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shall take, hold, own or control at one time *** oil or gas leases (including options for such leases or interests therein) on land held under the provisions of this Act exceeding in *** the case of the State of Alaska * * * three hundred thousand acres in the northern district * * *»

The pertinent regulation is 43 CFR 3120.1-2 which generally follows the statutory language, but which also specifically refers to the inclusion of offers for oil and gas leases in the computed acreage of land held, owned, or controlled.

The statute speaks very explicitly in terms of the holding, owning, and controlling of acreage. Even though the regulation refers to offers, it does so in terms which make it clear that the acreage to be charged against the offeror is acreage which the offeror may “take, hold, own, or control * * *

through

* * * offers * * *." For acreage to be charged against a party, it is essential that it be held, owned, or controlled in some manner. It is appropriate that land embraced in an offer for a noncompetitive oil and gas lease should be charged against the offeror when the lease is to be issued on a first come, first served basis. Although no lease has been issued, in such a case the offeror does have a control over the acreage embraced in his offer since by filing his application he has obtained priority and has precluded anyone else from obtaining a lease until there has been some disposition of his own application. In other words, such an offeror does have a certain measure of control over the land even if he has no actual ownership. However, it is a different matter when we consider an offer for a lease which is required to undergo the simultaneous filing procedure. In such a situation all citizens are afforded an equal opportunity to file offers for oil and gas leases during the simultaneous filing period. No one of the offerors can be said to have any control over the acreage. Any other person may file on that acreage and has an equally good opportunity of obtaining it. Control comes only after priority has been established when the winning offeror is in as good a position as an applicant who will obtain a lease on a first come, first served basis. Until that drawing, however, we do not find any holding, ownership, or control of acreage by an applicant within the meaning of either the statute or the regulatiton implementing it.

The provision in the regulation which expressly states that acreage held, owned, or controlled through offers will be chargeable was added by Circular 2009 (24 F.R. 281) which was published on January 13, 1959. In proposing this amendment the Department stated that it was long-standing departmental policy to hold acreage embraced in offers chargeable. This was true, but the rulings cited are dated 1925 and 1926, long before the simultaneous filing procedure was instituted.

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AND GAS LEASE OFFERS

September 17, 1964

Therefore, they do not properly have any bearing on the matter now before us, a case concerned strictly with the drawing of one amongst many simultaneously filed offers.

In the past the Department, without actually considering the difference between lease offers filed on a first come, first served basis and lease offers subject to drawing to determine priority, has accepted an interpretation of the regulation which held chargeable all acreage embraced in offers whether or not subject to drawing. Melvin A. Brown, 69 I.D. 131 (1962); Edwin G. Gibbs, 68 I.D. 325 (1961). In each of those cases the offeror was charged with acreage embraced in an offer which was subject to the simultaneous filing procedure. After another party had been successful in obtaining first priority in the drawing, the other offerors remained charged with the acreage embraced in their offers. Not until his unsuccessful offer was officially withdrawn or the appeal period ended was an offeror relieved from chargeability. The Department's holding in the Brown case was challenged in the courts. In Brown v. Udall, No. 18,274, C.A.D.C. Cir. (June 18, 1964), the court held that the Department had erred in its decision and that, under the proper interpretation of the regulation, Mr. Brown was chargeable only with the acreage which he actually held under lease and the acreage for which he was the first qualified applicant. It is true that the court did not expressly state that acreage included in an offer was not chargeable before the drawing, but instead actually held only that such acreage is not chargeable after the drawing unless the offer has been given first priority. Nevertheless the decision clearly casts doubt upon the assumption that acreage included in an offer subject to drawing is chargeable prior to the drawing. The court expressly stated that it did not consider the question of whether the regulation holding acreage embraced in offers chargeable went beyond the statute. We do not regard the regulation as going beyond the statute, but in order that regulation and statute may be consistent it is essential that the regulation be interpreted as holding chargeable acreage in an offer only when the offeror has, through the offer, obtained some holding, ownership, or control over the acreage.

In summary, it is our opinion that the acreage embraced in the offers filed by these three companies jointly was not chargeable against the companies until after there had been a drawing and then only that acreage embraced in their successful offers was chargeable. The basis for this opinion is that acreage must be subject to some form of holding, ownership, or control before it becomes chargeable. Because of our opinion on this point, all the questions raised in the Acting Manager's memo and the various materials which have come to us from the interested companies do not have to be answered. In our opinion the problem immediately before us may be settled on the basis that acreage embraced in an offer which is required to undergo the simultaneous filing procedure is not chargeable until after the offer has been successfully drawn.

EDWARD WEINBERG,

Acting Solicitor.

ALLOTMENT OF LAND TO ALASKA NATIVES

Alaska: Indian and Native Affairs
Solicitor's opinion M-36352, June 27, 1956, holding that the allotment right of

an Alaskan native under the Alaska Allotment Act, 34 Stat. 197, prior to the 1956 amendment, was limited to a single entry and that the allotment could not embrace a grant of incontiguous tracts of land is correct, where the proposed allotment is of tracts which are not related in any sense, or where, his allotment having once been determined, an additional grant to

the same applicant is being considered. Alaska: Indian and Native Affairs—Words and Phrases Congress has frequently used the word "homestead" in connection with the

allotment of land to Indians to indicate merely that the land allotted was to be subject to special status and the use of the word "homestead" in the Alaska Allotment Act, 34 Stat. 197, as amended, 70 Stat. 954, is not necessarily indicative of an intention to superimpose the requirements of the

general homestead laws on the express requirements of the Alaska statute. Alaska: Indian and Native Affairs—Indian Allotments on Public Domain:

