ing corners on the north boundary of T. 12 N., N., R. 82 W., appear on the original Gilbert Survey along the Colorado-Wyoming state line in sec. 22 at a point 29.80 chs. (chains) east of the 133rd milepost, in sec. 23 at a point 29.65 chs. east of the 132nd milepost, and in sec. 24 at a point 30.10 chs. east of the 131st milepost. As the Bureau of Land Management has previously indicated, these same closing corners are established on the state line on the Duren resurvey at distances "substantially in agreement with those shown on the official plat of the original survey." On the Duren resurvey these same closing corners appear in sec. 22 at a point 29.64 chs. east of the 133rd milepost, in sec. 23 at a point 29.49 chs. east of the reset 132nd milepost, and in sec. 24 at a point 29.87 chs. east of the 131st milepost. In comparing these critical measurements there is little difference between the original and the resurvey closing distances, no more than .23 chs. (15.18 ft.) in any one measurement. Certainly, such a slight variance could not be interpreted as gross error, nor could it possibly have resulted in a westward shift of appellants' patented tract over a distance of a quarter of a mile. In addition, a check against the plat of the Tufts' resurvey of the adjacent township in 12 N., R. 81 W., verifies the proper east-west position of the Duren resurvey. The closing corner of 12 N., R. 81 W., which is also the northeast corner of 12 N., R. 82 W., appears on the Colorado-Wyoming state line at a point 29.91 chs. east of the 131st milepost. This favorably compares to the same measurement by Duren for the corner common to both townships at a point 29.87 chs. east of the 131st milepost. The difference between the two surveyors' measurements is only .04 chs., less than a distance of 3 feet. Turning next to appellants' specific charges of discrepancies between the surveyors, we note they refer to the position of the Continental Divide on the original survey of the Colorado-Wyoming boundary, by A. V. Richards in 1872. They maintain the divide appears on the Richards' survey approximately 311⁄2 miles east of the 133rd milepost. In their own comparison of the Duren resurvey they conclude that the 133rd milepost "is very considerably further east of the top of the Continental Divide than 311⁄2 miles." First, these are merely general statements of appelants' own approximations of distances which are unsupported by on-the-ground measurements of a qualified surveyor. Appellants' theoretical comparisons will not control over more precise measurements taken from other fixed points of reference as set forth on the official plats of survey. Second, the Continental Divide has no proper relation to the patented tract on the surveys in question. It was not involved in the area of these surveys February 2, 1971 and was not used as a reference point for any location of boundaries in T. 12 N., R. 82 W. Therefore, there are no official measurements on the plat of survey or in the field notes that could be compared or verified from the 133rd milepost to the Continental Divide. Appellants also point to the location of the Town of Pearl, Colorado, stating "The 1957 resurvey places the Town of Pearl in Range 82." The significance of the alleged position of Pearl is not entirely clear from appellants' brief. However, they have apparently attempted to correlate the alleged change in position of their patented land to the location of the Town of Pearl on general reference maps of the State of Colorado and on a private survey of Pearl.3 Their argument is both ineffective and confusing. The Town of Pearl does not appear within T. 12 N., R. 82 W., on the plat of resurvey. Appellants have apparently misconstrued the location of a reference on the plat to U.S.C. and G.S. triangulation station "Pearl" (S. 63°06′52′′ E., 33.71 chs.). This reference places the triangulation station of Pearl in T. 12 N., R. 81 W., 33.71 chains from the corners of secs. 25 and 24 on the east boundary of T. 12 N., R. 82 W. This fact is borne out from an examination of the surveyor's field notes p. 442 where he expressly states: The direction of all lines were determined by both the transit and solar methods, with the initial azimuth obtained from the U.S.C. & G.S. second order triangulation station "Pearl", located in the NW of section 30, T. 12 N., R. 81 W. (Italics added.) It is a well settled principle that lands are granted according to the official