school and agency purposes merely withdraws such lands from settlement and sale and does not revest title in the tribe.

This comparatively recent decision is an important aid in clarifying title questions concerning ceded Indian lands, since earlier views on the subject of the title status of school and agency reserves on ceded lands were doubtlessly influenced by an earlier decision in the Court of Claims, 56 Ct. Cl. 1 (1920), which observed that the 755-acre tract was tribally owned. (See Solicitor's memorandum of January 30, 1958, to the Secretary of the Interior on the subject of the status of title to Pawnee School and Agency lands.)

An interpretation of the provisions of the act of June 6, 1900, applying the logic used by the Court in the Pawnee case, reveals that none of the Kiowa, Comanche, and Apache Reservation lands affected by Article I were excepted from the cession, and that any lands occupied by a religious society or other organization for religious and educational work among the Indians might be patented to the organization so long as it is occupied and used for such purposes (Article III). Special provision was made to allot each individual member of the tribe 160 acres out of the lands ceded and conveyed (Article II), and to select and set aside from the ceded land for the use in common of said Indian tribes four hundred eighty thousand acres of grazing land (Article III). The school and agency lands were not to be set aside in accordance with any provision of the act. Therefore, under the principle advanced by the Court of Claims in the Pawnee case, it follows that an unrestricted title to the unallotted land not set aside for the common use of the tribes passed to the United States, and the establishment of school and agency sites on those lands operated as a setting apart of land belonging to the United States.

It seems clear from the judicial decisions hereinbefore discussed and from the express provisions of section 6 of the act of June 6, 1900, that the Indian title was completely extinguished and that the Kiowa, Comanche, and Apache Tribes did not retain an equitable interest in the title to the school and agency lands. Further, the setting aside of lands for school and agency purposes did not affect the title to the property. We therefore conclude that by virtue of the provisions of section 6 of the act of June 6, 1900, the title acquired by the United States to the school and agency lands is unqualified, unconditional, and not in trust. !

II

Legislation affecting all of the Government-owned school and agency sites was enacted when, by section 17 of the act of June 30, 1913,

January 15, 1960

the Secretary of the Interior was authorized to sell those portions of the school and agency lands no longer needed for administrative purposes upon condition that if there were any proceeds in excess of $1.25 per acre, the excess was to be deposited in the United States Treasury to the credit of the Kiowa Agency Hospital 4% Fund. The enactment reads as follows:

That the Secretary of the Interior, in his discretion, is authorized to sell upon such terms and under such rules and regulations as he may prescribe the unused, unallotted, unreserved, and such portions of the school and agency lands that are no longer needed for administrative purposes, in the Kiowa, Comanche, Apache, and Wichita Tribes of Indians in Oklahoma, the proceeds therefrom, less $1.25 per acre, to be deposited to the credit of said Indians in the United States Treasury, to draw until further provided by Congress four per centum interest, and to be known as the Kiowa Agency Hospital Fund, to be used only for maintenance of said hospital: * *

The record of the Senate hearings on this legislation (Hearings on H.R. 1917, the Indian Appropriation Bill for 1914, Pt. 1, p. 246, Before the Senate Committee on Indian Affairs, 63d Cong., 1st sess. 1913) contains an Interior Department report at page 251, dated January 30, 1912, stating that these school and agency lands were the property of the United States and had comprised approximately 10,313 acres, but 858.7 acres had already been disposed of or provision for sale made under the authority of various acts of Congress. The report emphasized that the Kiowa, Comanche, and Apache Tribes had received a nominal sum, approximating $1.25 per acre, as consideration for ceding title to these lands and consequently the policy of the Department of the Interior was to provide that the original owner be benefited when the land was sold. The record shows that this legislation was not intended by the Congress to have the effect of a treaty stipulation or compact with the tribes but was in the nature of a gratuity. It would seem that Congress in enacting the legislation recognized that the United States was not in a position to profit at the expense of the Indians. We conclude, therefore, that the statute did not alter the title status of the school and agency lands but merely bestowed a gratuity on the Indians if these lands were sold for more than $1.25 an acre.

