an 3 1 7 halt ‘ UNITED STATES GOVERNMENT Jame AUG 28 1999 memorandum eth, AUTEG Phoenix Area Director mwenct! Jurisdictional Issues - Winnemucca Indian colony Superintendent, Western Nevada Agency - Attention: Curtis Millsap, Realty Officer : This is in reference to your memorandums dated april 15 -and June 29, 1992, requesting an opinion regarding jurisdiction‘ for purposes of leasing, law enforcement, social ‘services, etc., over 20 acres of Winnemucca Indian Colony lands. The 20-acre tract in question is described as the N4NEXSW3 of Section 29, Township 36 North, Range 38 East, Mount Diablo Meridian, Nevada. (The Winnemucca Indian Colony site embraces a total of 340 acres ~~ 320 acres withdrawn and set aside from the public domain and 20 acres acquired by purchase.) The Act of May 21, 1928 (45 Stat. 618), authorized the appropriation of the funds needed to purchase. the 20 acre-tract for the purpose of establishing an Indian Colony for Indians located in the vicinity of Winnemucca, Nevada, moving the cabins of those Indians to that property, erecting new cabins, and building xoads in the colony. The instrument evidencing the acquisition of the 20-acre tract for the Winnemucca Indian Colony site ~ shows that title was taken in the name of the United States and not in trust,.or subject to the rights of use and occupancy of any specific Indian tribe. By three separate federal actions, lands were set aside or purchased for the use of a band of homeless Shoshone Indians located in the vicinity of the town of Winnemucca, which eventually became known as the Winnemucca Indian Colony. Two Executive Orders, withdrawing 160 acres each from the public domain, indicated that the lands were reserved from entry, sale or other disposal and set aside for the use of a certain band of homeless Shoshone Indians then residing near the town of Winnemucca, Nevada. First, by Executive order (No. 2639), dated June 18, 1917, the following described 160 acres were set aside for "the Winnemucca Band" of homeless Shoshone Indians: The NEk of Section 32, Township 36 North, Range 38 East, Mount Diablo Meridian, Nevada (It should be noted that the same Executive order also set aside a 160-acre tract for the "Battle Mountain Band" of Shoshone Indians then residing near the town of Battle Mountain, Nevada.) Seernen cavern) coSecond, by Executive Order (No. 2803), dated February 8, 1918, the following described 160 acres were set aside: The SE of Section 32, Township 36 North, Range 38 West, Mount Diablo Meridian, Nevada. According to the correspondence filed in Bureau of Indian Affairs! File No. 2539-1927-Carson-723 (National Archiv Washington, D.c.), it appears that, instead of moving to and establishing homesites on the above-described 320 acres, the Shoshone Indians illegally built homes on a 20-acre tract of land owned by the Southern Pacific Railway or Central Pacific Land Company. In a letter dated September 30, 1926, the Superintendent, Carson Indian School, Stewart, Nevada, advised Rev, John McAllister, Winnemucca, Nevada, regarding the Indians’ illegal occupation of the 20-acre tract near the town of Winnemucca. The Superintendent's letter suggested that, if the Indians desired to live on the 20-acre tract, they should purchase the property themselves. ‘The Superintendent was of the opinion that "(i)t would be very difficult to convince the Indian Office as well as Congress that an additional tract of land for the Indians at Winnemucca is necessary, inasmuch as there is already a large tract of land near by which was set aside for their use." It appears that the Superintendent was referring to one of the 160-acre tracts that were set aside by the executive order(s) for the same Shoshone Indians. In a letter dated February 26, 1927, to Senator Tasker L. Oddie, the Commissioner of Indian Affairs made the following statement in regard to the purchase of the 20-acre tract: “ . . . . The Indians at this place have 160 acres of Government land set aside for their use. However, it appears that they have not moved to the land because it is about a mile further from town than that belonging to the railroad company, upon which they now live; also there is no water available for them on the Government tract. “Tt is stated that the railroad company is willing to sell the 20 acres for §25 an acre or a total of $500. As the Indians desire to remain where they are, we have asked the Superintendent for his recommendation as to the advisability of selling enough of the 160 acre Government tract to provide the $500 necessary to buy the railroad land. When we hear from him we will write you again." In closing, the Commissioner stated that legislation would be necessary to accomplish the purchase.By letter dated December 1, 1927, the Superintendent advised the Commissioner that the railroad company had offered to sell the 20-acre tract for $500. Inasmuch as the removal of the Indians would have caused a great hardship (and considering the location and the relatively low cost of acquiring the 20-acre tract), he recommended