FORT YUMA (NOW CALLED QUECHAN) INDIAN RESERVATION January 2, 1979 It appears that some material in the legislative history might be susceptible of divergent interpretations. For example, the reference to the Yuma Indians' having already assented to allotments of five acres each ties the 1904 Act to the 1894 statute. But, I think that does little more than indicate what is already clear, that is, that Congress was aware of the 1894 statute. It does not compel the conclusion that the 1904 Act was an implementation of the prior act and cession agreement, with all the ramifications thereof. In addition, the letter from the Director of The Geological Survey, referred to above, might be interpreted as evidence of Congressional intent to implement the Act and cession agreement. But, the discussion in that letter is more susceptible to the interpretation that Congress believed it did not have to take action to acquire Indian land title before disposing of such land. In other words, effectuation of the cession agreement was not at all necessary for Congress to accomplish its stated purpose in 1904, namely provision of irrigation on the reservation as part of a major reclamation project involving the Colorado River. When it is clear that Congress knew it did not have to acquire Indian lands by cession before it could dispose of them, the burden of proving that Congress intended to effectuate a cession becomes more difficult. This is particularly true in the case of these nonirrigable lands which were nowhere mentioned in the Act or in the Director's letter. In addition to the legislative history, the administrative practices, detailed earlier in this Opinion, support the interpretation that the title to the nonirrigable lands was not affected by this enactment. In conclusion, interpreting the 1904 Act as an intended implementation of the cession agreement has little, if any, support in either the language, the legislative history, or subsequent administrative practice. Such interpretation would not conform with the applicable rules for interpreting Indian statutes, 33 particularly the rule that the cession of Indian property rights may not be lightly inferred. I think the interpretation which follows the language and stated purpose of the 1904 Act most closely is that the Act was not intended to implement and give legal effect to the agreement for the cession of the Fort Yuma lands. Rather, the nonirrigable lands were not affected in any practical way by that Act. Therefore, the conditional cession of the non irrigable lands remained uneffected and title to those lands remains in the Quechan Tribe. In the preceding discussion, I have explained why I have concluded that the Agreement and the 1894 statute must be construed as providing for a conditional conveyance of the nonirrigable lands; the 1904 Act did not, contrary to the 33 See cases cited in footnote 3, supra. 1977 opinion of the Solicitor, implement the 1893 Agreement and ratifying Act. As a consequence, that conveyance was not validly effected. The 1977 opinion is overruled. Title to the subject property is held by the United States in trust for the Quechan Tribe. That title, however, is subject to interests 2. Color or Claim of Title: Description of Land While the general rule is that a color of title claim must be based on a deed or other written instrument which on its face purports to convey the land sought, extrinsic evidence may be used to make definite the description in a deed which contains a latent ambiguity. which have vested in third parties 3. Administrative Procedure: Burden as noted above. LEO KRULITZ, MABLE M. FARLOW (On Reconsideration after Hearing) 39 IBLA 15 of Proof-Color or Claim of Title: Generally The burden of proving a valid color of title claim is on the claimant. Where it cannot be said from the evidence presented that the grantors and grantees in the claimant's chain of title acquired a parcel of land with the bona fide belief that the parcel included all the land claimed, the color of title application must be denied. 4. Color or Claim of Title: Description Decided January 11, 1979 of Land-Color or Claim of Title: Reconsideration after hearing before Administrative Law Judge Ratzman of decision of the Oregon State Office, Bureau of Land Management, rejecting color of title application OR-12944. Affirmed. 