The purpose for which the lands here involved are to be used is fixed by title VII, which says that such lands are to be used, among other things, "to erect and construct thereon and in connection therewith such buildings, dikes, dams, canals, and other works as may be necessary." This purpose, fixed by Congress, cannot be changed by the intention, present or future, of the purchasing authority. Whatever such intention may be it does not change the fact that the lands when purchased are charged with the purposes set forth in title VII, thus bringing them within the provisions of section 355, Revised Statutes.

Your Solicitor also takes the view that the Attorney General's approval of the title to land purchased for the purpose of erecting buildings thereon is a prerequisite only to the expenditure of moneys for the erection of buildings on the land after it is purchased and not to the payment of the purchase price thereof. He states in part:

66* * * the prior approval of a title by the Attorney General is not a prerequisite to the payment of the purchase price for a tract of land acquired in pursuance of Title VII of the Act of June 15, 1935. However, before money is expended for the erection of public buildings upon any tracts acquired under this title, the Attorney General's approval of the titles to these particular tracts must be obtained."

This view was adopted by Attorney General Bates in an opinion to the Postmaster General dated May 6, 1861 (10 Op. 34). Later, however, in an opinion to the Secretary of the Navy dated October 4, 1862 (10 Op. 353), Attorney General Bates adopted the opposite view and held that where lands were purchased for the purpose of constructing improvements thereon the purchase price could not be paid until the Attorney General had approved the title. This latter view has since been generally followed by my predecessors in office. 28 Op. 413; id. 463; 32 Op. 582.

I am also in accord with this latter view. (See 37 Op. 437, 444.) As stated by Attorney General Daugherty in 32 Op., supra, at page 584, "it is hard for me to conceive

what motive should prompt Congress to insist that the Attorney General must report in favor of the validity of the title before improvements may be erected, and at the same time throw away this safeguard in the acquisition of the land itself." Unquestionably, Acting Attorney General Fowler gave sound advice when he said (28 Op. supra, at page 417):

* *

"I think it advisable that the titles to these tracts of land be submitted to the Attorney-General for his opinion with reference to the validity thereof. This should be done as a wise precaution, regardless of whether said section 355 be applicable to the facts here presented or not.”

For many years it has been the practice of the several departments and agencies of the Government to secure the Attorney General's approval of the title to lands purchased for the Government before payment of the purchase price is made. 32 Op., supra, page 584. This practice has been recognized and followed by the Department of Agriculture. Attorney General Mitchell in his opinion to the Secretary of Agriculture dated March 1, 1933 (37 Op. 95) calls attention to the following statement of the Solicitor for that Department (pp. 97-98):

"Since the establishment of the United States Department of Agriculture in 1862, it has always been the custom for the head of the Department, before paying for lands obtained for the use of the United States under the provisions of the several Acts of Congress requiring him to acquire the same, to forward to the Attorney General for examination an abstract of the title thereto. Thereafter, upon receipt of an opinion from the Attorney General approving such titles, the Disbursing Clerk of the Department, by direction of the Secretary, has then made settlement for the lands acquired, *

*

Congress has from time to time enacted statutes authorizing the acquisition of lands for particular purposes without regard to the provisions of section 355. Such statutes, however, have suspended the operation of section 355 because of existing emergencies. In the absence of

emergencies, the Congress has shown extreme reluctance, in the matter of land acquisitions, to dispense with the opinion of the Attorney General upon the validity of the title.

There are sound reasons why the practice of acquiring lands without the Attorney General's approval of the title should not be extended. The law requires that all titles acquired by the United States be valid ones, and that a dubious title may not be accepted for reasons of expediency. (6 Op. 432; 8 Op. 405; 9 Op. 100.) What constitutes a valid title is a question of law, and therefore one for determination by the chief law officer of the Government. Furthermore, the rules governing the acquisition of lands should be uniform, and this uniformity can only be obtained by placing the responsibility for determining the validity of titles where such legal function belongs in the office of the Attorney General.

