TO INDIAN TRIBES November 9, 1971 5 to vote in Secretarial elections to those persons 21 years of age or older constitute acts of "the United States" which "den[y] or abridg[e]” the right to vote of those Indians between 18 and 21. Such provisions, and any others that would operate with similar effect, are therefore unconstitutional as applied in such elections to otherwise qualified Indians of at least 18 years of age. The right to vote should therefore be extended to 18-year-olds in elections called to adopt new Indian Reorganization Act constitutions or amendments to existing constitutions, even though that particular existing constitution may impose a 21-year-old voting requirement, and to all other Secretarial elections. In other words, the Twenty-Sixth Amendment is self-executing, which means that all laws and regulations contrary to it are changed without other action on the part of the Congress or federal agencies. Thus, for example, the definition of adult Indian in 25 CFR § 52.1 (e) must be read: "Adult Indian means any Indian who has attained the age of 18 years." And 25 U.S.C. sec. 479 is, in effect, changed to read: ***"The words adult Indians" wherever used in said sections shall be construed to refer to Indians who have attained the age of twenty-one years, except that in reference to voting in Secretarial elections, it shall be construed to refer to Indians who have attained the age of eighteen years. Regarding Secretarial elections concerned with issuing charters of incorporation, 25 U.S.C. sec. 477 provides: The Secretary of the Interior may, upon petition by at least one-third of the adult Indians, issue a charter of incorporation to such tribe: Provided, That such charter shall not become operative until ratified at a special election by a majority vote of adult Indians living on the reservation. May 18-year-olds sign such petitions, and thus be counted among the "adult Indians" for the purpose of this statute? We think that the petition is a sufficiently integral part of the Secretarial election process that the 18-year-old vote requirement of the Twenty-Sixth Amendment must apply. See, e.g., Smith v. Allwright, supra. MITCHELL MELICH, Solicitor, 5 Secretarial elections refer to those that are authorized pursuant to statute and con ducted by the Secretary under his regulations. The primary examples are those authorized by the Indian Reorganization Act, which provides that any Indian tribe residing on a reservation may adopt or amend its constitution and bylaws, which shall become effective when ratified by a majority vote of adult members of the tribe (25 U.S.C. § 476). Adult members are defined as those who have attained the age of twenty-one years (25 U.S.C. § 479). Secretarial elections would thus also include elections such as Osage elections, pursuant to the Act of June 28, 1906, 34 Stat. 539, as amended, and 25 CFR Part 73. • United States v. Amsden, 6 F. 819, 822 (D. Ind. 1881) (regarding the self-executing nature of the Fifteenth Amendment). MINING IN NATIONAL PARK SERVICE AREAS* Mining Claims: Lands Subject to-Mining Claims: Withdrawn Land— National Park Service Areas: Generally-National Park Service Areas: Land: Use Areas of the National Park System are withdrawn from location, entry and patent under the Mining Laws of the United States unless the language creating the area specifically makes lands within the area subject to the mining laws. M-36838 November 16, 1971 To: FIELD SOLICITOR, SAN FRANCISCO, CALIFORNIA. SUBJECT: WITHDRAWAL OF NATIONAL PARK AREAS FROM MINERAL LOCATION BY CODE OF FEDERAL REGULATIONS. In your memorandum of September 2, 1971, you requested our comments on whether National Park Service areas were withdrawn from mineral entry and location by 36 C.F.R. sec. 5.14 and 43 C.F.R. sec. 3811.2-2. Specifically, you are concerned that Federal lands within the Lake Mead and Bighorn Canyon National Recreation Areas might be subject to mineral location under the general mining law of 1872, R.S. 2319, as amended, 30 U.S.C. sec. 22 (1970). The issue is further complicated because legislation creating some National Park Service areas [e.g., Whiskeytown, 79 Stat. 1295, 16 U.S.C. sec. 460q (1970)] explicitly bars mining locations, while the legislation creating Lake Mead and Bighorn Canyon makes no mention of the matter in the establishment acts. The opinion of the Field Solicitor, Billings, Montana, June 22, 1967, concludes that 36 C.F.R. sec. 5.14 (1971), has the effect of prohibiting mining activities within the Bighorn Canyon National