1. Color or Claim of Title: Generally— Color or Claim of Title: CultivationColor or Claim of Title: Improvements To satisfy the requirements of a class 1 claim under the Color of Title Act, "val uable improvements" must exist on the land at the time the application is filed, or it must be shown that the land has been reduced to cultivation. If land was once cultivated, but is not cultivated at the time the application was filed and has not been cultivated for 10 years previously, the cultivation requirement of the Act has not been satisfied. Good Faith Where extrinsic evidence does not adequately show that predecessors in a color of title claimant's chain of title, whose holdings must be tacked on to establish the requisite 20 years holding for a class 1 claim, could have a bona fide basis for believing that land described as lot 5, shown on the official Government plat on one side of a river, included land on the opposite side of the river, there could not be a good faith holding under color of title. APPEARANCES: Dennis C. Karnopp, OPINION BY ADMINISTRA- (ON RECONSIDERATION AFTER HEARING) January 11, 1979 INTERIOR BOARD OF LAND APPEALS Appellant appealed the BLM decision to this Board. On June 7, Mable M. Farlow filed applica- 1977, we set aside the decision and tion OR-12944 under the Color of Title Act, Dec. 22, 1928 (45 Stat. 1069), as amended, 43 U.S.C. § 1068 et seq. (1970) (hereinafter the Act), on June 27, 1974, for certain land west of the Deschutes River in sec. 12, T. 6 S., R. 13 E., Willamette meridian, Wasco County, Oregon. The deeds in appellant's chain of title described lots 3, 4, and 5 of sec. 12. On the official survey plat approved in 1883 these lots were shown to lie on the east side of the Deschutes River. That plat also showed a lot 6 on the west side of the river opposite lot 5. A dependent resurvey by the Bureau found that there were omitted lands in sec. 12 on the west side of the river between lot 6 and the river, and subdivided them. It is the land now designated as lot 8 by the resurvey which appellant claimed was covered by deed descriptions of lot 5, based upon certain maps and other information apart from the official 1883 survey. Appellant contended, in effect, that such extrinsic evidence showed that lot 5 straddled both sides of the river and gave a color of title to the land on the west side of the river. On Apr. 14, 1975, the Oregon State Office, Bureau of Land Management (BLM), rejected the application because no deed or written instrument in appellant's chain of title described land west of the Deschutes River. ordered a hearing to consider "ex- our prior This case arose because the 1882 survey, *** erroneously meandered the Deschutes River as flowing through the approximate center of the S 2 SE 14 of section 12. By lot 5, the river actually curves and flows closer to the east township boundary. A 1972-73 dependent resurvey established new meanders of the river and subdivided the omitted lands in section 12 which are west of the river *** [into lots 7 and 8]. The position of patented lot 5 is also shown in the SE 4 SE 14 [on the plat approved in 1974] but east of the river and is much smaller than shown on the 1883 survey plat. Mable M. Farlow, supra, at 323.1 The hearing was held Apr. 26, 1978, in Redmond, Oregon, before Administrative Law Judge Dean F. Ratzman. His proposed findings and recommended determinations were made Sept. 18, 1978. In his recommended decision at p. 4, 1 For a discussion of the rules governing boundaries along a meandered watercourse see the earlier decision, Mable M. Farlow, 30 IBLA 320, 84 I.D. 276 (1977). Judge Ratzman sets out further the recommended decision. Appelcertain facts in this case: The chain of title to properties in private ownership begins with a 1904 patent for land described as lots numbered 3, 4 and 5 in Section 12 according to the plat of survey approved in 1883. That survey plat depicts Lot 5 as containing land in the SSE 4 of Section 12 east of the river amounting to 30.96 acres. As has been indicated, land in the S 2 SE which is west of the river is designated on the 1883 plat as lot 6. [The unpatented portion of the E 1⁄2 of section 12 was withdrawn from entry in 1908. In 1930, Lot 6 was restored.] Transfers during 1927-1943 continued the reference to the conveyed lands as Lots 3, 4 and 5. In 1946 Mr. and Mrs. Farlow purchased Lot 5 for $50. The deed recited that mineral right to any part or parcel lying west [east] of the river were retained by the grantor. [2] The 1908 withdrawal precludes approval of Mrs. Farlow's application. The applicant has failed to show that the cultivation or improvement requirement has been met. She has not substantiated the assertion that the Farlows and their predecessors in interest, held the lands in good faith under claim or color of title for more than twenty years. The application should be denied. Appellant and BLM were allowed time in which to respond to 2 Judge Ratzman mistakenly said "west" here. The reservation was of rights lying east of the river. 