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in Arizona v. California. You will find of particular interest footnote 5 commencing on page 2 and footnote 45 on page 30a in the Solicitor General's opinion.

The continuing press of other matters has caused us to defer a current study of the Imperial situation. We hope, however, to go into it in the future, as circumstances of available staff and time permit. Sincerely yours,

STEWART L. UDALL, Secretary of the Interior.

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INDEX-DIGEST

Note-See front of this volume for tables

ADMINISTRATIVE PRACTICE

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1. The proceedings leading to the cancellation of a mining claim will not

be reopened many years after the decision has become final in the
absence of a compelling legal or equitable basis warranting recon-
sideration and an application for patent on a mining claim is
properly rejected where, more than sixteen years before the
patent application was filed, the claim had been declared null

and void and thereafter canceled----
2. A hearing is not required by departmental practice or by the re-

quirements of due process on the rejection of an application for a
patent on mining claims which, over 25 years before the patent
application was filed, were declared null and void in adverse
proceedings or by a default decision after notice of charges
against the claims and an opportunity for a hearing thereon were

given the record title owner of the claims---
3. Administrative practice, no matter how long standing, is not con-

trolling when it is clearly erroneous---
4. The Director of the Bureau of Land Management has authority at

any time to take up and dispose of any matter pending in a land
office or to review any decision of a subordinate officer with or

without an appeal.---
5. An amendment of a departmental regulation to provide expressly

for the first time that the showing required for making a second
homestead entry must be made in cases where a homestead appli-
cation has been filed but withdrawn prior to allowance will not
be applied where the first application was filed and withdrawn
prior to the effective date of the amendment, particularly where
the practice of the land office has been not to require the

showing
6. The letter from Secretary of the Interior Ray Lyman Wilbur to the

Imperial Irrigation District, February 24, 1933, which informally
ruled that the excess land laws did not apply to lands in the
Imperial Irrigation District, was based upon clearly erroneous

conclusions of law-----
7. Administrative practice, no matter of how long standing, is not con-

trolling where it is clearly erroneous.
8. Under departmental regulations (May 31, 1910, 38 L.D. 646, para. 78;

currently, 43 CFR 230.110), a desert land entryman who owns a

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477

497

497

l'age

ADMINISTRATIVE PRACTICE-Continued

water right can rely on his own efforts to convey his water to his
entry without assistance from a government project, thereby
avoiding the requirements of the reclamation law, or he can partic-
ipate in the project. In the latter case he must observe re-
quirements of the reclamation law, including land limitations----

498

ADMINISTRATIVE PROCEDURE ACT

ADJUDICATION
1. Where a hearing has been held in a contest, the record made at the

hearing shall be the sole basis for a decision and evidence sub-
mitted at a later date cannot be considered in deciding the case

on the merits...
HEARINGS
1. Where a hearing has been held in a contest, the record made at the

hearing shall be the sole basis for a decision and evidence sub-
mitted at a later date cannot be considered in deciding the case
on the merits.com

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309

477

ALASKA

HOMESTEADS
1. The filing of an allowable homestead application in Alaska consti-

tutes an entry within the meaning of the act of September 5,
1914, so that an individual who has filed an allowable homestead
application in Alaska but withdrawn it prior to allowance by the
land office has exercised his right of entry under the homestead
law and is properly required to make the necessary showing for
a second homestead entry under the 1914 act in connection with

any subsequent homestead application------
2. An amendment of a departmental regulation to provide expressly for

the first time that the showing required for making a second home-
stead entry must be made in cases where a homestead application
has been filed but withdrawn prior to allowance will not be applied
where the first application was filed and withdrawn prior to the
effective date of the amendment, particularly where the practice

of the land office has been not to require the showing----
INDIAN AND NATIVE AFFAIRS
1. 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 in-
contiguous tracts of land is correct, where the proposed allot-
ment 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-----
2. 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 inten-

477

340

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340

ALASKA-Continued
INDIAN AND NATIVE AFFAIRS—Continued

tion to superimpose the requirements of the general homestead

laws on the express requirements of the Alaska statute --
3. 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 require-

ments on applicants under each statute---
4. The historical and legislative materials out of which the Alaska Allot-

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

applicant
3. 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 discre-
tionary 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.-
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----
7. 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 ----
8. The Secretary of the Interior is authorized by the Alaska Allotment

Act, 34 Stat. 197, as amended, 70 Stat. 954, to promulgate regula-
tions 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 requires a showing of substantial actual
possession and use of the land, at least potentially exclusive of
others which is substantially continuous for the period required.-

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1

ALASKA-Continued

INDIAN AND NATIVE AFFAIRS-Continued
9. 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.---
LAND GRANTS AND SELECTIONS
1. Where an oil and gas lease offer was filed prior to enactment of the

Alaska Statehood Act on July 7, 1958, a selection for the land was
filed thereafter by the Territory of Alaska pursuant to the grant
for the University of Alaska, and a lease was subsequently issued
in response to the offer and prior to the admission of the State of
Alaska on January 3, 1959, it is error to cancel the lease because of
the filing of the selection and it is immaterial that subsequent to
the admission of the State the land was patented to the State pur-

suant to the selection ---
OIL AND GAS LEASES
1. The annual rental due for the sixth and succeeding years on non-

competitive oil and gas leases in Alaska issued prior to July 3,
1958, and extended thereafter is at the rate of 50 cents per acre

per annum.
2. Section 10 of the act of July 3, 1958, amending the Alaska Oil Proviso

of the Mineral Leasing Act of 1920 to require rentals for noncom-
petitive oil and gas leases in Alaska to be the same as similar
leases for lands elsewhere in the United States, is not applicable
to leases which had been granted 5-year extensions prior to the
act as to the remainder of their extended term, including a 2-year
extension resulting from segregation of the lease by partial as-
signmei under section 30(a) of the Mineral Leasing Act,

as amended.---
UNIVERSITY OF ALASKA GRANT
1. Where an oil and gas lease offer was filed prior to enactment of the

Alaska Statehood Act on July 7, 1958, a selection for the land was
filed thereafter by the Territory of Alaska pursuant to the grant
for the University of Alaska, and a lease was subsequently issued
in response to the offer and prior to the admission of the State of
Alaska on January 3, 1959, it is error to cancel the lease because
of the filing of the selection and it is immaterial that subsequent
to the admission of the State the land was patented to the State
pursuant to the selection---

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294

1

APPLICATIONS AND ENTRIES

GENERALLY
1. Any name used by an individual, whether real or fictitious, by which

she may be known or by which she may transact business or
execute contracts, may constitute her signature if affixed by that

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