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September 21, 1964 The Alaska Allotment Act provides in part that: That the Secretary of the Interior is hereby authorized and empowered, in his discretion and under such rules as he may prescribe, to allot not to exceed one hundred and sixty acres of vacant, unappropriated and unreserved nonmineral land in the district of Alaska, or, subject to the provisions of the Act of March 8, 1922 (42 Stat. 415; 48 U.S.C. 376–377), vacant, unappropriated, and unreserved land in Alaska, that may be valuable for coal, oil or gas deposits, to any Indian, Aleut or Eskimo of full or mixed blood, who resides in and is a native of Alaska, and who is the head of a family, or is twenty-one years of age; and the land so allotted shall be deemed the homestead of the allottee and his heirs in perpetuity, and shall be inalienable and nontaxable until otherwise provided by Congress * *

The 1906 act gave a preference in the case of occupancy. It provided that:

* * Any person qualified for an allotment as aforesaid shall have the preference right to secure by allotment the nonmineral land occupied by him not exceeding one hundred and sixty acres.

By the 1956 amendment, occupancy was made a prerequisite for all allotments under the act in connection with an amendment which permitted natives to sell the land alloted to them with the approval of the Secretary. As to occupancy, the 1956 amendment stipulated that:

No allotment shall be made to any person under this Act until said person bas made proof satisfactory to the Secretary of the Interior of substantially continuous use and occupancy of the land for a period of five years.

On its face the Alaska Allotment Act vests authority in the Secretary to make allotments "in his discretion and under such rules as he may prescribe.” This broad delegation suggests that Congress intended that the primary responsibility for developing a program of allotments to Alaskan natives within the specific limitations of the statute should fall to the Secretary. Although a number of specific limitations are set forth in the statute, there is no language which expressly prohibits the Secretary from giving consideration to the culture and environment of Alaskan natives in setting a standard of use and occupancy under the statute. Similarily there is no express prohibition against granting incontinguous forty-acre tracts of land in a single allotment so long as the total area of the allotment does not exceed one hundred and sixty acres. These limitations, if they exist, must be inferred from the language of the statute by reason of the relevant circumstances which preceded its enactment.

6 34 Stat. 197, as amended, 70 Stat. 954 ; 48 U.S.C. 357, 357a, 357b (1958). 6 70 Stat. 954 ; 48 U.S.C. 357b (1958).

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Allotment of Incontiguous Tracts In 1956, the Associate Solicitor for Public Lands held that the allotment right of an Alaskan native under the Alaska Allotment Act was limited to a single entry and that the allotment could not embrace a grant of incontiguous tracts of land. In reaching this conclusion the opinion relies on three basic points. First, that the Alaska Allotment Act provides that land allotted, “shall be deemed the homestead of the allottee," and that homestead laws applicable to white settlers in Alaska in 1906 required the land on which a homestead entry was made to be located "in a body in conformity to the legal subdivisions of the public lands." Second, that a similar conclusion had been reached under the Indian Allotment Act of 1887 (applicable to Indians within the territory now occupied by the contiguous forty-eight States) with respect to the allotment of incontiguous tracts of public domain land and that "nothing in the 1906 Act appears to require a different interpretation.” Third, that the legislative history of the Alaska Allotment Act appeared to contemplate that Indians would be allotted only one entry and that “Congress apparently sought to grant a homestead in its ordinary meaning as a single tract and not a series of disconnected tracts."

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, there can be no quarrel with the 1956 memorandum. However, a different case is presented by the single allotment of several tracts of land which, although not physically connected, are related to each other by the culture and environment of the native applicant. With respect to this situation, the arguments of the 1956 memorandum are not, in my opinion, germane.

The use of the word "homestead" in the Alaska statute is not necessarily indicative of an intention to superimpose the requirements of the general homestead laws on the express requirements of the Alaska Allotment Act. 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.8

The case of U.S. v. Thurston County, Nebraska, concerned the September 21, 1964 exemption from local taxation of homesteads acquired under the act of June 20, 1936, as amended by the act of May 19, 1937.10 Among other points, the defendant contended that many of the tracts involved in the litigation were taxable by the county in which they were located because they could not be regarded as "homesteads” by reason of various alleged defects. Although the express requirements of the statute had been met in designating the tracts, it was stipulated that in one instance the exemption was claimed for separate noncontiguous tracts and that some of the claimants did not reside on the land involved. Other defects urged were nonresidency on some tracts, more than one claimant for some tracts, and that some of the tracts were unimproved.

