b'Permissible Accommodation of Sacred Sites\nThe Establishment Clause of the First Amendment does not bar either an Executive Order that requires\nthe accommodation o f ceremonial use o f sites on federal land that are sacred to federally recognized\nIndian tribes or a National Park Service regulation, designed to implement that Order, that prohibits\nthe issuance of commercial climbing licenses at one such site during a period o f religious signifi\xc2\xad\ncance.\n\nSeptember 18, 1996\nM e m o r a n d u m O p in io n f o r t h e S e c r e t a r y o f t h e In t e r io r\n\nWe have been asked to provide our views on the obligations imposed by the\nEstablishment Clause on the treatment of sacred sites under Executive Order No.\n13007. That Order states that each federal agency with responsibility for the man\xc2\xad\nagement of federal lands \xe2\x80\x9c shall, to the extent practicable, permitted by law, and\nnot clearly inconsistent with essential agency functions, (1) accommodate access\nto and ceremonial use of Indian sacred sites by Indian religious practitioners and\n(2) avoid adversely affecting the physical integrity of such sacred sites.\xe2\x80\x9d Exec.\nOrder No. 13007, 61 Fed. Reg. 26,771 (1996). The executive order defines \xe2\x80\x9c In\xc2\xad\ndian tribe\xe2\x80\x9d to mean \xe2\x80\x9c an Indian or Alaska Native tribe, band, nation, pueblo, vil\xc2\xad\nlage, or community that the Secretary of the Interior acknowledges to exist as\nan Indian tribe pursuant to Public Law No. 103-454, 108 Stat. 4791, and \xe2\x80\x98Indian\xe2\x80\x99\nrefers to a member of such an Indian tribe.\xe2\x80\x9d Id.\nQuestions concerning the permissible means for implementing this executive\norder have arisen in the wake of a recent federal district court decision enjoining\na National Park Service regulation that prohibited the issuance of commercial\nclimbing licenses at Devils Tower, a sacred site in Wyoming, during the reli\xc2\xad\ngiously significant month of June.1 We believe that this case was wrongly decided\nand that the federal government has broad latitude to accommodate the use of\nsacred sites by federally recognized Indian tribes.2\nIn the first section of this memorandum, we lay out the general principles that\ngovern the accommodation of religion under the Establishment Clause. In the sec\xc2\xad\nond section, we address the principles applicable to the accommodation of sacred\nsites. We then apply those principles to the Devils Tower case.\n1See Bear Lodge Multiple Use Ass\xe2\x80\x99n v. Babbitt, No. 9 6 -C V -0 6 3 -D (D. Wyo. Jun. 8, 1996).*\n* Editor\xe2\x80\x99s Note: Following both the district court\xe2\x80\x99s gram o f the preliminary injunction in the cited decision and\nthe issuance o f this opinion, the Secretary o f the Interior revoked the commercial climbing ban at Devils Tower\nin December 1996. The district court thereafter dismissed as moot the plaintiffs\xe2\x80\x99 request, based on a theory that\nthe ban violated the Establishment Clause, for permanent injunctive relief. See Bear Lodge Multiple Use Ass\xe2\x80\x99n v.\nBabbitt, 2 F. Supp.2d 1448, 1451 (D. Wyo. 1998), afFd, 175 F.3d 814 (10th Cir. 1999).\n2 It is our understanding that Executive Order No. 13007 only requires accommodations for federally recognized\ntribes.\n\n331\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nI. BACKGROUND\nThe Supreme Court has held that the Establishment Clause generally prohibits\nthe government from singling out religious organizations for special, preferred\ntreatment, whether in the form of a direct benefit or an exemption from a govern\xc2\xad\nment requirement. See Board o f Educ. o f Kiryas Joel v. Grumet, 512 U.S. 687,\n696 (1994) (plurality opinion) (the government must \xe2\x80\x9c pursue a course of \xe2\x80\x98neu\xc2\xad\ntrality\xe2\x80\x99 toward religion, favoring neither one religion over others nor religious ad\xc2\xad\nherents collectively over nonadherents\xe2\x80\x9d (citation omitted)); Epperson v. Arkansas,\n393 U.S. 97, 104 (1968) (same).3 At the same time, however, the Court \xe2\x80\x98\xe2\x80\x9c has\nlong recognized that the government may (and sometimes must) accommodate\nreligious practices and that it may do so without violating the Establishment\nClause.\xe2\x80\x99 \xe2\x80\x9d C orporation of Presiding Bishop v. Amos, 483 U.S. 327, 334 (1987)\n(quoting H obbie v. Unemployment A ppeals Comm\xe2\x80\x99n, 480 U.S. 136, 144-45\n(1987)).4 The accommodation doctrine permits the government to single out reli\xc2\xad\ngion for special treatment under certain circumstances, usually when a generally\napplicable regulation interferes with the exercise of religion.\nAlthough the accommodation doctrine permits the government, at times, to sin\xc2\xad\ngle out religion for special treatment, in general it does not excuse the government\nfrom complying with traditional Establishment Clause principles in other respects.\nThose traditional principles are embodied in the familiar Lemon test. See Lemon\nv. Kurtzntan, 403 U.S. 602, 612-13 (1971).5 Under Lemon, the government must\ndemonstrate that a law implicating the Establishment Clause (1) has a \xe2\x80\x9c secular\nlegislative purpose,\xe2\x80\x9d (2) has \xe2\x80\x9c a principal or primary effect\xe2\x80\x9d that neither advances\nnor inhibits religion, and (3) does not foster excessive governmental entanglement\nwith religion. Recent Supreme Court cases make clear that purported accommoda\xc2\xad\ntions must have a \xe2\x80\x9c secular legislative purpose\xe2\x80\x9d \xe2\x80\x94 namely, to lift a special, gov\xc2\xad\nernment-imposed burden on religious exercise. Such a permissible purpose gen\xc2\xad\nerally will, in addition, prevent the accommodation from having the impermissible\neffect of advancing religion over non-religion. If an accommodation passes these\ntwo tests, it will satisfy Lemon so long as it does not foster excessive government\nentanglement with religion.\nImportantly for present purposes, however, even where accommodations satisfy\nthe Lemon test, the Establishment Clause still might be implicated where the ac\xc2\xad\ncommodation is for the benefit of some denominations and not others; indeed,\n3 The Establishm ent Clause o f the First Amendment provides that \xe2\x80\x9c Congress shall make no law respecting an\nestablishm ent o f religion.\xe2\x80\x9d U.S. Const amend. I.\n4 The Free Exercise Clause sometimes requires the government to accommodate religious exercise. This memo\xc2\xad\nrandum concerns principles that allow (he government to provide religion with special treatment when not mandated\nby the Free Exercise Clause.\n5 In recent cases, the Supreme Court has moved away from rigid application o f the Lemon framework. See e.g.,\nRosenberger v. Rector & Visitors of the Univ. o f Virginia, 515 U.S. 819 (1995); Kiryas Joel, 512 U.S. 687. At\nthe sam e time, however, the Court has continued to apply the principles articulated in Lemon, where relevant. Because\nthe C ourt has not announced a new test, we aJso use the Lemon principles to organize our analysis, and we supplement\nthose principles where appropriate.\n\n332\n\n\x0cPermissible Accommodation o f Sacred Sites\n\ngovernment actions that discriminate among religions typically are subject to strict\nscrutiny. See Larson v. Valente, 456 U.S. 228, 246 (1982).\nA. Perm issible Secular Purpose\nUnder Lemon , laws and government practices that benefit religion must serve\na \xe2\x80\x9c secular legislative purpose.\xe2\x80\x9d 403 U.S. at 612. There is no requirement, how\xc2\xad\never, that a law\xe2\x80\x99s purpose be unrelated to religion. As the Supreme Court has\nsaid, \xe2\x80\x9c that would amount to a requirement that the government show a callous\nindifference to religious groups, and the Establishment Clause has never been so\ninterpreted.\xe2\x80\x9d Amos, 483 U.S. at 335 (internal quotations and citation omitted).\nBut the government may not act \xe2\x80\x9c with the intent of promoting a particular point\nof view in religious matters.\xe2\x80\x9d Id.\nAlthough this is hardly a bright line, one application is certain: \xe2\x80\x9c Under the\nLemon analysis, it is a permissible legislative purpose to alleviate significant gov\xc2\xad\nernmental interference with the ability of religious organizations to define and\ncarry out their religious missions.\xe2\x80\x9d Amos, 483 U.S. at 335 (emphasis added); see\nalso Lyng v. N orthwest Indian Cemetery P rotective A ss\xe2\x80\x99n, 485 U.S. 439, 454\n(1988) (\xe2\x80\x9c The Government\xe2\x80\x99s rights to the use of its own land . . . need not and\nshould not discourage it from accommodating religious practices.\xe2\x80\x9d ) 6 As a general\nrule, however, the government may only lift a burden that it has imposed. The\nSupreme Court has repeatedly emphasized that the accommodation doctrine allows\nthe protection of religious organizations from governmental interference.7 In addi6 In Amos, for exam ple, the Supreme Court upheld an exemption for the secular, nonprofit activities of religious\norganizations from Title V II\xe2\x80\x99s prohibition on religious discrimination in employment. 483 U.S. at 327. A lthough\na previous version o f the statute already exempted such employers from the ban on religious discrimination with\nrespect to their religious activities, the Amos Court reasoned that \xe2\x80\x9c it is a significant burden on a religious organization\nto require it, on pain o f substantial liability, to predict which o f its activities a secular court will consider religious\xe2\x80\x9d\nand that such \xe2\x80\x9c [flear o f potential liability might affect the way an organization carried out what it understood to\nbe its religious mission.\xe2\x80\x9d Id. at 336. Congress was entitled to lift this burden, the Court held.\nIn Lyng, the government adopted a plan permitting timber harvesting and road construction in an area of national\nforest that was traditionally used for religious purposes by members o f three American Indian Tribes. After rejecting\nthe tribes\xe2\x80\x99 argument that the Free Exercise Clause prohibited the government from establishing its plan, the Court,\nin dicta, encouraged the government to implement the plan in a manner that accommodated tribal religious practices.\n485 U.S. at 454-55. This was true even though there was no assurance that other religions (or even other federally\nrecognized tribes) would receive similar accommodations.\n7 In addition to Amos and Lyngt see, e.g., Kiryas Joel, 512 U.S at 706 ( \xe2\x80\x9c Prior decisions have allowed religious\ncommunities and institutions to pursue their own interests free from governmental interference.\xe2\x80\x9d ), id. at 705 ( \xe2\x80\x9c [T]he\nReligion Clauses do not require the government to be oblivious to impositions that legitimate exercises of state\npower may place on religious belief and practice.\xe2\x80\x9d ), Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 15 (1989) (plurality\nopinion) (exemption must \xe2\x80\x9c remov[e] a significant state-imposed deterrent to the free exercise of religion\xe2\x80\x9d )\nIn Estate o f Thornton v. Caldor, Inc., A ll U.S. 703 (1985), the Court invalidated a statutory exemption that\nalleviated a privately unposed burden on religious exercise. The Court reasoned that the statute, which required\nemployers to excuse employees from working on their designated Sabbath, took \xe2\x80\x9c no account o f the convenience\nor interests o f the em ployer o r those o f other employees who do not observe a Sabbath.