did it state they were returned to the public domain. It merely stated they would be opened to settlement. One might assume that because the Indians expressed interest in farming irrigated land, that the Indians were as disinterested in the nonirrigable land as was the Government. But, whether the Indians understood that they had casually given away such land, without any apparent compensation, and without retaining any interest therein, is a further assumption for which there is simply no evidence and, therefore, which we are not justified in making. Belief that nonIndian settlement on such lands to be a benefit to the Indians and, therefore, a condition of, or compensation for the cession of such lands, in strict technical sense, a possible theory supporting an immediate cession. However, it is not clear that these Indians-who were not versed in either the English language or such a sophisticated concept-understood that they would be giving up valuable real estate in exchange for the "privilege" of having non-Indian settlers as neighbors on their reservations.

In addition to the lack of payment, and the lack of evidence that

the parties intended the transfer of the nonirrigable lands, this case differs sharply from that in DeCoteau and in Rosebud Sioux Tribe, supra, in that the Department of Indian Affairs continued to administer the nonirrigable lands in trust for the tribe in the granting of leases and permits and in holding rents in trust for the tribe.

The results of an intensive file review, conducted in 1975 by staff of the Solicitor's Office and detailed below, show a clear and basically consistent history of administration of the nonirrigable lands by the Bureau of Indian Affairs prior to the 1936 Solicitor's Opinion. This administrative history was knowledged in the 1936 Opinion. Maps of the area issued between 1894 and 1936 include the Fort Yuma Indian Reservation and depict its boundaries as declared in the 1884 Executive Order. The

ac

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E.g., U.S.G.S. map, "Colorado River from Black Canyon, Ariz.-Nev. to Arizona-Sonora Boundary," surveyed in 1902 and 1903 (Exhibit RO-13, Quechan Tribe v. United States, Indian Claims Commission Docket No. 320 [hereinafter cited as Claims ExhibitU.S.G.S. map "Yuma Quadrangle, CaliforniaArizona," ed. of Apr. 1905 (BIA Files, Phoenix); 1936 reprint of Apr. 1905 U.S.G.S. map (Claims Exhibit RO-13); U.S. Reclamation Service maps of the Yuma Project in its annual reports to Congress (e.g., Third Annual Report: 1903-04, at 192-193 (2d ed. 1905); Fifth annual Report: 1906, at 100-01 (1907)); U.S. Reclamation Service Map No. 16774 (Jan. 1916) (Yuma Project File 154-D, A610158; File 154, "Lands-General," A609223); U.S. Reclamation Service Map No. 17471 (1917) (Yuma Project File 154. "Lands-General," A609224, 2-328). The latter two maps, which were produced after issuance of the Indian trust allotment patents on Feb. 5, 1914, show the Indian Allotments (or Indian Unit) and continue to depict the entire area encompassed by the 1884 Executive Order as the Yuma Indian Reservation. The field notes, reports and official plat of survey prepared by General Land Office Surveyor

Bureau of Land Management's plat records, as well as the original documents signed at the Secretarial level, show that all rights of way issued by the Department across the nonirrigable lands (except those which may have been issued by the Bureau of Reclamation within its own rights of way) were issued under statutory authority pertaining to Indian reservations."

F.N. 8-Continued

John L. Warboys between 1931 and 1934, as well as the underlying assignment instructions (Special Instructions Group 264, Calif.) repeatedly refer to, affirm and adopt the "West Boundary of the Yuma Indian Reservation" as described in the 1884 Executive Order and fixed by the Ingalls survey in 1895; and General Land Office Special Instructions Group 281, relating to T. 16 S., R. 23 E., S.B.M., dated Apr. 15, 1932, refers to "that portion of the Yuma Indian Reservation lying between the Reclamation Levee and the abandoned channel of the Colorado River" (Claims Exhibit RO-13 and supporting documents). Additional maps recognizing the continued existence of the reservation as described in the 1884 Executive Order are listed in note 9 infra.

