tion. (See Annual Report, Secretary of Interior, year ending June 30, 1937, pp. 350-351.) The 1940 Appropriation Act also makes allotments of printing funds for the distribution of information collected through investigations and surveys by the Bureau of Reclamation, the Geological Survey, and the Bureau of Mines. The use of printing funds for distribution of materials giving information concerning departmental functions has been frequently approved by the Bureau of the Budget. (See letter of Acting Director Bell to the Secretary, March 10, 1938.)

The appropriations for the Bureau of Fisheries and the Biological Survey contain additional authorization for the dissemination of information. The Department of Commerce Appropriation Act of 1940 (53 Stat. 885, 918), which lists the funds appropriated for the Bureau of Fisheries, now in this Department, provided funds "For collecting, publishing, and distributing, by telegraph, mail, or otherwise, information on the fishery industry, *" The Department of Agriculture Appropriation Act of 1940 (53 Stat. 939, 963), listing the appropriations for the Bureau of Biological Survey, now a part of this Department, provides funds enabling "investigations of enumerated biological phenomena," for "demonstrations" in the control of predatory animals.

*

*

Thus, by express language and by requiring the performance of functions which necessitate dissemination of information, Congress has imposed upon the Department the duty to distribute information in connection with numerous departmental functions.

The existence of this duty does not, however, restrict the Department to the distribution of the specific types of information listed above. The history of the Division of Information and its treatment by Congress and the General Accounting Office make it clear that authority exists to use general funds and to maintain a central agency to disseminate departmental information generally.

Since 1935 the Budget has included items for the salary of a Director of Information. In the appropriations for the Department, Congress has provided funds for salaries in the Secretary's Office out of which the salary of the Director has been paid. In 1937 the Division of Information was set up by the Secretary to bring together and disseminate information developed by the research, service, and conservation functions of the Department (Secretary's Order No. 1213, September 24, 1937), and in 1939 and 1940 the Budget included items for the salaries of some 20 or 21 employees for this Division. The functions of the Director and the Division were thoroughly discussed in the House hearings on the appropriations for 1939 and 1940 (hearings, 75th Cong., 3d sess., on Interior Department appropriation bill for 1939, pp. 21-23, January 31, 1938; hearings, 76th Cong., 1st sess., on the Interior Department appro

December 7, 1939

priation bill for 1940, pp. 21-22, January 23, 1939). After this discussion, Congress, in appropriating the consolidated funds for the salaries for the Secretary's Office, included funds out of which have been paid the salaries of the employees in the Division of Information.

Furthermore, during the past few years information has been provided by the Department not only through the Division of Information, but also through the Division of Motion Pictures (in the Division of Information since July 18, 1939, Secretary's Order No. 1404) and through the Office of Exhibits. Moreover, prior to the transfer of the Office of Education to the Federal Security Agency, informational and educational functions were also exercised by the Department through the Office of Education.

Congress was made fully cognizant of all these activities through the reports of the Secretary, through appropriation hearings and estimates, and otherwise, and, with the knowledge thus obtained, continued to make annual appropriations for salaries and expenses from which the salaries for these activities, listed in the Budget, have been paid. Such action by Congress clearly constitutes legislative approval of these information-distributing functions (United States v. Bowling, 256 U. S. 484, 489, 65 L. Ed. 1054, 1057 (1921)). The General Accounting Office, furthermore, has raised no objections to the use of departmental funds to carry on these activities, but has approved the various accounts submitted. Such action, in effect, constitutes a ruling that such expenditures were authorized by Congress. In a recent instance the Secretary requested the opinion of the Comptroller General as to whether the appropriation allotted to the Bonneville project could be utilized for making motion pictures of the construction of the Bonneville project "for inforinational and instructional purposes." In response, the Comptroller General ruled on May 12, 1939 (18 Comp. Gen. 843 (1939)), that the Secretary, under the terms of an act which permitted expenditures "for such other facilities and services as he may find necessary for the proper administration of this act," had authority to incur the expenditures on motion pictures "for informational and instructional purposes." The Secretary, in the administration of the component parts of the Department, has statutory authority substantially as broad in many instances as in the case of the Bonneville project. (See, e. g., Reclamation Act, June 17, 1902 (c. 1093, 32 Stat. 388, 390, 43 U. S. C. (1934), sec. 373); Taylor Grazing Act, June 28, 1934 (48 Stat. 1269, sec. 2, as amended June 26, 1936 (49 Stat. 1976)); National Park Service Act, August 25, 1916 (39 Stat. 535, sec. 1); Mineral Leasing Act, February 25, 1920 (41 Stat. 437, sec. 32).)

The very functioning of the Department as a whole is closely tied up with the conservation and economic use of our natural re

sources. This necessarily requires education and the distribution of knowledge concerning the utilization of proper conservation methods. Such an educational program is much more economical than belated and expensive efforts to replace resources, some of which may be irreplaceable.

The authority of the Secretary, however, is not all inclusive. At least two limitations exist. First, the Department may not employ a "publicity expert" unless specifically authorized by Congress (38 Stat. 212, c. 32, sec. 1 (1913), 5 U. S. C. (1934), sec. 54); and, second, the Department may not attempt to stir up private citizens to influence congressional legislation or appropriations (18 U. S. C. sec. 201; 55 I. D. 102, 104 (1934).)