\xe2\x80\x9d Id. at 709. As a general\nmatter, Thornton suggests the importance o f weighing the interests o f third parties when accommodating religious\nexercise. Although there is no explicit requirement that the government consider the effect o f a religious accommoda\xc2\xad\ntion on third parties, the Court has characterized exemptions that \xe2\x80\x9c burden[] non-beneficiaries markedly\xe2\x80\x9d as \xe2\x80\x9c unjustiContinued\n\n333\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\ntion, the government may only lift a burden that specially affects the exercise\nof religion, or religious activity. In the absence of a special burden on religious\nexercise, the government simply has nothing to accommodate.8\nIt is also clear that the Court at times will examine the purpose behind regula\xc2\xad\ntions that do not on their face refer to religion.9 Thus, drafting a regulation with\xc2\xad\nout reference to religion will not necessarily shield it from Establishment Clause\nscrutiny. However, the Supreme Court has suggested in dicta that in the context\nof government zoning and land-use regulations, facially neutral accommodations\nof religion \xe2\x80\x94 that is, regulations that are designed to accommodate religion but\nthat do so without explicitly referring to religion\xe2\x80\x94 are likely to withstand Estab\xc2\xad\nlishment Clause review, even when designed to accommodate only one religious\ngroup.10 Furthermore, the Court will not strike down a law (facially neutral or\notherwise) on purpose grounds unless the law has no apparent secular purpose\nor its (impermissible) religious purpose predominates.11\nB. N on preferen tial E ffect\nUnder Lem on , the primary effect of a government regulation cannot be to ad\xc2\xad\nvance religion over non-religion. The Supreme Court has held, however, that when\nthe government lifts a burden it has imposed on the exercise of religion, it does\nfiable awards o f assistance to religious organizations" rather than permissible accommodations. Texas Monthly, 489\nU.S. at 15 (internal quotations omitted).\n8 The Court applied this logic in Texas Monthly to invalidate a state tax exemption for religious periodicals. Reject\xc2\xad\ning the state\'s argument that the Free Exercise Clause compelled the tax exemption, the plurality observed: \xe2\x80\x9c [T]he\nState has adduced no evidence that the paym ent o f a sales tax by subscribers to religious penodicals . . . would\noffend their religious beliefs o r inhibit religious activity. . . . No concrete need to accommodate religious activity\nhas been s h o w n /\xe2\x80\x99 489 U.S. at 18. Because the tax exem ption singled out religious periodicals for a benefit and\ncould not \xe2\x80\x9c reasonably be seen as removing a significant state-imposed deterrent to the free exercise of religion,\xe2\x80\x9d\nthe plurality found that it constituted an impermissible subsidy to religion. Id. at 15.\n9 See Gillette v. United States, 401 U.S. 437, 452 (1971) ( \xe2\x80\x9c The question o f government neutrality is not concluded\nby the observation that [a statute] on its face makes no discrimination am ong religions, for the Establishment Clause\nforbids subtle departures from neutrality, \xe2\x80\x98religious gerrym anders,\xe2\x80\x99 as well as obvious abuses.\xe2\x80\x9d ). In McGowan v.\nMaryland, 366 U.S. 420 (1961), for exam ple, the Court exam ined the purpose behind the state\xe2\x80\x99s Sunday Closing\nlaws, even though those laws merely prohibited commercial activity on Sunday and made no reference to religion.\nThe Court upheld the laws, despite their apparent religious purpose, because they advanced several important secular\ngoals. Id. at 433-35.\nl0See Lyng, 485 U .S. at 4 5 3 -5 4 (\xe2\x80\x9c Nothing in our opinion should be read to encourage governmental insensitivity\nto the religious needs o f any citizen. The G overnm ent\xe2\x80\x99s rights to the use o f its own land, for example, need not\nand should not discourage it from accommodating religious practices like those engaged in by the Indian respond\xc2\xad\nen ts.\xe2\x80\x9d ); id. at 454 (noting with approval th e \xe2\x80\x9c m any\xe2\x80\x9d ameliorative, facially neutral measures that the Forest Service\nplanned\xe2\x80\x94 including building a road so as to avoid Indian sacred sites\xe2\x80\x94 and implicitly suggesting that such \xe2\x80\x9c solic\xc2\xad\nitous\xe2\x80\x9d choices w ould not violate the Establishment Clause despite their obvious purpose to accommodate religious\nexercise). A t the very least, the Establishment Clause is not seriously implicated by facially neutral zoning regulations\nthat benefit religious as w ell as other \xe2\x80\x9c lik e \xe2\x80\x9d institutions. See Larkin v. GrendeVs Den, Inc., 459 U.S. 116, 121\n(1982) ( \xe2\x80\x9c [T]here can be little doubt about th e power o f a state to regulate the environment in the vicinity of schools,\nchurches, hospitals, and the like by exercise o f reasonable zoning law s.\xe2\x80\x9d ); id. at 123 ( \xe2\x80\x9c There can be little doubt\nthat [protecting spiritual, cultural, and educational centers from the \xe2\x80\x98hurly-burly\xe2\x80\x99 associated with liquor outlets] em\xc2\xad\nbraces valid secular legislative purposes\xe2\x80\x9d u n d e r Lemon.).\n11 See Wallace v. Jaffree, 472 U.S. 38, 5 6 -6 0 (1985) (invalidating m om ent of silence statute where the record\nnot only establishes a religious purpose but reveals no secular purpose); Edwards v. Aguillard, 482 U.S. 578, 590\n(1987) (finding legislation invalid if backed by \xe2\x80\x9c preeminent religious purpose\xe2\x80\x9d ); id. at 599 (Powell, J., concurring)\n(observing that \xe2\x80\x9c religious purpose must predom inate\xe2\x80\x9d for legislation to be invalid).\n\n334\n\n\x0cPermissible Accommodation o f Sacred Sites\n\nnot impermissibly advance religion. See Amos, 483 U.S. at 336-37. Although the\ngovernment may thereby enable religion to better advance itself, such an effect\ndoes not automatically offend the Establishment Clause. Id. at 337. Furthermore,\nthe Court has stated, where \xe2\x80\x9c government acts with the proper purpose of lifting\na regulation that burdens the exercise of religion, [there is] no reason to require\nthat the exemption comes packaged with benefits to secular entities.\xe2\x80\x9d Id. at 338.\nC. N o Excessive E ntanglem ent\nFinally, Lemon prohibits the government from accommodating religion in a\nmanner that creates a risk of excessive governmental entanglement with religion.\nUnder Lemon, impermissible entanglement may occur when the government inter\xc2\xad\nvenes in religious affairs or when religious organizations assume governmental\nfunctions.12\nD. N ondiscrim ination\nEven where religious accommodations satisfy all three Lemon prongs, they also\nmust satisfy the \xe2\x80\x9c clearest command of the Establishment Clause\xe2\x80\x9d : \xe2\x80\x9c that one reli\xc2\xad\ngious denomination cannot be officially preferred over another.\xe2\x80\x9d Larson, 456 U.S.\nat 244. It follows that a discriminatory accommodation typically will be subject\nto strict scrutiny. Id. at 2 46.13\nO. ACCOMMODATION AT SACRED SITES\nAlthough the accommodation doctrine generally permits the government to sin\xc2\xad\ngle out religion for special treatment in order to alleviate government-imposed\nburdens on religious exercise, it nonetheless ordinarily prohibits the government\nfrom enacting regulations that prefer one religion over others, that foster excessive\n12 For example, in Larkin, the Court invalidated a statute that granted religious bodies veto power over applications\nfor liquor licenses. Despite the S tate\'s otherwise valid interest in protecting churches, schools, and like institutions\nfrom \xe2\x80\x9c the \xe2\x80\x98hurly-burly\xe2\x80\x99 associated with liquor outlets,\xe2\x80\x9d 459 U.S. at 123, the Court found that the statute created\nan impermissible \xe2\x80\x9c fusion\xe2\x80\x9d o f governmental and religious functions. Id. at 126. Similarly, in Kiryas Joel, the Court\ninvalidated a statute creating a school district for the Satmar Hasidim in part because it \xe2\x80\x9c delegat[ed] the State\xe2\x80\x99s\ndiscretionary authority over public schools to a group defined by its character as a religious com m unity.\xe2\x80\x9d 512 U.S.\nat 696.\n13 In Larson, the Supreme Court invalidated a portion o f M innesota\xe2\x80\x99s charitable solicitation registration and report\xc2\xad\ning requirements that exempted only those religious organizations that received more than half o f their funding\nfrom members o r affiliated organizations. A pplying strict scrutiny, the Court found that the exemption was not closely\nfitted to further the government\xe2\x80\x99s interest in protecting its citizens from abusive solicitation practices because there\nwas no evidence that predominantly member-funded organizations committed such practices less frequently than\norganizations receiving the majority o f their funding elsewhere. Id. at 244-46. More recently, in Kiryas Joel, the\nSupreme Court invalidated a statute creating a special school district only for the religious enclave o f Satmar Hasidim.\nIt reasoned, in part, that the statute violated the principle that \xe2\x80\x9c government should not prefer one religion to another,\nor religion to irreligion\xe2\x80\x9d because the benefit flowed only to a single sect and there was \xe2\x80\x9c no assurance that the\nnext similarly situated group seeking a school district o f its own will receive one.\xe2\x80\x9d 512 U.S. at 703. Citing Larson,\nthe Court concluded that, \xe2\x80\x9c w hatever the limits o f permissible legislative accommodations may be it is clear that\nneutrality as among religions must be honored.\xe2\x80\x9d Id. at 706-07 (citations omitted).\n\n335\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nentanglement with religion, or that lift privately imposed burdens. However, these\ngeneral prohibitions do not apply to regulations that accommodate the religious\npractices of federally recognized Indian tribes.\nA.\nIn M orton v. M ancari, 417 U.S. 535 (1974), the Supreme Court held that pref\xc2\xad\nerences for federally recognized Indian tribes are subject to less exacting scrutiny\nunder the Equal Protection Clause than racial or ethnic preferences because of\nthe historical guardian-ward relationship between those tribes and the federal gov\xc2\xad\nernment. In upholding an employment preference for Indians contained in the In\xc2\xad\ndian Reorganization Act, 25 U.S.C. \xc2\xa7\xc2\xa7461-494, the Court held that \xe2\x80\x9c [a]s long\nas the special treatment can be tied rationally to the fulfillment of Congress\xe2\x80\x99s\nunique obligation toward the Indians, such legislative judgments will not be dis\xc2\xad\nturbed.