.. Uni,ted States Depanment of the Interior 

omm OF THE SOWCrrOR 

Wahington, D.C. 20240 

. . - .r. . 

In reply, please refer to: 

Main Interior, Room 6456 

Ms. Frances Ayer, Esq. 

Morisset, Schlosser, Ayer & Jozwiak 

The FederaI Bar B3&g - 

i815 H Street, N.W. 

Suite 750 

Washington, D.C. 2000&3604 

Re; Status 0fu.S. Survey 963 ; 14.81 acres Deeded to the United States in 

Trust for; the Orgartized Vdkge of Kake 

Dear Ms. Ayer: 

Your office requested a legal review of the status of 14.8 1 acres in Alaska that the Organized 

Muage of Kake (OVK)kclaims the United States holds in trust for them. On May 6, 1996, there 

was a petroleum spill at ate Kake cannay on land chat was part of the Aarris deed parcel. This 

spill prompted your inquiry into the .legal status' of the land. 

Bac)cetound 

P.E. Harris & Co., a Staie of Washington qrporation, was the operator of a salmon cannery near . 

Kake village.' On Febraary IS, 1950, P.E. Banis & Co, deeded for one dollar consideration a . 

15.9 acre parcel containing the cannery "to ihe United States of America in tnrn for the 

Organized Vilage ofKa~e, Alaska" The same day, PE. Harris & Co. dso 

I/ OW is organized as a tribd municipal government under section 16 of the Indian 

Reorganization Aa m), 25 U.S.C. 55 473% 476, and as a tribal business corpomtion under 

section 17 of the IRq 2!? U.S.C. 5 477. 

'/ In re Kakc Sch Dirt, I 1 Alaska 186 (1946). 

'1 The deed does not cia* whethaithe parcel is conveyed to the section 16 tribal enti@ 

or the section 17 corporkte entiemity of Ow as both entities have the same name. An October 1, 

1975 memorandum writfen by the Juneau Fldd Solicitor concludes that without evidence to the 

contrary, it "can be assumed that the initial donveyance to the United States was in trust for the 

5 16 entity." h addition- a May 10, 1977, ramorandurn frcm the Acting Associate solicitor for 

Tndim Affairs to the Juneau Field Office staks that %om the wording of the deed, it would 
executed a bill of saie for ten dollars consideration for all the personal property at the cannery .y .- ... .. 

.(machinery, equip men^ appliances, and rmppfies) "to the United States of America in trust for the . . 

organized Vilags of Kjrkc, Alaska." The Harris deed was resorded.in Petersbufg Alaska on 

, April 19, 1950. A copy of the deed was stamped received by the BIA on April 24,1950- On 

May 24, ,1950, P.E. Hamis & Co. wirhdrm'fiom Alaska and the corporation was dissolved on . ' 

June 26, 1950.' OW was subsequently thc sole operator of the carmay. 

As a general matter, a mnveyme is not campiete until xc+ted. To date, we have found no . 

express documentation indicating bt the Department of the Interior evex accepted the Harris 

deed parcel into trust sttttus. The issue presented by your request is whether, m the absence of 

such documentation, tbe, Department has accepted the land in trust. After a review of the history 

of this parcel and refwant applicabIe law, sue conclude that the United States does hold the Iand in 

trust for OVK s 

The Indian Reorganization Ad authorizes $he Secretary of the Interior to acquire lands for 

Ind'i through purchase and other .means. tfn 1949, the Secretary of the Interior ddegated to tbe 

Commissioner of Indian YAffairs the authority for the "approval of the purchase of lands for 

individual Indians and Man tnies. This authoriiy extends to and includes the acceptance of - 

options for the aquisitian of lands.n6 The Gomrnissioneis subsequent delegation of the authority 

to acquire lands for Indians to the Area Directors did not occur until 195 1.' At the time of the 

appear that the land in q*estion is held by the [don 16J constitutional entity.'' ~~Y, the 

Alaska Supreme Court and the United States District Court for the District of Alaska, relying on 

two Solicitor's Opinionsj M-36545 (Dcc. 16,1958), M-36515 (Nov. 20, 1958), have adopted the 

view that, udess specified, a atraasaction of ;m "organized triben is a transaction of the scction 16 

tribal entity. -n v &&me, 569 P.2d2 15 1. 171-1 72 (Alaska 1977); Parker M&o v . . 

Metlak~tla Indian Commnity, 451 F. Supp.:1127, 1135 p. Alaska 1978). *refor% I concIude 

that the deed intended tosconvey the land to the section 16 tribal entity. 

'/ Kakc Sch. ~idl v. P. E. Harris & Co., 101 F. Supp. 290,291 @. Alaska 1951). 

'/ 25 U.S.C. 0 4685. 

'/ Secretarial Order No. 2508, Delegitions of Authority 5 13(f), 14 Fed. Rtg. 258-60 

(1 949). 

'/ Secretariat OTd4No. 55 t, Z)~!&OSS of Authority 5 3,8,16 Fed. ReglRes 293940 

(1 95 1) ("The area directars may exercise theia~thority of the Cornmissioner of Man Affairs in 

the following classes of matters: . . . Land acquisitions. The approval of thc purchase of lands for 

individual Indians and Indian tribes. This authority extends to and includes thc acceptance of 

options for the aquisitio~ of lands and the authorizahon to disburse restricted individual Indian 

money to complete the aoquisition of Iands for individual Indians.'). 
Hanis deed, therefore, only the Comnrissioner and the Secretary had the authority to accept the 

Harris deed. Only an arrhorized agent can bind the Government. Slobpian v. Uphed 136 

Ct. C1. 620 (1956). Again, there is no document indicating that any persoq authorized or 

otherwise, ever explicitI$ accepted the deedi 

The Depamnenr of Intdor bps consistently:treated the Hanis deed parcel as held in trust by the 

federal government for COVK The most dear indication ofthis beliefis the Iegislative history to 

the Acr of October 20,1978 (the Act).' Congress passed the Act to provide the meam for Kake - 

Tribal Corporation (KTCY to acquire title to land upon which it had built a cold storage p1m. 