Section 17 of the act of June 30, 1913, has not been amended or repealed by subsequent legislation and consequently is still in effect with respect to sale of the school and agency lands no longer needed for administrative purposes. Thus, Congress would have to enact further legislation to authorize the Secretary of the Interior to sell these lands

in any manner other than that provided for in said act. An example of such legislation is found in the act of July 1, 1946, 60 Stat. 348, 356, which provided for the sale of 320 acres excess to the needs of the Ft. Sill Indian School, with the net proceeds of sale being deposited to the credit of the tribes.

III

On July 18, 1957, the Indian Claims Commission rendered its decision on the claim presented in Kiowa, Comanche and Apache Tribes of Indians v. United States (Docket No. 32). The decision was made upon a rehearing of its final order entered March 12, 1957 (5 Ind. Cl. Comm. 96). The tribes sued to obtain additional compensation for the lands which had been ceded to the United States in the act of June 6, 1900. The Commission held that the Indians were entitled to recover the difference between the value of the land acquired on June 6, 1900, and the purchase price paid thereof on that date. It was found that the lands acquired were worth $2 an acre, whereas the Indians were only paid about 98.3 cents an acre. In the petition filed on behalf of the tribes, it was alleged that the school and agency lands had never been acquired by the United States under the act of June 6, 1900. During the litigation the parties stipulated that the United States acquired 2,033,583 acres by the act of June 6, 1900, and this stipulation was accepted by the Commission as representing the acreage upon which the tribes based their claim for additional compensation. The record shows the stipulation as follows: (Agreed to and admitted as Petitioner's Exhibit 102, June 30, 1953, Transcript p. 577).

*** The petitioner proposed the following stipulation with respect to the acreage involved in the litigation: Gross acreage in the Kiowa, Comanche, and Apache reservation, 2,991,933 acres; acreage not acquired by the United States under the Act of June 6, 1900; 1, allotments to individual Indians, 445,000 acres ; 2, pasture lands, 480,000 acres; Number 3, reserved for agency, school, religious and other purposes, 10,319 acres ; Number 4, wood preserve, 23,040 acres ; making in all total acreage not acquired by the United States 958,350 acres. The result leaves a net acreage acquired by the United States under the Act of June 6, 1900, of 2,033,583 acres. It is further stipulated that the area of 2,991,933 acres includes acreage of the original Fort Sill Reservation of 23,040 acres.

Although the Commission accepted the stipulation of the parties. and incorporated it verbatim in its opinion, the title status of the school and agency lands was not judicially determined thereby since these lands were not involved in the tribal claim presented to the Indian Claims Commission for adjudication. Consequently, the In

January 15, 1960

dian Claims Commission was not petitioned to decide nor did it purport to decide whether further payment for the school and agency lands was required by law. (The Indian Claims Commission Act, 60 Stat. 1049, as amended 25 U.S.C., 1958 ed., sec. 70-70w). As for the pleadings and stipulation of the parties, they manifestly have no legal significance in regard to matters dehors the litigation. We, therefore, conclude that the title status of the school and agency lands was not affected by the claims litigation before the Indian Claims Commission in Docket No. 32. See United States v. Kiowa, Comanche, and Apache Tribes, 163 F. Supp. 603 (Ct. Cl. 1958), wherein, upon appeal, the above-described award made to the tribes by the Indian Claims Commission was affirmed.