\xe2\x80\x9d 417 U.S. at 555. Applying this standard, the Court found that the pref\xc2\xad\nerence before it was \xe2\x80\x9c reasonable and rationally designed to further Indian selfgovernment\xe2\x80\x9d and did not constitute racial discrimination. Id. In fact, according\nto the Court, the preference was not even racial in nature because it favored a\nquasi-sovereign or political group consisting of federally recognized Indian tribes,\nrather than a discrete racial group consisting of Native Americans. Id. at 554,\n553 n.24.\nTwo Courts of Appeals have extended the logic of Morton to the Establishment\nClause context. In Rupert v. D irector, U.S. Fish and Wildlife Serv., 957 F.2d 32\n(1st Cir. 1992) (per curiam), the First Circuit upheld an exemption for federally\nrecognized Indian tribes from the federal criminal prohibition on the possession\nof eagle feathers. Faced with the question of whether to apply the strict scrutiny\nstandard of Larson or the rational basis test of M orton, the court concluded that\nthe principles articulated in M orton govern \xe2\x80\x9c where the government has treated\nNative Americans differently from others in a manner that arguably creates a reli\xc2\xad\ngious classification.\xe2\x80\x9d Id. at 35. The court reasoned that such preferential treat\xc2\xad\nment\xe2\x80\x94 as with the preferential treatment at issue in Morton \xe2\x80\x94 \xe2\x80\x9c finds its source\nin Congress\xe2\x80\x99s historical obligation to respect Native American sovereignty and\nto protect Native American culture.\xe2\x80\x9d Id. The court also found that such treatment\nis uniquely supported [in this context] by the legislative history and\ncongressional findings underlying the American Indian Religious\nFreedom Act [42 U.S.C. \xc2\xa7 1996], which declares a federal policy\nof \xe2\x80\x9c protect[ing] and preserv[ing] for American Indians their inher\xc2\xad\nent right of freedom to believe, express and exercise the[ir] tradi\xc2\xad\ntional religions . . ., including but not limited to access to sites,\nuse and possession of sacred objects, and the freedom to worship\nthrough ceremonials and traditional rites.\xe2\x80\x9d\n336\n\n\x0cPermissible Accommodation o f Sacred Sites\n\nId. at 35 (quoting United States v. Rusk, 738 F.2d 497, 513 (1st Cir. 1984), cert,\ndenied, 470 U.S. 1004 (1985)).\nSimilarly, in P eyote Way Church o f God, Inc. v. Thornburgh, 922 F.2d 1210\n\n(5th Cir. 1991), the Fifth Circuit upheld statutory exemptions for the Native Amer\xc2\xad\nican Church from federal and state laws prohibiting peyote possession. After con\xc2\xad\nstruing the exemptions as political classifications rather than as religious classifica\xc2\xad\ntions, the court stated:\nThe unique guardian-ward relationship between the federal govern\xc2\xad\nment and Native American tribes precludes the degree of separation\nbetween church and state ordinarily required by the First Amend\xc2\xad\nment. The federal government cannot at once fulfill its constitu\xc2\xad\ntional role as protector of tribal Native Americans and apply con\xc2\xad\nventional separatist understandings of the establishment clause to\nthat same relationship.\nId. at 1217.\n\nGiven the special trust relationship between the federal government and feder\xc2\xad\nally recognized Indian tribes that Morton, Rupert, and Peyote Way recognize, there\nis a strong argument that neither Lemon nor Larson should apply to accommoda\xc2\xad\ntions of tribal religious practices or sacred sites, because such accommodations\nare not religious preferences in the usual sense of that term. Rather, they are polit\xc2\xad\nical preferences conferred by the federal government on a quasi-sovereign in fur\xc2\xad\ntherance of the federal government\xe2\x80\x99s duty to promote tribal self-determination in\nall of its forms. The fact that the accommodated rituals might be viewed as reli\xc2\xad\ngious in some sense (because of the way in which the distinction between church\nand state has been understood in traditional Establishment Clause jurisprudence)\nis not dispositive when the government benefits those rituals in order to promote\ntrib\xe2\x80\x99al self-determination. Such accommodations are political ones under M orton\nbecause they are \xe2\x80\x98\xe2\x80\x98reasonably designed to further the cause of Indian self-govemment.\xe2\x80\x9d 417 U.S. at 554.\nBut, even if traditional Establishment Clause principles apply, they must be ap\xc2\xad\nplied in a manner that takes account of the special considerations that underlie\nMorton. As Morton clearly states, the Constitution gives the federal government\nbroad power in dealing with federally recognized tribes as quasi-sovereigns. The\nEstablishment Clause cannot appropriately be read to diminish the government\xe2\x80\x99s\nability to exercise this power, as would result from a direct application of standard\nEstablishment Clause analysis in the context of tribal religious accommodations.\nIndeed, as the P eyote Way court suggested, such analysis is plainly incompatible\nwith the federal government\xe2\x80\x99s duty toward the tribes.\nThe special relationship between the federal government and tribes \xe2\x80\x94 a relation\xc2\xad\nship that envisions active assistance from the federal government\xe2\x80\x94 thus, at the\nvery least, necessitates a modification of the usual Establishment Clause analysis\n337\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nwhen evaluating accommodations of tribal religious practices and sacred sites. At\na minimum, as M orton suggests and Rupert and P eyote Way hold, the federal\ngovernment may, without triggering Larson strict scrutiny, single out federally\nrecognized Indian tribes for special treatment that is not provided to other groups,\nif other Establishment Clause principles are satisfied.14 Moreover, we think that\nthe government may do more than simply lift a government-imposed burden on\ntribal religious practices, and may in addition alleviate burdens imposed by private\nparties. While the Lemon test ordinarily requires the government to lift a burden\nof its own making when accommodating religion to deter back-door attempts to\nbenefit religion, the special relationship contemplates direct benefits for tribes.\nFurthermore, such accommodations arguably may include a degree of involvement\nwith Indian tribes that exceeds the normal entanglement boundaries between gov\xc2\xad\nernment and religion. While the Lemon test typically forbids excessive government\nentanglement with religion, the special relationship between the government and\nthe tribes entails a degree of government involvement in tribal religious practices.\nIn short, the federal government has considerable discretion to enact accommoda\xc2\xad\ntions on behalf of federally recognized tribes.15\nWe should not be understood to suggest that the government\xe2\x80\x99s discretion to\naccommodate tribal religious practices is unlimited, even under the broadest under\xc2\xad\nstanding of M orton\xe2\x80\x99s effect on Establishment Clause analysis. For example, the\nrationale of M orton would not permit the government to act with the impermis\xc2\xad\nsible purpose of diluting tribal religious practices or establishing a national Indian\nreligion. We do not decide here the precise limits of our analysis. We believe,\nhowever, that M orton leaves the government with broad latitude to accommodate\ntribal religious practices.\n,4 To the extent the Establishment Clause o r any other provision o f law prohibits the federal government from\ndiscrim inating between sim ilarly situated federally recognized tribes, we note that Executive O rder No. 13007, which\nprovides that federal agencies \xe2\x80\x9c shall, to the extent practicable . . . accommodate access to and ceremonial use\nof Indian sacred sites by Indian religious practitioners,\xe2\x80\x9d ensures that all such tribes will receive accommodations\nwhere possible, and we read that Order to intend that similarly situated federally recognized tribes shall be treated\nsimilarly. Cf. Kiryas Joel , 512 U.S. at 703 (invalidating statute creating school district for the Satmar Hasidim where\nthere was \xe2\x80\x9c no assurance that the next similarly situated group seeking a school district o f its own will receive\none\xe2\x80\x9d ).\n13\nPrior to Rupert and Peyote Way, this O ffice took a narrower view of the effect on Establishment Clause analysis\no f the special relationship between the federal government and federally recognized tribes. See Peyote Exemption\nfo r Native American Church, 5 Op. O.L.C. 403, 419-20 (1981) (concluding that special relationship does not affect\nEstablishment C lause analysis). In that O pinion, we stated that the unique status of federally recognized tribes does\nnot justify special treatm ent o f tribal religious practices. Because the tribes\xe2\x80\x99 unique status derives from their political\nposition as quasi-sovereign nations, we reasoned that it only extends to preferences that further tribal authority and\nself-governance, not tribal religious observance. We note that that Opinion was drafted without the benefit o f Rupert\nor Peyote Way and substantial commentary arguing that tribal religious practices are integral to tribal self-governance.\nSee, e.g., R ichard Herz, Legal Protection fo r Indigenous Cultures: Sacred Sites and Communal Rights, 79 Va. L.\nRev. 691, 7 0 3 -0 4 (1993); Michael J. Sim pson, Accommodating Indian Religions: The Proposed 1993 Amendment\nto the American Indian Religious Freedom Act, 54 Mont. L. Rev. 19, 34 (1993); Jack F. Trope, Protecting Native\n\nAmerican Religious Freedom: The Legal, Historical, and Constitutional Basis for the Proposed Native American\nFree Exercise o f Religion Act, 20 N.Y.U. Rev. L. & Soc. Change 373, 393 (1993). In addition, we do not believe\nthat Morton\xe2\x80\x99s holding is lim ited to legislation directly related to Indian self-government functions. The reasoning\nin Morton should apply as well to legislation that is rationally related to the furtherance o f Congress\xe2\x80\x99s unique obliga\xc2\xad\ntion tow ard federally recognized tribes. See, e.g., Alaska Chapter v. Pierce, 694 F.2d 1162, 1167 (9th Cir. 1982).\n\n338\n\n\x0cPermissible Accommodation o f Sacred Sites\n\nAlthough we believe that the Lemon test does not apply with full force to tribal\nreligious accommodations, no court has had occasion to address this precise issue.\nRupert and Peyote Way upheld laws that singled out tribes for special treatment,\nbut those laws complied with Lemon in other respects. Because the law is unsettled\nin this area, we recommend that federal agencies comply with Lemon to the extent\nfeasible in implementing Executive Order No. 13007. Thus, where possible, we\nwould advise agencies to minimize the risk of governmental entanglement and\nto target government-imposed burdens on access to, or ceremonial use of, sacred\nsites.16 If these hurdles are cleared, the only remaining obstacle will be a question\nof Larson-like differential treatment; and Rupert and P eyote Way have held (cor\xc2\xad\nrectly, in our view) that, in light of Morton, such differential treatment is permis\xc2\xad\nsible when it is to the benefit of federally recognized tribes.