b'Applicability of Section 504 of the Rehabilitation Act to\nTribally Controlled Schools\nSection 504 of the Rehabilitation Act generally applies to tribally controlled schools that receive federal\nfinancial assistance from the Department of Justice.\n\nNovember 16, 2004\n\nMEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL\nOFFICE OF JUSTICE PROGRAMS\nYou have asked us whether section 504 of the Rehabilitation Act, 29 U.S.C.\n\xc2\xa7 794 (2000), generally applies to tribally controlled schools that receive federal\nfinancial assistance from the Department of Justice. We conclude that it does.1\nI.\nWe begin our analysis with an overview of the relevant interpretive principles.\nThe Supreme Court \xe2\x80\x9cha[s] stated time and again\xe2\x80\x9d that we \xe2\x80\x9cmust presume that a\nlegislature says in a statute what it means and means in a statute what it says there.\nWhen the words of a statute are unambiguous, then, this first canon is also the last:\n\xe2\x80\x98judicial inquiry is complete.\xe2\x80\x99\xe2\x80\x9d Conn. Nat\xe2\x80\x99l Bank v. Germain, 503 U.S. 249, 253\xe2\x80\x93\n54 (1992) (citations omitted). When addressing the effects of statutes governing\nIndian tribes, however, the Court has articulated two additional canons of construction. First, in what is really a variation of the plain meaning rule, the Court\nhas said that \xe2\x80\x9cit is now well settled by many decisions of th[e] [Supreme] Court\n\n1\nThe original opinion request, sent to us by your predecessor, framed the question as \xe2\x80\x9cwhether the\ndoctrine of tribal sovereign immunity\xe2\x80\x9d would prevent the Office of Justice Programs from investigating\nan allegation of discrimination by a tribal school. See Memorandum for Randolph D. Moss, Assistant\nAttorney General, Office of Legal Counsel, from Mary Lou Leary, Acting Assistant Attorney General,\nOffice of Justice Programs, Re: Request for Office of Legal Counsel Review (Nov. 29, 2000). The\ndoctrine of tribal sovereign immunity, however, is inapplicable to investigations brought by the federal\nGovernment. See, e.g., United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 382\xe2\x80\x9383\n(8th Cir. 1987); Fla. Paraplegic Ass\xe2\x80\x99n v. Miccosukee Tribe, 166 F.3d 1126, 1134\xe2\x80\x9335 (11th Cir. 1999);\nQuileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459\xe2\x80\x9360 (9th Cir. 1994). We therefore address whether\nsection 504 of the Rehabilitation Act generally applies to tribally controlled schools. We have also\nsolicited the views of other components of the Department of Justice and agencies that would be\naffected by this opinion. See Memorandum for Daniel L. Koffsky, Acting Assistant Attorney General,\nOffice of Legal Counsel, from Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights Division,\nRe: Applicability of Certain Civil Rights Statutes to Indian Tribes and Tribally-Operated Entities (Aug.\n21, 2001); Memorandum for Leslie Simon, Attorney-Adviser, Office of Legal Counsel, from Timothy\nW. Joranko, Deputy Director, Office of Tribal Justice, Re: Applicability of Civil Rights Statutes to\nIndian Tribes and Tribally-Operated Entities (Sept. 20, 2001); Letter for Daniel L. Koffsky, Acting\nAssistant Attorney General, Office of Legal Counsel, from Steve Winnick, Deputy General Counsel,\nDep\xe2\x80\x99t of Education (Aug. 17, 2001). (The Department of the Interior and the Environmental Protection\nAgency did not provide formal views in response to our request.)\n\n276\n\n\x0cApplicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools\n\nthat a general statute in terms applying to all persons includes Indians and their\nproperty interests.\xe2\x80\x9d Fed. Power Comm\xe2\x80\x99n v. Tuscarora Indian Nation, 362 U.S. 99,\n116 (1960). Thus, it is an established \xe2\x80\x9crule[] . . . that general Acts of Congress\napply to Indians as well as to all others in the absence of a clear expression to the\ncontrary.\xe2\x80\x9d Id. at 120. See also Superintendent of Five Civilized Tribes v. Comm\xe2\x80\x99r\nof Internal Revenue, 295 U.S. 418, 420 (1935) (upholding application of federal\nincome tax to Indians where \xe2\x80\x9c[t]he terms of the . . . Act are very broad, and\nnothing there indicates that Indians are to be excepted\xe2\x80\x9d). Second, the Supreme\nCourt has also recognized \xe2\x80\x9ca principle deeply rooted in this Court\xe2\x80\x99s Indian\njurisprudence: \xe2\x80\x98[S]tatutes are to be construed liberally in favor of the Indians, with\nambiguous provisions interpreted to their benefit.\xe2\x80\x99\xe2\x80\x9d Cnty. of Yakima v. Confederated Tribes, 502 U.S. 251, 268\xe2\x80\x9369 (1992) (quoting Montana v. Blackfeet Tribe of\nIndians, 471 U.S. 759, 766 (1985)).\nAt first blush, one might think these two canons to be in tension: On the one\nhand, general statutes apply to Indians unless they are expressly excluded, while\non the other, any statutory ambiguities should be construed to the benefit of\nIndians. In fact, however, they are easily reconciled. A generally worded statute\nthe plain terms of which naturally encompass Indian tribes or tribal entities is not\nambiguous, and a statute that is ambiguous as to whether it encompasses Indian\ntribes is not a generally worded statute the plain terms of which naturally encompass Indian tribes. See South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 506\n(1986) (\xe2\x80\x9cThe canon of construction regarding the resolution of ambiguities in\nfavor of Indians . . . does not permit reliance on ambiguities that do not exist . . .\xe2\x80\x9d);\nChickasaw Nation v. United States, 534 U.S. 84, 88\xe2\x80\x9389 (2001) (declining to find\nambiguity despite poor drafting of statute). In other words, a broad statute the\nterms of which naturally encompass Indian tribes is unambiguously broad, and so\nunambiguously encompasses Indian tribes. In such a case, the ambiguity-resolving\ncanon is simply inapplicable.\nThe cases setting forth these two canons are illustrative. Those applying the\nformer rule\xe2\x80\x94viz., that general statutes apply to Indian tribes unless specifically\nexcepted\xe2\x80\x94involve broad but unambiguous statutory language. Tuscarora, for\nexample, held that tribally owned lands were subject to the eminent domain\npowers of the Federal Power Act, which authorized the condemnation of \xe2\x80\x9c\xe2\x80\x98the\nlands or property of others necessary to the construction, maintenance, or\noperation\xe2\x80\x99\xe2\x80\x9d of licensed development projects. Tuscarora, 362 U.S. at 115 (quoting\nsection 21 of the Federal Power Act) (emphasis added). As the Court explained,\n\xe2\x80\x9c[t]hat section does not exclude lands or property owned by Indians, and, upon the\nauthority of the cases cited, we must hold that it applies to these lands owned in\nfee simple by the Tuscarora Indian Nation.\xe2\x80\x9d Id. at 118. Likewise, Choteau v.\nBurnet, 283 U.S. 691 (1931), held that the Revenue Act, which \xe2\x80\x9csubjects the\nincome of \xe2\x80\x98every individual\xe2\x80\x99 to tax\xe2\x80\x9d and \xe2\x80\x9cincludes income \xe2\x80\x98from any source\nwhatever,\xe2\x80\x99\xe2\x80\x9d id. at 693, 694 (quoting the Revenue Act) (emphases added), applied\nto the income of an Indian derived from his shares in the oil and gas leases of an\n\n277\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nIndian tribe, observing that \xe2\x80\x9c[t]he intent to exclude must be definitely expressed,\nwhere, as here, the general language of the Act laying the tax is broad enough to\ninclude the subject-matter,\xe2\x80\x9d id. at 697. See also Superintendent of Five Civilized\nTribes, 295 U.S. at 419\xe2\x80\x9320 (holding that an Indian\xe2\x80\x99s income derived from tribal\nlands was subject to the Revenue Act) (citing Choteau); Henkel v. United States,\n237 U.S. 43, 49 (1915) (holding that Secretary of the Interior could purchase or\ncondemn Indian-owned land pursuant to the Reclamation Act of 1902, which\nauthorized him \xe2\x80\x9c\xe2\x80\x98to acquire [by purchase or condemnation] any rights or property\xe2\x80\x99\xe2\x80\x9d necessary to carry out the provisions of the Act and \xe2\x80\x9c\xe2\x80\x98to perform any and all\nacts . . . necessary and proper for the purpose of carrying the provisions of this\nact . . . into effect\xe2\x80\x99\xe2\x80\x9d) (quoting Reclamation Act of 1902) (emphases added); Okla.\nTax Comm\xe2\x80\x99n v. United States, 319 U.S. 598, 600, 607 (1943) (holding that the\nestate of an Oklahoma Indian was subject to state inheritance and estate taxes;\nnoting that \xe2\x80\x9c[t]he language of the statutes does not except either Indians or any\nother persons from their scope\xe2\x80\x9d and that \xe2\x80\x9c[i]f Congress intends to prevent the State\nof Oklahoma from levying a general non-discriminatory estate tax applying alike\nto all its citizens, it should say so in plain words\xe2\x80\x9d).\nIn contrast, the Supreme Court\xe2\x80\x99s cases applying the latter ambiguity-resolving\ncanon did not involve broad statutes of general application, but rather, statutes or\ntreaties that the Court actually regarded as ambiguous as to their application to\nparticular Indians. In Yakima, for example, the Court concluded that a statute that\nauthorized a state to subject certain Indian-owned land to state \xe2\x80\x9c\xe2\x80\x98taxation of . . .\nland,\xe2\x80\x99\xe2\x80\x9d 502 U.S. at 258 n.1 (quoting 25 U.S.C. \xc2\xa7 349), did not authorize the state to\nsubject such land to an \xe2\x80\x9cexcise tax on sales of fee land,\xe2\x80\x9d id. at 268 (emphasis\nadded). Justice Scalia, writing for the Court, explained:\n[T]he General Allotment Act explicitly authorizes only \xe2\x80\x9ctaxation\nof . . . land,\xe2\x80\x9d not \xe2\x80\x9ctaxation with respect to land,\xe2\x80\x9d \xe2\x80\x9ctaxation of transactions involving land,\xe2\x80\x9d or \xe2\x80\x9ctaxation based on the value of land.\xe2\x80\x9d Because it is eminently reasonable to interpret that language as not including a tax upon the sale of real estate, our cases require us to\napply that interpretation for the benefit of the Tribe.\nId. at 269. Likewise, in Bryan v. Itasca County, 426 U.S. 373 (1976), the Court\nheld that the statute that gave the \xe2\x80\x9c\xe2\x80\x98civil laws of such State . . . that are of general\napplication . . . the same force and effect within such Indian country as they have\nelsewhere,\xe2\x80\x99\xe2\x80\x9d id. at 377 (quoting 28 U.S.C. \xc2\xa7 1360(a)), did not allow a state to\nimpose its tax laws on reservation Indians. Read in the context of a statute that was\nintended \xe2\x80\x9cto redress the lack of adequate Indian forums for resolving private legal\ndisputes between reservation Indians, and between Indians and other private\ncitizens, by permitting the courts of the States to decide such disputes,\xe2\x80\x9d the Court\nconcluded that the emphasized phrase merely \xe2\x80\x9cauthorize[d] application by the state\ncourts of their rules of decision to decide such disputes.\xe2\x80\x9d Id. at 383\xe2\x80\x9384. And in\n\n278\n\n\x0cApplicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools\n\nMontana v. Blackfeet Tribe, 471 U.S. 759, 767\xe2\x80\x9368 (1985), the Court held that a\n1938 statute that repealed \xe2\x80\x9c\xe2\x80\x98[a]ll . . . or parts of Acts inconsistent herewith,\xe2\x80\x99\xe2\x80\x9d id. at\n764 (quoting the 1938 Act), did not leave intact a 1924 statute authorizing states to\ntax the income from Indian oil and gas leases: the 1938 Act\xe2\x80\x99s repealer clause, the\nCourt explained, \xe2\x80\x9c[could not] be taken to incorporate consistent provisions of\nearlier laws,\xe2\x80\x9d id. at 767. See also id. at 767\xe2\x80\x9368 (\xe2\x80\x9cThe tax proviso in the 1924 Act\nstates that \xe2\x80\x98the production of oil and gas and other minerals on such lands may be\ntaxed by the State in which said lands are located . . . .\xe2\x80\x99 Even applying ordinary\nprinciples of statutory construction, \xe2\x80\x98such lands\xe2\x80\x99 refers to \xe2\x80\x98[u]nallotted land . . .