that steps be taken by the Indian Office to secure an appropriation from Congress to fund the purchase of the 20-acre tract and enable the Indians to continue to live on the property. Based on the findings and recommendations of the Indian office, Congress passed the Act of May 21, 1928 (45 Stat. 618), authorizing the appropriation of $500 for the purchase of the above-described 20-acre tract to be used as an Indian colony. The Act also authorized the appropriation of $2,000 for "moving the cabins of Indians residing in the vicinity of Winnemucca, Nevada, to the above described location, for making necessary repairs to said cabins, building roads in the colony, and for erecting new cabins." ‘The Act of May 29, 1928 (46 Stat. 899), identified as the second deficiency act for the Fiscal Year 1928, appropriated the $2,500 needed to implement the above: cited act. “By deed dated September 10, 1928, the Central Pacific Railway Company and United States Trust Company of New York conveyed to the “UNITED STATES OF AMERICA," for the consideration of $500, the NiNEXSW% of Section 29, Township 36 North, Range 38 East, Mount Diablo Meridian, Nevada. The above-cited £41é did not reveal why title was acquired by the United States without reference to the Indians. Subsequent to the establishment of the Winnemucca Indian Colony, on June 1i, 1935, the Indians living there voted to organize under the-Indian’ Reorganization Act of June 18, 1934 (48 Stat. 984). A constitution and bylaws covering the Colony was approved by the Assistant Secretary of the Interior on March 5, 1971. Article I of the 1972 constitution provided that the territorial jurisdiction of the Winnemucca Indian Colony would extend to all lands within the then-existing colony, and any lands thereafter acquired by or for the colony. Section 1 of Article I reads as follows: "Section 1. The territorial jurisdiction of the Winnemucca Indian Colony, hereinafter referred to as the "colony," shall include the following lands: (a) That 160 acres set aside by Executive order of June 18, 1917, described as the NE} of Section 32, Township 36 N., Range 38 E., M.D.M. (b) That 160 acres withdrawn by Executive order of February 8, 1918, described as the SEX of Section 32, Township 36 N., Range 38 E., M.D.M.4 (c) That 20 acres acquired by the Acts of May 21, 1928 (45 Stat. 618) and May 29, 1928 (45 Stat. 899) and described as Nx, NE%, SW\, Section 29, Township 36 N., Range 38 E., M.D.M." With the approval of the constitution and bylaws, the Secretary of the Interior recognized the Winnemucca Indian Colony as the owner of the above-described 340 acres. Therefore, the members-— of the Colony have the legal right to occupy and have control over these lands as defined under the constitution and bylaws. Notwithstanding the fact that title is in the United states, the subject 20-acre tract has been administered as Winnemucca tribal trust lands; accordingly, the land and the residents thereon have been provided with the government services afforded to any other lands held in trust by the United states. In reference to tribal membership, Article II of the 1971 constitution provides that the "membership of the colony shall include all persons of a least one-fourth (1/4) degree Paiute and/or Shoshone Indian blood" who meet certain requirements. Based on the foregoing facts, we conclude the Colony lands are Indian country and constitute an Indian reservation. The lands were acquired pursuant to express authorization from Congress and are held for the benefit of the colony residents. The fact that the title is held in the name of the United States and does not specifically state the lands are held in trust for the Colony is immaterial to the determination of whether or not the Yands constitute’an Indian reservation. The cornerstone of the trust relationship is, in fact, the premise that the United States does hold the legal title to the lands. In United ‘States _v. John, 437 U.S. 634 (1978) the Supreme Court found that where land is: acquired for Indians, the land constitutes an Indian reservation regardless of whether the Secretary takes the extra step of formally proclaiming the land as an Indian reservation. Finally we note, as previously mentioned, the colony is organized pursuant to Section 16 of the IRA. The Colony’s IRA constitution, which was approved by the Secretary, specifically describes the lands subject to tribal jurisdiction. Tt is, thus, clear the United states considers the Colony ‘lands to be held in trust for the Colony and we see no need for special legislation to clarify the lands’ status. We are providing a copy of this memorandum to our Central Office Congressional and Legislative Affairs staff for informational purposes. In view of your request for a Solicitor's opinion, we have obtained the concurrence of Mr. Wayne Nordwall (of the Phoenix Field Solicitor's office) in the conclusions and recommendations set forth herein. If we can be of further assistance in this matter, please advise. foory l/l) . _ y 92 Concuryence: Phoenix Field Solicitor