\nWe also suggest that, where feasible, agencies adopt regulations that are facially\nneutral with respect to religion\xe2\x80\x94 i.e., that do not on their face give priority to\nany religious use of the sites. Although such neutral regulations would not be\nimmune from traditional Establishment Clause scrutiny, they may engender fewer\nconstitutional challenges. Furthermore, as noted above, the Supreme Court has\nsuggested that in the context of government zoning and land-use regulations, such\nneutral accommodations of religion are likely to withstand Establishment Clause\nscrutiny.\nB.\nFor the reasons outlined above, we believe that the district court in Bear Lodge\nerred in declaring the National Park Service (\xe2\x80\x9c NPS\xe2\x80\x9d ) management plan unconsti\xc2\xad\ntutional. That plan provides, in relevant part: \xe2\x80\x9c commercial use licenses for June\nclimbing guide activities will not be issued [by the NPS] for June 1996 and be\xc2\xad\nyond.\xe2\x80\x9d National Park Service, Final Climbing Plan Management Plan at 22 (Feb.\n1995). A group of commercial climbers sought to enjoin the operation of this\npart of the plan as a violation of the Establishment Clause. The district court\ngranted a preliminary injunction, characterizing the no-commercial-climbing rule\nas \xe2\x80\x9c affirmative action by the NPS to exclude a legitimate public use of the tower\nfor the sole purpose of aiding or advancing some American Indians\xe2\x80\x99 religious\npractices.\xe2\x80\x9d B ear Lodge, slip op. at 1 1 .17 Furthermore, the court found that the\n16 In many cases, it m ight be argued that the federal government imposed a burden on tribal religious practices\nwhen it occupied the land on which a sacred site is located. More often, it might suffice that the governm ent\xe2\x80\x99s\nprior Indian regulations, as well as its prior zoning and land-use decisions \xe2\x80\x94 including those that permit private\nparties to make use o f the land on which the site sits\xe2\x80\x94 created a burden on tribal religious exercise.\n17 The court relied on Badoni v. Higginson, 638 F.2d 172, 179 (10th Cir. 1980), cert, denied, 452 U.S. 954 (1981),\nin which the Tenth Circuit rejected a Free Exercise claim asserted by Indians seeking to completely exclude tourists\nfrom a national monument. We note that nothing in Badoni\xe2\x80\x94 which merely held that the federal government need\nnot exclude tourists from the monument under the Free Exercise C lause\xe2\x80\x94 precluded the government from voluntarily\naccommodating the tribal religious exercise under the Establishment Clause. As the Supreme Court has observed,\n\xe2\x80\x9c (i]t is well established . . . that [tjhe limits o f permissible state accommodation to religion are by no means coContinued\n\n339\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nrestriction \xe2\x80\x9c coerce[d]\xe2\x80\x9d climbers to conform their conduct to the Indians\xe2\x80\x99 religious\npractices in a way that would entangle the government in regulating behavior.\nThe district court incorrectly analyzed the Devils Tower no-commercial-climb\xc2\xad\ning rule. As discussed above, regulations that accommodate tribal religious prac\xc2\xad\ntices generally are permissible under M orton and its progeny either because they\nare political (and not religious) preferences or because they are subject to a dif\xc2\xad\nferent, less restrictive test under the Establishment Clause.\nIndeed, the rule in this case is perhaps the least problematic form of accommo\xc2\xad\ndation on our analysis because it satisfies traditional Establishment Clause prin\xc2\xad\nciples in every respect, with the possible exception of one. For example, the no\xc2\xad\ncommercial-climbing rule creates no risk of excessive entanglement because it\ndoes not involve the government in tribal affairs or vice versa. It merely regulates\nthird parties (i.e., commercial climbers)\xe2\x80\x94 parties that have been long subject to\nNPS regulation and permitting authority. Furthermore, it does so in a manner that\nneither requires the government to conform climber conduct to tribal religious\npractices, nor requires the climbers to conform their own conduct to those prac\xc2\xad\ntices, as the district court suggested. Far from entangling the government in moni\xc2\xad\ntoring climber conduct at the site, the rule simply forecloses commercial climbing\nactivity for a limited period of time.\nTo the extent that the climbing ban lifts a burden imposed by NPS in permitting\ncommercial climbing at the site in the first instance, it satisfies this aspect of\nthe purpose prong of Lemon. It is true that the rule was designed, at least in\npart, to accommodate tribes and tribal religions and not other groups or religions.\nIt achieves this purpose, however, without referring to tribal religious practices\nor singling out religious uses of Devils Tower for preferential treatment. Thus,\nin order for the rule to survive constitutional review, the government need rely\nupon M orton only insofar as that case makes clear that the government may act\nwith the purpose of accommodating tribes without providing a comparable accom\xc2\xad\nmodation to other religions. We believe M orton easily supports this modest appli\xc2\xad\ncation and that the no-commercial-climbing rule therefore comports with the Es\xc2\xad\ntablishment Clause. Although the district court reached the opposite conclusion,\nits decision has no binding precedential effect on other courts.19\nCHRISTOPHER H. SCHROEDER\nActing Assistant Attorney General\nOffice o f Legal Counsel\nextensive with the noninterference mandated by the Free Exercise C lause.\xe2\x80\x9d Amos, 483 U.S. at 334 (internal quotations\nom itted). Thus, "[t]here is ample room under the Establishment Clause for benevolent neutrality which will permit\nreligious exercise to exist without sponsorship and without interference." Id. (internal quotations omitted).\n18 The court thus analogized the climbing ban to the tribes\' request in Badoni that the government require tourists\nto act in a respectful and appreciative m anner when visiting the site.\n19The district court\xe2\x80\x99s decision is unpublished and was issued in the context o f an expedited motion for preliminary\ninjunction. Briefing on the merits has yet to commence.\n\n340\n\n\x0c'


b'D ecem ber 16, 1977\n\n77-71\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL OF THE DEPARTMENT\nOF THE TREASURY\nTermination of Federal Financial Assistance Under\nthe Civil Rights Act of 1964\n\nThis responds to your inquiry concerning the requirement in Title VI\no f the Civil Rights Act of 1964 that action terminating Federal financial\nassistance shall not take effect until the agency head has sent a report to\nthe pertinent congressional committees and 30 days have elapsed after\nthe filing of the report. Specifically, your question is whether such a\nreport may be made at the start of an administrative proceeding or only\nat a later stage.\nYou have concluded that the earliest action that could trigger the\nrequirement of a report to Congress is the issuance of the initial deci\xc2\xad\nsion of the administrative law judge, but it appears that the Office of\nRevenue Sharing favors an interpretation permitting a report to Con\xc2\xad\ngress to be made immediately after service of the administrative com\xc2\xad\nplaint. F or reasons discussed below, our opinion is that under Title VI\nthe action that gives a basis for and necessitates a report to Congress is\na final administrative decision terminating assistance. The same interpre\xc2\xad\ntation should apply to the nondiscrimination provision of the 1972\nrevenue sharing statute.\n1.\nTitle V I o f the Civil Rights A ct o f 1964 prohibits discrimination\non the grounds o f race, color, or national origin in programs receiving\nFederal financial assistance. Section 601, 42 U.S.C. 2000d. Under \xc2\xa7602,\n42 U.S.C. 2000d-l, Federal agencies w ere directed to issue regulations\nimplementing the requirement of nondiscrimination. Section 602 pro\xc2\xad\nvides that one means of enforcing the requirements of the regulations is\n\xe2\x80\x9cthe termination of or refusal to grant or continue assistance . . . to\nany recipient as to whom there has been an express finding on the\nrecord, after opportunity for hearing, o f a failure to comply with any\nsuch requirement. . . .\xe2\x80\x9d Section 602 provides further that:\n282\n\n\x0cIn the case of any action terminating, or refusing to grant or\ncontinue, assistance because of failure to comply with a require\xc2\xad\nment imposed pursuant to this section, the head of the Federal\ndepartment or agency shall file with the committees of the House\nand Senate having legislative jurisdiction over the program or\nactivity involved a full written report of the circumstances and the\ngrounds for such action. No such action shall become effective\nuntil thirty days have elapsed after the filing o f such report.\nIn our opinion, the language of the statute indicates that the report\nrequirement pertains to a final administrative decision. The requirement\napplies \xe2\x80\x9cIn the case of any action terminating, or refusing to grant or\ncontinue, assistance. . . .\xe2\x80\x99\xe2\x80\x99 As indicated above, under another provision\nof \xc2\xa7 602, there may be no such action until the recipient has been\ngranted the opportunity for a hearing and a finding of noncompliance\nhas been made. Clearly, the commencement of an administrative pro\xc2\xad\nceeding does not constitute such action; at that point, it is uncertain\nwhether the proceeding will result in the termination of financial assist\xc2\xad\nance.\nSimilar reasoning supports our view that the report requirement is\nnot triggered by an initial (or intermediate) administrative decision. The\nstatute refers to action \xe2\x80\x9cterminating\xe2\x80\x9d assistance, and mere issuance o f an\ninitial decision does not have that effect. Under the essentially uniform\nagency regulations implementing Title VI, there can be no termination\nuntil the administrative process has run its course. See, e.g., the regula\xc2\xad\ntion of this Department, 28 CFR \xc2\xa7\xc2\xa7 42.108(c) and 42.110(e), and the\nDepartment of Health, Education, and Welfare regulation, 45 C FR\n\xc2\xa7\xc2\xa7 80.8(c) and 80.10(e). These regulations, which have the force of law,\nmake clear that there is to be no report to Congress for purposes of\n\xc2\xa7 602, unless and until there is a final administrative decision terminat\xc2\xad\ning assistance.\nThe administrative construction of the report requirement is support\xc2\xad\ned by the legislative history. See, e.g., 110 Cong. Rec. 2498 (1964)\n(Representative Willis); 110 Cong. Rec. 13700 (1964) (Senator Pastore).\nThis requirement is intended, as is the provision on judicial review,\n\xc2\xa7 603, 42 U.S.C. 2000d-2, to provide a safeguard against arbitrary\naction by an agency. Until the agency itself has reached a final deci\xc2\xad\nsion, there is no real need for notification of the congressional commit\xc2\xad\ntees.\n2.