\nsubject to lease for mining purposes . . . under section 397 [the 1891 Act].\xe2\x80\x99 When\nthe statute is \xe2\x80\x98liberally construed . . . in favor of the Indians,\xe2\x80\x99 it is clear that if the\ntax proviso survives at all, it reaches only those leases executed under the 1891\nAct and its 1924 amendment.\xe2\x80\x9d) (citations omitted). In the same vein, the Court has\nrefused to resort to the ambiguity-resolving canon in the face of unambiguous\nstatutory language. See, e.g., Negonsott v. Samuels, 507 U.S. 99, 110 (1993)\n(declining to apply ambiguity-resolving canon where a federal statute \xe2\x80\x9cquite\nunambiguously confers jurisdiction on the State\xe2\x80\x9d to prosecute Indians for violations of state criminal law).\nThis point, that ambiguity-resolving canons do not overcome unambiguously\nbroad statutory text, is further illustrated in a Supreme Court case discussing a\nsimilar\xe2\x80\x94though even more restrictive\xe2\x80\x94canon of construction: that \xe2\x80\x9cabsent an\n\xe2\x80\x98unmistakably clear\xe2\x80\x99 expression of intent to \xe2\x80\x98alter the usual constitutional balance\nbetween the States and the Federal Government,\xe2\x80\x99 we will interpret a statute to\npreserve rather than destroy the States\xe2\x80\x99 \xe2\x80\x98substantial sovereign powers.\xe2\x80\x99\xe2\x80\x9d Pa. Dep\xe2\x80\x99t\nof Corr. v. Yeskey, 524 U.S. 206, 208\xe2\x80\x9309 (1998). In Yeskey, the Court addressed\nthe applicability of the Americans with Disabilites Act (\xe2\x80\x9cADA\xe2\x80\x9d) to state prisons,\nconcluding that even though state prisons were nowhere specifically mentioned in\nthe ADA, the statute\xe2\x80\x99s broad terms were unambiguous. The Court found that the\nbroadly defined term \xe2\x80\x9cpublic entity,\xe2\x80\x9d which included \xe2\x80\x9c\xe2\x80\x98any department, agency,\nspecial purpose district, or other instrumentality of a State or States or local\ngovernment,\xe2\x80\x99\xe2\x80\x9d id. at 210 (quoting 42 U.S.C. \xc2\xa7 12131(B)), \xe2\x80\x9cplainly covers state\ninstitutions without any exception that could cast the coverage of prisons into\ndoubt.\xe2\x80\x9d Id. at 209. It likewise rejected the contention that prisons do not provide to\nprisoners the \xe2\x80\x9cbenefits of the services, programs, or activities of a public entity,\xe2\x80\x9d\nid. at 210 (quoting 42 U.S.C. \xc2\xa7 12132): \xe2\x80\x9cModern prisons,\xe2\x80\x9d the Court explained,\n\xe2\x80\x9cprovide inmates with many recreational \xe2\x80\x98activities,\xe2\x80\x99 medical \xe2\x80\x98services,\xe2\x80\x99 and\neducational and vocational \xe2\x80\x98programs,\xe2\x80\x99 all of which at least theoretically \xe2\x80\x98benefit\xe2\x80\x99\nthe prisoners (and any of which disabled prisoners could be \xe2\x80\x98excluded from\nparticipation in\xe2\x80\x99).\xe2\x80\x9d Id. See also id. at 210\xe2\x80\x9311 (rejecting argument that the term\n\xe2\x80\x9cqualified individual with a disability\xe2\x80\x9d was ambiguous as applied to prisoners).\nIn short, ambiguity-resolving canons do not overcome a broad but otherwise\nunambiguous statutory command. To the contrary, a broad, generally worded\n\n279\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nstatute the plain terms of which naturally encompass Indians should normally be\ndeemed to so apply unless Indians are expressly excluded from its application.\nII.\nWith these general principles in mind, we now turn to applying them to section\n504 of the Rehabilitation Act. Section 504 provides:\nNo otherwise qualified individual with a disability in the United\nStates . . . shall, solely by reason of her or his disability, be excluded\nfrom the participation in, be denied the benefits of, or be subjected to\ndiscrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any\nExecutive agency.\n29 U.S.C. \xc2\xa7 794(a) (emphases added). The question we must resolve is whether a\nfederally funded, tribally controlled school is a \xe2\x80\x9cprogram or activity\xe2\x80\x9d within the\nmeaning of this statute.\nApplying standard canons of statutory construction, we believe that a \xe2\x80\x9cprogram\nor activity\xe2\x80\x9d under section 504 unambiguously encompasses tribally controlled\nschools. Section 504 defines a \xe2\x80\x9cprogram or activity\xe2\x80\x9d to include, among other\nthings, \xe2\x80\x9call of the operations of\xe2\x80\x9d (1) \xe2\x80\x9ca local educational agency (as defined in\nsection 7801 of Title 20), system of vocational education, or other school system,\xe2\x80\x9d\n29 U.S.C. \xc2\xa7 794(b)(2)(B) (emphasis added); and (2) a \xe2\x80\x9ccollege, university, or other\npostsecondary institution.\xe2\x80\x9d Id. \xc2\xa7 794(b)(2)(A).2 These terms\xe2\x80\x94\xe2\x80\x9cother school system,\xe2\x80\x9d \xe2\x80\x9cother postsecondary institution\xe2\x80\x9d\xe2\x80\x94are broadly phrased and admit of no\n2\n\nThe full definition of a \xe2\x80\x9cprogram or activity\xe2\x80\x9d is as follows:\nFor the purposes of this section, the term \xe2\x80\x98program or activity\xe2\x80\x99 means all of the operations of\xe2\x80\x94(1) (A) a department, agency, special purpose district, or other instrumentality of a State or local government; or (B) the entity of such State or local government that distributes such assistance and each such department or agency (and each\nother State or local government entity) to which the assistance is extended, in the case\nof assistance to a State or local government; (2)(A) a college, university, or other\npostsecondary institution, or a public system of higher education; or (B) a local educational agency (as defined in section 7801 of Title 20), system of vocational education,\nor other school system; (3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship\xe2\x80\x94(i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or (ii)\nwhich is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (B) the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended,\nin the case of any other corporation, partnership, private organization, or sole proprietorship; or (4) any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3); any part of which is extended Federal financial\nassistance.\n\n29 U.S.C. \xc2\xa7 794(b).\n\n280\n\n\x0cApplicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools\n\nexception for such entities merely because they are controlled by Indian tribes.\nCongress, in fact, has used the precise phrase \xe2\x80\x9cschool system\xe2\x80\x9d in other statutes to\nrefer to schools that receive funding from the Bureau of Indian Affairs (\xe2\x80\x9cBIA\xe2\x80\x9d),\nincluding those that are tribally controlled, thus confirming that such schools are\ncovered under the Rehabilitation Act. See, e.g., 20 U.S.C.A. \xc2\xa7 6316(g)(4) (West\n2003) (corrective action must \xe2\x80\x9ctake into account the unique circumstances and\nstructure of the Bureau of Indian Affairs-funded school system\xe2\x80\x9d); 25 U.S.C.A.\n\xc2\xa7 2000 (West Supp. 2003) (acknowledging federal Government responsibility for\nthe \xe2\x80\x9cBureau of Indian Affairs funded school system\xe2\x80\x9d).\nWe do not mean to say that every tribally controlled school would automatically fall within these terms. To be sure, we would expect that most tribally controlled primary and secondary schools would be part of a \xe2\x80\x9csystem of vocational\neducation\xe2\x80\x9d or \xe2\x80\x9cother school system,\xe2\x80\x9d and a tribally controlled school of higher\neducation would quite obviously be a \xe2\x80\x9ccollege, university, or other postsecondary\ninstitution.\xe2\x80\x9d But we at least acknowledge the theoretical possibility that some\nindividual primary or secondary schools might not be considered part of an overall\n\xe2\x80\x9cschool system.\xe2\x80\x9d 29 U.S.C. \xc2\xa7 794(b)(2)(B) (emphasis added). While such a school\nmight nevertheless fall within another category of \xe2\x80\x9cprogram[s] or activit[ies]\xe2\x80\x9d\xe2\x80\x94a\nterm that includes \xe2\x80\x9can entire corporation, partnership, or other private organization, or an entire sole proprietorship . . . which is principally engaged in the\nbusiness of providing education,\xe2\x80\x9d id. \xc2\xa7 794(b)(3)(A)(ii)\xe2\x80\x94and thus still be covered\nby section 504, it would be imprudent for us to draw such a conclusion as a\ngeneral matter outside the context of a specific case. For now, it is enough to say\nthat the general definition of a \xe2\x80\x9cprogram or activity\xe2\x80\x9d extends to tribally controlled\nschools, provided that such schools meet the other specific requirements of that\ndefinition.\nOur conclusion that under standard principles of construction section 504 of the\nRehabilitation Act covers tribally controlled schools is confirmed by the numerous\nother statutes that reflect this precise understanding. \xe2\x80\x9c[S]ubsequent legislation\ndeclaring the intent of an earlier statute,\xe2\x80\x9d the Supreme Court has explained, \xe2\x80\x9cis\nentitled to great weight in statutory construction.\xe2\x80\x9d Loving v. United States, 517\nU.S. 748, 770 (1996) (citations omitted).3 And here, Congress has consistently\nexpressed in statutes its understanding of the scope of section 504. The Education\nAmendments of 1978, for example, directed the Secretary of the Interior to\n\xe2\x80\x9cimmediately begin to bring all schools, dormitories, and other facilities operated\nby the Bureau [of Indian Affairs] or under contract with the Bureau in connection\n\n3\n\nAlthough subsequent legislation is entitled to great weight in statutory interpretation, the same is\nnot true of the legislative history that accompanies the subsequent legislation. \xe2\x80\x9cWith respect to\nsubsequent legislation, . . . Congress has proceeded formally through the legislative process. A mere\nstatement in a conference report of such legislation as to what the Committee believes an earlier statute\nmeant is obviously less weighty.\xe2\x80\x9d Consumer Prod. Safety Comm\xe2\x80\x99n v. GTE Sylvania, Inc., 447 U.S. 102,\n118 n.13 (1980).\n\n281\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nwith the education of Indian children into compliance with . . . section 504 of the\nRehabilitation Act of 1973 (29 U.S.C. \xc2\xa7 794).\xe2\x80\x9d Pub. L. No. 95-561, \xc2\xa7 1125, 92\nStat. 2143, 2319 (1978). Congress recently reiterated this position in the No Child\nLeft Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (2002), which\nrequires that \xe2\x80\x9c[t]he Secretary shall immediately begin to bring all schools,\ndormitories, and other Indian education-related facilities operated by the Bureau or\nunder contract or grant with the Bureau, into compliance with . . . section 794 of\nTitle 29 [section 504]; and . . . the Americans with Disabilities Act of 1990.\xe2\x80\x9d 25\nU.S.C.A. \xc2\xa7 2005(b)(1) (West Supp. 2003). Cf. 25 U.S.C.A. \xc2\xa7 4131(b)(6) (West\nSupp. 2003) (providing explicit exemption from the broad anti-discrimination\nrequirements of Title VI for \xe2\x80\x9cactions by federally recognized tribes and the tribally\ndesignated housing entities of those tribes\xe2\x80\x9d under the Native American Housing\nAssistance and Self-Determination Act of 1996). These provisions serve to\nconfirm what the plain text of section 504 otherwise dictates: that tribally controlled schools are covered by its requirements.\nBefore moving on, we pause to address a possible counter-argument. The definition of the term \xe2\x80\x9clocal educational agency\xe2\x80\x9d that is incorporated in 29 U.S.C.