The Attorney General, as the chief law officer of the Government, is charged by law with the duty of defending titles if they are assailed. In view of this duty his opinion should be secured in the first instance. As stated by the Comptroller General in 15 Comp. Gen. 359, 361:

66* * * since the duty of defending the title to lands of the United States, should the validity thereof be questioned in the courts ordinarily would devolve upon the Department of Justice, it would seem that, regardless of what may be the strict technical requirements of section 355, Revised Statutes, the public interests would best be served by obtaining an opinion from the Attorney General as to the validity of title in the case of all land purchased by the Government, in the absence of a statute providing otherwise."

There are other and very practical reasons why all titles should be passed upon by the Attorney General. Numerous agencies now acquire lands, and aside from considerations of uniformity and sound legal practice, the obvious demands of economy and efficiency require that all title work of the Government be cleared through a central

agency. Such work must be done largely through local attorneys familiar with local peculiarities of the law of real property, and the field force of the Department of Justice has been and can continue efficiently to be utilized for land acquisition by all agencies and departments. Το establish now a separate field force for each of the numerous agencies and departments would be to ignore the practical considerations of economy and efficiency. Moreover, all court actions on behalf of the Government, including condemnation proceedings, must be brought and carried through the courts by the Attorney General. The work of passing upon titles is inextricably interwoven with condemnation proceedings, and it is impractical to separate the two. Condemnation proceedings are often used, and necessarily so, to quiet and to dispose of all manner of clouds upon title. If examinations of titles by acquiring agencies should be made and should disclose the necessity for such proceedings, it would be the duty of such agencies to request the Department of Justice to institute and prosecute them. However, the Department of Justice, also, before bringing them would have to look into the state of the titles, since without this precaution the Department and the courts might well be flooded with unnecessary requests for condemnations. This inevitably would lead to confusion and duplication of effort. It should not be assumed, in the absence of clear and unequivocal language, that the Congress intended to abandon the practice of a century and thus to complicate and confuse the function of title acquisition.

For the reasons above given I am of the opinion that the purchase price of the lands referred to in your letter should not be paid until the Attorney General has approved the title thereto. Your question is therefore answered in the affirmative.

Respectfully,

HOMER CUMMINGS.

MEMBERSHIP IN INDIAN COOPERATIVE ASSOCIATIONS

Membership by Government employees in cooperative associations trading in articles bought for, supplied to, or received from Indians is prohibited by U. S. C., title 25, secs. 68, 87, and cannot be authorized by departmental regulation.

The SECRETARY OF THE INTERIOR.

JULY 12, 1937.

MY DEAR MR. SECRETARY: Reference is made to your letter of June 17, 1937, in which you request my opinion upon the validity of "a proposed departmental order which would amend the Indian service regulations of June 29, 1927, governing licensed Indian traders, and which interprets sections 68a and 87 of title 25 of the United States Code prohibiting Government employees from having any interest in contracts or trade with the Indians." The proposed order reads as follows:

"The joining by Government employees of cooperative associations formed by Indians for the purpose of consumers' cooperation, through purchase of stock or patronage or both, and the purchase of commodities and supplies for their own use from, and the rendering of services for, such associations by Government employees, do not constitute trading with the Indians nor having an interest in a contract with the Indians within the meaning of sections 68 and 87 of title 25 of the United States Code, where such associations retail commodities and supplies only to members of the association."

The pertinent parts of sections 68 and 87 of title 25, U. S. C., referred to in the proposed order, read as follows:

"S 68. Employees not to trade with Indians.-No person employed in Indian affairs shall have any interest or concern in any trade with the Indians, except for, and on account of, the United States; and any person offending herein, shall be liable to a penalty of $5,000, and shall be removed from his office."

"887. Interest of agents and employees in Indian contracts. No agent or employee of the United States Government or of any of the departments thereof, while in the service of the Government, shall have any interest, directly