subject to the provisions of this Act, (a) all the right, title, and interest of the Indians in and to the tribal and allotted lands within the Spokane and Colville Reservations, including sites of agency and school buildings and related structures and unsold lands in Klaxta town site, as may be designated therefor by the Secretary of the Interior from time to time: Provided, That no lands shall be taken for reservoir purposes above the elevation of one thousand three hundred and ten feet above sea level as shown by General Land Office surveys, except in Klaxta town site; and (b) such other interests in or to any of such lands and property within these reservations as may be required and as may be designated by the Secretary of the Interior from time to time for the construction of pipe lines, highways,

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railroads, telegraph, telephone, and electrictransmission lines in connection with the project, or for the relocation or reconstruction of such facilities made necessary by the construction of the project."

References in the Text. The Act of August 30, 1935 (49 Stat. 1028), authorized construction of the Grand Coulee and Parker Dams. The Act of August 4, 1939 (53 Stat. 1187), is the Reclamation Project Act of 1939. The Columbia Basin Project Act (Public Numbered 8, Seventy-eighth Congress, first session, 57 Stat. 14), was enacted March 10, 1943. Among other things, it renamed the former Grand Coulee Dam Project. Each of these Acts, referred to in the text, appears herein in chronological order.

1. Indian rights in Columbia River reservoir

The act imposes a mandatory duty upon the Secretary to set aside approximately one quarter of the entire reservoir area for the paramount use of the Indians of the Spokane and Colville Reservations. Solicitor Gardner Opinion, 59 I.D. 147 (1945).

Although the act in terms permits the Secretary to set aside one or more areas for Indian use, it also makes separate provision for two different tribes of Indians. The Secretary is therefore required to allocate at least one area to each of the two tribes. While he may also set aside more than two areas, his power is limited by a rule of reason which would prevent him from setting aside so many areas that he would bring about the very evil which the statute was designed to prevent. The object of the statute was, so to speak, to secure a consolidation of the areas of Indian interest. Ibid.

The interest of the Colville and Spokane Indians in one-quarter of the reservoir area is not joint but several. In view of the failure of the statute to prescribe a formula for dividing between the two tribes the 25 percent of the reservoir area to be set aside for both of them, the Secretary may make the apportionment in such a manner as will be equitable under all the circumstances. However, the ratio that was employed in determining the percentage of the entire reservoir area that was to be set aside for both tribes could reasonably be applied in determining the share of each tribe. This ratio was obtained by comparing the length of the original river shore line of Indian lands acquired or to be acquired for the reservoir with the total original shore line of the river in the reservoir area. The result would also be in

harmony with the relative populations of the Colville and Spokane Indian Reservations. Ibid.

While the Secretary has discretion in the location of the Indian areas, his discretion in this respect is limited by the requirement that the areas set aside for the Indians be readily accessible to them. The Indian areas must therefore be located in reasonable proximity to the Indian lands, namely, adjacent to such lands. The application of this rule would require the location of the Indian areas along the former shoreline of Indian lands. However, in view of the scope of the Secretary's discretion he is under no duty to locate the Indian areas within the exterior boundaries of the reservations as they existed prior to the construction of the reservoir. Ibid.

The Secretary is not confined to setting aside one-quarter of the water surface of the reservoir for the use of the Indians. He may include free-board areas in the areas set aside for the Indians because (a) the Indians are given hunting rights which can also be enjoyed on the shorelands; (b) the "entire" reservoir area is made the basis for calculating the Indians' share; (c) the rights of access to the Indian reservoir areas are granted only "when necessary". Ibid.

The special rights given to the Indians under the act are expressly limited to hunting, fishing and boating. These rights are not enlarged by the "access" provision of the act since a right of access is not a separate and independent right but a means of enjoying property rights or special rights otherwise possessed. However, the rights of access are not limited to mere rights of ingress and egress but are commensurate with the purposes to which the portions of

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the reservoir to be set aside for the Indians are to be put. Ibid.

No special rights inure to the Indians from any other source. By virtue of the act of July 1, 1892 (27 Stat. 62), the southern and eastern boundary of the Colville Reservation extends to the middle of the channel of the Columbia River. By the Executive order of January 18, 1881, the bed of the Spokane River to the south bank thereof was included in the Spokane Indian Reservation. Even if it be assumed that the titles to the beds of the Columbia and Spokane Rivers were not taken and extinguished under the act of June 29, 1940, it cannot be made a source of additional special rights for the Indians. The special rights accorded to the Indians by the act are plainly denominated lieu rights. They are therefore to be deemed an exclusive substitute for whatever rights the Indians may have enjoyed prior to the enactment of the statute by reason of their rights of ownership. Ibid.

However, the Indians are not confined to those parts of the reservoir set aside for their "paramount" use. In such areas of the reservoir they will enjoy special rights. But in the reservoir as a whole, insofar as they may have access to it, they may enjoy such privileges as are accorded to the general public in navigable waters, which include those of hunting and fishing, floating logs and navigation. The Indians may also take advantage of section 10 of the act of August 4, 1939 (43 U.S.C. sec. 387), which gives the Secretary power to grant leases, licenses, easements or rights-of-way over lands acquired and administered under the Federal reclamation laws. Ibid.

Since the act declares that the areas set aside for the Indians shall be for their "paramount" use for hunting, fishing and boating, such use is neither exclusive of the

same use by other persons, nor exclusive of any other use by other persons. However, the Secretary is under a duty to maintain the paramount character of the Indian use, and if he finds that this can be accomplished only by according the Indians exclusive rights in the areas set aside for them, he is empowered to do so. He may make such rights exclusive in all parts of the Indian areas, or at particular locations, or at particular times, or give greater freedom to the Indians in making use of the reservoir than is permitted to others. Ibid.

Since the rights of the Indians will not necessarily be exclusive, there is no present need to decide whether the Indians may license others to enjoy their rights. Ibid.

Although the Bureau of Reclamation, the Bureau of Indian Affairs, the National Park Service, and the Fish and Wildlife Service are all interested in the Columbia River Reservoir area, its administration is vested in the Secretary of the Interior rather than in any particular bureau, and the Secretary by virtue of Section 161 of the Revised Statutes (now 5 U.S.C. sec. 22) may elect any one or more of the interested agencies to administer any part of the reservoir area. Ibid.

There is no good reason to doubt the constitutionality of the provision of the act which gives the Secretary of the Interior authority to prescribe reasonable regulations for the protection and conservation of fish and wildlife in the areas set aside for Indian use. The constitutionality of the act is supported by the property interest of the United States in the reservoir area; the power of Congress to control the navigable waters of the United States; and the powers of Congress over Indians and Indian affairs. Ibid.