"Map of the Definite Location of the Southern Pacific Railroad in the Yuma Indian Reservation, Calif.," G.L.O. no. 506131-1915, surveyed Dec. 1906, submitted to the Indian Agent, Yuma Indian Reservation, Mar. 13, 1907, and approved by Acting Secretary of the Interior George W. Woodruff on June 18, 1907, subject to the provisions of the Act of Mar. 2, 1899 (30 Stat. 990, as amended, 25 U.S.C. §§ 312-18 (1976)) (BIA Files, Phoenix) (the BLM plat records for sec. 36, T. 16 S., R. 22 E., Record issuance of another right-of-way to the railroad under the 1899 Act, with jurisdiction in the BIA on July 29, 1926 (R. 1359, S 3492)); "Map of the Definite Location of the Inter Calif. Ry. in Yuma Indian Reservation, Calif.," received by Superintendent Egan, Yuma Indian Reservation, Sept. 30, 1909, and approved by the Department Feb. 10, 1910, under the Act of Mar. 2, 1899, with the schedule of compensation to the Indians required by that act being approved by First Assistant Secretary Frank Pierce on May 14, 1910, pursuant to the recommendation of Superintendent Egan and Commissioner of Indian Affairs Valentine (BIA Files, Phoenix): "Proposed Telephone and Telegraph Line Crossing the Yuma Indian Reservation,"

The Commissioner of Indian Affairs issued trader's licenses to occupy and use nonirrigable land on the reservation, near the western boundary until the issuance of the

Pacific Telephone and Telegraph Co., Right of Way Map LA 011977, approved by First Assistant Secretary of the Interior A. A. Jones on July 3, 1913, pursuant to the Act of Mar. 4, 1911 (36 Stat. 1253, as amended, 43 U.S.C. § 961 (1970)), with the requisite finding for Indian reservation lands of compatibility with the public interest being made by the First Assistant Secretary by notation on the July 2, 1913, memorandum from the Second Assistant Commissioner of Indian Affairs to the Secretary recommending approval, and with rental, payable to the account of the Quechan Tribe, being set at $8.66 for the first year (Claims Exhibit RO-3) (related documents show the rental fee was collected on behalf of the Tribe for the full 50 year term of the right of way); "Center Line Location Map of Proposed Highline Canal from Laguna Dam to Imperial Valley and Location of Power Plant," dated June, 1915, showing the reservation boundaries as established in 1884, submitted for the approval of the Secretary of the Interior pursuant to secs. 18-21 of the Act of Mar. 3, 1891 (26 Stat. 1095, 1101-02, as amended, 43 U.S.C. §§ 94649 (1970)), sec. 2 of the Act of May 11, 1898 (30 Stat. 404, as amended, 43 U.S.C. § 951), and the Act of Feb. 15, 1901 (31 Stat. 790, as amended, 43 U.S.C. § 959 (1970)), all of which authorize rights of way through Indian reservations as well as public lands (BIA Files, Phoenix-no indication as to whether the right of way was approved); Memorandum dated June 6, 1917, from Assistant Commissioner of Indian Affairs Meritt to Commissioner Tallman of the General Land Office, responding to the latter's request for a report on the application of the Coachella Valley Ice and Electric Co. for a right of way for an electrical transmission line across Yuma Indian lands (all in the nonirrigable western portion of the 1884 reservation), advising that "the proposed right of way involves no Indian allotments but crosses a portion of the Yuma Indian Reservation which is absolutely waste desert land and upon which no Indians reside," and recommending approval of the application with an annual charge of $5 per mile as compensation for damage to the Yuma Indian Reservation lands involved (BIA Files, Phoenix); "Proposed State Highway Through Yuma Indian Reservation," Calif. Highway Commission, dated July 16, 1923, as amended by maps of changes "A" through "D", dated Sept. 28, 1923, through May 1924, approved

(Continued)

1936 Solicitor's Opinion.10 Sand and gravel leases were issued by the Bureau of Indian Affairs on tribal unallotted lands within the Yuma Indian Reservation from at least 1929 to 1936 pursuant to sec. 26 of the Act of June 30, 1919 (41 Stat. 3, 31, as amended, 25 U.S.C. § 399

