treaties but which have not been conveyed to the allottees with full power of alienation.

I have already ruled that section 3 of the act of 1901 relating to condemnation is applicable to lands of the Indians of the Five Civilized Tribes. The reasoning upon which that ruling is based compels the conclusion that section 4 above of the same act is likewise applicable to these lands.

Provisions for section line highways of limited width were included in the Creek and Cherokee agreements12 and in section 24 of the act of April 26, 1906 (34 Stat. 137). But these were special provisions to meet temporary needs. The Creek and Cherokee agreements required that damages for the opening and establishment of public highways be paid from tribal funds during the existence of the tribal governments then scheduled to expire in 1906. The act of 1906 likewise required that damages be paid from tribal funds but as that act continued the tribal governments in force until otherwise provided by law, the determination of the damages and the payment thereof from tribal funds was limited to the period "prior to the inauguration of a State government." Legislation of this nature plainly is of the temporary type hereinbefore referred to as not intended to survive statehood. As laws "locally inapplicable," they were not continued in force by the enabling act and could not nave been intended to displace other and more comprehensive statuwory provisions such as contained in the act of 1901. Even though the act of 1901 could not, in the absence of a territorial or State government, become immediately available, this difficulty was completely removed by the formation of the State of Oklahoma. Indeed, as a law of the United States not then locally inapplicable, the act of 1901 was required to be given the same force and effect in Oklahoma as elsewhere by section 21 of the enabling act of June 16, 1906, supra.

4. Secretarial grants of rights-of-way for telephone, telegraph and power transmission lines. The first paragraph of section 3 of the act of March 3, 1901, supra, authorizes the Secretary of the Interior to grant a right-of-way in the nature of an easement for general telephone and telegraph business—

through any Indian reservation, through any lands held by an Indian tribe or nation in the Indian Territory, through any lands reserved for an Indian agency or Indian school, or for other purpose in connection with the Indian Service, or through any lands which have been allotted in severalty to any

12 Section 10, supplemental Creek agreement (32 Stat. 500); section 37, Cherokee allotment agreement (32 Stat. 716).

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individual Indian under any law or treaty, but which have not been conveyed to the allottee with full power of alienation.

It follows from what has already been said that this provision of law is applicable to lands of the Five Civilized Tribes.

The act of February 15, 1901 (31 Stat. 790), authorizes the Secretary of the Interior to grant rights-of-way for telephone, telegraph and transmission lines and for sundry other purposes through reservations of the United States including Indian reservations, upon the condition, among others, that no such grant shall be made without the approval of the chief officer of the department having supervision over the reservation affected. With variations not here material, the act of March 4, 1911 (36 Stat. 1253), confers a like authority upon heads of departments with respect to telephone, telegraph and transmission lines. As to telephone and telegraph lines, these acts are broader in scope than the first paragraph of section 3 of the act of 1901 in that they authorize a grant of a rightof-way for a private telephone or telegraph line in addition to rightsof-way for lines used for general public service.

Whether or not the acts of February 15, 1901, and March 4, 1911, are applicable to lands of the Five Civilized Tribes depends upon whether such lands prior and subsequent to allotments in severalty may properly be classified as Indian reservations. I find little difficulty in holding that prior to allotment the lands belonging to the Five Civilized Tribes were legally constituted Indian reservations. Under certain early treaties, a comprehensive discussion of which is found in the Handbook of Federal Indian Law (ch. 3, sec. 4, subdivision E), specific and well-defined tracts of land were set apart as permanent homes for each of the nations comprising the Five Civilized Tribes. In Minnesota v. Hitchcock, 185 U. S. 373, 390, lands set aside for an Indian tribe with much less formality than this were declared to be an Indian reservation. See also Spalding v. Chandler, 160 U. S. 394. It is true that the lands were conveyed in fee to the nations by patents issued by the United States, but this did not terminate the guardianship relation existing between the Indians and the United States and they continued to be subject to the legislation of Congress enacted in the exercise of the Government's guardianship over the nations and their affairs. In this and in other respects the lands stood in exactly the same category as the lands of other legally constituted Indian reservations.