Recreation Area. While we agree that the Secretary has authority to withdraw public lands from entry under the mining laws, there is some question whether the term "park areas" in 36 C.F.R. sec. 5.14 includes the recently created recreation areas. Furthermore, we have doubts over whether an area of the public domain may be withdrawn from the application of the mining laws by Departmental regulations of a general application as distinguished from a public land order describing the specific lands withdrawn or act of Congress. Executive Order No. 10355, dated May 26, 1952 (17 F.R. 483) provides: Section 1. (a) Subject to the provisions of subsections (b), (c), and (d) of this section, I hereby delegate to the Secretary of the Interior the authority *Not in Chronological Order. November 16, 1971 vested in the President by section 1 of the act of June 25, 1910, ch. 421, 36 Stat. 847 (43 U.S.C. 141), and the authority otherwise vested in him to withdraw or reserve lands of the public domain and other lands owned or controlled by the United States in the continental United States or Alaska for public purposes, including the authority to modify or revoke withdrawals and reservations of such lands heretofore or hereafter made. (b) All orders issued by the Secretary of the Interior under the authority of this order shall be designated as public land orders and shall be submitted to the Division of the Federal Register, General Services Administration, for filing and for publication in the Federal Register. (Italics added.) Under the provision of section 1(b) of the Executive Order it would appear that the withdrawal of an area from the mining laws by executive action requires a public land order identifying the lands to which it applies, rather than a general regulation. However, it is not necessary to belabor this point in that we are of the opinion that authority exists for the premise that Federal lands within these two recreation areas are not open to entry and location under the mining laws. By far the largest portion of land within the National Park System consists of areas withdrawn from the public domain. In most cases when a National Park Service area is created, the withdrawal language is contained in the individual act of Congress creating the area or the proclamation establishing a national monument under the Antiquities Act of June 8, 1906, 34 Stat. 225, 16 U.S.C. sec. 431 (1970). An example of the withdrawal language is found in the act creating the Whiskeytown-Shasta-Trinity National Recreation area which provides that the public lands within the described boundaries "are hereby withdrawn from location, entry and patent under the United States mining laws." See section 6 of the Act of November 8, 1965, 79 Stat. 1298, 16 U.S.C. 460q-5 (1970). The fact, however, that some statutes establishing areas of the National Park System do not contain such language should not be read to infer a Congressional intent that the area is open to mineral entry. In our judgment, just the opposite intent should be inferred. An examination of the various statutes on this subject reveals that, whenever Congress has desired to make lands within an area of the National Park System open to mineral entry, the establishing act specifically so states. See: Mount Rainier, Act of May 27, 1908, 35 Stat. 365, 16 U.S.C. 94 (1964), superseding the Act of 1899; Crater Lake, section 4 of the Act of August 21, 1916, 39 Stat. 522, 16 U.S.C. 127 (1964), superseding the Act of 1902; Olympic, section 2 of the Act of June 29, 1938, 52 Stat. 1242, 16 U.S.C. 252 (1964); and Mount McKinley, section 4 of the Act of February 26, 1917, 39 Stat. 938, 16 U.S.C. 350 (1964). In addition, mining in four national monuments has been allowed only through specific acts of Congress Glacier Bay, Act of June 22, 1936, 49 Stat. 1817; Coronado, Act of August 18, 1941, 55 Stat. 631, 16 U.S.C. 450y (1970); Death Valley, Act of June 13, 1933, 48 Stat. 139, 16 U.S.C. 447 (1970), and Organ Pipe Cactus, Act of October 27, 1941, 55 Stat. 745, 16 U.S.C. 450z (1970). These acts indicate that when Congress intends mining to be allowed in National Park System areas, the legislation will specifically so authorize. The legislation establishing Bighorn Canyon and Lake Mead does not open these areas to mineral entry and location. Secondly, it can be inferred that when an area is reserved for public use as a National Park System area, it has been withdrawn from entry under the mining laws. A clear example of this can be seen in the act creating the Lake Mead Recreation Area. The creating act, 16 U.S.C. 460n (1964), makes no mention that the land is withdrawn from entry under the mining laws, yet the legislative history and the Departmental report make it eminently clear that the area was created to afford protection after the termination of the reclamation withdrawal and that mining would not be authorized. 