IV

The final question to be considered is whether section 3 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 984; 25 U.S.C., 1958 ed., sec. 463 (also known as the Wheeler-Howard Act), authorizes restoration of title to these school and agency lands to the Kiowa, Comanche, and Apache Tribes. The restoration provision reads as follows:

*** The Secretary of the Interior, if he shall find it to be in the public interest, is hereby authorized to restore to tribal ownership the remaining surplus lands of any Indian reservation opened before June 18, 1934, or authorized to be opened, to sale, or any other form of disposal by Presidential proclamation, or by any of the public-land laws of the United States: * *

On September 19, 1934, the Secretary of the Interior approved a recommendation by the Commissioner of Indian Affairs thereby directing a temporary withdrawal of lands on certain Indian reservations until the matter of their permanent restoration under section 3 of the Indian Reorganization Act could be given appropriate consideration. 54 I.D. 559, Restoration of Lands, Formerly Indian, To Tribal Ownership. (See Solicitor's memorandum to the Secretary of the Interior, September 17, 1934, advising that it is doubtful as to the authority of the Secretary to make a temporary withdrawal under section 3 of the Wheeler-Howard Act, and that other authority could be cited for withdrawal if the recommendation of the Commissioner is approved. See also, Sol. Op. M-35049, May 24, 1949.)

No specific reference in the order of temporary withdrawal is made to the subject school and agency lands, but a statement appears in the portion of the order containing the recommendation of the Commissioner of Indian Affairs, 54 I.D. 559, 563, to this effect:

If there are lands on any of the reservations named, other than the areas covered by the said citations, that were "opened", and for which the Indians

receive the proceeds when disposed of, it is intended that they be included in the withdrawal. Areas within regularly authorized reclamation projects are to be excepted.

[The citation concerning the Kiowa, Comanche, and Apache Reservation is the act of June 5, 1906, 34 Stat. 213, which repeals Article III of the act of June 6, 1900, to the extent that it was required to set aside 480,000 acres of grazing land for tribal use and provides for the sale of that acreage plus a 23,000-acre wood reserve (see 41 L. D. 263 for origin of this tract) with the money accruing therefrom to be placed to the credit of the tribes in the United States Treasury.] It is, therefore, recommended that all undisposed-of lands of the Indian reservations named above that have been "opened", or authorized to be "opened" to sale, entry or any other form of disposal under the public land laws, or which are subject to mineral entry and disposal under the mining laws of the United States, with the exception of areas included in reclamation projects, be temporarily withdrawn from disposal of any kind, subject to any and all existing valid rights, until the matter of their permanent restoration to tribal ownership, as authorized by section 3 of the Act of June 18, 1934, supra, can be given appropriate consideration. The intention is to withdraw only lands the proceeds of which, if sold, would be deposited in the Treasury of the United States for the benefit of the Indians. In the event it is found that there are lands of other reservations that should have been included in this proposed withdrawal, appropriate recommendation will be made to have the withdrawal extended to embrace such lands.

By Secretarial Order of December 16, 1946, certain land susceptible to sale under the act of June 30, 1913 (an unused, unallotted, and unreserved tract, rather than school and agency lands) was restored to ownership of the Kiowa, Comanche, and Apache Tribes. The Solicitor had advised the Secretary on October 9, 1945 (M-36735) that the title to the land which was acquired by the United States in an unrestricted status under section 6 of the act of June 6, 1900, could be restored to the tribes for the reason that:

The 1934 order of withdrawal speaks of an "intention to withdraw only land the proceeds of which, if sold, would be deposited in the Treasury of the United States for the benefit of the Indians ***" The 1913 act, supra, provides for the allocation to the Indians, not of the entire proceeds of sale, but only the excess above $1.25 per acre. Whether land, part of the proceeds of whose sale may accrue to the benefit of the Indians, is as a matter of law encompassed within the language quoted from the order is a difficult question to decide.1 However, I do not believe it is necessary now to decide that question. Under section 3 of the Wheeler-Howard Act, supra, the Secretary has the power to withdraw this lot and any other lands in the same category. Consequently, the problem is really one of policy. If it is determined as a matter of policy that this or any other such land should be withdrawn, then an unambiguous order or

13

13 This excludes the "military, agency, school" and similar lands referred to at the begin ning of this opinion which qualify as "remaining surplus lands" of an Indian reservation within the meaning of section 3 of the Wheeler-Howard Act, supra, and were unquestionably included in the said withdrawal.