\n\xc2\xa7 794(b)(2)(B)\xe2\x80\x99s definition of \xe2\x80\x9cprogram or activity\xe2\x80\x9d specifically includes certain\ntribally controlled schools, but only for a limited purpose. In particular, the\nElementary and Secondary Education Act defines \xe2\x80\x9c[l]ocal educational agency\xe2\x80\x9d as\nincluding:\nan elementary school or secondary school funded by the Bureau of\nIndian Affairs but only to the extent that including the school makes\nthe school eligible for programs for which specific eligibility is not\nprovided to the school in another provision of law and the school\ndoes not have a student population that is smaller than the student\npopulation of the local educational agency receiving assistance under\nthis chapter with the smallest student population, except that the\nschool shall not be subject to the jurisdiction of any State educational\nagency other than the Bureau of Indian Affairs.\n20 U.S.C.A. \xc2\xa7 7801(26)(C) (West 2003) (emphasis added). It could be argued that\nbecause at least some tribally controlled schools\xe2\x80\x94viz., \xe2\x80\x9celementary school[s] or\nsecondary school[s] funded by the Bureau of Indian Affairs,\xe2\x80\x9d id.\xe2\x80\x94are \xe2\x80\x9clocal\neducational agenc[ies],\xe2\x80\x9d Congress did not intend them also to be included as an\n\xe2\x80\x9cother school system,\xe2\x80\x9d else inclusion in the former would be superfluous. See\nUnited States v. Menasche, 348 U.S. 528, 538\xe2\x80\x9339 (1955) (\xe2\x80\x9cIt is our duty \xe2\x80\x98to give\neffect, if possible, to every clause and word of a statute.\xe2\x80\x99\xe2\x80\x9d) (quoting Montclair v.\nRamsdell, 107 U.S. 147, 152 (1883)). The syllogism, in other words, would run as\nfollows: (1) a tribally controlled school is a \xe2\x80\x9cprogram or activity\xe2\x80\x9d only to the\nextent that it is a \xe2\x80\x9clocal educational agency\xe2\x80\x9d; (2) a tribally controlled school is a\n\xe2\x80\x9clocal educational agency\xe2\x80\x9d \xe2\x80\x9conly to the extent that including the school\xe2\x80\x9d in the\n\n282\n\n\x0cApplicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools\n\ndefinition of a \xe2\x80\x9clocal educational agency\xe2\x80\x9d renders it eligible to receive certain\nfunds for which it would otherwise be ineligible; and (3) therefore, a tribally\ncontrolled school is not a \xe2\x80\x9clocal educational agency,\xe2\x80\x9d and hence, not a \xe2\x80\x9cprogram or\nactivity,\xe2\x80\x9d for any other purpose, including section 504\xe2\x80\x99s substantive antidiscrimination provisions.\nWe find this argument highly strained and implausible. The inclusion of BIAfunded schools generally within the term \xe2\x80\x9cother school system\xe2\x80\x9d in section 504\ndoes not render superfluous the inclusion of some BIA-funded schools in the\ngenerally applicable definition of \xe2\x80\x9clocal educational agency.\xe2\x80\x9d Their inclusion in\nthat latter definition serves a specific function: It gives BIA-funded schools access\nto non-BIA funds for which only local educational agencies are eligible and for\nwhich, absent this definition, BIA-funded schools would be ineligible. See, e.g., 20\nU.S.C.A. \xc2\xa7 1413 (2000 & West Supp. 2003) (local educational agencies eligible\nfor assistance for educating children with disabilities); 20 U.S.C.A. \xc2\xa7 6302 (West\n2003) (authorization of grants to local educational agencies). At the same time,\nthis definition prevents BIA-funded schools from double-dipping into funds for\nwhich both local educational agencies and BIA-funded schools are eligible. See,\ne.g., 20 U.S.C.A. \xc2\xa7 7269(a) (West 2003) (authorizing grants, contracts, and cooperative agreements with \xe2\x80\x9cState educational agencies, local educational agencies,\nor Indian tribes, for the purpose of increasing student access to quality mental\nhealth care\xe2\x80\x9d); 20 U.S.C.A. \xc2\xa7 7253c(a)(1) (West 2003) (authorizing grants and\ncontracts with \xe2\x80\x9cState educational agencies, local educational agencies, institutions\nof higher education, other public agencies, and other private agencies and organizations (including Indian tribes and Indian organizations . . .) to assist . . . in\ncarrying out programs or projects . . . designed to meet the educational needs of\ngifted and talented students\xe2\x80\x9d). In contrast, inclusion of tribally controlled schools\nin the \xe2\x80\x9cother school system\xe2\x80\x9d prong of the Rehabilitation Act\xe2\x80\x99s definition of\n\xe2\x80\x9cprogram or activity\xe2\x80\x9d serves the entirely separate purpose of rendering these\nschools subject to that Act\xe2\x80\x99s substantive requirements.4 Each provision, in other\n\n4\nWe note that the statutory and legislative history of this provision is consistent with our conclusion. The Rehabilitation Act\xe2\x80\x99s definition of \xe2\x80\x9cprogram or activity\xe2\x80\x9d has long included \xe2\x80\x9clocal educational\nagencies\xe2\x80\x9d as defined in the Elementary and Secondary School Act. Prior to 1994, however, the\ndefinition of \xe2\x80\x9clocal educational agency\xe2\x80\x9d (\xe2\x80\x9cLEA\xe2\x80\x9d) in the Elementary and Secondary School Act made\nno mention of Indian tribes or BIA-funded schools. The Improving America\xe2\x80\x99s Schools Act of 1994\n(\xe2\x80\x9cIASA\xe2\x80\x9d) amended this definition to extend to BIA-funded schools for the sole purpose of allowing\nsuch schools to receive federal funds for which they would otherwise not be eligible. See Pub. L. No.\n103-382, \xc2\xa7 101, 103 Stat. 3518, 3889 (1994); 20 U.S.C. \xc2\xa7 8801(18)(C) (1994); see also 140 Cong. Rec.\n27,842, 27,848 (1994) (remarks of Sen. Kennedy) (\xe2\x80\x9cUnder current law, Bureau schools are not covered\nby the definition of LEA, so, except for a few programs in which they have been specifically included,\nthese schools could not benefit from the wide range of Federal grants and services available to public\nschools through the eligibility of their LEA\xe2\x80\x99s. . . . The first provision defines virtually all Bureau\nfunded schools as LEA\xe2\x80\x99s, except in those cases where a specific statute already makes provision for\ntheir eligibility, as in Chapter 1 and Even Start. This exception ensures that there is no double benefit\nfor Bureau schools.\xe2\x80\x9d).\n\n283\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nwords, serves a separate and independent function, and neither provision renders\nthe other superfluous.\nAccordingly, we conclude that under standard canons of statutory construction,\nsection 504 of the Rehabilitation Act would encompass tribally controlled\nschools.5\nIII.\nThe conclusions above have rested on the application of the standard principles\nof construction described in Part I, supra. Several courts of appeals, however, have\napplied yet another canon of construction. These courts have found an exception to\nthe Tuscarora rule for a statute that \xe2\x80\x9ctouches \xe2\x80\x98exclusive rights of self-governance\nin purely intramural matters,\xe2\x80\x99\xe2\x80\x9d unless the law specifically references Indian tribes.\nDonovan v. Coeur d\xe2\x80\x99Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985)\n(citation omitted).6 In such a case, these courts have explained, the Tuscarora rule\nis inapplicable, and instead, the generally worded statute is deemed not to apply to\nIndian tribes unless it explicitly states to the contrary.7 As described in Part III.A,\n5\n\nNor are tribally controlled schools exempt from the Rehabilitation Act under the Tribally Controlled Schools Act of 1988 (\xe2\x80\x9cTCSA\xe2\x80\x9d), 25 U.S.C.A. \xc2\xa7\xc2\xa7 2501\xe2\x80\x932511 (2001 & West Supp. 2004). The\nTCSA provides, in relevant part, that \xe2\x80\x9c[f]unds allocated to a tribally controlled school . . . shall be\nsubject to the provisions of this chapter and shall not be subject to any additional restriction, priority, or\nlimitation that is imposed by the Bureau [of Indian Affairs] with respect to funds provided under\xe2\x80\x94(i)\ntitle I of the Elementary and Secondary Education Act of 1965; (ii) the Individuals with Disabilities\nEducation Act; or (iii) any Federal education law other than title XI of the Education Amendments of\n1978,\xe2\x80\x9d and that \xe2\x80\x9cIndian tribes and tribal organizations to which grants are provided under this part, and\ntribally controlled schools for which such grants are provided, shall not be subject to any requirements,\nobligations, restrictions, or limitations imposed by the Bureau that would otherwise apply solely by\nreason of the receipt of funds provided under any law referred to in clause (i), (ii), or (iii).\xe2\x80\x9d 25 U.S.C.\n\xc2\xa7 2503(b)(1) (emphasis added). According to the Departments of Education and the Interior, this\nprovision simply means \xe2\x80\x9cthat the BIA cannot impose additional requirements under Title I, IDEA and\nother federal education laws beyond what is required in the federal law.\xe2\x80\x9d Letter for Noel J. Francisco,\nDeputy Assistant Attorney General, Office of Legal Counsel, from Brian W. Jones, General Counsel,\nDep\xe2\x80\x99t of Education at 2 (July 15, 2004); see also Letter for Noel J. Francisco, Deputy Assistant\nAttorney General, Office of Legal Counsel, from Christopher B. Chaney, Associate Solicitor, Dep\xe2\x80\x99t of\nthe Interior (Sept. 14, 2004) (agreeing with the Department of Education on this point). In addition, the\nRehabilitation Act is not a \xe2\x80\x9cFederal education law,\xe2\x80\x9d any more so than would be a law that generally\nprohibits robbery, including robberies that take place on school grounds. It is, rather, a general\nantidiscrimination law that applies to a broad range of institutions, including schools, and to all federal\nfinancial assistance programs, not just those administered by the BIA under federal education laws.\n6\nSee, e.g., Fla. Paraplegic Ass\xe2\x80\x99n, 166 F.3d at 1129; Smart v. State Farm Ins. Co., 868 F.2d 929,\n935 & n.5 (7th Cir. 1989); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174, 175, 179 (2d Cir.\n1996); Nero v. Cherokee Nation of Okla., 892 F.2d 1457, 1462\xe2\x80\x9363 (10th Cir. 1989); EEOC v. Fond du\nLac Heavy Equip. & Constr. Co., 986 F.2d 246, 249 (8th Cir. 1993).\n7\nThese courts have also recognized two other \xe2\x80\x9cexceptions\xe2\x80\x9d to the Tuscarora rule: (1) where \xe2\x80\x9cthe\napplication of the law to the tribe would \xe2\x80\x98abrogate rights guaranteed by Indian treaties\xe2\x80\x99\xe2\x80\x9d; and (2) where\n\xe2\x80\x9cthere is proof \xe2\x80\x98by legislative history or some other means that Congress intended [the law] not to apply\nto Indians on their reservations.\xe2\x80\x99\xe2\x80\x9d Coeur d\xe2\x80\x99Alene Tribal Farm, 751 F. 2d at 1116. We do not address\nthese applications of the rule except to note that they have a stronger basis than the one discussed in\n\n284\n\n\x0cApplicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools\n\ninfra, the basis for this exception is unclear. In any event, for the reasons described\nin part III.B, infra, we conclude that this canon is inapplicable to the question\nwhether section 504 of the Rehabilitation Act extends to tribally controlled\nschools.\nA.\nThe Supreme Court has never explicitly adopted an exception to the Tuscarora\nrule for generally applicable statutes that \xe2\x80\x9ctouch[] \xe2\x80\x98exclusive rights of selfgovernance in purely intramural matters.\xe2\x80\x99\xe2\x80\x9d The \xe2\x80\x9cself-governance\xe2\x80\x9d exception\nappears to have originated in the Ninth Circuit\xe2\x80\x99s decision in United States v.\nFarris, 624 F.2d 890, 893 (9th Cir. 1980).8 It has since been recognized by a\nnumber of courts of appeals, see supra note 6, though significantly, we are aware\nof only a few instances in which the self-governance exception has actually been\napplied to narrow an otherwise applicable generally worded statute.9 It is unclear,\nhowever, whether this exception is consistent with Supreme Court precedent.\n\ntext. The first involves a conflict between two laws\xe2\x80\x94an Indian treaty and a broadly worded statute; the\nchoice to give one preference over the other is therefore unavoidable. See, e.g., Minnesota v. Mille Lacs\nBand of Chippewa Indians, 526 U.S. 172, 202\xe2\x80\x9303 (1999) (\xe2\x80\x9cCongress may abrogate Indian treaty rights,\nbut it must clearly express its intent to do so.