30 IBLA 323. lant takes issue with Judge Ratzman's conclusions on three points. First, appellant argues that the land is open to entry and not withdrawn. Second, appellant states that she has met the cultivation or improvement requirement of the Act, thereby raising an equity in her favor. Appellant's third argument is that she has established good faith, adverse possession for more than 20 years under claims or color of title. Our earlier statement that "the land west of the river is public land subject to a color of title application," was predicated on an assumption that the land was not subject to a withdrawal. The issue of withdrawal was raised for the first time at the hearing. Because of our agreement with Judge Ratzman, otherwise, that appellant has failed to prove her color of title claim, it is unnecessary to decide the effect of the 1908 withdrawal and 1930 restoration of the E 1/2 of sec. 12 on the omitted land. [1] The Color of Title Act, 43 U.S.C. § 1068 (1970), directs the Secretary of the Interior to issue a patent whenever it shall be shown to his satisfaction that a tract of public land has been held in good faith and in peaceful, adverse, possession by a claimant, his ancestors or grantors, under claim or color of title for more than twenty years, and that valuable improvements have been placed on such land or some part thereof has been reduced to cultivation, ** In 43 CFR 2540.0-5(b), a claim under this provision of the Color of a Mable M. Farlow, supra at 326. (ON RECOMMENDATION AFTER HEARING) January 11, 1979 Title Act is called a "class 1" claim. To be entitled to a patent, the claimant must establish that each of the requirements for a class 1 claim has been met. Lawrence E. Willmorth, 32 IBLA 378 (1977); Jeanne Pierresteguy, 23 IBLA 358, 83 I.D. 23 (1976). The record in this case supports Judge Ratzman's conclusion that appellant has not established good faith possession under color of title for more than 20 years, or proved the existence of valuable improvements or cultivation as required by the Act. On the issue of improvements or cultivation, appellant offered evidence that a small cabin was once placed on the land but in the early 1940's had been moved to other land. To satisfy the Act, the "valuable improvements" must exist on the land at the time the application is filed. Lawrence E. Willmorth, supra; Lena A. Warner, 11 IBLA 102 (1973); Arthur Baker, 64 I.D. 87 (1957). That there was once an improvement on the land which was removed many years prior to the application certainly does not suffice. Id. There was also evidence that appellant rented the land in "the late 1950's and early 1960's" (Tr. 92) for $300 per year and the tenant raised a "crop of grain or hay or something for his horses" and also "a large garden" (Tr. 76). Appellant asserts that this evidence raises an equity in her favor. As Judge Ratzman points out at p. 8: Buying land for $50 in 1946, and merely collecting an annual rental of $300 for several years while the renters made an effort to cultivate does not develop an equity-no facts have been provided as to the area cultivated, yields of hay, grain or vegetables, or any permanent improvement to the land which resulted from the cultivation. Reduction of the land to cultivation in the sense intended in the Act has not been shown. We agree. Generally, throughout the public land law "cultivation" is viewed as a continuing activity with necessary efforts leading to the production of crops. For example, under the homestead laws where cultivation for a period of years has been necessary to meet the requirements for a patent, this Department has consistently ruled that there must be a breaking, planting, or seeding and tillage for a crop to be done in such a manner as to be reasonably calculated to produce profitable results. Acts which did not demonstrate good faith efforts cannot be considered "cultivation" under the law. E.g., Clarence Ray Mathis, 29 IBLA 150 (1977); United States v. Nelson (Supp. 1), 28 IBLA 314 (1977); United States v. Garrett, A-31064 (May 28, 1970); Jess H. Nicholas, Jr., A-30065 (Oct. 13, 1964). Here, appellant's application was filed in 1974. From her own evidence, there is no indication of cultivation of the land for at least 10 or more years prior to the filing of the application. Thus, even if we found that land had once been cultivated by appellant's tenants and that would have sufficed under the Color of Title Act to be cultivation at the time crops were being produced, it cannot suffice |