F.N. 9-Continued

by Assistant Secretary of the Interior John H. Edwards on Oct. 10, 1927, subject to the provisions of the Act of Mar. 3, 1901 (31 Stat. 1058, 1084, 25 U.S.C. § 311 (1976)), and amending the right of way as originally approved under the same act on Nov. 9, 1917 (Claims Exhibit RO-8; BLM Plat Records, Sacramento): Order of withdrawal and reservation of a right of way for a proposed Reclamation Service "power canal from siphon drop to Araz" across the Yuma Indian Reservation, withdrawing and reserving 236.05 acres of reservation land, of which approximately 3.5 acres were allotted lands, recommended by Director and Chief Engineer Davis of the U.S. Reclamation Service on Apr. 15, 1918, concurred in by Assistant Commissioner of Indian Affairs Meritt on the "understanding that adequate compensation be assessed and paid for damage to Indian lands involved," concurred in by Commissioner Tallman of the General Land Office, and approved on June 17, 1918, by Assistant Secretary of the Interior S. G. Hopkins under secs. 13 and 14 of the Act of June 25, 1910 (36 Stat. 855, 858, 43 U.S.C. § 148 (1970), 25 U.S.C. § 352 (1976)) (Yuma Project File 150, "Purchase of Lands-General, 1909 thru June 1919," A606156, A606163, A606167-68); "Southern Pacific Railroad Station Grounds" map received by the Superintendent of the Yuma Indian Reservation June 30, 1928, and approved by the Department on Dec. 18, 1928, pursuant to the Act of Mar. 2, 1899, supra (Claims Exhibit RO-11; BLM Plat Records, Sacramento). The Bureau of Land Management plat records in Sacramento, Calif., show three additional rights of way issued under statutes governing Indian reservation lands and noted as being under the jurisdiction of the Bureau of Indian Affairs; a highway right of way, R 2704, issued Oct. 24, 1930, under the Act of Mar. 3, 1901, supra, a telephone and telegraph line right of way, S 3489, issued June 14, 1927, under the Act of Mar. 3, 1901, supra, and a transmission and telephone right of way, LA 040525, issued Mar. 23, 1927, under the Act of Feb. 15, 1901, supra.

10 Trader's License covering 80 acres in the N/2 of the NW/2, sec. 25, T. 16 S., R. 21 E., S.B.M., issued to Robert M. Goebel Jan. 1, 1928, to James H. Maxey Aug. 6, 1929, and thereafter to Maxey and later his widow, Mary A. Maxey, through various renewals (BIA Files, Phoenix).

11 Letter dated June 18, 1935, from the Commissioner of Indian Affairs to Superintendent Jolley, Fort Yuma Agency; Letters dated Dec. 13, 1939, and Apr. 6, 1943, from Superintendent Gensler, Colorado River Indian Agency, to the United States Fidelity and Guarantee Co.; Letter dated Mar. 29, 1943, from BIA Field Agent Cox, Fort Yuma Sub-Agency, to Superintendent Gensler; Letter dated Nov. 18, 1934, from H. L. Gardner to the Quechan Tribal Council; Letter dated Aug. 3, 1934, from H. L. Gardner to Superintendent Jolley, Fort Yuma Indian Agency; Notices of location of placer mining claims by Rosa Lee Black and Patsy Black on Feb. 26, 1935, filed with the Fort Yuma Indian Agency on Mar. 18 and Apr. 2, 1935, within 60 days of location as required by the 1919 Act (BIA Files, Phoenix, Claims Exhibits RO-4, RO-12, RO-15).

was

There is no record of management of the nonirrigable areas by the Bureau of Land Management prior to 1936. Only one document even hints at such management by the Bureau of Reclamation. On Oct. 28, 1953, an "Analysis of G.L. Account 271.22-Rental of Farming and Grazing Lands" was prepared to ascertain the portion of "Miscellaneous Non-operating Income-Other" attributable to the rental of grazing and farming lands covered into such account between 1910 and 1953. The entries are jumbled and clearly inaccurate in places. The covering memorandum states that "some of the income from Mining and Gravel Leases, and still a larger portion from lands lying outside both irrigation divisions. Probably all of the Mining and Gravel leases, as well as a sizeable portion of the Grazing and Farming leases, lle outside the two irrigation divisions." An inspection of the entries confirms that all of the leases listed in the "Gravel and Mining" column were on nonirrigable reservation lands, except perhaps Lease 124r-358 issued to Emil Frank. But all of them are entered in the ledgers after 1940, and most, if not all of them, are almost surely the same sand and gravel leases that were administered by the Bureau of Indian Affairs prior to 1936. See, e.g., leases 124r-417 and 124r-504 issued to H. L. Gardner and the leases issued to C. H. Trigg and Emil Frank and compare them with the BIA leases issued to the same persons as described in the documents referred to in the preceding paragraph of this note. Similarly, all the leases except for one listed in the "Outside Area" column, although covering nonirrigable portions of the reservation, were entered in the ledgers after 1936. See, e.g., lease 124r-415 issued to Mary E. Maxey for a gas station and lease 124r-456 issued to Callahan Construction Co. for a "Piece of