government survey. The plat, itself, with all its notes, lines, descriptions, and landmarks, becomes as much a part of the grant or deed by which they were conveyed, and controls so far as limits are concerned, as if such descriptive features were written out upon the face of the deed or the grant itself. Cragin v. Powell, 128 U.S. 691 (1888). Also see Alaska United Gold Mining Co. et al. v. CincinnatiAlaska Mining Co. et al., 45 L.D. 330 (1916), and cases cited therein. Therefore, in order to determine the limits of the area passed under a patent it is proper to look to the official plats of survey to determine the true location of the patented land. The alleged location of that land or any adjacent landmark on unofficial sources such as these reference maps or a private survey cannot affect its true location on the ground as depicted in the official government survey. 3 Appellants have submitted copies of maps of parts of the State of Colorado including an unidentified map of Nell's Colorado of 1887, a General Land Office map of the State of Colorado of 1905, and a map of the Hayden National Forest, Forest Service, U.S.D.A., 1926. They also submit a plan of the Town of Pearl, Larimer County, Colorado, prepared by J. Phelps Pim. Mining Engineer, December 1900. Appellants refer to the location of "Beaver Creek" which they state crosses the tract they have occupied from the southwest corner to the northeast corner and appears in the same location on the original Gilbert survey. A stream does appear to cross the SW4 NW4 sec. 26 on the Gilbert survey plat. The same stream appears to cross from the SE NE1⁄44 of sec. 27 continuing into the SW4 NW14. This topographical feature is not specifically identified in Gilbert's field notes as "Beaver Creek." If appellants had occupied land outside the area of their patent into the SE4 NE1⁄44 of sec. 27, the stream would also cross the total area of the occupied land in the same relative position, running in a direction from the southwest to the northeast. The omission of the stream on the resurvey, by itself, does not necessarily prove appellants' theory of the case. The records indicate the two surveys were conducted at different times of the year (the original survey in February, the resurvey in July). It would not be unusual for a stream to dry up in the summer months. Accordingly, there might not be a topographical reference on a survey to a stream during that season of the year. Going a step further, this one omission does not prove the resurvey to be grossly erroneous or fraudulent. This is a reference to an item of topography which would not be controlling in this matter in the face of conflicting measurements of courses and distances from fixed monuments. It has long been accepted by the Department that "items of topography in the interior of sections" are "based upon estimates by the surveyor, rather than upon actual measurements,” and represent only an approximation of the actual positions of natural monuments and are not to prevail over courses and distances. J. M. Beard (On Rehearing), 52 I.D. 451 (1928). While the absence of this one topographical reference is a point well taken, the clear preponderance of the evidence supports the validity of the resurvey. With respect to appellants' request for a hearing, there is no requirement that a hearing be held prior to an adjudication by the Department of an application under the Color of Title Act, supra. Appellants have had ample opportunity to submit evidence they deemed pertinent to their case and have offered nothing to contradict the facts upon which the Bureau of Land Management determined this matter. There being no apparent justification for a hearing the request is denied. Gilbert refers to crossing a stream, 3 links wide, course N.E., at a point 45.20 chs. from the corners of secs. 26, 27, 34, 35, while going north between secs. 26 and 27 in his field notes, 156 Colorado Fieldnotes, p. 368. MONTANA ON THE ROCKY BOY'S RESERVATION February 3, 1971 Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior (211 DM 13.5; 35 F. R. 12081), the decision of the Bureau of Land Management is affirmed. FRANCIS E. MAYHUE, Member. WE CONCUR: MARTIN RITVo, Member. JOAN B. THOMPSON, Alternate Member. APPLICABILITY OF THE LIQUOR LAWS OF THE STATE OF Indians: Criminal Jurisdiction-Indians: Law and Order-State Laws The modification of the Federal Indian liquor laws, permitting the introduction, possession and sale of