INDIAN PROBATE-Con.

REOPENING-Con.

375.0 Generally-Con.

of the Bureau of Indian
Affairs to file a petition
for reopening and to ap-
peal from a denial thereof
under authority of 43
CFR 4.242 (d)...--

2. In the absence of compelling
reasons and failure to
allege the existence of a
manifest injustice or how
it might be corrected if
reopening were permit-
ted, a petition to reopen
will be denied when it is
filed more than three
years after the final de-
termination of heirs was
made___..

375.1 Waiver of Time

Limitation

1. Petition to reopen filed more
than three years after the
final determination will
not be granted unless
there is compelling proof
that the delay was not
occasioned by the lack
of diligence on the part
of one who is petitioning.
2. A petition to reopen filed
more than three years after
the final determination of
heirs will not be granted
unless there is compelling
proof that the delay was
not occasioned by the
lack of diligence on the
part of the petitioning
party---

3. It is in the public interest

to require Indian Pro-
bate proceedings be con-
cluded within some rea-
sonable time in order
that property rights of
heirs and devisees in
Indian allotments be sta-
bilized....

INDIAN PROBATE-Con.

REOPENING-Con.

375.1 Waiver of Time Lim-

itation-Con.

4. To avoid perpetuating a
manifest injustice, a peti-
tion to reopen filed more
than three years after
the final determination of
the heirs will be granted
where compelling proof
is shown that the delay
was not occasioned by
the lack of diligence on
the part of the petitioning
party-

5. Petition to reopen filed more
than three years after the
final determination of
heirs will not be granted
unless there is compelling
proof that the delay was
not occasioned by the
lack of diligence on the
part of the petitioning
party.

6. It is in the public interest
to require Indian probate
proceedings to be con-
Icluded within some rea-
sonable time in order
that property rights of
heirs and devisees in
Indian allotments be
stabilized..

SECRETARY'S AUTHORITY

381.0 Generally

INDIAN PROBATE-Con.

WILLS-Con.

425.20 Proof of Will-Con.
accompanying it have.
been presented at the
hearing to all parties
present for consideration
and that it is uncon-
tested. Such findings may
then support a conclusion
that the documents meet
the requirements of 43
CFR 4.233(a), and that
it may be ordered ap-
proved...

INDIAN TRIBES

(See also Indian Probate.)

GENERALLY

1. "Delegation." The use of the

term

"delegation" in
Solicitor's Opinion, M-
36803 (Apr. 3, 1970),
77 I.D. 50 (1970) inter-
preting 25 U.S.C. § 48
allowing Indian tribes to
"*** be given ***"
direction over Federal
employees, does not add
substances to the argu-
ment that the statute is
an unconstitutional dele-
gation of authority pro-
hibited by Schechter Poul-
try v. United States, 295
U.S. 495 (1935) - .

2. The provisions of the Act
of July 18, 1966, 28
U.S.C. §§ 2415 and 2416,
limit the time in which
the United States may
file suits on behalf of
Indians and Indian tribes
which seek any of the
remedies specified in the
Act. The Act does not
apply to suits brought by
tribes or individuals with-
out the assistance of the
federal government, but
such suits, unless they
are to quiet title to trust

INDIAN TRIBES Con.

GENERALLY-Con.

or restricted land, are
subject to the statute
of limitation applicable
generally.

3. The Navajo Tribe of Indians
has standing within the
Department of the Inte-
rior to contest or protest
against the issuance of
a confirmatory patent to
the State of Utah for
school sections within the
exterior boundary of the
reservation for the Tribe.

INDIANS

GENERALLY

in

1. There is a well-established
rule of statutory con-
struction to favor Indians
in case of doubt as to the
meaning of words
treaties or legislation in
their behalf; however, the
rule is not inflexible in
its application and must
give way where such
action is warranted by
other rules of construc-

tion and the circum-
stances of the case...

2. Historical differences between
the situation in Alaska
and the other states
afford reasons for differ-
ent interpretations of
legislation pertaining to
Alaska natives and legis-
lation pertaining to In-
dians in the other states.
Therefore section & of the
Act of May 17, 1884,
regarding the occupancy
of Alaska natives and
others upon public land,
is not in pari materia
with the disclaimer pro-
vision in section 3 of the
Utah Enabling Act of
1894, as to lands "owned
or held by any Indian or
Indian Tribes".

INDIANS-Con.