7 Solicitor's Opinion, M-36352 (June 27, 1956).

8 For example, Indian allotment acts passed in 1898, 1906, 1919, and 1920 provided that homestead allotments should be inalienable and nontaxable. 30 Stat. 495, 505–513 (1898); 34 Stat. 539 (1906); 41 Stat. 16 (1919); 41 Stat. 751, 756 (1920).

9 54 F. Supp. 201 (D.C.D. Neb. 1944), al'd 149 F. 2d 485 (8th Cir. 1945).

The defendant argued that, in addition to express requirements for the "homesteads” specified in the Act, there were certain other characteristics, such as contiguity, necessarily required by the term "homestead.” In disposing of this contention the court stated:

Homesteads, as they are understood in our modern American law, were unknown to the common law. They are creatures of statute and of the statutes of the several governmental entities creating them. As such, subject only to controlling constitutional limitations, they may be identified and defined as the legislature may determine. * * * Congress may, for its purpose, give the term its own definition, and it has done that in this instance. (Listing the express requirements of the amendment.] ”

Evidence that Congress, at the turn of the century, did not view the use of the word "homestead" as incompatible with allotment of incontiguous tracts appears in an Indian allotment statute passed in 1904. The act of April 21, 1904 provided, in part, that certain land should be reserved for the use of the Turtle Mountain Chippewas and that, * * * it is agreed that the United States shall, as soon as it can conveniently be done, cause the land hereby reserved * * to be surveyed as public lands are surveyed, for the purpose of enabling such Indians as desire to take homesteads, and the selection shall be made so as to include in each case, as far as possible, the residence and improvements of the Indian making selections, giving to each an equitable proportion of natural advantages, and when it is not practicable to so apportion the entire homestead of land in one body it may be set apart in separate tracts, not less than 40 acres in one tract, unless the same shall abut a lake; but all assignments of land in severalty are to conform to the Government's survey * * *. (Italics supplied]

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10 49 Stat. 1542, as amended, 50 Stat. 188 ; 25 U.S.C. 412a (1958).
11 54 F. Supp. 201, 210 (D.C.D. Neb. 1944), aff'd 149 F. 2d 485 (8th Cir. 1945).

12 33 Stat. 224 (1904). In addition to the Turtle Mountain Chippewa statute, several other statutes enacted during the first decade of the twentieth century suggest a single allotment of incontiguous tracts of land. The act of March 1, 1907, provided that members of the Blackfeet Tribe were to be allotted 40 acres of irrigable land and 280 acres of additional land valuable only for grazing. (34 Stat. 1041-42 (1907)). The act of June 28,

As its second point, the 1956 opinion relies on an analogy drawn between the Indian Allotment Act of 1887 and the Alaska Allotment Act.

However, the conclusion that the Indian in the continental United States was restricted to allotments of contiguous tracts of land under the Indian Allotment Act of 1887,13 turned on the construction given to an express condition in the statute that, an Indian was entitled to an allotment of land on which he had made “settlement.” 13a

By way of contrast, “settlement” is not specified as a requirement of the Alaska Allotment Act.

There is no reason why the two acts should be read in pari materia to impose identical requirements on applicants under each statute. While both are representative of the method which was used to grant lands 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.14

A thorough analysis of the policy behind the use of the method of allotment for distribution of land to Indians in the United States

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1906, provided that all lands belonging to the Osage tribes was to be divided among the members of the tribe on the basis of three rounds in which each member was to select 160 acres of land in each round. (34 Stat. 539 (1906).) A proviso adds “that all selections herein provided for shall conform to the existing public surveys in tracts of not less than forty acres, or a legal subdivision of a less amount, designated a lot'." The remainder of the land was to be assigned “as equally as practicable" to each member.

13 “Where any Indian not residing upon a reservation * * * shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated, he or she shall be entitled *** to have the same allotted to him or her * **." [Italics added.] 24 Stat. 388 (1887).

* * * it must be remembered that settlement, by the very terms of the act, is a prerequisite to allotment under section 4 of the act of February 8, 1887. It is held that said act is, in its essential elements, a settlement law; and that "to make such act effective to accomplish the purpose in view, it was doubtless intended it should be administered, so far as practicable, like any other law based upon settlement." Indian Lands-Allotments (8 L.D. 647). Where the evident purpose of the act is considered, the term "settlement" therein, must inevitably be construed to mean practically the same as it does under the homestead law, where the essential requirement is actual inhabitancy of the land to the exclusion of a home elsewhere. (Instructions Relative to Indian Allotments, 32 L.D. 17, 18-19 (1903)).