In addition to this formal evidence of administration, there are many informal recognitions of the continued inclusion of the nonirri

F.N. 11-Continued

Ground at Pot Holes" (a site in sec. 25, T. 15 S., R. 23 E.). The Mary E. Maxey lease, inaccurately placed in T. 15 S. rather than T. 16 S. of R. 21 E., is undoubtedly a lease for the same ground that was utilized by Mrs. Maxey under a BIA trader's license prior to 1936. See the documents referred to in note 10 supra. The one exception is lease L-30 issued to R. E. Whitmore and S. H. Flood and listed as an "Outside Area" between 1918 and 1924. However, the land description (sec. 19, T. 16 S., R. 23 E. and sec. 35, T. 15 S., R. 23 E.) includes both irrigable and nonirrigable lands, and the lease is actually listed (under Whitmore's name) for the period from 1925 to 1927 and again in 1928 in the "Reservation" Division column, which covers the irrigable lands in the Reservation Division of the Yuma Project. The "Outside Area" listing was therefore, probably an error. The term "Reservation Division" described the irrigable lands and project works of the Yuma Project on the California side of the Colorado River, as several of the maps referred to in note 8 supra indicate. It did not cover the nonirrigable reservation lands not used for project works. Hence the use of the "Outside Area" column in the account analysis. A study of all of the entries in the "Reservation [Division]" column shows that all of them included irrigable as well as nonirrigable lands, and the leases were no doubt for a portion of the irrigable lands. The land descriptions in the analysis ordinarily give at most the section in which the lease was contained, without providing any more precise description. Where more precise descriptions are given, they refer to specific lots or farming units in the Bard area opened to non-Indian settlement in 1910. See, e.g., leases I1r-372, L-14, and 4-11. Other leases are in sections which are entirely, or practically entirely, irrigable. See, e.g., leases 124r-202, 124r-305, 124r-307, 124r-354. Leases 124r-409 was for a "track on levee in Cal. in Res. Div." One lease whose land description defies accurate interpretation is the lease originally issued to E. F. Sanguinetti under lease number 124r-169 and described as secs. 31, 36, 1, 6 in townships 15, 15, 16 and ranges 23, 22E. It is not clear which sections are to be matched with which townships and which ranges. Some of the probable combinations would include sections which contain only nonirrigable lands, but all of these would also contain substantial project works, except for sec. 6, T. 16 8., R. 22 E., which is high up in the rocky mesa and useless for

gable lands within the Indian reservation. Both the Commissioner of Indian Affairs and the Director of the Reclamation Service described the Yuma Project as encompassing only "the bottom lands in the Yuma Indian Reservation," 12 and the chief officers of the two bureaus repeatedly referred to the nonirrigable lands as "Indian country within the meaning of the law," 13 "Indians lands *** [which] are not public lands in the ordinary sense of the word," 14 and lands the disposal of which "is primarily

farming or grazing. Considered as a whole, however, the account analysis supports BIA jurisdiction over the nonirrigable lands prior to 1936.

12 Fifth Annual Report of the Reclamation Service: 1906, at 100 (1907) (italics added); Letter dated Feb. 28, 1906, from the Commissioner of Indian Affairs to the Secretary of the Interior (Yuma Project File 154-A, "Indian Lands," A609694). A letter dated July 18, 1913, from Reclamation Service Yuma Project Engineer Sellew to supervising engineer Hill enclosed three prints of a map showing "the entire Indian Reservation," including as one subdivision thereof "the area allotted to the Indians, amounting to about 8,200 acres" (Yuma Project File 154-A, "Indian Lands, 1910 thru June 1919," A609380, A609382-84).