2 U.S. Code, Cong. and Adm. News, 88th Cong. pp. 3918-3923 (1964). Consistent with this interpretation Public Land Order 5048, 36 F.R. 8149, which revoked prior reclamation withdrawals for the area, provided that the area shall "remain closed to location, settlement, and entry under the public land laws, including the mining laws * * *” With respect to the Bighorn Canyon National Recreation Area, that act also indicates a congressional intent that this area be closed to entry and location under the mining laws. Specifically, section 3 (a), Act of October 15, 1966, 80 Stat. 914, 16 U.S.C. 460t-2 (1970), provides: The Secretary shall coordinate administration of the recreation area (3) for management, utilization, and disposal of renewable natural resources in a manner that promotes, or is compatible with, and does not significantly impair, public recreation and conservation of scenic, scientific, historic, or other values contributing to public enjoyment. (Emphasis added.) Because this section provides the basic congressional directive by which the Secretary shall administer this area, and the location of mineral entries would jeopardize, if not preclude, management of the renewable resources (i.e., timber, grass and other renewable resources would be depleted by mining activities), an intent may be inferred from this section that Congress closed the recreation area to mineral entry and location. In addition, the fact that the Secretary has been given authority to dispose of renewable natural resources indicates a congressional intent that he is not authorized to dispose of the nonrenewable mineral resources. Withdrawal by inference is also supported by the decision in Rawson v. United States, 225 F. 2d 855, 858 (9th Cir. 1955), where the court found that under the public land laws mineral entries may December 16, 1971 be made only on lands forming part of the public domain, “* * * that is, public lands of the United States subject to entry, sale, or other disposal pursuant to general law." *** The court notes that there are exceptions to this general rule where Congress has expressly reserved the mineral rights even though the land is to be used for other purposes. Cf. Thompson v. United States, 308 F. 2d 628 (9th Cir. 1962). In discussing the application of the language of the Mining Act of 1872, the Supreme Court in Oklahoma v. Texas, 258 U.S. 574 (1922), opined that it applied only to "public lands,” that is, lands open to entry, location, selection, sale or other disposal under the general public land laws. The Court illustrated the absurdity of inferring that all public lands are open to mining entry by pointing to the fact that such an interpretation would allow mining about the grounds of the Capitol in Washington or within the National Cemetery at Arlington or the lands in national parks such as Yosemite or Yellowstone. A recent opinion of the Solicitor, citing the cases discussed above, reached the same decision with regard to the application of the Wilderness Act. Solicitor's Opinion, 74 I.D. 97 (1967). In conclusion, we are of the opinion that the acts establishing Lake Mead and Bighorn Canyon National Recreation Areas withdrew the lands from entry under the public land laws, and accordingly, the mining laws are inapplicable. To view these acts otherwise would allow a use of National Park System lands totally inconsistent with the stated objectives of Congress in setting aside and protecting these areas for recreational use by the public. BERNARD R. MEYER, 1 IBIA 201 ESTATE OF LUCY HOPE DEEPWATER Decided December 16, 1971 Indian Probate: Rehearing: Pleading, Timely Filing Where a petition for rehearing was not filed in the appropriate office of the Department of the Interior until the 61st day after entry of the original order, the hearing examiner lacked authority to extend the time for filing thereof and had no jurisdiction to determine the substantive issues raised in the petition on their merits. INTERIOR BOARD OF INDIAN APPEALS This matter is before the Board of Indian Appeals on appeal by Daniel B. Evening, Sr., from an order of Hearing Examiner Alexander H. Wilson denying his petition for rehearing. |