14 For example, according to one source, between 1900 and 1910 over fifty allotment acts were enacted by Congress for the benefit of Indians in the United States. Kinney. A Continent Lost-A Civilization Won 245–46 n. 47 (1937).

Some statutes merely directed the Secretary of the Interior to make allotments in severalty to Indians in particular tribes, 32 Stat. 744 (1903), 35 Stat: 448 (1908). . Others set out a specific limitation on the amount of land to be allotted, 31 Stat. 766 (1901), 32 Stat. 795 (1903), 33 Stat. 224 (1904), 33 Stat. 225 (1904), sometimes dependent on the kind of land involved in each allotment, 36 Stat. 863 (1910). Qualified recipients were sometimes the heads of families, 32 Stat. 263 (1902), sometimes every man, woman, and child, 34 Stat. 335 (1906), and, in one statute, an individual Indian, 36 Stat. 533, 534 (1910). Some of the statutes provided for selection of the land by the Indian, 31 Stat. 766 (1901), 32 Stat. 795 (1903). Others provided that, if no selection was made by the Indian, a mandatory assignment was to be made by the Secretary, 31 Stat. 672, 676-80 (1900).

September 21, 1964

demonstrates that this policy had no necessary or automatic application to the allotment of land to natives of Alaska.

A basic consideration underlying the allocation of land to Indians in the United States was the belief that private, individual ownership was an instrument of civilization.15 The desire of white citizens in the United States to settle and use the land held by the Indian tribes also played a great part in the adoption of the Indian allotment system in the United States.16 An accurate, if harsh, measure of these forces was presented in testimony before Congress in 1934 by Professor D. S. Otis, of Columbia University:

15 In 1876, Commissioner of Indian Affairs Smith wrote: “It is doubtful whether any high degree of civilization is possible without individual ownership of land * • *. No general law exists which provides that Indians shall select allotments in severalty, and it seems to me a matter of great moment that provision should be made not only for permitting, but requiring, the head of each Indian family, to aceept the allotment of a reasonable amount of land, to be the property of himself and his lawful heirs, in lieu of any interest in any common tribal possession. Such allotments should be inalienable for at least twenty, perhaps fifty years, and if situated in a permanent Indian reservation, should be transferable only among Indians." (Dep't Interior, Report of the Commissisoner of Indian Affairs in (1876)).

In 1877 the agent for the Yankton Sioux wrote: “As long as Indians live in villages they will retain many of their old and injurious habits. Frequent feasts, community in food, heathen ceremonies, and dances, constant visiting—these will continue as long as the people live together in close neighborhoods and villages * . *. I trust that before another year is ended, they will generally be located upon individual lands of farms. From that date will begin their real and permanent progress.” (Dep't Interior, Report of the Commissioner of Indian Affairs 75–76 (1877)).

In 1882, another agent wrote: “The allotment of land in severalty will go a long way, in my judgment toward making these more advanced tribes still nearer the happy goal. I do not think that the results of labor ought to be evenly distributed irrespective of the merits of individuals, for that would discourage effort ; but under the present communistic state of affairs, such would appear to be the result of the labor of many." (Dep't Interior, Report of the Commisssioner of Indian Affairs 86 (1882)).

16 In 1880, Secretary of the Interior Schurz wrote : "[Allotment] will eventually open to settlement by white men the large tracts of land now belonging to the reservations, but not used by the Indians. It will thus put the relations between the Indians and their white neighbors in the western country upon a new basis, by gradually doing away with the system of large reservations, which has so frequently provoked those encroachments which in the past have led to so much cruel injustice and so many disastrous collisions." (Dep't Interior, Report of the Secretary of the Interior 12 (1880)).

Again in 1881, Secretary Schurz wrote: “It must be kept in mind that the settlement of the Indians in severalty is one of these things for which the Indians and the Government are not always permitted to choose their own time * * The question is, whether the Indians are to be exposed to the danger of hostile collusions, and of being robbed of their lands in consequence, or whether they are to be induced by proper and fair means to sell that which, as long as they keep it, is of no advantage to anybody, but which, as soon as they part with it for a just compensation, will be a great advantage to themselves and their white neighbors alike." (The Speeches, Correspondence, and Political Papers of Carl Schurz 126 (Bancroft ed. 1913)).

And, still more bluntly, "There is nothing more dangerous to an Indian reservation than a rich mine. But the repeated invasions of the Indian Territory, as well as many other similar occurrences, have shown clearly enough that the attraction of good agricultural lands is apt to have the same effect, especially when great railroad enterprises are pushing in the same direction.” (I.D. at 142.)

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