\xe2\x80\x9d). And the second exception involves nothing more than\ndetermining the statute\xe2\x80\x99s meaning by reference to its legislative history, which is different from limiting\nthe otherwise plain reach of a statute\xe2\x80\x99s broad commands. Neither of these applications is here at issue,\nbecause we face no treaty with which section 504 of the Rehabilitation Act would conflict, nor any\nlegislative history that would limit section 504\xe2\x80\x99s otherwise broad reach.\n8\nIn Farris, the court suggested that \xe2\x80\x9creservation Indians may well have exclusive rights of selfgovernance in purely intramural matters, unless Congress has removed those rights through legislation\nexplicitly directed at Indians.\xe2\x80\x9d 624 F.2d at 893. As examples of such \xe2\x80\x9cpurely intramural matters,\xe2\x80\x9d the\ncourt subsequently listed \xe2\x80\x9cconditions of tribal membership, inheritance rules, and domestic relations.\xe2\x80\x9d\nCoeur d\xe2\x80\x99Alene Tribal Farm, 751 F.2d at 1116. As discussed below, see infra Part. III.B, the Supreme\nCourt has recognized tribal authority to regulate these three areas in the absence of federal law to the\ncontrary. See, e.g., United States v. Wheeler, 435 U.S. 313, 322 (1978). The Supreme Court, however,\ndid not suggest that federal law overcomes such tribal authority only if it is explicitly directed at\nIndians.\n9\nNo court of appeals has addressed the application of the self-governance exception in the context\nof tribal schools. Most court of appeals cases have addressed whether a tribe\xe2\x80\x99s commercial activities\nfell within this exception, with the majority holding that they did not. See Farris, 624 F.2d at 893; Fla.\nParaplegic Ass\xe2\x80\x99n, 166 F.3d at 1129\xe2\x80\x9330 (ADA applicable to tribally owned and operated restaurant and\nentertainment facility); Coeur d\xe2\x80\x99Alene Tribal Farm, 751 F.2d at 1116 (OSHA applicable to tribally\nowned and operated farm); Dep\xe2\x80\x99t of Labor v. Occupational Safety & Health Comm\xe2\x80\x99n, 935 F.2d 182,\n186 (9th Cir. 1991) (OSHA applicable to tribally owned timber mill); Smart, 868 F.2d at 935 & n.5\n(ERISA applicable to benefit plan of tribally owned health care center operating solely on reservation);\nMashantucket Sand & Gravel, 95 F.3d at 175, 179 (OSHA applicable to tribally owned construction\nbusiness that functioned as \xe2\x80\x9can arm of the tribe\xe2\x80\x9d); NLRB v. Chapa De Indian Health Program, Inc., 316\nF.3d 995 (9th Cir. 2003) (NLRA applicable to contractor that provided health care to tribal members);\ncf. United States v. Funmaker, 10 F.3d 1327, 1332 (7th Cir. 1993) (\xe2\x80\x9cThe decision-making power of\nIndian tribes ends . . . at the point when those decisions violate federal law designed to safeguard\nimportant federal interests\xe2\x80\x9d; finding that district court had jurisdiction to apply criminal law alleged to\ninterfere with tribal self-governance). We are aware of just three cases in which courts of appeals have\n\n285\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nThe self-governance exception certainly seems to be in facial tension with the\nTuscarora rule, which itself acknowledges no exception to the principle that\n\xe2\x80\x9cgeneral Acts of Congress apply to Indians as well as to all others in the absence\nof a clear expression to the contrary.\xe2\x80\x9d Tuscarora, 362 U.S. at 120. See also\nChoteau, 283 U.S. at 696 (\xe2\x80\x9cThe intent to exclude must be definitely expressed,\nwhere, as here, the general language of the Act laying the tax is broad enough to\ninclude the subject matter.\xe2\x80\x9d). Indeed, the exception seems to adopt, at least in\nlimited circumstances, the very rule that Tuscarora rejected. In particular,\nTuscarora confronted an earlier Supreme Court decision that had held that\n\xe2\x80\x9c\xe2\x80\x98[u]nder the Constitution of the United States, as originally established, . . .\n[g]eneral Acts of Congress did not apply to Indians, unless so expressed as to\nclearly manifest an intention to include them,\xe2\x80\x99\xe2\x80\x9d see Tuscarora, 362 U.S. at 115\xe2\x80\x9316\n(quoting Elk v. Wilkins, 112 U.S. 94, 99\xe2\x80\x93100 (1884))\xe2\x80\x94precisely the rule adopted\nby the self-governance exception for laws that \xe2\x80\x9ctouch[] \xe2\x80\x98exclusive rights of selfgovernance in purely intramural matters.\xe2\x80\x99\xe2\x80\x9d Tuscarora, however, explicitly rejected\nthis rule, explaining that \xe2\x80\x9c[h]owever that may have been, it is now well settled by\nmany decisions of this Court that a general statute in terms applying to all persons\nincludes Indians and their property interests.\xe2\x80\x9d 362 U.S. at 116. Tuscarora\nacknowledged no exception to this general principle for laws that \xe2\x80\x9ctouch[]\nactually asserted the self-governance exception as the basis for exempting tribal entities from otherwise\ngenerally applicable federal statutes. In one, the court, contrary to the decisions above, applied the\nexception to a tribal commercial entity in an employment dispute. See, e.g., Fond du Lac, 986 F.2d at\n249 (Age Discrimination in Employment Act (\xe2\x80\x9cADEA\xe2\x80\x9d) inapplicable to a dispute involving a tribe\nmember and tribally owned and operated construction company). Another applied the exception to an\nemployment dispute between the tribal housing authority and a tribal employee, see EEOC v. Karuk\nTribe Housing Auth., 260 F.3d 1071, 1073 (9th Cir. 2001) (finding ADEA inapplicable), and a third\nheld certain federal civil rights laws inapplicable to a claim that tribal membership had been denied to\ncertain individuals on account of their race, see Nero, 892 F.2d at 1463 (noting that \xe2\x80\x9cno right is more\nintegral to a tribe\xe2\x80\x99s self-governance than its ability to establish its membership\xe2\x80\x9d). Cf. Taylor v. Ala.\nIntertribal Council, 261 F.3d 1032 (11th Cir. 2001) (apparently applying self-governance exception to\nfind employment discrimination suit barred by tribal sovereign immunity). Although four other cases\nare sometimes cited in support of the self-governance exception, on close analysis, we find these cases\ninapposite. Reich v. Great Lakes Indian Fish & Wildlife Commission, 4 F.3d 490 (7th Cir. 1993), and\nNLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002), are, in our view, best understood as\ninvolving the ambiguity-resolving canon, not the self-governance exception to Tuscarora. See Great\nLakes, 4 F.3d at 494 (finding an \xe2\x80\x9cextrinsic ambiguity\xe2\x80\x9d in the statute because \xe2\x80\x9c[a] literal reading of [it]\nwould create a senseless distinction between Indian police [who were literally covered by the statute]\nand all other public police [who were explicitly exempted from it]\xe2\x80\x9d); Pueblo of San Juan, 276 F.3d at\n1191\xe2\x80\x9398 (repeatedly citing the ambiguity-resolving canon to hold that a tribal right-to-work ordinance\nwas not preempted by the National Labor Relations Act). And Donovan v. Navajo Forest Products\nIndustries, 692 F.2d 709 (10th Cir. 1982), and EEOC v. Cherokee Nation, 871 F.2d 937, 938\xe2\x80\x9339 (10th\nCir. 1989), involved conflicts between a generally applicable statute and a treaty right, which, we have\nexplained, stands on different footing than the exception for intramural activities. See supra note 6. See\nalso Navajo Forest, 692 F.2d at 711 (\xe2\x80\x9cTuscarora did not . . . involve an Indian treaty. Therein lies the\ndistinguishing feature between the case at bar and the Tuscarora line of cases, which stand for the rule\nthat under statutes of general application Indians are treated as any other person, unless Congress\nexpressly excepts them therefrom.\xe2\x80\x9d); Cherokee Nation, 871 F.2d at 938 n.3 (asserting that \xe2\x80\x9cthe socalled Tuscarora rule is not applicable to treaty cases such as this one\xe2\x80\x9d).\n\n286\n\n\x0cApplicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools\n\n\xe2\x80\x98exclusive rights of self-governance in purely intramural matters.\xe2\x80\x99\xe2\x80\x9d This is significant because the law at issue in that case, the Federal Power Act, authorized the\nrecipient of a federal license to condemn land owned by an Indian tribe\xe2\x80\x94a law\nthat would seem to affect tribal self-government. Id. at 123\xe2\x80\x9324. Indeed, it was the\nimpact of the Federal Power Act on \xe2\x80\x9cthe tribal way of life\xe2\x80\x9d that caused Justice\nBlack to dissent in that case. Id. at 131\xe2\x80\x9342 (Black, J., dissenting) (objecting to\nmajority\xe2\x80\x99s application of Federal Power Act to tribal homeland in the absence of\nclear congressional authorization as contrary to Congress\xe2\x80\x99s longstanding policy of\nprotecting Indian reservations).\nNor does the Supreme Court case law cited by the courts of appeals seem to\nsupport a self-governance exception to the Tuscarora rule. These courts have\ngenerally cited the following Supreme Court cases in support of the exception:\nSanta Clara Pueblo v. Martinez, 436 U.S. 49 (1978); Roff v. Burney, 168 U.S. 218\n(1897); Jones v. Meehan, 175 U.S. 1 (1899); United States v. Quiver, 241 U.S. 602\n(1916); United States v. Dion, 476 U.S. 734 (1986); and Merrion v. Jicarilla\nApache Tribe, 455 U.S. 130 (1982). See, e.g., Farris, 624 F.2d at 893; Fond du\nLac, 986 F.2d at 248\xe2\x80\x9349; Navajo Forest, 692 F.2d at 713. But it is difficult to see\nhow any of these cases supports the self-governance exception. Unlike numerous\ndecisions of the courts of appeals, none of these Supreme Court cases explicitly\nacknowledges an exception to the Tuscarora rule. Nor do they seem to support\nsuch an exception by implication. Two, for example, did not involve generally\napplicable statutes, but rather, statutes that specifically applied to Indians and\nIndian tribes; the only issue, then, was the scope of their coverage. See Santa\nClara Pueblo, 436 U.S. at 55\xe2\x80\x9356 (interpreting the scope of the Indian Civil Rights\nAct); Quiver, 241 U.S. at 605 (interpreting a statute providing that \xe2\x80\x9c\xe2\x80\x98so much of\nthe laws of the United States as provides for the punishment of crimes committed\nwithin any place within the sole and exclusive jurisdiction of the United States\nshall be in force in the Indian country\xe2\x80\x99\xe2\x80\x9d). Others, while recognizing certain areas\nof regulation as central to Indian self-government, involved no conflict with\nfederal law, generally applicable or otherwise. See Roff, 168 U.S. at 222 (tribal\ncitizenship); Jones, 175 U.S. at 29 (inheritance rights); Jicarilla Apache Tribe, 455\nU.S. at 141 (tribal authority to tax non-Indians who conduct business on reservation). And one, in addition to involving a purported conflict with a treaty (as\nopposed to an undefined notion of self-government), see supra note 7, actually\nfound that the treaty right was abrogated by the generally applicable federal law.\nSee Dion, 476 U.S. at 738 (Eagle Protection Act abrogated Indian treaty hunting\nrights).\nIn short, we simply cannot say with any confidence that the self-governance\nexception to the Tuscarora rule reflects a proper reading of Supreme Court\nprecedent. In the end, however, we need not resolve this question. For the reasons\nexplained below, we conclude that this self-governance exception, even assuming\nits validity, does not bar application of section 504 of the Rehabilitation Act to\ntribally controlled schools.\n\n287\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nB.\nEven assuming arguendo that there is an exception to the Tuscorora rule for\ngeneral acts of Congress that touch upon the tribes\xe2\x80\x99 \xe2\x80\x9cexclusive rights of selfgovernance in purely intramural matters,\xe2\x80\x9d we conclude that this self-governance\nexception is inapplicable to this case.