The purpose of the prohibition against employment of "publicity experts" is revealed by its legislative history. From this it clearly appears that the statute was not intended to prohibit dissemination of all information concerning the functions and duties of any governmental agency but only the hiring, without specific congressional sanction, of "press agents" or "publicity experts to extol and exploit” their agency. It was specifically stated by the proponents of the bill that there was no objection to the employment of "experts or editorial writers for the purpose of making * bulletins more readable to make

* * *

* *

* *

to the public and more practical in their make-up available the work of their department to reach the mind of the average reader giving to the country information as to the work of the department" (Congressional Record, September 6, 1913, 63d Cong., 1st sess., pp. 4410-4411).

The Director of Information of this Department coordinates the information-distributing functions of the Department, including publications, announcements, press releases, radio broadcasts, the production of graphic materials, and motion pictures. It is clear therefore that his activities are not condemned by the statute. Administrative interpretation by the other Government agencies supports this conclusion. I have found no congressional authorization for any Government agency to hire a "publicity expert." Yet information offices or divisions are maintained by almost every Government agency whose duties and functions require it to make available to the public information concerning its activities. (See McCamy, Government Publicity (1939), p. 250 and passim.) This long-continued practice by all these Government agencies, known to and acquiesced in by Congress, has the force and effect of law (United States v. Midwest Oil Co., 236 U. S. 459, 472-474 (1915); United States v. Philbrick, 120 U. S. 52, 58-59 (1887); Hahn v. United States, 107 U. S. 402, 406 (1882); Brown v. United States, 113 U. S. 568, 571 (1885) and cases cited).

December 15, 1939

My opinion, therefore, is: (1) The Department and the Secretary of the Interior have authority to disseminate information generally to the public except that (a) a "publicity expert" may not be employed unless specifically authorized by Congress and (b) any attempt to stir up private citizens to influence congressional legislation is prohibited; (2) except as so limited, the radio may be used whenever, as a matter of administrative discretion, it is determined. to be most feasible, desirable, or economical for disseminating information.

Approved:

HAROLD L. ICKES,

Secretary of the Interior.

OBLIGATION OF THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA FOR DAMAGES TO LANDS OF CHEMEHUEVI INDIANS

Opinion, December 15, 1939

INDIAN LANDS-CHEMEHUEVI INDIANS-OCCUPANCY RIGHTS-RECLAMATION WITH

DRAWALS-PARKER RESERVOIR-COMPENSATION.

Departmental order of February 2, 1907, withdrawing lands from settlement and entry for the use and benefit of the Chemehuevi Indians, was in confirmation of the Indians' use and occupancy rights therein acquired by long residence, and reclamation withdrawal orders in 1902 and 1903 covering such lands did not extinguish the Indians' rights nor deprive them of their right to compensation for the full value of the lands to be flooded in connection with the Parker Dam.

MARGOLD, Solicitor:

My opinion has been requested as to whether the Metropolitan Water District of Southern California, under its contract of February 10, 1933, for the construction of Parker Dam, is obligated to make payments to the United States for the benefit of the Chemehuevi Indians for damages to certain lands in T. 4 N., Rs. 24, 25, and 26 E., S. B. M., which will be flooded by the Parker Reservoir.

It appears that the above-described lands, among others, were included in first and second form reclamation withdrawals under the provisions of the act of June 17, 1902 (32 Stat. 388), by departmental orders of July 2, August 26, and September 15, 1902, and February 5 and September 8, 1903, and that the reclamation withdrawals as to these lands have never been expressly revoked or vacated. It further appears that the Secretary of the Interior, in a letter to the General Land Office dated February 2, 1907, ordered these lands, among others, withdrawn from all form of settlement or entry pending action by Congress authorizing the addition of the lands to various Mission Indian reser

vations. This latter withdrawal was made pursuant to the recommendation of the Acting Commissioner of Indian Affairs which, in turn, was predicated upon two reports by Special Agent C. E. Kelsey, dated December 27, 1906, and January 3, 1907. Those reports, which were made at the request of the Commissioner of Indian Affairs, indicated that the lands now in question had been occupied for many years by the Chemehuevi Indians and urged that the lands be reserved and set aside for their use.

The contention is made by the Metropolitan Water District, with which the Bureau of Reclamation concurs, that by virtue of the prior reclamation withdrawals, title to the lands is in the United States and payment there for for the benefit of the Chemehuevi Indians is unnecessary. It is urged by the Indian Office, however, that the "later order withdrawing the land for Indian purposes superseded the prior reclamation orders or modified them to the extent necessary to provide the reservation intended to be set aside for the Indians, and was a confirmation of recognized rights of the Indians to the occupancy and use of the land acquired through long continued habitation in the area."

The point of view of the Metropolitan Water District and the Bureau of Reclamation is based upon the premise that the right of the Chemehuevi Indians to compensation for the taking of the land can be established, if at all, only by reference to the various departmental orders affecting the land. They contend that an examination of these orders can lead to only one conclusion, namely, that the order reserving the land for Indian use was subject to the prior reclamation withdrawals. This construction is given some force by the language contained in three orders, dated July 13, 1911, September 25, 1912, and September 15, 1919, whereby parts of the area covered by the order reserving the land for the Indians were released from the reclamation withdrawals. A proviso in the last two of these orders read:

Provided, That such revocation shall not affect the withdrawal of any other lands by said orders nor affect any other order withdrawing or reserving the lands hereinafter listed.

While there was considerable vacillation on the part of the Department concerning the ultimate use and disposition of the area as a whole, it continued to regard the original reclamation withdrawals as effective against the order reserving the land for the Indians, except for those tracts which were specifically released.

Determination of this question, however, is not decisive of the matter presented for my opinion. At the most it establishes the right of the Bureau of Reclamation to utilize the land for reclamation purposes as and when the need arose. The existence of such a right does not settle the question of compensation for the Indians. The Indian right goes back beyond the original withdrawals so that the question