intoxicating beverages on the reservation with tribal consent (act of August 15, 1953, 67 Stat. 586, 18 U.S.C. sec. 1161 (1964)) does not make Montana liquor laws applicable to the Chippewa Cree Tribe or tribal members on the Rocky Boy's Reservation. Rather, this act requires the state liquor laws to be used as the standard of measurement to define lawful and unlawful activity on the reservation. Actions not in conformity with the provisions of applicable state law would subject a tribal member to prosecution only in the Federal courts, not in state courts. Non-Indians would be subject to prosecution in the Federal and state courts, assuming a double jeopardy question is not presented. Indian Tribes: Generally-Indians: Law and Order-State Laws A subordinate tribal entity or tribal member licensed by the Chippewa Cree Tribe to operate a liquor establishment on the Rocky Boy's Reservation does not have to obtain a state liquor license. M-36815 To: COMMISSIONER OF INDIAN AFFAIRS. February 3, 1971 SUBJECT: SALE OF LIQUOR-ROCKY BOY'S RESERVATION, MONTANA. We have received your request for our opinion on the Montana Liquor Control Board's authority over the sale of intoxicating beverages by the Chippewa Cree Tribe on the Rocky Boy's Reservation in Montana. Before 1953, Congress, through the passage of the Federal Indian liquor laws, prohibited the introduction, possession or sale of intoxicating liquor in "Indian country." 18 U.S.C. secs. 1154, 1156, 3113, 3488, 3618 (1964). In 1953, Congress made the Federal Indian liquor laws inapplicable to: *** any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register. (Italics added). Act of August 15, 1953, 67 Stat. 586, 18 U.S.C. § 1161 (1964). The Chippewa Cree Tribe passed Ordinance I-70 which was certified by the Commissioner of Indian Affairs on June 16, 1970, and published in the Federal Register on June 25, 1970, authorizing the introduction, sale or possession of intoxicating beverages on the Rocky Boy's Reservation (35 F.R. 10384 (1970)). The tribe then requested liquor license from the Montana Liquor Control Board. The Attorney General of Montana, in answer to inquiries from the administrator of the Montana Liquor Control Board held that 18 U.S.C. sec. 1161 requires the tribe to comply with all the liquor laws of Montana, including the licensing law and quota system prescribed in secs. 4-403 and 420, R.C.M. 1947. Vol. 33, Opinion No. 23, Attorney General of Montana, June 29, 1970. Since there are no licenses available under the aforementioned quota system, the tribe cannot receive a license from the Montana Liquor Control Board. The first issue presented is the interpretation of 18 U.S.C. sec. 1161, which makes Federal Indian liquor laws inapplicable to acts or transactions “*** in conformity *** with the laws of the States in which such act or transaction occurs ***" We do not believe Congress, in enacting this law, intended to make state liquor laws applicable to the tribe or tribal members on a reservation when a tribe wished to terminate Federal prohibition. If Congress had intended to impose state law here with state enforcement jurisdiction, we think Congress would have expressly granted jurisdiction to the states under 18 U.S.C. sec. 1161, which it did not do. Rather, we believe the intent was merely to require the state liquor laws to be used as the standard of measurement to define lawful and unlawful activity on the reservation.1 If, for example, a tribe has terminated Federal prohibition, and a tribal member commits an act or engages in a transaction in intoxicating beverages which is not in conformance with state law, the member would be subject to prosecution in the Federal courts for violation of the applicable Federal Indian liquor law. See 18 U.S.C. sec. 1154 (1964). However, the tribal member is not subject to prosecution in state court since Montana has not assumed the requisite jurisdiction 1 Warren Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685 (1965), contains dictum from Mr. Justice Black who, in discussing the applicability of state laws on Indian reservations, states in footnote 3 on page 687: "Compare, e.g., 18 U.S.C. § 1161 (1958 ed.) (permitting application of state liquor law standards within an Indian reservation under certain conditions); 45 Stat. 1185, as amended, 25 U.S.C. § 231 (1958 ed.) (permitting application of state health and education laws within a reservation under certain conditions; ** *." (Italics added.) |