Opinion No. (1988) ( 1988 )

RE: INDIAN HARDROCK AND MINING MUSEUM COMMISSION LAND

ATTORNEY GENERAL HENRY HAS RECEIVED YOUR LETTER OF FEBRUARY 22, 1988, REQUESTING AN OFFICIAL OPINION CONCERNING THE METHOD BY WHICH THE STATE COULD RECLAIM LAND DEDICATED BY THE INDIAN AND HARDROCK MINING MUSEUM COMMISSION FOR USE BY OKLAHOMA INDIAN TRIBES IN 1975. THIS OFFICE HAS PRELIMINARILY REVIEWED THIS QUESTION, AND THE ATTORNEY GENERAL HAS AUTHORIZED ME TO INFORMALLY COMMUNICATE WITH YOU REGARDING OUR CONCLUSIONS.

THE INDIAN AND HARDROCK MINING MUSEUM COMMISSION WAS ESTABLISHED IN 1971 BY THE TERMS OF HOUSE BILL NO. 1365 OF THE 1971 LEGISLATURE. THE PURPOSE OF THE COMMISSION WAS STATED TO BE TO "PRESERVE AND PROMOTE THE HISTORICAL LIFE AND SPIRIT OF THE AMERICAN INDIAN IN OKLAHOMA, TO HIGHLIGHT THE MINING OF VARIOUS HARDROCK MINERALS AND TO EMPHASIZE THEIR ECONOMIC AND CULTURAL IMPORTANCE TO OKLAHOMA." 53 O.S. 341 (1981).

TO EFFECTUATE THAT PURPOSE, THE COMMISSION WAS SPECIFICALLY INVESTED WITH THE AUTHORITY TO ACQUIRE AND HOLD REAL ESTATE AND OTHER PROPERTY IN THE NAME OF THE COMMISSION AND TO CONSTRUCT, PRESERVE, AND MAINTAIN A MUSEUM. 53 O.S. 347(3) (1981). THE COMMISSION WAS ALSO AUTHORIZED TO ENTER INTO CONTRACTS AND EXECUTE ALL INSTRUMENTS NECESSARY FOR GOODS AND SERVICES PURSUANT TO THE PURPOSES OF THE ACT ESTABLISHING IT. 53 O.S. 347(4) (1981). IN 1975, THE COMMISSION RESOLVED TO DEDICATE CERTAIN PROPERTY OWNED BY IT TO THE USE OF OKLAHOMA INDIAN TRIBES, UNDERSTANDING AT THAT TIME THAT A PRIVATE ENTITY REPRESENTING SEVERAL TRIBES WAS QUALIFIED TO RECEIVE FEDERAL MONIES FOR THE PURPOSE OF BUILDING A MUSEUM AS CONTEMPLATED IN THE STATUTES. THE 1976 LEGISLATURE RATIFIED THAT DEDICATION IN SENATE JOINT RESOLUTION NO. 61, WITH THE TITLE TO THIS PROPERTY DECREED TO REMAIN WITH THE STATE. OKLA. SESS. LAWS 1976, SJR NO. 61, P. 607.

AS YOU POINT OUT IN YOUR LETTER, THE COMMISSION WAS LATER ABOLISHED BY THE LEGISLATURE IN 1986, WITH ALL PROPERTY, OBLIGATIONS AND RECORDS THEREOF TRANSFERRED TO THE OFFICE OF PUBLIC AFFAIRS. OKLA. SESS. LAWS 1986, CH. 18, P. 23. YOU NOW INDICATE THAT SOME OF THE REALTY THUSLY DEDICATED IS NOT NEEDED BY THE INDIAN TRIBES, AND HAVE INQUIRED AS TO THE PROPER MECHANISM TO RECLAIM THAT PROPERTY.

THIS OFFICE CANNOT RESPOND TO YOUR REQUEST BY ISSUING A FORMAL, BINDING OPINION. UNDER THE LIMITS PLACED ON THIS OFFICE BY THE LEGISLATURE, THE ATTORNEY GENERAL MAY ONLY ISSUE FORMAL OPINIONS WHERE THE SUBJECT MATTER MAY BE RESOLVED PURELY BY THE APPLICATION OF LAW, RATHER THAN BY AN EXAMINATION OF THE SPECIFIC FACTS THAT MIGHT BE PRESENT IN ANY GIVEN CASE. SUCH A POLICY IS A RECOGNITION THAT THE COURTS ARE THE PROPER FORUM FOR THE RESOLUTION OF DISPUTES AND THAT THE ATTORNEY GENERAL IS NOT A PROPER PARTY TO ATTEMPT TO RESOLVE ISSUES WITHIN THE PREROGATIVES OF THE COURTS. IN THIS INSTANCE, THE FACT THAT THE STATE HAS RETAINED LEGAL TITLE TO THIS PROPERTY IS NOT DISPOSITIVE OF YOUR QUESTIONS, AS THE STATE CLEARLY HAS INVESTED THE TRIBES IN OKLAHOMA WITH SOME PROPERTY RIGHTS TO USE OF THE PROPERTY, RIGHTS WHICH COULD BE FOUND BY THE COURTS TO BE VESTED RIGHTS WHICH CANNOT BE LEGALLY INFRINGED UPON NOW WITHOUT THE ACQUIESCENCE OF THE TRIBES.

IT IS THE FEELING OF THIS OFFICE THAT YOUR QUESTION CAN ONLY BE RESOLVED BY A FACTUAL REVIEW OF THE USE OF THE PROPERTY AT THIS TIME BY THESE ENTITIES, AND AN INQUIRY INTO WHETHER THE TRIBES WOULD OPPOSE SUCH A TRANSFER. INSOFAR AS THIS PROPERTY IS NOW LEGALLY DEEMED TO BE IN THE CONTROL OF THE OFFICE OF PUBLIC AFFAIRS, THAT OFFICE, OR THE GOVERNOR, WOULD HAVE TO FORMALLY REQUEST THAT THIS OFFICE INITIATE STEPS TO EFFECT A TRANSFER BACK TO THE STATE OF THE INTERESTS GRANTED IN 1976. ASSUMING THAT SUCH AUTHORITY WERE FORTHCOMING, THE FIRST STEPS WOULD INCLUDE A DOCUMENTARY REVIEW OF THE CHAIN OF TITLE TO THIS PROPERTY, AN INQUIRY INTO THE FEELINGS OF THE TRIBES, AND, QUITE LIKELY, LEGISLATIVE ACTION TO CANCEL FORMALLY THAT PORTION OF THE DEDICATION PREVIOUSLY GRANTED. ANY SUCH SHIFT OF RIGHTS TO USE THE PROPERTY WOULD ALSO BE BEST EFFECTED BY A FORMAL JUDICIAL DECREE OF THE VALIDITY OF THE TRANSFER OF USE BACK TO THE STATE.

(MICHAEL SCOTT FERN)