\nThe nondiscrimination provision of the State and Local Fiscal\nAssistance A ct o f 1972 incorporated the procedural provisions of Title\n\n283\n\n\x0cVI, see \xc2\xa7 122 of the 1972 Act, 31 U.S.C. 1242(b) (1975 Supp.),1 and the\nNovember 1975 implementing regulation of the Office of Revenue\nSharing provides, inter alia, for submission of reports to Congress with\nrespect to monetary sanctions, see 31 C FR 51.59(b) (1976).\nIn our opinion, the above conclusion regarding the report require\xc2\xad\nment of Title VI is also applicable to an administrative proceeding to\nenforce the nondiscrimination provision o f the 1972 Act. When Con\xc2\xad\ngress adopted that provision, it was aware of the manner in which the\nagencies had construed and carried out the report requirement of \xc2\xa7 602\nof Title VI.\nThe pertinent provisions o f the November 1975 regulation of the\nOffice of Revenue Sharing are not entirely clear, but do permit an\ninterpretation consistent with our reading of Title VI. The subpart on\nnondiscrimination contained in the November 1975 regulation, Subpart\nE, incorporates the provisions of Subpart G, which deals generally\nwith administrative hearings under the 1972 Act. See 31 C F R \xc2\xa7\xc2\xa751.60\nand 51.80 (1976). Subpart G distinguishes between (1) an initial decision\nof an administrative law judge, including an order for the withholding\nof funds, and (2) a final decision. See 31 CFR \xc2\xa7\xc2\xa751.98, 51.101, 51.102\nand 51.103 (1976). If, within a prescribed period after issuance of an\ninitial decision, there is neither an appeal to the Secretary by one of the\nparties nor review by the Secretary on his own motion, then the initial\ndecision becomes final. In the event of review by the Secretary, howev\xc2\xad\ner, the final decision may differ from the initial one. Accordingly, read\nin context and in light of \xc2\xa7 602 of Title VI, the report requirement of\n\xc2\xa7 51.59(b) of the November 1975 regulation contemplates a report con\xc2\xad\ncerning a final administrative decision\xe2\x80\x94that is, a decision that, upon\ncompletion of the 30-day period, actually has the effect o f withholding\npayments.\nJohn M . H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x98 The State and Local Fiscal Assistance Amendments of 1976, Pub. L. No. 94-488, 90\nStat. 2341, replaced \xc2\xa7 122 of the 1972 A ct with a substantially different provision, one\nthat does not incorporate the procedures o f Title VI. See 31 U.S.C. \xc2\xa7 1242.\nYour letter expresses the view that the nondiscrimination provision o f the 1972 Act\ncontinues to apply to cases that arose before January 1, 1977, the effective date of\nthe 1976 Amendments. We have not considered this issue, and we express no opinion\nregarding it.\n\n284\n\n\x0c'


b'Intrasession Recess Appointments\nThe President may make appointments under the Recess Appointments Clause dunng an\nintrasession recess of the Senate that is of substantial length A 33-day summer recess is\nof sufficient length to permit the President to make recess appointments.\nAn officer appointed under the Recess Appointments Clause during an intersession recess\nmay serve until the end of the next session of Congress after the recess.\n5 U.S.C. \xc2\xa7 5503 does not prohibit salary payments to a recess appointee whose nomination\na committee refused to send to the full Senate and whose nomination was not returned\nto the President prior to an adjournment.\n\nAugust 3, 1989\nM e m o r a n d u m O p in io n\n\nfor the\n\nAttorney G eneral\n\nThis memorandum responds to your request that this Office determine\nwhether the President can make appointments under the Recess\nAppointments Clause, Article II, Section 2, Clause 3 o f the Constitution,\nduring the impending intrasession recess o f the Senate, which we under\xc2\xad\nstand will extend from August 4 to September 6, 1989. The question aris\xc2\xad\nes because a committee failed, by an even vote, to recommend confirma\xc2\xad\ntion o f a nominee and then refused to send the nomination to the floor for\nconsideration by the full Senate. You asked us to address four discrete\nissues: (1) whether the President can appoint someone during a recess o f\n33 days; (2) when during the recess the President may make such an\nappointment; (3) how long the recess appointee may serve; and (4)\nwhether one who has been subject to such committee action may receive\nhis salary under 5 U.S.C. \xc2\xa7 5503, which prohibits Treasury disbursements\nto pay salaries o f recess appointees until they are confirmed by the\nSenate unless, inter alia, \xe2\x80\x9cat the end o f the session\xe2\x80\x9d the nomination was\n\xe2\x80\x9cpending before the Senate for its advice and consent.\xe2\x80\x9d We discuss each\nissue in turn.\nWe conclude that the President is authorized to make intrasession\nrecess appointments during a recess o f substantial length, and we believe\nthat the 33 days o f this recess would be o f sufficient length to permit the\nPresident to make recess appointments. Such appointments could be\nmade at any time during the recess, but ideally would be made as early as\npossible in the recess. Appointees could serve until the end o f the next\nsession o f Congress after the recess. Finally, we conclude that 5 U.S.C. \xc2\xa7\n271\n\n\x0c5503 would not prohibit salary payments to a recess appointee whose\nnomination a committee refused to send to the full Senate and whose\nnomination was not returned to the President prior to adjournment.\n\nI. CONSTITUTIONAL ANALYSIS\nA. Length o f Recess Necessary fo r Appointment\n\nArticle II, Section 2, Clause 3 o f the Constitution provides: \xe2\x80\x9cThe\nPresident shall have Power to fill up all Vacancies that may happen dur\xc2\xad\ning the Recess o f the Senate, by granting Commissions which shall expire\nat the End o f their next Session.\xe2\x80\x9d The Department o f Justice has long\ninterpreted the term \xe2\x80\x9crecess\xe2\x80\x9d to include intrasession recesses if they are\no f substantial length. In 1921, Attorney General Daugherty held that the\nPresident had the power to make appointments during an intrasession\nrecess o f the Senate lasting from August 24 to September 21, 1921. 33 Op.\nAtt\xe2\x80\x99y Gen. 20 (1921). The opinion concluded that there was no constitu\xc2\xad\ntional distinction between an intersession recess and a substantial\nadjournment during a session. It held that the constitutional test for\nwhether a recess appointment is permissible is whether the adjournment\no f the Senate is o f such duration that the Senate could \xe2\x80\x9cnot receive com\xc2\xad\nmunications from the President or participate as a body in making\nappointments.\xe2\x80\x9d Id. at 24 (quoting S. Rep. No. 4389, 58th Cong., 3d Sess.\n(1905); 39 Cong. Rec. 3823 (1905) (statement o f Sen. Spooner)). Attorney\nGeneral Daugherty admitted that by \xe2\x80\x9cthe very nature o f things the line o f\ndemarcation cannot be accurately drawn.\xe2\x80\x9d Id. at 25. But, he concluded:\nthe President is necessarily vested with a large, although\nnot unlimited, discretion to determine when there is a real\nand genuine recess making it impossible for him to receive\nthe advice and consent o f the Senate. Every presumption is\nto be indulged in favor o f the validity o f whatever action he\nmay take.\nId.\n\nAttorney General Daugherty\xe2\x80\x99s opinion was cited and quoted with\napproval by the Comptroller General in 28 Comp. Gen. 30, 34-36 (1948),\nand reaffirmed by Acting Attorney General Walsh in 1960 in an opinion on\nan intrasession summer recess lasting from July 3 to August 8, 1960. 41\nOp. Att\xe2\x80\x99y Gen. 463, 468 (1960). In 1979, this Office reaffirmed the opinions\no f Attorney General Daugherty and Acting Attorney General Walsh, 3 Op.\nO.L.C. 314, 316 (1979), and, in 1982, again reaffirmed Acting Attorney\nGeneral Walsh\xe2\x80\x99s opinion, 6 Op. O.L.C. 585, 588 (1982).\nActing on this advice, Presidents frequently have made recess appoint\xc2\xad\nments during the traditional summer and election intrasession recesses,\n272\n\n\x0cwhich typically last for about one month.1 Recently this Office advised\nthat recess appointments could be made during a 24-day intrasession sum\xc2\xad\nmer recess.2 Ultimately, resolution o f the question whether an adjourn\xc2\xad\nment is o f sufficient duration to justify recess appointments requires the\napplication o f judgment to particular facts. Given past practice, however,\na recess o f 33 days is clearly long enough to permit a recess appointment.\nB. When the Appointment Can Be Made\n\nGiven that the rationale for treating substantial intrasession adjourn\xc2\xad\nments as \xe2\x80\x9crecesses\xe2\x80\x9d for purposes o f the Recess Appointments Clause is\nthat substantial adjournments prevent the Senate from acting on nomi\xc2\xad\nnations, one might expect that the appointment must be made early in the\nrecess. Nonetheless, there appears to be no authority for such a proposi\xc2\xad\ntion and, indeed, in 1983, this Office advised that a recess appointment\ncould be made at 11:30 a.m. on the day the Senate was to reconvene at\n12:00 noon after a 38-day recess. See Memorandum for the Files, from\nRalph W. Tarr, Deputy Assistant Attorney General, Office o f Legal\nCounsel (Oct. 19, 1983). Despite the apparent lack o f adverse precedent,\nhowever, it would seem prudent to make any appointment as early in the\nrecess as possible.\nC. Duration of the Recess Appointment\n\nThe duration o f the recess appointment depends on the meaning o f the\nterm \xe2\x80\x9cnext session\xe2\x80\x9d in the Recess Appointments Clause. It is clearly\nestablished that the \xe2\x80\x9cEnd o f their [the Senate\xe2\x80\x99s] next Session\xe2\x80\x9d is not the\nend o f the meeting o f the Senate which would begin when the Senate\nreturns from its adjournment, but rather the end o f the session following\nthe final adjournment o f the current session o f Congress. See 41 Op. Att\xe2\x80\x99y\nGen. at 469-70. Because the current session o f Congress is the first ses\xc2\xad\nsion o f the 101st Congress, a recess appointment made during one o f its\nintrasession recesses would not expire until the end o f the following ses\xc2\xad\nsion. This would be the second session o f the 101st Congress, which will\nprobably end in late 1990.\n\nII. STATUTORY ANALYSIS\nAlthough the President has the constitutional power to make appoint\xc2\xad\nments during the intrasession recess o f the Senate, 5 U.S.C. \xc2\xa7 5503 pro\xc2\xad\n\n1See, e g ., 41 Op A tt\xe2\x80\x99y Gen. 463, 468 (I960), 33 Op. A tt\xe2\x80\x99y Gen. 20 (1921); 6 Op. O.L.C. 585, 588 (1982); 3\nOp O.L.C. 314,316(1979)\n2 Memorandum fo r the Files from Herman Marcuse, Attomey-Adviser, Office o f Legal Counsel (July 6,\n1984). This Office has cautioned against a recess appointment dunng an 18-day mtrasession recess\nMemorandum for the Files from Herman Marcuse, Attomey-Adviser, Office o f Legal Counsel (Jan. 28,1985).