July 16, 1979

79-52 MEMORANDUM OPINION FOR THE

ASSISTANT ATTORNEY GENERAL, LAND

AND NATURAL RESOURCES DIVISION

Indian Lands—Eminent Domiain—Mineral Rights

Held by the United States as Trustees

This responds to your request for our opinion on the above matter.

In United States v. Winnebago Tribe o f Nebraska, 542 F. (2d) 1002 (8th 

Cir. 1976) (hereafter Winnebago), it was held that the United States may 

not take through eminent domain lands that it holds in trust for Indians 

under a treaty unless Congress clearly intended that Indian lands be taken. 

The present case raises the question whether Winnebago applies to mineral 

rights held by the United States in trust for the Osage Tribe under a statute 

rather than a treaty. The Army Corps of Engineers contends that Winnebago does not apply to the lands in question; the Department of the Interior and your Indian Resources and Land Acquisition Sections contend 

that it does. We have reviewed the arguments of the interested agencies 

and have independently examined the authorities. We concur in the conclusion of the Indian Resources and Land Acquisition Sections that the 

mineral rights in question cannot be taken without a clear statutory intent 

to permit such action.1

In FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960), the Supreme 

Court held that a general eminent domain statute authorized the taking of 

lands purchased by the Indians in fee simple. The Winnebago decision 

stated that Tuscarora applied only to lands which “ were not held in trust 

by the United States and were not reserved by treaty.” 542 F. (2d) at 1005. 

The Corps contends that this case is distinguishable from Winnebago on 

both points: the land is held absolutely by the Tribe instead of by the 

United States, and the land is “ reserved,” if at all, by statute rather than 

by treaty. Your Division and the Department of the Interior contend that

1 We express no opinion whether the requisite congressional intent exists in this case.

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the land is held in trust for the Tribe and that the rationale of Winnebago

applies to land so held under a statute.

The background information you have provided may be summarized as 

follows. In 1866, the United States and the Cherokee Nation agreed by 

treaty that the United States could purchase Cherokee land in Oklahoma 

to settle other friendly Indians. 14 Stat. 799. The treaty of 1866 between 

the United States and the Osage Tribe, 14 Stat. 687, provided that the 

Osage could be removed from their Kansas reservation to Oklahoma with 

their consent and that half the proceeds from the sale of the Kansas reservation would be used to purchase a new reservation in Oklahoma. In 1870, 

a statute authorized the President to remove the Osage Tribe from Kansas 

when the tribe agreed. Act of July 18, 1870, c. 296, § 12, 16 Stat. 362. The 

Osage Reservation, now Osage County, Oklahoma, was created by the 

Act of June 5, 1872, 17 Stat. 228, to implement the 1870 statute. In 1883, 

the United States bought the land in the reservation from the Cherokees in 

fee simple “ in trust for the use and benefit” of the Osage Tribe. In 1906, 

the Osage Allotment Act, 34 Stat. 539, was enacted. Section 2 of the Act 

allotted the Tribe’s lands to its individual members. However, sections 3 

through 5 of the Act reserved the mineral rights in the land to the Tribe for 

25 years, with the royalties to be paid to the United States in trust for the 

Tribe and distributed to the individuals. This reservation of mineral rights 

has been extended several times and was made perpetual in 1978. See Pub. 

L. No. 95-4%, § 2, 92 Stat. 1660.

The Corps’ first argument is that the Osage Allotment Act conveyed the 

mineral rights to the tribe absolutely, placing only the proceeds in trust for 

the individual Indians. Your Division, to the contrary, argues that the 

original conveyance of the Reservation was to the United States in trust 

for the benefit of the Tribe and that § 3 of the Allotment Act retained in 

that status the mineral interest that was not conveyed to the individuals. 

As you point out, the Supreme Court has twice stated that the Osage 

mineral rights are held by the United States in trust for the Tribe. See,

United States v. Mason, 412 U.S. 391 (1973); West v. Oklahoma Tax

Commission. 334 U.S. 717 (1948).2 Moreover, in United States v. City o f

Pawhuska, 502 F. (2d) 821 (10th Cir. 1974), the United States litigated on 

behalf of the Tribe as trustee of the mineral rights; the court stated that the 

rights were held in trust by the United States. Finally § 3 of the Osage Allotment Act requires the approval of the United States for any lease of 

mineral rights by the Tribe. These are persuasive indications that the 

mineral rights are held by the United States for the Tribe’s benefit. On this 

question of real property law, we defer to your view that the United

2 As the Corps notes, these cases involved the unquestionable trust status o f the individual 

income interests in the minerals under Section 4 o f the Osage Allotment Act, and the C ourt’s 

characterization o f the Governm ent’s relation to the Tribe is dictum.

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States holds the mineral rights in trust for the benefit of the Tribe.3 , 

The Corps’ second argument is that the Winnebago rule only applies to 

lands reserved by treaty and thus does not protect the mineral rights in this 

case. We agree with your view that this argument is without merit. The 

Winnebago decision merely applies the general rule that, although Congress has the power to abrogate rights secured to Indians by treaty, its intent to renege on its previous commitments must be clearly shown. 542 F. 

(2d) at 1005. See generally, Bryan v. Itasca County, 426 U.S. 373 (1976); 

McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973); 

Menominee Tribe v. United States, 391 U.S. 404 (1968). It is our opinion 

that this principle applies equally where an agreement with a tribe is 

ratified by statute. Antoine v. Washington, 420 U.S. 194 (1975). Antoine

points out that the further negotiation of Indian treaties was forbidden by 

statute in 1871.4 That statute had the purpose and effect of allowing the 

House of Representatives to participate in developing Federal Indian 

policy. Id., at 202. However, the Court concluded, the statutory method 

of ratifying agreements has the same legal effect as a treaty and is governed by the same rules of construction. Id., at 204. See also, Choate v. 

Trapp, 224 U.S. 665, 675 (1912). The historical accident that the agreement moving the Osage Tribe to the Oklahoma reservation was implemented by a statute in 1872 rather than by treaty at an earlier date does 

not affect its construction.5 As you have concluded, the Winnebago rationale would therefore apply.

L e o n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

’ We therefore find it unnecessary to address the C orps’ assertion that Tuscarora applies to 

any land owned in fee simple by an Indian tribe.

4 Act o f March 3, 1871, 16 Stat. 566, 25 U.S.C. § 71.

’ We also note that the Department of the Interior has raised an alternative argument that 

the Osage Reservation was treaty land and that the mineral rights come within the most literal 

reading o f Winnebago. As Interior points out, the 1866 Treaty authorized the United States 

to remove the Osage Tribe to Oklahoma and obliged it to purchase the new reservation with 

half the proceeds of the sale o f the old one. The subsequent acquisition of the Oklahoma 

reservation, though effected under a statute, was in pursuit of this treaty obligation and in 

replacement of treaty lands.

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