\nFirst of all, it is unclear whether this exception would encompass tribal schools\nat all. It is, of course, true that, as a general matter, education is central to selfgovernment. But this exception to Tuscarora (assuming it exists) arguably is more\nlimited. That is, it arguably encompasses not any activity that is central to selfgovernment, but rather, only those activities that have, as a historical matter, been\nleft to the control of the Indian tribes, free from federal interference, as part of\ntheir residual sovereignty\xe2\x80\x94in other words, only those activities that have in fact\nbeen left within the control of the Indian tribes. Hence, in describing the rights of\nIndian tribes that are central to their internal self-government, the Supreme Court\nhas consistently limited its enumeration to rules governing tribal membership,\ninheritance, and domestic relations. See, e.g., Wheeler, 435 U.S. at 322 & n.18\n(\xe2\x80\x9cunless limited by treaty or statute, a tribe has the power to determine tribe\nmembership, to regulate domestic relations among tribe members, and to prescribe\nrules for the inheritance of property\xe2\x80\x9d) (citations omitted); Santa Clara Pueblo, 436\nU.S. at 55\xe2\x80\x9356 (citing \xe2\x80\x9cmembership,\xe2\x80\x9d \xe2\x80\x9cinheritance rules,\xe2\x80\x9d and \xe2\x80\x9cdomestic relations\xe2\x80\x9d\nas examples of tribes\xe2\x80\x99 \xe2\x80\x9cpower to make their own substantive law in internal\nmatters\xe2\x80\x9d). See also Farris, 624 F.2d at 893 (identifying \xe2\x80\x9ctribal membership,\xe2\x80\x9d\n\xe2\x80\x9cinheritance rules,\xe2\x80\x9d and \xe2\x80\x9cdomestic relations\xe2\x80\x9d as possible examples of \xe2\x80\x9cexclusive\nrights of self-governance in purely intramural matters\xe2\x80\x9d); supra note 8 (citing\ncases).10 Tribal schools, in contrast, have, as a historical matter, been subject to\nextensive federal control. See, e.g., Ramah Navajo Sch. Bd., Inc. v. Bureau of\nRevenue of N.M., 458 U.S. 832, 839\xe2\x80\x9340 (1982) (\xe2\x80\x9cThe Federal Government\xe2\x80\x99s\nconcern with the education of Indian children can be traced back to the first\n10\n\nWe acknowledge, as discussed above, that some courts have taken a broader view of the exception. See Fond du Lac, 986 F.2d at 249 & n.3 (subjecting employment relationship between tribal\nmember and tribal business to federal control and supervision \xe2\x80\x9cdilutes the sovereignty of the tribe\xe2\x80\x9d;\nrecognizing disagreement with other courts); Karuk Tribe, 260 F.3d at 1080\xe2\x80\x9381 (exception applies to\npurely internal employment dispute between tribal member and tribal government, where tribal\ngovernment is providing a governmental service). These decisions, however, are in tension with those\nof other courts that have interpreted the exception more narrowly. See, e.g., Mashantucket Sand &\nGravel, 95 F.3d at 179 (\xe2\x80\x9ctribal power, even regarding exclusively internal conflicts, may be limited by\ntreaty or federal statute, including statutes that are silent as to Indians,\xe2\x80\x9d noting that \xe2\x80\x9cthe Coeur d\xe2\x80\x99Alene\nintramural exception does not include all aspects of sovereignty\xe2\x80\x9d) (citations omitted); Smart, 868 F.2d\nat 935 & n.5 (rejecting view that exception applies whenever a statute \xe2\x80\x9caffects self-governance as\nbroadly conceived,\xe2\x80\x9d noting that \xe2\x80\x9c[a]ny federal statute applied to . . . a Tribe has the arguable effect of\neviscerating self-governance since it amounts to a subordination of the Indian government\xe2\x80\x9d); see also\nsupra note 8 (citing other cases). Moreover, neither Fond du Lac nor Karuk Tribe addresses the impact\nof any congressional statutes that state Congress\xe2\x80\x99s understanding of the scope of the statute in question\nor the extensive federal regulation of the subject matter to which the statute arguably applies.\n\n288\n\n\x0cApplicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools\n\ntreaties between the United States and the Navajo Tribe. Since that time, Congress\nhas enacted numerous statutes empowering the BIA to provide for Indian education both on and off the reservation\xe2\x80\x9d) (footnote omitted) (citing statutes); 25\nU.S.C.A. \xc2\xa7 2000 (declaring \xe2\x80\x9cthat the Federal Government has the sole responsibility for the operation and financial support of the Bureau of Indian Affairs funded\nschool system that it has established on or near Indian reservations and Indian trust\nlands throughout the Nation for Indian children\xe2\x80\x9d).11\n\n11\n\nThe BIA school system includes 184 elementary and secondary schools on 63 reservations in 23\nstates, of which 64 are operated directly by the BIA and 120 are operated by tribes under contract or\ngrant with the BIA; the BIA also operates two postsecondary institutions and provides funding to 25\ntribal colleges and universities. See U.S. Dep\xe2\x80\x99t of the Interior, Bureau of Indian Affairs, Office of\nIndian Education Programs, Fingertip Facts 2004 at 7, available at http://www.oiep.bia.edu/ (last\nvisited Oct. 6, 2004)); see also Susan Faircloth & John W. Tippeconnic III, Issues in the Education of\nAmerican Indian and Alaska Native Students with Disabilities (Dec. 2000) (ERIC Clearinghouse EDORC-00-3) (of the approximately 500,000 Indian and Alaska Native children who attend elementary and\nsecondary schools, about 90% attend regular public schools, about 10% attend BIA-funded schools,\nand a small number attend private schools). See also Felix S. Cohen, Handbook of Federal Indian Law\n680\xe2\x80\x9383 (1982) (setting forth a detailed history of the BIA school system). These schools are subject to\nextensive federal regulation. See, e.g., 25 U.S.C. \xc2\xa7 2502(e) (Supp. I 2001) (grants provided to tribally\ncontrolled schools \xe2\x80\x9cshall not terminate, modify, suspend, or reduce the responsibility of the Federal\nGovernment to provide a program\xe2\x80\x9d); 25 U.S.C. \xc2\xa7 450a(c) (2000) (\xe2\x80\x9cThe Congress declares that a major\nnational goal of the United States is to provide the quantity and quality of educational services and\nopportunities which will permit Indian children to compete and excel in the life areas of their choice,\nand to achieve the measure of self-determination essential to their social and economic well-being.\xe2\x80\x9d);\n25 U.S.C.A. \xc2\xa7 2016 (West Supp. 2003) (authorizing the Secretary of the Interior to \xe2\x80\x9cprescribe such\nrules and regulations as are necessary to ensure the constitutional and civil rights of Indian students\nattending Bureau-funded schools, including such students\xe2\x80\x99 rights to\xe2\x80\x94(1) privacy under the laws of the\nUnited States; (2) freedom of religion and expression; and (3) due process in connection with\ndisciplinary actions, suspensions, and expulsions\xe2\x80\x9d); 25 C.F.R. \xc2\xa7 32.4(b), (w) (2004) (directing the\nAssistant Secretary for Indian Affairs to \xe2\x80\x9c[e]nsure the constitutional, statutory, civil and human rights\nof all Indian and Alaska Native students\xe2\x80\x9d and \xe2\x80\x9c[e]stablish and enforce policies and practices to\nguarantee equal opportunity and open access to all Indian and Alaska Native students in all matters\nrelating to their education programs consistent with the provisions of the Privacy and Freedom of\nInformation Acts\xe2\x80\x9d). In addition, tribally controlled schools must, as a condition of receiving federal\ngrants and contracts, expressly agree to comply with section 504 of the Rehabilitation Act. See, e.g., 28\nC.F.R. \xc2\xa7 33.41(f)(10) (2003) (requiring assurance in application for Department of Justice grant\nprograms that applicant and all subgrantees \xe2\x80\x9cwill comply . . . with the non-discrimination requirements\nof . . . section 504 of the Rehabilitation Act of 1973\xe2\x80\x9d); id. \xc2\xa7 33.52 (2003) (funding recipients are\nsubject to section 504); id. \xc2\xa7 42.504(a) (2003) (\xe2\x80\x9cEvery application for Federal financial assistance\n[from the Department of Justice] shall contain an assurance that the program will be conducted in\ncompliance with the requirements of section 504 . . . .\xe2\x80\x9d); Grants and Cooperative Agreements with\nState and Local Governments, OMB Circular No. A-102 (1997) (requiring executive agencies to use\nstandard assurances forms when awarding grants or cooperative agreements to tribal governments as\nwell as state and local governments); cf. Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1286\xe2\x80\x9389\n(11th Cir. 2001) (fact that tribal government signed assurance did not waive tribal sovereign immunity\nagainst private suit); Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1044 n.2 (8th Cir. 2000)\n(same). See also Dep\xe2\x80\x99t of Transp. v. Paralyzed Veterans, 477 U.S. 597, 605 (1986) (acceptance of\nfunds under section 504 and similar statutes is \xe2\x80\x9cin the nature of a contract . . . the recipient\xe2\x80\x99s acceptance\nof the funds triggers coverage under the nondiscrimination provision\xe2\x80\x9d); Barnes v. Gorman, 536 U.S.\n181, 186 (2002) (same).\n\n289\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nIn the end, however, we need not decide whether the self-governance exception\nwould extend to tribal schools at all, for whatever the outer limits of the exception,\nwe do not believe it applies where, as here, Congress has specifically stated in\nstatutes its belief that a particular statute applies to Indians. At most, the selfgovernance exception is a tool to infer whether Congress intended a statute to\napply to Indians where the statute does not explicitly so provide. And, as we have\nexplained, it is a tool that is in some tension with the ordinarily dispositive rule\nthat where a statute\xe2\x80\x99s meaning is plain, that plain meaning must govern\xe2\x80\x94a rule\nreflected in Tuscarora. In this light, it is difficult to understand how a statute could\nbe interpreted contrary to its plain meaning, pursuant to a canon intended to infer\ncongressional intent in the face of silence, where Congress has, in other statutes,\nunequivocally stated its understanding of the statute in question. And that is\nprecisely the situation that we confront. For Congress has specifically and\nexplicitly stated its view that section 504 of the Rehabilitation Act applies to\ntribally controlled schools. As we have explained, the Education Amendments of\n1978 directed the Secretary of the Interior to \xe2\x80\x9cimmediately begin to bring all\nschools, dormitories, and other facilities operated by the Bureau or under contract\nwith the Bureau in connection with the education of Indian children into compliance with . . . section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794),\xe2\x80\x9d Pub.\nL. No. 95-561, \xc2\xa7 1125, 92 Stat. at 2319, and the No Child Left Behind Act of 2001\nrequires that \xe2\x80\x9c[t]he Secretary shall immediately begin to bring all schools,\ndormitories, and other Indian education-related facilities operated by the Bureau or\nunder contract or grant with the Bureau, into compliance with . . . section 794 of\nTitle 29 [section 504].\xe2\x80\x9d 25 U.S.C. \xc2\xa7 2005(b)(1). Accordingly, the self-governance\nexception is simply inapplicable to this case.\nWe therefore conclude that section 504 of the Rehabilitation Act generally\napplies to tribally controlled schools that receive federal financial assistance from\nthe Department of Justice.\nNOEL J. FRANCISCO\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n290\n\n\x0c'