\n\n273\n\n\x0chibits the payment o f salaries to recess appointees, with certain excep\xc2\xad\ntions. Section 5503 provides:\n(a) Payment for services may not be made from the\nTreasury of the United States to an individual appointed dur\xc2\xad\ning a recess o f the Senate to fill a vacancy in an existing\noffice, if the vacancy existed while the Senate was in session\nand was by law required to be filled by and with the advice\nand consent o f the Senate, until the appointee has been con\xc2\xad\nfirmed by the Senate. This subsection does not apply \xe2\x80\x94\n(1) if the vacancy arose within 30 days before the end of\nthe session o f the Senate;\n(2) if, at the end o f the session, a nomination for the\noffice, other than the nomination o f an individual\nappointed during the preceding recess o f the Senate,\nwas pending before the Senate for its advice and con\xc2\xad\nsent; or\n(3) if a nomination for the office was rejected by the\nSenate within 30 days before the end o f the session and\nan individual other than the one whose nomination was\nrejected thereafter receives a recess appointment.\n(b) A nomination to fill a vacancy referred to by paragraph\n(1), (2), or (3) o f subsection (a) o f this section shall be sub\xc2\xad\nmitted to the Senate not later than 40 days after the begin\xc2\xad\nning of the next session o f the Senate.\nThe vacancy for which the individual in question was nominated did\nnot arise within 30 days before the end o f the session; nor would subsec\xc2\xad\ntion (a)(3) apply with respect to the individual in question, since it only\napplies if a different person is recess appointed than the one who was\nnominated prior to the recess. The question, therefore, is whether the\nnominee satisfies the requirements of subsection (a)(2).3 The critical\ninquiry under this subsection is whether a nomination a committee has\n3 Section 5503(a)(2) requires that the nomination have been pending \xe2\x80\x9cat the end o f the session.\xe2\x80\x9d We\nbelieve that the term \xe2\x80\x9cat the end o f the session" refers to the end o f any period dunng which Congress is\nconducting business, not solely to the final adjournment o f a formal session o f Congress See\nMemorandum for the Attorney General, from John O McGinnis, Deputy Assistant Attorney General,\nOffice o f Legal Counsel, Re. Recess Appointments at 8-9 (July 7, 1988) The Comptroller General has\nagreed with our conclusion that Congress did not intend the statutory term \xe2\x80\x9csession\xe2\x80\x9d to be read narrow\xc2\xad\nly to refer only to the formal sessions o f Congress: \xe2\x80\x9cthe term \xe2\x80\x98termination o f the session\xe2\x80\x99 [has] ... been\nused by the Congress in the sense of any acyoumment, whether final or not, in contemplation o f a recess\ncovering a substantial period o f time " 28 Comp Gen. 30, 37 (1948).\n\n274\n\n\x0crefused to report favorably to the full Senate and refused to send to the\nfloor is still \xe2\x80\x9cpending before the Senate for its advice and consent.\xe2\x80\x9d4 To\nour knowledge there is neither caselaw nor relevant legislative history on\nthis specific question. We believe, however, that a nomination must be\nregarded as having been \xe2\x80\x9cpending before the Senate\xe2\x80\x9d if, under any cir\xc2\xad\ncumstance, the Senate could have acted on the nomination. Under this\ncommon- sense interpretation, a nomination that was not reported out o f\ncommittee, and which was neither acted upon by the full Senate follow\xc2\xad\ning an order o f discharge nor returned to the President by the Senate,\nwould have been \xe2\x80\x9cpending before the Senate\xe2\x80\x9d at the end of the session.\nThe Senate has the inherent power to discharge from a committee any\nmatter it wishes including nominations as recognized by Senate Rule XVII\n4(a). Thus, any nomination that a committee refused to vote out for floor\nconsideration would have been subject to discharge and consideration by\nthe full Senate. Given this, we believe that such a nomination would have\nbeen \xe2\x80\x9cpending before the Senate\xe2\x80\x9d for purposes of section 5503(a)(2).\nSenate Rule XXXI clearly supports this interpretation o f the term\n\xe2\x80\x9cpending before the Senate.\xe2\x80\x9d Under this rule, there are two circumstances\nin which the President must resubmit a nomination if it is to be consid\xc2\xad\nered: (1) where a nomination has been voted on by the full Senate and\nrejected, and (2) where a nomination has been returned. In both circum\xc2\xad\nstances, the President is notified, either by notification of the vote, or by\nhis receipt o f the returned nomination. The rules o f the Senate nowhere\nstate or even suggest that the President must resubmit a nomination not\nreported out, and there is no provision for notifying the President that he\nmust do so. The clear inference from this rule is that a nomination that a\ncommittee refuses to report to the floor, but that has not been returned\nto the President, remains pending before the Senate.\nThe Senate rules provide that \xe2\x80\x9cat the time o f taking [an] adjournment\xe2\x80\x9d\nfor more than 30 days, all nominations are to be returned to the President\nand will not be reconsidered unless resubmitted by him. Senate Rule\nXXXI(6).5 It might be argued that upon return to the President under this\nrule, a nomination is no longer pending before the Senate. Even were this\nthe case, however, a recess appointee whose nomination the committee\n\n4 Under a similar provision in the annual Treasury Department and Postal Service appropriations bill,\ncompensation is prohibited when the Senate, as opposed to a particular Senate committee, has voted not\nto approve a nomination Section 606 o f the appropriations bill provides: \xe2\x80\x9cNo part o f any appropriation\nfor the current fiscal year contained in this or any other Act shall be paid to any person for the filling o f\nany position for which he or she has been nominated after the Senate has voted not to approve the nom\xc2\xad\nination o f said person " Treasury, Postal Service and General Government Appropriations Act o f 1989,\nPub L. No 100-440, \xc2\xa7 606, 102 Stat. 1721, 1752 (1988). Because the full Senate has not voted on the nom\xc2\xad\nination at issue, this provision is clearly inapplicable\n5Senate Rule XXXI(6) provides that nominations \xe2\x80\x9cneither confirmed nor rejected dunng the session at\nwhich they are made\xe2\x80\x9d and nominations \xe2\x80\x9cpending and not finally acted upon at the time o f [an} adjourn\xc2\xad\nment or recess [of more than 30 daysj shall be returned by the Secretary to the President\xe2\x80\x9d and will not\nbe reconsidered unless resubmitted by the President (Emphasis added )\n\n275\n\n\x0crefused to report out to the full Senate and whose nomination was\nreturned pursuant to the rule would not be prohibited from receiving\ncompensation under section 5503. Since nominations may be returned\npursuant to rule XXXI only if they were \xe2\x80\x9cpending ... at the time o f ...\nadjournment or recess\xe2\x80\x9d from session, any nomination returned pursuant\nto the rule would necessarily have been returned after the end of the ses\xc2\xad\nsion, and thus would have been pending at the end of the session. Thus,\nthe subsection (a)(2) requirement that the nomination have been \xe2\x80\x9cpend\xc2\xad\ning at the end o f the session\xe2\x80\x9d would be satisfied.\nIn sum, we do not believe that the committee\xe2\x80\x99s split vote on the nomi\xc2\xad\nnee or the return o f the nomination pursuant to Senate Rule XXXI would\nalter the status o f the nomination as \xe2\x80\x9cpending before the Senate for its\nadvice and consent\xe2\x80\x9d \xe2\x80\x9cat the end o f the session\xe2\x80\x9d for purposes of section\n5503. Therefore, subsection (a)(2) would permit a recess appointee to be\npaid a salary during the pendency of his recess appointment.6\n\nIII. CONCLUSION\nWe conclude that the President may exercise his power under the\nRecess Appointments Clause during the August 1989 recess. We also con\xc2\xad\nclude that when a Senate committee has voted not to send a nomination\nto the floor, and the Senate has not discharged the nomination from com\xc2\xad\nmittee or returned it to the President prior to adjournment, the nomina\xc2\xad\ntion was \xe2\x80\x9cpending before the Senate for its advice and consent\xe2\x80\x9d for pur\xc2\xad\nposes o f 5 U.S.C. \xc2\xa7 5503(a)(2), and thus the recess appointee would not\nbe prohibited from being paid a salary during the course o f his recess\nappointment.\nJ. MICHAEL LUTTIG\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n6 If the statute were to preclude the President from paying a recess appointee in these circumstances,\nit would raise serious constitutional problems because o f the significant burden that an inability to com\xc2\xad\npensate an appointee would place on the textually committed power o f the President to make recess\nappointments See Public Citizen v United States Department o f Justice, 491 U.S. 440, 482 (1989)\n(Kennedy, J., concurring).\n\n276\n\n\x0c'


b"March 8, 1978\n\n78-15\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, CENTRAL\nINTELLIGENCE AGENCY\nCentral Intelligence Agency\xe2\x80\x94 Investigative\nAuthority\xe2\x80\x94 United States Citizens\xe2\x80\x94 Weissman\nv. CIA, (565 F. (2d) 692)\n\nThis responds to your request for our views on the Central Intelligence\nAgency\xe2\x80\x99s (CIA) proposed procedures regarding its investigations of United\nStates persons in the United States. This informal discussion does not represent\nour final conclusions on this m atter, but is meant to serve as a basis for future\ndiscussion. With the signing o f Executive O rder No. 12036, many of the issues\ntouched upon by these procedures will, as you know, become the subject over\nthe next few weeks and months of procedures promulgated under \xc2\xa7\xc2\xa7 2-206,\n2-207, and 2-208 o f that o rd e r.1 The questions to be considered in that process\nare among the most difficult arising under the order, and it is not our intention\nhere to foreclose deliberation on any of those matters, but instead to give you\nthe benefit of our preliminary thinking. On this basis, we believe the following\nissues raise problems in light o f Weissman v. CM , 565 F. (2d) 692 (D.C. Cir.\n1977).\n\nI. Delineation o f Individuals Subject to Investigation\nIn our view, the decision in Weissman did not wholly preclude investigation\nby the CIA o f those Untied States persons who have a \xe2\x80\x9c connection\xe2\x80\x9d with the\nagency. Several of the categories of individuals included in paragraph [1] of\nyour proposed procedures will have an obvious connection with the CIA, and\nwe perceive few problems with the propriety of investigations in these cases.\nFor exam ple, employees o f the agency, those who are detailed to the agency,\nthose who apply for employment with the agency, or those who expressly\n\n'E x e c u tiv e O rd e r N o . 120 3 6 , e n title d United States Intelligence Activities, w as issued b y P resi\xc2\xad\nd e n t C a rte r o n J a n u a ry 2 4 , 1978. See 14 Weekly Compilation o f Presidential Documents 194\n(Ja n u ary 3 0 , 1978).\n\n62\n\n\x0cconsent to an investigation (including employees of contractors) would meet\nthis criterion rather easily.