The administrative interpretation over a long period of years has been that the word "reservation" as used in the various right-of-way

statutes included lands allotted to individual Indians.13 However, on March 27, 1942, the Circuit Court of Appeals for the Tenth Circuit in United States v. Oklahoma Gas & Electric Co., 127 F. (2d) 349, held the acts of February 15, 1901, and March 4, 1911, to be without application to an Indian allotment for the reason that the allotment was no longer a part of the reservation. Since a petition for certiorari has been filed by the United States and is now pending before the United States Supreme Court, the question of the applicability of these acts to allotted lands of the Five Civilized Tribes can only be answered conditionally. If certiorari be denied or the Supreme Court on review affirms the decisions of the Tenth Circuit Court of Appeals, the acts cannot be held to be applicable. If, on the other hand, the Supreme Court reverses the Circuit Court of Appeals and sustains the departmental interpretation of the acts, then it must be held that they apply to allotted lands of the Five Civilized Tribes.* 5. Laws governing rights-of-way over and condemnation of lands acquired for Indian tribes in Oklahoma under the Oklahoma Indian Welfare Act. By section 1 of the Oklahoma Indian Welfare Act14 the Secretary of the Interior is authorized to acquire lands for Indian tribes in Oklahoma and take title to such lands in the name of the United States in trust for the tribes. The authority extends to lands located within as well as without Indian reservations. The lands so acquired for an Indian tribe become in effect Indian reservation lands and as such are subject, in my opinion, to the provisions of the act of March 3, 1901, and the acts of February 15, 1901, and March 4, 1911.

This conclusion is in accord with the interpretation placed by this office on the word "reservation" as used in a right-of-way statute differing in no material respects from the statutes here involved. In a memorandum dated July 1, 1938, from the Acting Solicitor to the Assistant Secretary consideration was given to the question of whether lands purchased for Indian school purposes constituted a reservation within the meaning of an act of Congress authorizing the granting of irrigation ditch rights-of-way across reservations of the United States. Disagreeing with a proposed interpretation of the word "reservation," the Acting Solicitor said:

A construction of the word "reservation" in this statute to refer only to reservations created out of the public domain and to exclude reservations where the land has been acquired by purchase, donation or otherwise unduly

13 Fresnol Water-Right Canal, 35 L. D. 550, 551 (1907); Instructions-Applications for Power Permits within Indian Reservations, 42 L. D. 419, 420 (1913); West Okanogan Valley Irrigation District, 45 L. D. 563, 565, 567 (1916).

* Decided February 15, 1943, 318 U. S. 206. [Editor.]

14 Act of June 26, 1936 (49 Stat. 1967, 25 U. S. C. sec. 501).

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restricts the application of the act of Congress by departmental interpretation. No previous formal decision of this Department nor any court opinion has been found which interprets the term "reservation" in right of way statutes in the manner proposed. On the contrary in the Icicle Canal Company case, 44 L. D. 511, at 512, it is reported that a reservation purchased by, and trust patented to, the Indians was held by the Department to be within the term "public lands and reservations of the United States" in the highway right of way statutes. The courts have generally given the term "reservation" a broad meaning to include any lands set apart by the Government for any purpose. (See United States v. Portneuf-Marsh Valley Irrigation Co., 213 Fed. 601, at 603.) In this connection it is relevant to refer to the case of United States v. McGowan decided in the Supreme Court on January 3, 1938 (302 U. S. 535, 82 Sup. Ct. 305). That opinion overruled the holding of the lower Federal courts that the Reno Indian Colony was not Indian country nor an Indian reservation since it was purchased by the Government for the Indians from private owners and not set apart out of the public domain. The court repeated the definition of the term "Indian reservation" as including any area validly set apart for the use of the Indians under the superintendence of the Government and found that the lands purchased for Indian use had been "validly set apart for the use of the Indians."