This tract of land is part sf the origind Hanis deed parcel. KTC had believed that der the 

terms of Alaska Native C"laims Settlement Alct (ANCSA), it was entitled to receive unconditiond 

fee simple title to the surhce estate in the land. However, title exambations disclosed that a part 

of the lad was owned the United States in trust for OVK. The land wuld not be conveyed to 

KTC because the Indian -Jonintncourse Act prohibits the sdt of m'bal faad without tbc consent 

of the United !States." Another part of the land was required to be conveyed to OVK under 

section 14(c) of ANCSA"" KTC therefare sought legislation to have these problems resolved. 

1i letters to Congress, thb Department of thd kiteior confimred rhat the land was held in trust and 

hat legslation was indeed the only recoursetavailable to KTC to correct these problems. In 

response to a Senate Cormnittee inquiry on the view of the Department regarding the land, 

Assistant Secretary-Indian ARairs Forrest J. Gerard stated that, "Title examinations dixlosed that 

a part of the tract (upon khich the plant is lcmted) . . . is owned by the United Stistes in tnrst for 

the Organized Vilage of>&&." H.R. Rep. No. 95-1615,95th Cong, 2d Sess. 2 (1978). . 

Congess relied on this statemeni, as is evidenced by the statements of Senator Stevcns who said, 

"During (construction ofbe cold storage plant) a title examination was conducted and it was 

found that the structure *as in fact located partidly on land (approximately 1.09 ants) which was 

beneficially owned by tMKake 1. with legal title bkng vested in the United States in trust for 

the IRA." 124 Cong. Res. S. 33468 (ddy ed. Oct. 4, 1978). Therefore, the legislation would 

not have been necessary Bad the Departrnent;not believed that it held the land in trust for OVK. 

- -- -- 

'/ 92 Stat 1635. 

'I KTC is a village corporation formed by Native residents of the village of Kake 

pursuant to ANCSA 43 U.S.C. 4 1607. 

lo/ The 1ndian ~0xinterM~r~c Act prwenis thc purchase, grant, lease+ or other 

co~veyanct ofiands from any Indian nation without consent of the Urlited Statcs. 

25 U.S.C. Q 177. 

. - 

"/ Section 14(c)(3) requires that a village corporation' convey to the municipal 

government, or to the St&c m trust for any btwc municipal govenunent, the surface estate of the 

improved land on which the village is located. 43 U.S.C. 5 1613(c)(3). 
Other evidence of the Qepartrnent's belief rhat the land is held in trust also ex&. In an 

August 24, 1961 memoirandurn to the Juneau Area Director on the title status of the tideiands on 

which certain canneries qicluding We) were situated, the Acting Juneau Field Solicitor srated 

that "the canneries were purchased about tm years ago by the United States in trust for the 

respective Native IRA ~orporations. Theserpurchases are evidenced by deeds of record." 

Similariy, ~olidtor's'0~inion M-36975 (January 1 I, 19931, states that: . ,- 

During the 194Qs and ~~SO'S, the Oovemcnt acquired by purthe, and took title 

in trust to, canniq properties in three Southeast Alaska co&ti+s. . . . In one 

case, Kake, botk the Department ofi the Interior and Congress have accepted as 

fan that the United States holds trut title to the lads. 124 Cong. Rec. 33468 

(1 978) (remarksiof Sen. Stevens and letter . . . fiom Assistant Secretary Gerard . . 

. . ). Beneficial title to thtsc.trust Imds is stiII held by the IRA community and/or 

association as fdlows: Angoon (13.24 acres); Kake (15.9 acres); Ktawock (1.91 

-acres). 

Courts have held that ta constitute acceptance of an offer, there must be an expression of the " 

intention by word, sign& writing, or act, communicated or delivered to the person making the 

offer or his agent. Slobojan V. Udcd State% 136 Ct. C1.620,622 (1956). I think that there is 

clear evidence that the bepament through its ~bsequa acts relating to the Harris dad pad, 

accepted the land into st. These aqs, mast notably the report to Congress, express the 

Department's intent to recognize the land mut land. I thkrefore conclude that the Harn*~ deed 

parcel is held by the United States in trust for OVK due to the Department's subsequent actions 

concerning the land. 

Overall, the Departmeds treatment of the bd indicates its belief that the Hams deed parcel is 

being held in trust for thc tribe. The united States has acted in a m~ncr consisrent with a proper 

and sufficient transfa ofthe parcel to the United States in trust for the OK For these reasons, 

it is our opinion that thd 1S.9 acres conveyed in the Harris deed parcel, minus the 1.09 acres 

conveyed by the united states to the Organized Village of Kake in fe, is held in tn~ the 

United States for the benefit of the Orpized Wage of Kake. 

Sincerely, 

Associate Solicitor 

cc: ~irekor, ~uneau-~rea OEcc. Bureau of Indian AEiairs 

RegjonaI ~olicitir, Anchorage