\nHowever, the \xe2\x80\x9c connection\xe2\x80\x9d of other categories of personnel listed in\nparagraph 11J with the CIA is not so clear. Our principal concern is with those\nindividuals who do not know that they are subject to a CIA investigation and\nwho have no reason to believe that they may be investigated.In particular, this\nwould refer to employees (or applicants for employment) o f proprietaries and\ninstrumentalities who are unaware of their em ployer\xe2\x80\x99s connections, including\ncontractors\xe2\x80\x99 employees and others who have no reason to believe that the CIA\nmay investigate them. Because these individuals have no such knowledge, their\n\xe2\x80\x9c connection\xe2\x80\x9d with the CIA must rest solely on the fact that they have become\nunwittingly involved in a situation where the CIA considers it necessary to\nsubject them to some form of investigation. We believe this raises two different\nsorts of problems under Weissman. First, while we do not believe that the court\nmade an individual\xe2\x80\x99s awareness of an investigation an \xe2\x80\x9c invariable prerequi\xc2\xad\nsite\xe2\x80\x9d to an inquiry by the CIA, the court was clearly troubled by an\ninvestigation of an American citizen \xe2\x80\x9c without his knowledge\xe2\x80\x9d or \xe2\x80\x9c security\ninvestigations o f unwitting American citizens.\xe2\x80\x9d 565 F. (2d) at 695, 696. In our\nview, this concern of the court may not legitimately be entirely ignored.\nSecond, since the individuals here cannot be taken to have even implicitly\nconsented to a background investigation, the requisite \xe2\x80\x9c connection\xe2\x80\x9d in such\ncases becomes more tenuous than where they were aware of, and consented to,\nsuch investigation.\nBut we do not believe that these problems will preclude investigations of\nsuch personnel. Rather, we wonder whether an approach along the lines\nsuggested in our previous opinion on this matter would prove administratively\nfeasible\xe2\x80\x94 i.e., gearing the extensiveness and intrusiveness of the contemplated\ninvestigation to the degree that an individual has a \xe2\x80\x9c connection\xe2\x80\x9d with the CIA.\nMore specifically, in cases in which an individual\xe2\x80\x99s connection is limited, the\nCIA might promulgate more restrictive procedures than are applicable to those\nindividuals that the CIA directly employs. The restrictions contemplated\nwould pertain to approval authority, duration of investigation, methods of\ninvestigation, disposition of records, etc.\n\nII. Purposes of Investigation\nAt present the proposed procedures do not state the purposes for which an\ninvestigation may be conducted. While we have no substantial objection to this\nopen-ended approach with respect to Agency employees and others close to the\nAgency (provided that the purposes are lawful), we are troubled by its\napplication to those who have less of a connection. With respect to such\nindividuals, if the CIA is to justify an investigation by reference to some limited\n\xe2\x80\x9c connection,\xe2\x80\x9d we believe that the regulations should clearly specify that the\ninvestigation will not go beyond whatever is required by reason of that\nconnection. Otherwise, it might be claimed that the CIA is using a rather\ntenuous connection to justify an investigation serving other purposes. Such a\ndeparture from the investigation\xe2\x80\x99s underlying justification may be an abuse of\n63\n\n\x0cthat aspect of Weissman allowing an investigation predicated upon a connec\xc2\xad\ntion.\n\nIII. Method of Investigation\nThe proposed procedures do not now specify which methods of investigation\nmay be used, and we think that it is necessary in light of the order to delineate\nexplicitly what methods will be used. Perhaps more importantly, paragraph [3]\nimplies that physical surveillance may be used in some instances. While the\norder itself places limits on physical surveillance, additional restraints may be\nnecessary to fulfill the Attorney G eneral\xe2\x80\x99s responsibilities under \xc2\xa7 3.305 of the\norder. Weissman suggests such limitations. For instance, the order permits\nphysical surveillance of present employees o f CIA contractors. If these in\xc2\xad\ndividuals were unaware o f the possibility of a CIA inquiry into their lives, we\nquestion whether their \xe2\x80\x9c connection\xe2\x80\x9d with the CIA would suffice to justify the\nintrusiveness of a physical surveillance.2\n\nIV. Paragraph [2]\nThe exception contained in paragraph [2] may be too broadly written. The\nprovisions o f paragraph [2A] appear to allow exactly the sort of investigation\nthat occurred in Weissman, except that it would be limited in duration and\nsubject to record disposal requirements. The provisions of paragraph [2B]\nwould allow for an exception in all other areas, and hence provide for a way of\navoiding the limitations of the proposed procedures entirely. There is no\nprovision that either dictates the conditions under which this may occur or that\nlimits the use of this broad exception. While a member of your staff has\nsuggested that this provision could be modified to apply only to certain sorts of\npersonnel, the open-ended nature of this approach would still trouble us. Its\napplication to those with only tenuous connections with the CIA may, for the\nreasons discussed above, create problems under Weissman.\n\nV. Coordination With H.R. 7-lc(l)(g)\nWe suggest that more consideration be given as to how the proposed\nprocedures are to fit in with H .R. 7 -lc (l)(g ). As the situation presently stands,\nthe CIA will have two different sets of procedures dealing with the problems\nraised in Weissman. In our view, these two sets o f procedures are somewhat\ninconsistent. For example, several provisions in the current regulations would\nappear to allow for investigations beyond those contemplated in your proposed\nprocedures. See, e.g ., H.R. 7 -lc(l)(g )(4 ) and (6). In order to prevent possible\nconflicts or confusion, it may be advisable to promulgate one set of guidelines\nto cover this entire area. Presumably, this will be done in formulating\nprocedures under the order.\n\n2T h e sp ecial c o n c e rn a b o u t p h y sic a l su rv e illa n c e is o n e th a t w as su g g este d b y the Weissman\nco u rt, as w e p o in te d o u t in o u r e a rlie r m e m o ra n d u m . See 5 6 5 F . (2 d ) at 6 95 n. 8.\n\n64\n\n\x0cVI. Record Retention\nParagraph [2A] states that records o f those investigated but not contacted will\nbe disposed of in accordance with General Records Schedules. Because we are\nunfamiliar with these schedules, we cannot now comment on the efficacy of\nthis provision. We assume, however, that this question and others will be\nincluded in the preparation of procedures under the order and, in that context,\nwe would be pleased to provide whatever additional assistance we can.\nLarry A. H am m ond\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n65\n\n\x0c"


b'November IS, 1978\n\n78-60 MEMORANDUM OPINION FOR THE COUNSEL,\nOFFICE OF PROFESSIONAL RESPONSIBILITY\nFederal Bureau of Investigation\xe2\x80\x94Constitutional\nLaw\xe2\x80\x94Fourth Amendment\xe2\x80\x94Privacy Act (5 U.S.C.\n\xc2\xa7 5522)\xe2\x80\x94Acquisition of Private Papers\nThis responds to your request for our opinion on the legality of the way in\nwhich the Federal Bureau of Investigation (FBI) obtained personal papers on\nthe late John Forichette of Hastings, Minnesota, from his cousin, Mrs.\nMarcella Faltersek, after his death in an automobile accident. Mr. Forichette\nhad openly been a member, of the Communist Party of Minnesota, and the\npapers in question concerned that organization. The Minnesota Civil Liberties\nUnion (MCLU) has complained to Representative Bruce Vento that the FBI\xe2\x80\x99s\naction was unlawful because Mrs. Faltersek lacked authority to dispose of the\npapers and because it infringed on the First Amendment rights of persons\nnamed in them. Representative Edwards, chairman of the House Subcommittee\non Civil and Constitutional Rights, forwarded the MCLU\xe2\x80\x99s letter to the Office\nof Professional Responsibility together with a response from the Director of\nthe FBI. He has requested your views on the legality and propriety of the FBI\xe2\x80\x99s\nactions.\nThis matter raises the following legal issues: First, did the Fourth\nAmendment permit the FBI to obtain the papers from Mrs. Faltersek? Second,\ndid the Privacy Act, 5 U.S.C. \xc2\xa7 552a, or the Attorney General\xe2\x80\x99s guidelines\nimplementing that Act, permit the FBI to obtain and copy the papers? After\ncareful consideration of these issues, we have concluded that the FBI\xe2\x80\x99s action\nwas authorized by law.\nWe understand the facts to be as follows: Mr. Forichette was killed in an\nautomobile accident in Hastings, Minnesota, on June 14, 1978. Since Mr.\nForichette lived alone, Officer Ritter of the Hastings police entered his house\non June 15 to search for the names of next to kin. In the course of the search, he\nfound papers relating to the Communist Party and notified Special Agent\nNelson of the FBI. The officer also found the name of Mrs. Faltersek, a cousin\nof Mr. Forichette, and informed her of his death.\n259\n\n\x0cWhen Mrs. Faltersek arrived at the house on June 15, she told Officer Ritter\nthat she had been designated by Mr. Forichette\xe2\x80\x99s closest relatives, an elderly\ncouple, to handle funeral arrangements and take charge of the personal\nproperty. She then went through the house and found pamphlets, address\nbooks, and other papers connected with Mr. Forichette\xe2\x80\x99s Communist Party\nactivities. When she told Officer Ritter that she intended to destroy the\nmaterial, he suggested that the FBI might be interested and asked if she would\nbe willing to talk to them. Mrs. Faltersek agreed, and Ritter called the FBI to\narrange a meeting.\nAccordingly, on June 19, 1978, two FBI agents and officers of the Hastings\nPolice Department met with Mrs. Faltersek and her husband outside Mr.\nForichette\xe2\x80\x99s house. Mrs. Faltersek was told that the FBI was conducting an\ninvestigation of the Communist Party and might have an interest in the\nmaterial maintained within the house. She stated that the FBI was free to take\nwhatever Communist material was maintained in Forichette\xe2\x80\x99s residence because\nshe intended to discard it.\nMrs. Faltersek, using a key to the house, admitted the FBI agents, a police\nofficer, and her husband. After entering the house, one of the FBI agents\npresented a written release to Mrs. Faltersek, which she signed. This release\nauthorized special agents of the FBI to examine all personal effects of John\nForichette and to take with them any items they desired. Mrs. Faltersek\xe2\x80\x99s\nsignature was witnessed by a police officer and the two FBI agents.\nAll of the persons present, including Mr. and Mrs. Faltersek, spent\napproximately 30 to 45 minutes collecting and examining Mr. Forichette\xe2\x80\x99s\npapers. The FBI agents departed with one suitcase and one cardboard box full\nof miscellaneous documents relating to the Communist Party.\nMr. Forichette died intestate. Mrs. Faltersek was appointed administrator of\nhis estate on September 11, 1978, by the local probate court. The FBI has\nstated that it will return the original papers to the estate on her written request.\nThe Communist Party of the United States is the subject of a foreign\ncounterintelligence investigation authorized and conducted under guidelines\npromulgated by the Attorney General.