b'Filling the Vacancy Following the\nDeath of the Secretary of War\nThe performance of the duties of the Secretary of War by an acting secretary may not extend beyond\nthirty days from the date of the death of the late Secretary of War, and it will be necessary for a new\nSecretary of War to be appointed in accordance with the provisions of the Appointments Clause of\nthe Constitution to perform those duties after that date.\nThere is some doubt whether the duties specifically imposed by Congress upon the Secretary of War\nmay be performed by the President, as Commander in Chief of the Army, or by any other person not\nserving as the Secretary of War.\n\nSeptember 21, 1936\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nReference is made to the request of Mr. Marvin H. Mclntyre, Assistant Secretary to the President, for your opinion concerning the necessity of the appointment\nof a successor to the late Secretary of War.*\nThe Act of August 7, 1789, ch. 7, \xc2\xa7 1, creating the Department of War, provides:\nThat there shall be an executive department to be denominated the\nDepartment of War, (a) and that there shall be a principal officer\ntherein, to be called the Secretary for the Department of War, who\nshall perform and execute such duties as shall from time to time be\nenjoined on, or entrusted to him by the President of the United\nStates . . . .\n1 Stat. 49, 49\xe2\x80\x9350.\nThis statute is silent as to the method of appointing the Secretary, and no subsequent legislation relative thereto has been enacted. The appointment of the\nSecretary is therefore left under the provisions of Article II, Section 2 of the\nConstitution, which, in prescribing the duties of the President, provides in part:\n[H]e shall nominate, and by and with the Advice and Consent of the\nSenate, shall appoint . . . all other Officers of the United States,\nwhose Appointments are not herein otherwise provided for, and\nwhich shall be established by Law: but the Congress may by Law\nvest the Appointment of such inferior Officers, as they think proper,\n\n*\nEditor\xe2\x80\x99s Note: The version of this opinion that was transcribed in the Unpublished Opinions of the\nAssistant Solicitor General contained a footnote here cross-referencing another short memorandum\nregarding the President\xe2\x80\x99s authority to recess-appoint a Secretary of War. That memorandum, dated\nSeptember 25, 1936, is included at the end of this opinion.\n\n32\n\n\x0cFilling the Vacancy Following the Death of the Secretary of War\n\nin the President alone, in the Courts of Law, or in the Heads of Departments.\nThe President shall have Power to fill up all Vacancies that may\nhappen during the Recess of the Senate, by granting Commissions\nwhich shall expire at the End of their next Session.\nProvision is made by sections 177 and 179 of the Revised Statutes for the\ntemporary filling of the office of the head of a department. Those sections read as\nfollows:\nIn case of the death, resignation, absence, or sickness of the head of\nany Department, the first or sole assistant thereof shall, unless otherwise directed by the President, as provided by section one hundred\nand seventy-nine, perform the duties of such head until a successor is\nappointed, or such absence or sickness shall cease [\xc2\xa7 177].\nIn any of the cases mentioned in the two preceding sections, except\nthe death, resignation, absence, or sickness of the Attorney-General,\nthe President may, in his discretion, authorize and direct the head of\nany other Department or any other officer in either Department,\nwhose appointment is vested in the President, by and with the advice\nand consent of the Senate, to perform the duties of the vacant office\nuntil a successor is appointed, or the sickness or absence of the incumbent shall cease [\xc2\xa7 179].\nRev. Stat. \xc2\xa7\xc2\xa7 177, 179 (2d ed. 1878), 18 Stat. pt. 1, at 28 (repl. vol.), recodified at\n5 U.S.C. \xc2\xa7\xc2\xa7 4, 6 (1934).\nThe filling of such office under sections 177 and 179 of the Revised Statutes,\nhowever, is temporary only, and section 180 (as amended) reads as follows:\nA vacancy occasioned by death or resignation must not be temporarily filled under the [three preceding sections] for a longer period\nthan thirty days.\n5 U.S.C. \xc2\xa7 7 (1934).\nReading sections 177, 179, and 180 together, it is my opinion that the temporary filling of a vacancy occasioned by the death or resignation of the head of a\ndepartment may not be for a period of more than 30 days. This view has long been\nadhered to by your predecessors. (Section 178 pertains only to bureaus.)\nIn an opinion dated December 31, 1880, Attorney General Devens, replying to\na letter of the Secretary of the Treasury informing him that the period of 10 days,\nfor which Honorable Alexander Ramsey, Secretary of War, was designated to act\nas Secretary of the Navy under the provisions of sections 177 and 180 of the\n\n33\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nRevised Statutes, expired the day before, and inquiring whether any person after\nsuch expiration could properly sign requisitions as Acting Secretary of the Navy\nfor payments on account of the Navy, stated:\nIn answer, I would say that, in my opinion, the vacancy in the office of the Secretary of the Navy created by the resignation of Hon.\nR.W. Thompson cannot be filled by designation of the President beyond the period of ten days. This power of the President is a statutory power, and we must look to the statute for its definition. An examination of the statutes which precede that statute of 1868 embodied\nin section 180 Revised Statutes satisfactorily shows that the period\nfor which the vacancy can be filled by designation is limited to ten\ndays. It would not, therefore, be in the power of the President, after\nsuch ten days, to designate another officer, or the same officer, to act\nfor an additional period of ten days. The statutory power being exhausted, the President is remitted to his constitutional power of appointment. No appointment has been made, and there is, and can be,\nno person authorized by designation to sign requisitions upon the\nTreasury Department on account of Navy payments as Acting Secretary of the Navy.\nAppointments Ad Interim, 16 Op. Att\xe2\x80\x99y Gen. 596, 596\xe2\x80\x9397 (1880).\nIn an opinion to the President dated March 31, 1883, Attorney General Brewster, construing sections 177, 178, 179, and 180 of the Revised Statutes with\nreference to the necessity of appointing a successor to Postmaster General Howe,\ndeceased, said:\n[T]hose sections have received an interpretation by Mr. AttorneyGeneral Devens, as appears on reference to volume 16 of AttorneyGenerals\xe2\x80\x99 opinions, pages 596 and 597.\nIt was there held by that officer that the President has power to\ntemporarily fill by an appointment ad interim, as therein prescribed,\na vacancy occasioned by the death or the resignation of the head of a\nDepartment or the chief of a bureau therein, for a period of ten days\nonly. When the vacancy is thus temporarily filled once for that period, the power conferred by the statute is exhausted; it is not competent to the President to appoint either the same or another officer to\nthereafter perform the duties of the vacant office for an additional\nperiod of ten days.\nAfter carefully reading those sections and examining the history\nof their enactment, I concur in that opinion.\n\n34\n\n\x0cFilling the Vacancy Following the Death of the Secretary of War\n\nAppointments Ad Interim, 17 Op. Att\xe2\x80\x99y Gen. 530, 530\xe2\x80\x9331 (1883).\nIn an opinion to the President dated September 11, 1884, rendered in connection with the death of Secretary of the Treasury Folger, Attorney General Brewster, referring to his former opinion of March 31, 1883, submitted upon the death\nof Postmaster General Howe, affirmed that opinion and advised that the conclusions therein applied to the case under consideration. Performing Duties of Vacant\nOffice, 18 Op. Att\xe2\x80\x99y Gen. 58, 58\xe2\x80\x9359 (1884).\nIn an opinion to the President dated January 31, 1891, rendered in connection\nwith the death of Secretary of the Treasury Windom, Attorney General Miller\nsaid:\nIt seems to me impossible to escape the effect of section 180 in\nlimiting to a period of ten days the time during which the vacant office may be filled, either by the statutory succession provided in section 177, or the designation by the President provided in section 179,\nor by both.\nVacancy in Head of Departments, 20 Op. Att\xe2\x80\x99y Gen. 8, 9 (1891).\nAt and prior to the time the opinion of Attorney General Miller above referred\nto was rendered, the limitation in section 180 was 10 days. After that opinion was\nrendered, the Congress, by the Act of February 6, 1891, ch. 113, 26 Stat. 733, 733,\namended the section so as to extend the time to 30 days, but did not otherwise\nchange the section.\nIn an opinion dated March 15, 1920, Acting Attorney General Ames, in answer\nto the letter of the Undersecretary of State advising that the 30 days of his\nincumbency as Acting Secretary of State expired on that date and inquiring what\naction would be appropriate for him and other officers of the department to take\npending the confirmation by the Senate of the nomination of Mr. Colby as\nSecretary of State, stated:\nThe President not having \xe2\x80\x9cotherwise directed,\xe2\x80\x9d you held as \xe2\x80\x9cthe\nfirst or sole assistant\xe2\x80\x9d under section 177. While that section provides\nthat such an assistant shall \xe2\x80\x9cperform the duties of such head until a\nsuccessor is appointed,\xe2\x80\x9d this language must be construed in connection with section 180 as amended, which limits the time to 30 days.\nThe vacancy to be filled under section 177 is manifestly to be filled\nonly \xe2\x80\x9ctemporarily,\xe2\x80\x9d whether filled by the assistant or in such other\nmanner as the President may direct. It can not be properly held that\nthe 30 days\xe2\x80\x99 limitation applies only to a case in which the President\notherwise directs and not to a case in which the assistant is acting\nunder the statute, because the person acting in either contingency is\nacting temporarily, and because section 180 as amended specifically\nlimits the period for temporary action to 30 days.\n\n35\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n....\nIn the absence of a specific case it is difficult to suggest what\ncourse you and the other officers of the department should take\npending the confirmation of Mr. Colby\xe2\x80\x99s nomination. It is probably\nsafer to say that you should not take action in any case out of which\nlegal rights might arise which would be subject to review by the\ncourts.\nVacancy in Office of Secretary of State, 32 Op. Att\xe2\x80\x99y Gen. 139, 141 (1920).\nAn examination of the legislative history of the act of February 6, 1891, changing the limitation in section 180 from 10 days to 30 days, is instructive. The\nopinion of Attorney General Miller advising the President that it was necessary to\nappoint a successor to Secretary of the Treasury Windom within 10 days was\ndated January 31, 1891. Vacancy in Head of Departments, 20 Op. Att\xe2\x80\x99y Gen. 8\n(1891). On the same date President Harrison addressed to the Congress the\nfollowing message:\nThe sudden death of the honorable William Windom, Secretary of\nthe Treasury, in New York, on the evening of the 29th instant, has\ndirected my attention to the present state of the law as to the filling\nof a vacancy occasioned by the death of the head of a Department.\nI transmit herewith an opinion of the Attorney-General, from\nwhich it will be seen that under the statutes in force no officer in the\nTreasury Department, or other person designated by me, can exercise\nthe duties of Secretary of the Treasury for a longer period than ten\ndays. This limitation is, I am sure, unwise and necessarily involves,\nin such a case as that now presented, undue haste and even indelicacy. The President should not be required to take up the question of\nthe selection of a successor before the last offices of affection and\nrespect have been paid to the dead. If the proprieties of an occasion\nas sad as that which now overshadows us are observed possibly onehalf of the brief time allowed is gone before, with due regard to the\ndecencies of life, the President and those with whom he should advise can take up the consideration of the grave duty of selecting a\nhead for one of the greatest Departments of the Government.\nHasty action by the Senate is also necessarily involved, and geographical limitations are practically imposed by the necessity of selecting some one who can reach the Capital and take the necessary\noath of office before the expiration of the ten days.