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79 YAKIMA INDIAN IRRIGABLE LANDS-RECLAMATION LAW

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on account of such water rights after the construction charge thereon has been paid in full. After unconditional title in fee has passed from the United States for any lands retained by such Indians, the water for irrigating such lands shall be furnished under the same conditions in all respects as for other lands under the project: Provided, That any Indian taking advantage of this act shall have a perpetual water right so long as the maintenance charges are paid whether he uses the water or not, and the Secretary of the Interior is hereby authorized to use the funds of the tribe to pay such maintenance charges, which in his discretion it is necessary to preserve said water right: Provided further, That he may, in his discretion, use said funds to pay for water rights and the maintenance charges on twenty acres of any Indian allotment if the sum obtained from the sale of the allottee's land in excess of twenty acres and his interest in the tribal funds be insufficient for those purposes. (34 Stat. 54.)

Sec. 6. [Patent in fee.]—That the Secretary of the Interior shall be authorized, upon compliance with the provisions of this act and of the reclamation act by any party having purchased such allotted or patented lands as herein provided, to issue patent passing unconditional title in fee by the United States as trustee for the allottee or patentee, and shall cancel any allotment as to the lands disposed of under this act. (34 Stat. 54.)

Sec. 7. [Cost of irrigation works to be paid from sales of water rightsAmendment. ]—That the irrigation works heretofore constructed for the Yakima Indian Reservation may be, at a cost to be determined by the Secretary of the Interior, included in any project developed under the provisions of the reclamation act and of this act, and become a part of said project for all purposes of the reclamation act, and the cost of same shall be included in the cost of such project and be paid into the Yakima Indian fund out of the proceeds arising from the sale of water rights, from time to time, as payments on account thereof are received. The provisions of this act shall be construed as superseding or amending any provisions of the said act of December twenty-first, nineteen hundred and four, so far as any conflict may appear. (34 Stat. 55.)

Sec. 8. [Authority to make regulations. ]—That the Secretary of the Interior is hereby authorized to perform any and all acts and to make such rules and regulations as may be necessary and proper for the purpose of carrying the provisions of this act into full force and effect. (34 Stat. 55.)

COLVILLE INDIAN IRRIGABLE LANDS SUBJECTED TO RECLA

MATION LAW

(Extract from An act to authorize the sale and disposition of surplus or unallotted lands

of the diminished Colville Indian Reservation, in the State of Washington, and for other purposes. (Act March 22, 1906, ch. 1126, 34 Stat. 80)

*

Sec. 12. [Irrigable lands to be disposed of under reclamation actPayments.] —That if any of the lands of said diminished Colville Indian Reservation can be included in any feasible irrigation project under the reclamation act of June 17, 1902, the Secretary of the Interior is authorized to withhold said lands from disposition under this act and to dispose of them under the said reclamation act, and the charges provided for by said reclamation act shall be in addition to the appraised value of said lands fixed as hereinbefore provided and shall be paid in annual installments as required under the said reclamation act, and the amounts to be paid for the land, according to appraisement, shall be credited to the fund herein established for the benefit of the Colville Indians. (34 Stat. 82.)

80

TOWN SITES AND POWER DEVELOPMENT

An act providing for the withdrawal from public entry of lands needed for town-site pur

poses in connection with irrigation projects under the reclamation act of June 17, 1902, and for other purposes. (Act April 16, 1906, ch. 1631, 34 Stat. 116)

[Sec. 1. Withdrawal of lands for reclamation town sites-Survey of town sites—Reservations for public purposes. ]-That the Secretary of the Interior may withdraw from public entry any lands needed for town-site purposes in connection with irrigation projects under the reclamation act of June 17, 1902, not exceeding 160 acres in each case, and survey and subdivide the same into town lots, with appropriate reservations for public purposes. (34 Stat. 116.)

Textual note.—This section, and a portion of section 4, act of June 27, 1906 (34 Stat. 519, 520). are codified as section 561, title 43, United States Code. In the code reference is made to "reclamation law," instead of "reclamation act of June 17, 1902."

