                                                                             July 16, 1979


79-52       MEMORANDUM OPINION FOR THE
            ASSISTANT ATTORNEY GENERAL, LAND
            AND NATURAL RESOURCES DIVISION

            Indian Lands—Eminent Domiain—Mineral Rights
            Held by the United States as Trustees


   This responds to your request for our opinion on the above matter.
   In United States v. Winnebago Tribe o f Nebraska, 542 F. (2d) 1002 (8th
Cir. 1976) (hereafter Winnebago), it was held that the United States may
not take through eminent domain lands that it holds in trust for Indians
under a treaty unless Congress clearly intended that Indian lands be taken.
The present case raises the question whether Winnebago applies to mineral
rights held by the United States in trust for the Osage Tribe under a statute
rather than a treaty. The Army Corps of Engineers contends that Win­
nebago does not apply to the lands in question; the Department of the In­
terior and your Indian Resources and Land Acquisition Sections contend
that it does. We have reviewed the arguments of the interested agencies
and have independently examined the authorities. We concur in the con­
clusion of the Indian Resources and Land Acquisition Sections that the
mineral rights in question cannot be taken without a clear statutory intent
to permit such action.1
   In FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960), the Supreme
Court held that a general eminent domain statute authorized the taking of
lands purchased by the Indians in fee simple. The Winnebago decision
stated that Tuscarora applied only to lands which “ were not held in trust
by the United States and were not reserved by treaty.” 542 F. (2d) at 1005.
The Corps contends that this case is distinguishable from Winnebago on
both points: the land is held absolutely by the Tribe instead of by the
United States, and the land is “ reserved,” if at all, by statute rather than
by treaty. Your Division and the Department of the Interior contend that



  1 We express no opinion whether the requisite congressional intent exists in this case.

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the land is held in trust for the Tribe and that the rationale o f Winnebago
applies to land so held under a statute.
   The background inform ation you have provided may be summarized as
 follows. In 1866, the United States and the Cherokee Nation agreed by
treaty that the United States could purchase Cherokee land in Oklahom a
to settle other friendly Indians. 14 Stat. 799. The treaty o f 1866 between
the United States and the Osage Tribe, 14 Stat. 687, provided that the
Osage could be removed from their Kansas reservation to O klahom a with
their consent and that half the proceeds from the sale o f the Kansas reser­
vation would be used to purchase a new reservation in Oklahom a. In 1870,
a statute authorized the President to remove the Osage Tribe from Kansas
when the tribe agreed. Act o f July 18, 1870, c. 296, § 12, 16 Stat. 362. The
Osage Reservation, now Osage County, Oklahom a, was created by the
Act o f June 5, 1872, 17 Stat. 228, to implement the 1870 statute. In 1883,
the United States bought the land in the reservation from the Cherokees in
fee simple “ in trust for the use and benefit” o f the Osage Tribe. In 1906,
the Osage Allotment Act, 34 Stat. 539, was enacted. Section 2 o f the Act
allotted the Tribe’s lands to its individual members. However, sections 3
through 5 o f the Act reserved the mineral rights in the land to the Tribe for
25 years, with the royalties to be paid to the United States in trust for the
Tribe and distributed to the individuals. This reservation o f mineral rights
has been extended several times and was made perpetual in 1978. See Pub.
L. No. 95-4% , § 2, 92 Stat. 1660.
   The C orps’ first argument is that the Osage Allotment Act conveyed the
mineral rights to the tribe absolutely, placing only the proceeds in trust for
the individual Indians. Your Division, to the contrary, argues that the
original conveyance o f the Reservation was to the United States in trust
for the benefit o f the Tribe and that § 3 o f the Allotment Act retained in
that status the mineral interest that was not conveyed to the individuals.
As you point out, the Supreme C ourt has twice stated that the Osage
mineral rights are held by the United States in trust for the Tribe. See,
United States v. Mason, 412 U.S. 391 (1973); West v. Oklahoma Tax
Commission. 334 U.S. 717 (1948).2 Moreover, in United States v. City o f
Pawhuska, 502 F. (2d) 821 (10th Cir. 1974), the United States litigated on
behalf o f the Tribe as trustee o f the mineral rights; the court stated that the
rights were held in trust by the United States. Finally § 3 o f the Osage Al­
lotment Act requires the approval o f the United States for any lease o f
mineral rights by the Tribe. These are persuasive indications that the
mineral rights are held by the United States for the Tribe’s benefit. On this
question o f real property law, we defer to your view that the United




   2 As the Corps notes, these cases involved the unquestionable trust status o f the individual
income interests in the minerals under Section 4 o f the Osage Allotm ent A ct, and the C o u rt’s
characterization o f the G overnm ent’s relation to the Tribe is dictum .

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States holds the mineral rights in trust for the benefit o f the Tribe.3 ,
   The C orps’ second argument is that the Winnebago rule only applies to
lands reserved by treaty and thus does not protect the mineral rights in this
case. We agree with your view that this argument is without merit. The
 Winnebago decision merely applies the general rule that, although Con­
gress has the power to abrogate rights secured to Indians by treaty, its in­
tent to renege on its previous commitments must be clearly shown. 542 F.
(2d) at 1005. See generally, Bryan v. Itasca County, 426 U.S. 373 (1976);
McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973);
Menominee Tribe v. United States, 391 U.S. 404 (1968). It is our opinion
that this principle applies equally where an agreement with a tribe is
ratified by statute. A ntoine v. Washington, 420 U.S. 194 (1975). Antoine
points out that the further negotiation o f Indian treaties was forbidden by
statute in 1871.4 T hat statute had the purpose and effect o f allowing the
House o f Representatives to participate in developing Federal Indian
policy. Id., at 202. However, the Court concluded, the statutory m ethod
o f ratifying agreements has the same legal effect as a treaty and is gov­
erned by the same rules o f construction. Id., at 204. See also, Choate v.
Trapp, 224 U.S. 665, 675 (1912). The historical accident that the agree­
ment moving the Osage Tribe to the Oklahom a reservation was im­
plemented by a statute in 1872 rather than by treaty at an earlier date does
not affect its construction.5 As you have concluded, the Winnebago ra­
tionale would therefore apply.

                                                Leon U     lm an

                                   Deputy Assistant A ttorney General
                                                        Office o f Legal Counsel




   ’ We therefore find it unnecessary to address the C orps’ assertion that Tuscarora applies to
any land owned in fee simple by an Indian tribe.
   4 Act o f March 3, 1871, 16 Stat. 566, 25 U .S.C . § 71.
   ’ We also note that the D epartm ent o f the Interior has raised an alternative argument that
the Osage Reservation was treaty land and that the mineral rights come within the most literal
reading o f Winnebago. As Interior points out, the 1866 Treaty authorized the United States
to remove the Osage Tribe to Oklahom a and obliged it to purchase the new reservation with
half the proceeds o f the sale o f the old one. The subsequent acquisition o f the Oklahom a
reservation, though effected under a statute, was in pursuit o f this treaty obligation and in
replacement o f treaty lands.

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