\n\n36\n\n\x0cFilling the Vacancy Following the Death of the Secretary of War\n\nIt may be a very proper restriction of the power of the President in\nthis connection that he shall not designate, for any great length of\ntime, a person to discharge these important duties who has not been\nconfirmed by the Senate; but there would seem to be no reason why\none of the Assistant Secretaries of the Department wherein the vacancy exists might not discharge the duties of Secretary until a successor is selected, confirmed, and qualified. The inconvenience of\nthis limitation was made apparent at the time of the death of Secretary Folger. President Arthur, in that case, allowed one of the Assistant Secretaries, who had been designated to act in the absence of the\nSecretary, to continue in the discharge of such duties for ten days,\nthen designated the same person to discharge the duties for a further\nterm of ten days, and then made a temporary appointment as Secretary, in order to secure the consideration that he needed in filling this\nimportant place.\nI recommend such a modification of the existing law as will permit the first or sole Assistant, or, in the case of the Treasury Department, where the Assistants are not graded, that one who may be designated by the President to discharge the duties of the head of the\nDepartment until a successor is appointed and qualified.\n22 Cong. Rec. 2015 (message to Senate), 2060 (identical message to House).\nUpon the receipt of this message in the House, Mr. McKinley introduced a bill\n(H.R. 13453) to amend section 180 of the Revised Statutes to read as follows:\nA vacancy occasioned by death or resignation must not be temporarily filled under the three preceding sections for a longer period\nthan thirty days.\n22 Cong. Rec. 2064 (Feb. 2, 1891).\nWhen motion to suspend the rules and pass the bill was seconded by Mr.\nMcMillin, the bill was by unanimous consent considered and passed by the House\nwithout being referred to a committee. Id. at 2065. Mr. McKinley, in presenting\nthe bill, stated:\n[T]he President of the United States on last Saturday sent a message\nto the House of Representatives, as well as to the Senate, calling the\nattention of Congress to the fact that under existing law he could\ndesignate an officer to a Cabinet place for ten days, and ten only, and\nrecommended that an extension of the time be given by public law.\nDoubtless gentlemen on both sides of the House have read the message in question and are aware of the occasion which led to its\n\n37\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ntransmission to Congress. The bill I have sent to the desk proposes to\namend section 180 of the Revised Statutes, which reads as follows:\nSec. 180. A vacancy occasioned by death or resignation must\nnot be temporarily filled under the three preceding sections for a\nlonger period than ten days.\nSection 177 applies to the case which gives rise to this bill and is\nin the following words:\nSec. 177. In case of the death, resignation, absence, or sickness\nof the head of any Department the first or sole Assistant thereof\nshall, unless otherwise directed by the President, as provided by\nsection 179, perform the duties of such head until a successor is\nappointed or such absence or sickness shall cease.\nSection 180 limits the power of the President to appoint a successor until a permanent appointment is made and confirmed by the\nSenate, limiting it to a period of ten days, in which time the appointment must be made.\nNow, this bill follows the language of section 180, which is in the\nsame words, except that we insert \xe2\x80\x9cthirty\xe2\x80\x9d instead of \xe2\x80\x9cten\xe2\x80\x9d days, so\nthat it gives the President thirty days\xe2\x80\x99 time within which he may designate a head of a Department to hold until his successor is qualified\nor appointed and confirmed.\nId. at 2064\xe2\x80\x9365.\nMr. McMillin, who had seconded the motion for suspension of the rule and\npassage of the bill, stated:\nMr. Speaker, lest my demand for a second on the motion of the\ngentleman from Ohio should be misunderstood, I wish to say that I\ndo not see any reason why this bill may not be passed.\nIf I remember correctly this is one of the statutes placed on the\nbooks in order to control President Johnson. I am not sure about it,\nbut that is my memory.\nI do not, however, assent to the reasoning embodied in the President\xe2\x80\x99s message and am unable to see how he can reason as he does\nto reach the conclusion at which he has arrived. The principal part of\nthe message is taken up with a statement that it is indecorous to the\ndead to proceed to carry out the statutes for the benefit of the living.\nI do not think that would be an act of indecorum; and hence I should\n\n38\n\n\x0cFilling the Vacancy Following the Death of the Secretary of War\n\nnot vote for this proposition on that ground. But I can see that the period of ten days is a limit too short for the action which may be necessary in the appointment of the head of an Executive Department,\nand the Chief Executive might find himself at a great disadvantage in\nmaking that calm and judicious decision which should characterize\nhis action.\nId. at 2065.\nIn the Senate the bill as passed by the House was referred to the Committee on\nFinance which reported an amendment striking out all after the enacting clause\nand thereafter considerably revising sections 177, 178, and 179 of the Revised\nStatutes and repealing section 180.\nThe following is a part of the discussion of the Senate Finance Committee\namendment on the floor of the Senate:\nMR. GORMAN. I ask the Senator from Vermont if that [referring\nto the part of the amendment which repealed section 180, Revised\nStatutes] is not a very radical change and whether there ought not to\nbe some limitation. We all know that gentlemen are selected for assistants of these Departments, for the great Treasury Department,\nand there might be some question as to whether favorable action was\nto be had in selecting a head of that Department. It does not seem to\nme that there ought to be a limit. Formerly I understand the time was\nsix months, and afterwards during President Johnson\xe2\x80\x99s time it was\nlimited to ten days. Now, we are going back and throwing it open\nand permitting these officers to be designated and to act for any\nlength of time.\n....\nMR. HALE. I should be very glad to have the Senator who reports this bill state to the Senate what reasons there were for going so\nlargely into the question of the tenure of certain officers and their\nappointment. The emergency that arose was one that was clearly defined and was the subject of a special message from the President.\nThe House of Representatives evidently took the matter up in that\nspirit, and passed a simple bill of a few lines, which I am bound to\nsay suits me very much better than this long bill reported by the Senator from Vermont and sought to be put through now certainly without my being able to understand it. It occurs to me that the better\nthing to do would be to do just what the House of Representatives\ndid, take that simple bill and pass it without any amendment.\n....\n\n39\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nMR. EVARTS. Mr. President, I have made a careful examination\nof the clauses in the statute book now relating to this subject, and\nhave come to the conclusion, without reference to the bill introduced\ninto the Senate, which I had not seen nor heard of till this morning,\nthat all that is necessary either for permanent legislation or for this\nexigency is to enlarge the period within which authority for temporary appointment is needed. This I understand now has been provided for by a bill which passed the other House, simply by substituting\nthe word \xe2\x80\x9cthirty\xe2\x80\x9d for \xe2\x80\x9cten,\xe2\x80\x9d as the statute now reads. Whether any\nnew regulations should be made hereafter (and I can not foresee their\nnecessity) this measure is all that is needed for this exigency, and so\nfar as I can see all that is necessary for any supervening exigencies\nhereafter.\n....\nMR. ALLISON. If the Senator will allow me, the provisions of\nthe amendment are perfectly clear as proposed by the Senate committee. Instead of making the term thirty days, an Assistant Secretary\nis appointed who shall hold indefinitely until the President shall have\nselected a Secretary. That is the difference between the House bill\nand the Senate amendment, and the only difference.\nMR. REAGAN. The effect of that might be that we should have\nthe head of a Department holding indefinitely without the consent of\nthe Senate, and I do not think that ought to be. I prefer the House\nbill.\n....\nMR. HALE. It appears to me that the very fact that this debate has\narisen here and that doubts have come up in the minds of Senators as\nto the operation of this amendment is in itself a conclusive argument\nagainst the amendment. The other branch of the national Legislature\ntook the subject up at once and unanimously passed the simple bill\nthat disposes of the question, the only real question that there is in it,\nas the President desired undoubtedly\xe2\x80\x94I do not pretend to speak for\nhim\xe2\x80\x94but that seems to be his desire as indicated by his message.\nI do not understand that there has been any serious inconvenience\nin the Departments heretofore, excepting upon this ten days\xe2\x80\x99 limitation, and the only thing that was sought to be done in the other\nbranch was to relieve that, and I, for one, hope we may follow in the\nline they have taken.\n\n40\n\n\x0cFilling the Vacancy Following the Death of the Secretary of War\n\n....\nMR. DAWES. I should like to hear from the Committee on Finance the reasons they have to give for extending the time indefinitely; why it is better to put it in the power of the President to have an\nadviser without the consent of the Senate than to have one for thirty\nor forty days, a time sufficient for all the purposes that could be expected or desired except for the purpose of having an adviser without\nthe consent of the Senate.\n....\nMR. GORMAN. Mr. President, I have not looked into the subject\nparticularly and it is comparatively new. My understanding, however, is that originally in the very first act passed upon this subject, during General Washington\xe2\x80\x99s Administration, six months was the limit.\nMR. MORRILL. It was.\nMR. GORMAN. I understand from the Senator from Vermont\nthat I am correct in that statement. Congress was jealous about this\nmatter and would not permit a designation to extend beyond the period of six months. So we ran along until we came to the exciting\nscenes during President Johnson\xe2\x80\x99s Administration, when the majority of Congress at that time thought there was some abuse by the\nPresident, even within that limit, in the appointment of his Cabinet\nofficers and designating others to act in their place, and at that time a\nlaw was passed limiting the designations to ten days. From that period until now we have had a great many cases where the Administration, I have no doubt, has been embarrassed. I think we had one in\nthe case of Secretary Manning, who was sick for quite a long time.\nSecretary Folger also during his service as Secretary of the Treasury\nwas sick and afterwards died.\nMR. EDMUNDS. If the Senator from Maryland will pardon me\nright on that point, in the instance of Secretary Manning, Mr.