NOTES

Cross references. See act of October 5, 1914 (38 Stat. 727). The act of May 17, 1926 (44 Stat. Pt. 2, p. 15), authorizes issuance of patent under the above act and the act of June 27, 1906 (34 Stat. 519), to the Boyle Commission Co. for block numbered 223, town site of Heyburn, Idaho, without further payment on account of purchase price fixed for said land.

See act approved March 2, 1929 (45 Stat. 1522), and its amendment of February 14, 1931, authorizing the disposition of unplatted portions of Government town sites.

Park in town site.-A park within a town site established under this act is not a country park, public playground, or community center contemplated by act of October 5, 1914 (38 Stat. 727), and water can not be delivered thereon free of charge. (Departmental decision, June 18, 1915.) Regulations.-For General Land Office regulations see 52 L. D. 117.

Sec. 2. [Appraisal of lots—Sale at auction Subsequent sale—Expenses and proceeds. ]—That the lots so surveyed shall be appraised under the direction of the Secretary of the Interior and sold under his direction at not less than their appraised value at public auction to the highest bidders, from time to time, for cash, and the lots offered for sale and not disposed of may afterwards be sold at not less than the appraised value under_such regulations as the Secretary of the Interior may prescribe. Reclamation funds may be used to defray the necessary expenses of appraisement and sale, and the proceeds of such sales shall be covered into the reclamation fund. (34 Stat. 116.)

Textual note.-Section 2 is codified as section 562, title 43, United States Code, the only change being the omission of the word "That" at the beginning of the section.

NOTES

Cross references.-See act of June 27, 1906 (34 Stat. 519). See Newell town site act of September 8, 1916 (39 Stat. 852). Application of receipts.—The gross receipts from the sale of town-site lots should be considered as revenues, and not as a repayment in part and revenues in part. (Comp. Dec., December 6, 1906.)

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TOWN SITES AND POWER DEVELOPMENT

It is not permissible to deduct the receipts from the sale of town lots from construction or operation and maintenance cost. Neither is it permissible to class such receipts as repayments under the comptroller's decision of December 6, 1906. They are accretions to the reclamation fund directly resulting from the operations of the Reclamation Service. (Bureau of Reclamation.) (C. L. 639, March 22, 1917.)

It is not the intent of Congress by this act to take away the right of the State of Idaho to the 5 per cent of the net proceeds of sales of public lands lying within said State for the support of the common schools of the State. If, however, the whole proceeds of said sales have been covered into the reclamation fund and the 5 per cent paid to the State out of the permanent indefinite appropriation_therefor, the reclamation fund should be charged therewith. (20 Comp. Dec. 365.)

Sec. 3. [Public reservations to be maintained by town authoritiesConveyances of same to municipal corporations. ]—That the public reservations in such town sites shall be improved and maintained by the town authorities at the expense of the town; and upon the organization thereof as municipal corporations the said reservations shall be conveyed to such corporations by the Secretary of the Interior, subject to the condition that they shall be used forever for public purposes. (34 Stat. 116.)

Textual note.-Section 3 is codified as section 566, title 43, United States Code, the only change being the omission of the word "That" at the beginning of the section.

NOTES

Public purposes. -Reservations for fire house, town hall, and armory approved. (Departmental decision, July 15, 1916, Shoshone.)

Sec. 4. [Water rights for towns—Contracts therefor. ]—That the Secretary of the Interior shall, in accordance with the provisions of the reclamation act, provide for water rights in amount he may deem necessary for the towns established as herein provided, and may enter into contract with the proper authorities of such towns, and other towns or cities on or in the immediate vicinity of irrigation projects, which shall have a water right from the same source as that of said project for the delivery of such water supply to some convenient point, and for the payment into the reclamation fund of charges for the same to be paid by such towns or cities, which charges shall not be less nor upon terms more favorable than those fixed by the Secretary of the Interior for the irrigation project from which the water is taken. (34 Stat. 116.)

Textual note.-Section 4 is codified as section 567, title 43, United States Code, with the following changes : "That" at the beginning of the section is omitted ; “reclamation act” reads "reclamation law"; "herein provided” reads "provided, in the preceding sections."