Generally-Statutory Construction: Generally While both the Indian Allotment Act of 1887, 24 Stat. 388, and the Alaska

Allotment Act, 34 Stat. 197, as amended, 70 Stat. 954, are representative of the method which was used to grant land to "uncivilized" persons in the late nineteenth and early twentieth centuries, the specific requirements of the numerous allotment statutes enacted during that time vary according to the particular situations which they were intended to meet and the two acts should not be read in pari materia to impose identical requirements on

applicants under each statute. Alaska: Indian and Native Affairs The historical and legislative materials out of which the Alaska Allotment

Act, 34 Stat. 197, as amended, 70 Stat. 954, emerged impel the conclusion that the Secretary is authorized to make single allotments of incontiguous tracts of land which, taken as a whole, compose the single unit which is the actual home of the applicant.

September 21, 1964

Alaska: Indian and Native Affairs—Statutory Construction: Generally

The effect of the enactment of Departmental regulations in the 1956 amendment to the Alaska Allotment Act, 70 Stat. 954, was to make mandatory under the statute the determination of use and occupancy which, prior to the 1956 amendment, had been discretionary except where the claim of a preference right was involved, but the amendment did not bind the Department to the exclusive consideration of the specific elements of proof which,

though listed in the regulations, were not made a part of the amendment. Alaska: Indian and Native Affairs Both Frank St. Clair, 52 L.D. 597 (1929), and Frank St. Clair (On Petition),

53 I.D. 194 (1930), affirm the rule that occupancy of the land sufficient to establish a preference right under the Alaska Allotment Act, 34 Stat. 197, prior to amendment in 1956 did not need to be continuous and that residence

on the land was not required to the exclusion of a home elsewhere. Alaska: Indian and Native Affairs The reference to residence and cultivation in Herbert Hilscher, 67 I.D. 410

(1960), if that reference was intended to imply that other instances of occupancy expended by the native according to his natural culture and environment would be inadequate to show substantial actual possession and use of the land, must be restricted to the interpretation of existing regulations and, in view of the history of the Alaska Allotment Act, 34 Stat. 197, as amended, 70 Stat. 954, there is no justification for treating the reference to residence and cultivation as disclosing a limitation on the authority of the Secretary which would prevent him from promulgating regulations

that evidence a broader policy. Alaska: Indian and Native Affairs The Secretary of the Interior is authorized by the Alaska Allotment Act, 34

Stat. 197, as amended, 70 Stat. 954, to promulgate regulations which provide for a determination of "use and occupancy” of the land according to the native's mode of life and the climate and character of the land ; taking these factors into consideration, such use and occupancy require a showing of substantial actual possession and use of the land, at least potentially ex

clusive of others which is substantially continuous for the period required. Alaska: Indian and Native Affairs The Alaska Allotment Act, 34 Stat. 197, as amended, 70 Stat. 954, authorizes

the Secretary of the Interior, "in his discretion" to promulgate a rule that allotments will not be made in units smaller than forty acres in size and conformed to the regular rectangular survey pattern and to prescribe by regulation in advance that a determination of the applicant's use and occupancy of a significant portion of any conforming forty-acre tract shall normally entitle the applicant to an allotment of the full tract where no conflicting claim is involved.

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M-36662

September 21, 1964

To:

ASSISTANT SECRETARY-PUBLIC LAND MANAGEMENT

Subject: ALLOTMENT OF LAND TO ALASKAN NATIVES UNDER THE 1906

ACT AS AMENDED

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This memorandum is in response to your request for a determination of the authority of the Department of the Interior to issue certain regulations governing the allotment of lands to natives of Alaska under the act of May 17, 1906, as amended by the act of August 2, 1956 (hereinafter refererd to as the Alaska Allotment Act).

Present Departmental regulations state that an applicant's proof of "substantially continuous use and occupancy,” as required by the statute for an allotment, should show, among other indices, residence, cultivation and improvements on the land in question "and the use, if any, to which the land has been put for fishing or trapping."2 An allotment of incontinguous tracts of land is expressly prohibited by the regulations.

The proposed changes in the existing Departmental regulations would expressly permit consideration of (1) native custom and mode of living; (2) climate and character of the land applied for; and (3) customary seasonability of occupancy in determining whether an applicant for an allotment has shown substantially continuous use and occupancy of the land for a period of five years. The proposed regulations would also allow an applicant for an allotment to obtain in a single allotment more than one tract of land which would be no smaller than forty acres in size and conformed to the regular rectangular survey pattern.

The proposed regulations represent a change of existing policy concerning the allotment of land to Alaskan natives. In addition to occupancy according to the standards of the white settler, the proposed regulations recognize occupancy according to the standards of the native in his present culture and environment. Similarily, the allotment of incontiguous tracts of land to a native applicant would recognize the fact that several different locations, taken as a whole, may compose the single unit which is his actual home. Today, the home of an Alaskan native may include a fishing site, a hunting and trapping site, reindeer headquarters and corrals, and tracts regularly used for other purposes.

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1 34 Stat. 197, as amended, 70 Stat. 954 ; 48 U.S.C. 357, 357a, 357b (1958).
2 43 CFR 67.7.
3 43 CFR 67.4.

• Dep't Interior, Report to the Secretary of the Interior by the Task Force on Alaska Native Affairs, 59 (1962).

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