In view of the fact that there are many instances in which lands are set apart for Indian purposes where the lands were acquired by purchase by the Indians or by the Government, this Department should not without strong reason restrict the application of the term "reservation" to exclude such lands with the result that these areas are not covered by the right of way statutes.

*

The reasoning of the Acting Solicitor applies with even greater force to lands purchased and held in trust by the United States for an Indian tribe under the Oklahoma Indian Welfare Act. The absence of any declaration in the act that lands so acquired shall constitute an Indian reservation is unimportant. No such formal declaration is essential to the creation of an Indian reservation. It is enough that from what has been done there results a certain defined tract appropriated to Indian occupation and use. Minnesota v. Hitchcock, supra.

Summary of Conclusions. The conclusions to be drawn from the foregoing discussion are:

1. That authorization by Congress is a prerequisite to the valid condemnation of Indian lands restricted against alienation.

2. That the United States is an indispensable party to condemnation proceedings against the restricted lands of Indians of the Five Civilized Tribes.

3. That if Congress has authorized the condemnation of Indian lands it has also consented to suits against the United States in such cases subject to any condition which Congress sees fit to impose.

4. That the consent of the Secretary of the Interior is not essential to the maintenance of condemnation proceedings against lands of

Indians of the Five Civilized Tribes under the act of March 3, 1901 (31 Stat. 1084).

5. That section 11 of the Curtis Act of June 28, 1898 (30 Stat. 495), the act of February 28, 1902 (32 Stat. 43), and section 25 of the act of April 26, 1906 (34 Stat. 137), relating to the condemnation of lands of Indians of the Five Civilized Tribes constitute permanent legislation continued in force after the admission of Oklahoma into the Union by the Oklahoma enabling act of June 16, 1906 (34 Stat. 267), if not by the terms of the acts themselves.

6. That the act of March 3, 1901 (31 Stat. 1084), upon the admission of Oklahoma into the Union on November 16, 1907, became available as authority for the condemnation of lands allotted to Indians of the Five Civilized Tribes except in so far as authority to condemn allotted lands had been furnished by the acts of June 28, 1898 (30 Stat. 495), February 28, 1902 (32 Stat. 43), and April 26, 1906 (34 Stat. 137).

7. That the imposition of restrictions upon allotted lands of Indians of the Five Civilized Tribes by the act of May 27, 1908 (35 Stat. 312), did not repeal the authority for condemning such lands granted by the earlier acts.

8. That the provisions regarding eminent domain in the act of May 27, 1908, supra, did not limit the eminent domain authority previously granted.

9. That in the absence of Congressional direction to the contrary, the Federal and not the State courts have jurisdiction over proceedings in condemnation of restricted Indian lands.

10. That upon the admission of Oklahoma into the Union, the provisions of the act of March 3, 1901 (31 Stat. 1084), became available as authority for grants by the Secretary of the Interior of rightsof-way for public highways and for general telephone and telegraph business over lands of Indians of the Five Civilized Tribes.

11, That the provisions for section line highways contained in section 10 of the supplemental Creek agreement (32 Stat. 500), in section 37 of the Cherokee agreement (32 Stat. 716), and in section 24 of the act of April 26, 1906 (34 Stat. 137), were of temporary duration and not intended to survive the admission of Oklahoma into the Union.

12. That the lands of the Five Civilized Tribes prior to allotment constitute Indian reservations and as such are subject to the acts of February 15, 1901 (31 Stat. 790), and March 4, 1911 (36 Stat. 1253), authorizing the Secretary of the Interior to grant rights-of-way for telephone, telegraph and transmission lines, etc.

13. That the applicability of the acts of February 15, 1901, and March 4, 1911, supra, to lands allotted to Indians of the Five Civil