NOTES

No contract with individual lot owners.-Application for water rights under the reclamation act by individual lot owners for lands which have been subdivided into town lots will not be allowedl; but water may be supplied to towns from reclamation projects by delivery to some convenient point, to be handled and distributed to the inhabitants of the town by the municipal authorities in accordance with the provisions of this act. (Secretary's Instruction, March 21, 1911; 39 L. D. 591.)

Discretionary power of the Secretary. It is within the discretion of the Secretary of the Interior to contract with towns in the manner provided by this section, or contract direct with water users upon town lots or tracts within the corporate limits of town sites regardless of the size of such lots or tracts. TOWN SITES AND POWER DEVELOPMENT

83

(Opinion Chief Counsel, Reclamation Service (Bureau of Reclamation), February 22, 1916, Commission Minutes 147, Docket 658.)

See notes under section 5 of this act.

Sec. 5. [Development and lease of surplus power—Proceeds—Impairment of projects prohibited.]—That whenever a development of power is necessary for the irrigation of lands under any project undertaken under the said reclamation act, or an opportunity is afforded for the development of power under any such project, the Secretary of the Interior is authorized to lease for a period not exceeding 10 years, giving preference to municipal purposes, any surplus power or power privilege, and the moneys derived from such leases shall be covered into the reclamation fund and be placed to the credit of the project from which such power is derived: Provided, That no lease shall be made of such surplus power or power privilege as will impair the efficiency of the irrigation project. (34 Stat. 117.)

Textual note.-Section 5 as amended by act of February 24, 1911 (36 Stat. 930), is codified as section 522, title 43, United States Code.

Amendment.-See act of February 24, 1911 (36 Stat. 930), amending this section.

Cross references.--Act September 18, 1922 (42 Stat. 847), regarding sale of power on Salt River project.

Yuma and Boise items in appropriation act of June 5, 1924 (43 Stat. 416).
The following acts relate to application of power revenues :
Subsection I, section 4, act of December 5, 1924 (43 Stat. 703).

North Platte and Newlands items in appropriation act of March 3, 1925 (43 Stat. 1167).

Jinidoka item in act of May 10, 1926 (44 Stat. 480). Boise (Deadwood) and Shoshone items in appropriation act of March 4, 1929 (45 Stat. 1590 and 1592).

Yakima (Kennewick Highlands unit) item in act of May 14, 1930 (46 Stat. 308).

Application of receipts.—The receipts arising from the sale or leasing of water rights to towns or others, and from the leases of power to towns or others, should be classed as repayments. (Comp. Dec., December 6, 1906.)

Returns from the sale of power and power privileges are to be credited as a refund on account of the construction cost of the project. (Departmental Decision, December 28, 1916.)

See resolution of reclamation commission, December 28, 1914, as to application of power receipts.

See also "Receipts from Sale of Water Power,” hearing February 12, 1917, before Committee on Irrigation of Arid Lands, House of Representatives, Sixtyfourth Congress, second session.

Pacific Gas & Electric Co. contract.-By the terms of a contract between the United States and the Pacific Gas & Electric Co. in connection with the construetion, operation, and maintenance of the Salt River Project, the company surrendered and conveyed all of its rights within the physical limits of the project, and in lieu thereof the United States agreed to furnish the company in the city of Phoenix, Ariz., a specified amount of electrical energy generated at its works at the Roosevelt Reservoir at a stipulated sum of money and for a term not exceeding 10 years, and the United States further agreed that while serving power to the company under the terms of the contract, it would refrain from entering into a general retailing of power to customers in the city of Phoenix and from furnishing power to anyone in said city to be again sold or retailed. This contract neither violates the provisions of the antitrust law of July 2, 1890 (26 Stat. 209), nor the provision of the act of April 16, 1906 (34 Stat. 116), which, in authorizing the Secretary of the Interior to lease surplus power derived from reclamation projects, provides that preference be given to municipal usage. (30 Op. Atty. Gen. 197.)

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