\nIn substance, the FBI has borrowed the personal papers of a deceased person\nfrom his estate for inspection and copying. The individual who loaned the\npapers is now the administratrix of the estate; at the time of the loan she was\nmerely the agent of the deceased\xe2\x80\x99s next of kin. The first question is whether this\ntransaction is a reasonable seizure under the Fourth Amendment.\nAssuming for the moment that the FBI has \xe2\x80\x9c seized\xe2\x80\x9d the papers,1 the general\nissue is whether that seizure is authorized by Mrs. Faltersek\xe2\x80\x99s consent. As a\n\'The Eighth Circuit has defined a \xe2\x80\x9c seizure\xe2\x80\x9d as an involuntary dispossession and retention of\nproperty under color o f authority. See, United States v. Lacey, 530 F. (2d) 821, 823 (8th Cir.\n1977); Caldwell v. United States, 338 F. (2d) 385, 388 (8th Cir. 1964); United Stales v. Nicholas,\n448 F. (2d) 622, 624 (8th Cir. 1971); Wilhelm v. Turner, 431 F. (2d) 177, 179-80 (8th Cir. 1970).\nSince the FBI has obtained the papers with the consent of Mrs. Faltersek and will return them at her\nrequest, we doubt whether the transaction can even be characterized as a \xe2\x80\x9c seizure\xe2\x80\x9d under the\nFourth Amendment.\n\n260\n\n\x0crule, consent to search premises or seize property may be voluntarily given by\none \xe2\x80\x9c generally having . . . access or control .for most purposes, so that it is\nreasonable to recognize that [he] has the right to permit the inspection in his\nown right. . . .\xe2\x80\x9d UnitedStates v. Matlock, 417 U.S. 164, 171, n. 7 (1974); see,\nCoolidge v. New Hampshire, 405 U.S. 443, 488-89 (1971); Frazier v. Cupp,\n394 U.S. 731, 740 (1969). As owner of the papers,2 there is no question that\nMr. Forichette could have voluntarily disclosed them to the FBI. Mrs. Faltersek\ndid so.3 The specific question is thus whether she had sufficient authority under\nthe Minnesota law of decedent\xe2\x80\x99s estates to act as Mr. Forichette could have.\nIn Minnesota, the property of an intestate devolves to his heirs at death,\nsubject to administration.4 The administrator is entitled to possession of all\npersonal property and takes title in trust for the benefit of the estate.5 The\nadministrator has broad power to dispose of the estate\xe2\x80\x99s property, including the\npower to abandon property he believes to be of no value.6 In the exercise of his\npowers, the administrator is a fiduciary for the estate, and any heirs or creditors,\nmay sue for breach of fiduciary duty.7 The administrator\xe2\x80\x99s powers are to be\nexercised \xe2\x80\x9c for the best interests of successors to the estate.\xe2\x80\x9d 8\nOne cannot act as administrator without a court appointment.9 However,\nactions taken before an administrator is appointed are not necessarily invalid,\nfor the Minnesota statute provides:\nThe duties and powers of a personal representative commence upon\nhis appointment. The powers of a personal representative relate back\nin time to give acts by the person appointed which are beneficial to\nthe estate occurring prior to the appointment the same effect as those\noccurring thereafter. . . . A personal representative may ratify and\naccept acts by others which would have been proper for a personal\nrepresentative.10\nThe purpose of this provision is to give the administrator authority nunc pro\ntunc from the time of death." The administrator succeeds to the decedent\xe2\x80\x99s\nstanding to assert any legal rights which survive death.12\n2None of the persons interested in this matter has claimed that Mr. Forichette did not own the\npapers in question. We note that whether Mr. Forichette was the owner of the papers or merely held\nthem for others, the Fourth Amendment gave the Communist Party and any third persons named in\nthe papers no protected expectation that he would not voluntarily turn them over to the FBI. See,\nUnited Slates v. Miller, 425 U.S. 435, 440-43 (1976).\n3No person connected with this case has claimed that Mrs. Faltersek\'s consent was not free and\nvoluntary.\n. \xe2\x80\x9cMinn. Stat. \xc2\xa7 524.3-101.\n3Minn. Stat. \xc2\xa7 524.3-709.\n6Minn. Stat. \xc2\xa7 524.3-7l5(ii)..\n7Minn. Stat. \xc2\xa7\xc2\xa7 524.3-703, 524.3-712; see Minn. Stat. \xc2\xa7 524.1-201(20).\n"Minn. Stat. \xc2\xa7 524.3-703(a).\n9Minn. Stat. \xc2\xa7 524.3-103.\nl0Minn. Stat. \xc2\xa7 524.3-701.\n"See Uniform Probate Code \xc2\xa7 3-701, comment. The Minnesota statute is identical to the\nUniform Act.\nl2Minn. Stat. \xc2\xa7 524.3-70(b).\n\n261\n\n\x0cThus, Mrs. Faltersek essentially had the same relation to the estate\xe2\x80\x99s property\nas Mr. Forichette had when alive, including the power to transfer or abandon it.\nShe was permitted to exercise her power in any way not harmful to the estate,\nand she was amenable only to its creditors or the heirs for any financial loss her\nhandling of the property incurred. In particular, she could relinquish possession\nor control of property which she believed to be of no value, subject to the heirs\xe2\x80\x99\nclaim for any loss caused by her misjudgment. That power was deemed by\nState law to have existed from the time of Mr. Forichette\xe2\x80\x99s death.13 As the\nperson legally authorized to possess and dispose of the estate\xe2\x80\x99s property, Mrs.\nFaltersek had full authority to abandon the Communist Party records. This\nnecessarily included the lesser authority to consent to their permanent, or in this\ncase temporary, removal by the FBI. We therefore conclude that the Fourth\nAmendment did not prohibit the FBI from accepting the records from Mrs.\nFaltersek.\nThe next question is whether the Privacy Act, 5 U.S.C. \xc2\xa7 552a, prohibited\nthe FBI from obtaining, analyzing, and retaining copies of the records. As a\npreliminary matter, we note that only an \xe2\x80\x9c individual\xe2\x80\x9d has rights and remedies\nunder the Privacy Act; associations have none apart from the separate rights of\ntheir members.14 Further, the Act applies only to collection, retention, and\ndissemination of information about an individual that is retrievable by name or\nan equivalent personal identifier.15 Thus, the Act applies only to the FBI\xe2\x80\x99s\ncollection, retention, and use of information concerning individual Communist\nParty members.\nThe relevant portion of the Privacy Act is 5 U.S.C. \xc2\xa7 552a(e)(7), which\nprovides:\nEach agency that maintains a system of records shall\xe2\x80\x94\n(7) maintain no record describing how any individual exercises his\nrights guaranteed by the First Amendment unless expressly author\xc2\xad\nized by statute or by the individual about whom the record is\nmaintained or unless pertinent to and within the scope of an\nauthorized law enforcement activity. [Emphasis added.]16\nThe underlined language was added to the statute in a floor amendment\nsponsored by Representative Ichord. He stated that the purpose of the\namendment was to permit the FBI to investigate illegal activity undertaken by\nl3We are aware that only authority for acts \xe2\x80\x9c beneficial\xe2\x80\x9d to the estate relates back before the\nadministrator\'s appointment. Minn. Stat. \xc2\xa7 524.3-701. W hile we cannot authoritatively construe\nthis question of State law, we believe that it means only that the administrator would be strictly\nliable for any loss to the estate from these dealings, rather than liable as a fiduciary under the\n\xe2\x80\x9c prudent m an\xe2\x80\x9d rule. Cf., Minn. Stat. \xc2\xa7 524.3-703(a).\n\'*See 5 U.S.C. \xc2\xa7\xc2\xa7 552a(2), (4), (c)(3), (d), (e)(l)-(3), (5)-(8), (f), (g); Am. Federation of\nGovernment Employees, Local 2047 v. Defense General Supply Center, 423 F. Supp. 481 (E.D.\nVa. 1976).\nI55 U.S.C. \xc2\xa7 552a(a)(4)-(5).\nl6The FBI Central Records System (Justice/FBI 002) has been exempted from the provisions of 5\nU.S.C. \xc2\xa7 552a(e)(l). See 5 U .S.C. 552a(k)(2); 43 F.R. 44694 (Sept. 28, 1978).\n\n262\n\n\x0cthe Communist Party and similar organizations under the guise of political\nactivity protected by the First Amendment. He further stated that the amend\xc2\xad\nment was not intended \xe2\x80\x9c to hurt in any way the exercise of the first amendment\nrights.\xe2\x80\x9d 17 Thus, 5 U.S.C. \xc2\xa7 552a(e)(7) permits the FBI to maintain a record of\nan individual\xe2\x80\x99s activities relating to the First Amendment when, but only when,\nthose activities are involved in conduct which is the subject of an otherwise\nauthorized law enforcement investigation by the FBI.\nIn our view, the FBI has complied with subsection (e)(7) in this case.\nInvestigation of the Communist Party has been specifically authorized by the\nAttorney General as a foreign counterintelligence investigation under 28\nU.S.C. \xc2\xa7 533(3), Executive Order No. 12036, \xc2\xa7\xc2\xa7 1-1401, 2-208(j), 4-202, and\nthe Attorney General\xe2\x80\x99s procedures for the conduct of such investigations.18 To\ndate, the FBI has not opened or initiated any new individual files on the basis of\nthe Forichette papers. The material is being evaluated, and individual investiga\xc2\xad\ntions will be undertaken only if authorized under the Attorney General\xe2\x80\x99s\nprocedures or if other possible violations of law are revealed. These investiga\xc2\xad\ntions would be duly authorized, and the maintenance of records on the\nassociation of individuals concerned with the Communist Party would be\npermitted if pertinent to the investigation.19\nTo summarize, the FBI is conducting its investigation of the Communist\nParty as a foreign counterintelligence investigation under appropriate authority.\nIn the course of this investigation, Mrs. Faltersek voluntarily provided the FBI\nwith temporary use of papers relating to the Communist Party which were\nlawfully in her possession and which, under the law of Minnesota, she had the\nauthority to abandon entirely. The Fourth Amendment permits the FBI to\nacquire the papers in this manner. Since the papers concern associational\nactivity protected by the First Amendment, the Privacy Act permits the FBI to\nmaintain retrievable records of individuals mentioned in them only when\npertinent to and within the scope of the authorized investigation of the\nCommunist Party. Insofar as we are aware, the FBI intends to proceed\naccordingly.\nM ary C . L aw ton\n\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n17120 Cong. Rec. 36957 (1974); see also 120 Cong. Rec. 36644 (Representative Moorhead),\n36650 (Representative lchord).\n1\xe2\x80\x9cRepresentative lchord stated that he was using the term "law enforcement\xe2\x80\x9d in its broadest\nsense, to include legitimate "national or internal security investigations\xe2\x80\x9d authorized by statute or\nExecutive order. 120 Cong. Rec. 36651 (1974).\nl9The Privacy Act notice for the FBI Central Records System (Justice/FBI 002) states: \xe2\x80\x9c It should\nbe noted that the FBI does not index all individuals that furnish information or names developed in\nan investigation. Only that information that is considered pertinent and relevant and essential for\nfuture retrieval, is indexed.\xe2\x80\x9d 43 F.R. 44693 (Sept. 28, 1978).\n\n263\n\n\x0c'