Scope of Secretarial Designation of the Klamath Marsh 

M-36536                                                                                                        October 28, 1958 .

Indian Tribes: Terminal Legislation

Where, pursuant to statute, Indians are given an opportunity to make a choice whether to remain as members of a tribe or to withdraw from such membership on the basis of a plan presented to the Indians, it will be presumed that the Indians, in making their choice, relied on the plan as presented. Any subsequent substantial change in the basic plan would require that the Indians affected be given again an opportunity to choose between withdrawing or remaining. A construction of the statute which avoids the necessity of such reconsideration by the Indians of their choice is preferable to one which would necessitate a new election.

Memorandum

To:            Secretary of the Interior
From:        Solicitor
Subject:     Request for an opinion as to the scope of the Secretarial designation of the
                 Klamath Marsh as required ,by Sec. 1 of the Act of August 23, 1958, 72
                 Stat. 816 (Sec. 28 (a) of the Act of August 13, 1954, 68 Stat. 718, as
                 amended)

    You ask our opinion as to whether an area known as Wocus Bay can be excluded when the Secretary of the Interior and the Secretary of Agriculture jointly fulfill their statutory responsibility to designate "the tribal lands that comprise the Klamath Marsh" (Sec. 28 (a) of the Act of August 13, 1954, 68 Stat. 718, as amended by the Act of August 23, 1958, 72 Stat. 816). Wocus Bay is physically part of the Klamath marsh lands and as a matter of geography might factually be included in the Klamath Marsh. However, we can find no reason which would compel the inclusion of Wocus Bay as part of the "Klamath Marsh." On the contrary, as a matter of law there is a grave doubt as to whether the Wocus Bay area could at this date be designated a part of the Klamath Marsh and thus automatically, by the language of Sec. 28 (f) of the Act of August 13, 1954, as amended, supra, be made available for sale along with other properties being sold to pay off the interest of withdrawing members.

    The factual situation surrounding the Wocus Bay problem is briefly as follows: The original Klamath Termination Act, the Act of August 13, 1954 (68 Stat. 718) provided for the termination of Federal supervision over the trust and restricted property of the Klamath Tribe of Indians. One of the requirements of the act was that the Secretary of the Interior select and retain qualified Management Specialists who would, among other things, "determine and select the portion of the tribal property which if sold at the appraised value would provide sufficient funds to pay those members who elect to have their interest converted into money *     *     *." (Sec. 5 (a) (3) of the Act of August 13, 1954, supra.) The Management Specialists caused an appraisal to be made of all the assets of the Klamath Tribe and on a tentative basis selected the areas to be sold. The remaining assets, not so selected, were to be retained on behalf of those members of the tribe who did not choose to withdraw.

    On February 20, 1958, the Under Secretary of the Interior approved a tentative plan of management prepared by the Management Specialists, which, among other things, provided that the Wocus Bay area would be included in the areas to be set aside, as part of the future estate of the remaining members. A copy of this plan was made available to the committees of Congress interested in the Klamath termination problem, and as far as we can determine the original tentative management plan and all changes in the management plan adopted from time to time have included the following express provisions concerning the retention of Wocus Bay :

    "It is also planned to retain the portion of Klamath Marsh known as Wocus Bay , located in the South Half of Sections 29 and 30, and Sections 32 and 33 of Township 31 South, Range 9 East; and in Section 4 of Township 32 South, Range 9 East. This latter area can be diked and drained, after which it can be used for grazing purposes; or it can be maintained in its present marsh status to provide an excellent waterfowl hunting area." ¹

The Klamath Indians, who may be presumed to have relied upon the proposals included in the tentative plan of management, expressed, in an election, their choice either to remain as members of the tribe and participate in the tribal management plan or to withdraw from the tribe and have their interest in tribal assets converted into

____________________

    ¹ Management Plan, April 1957, Page 60
       Management Plan, February, 1958, Page 65
       Management Plan August, 1958, Page 41
       Management Plan, September, 1958, Page 23

money and paid to them. A total of 474 members, or 22.222 percent of the tribal membership, either elected to remain in the tribe or were deemed to have so elected because of their failure to cast a ballot. The election results were approved by the Under Secretary of the Interior by letter dated June 12, 1958 .

    In view of the fact that the number of persons electing to withdraw was greater than anticipated, an adjustment was required as to the areas selected for sale to pay off the interests of withdrawing members. By letter of July 29, 1958 , the Management Specialists reported their final selections, adjusted to compensate for the larger number of withdrawing members, to the Secretary of the Interior. The Assistant Secretary of the Interior approved the plan of partitionment effective the close of business June 30, 1958 , by letter dated August 15, 1958 . Consequently, at the time of the passage of the recent amendment to the Klamath Termination Act, the Wocus Bay area was no longer technically part of the property described in Sec. 28 (f) of the amended Klamath Termination Act as available for designation as the Klamath Marsh pursuant to Sec. 28 (a) of said Act.

    Although it is evident that more than one interpretation is open to those whose responsibility it is to carry out the terms of the act, there appears to be no legal requirement that an alternative should be adopted which would be inconsistent with the steps which have already been taken by the Secretary of the Interior in his administration of the act since its adoption on August 13, 1954. We may make use of the accepted presumption in aid of construction that Congress had, and acted with respect to, full knowledge and information on the subject matter of the statute and the existing conditions and relevant facts relating thereto, as to prior and existing law and legislation on the subject of the statute and the existing condition thereof *     *     *." (82 C.J.S. Statutes, Sec. 316.) As here pertinent, the factual situation which the Congress is presumed to have had in mind in passing the Act of August 23, 1958 , was that the Wocus Bay area had already been excluded from the land set aside for disposition on behalf of the withdrawing members and, in fact, had been promised to the remaining members. To require, by construction of the statute, a designation of the lands comprising the Klamath Marsh so as to select the Wocus Bay area as part of the estate of the withdrawing members of the Klamath Tribe, rather than that of the remaining members, would involve a change in the basis on which the choice was placed before those who had to elect to remain or withdraw. Consequently, that construction of the statute which keeps faith with the Indians should be the one adopted by the Secretary of the Interior and the Secretary of Agriculture, namely that the Wocus Bay area may not at this time be included by designation in the Klamath Marsh.

                                                                                                              EDMUND T. FRITZ,
                                                                                                                    Acting Solicitor.

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Source:  http://thorpe.ou.edu/sol_opinions/p1826-1850.htm