\nFairchild was the Assistant Secretary, whose office was fixed by law\nand who had been confirmed by the Senate under the law and with\nthe idea that, in the illness of his chief, the duty would devolve upon\nhim by operation of law, and not necessarily by any designation of\nthe President. It is the law which provides it. Therefore, in my opinion, as the law now stands, an Assistant Secretary may proceed until\nthe President chooses to oust him by designating somebody else, or,\nwhich is the same thing, the business of any Department can go on\n\n41\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nindefinitely by the deputy named by law, as distinguished from the\nselection by the President, until the vacancy is filled, and in that way\nMr. Fairchild was enabled to go on. The only difficulty is in what I\nthink is a wrong construction placed by a former Attorney General in\na very brief opinion upon this right of the lawful deputy or assistant\nto act for more than ten days, who held in one instance under the law\nthat the Assistant Secretary could only act for ten days, which I think\nis a great mistake; but as the committee has reported this amendment, instead of leaving the law to operate upon the Assistant Secretary upon whom the duty is devolved, namely, the First Assistant, it\nauthorizes the President to step in and take his choice for an indefinite period, which I do not think is right.\nId. at 2078\xe2\x80\x9379.\nThe amendment proposed by the Senate Finance Committee was rejected and\nthe bill as sent over by the House was passed by the Senate. Id. at 2079. From this\naction by the Congress under the circumstances existing, and especially in view of\nthe discussion of the bill and the proposed Senate Finance Committee amendment\non the floor of the Senate, it seems clear that Attorney General Miller\xe2\x80\x99s construction of the statute correctly represents the intent of the Congress.\nIn view of the above, it is my opinion that the performance of the duties of the\nSecretary of War by an acting secretary may not extend beyond thirty days from\nthe date of the death of the late Secretary of War, and that it will be necessary for a\nSecretary of War to be appointed in accordance with the provisions of Article II,\nSection 2 of the Constitution to perform those duties after that date.\nIt has been suggested that the President, as Commander in Chief of the Army,\nwould be authorized under his constitutional powers to perform the duties of the\nSecretary of War. It will be noted, however, that in addition to the original duties\nplaced upon the Secretary of War by the Act of August 7, 1789, creating the\nDepartment of War, to \xe2\x80\x9cperform and execute such duties as shall from time to time\nbe enjoined on, or entrusted to him by the President of the United States,\xe2\x80\x9d 1 Stat.\nat 50, the Congress has from time to time imposed upon the Secretary of War\nspecific statutory duties, as will be seen by reference to sections 184\xe2\x80\x93219, title 5,\nU.S. Code; to title 32, U.S. Code, relating to the National Guard; and to various\nother statutes. It cannot, of course, be contemplated that the President will actually\nserve as Secretary of War, and I have some doubt whether the duties specifically\nimposed by the Congress upon the Secretary of War as such officer can be\nperformed by any person not serving as Secretary of War.\nMoreover, it seems to me that the Constitution and the acts of Congress together evince the intent that the President shall appoint a successor to a deceased or\nresigned Secretary of War within thirty days from the time the office becomes\nvacant. In my opinion his failure to do this will subject him to unfavorable\ncriticism, and will be immediately seized upon by those who have persistently\n\n42\n\n\x0cFilling the Vacancy Following the Death of the Secretary of War\n\nsought to create the impression that the President has no regard for the Constitution and the laws. This is particularly true in view of the legislative history of the\nstatutes and the many published opinions of the Attorneys General construing\nthem.\nShould the President not desire to make the permanent appointment until after\nthe convening of the next Congress, a resignation would not be necessary, since\nthe appointment at that time by the President of a new Secretary of War, concurred\nin by the Senate, would ipso facto vacate the office as of the date the new appointment became effective. See Blake v. United States, 103 U.S. 227, 237 (1880).\nIf the President may appoint a Secretary of War, it would seem that the President\nat his pleasure at any time may require his resignation and appoint someone else as\nSecretary of War to fill such vacancy.\nIt may be that the President could, if he so desired, designate the person appointed at this time as Acting Secretary of War, as an indication that the appointment was to be in the nature of a temporary one. Such an appointee would,\nhowever, in my opinion, be Secretary of War, and if elevated to that office from\nsome other position in the Department I have serious doubt whether he could later\nresume his former office without reappointment and, if the nature of the office\nrequired it, confirmation by the Senate. Moreover, such an appointment might\nresult in the President being charged with subterfuge, and might subject him to the\nsame kind of unfavorable criticism as that to which he would probably be subject\nif no appointment were made at this time.\nGOLDEN W. BELL\nAssistant Solicitor General\n\n43\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\nSeptember 23, 1936\n\nSUMMARY OF MEMORANDUM OPINION FOR ATTORNEY GENERAL*\nI. The Act of August 7, 1789, creating the Department of War provides that\n\xe2\x80\x9cthere shall be a principal officer therein, to be called the Secretary for the\nDepartment of War.\xe2\x80\x9d\nThe statute does not provide the method of appointing a secretary nor has any\nsubsequent legislation done so. Such appointment therefore is governed by Article\nII, Section 2 of the Constitution under which the President \xe2\x80\x9cshall nominate, and by\nand with the Advice and Consent of the Senate, shall appoint\xe2\x80\x9d the Secretary of\nWar.\nThe same section provides that \xe2\x80\x9c[t]he President shall have Power to fill up all\nVacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.\xe2\x80\x9d\nII. The only statutory authority for the President in the event of the death or\nresignation of the head of a department to designate a person to perform the duties\nof the vacant office until a successor is appointed is to be found in sections 177\nand 179 of the Revised Statutes, the former providing that \xe2\x80\x9cthe first or sole\nassistant thereof shall, unless otherwise directed by the President, perform the\nduties of such head until a successor is appointed\xe2\x80\x9d; and the latter (except in case of\ndeath or resignation of the Attorney General) that the President may authorize \xe2\x80\x9cthe\nhead of any other Department or any other officer in either Department, whose\nappointment is vested in the President, by and with the advice and consent of the\nSenate, to perform the duties of the vacant office until a successor is appointed.\xe2\x80\x9d\nIII. Section 180 of the Revised Statutes, referring to sections 177 and 179 (also\nsection 178 which pertains only to bureaus), provides that \xe2\x80\x9ca vacancy occasioned\nby death or resignation must not be filled under the three preceding sections for a\nlonger period than 30 days.\xe2\x80\x9d Since sections 177 and 179 contain the sole authorization to the President to designate someone to perform the duties of the Department whose head has died or resigned, the President is restricted to designating\none of the persons therein described to act during the vacancy. He therefore has no\nauthority to appoint to act during the vacancy a person who does not fall within\nthe categories specified in sections 178 and 179.\nIV. The Opinions of the Attorneys General from 1880 to the present time have\nconstrued the above-mentioned sections to mean that in case of a vacancy\noccasioned by the death or resignation of the head of a department the President\nmay not designate a person to perform the duties of such head for a period of more\nthan 30 days.\n\n*\nEditor\xe2\x80\x99s Note: This summary, dated two days later, appears immediately after the full memorandum opinion in the Unpublished Opinions of the Assistant Solicitor General.\n\n44\n\n\x0cFilling the Vacancy Following the Death of the Secretary of War\n\nV. The legislative history of the above-mentioned provisions shows that originally the period during which the duties of a deceased or resigned head of a\ndepartment might be performed by a person properly designated by the President\nwas six months; that later the period was reduced to 10 days for the purpose of\ncontrolling appointments of President Johnson; that President Harrison protested\nthe period of 10 days as too short; that thereupon an endeavor was made to repeal\nthe restrictive legislation to permit the president to designate such officers to act\nfor any length of time; that such endeavor was unsuccessful but the time was\nextended from 10 to 30 days\xe2\x80\x94the existing provision.\nVI. While the original duties placed upon the Secretary of War by the act of\nAugust 7, 1789, \xe2\x80\x9cto perform and execute such duties as shall from time to time be\nenjoined, on, or entrusted to him by the President of the United States,\xe2\x80\x9d might be\nperformed by the President as Commander in Chief of the Army during a vacancy\nin the office, subsequent legislation has from time to time imposed upon the\nSecretary of War specific statutory duties. Since it was not contemplated that the\nPresident should in fact serve also as Secretary of War, it is at least doubtful\nwhether the duties specifically imposed by the Congress upon the Secretary as\nsuch can be performed by one who is not in fact serving as Secretary.\nVII. Since the intent of the Constitution and the above-mentioned acts of Congress seems to be to require the President to appoint a successor to a deceased or\nresigned Secretary of War within 30 days from the time the office becomes vacant,\nfailure by the President to do so within that time will probably result in criticism\nof the President.\nVIII. Should the President desire not to appoint a permanent Secretary of War\nuntil after the convening of the next Congress, he could now appoint a Secretary\nof War and appoint another person as such after the convening of the Congress,\nwhich latter appointment, if concurred in by the Senate, ipso facto, would vacate\nthe office as of the date the new appointment becomes effective. Blake v. United\nStates, 103 U.S. 227, 237 (1880).\nIX. If the President may appoint a Secretary of War, it would seem that the\nPresident at his pleasure at any time may require his resignation and appoint\nsomeone else as Secretary of War to fill such vacancy.\nGOLDEN W. BELL\nAssistant Solicitor General\n\n45\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\nSeptember 25, 1936\n\nMEMORANDUM FOR THE ATTORNEY GENERAL*\nMr. Forster of the White House telephoned me this afternoon, advising that the\nPresident had concluded to appoint a Secretary of War to fill the existing vacancy.\nHe inquired whether in preparing the commission it would be proper to insert in it\na clause indicating that it was an \xe2\x80\x9cinterim\xe2\x80\x9d appointment or restricting it to a certain\ntime. I informed him that in my opinion it would not be proper for this to be done,\nsince there is no authority for the President to limit the term of one appointed to\nthis office, and in view of the fact that after appointment, he is removable, in any\nevent, at the pleasure of the President.\nThere has been no call for a formal opinion, and I assume that final disposition\nof the matter has thus been made, unless it shall be later brought to your attention.\nGOLDEN W. BELL\nAssistant Solicitor General\n\n*\nEditor\xe2\x80\x99s Note: This follow-up memorandum included a postscript: \xe2\x80\x9cBell\xe2\x80\x94Your view is correct, I\nam sure.\xe2\x80\x94HSC.\xe2\x80\x9d Presumably \xe2\x80\x9cHSC\xe2\x80\x9d was Attorney General Homer S. Cummings. On the same date,\nPresident Roosevelt recess-appointed Harry H. Woodring as Secretary of War to fill the vacancy left by\nthe passing of George J. Dern on August 27, 1936.\n\n46\n\n\x0c'