CIVIL JURISDICTION

1. The provisions of the Act of
July 18, 1966, 28 U.S.C.
§§ 2415 and 2416, limit
the time in which the
United States may file
suits on behalf of Indians
and Indian tribes which
seek any of the remedies
specified in the Act. The
Act does not apply to
suits brought by tribes or
individuals without the
assistance of the federal
government, but such
suits, unless they are to
quiet title to trust or
restricted land, are sub-
ject to the statute of
limitation applicable gen-
erally

COMPETENCY

1. A Crow Indian's application

for a patent in fee to
lands for which a trust
patent has been issued
will be determined on the
basis of general statutory
provisions in that respect,
and a decision to with-
hold fee patent will be
overturned on appeal
where there is an abuse
of administrative discre-
tion and where the record
supports the conclusion
that the applicant is cap-
able of properly managing
his or her own affairs____
HUNTING AND FISHING

1. The Muckleshoot Indian
Tribe is an existing fed-
erally recognized tribal
entity that is a political
successor in interest of
some of the Indian tribes
or bands which were par-
ties to the Treaties of
Medicine Creek, 10 Stat.
1132, and Point Elliott,
12 Stat. 927, and there-

1. The holder of a coal prospect-
ing permit is entitled to a
lease pursuant to section
2 of the Mineral Leasing
Act of 1920, as amended,
30 U.S.C. §201(b) (1970),
if he shows to the satis-
faction of the Secretary
of the Interior that the
land contains coal in com-
mercial quantities discov-
ered prior to the expira-
tion of his permit_----

MINERAL LEASING ACT FOR
ACQUIRED LANDS

GENERALLY

1. The regulatory requirement
that an acquired lands
oil and gas lease offer
must be accompanied by
a statement showing the
extent of the offeror's
ownership of the oper-
ating rights to the frac-
tional mineral interest
not owned by the United
States in each tract cov-
ered by the offer to lease
is satisfied by a state-
ment to the effect that
the offeror does not own
an oil and gas lease on
any part of the lands in
question____

MINING CLAIMS

GENERALLY

1. The authority of the Govern-
ment to proceed with the
determination of the va-
lidity of a mining claim
is not barred by laches,
because Government
property is not to be
disposed of contrary to

quiescence, laches, or fail-
ure to act on the part of

its officers or agents-----
COMMON VARIETIES OF MINERALS

Generally

1. Where mining claims are
located after enactment
of the Act of July 23, 1955,
for deposits of naturally
colored volcanic stone
having various colors, the
stone being mined,
crushed, sold, and used
for roofing rock, the de-
posits are common va-
rieties of stone and are
not subject to location
under the mining laws
after July 23, 1955, where
it is shown that similar
volcanic stone is of wide-
spread occurrence and
that the claimants ob-
tain the same price in the
market for the stone as
their competitors who
produce and sell similar
naturally colored volcanic
stone. It is not enough
to remove the stone in
issue from the common
varieties category merely
to show that it sells for
a somewhat higher price
than other commonly oc-
curring rocks used for
the same purpose that
are less attractively col-
ored, such as crushed
granite, limestone and
pea gravel____

2. Where placer mining claims
are located after July 23,
1955, for deposits of
building stone, the stone
may be an
variety subject to location
where it commands a
higher price in the market-

uncommon

MINING CLAIMS-Con.

COMMON VARIETIES OF MIN-

ERALS-Con.

Generally-Continued

place because of its uni-
que patterns and colora-
tion characteristics_____

3. The Act of July 23, 1955, as
amended, 30 U.S.C. §611
(1970), had the effect of
excluding from the cover-
age of the mining laws
"common varieties" of
building stone, but left
the Act of August 4, 1892,
30 U.S.C. § 161 (1970),
authorizing the location
of building stone placer
mining claims, effective
as to building stone that
has "some property
giving it distinct and spe-
cial value"

4. To determine whether a de-
posit of building stone is
of a common or uncom-
mon variety, there must
be a comparison of the
deposit with other de-
posits of similar type
materials in order to as-
certain whether the
deposit has a property
giving it a distinct and
special value. If the de-
posit is to be used for the
same purposes as minerals
of common

occurrence,
then there must be a
showing that some prop-
erty of the deposit gives
it a special value for such
use and generally this
value is reflected by the
fact that the material
commands a higher price
in the market place-----
5. To satisfy the requirements
for discovery on a placer
mining claim located for
common varieties of sand
and gravel before July 23,

MINING CLAIMS-Con.

COMMON VARIETIES OF MIN-
ERALS-Con.

Generally-Continued

1955, it must be shown
that the materials within
the limits of the claim,
by reason of accessibility,
bona fides in develop-
ment, proximity to
market, existence of
present demand, and
other factors, could have
been extracted, removed,
and marketed at a profit
as of that date. Where a
claimant fails to make
such a showing, the claim
is properly declared null
and void..

6. To determine whether a de-
posit of sand and gravel
is of a common or uncom-
mon variety, there must
be a comparison of the
deposit with other de-
posits of similar type
materials to ascertain
whether the deposit has
a property giving it dis-
tinct and special value.
If the deposit is to be used
for the same purposes as
minerals of common oc-
currence, then there must
be a showing that some
property of the deposit
gives it a special value
for such use, and that
such value is reflected
generally by the fact that
the material commands
a higher price in the
marketplace...