13 Letter dated Oct. 1905, from Acting Commissioner of Indian Affairs Larabee to the Director, U.S. Geological Survey (in which the Reclamation Service was originally located), concerning police jurisdiction over the nonirrigable lands on the California side of the Colorado River being used for construction of the Laguna Dam (Yuma Project File 154-A, "Indian Lands," A609664–65).

14 Copy of memorandum dated Mar. 21, 1925, from Acting Chief Engineer Crowe, Bureau of Reclamation, to the Commissioner of Reclamation, concerning an application by Southern Sierras Power Co. for a right of way "west of the east line of Sec. 19, T. 16 S., R. 22 E., S.B.M.," which would be "across Indian lands over which the Bureau of Reclamation has proposed to construct certain works in connection with the All-American Canal to Imperial Valley." (Yuma Project File 430, "Acquisition of Lands, Indian Lands thru 1929").

within the control of the Indian Office." 15

More particularly, the nonirrigable lands between the reservation levee and the Colorado River are expressly recognized as being reservation lands subject to the jurisdiction of the Indian Bureau, except insofar as such lands were necessary for the protection of the levee. In a letter dated May 28, 1906, District Engineer Homer Hamlin advised the Director of the U.S. Reclamation Service that "[t]he jurisdiction over this land will probably always remain with the Indian Bureau, as it will not be reclaimed or sold as a part of the cultivable area of the Yuma Project." 16 In 1907, Superintendent Deaver of the Yuma Reservation raised the question of the status of these lands, as well as the "27000 acres of rough mesa and mountainous land unfit for agricultural purposes," in light of the failure of Congress, in the Act of Apr. 21, 1904 (33 Stat. 189), to "provide for the disposition of the balance of the reservation that is not irrigable." The Secretary of the Interior directed Special Inspector Levi Chubbuck of the U.S. Indian Inspection Service to investigate and report on this and other matters.

15 Letter dated June 23, 1914, from Director Newell, Reclamation Service, to U.S. Representative Carl Hayden (Yuma Project File 154-A, "Indian Lands, 1910 thru June 1919," A609414).

16 Yuma Project File 154-A, "Indian Lands," A609709-11. See id. A609702-13 for related Secretarial level correspondence.

17 Letter dated Apr. 11, 1907, from Superintendent Deaver, Yuma Reservation, to the Commissioner of Indian Affairs, referred by the latter to the Director of the Reclamation Service on May 7, 1907 (Yuma Project File 154-A, "Indian Lands," A609721-28).

On Apr. 6, 1907, Inspector Chubbuck reported to the Secretary, suggesting that the strip of land between the levee and the river "be formally reserved by the Indian Office" and that a parallel strip inside the levee which was not to be allotted to Indians or disposed of to non-Indians, as well as "other available places on the Yuma Reservation," be planted with fruit bearing trees, "subject to such regulations as the Reclamation Service desires to impose for the protection of the levees and ditches, the Indians' rights. to the income from the products being recognized, in consideration of the fact that the reservation as a whole is theirs." 18 In 1919, the Director of the Reclamation Service implicitly recognized the right of the Indian Office to irrigate "some lands in Sec. 25, T. 16 S., R. 22 E., which lie outside of our levee and consequently are not included within the proposed Yuma project." 19 And in a letter dated Oct. 20, 1929, the General Land Office advised the Commissioner of Indian Affairs that:

It is the opinion of this office that the reservation boundary is defined by the center of the abandoned channel [as it existed prior to the avulsive change of 1920] ***. The area between the levee and the abandoned channel, constituting the present Yuma Indian Reservation boundary, appears therefore to be still in public ownership and a part of the Indian Reservation.

18 Yuma Project File 154-A, "Indian Lands," A609734-39.

19 Letter dated Oct. 2, 1919, from Director Davis, U.S. Reclamation Service, to the Commissioner of Indian Affairs (Yuma Project File 150, "Acquisition of Lands, Southern Pacific Ry. Co.").