No.

Mr. C. L. Terrell, Secretary State Board of Agriculture Fort Collins, Colorado 80523

Dear Mr. Terrell:

In response to your letter of May 21, 1975, it is my informal opinion that moneys paid into the "Hesperus" account may be expended by the State Board of Agriculture for such public purposes as it may determine, subject to the requirement that they be utilized before all else to pay the tuition of any qualified Indian pupils, not otherwise able to pay tuition, who wish to attend Fort Lewis College.

QUESTION PRESENTED AND CONCLUSION

May money in the "Hesperus" account be used for public purposes as determined by the State Board of Agriculture?

My conclusion is "yes", after payment of tuition for qualified Indians who wish to attend Ft. Lewis College.

ANALYSIS

In reviewing the applicable law on this subject, the following facts may be of interest to you. In 1910, the Fort Lewis lands were granted to the State of Colorado by the Congress of the United States to be used as follows:

The said lands and buildings shall be held and maintained by the State of Colorado as an institution of learning, and that Indian pupils shall at all times be admitted to such school free of charge for tuition and on terms of equality with white pupils:. . .

Citing 36 Stats. 273-4, Chapter 140, § 5 (Colo.) 1910. This language was amended in 1916 by an Act of Congress to change the possible purposes to which the Fort Lewis lands could be put. The wording of interest is as follows:

The lands, buildings, fixtures and all property rights granted to the State of Colorado for educational purposes by § 5 of the Act of Congress approved April 4, 1910 (36 Stats. at Large, p. 273), may, in lieu of the use designated in said grant, be utilized by such State for the care of the insane, as an agricultural experiment station, or for such other public purposes as may be authorized by the Legislature of the State: Provided, that Indians shall always be admitted to such institutions free of charge and upon an equality with white persons.

Cited from 39 Stats. 128, Chapter 125, § 1 (1916).

Pursuant to the above-cited granting of power by the Congress, the Legislature of the State of Colorado, in C.R.S. 1973, 23-52-101, et seq., established Fort Lewis College with the appropriate consideration for insuring that all eligible Indian students should be admitted free of charge.

The State Board of Agriculture, pursuant to C.R.S. 1973, 23-30-114, may utilize the funds in the "Hesperus" account as follows:

The income from the said property and from the Hesperus account shall be applied to such public purpose as may be determined by the State Board of Agriculture, subject to appropriation by the general assembly; except that it shall first be used by the State Board of Agriculture for tuition waivers at Fort Lewis College, . . . (emphasis added).

It seems very clear from the foregoing that the State Board of Agriculture can utilize the moneys in the "Hesperus" account for such public purpose as it may determine, absent contrary appropriation by the General Assembly, and no prior approval by the General Assembly would be required. It should be noted, however, that the State Board of Land Commissioners, pursuant to C.R.S. 1973, 23-30-115, is authorized solely to make determinations concerning the prudent development of any mineral resources situated on the Fort Lewis lands, so long as such development does not unreasonably interfere with the use of such lands as may be directed by the State Board of Agriculture. This is the position taken by the State Supreme Court in the case of Sunray Midcontinent Oil Co. v.State, 149 Colo. 159, 368 P.2d 563 (1962).

Naturally, I would hope that the State Board of Agriculture would encourage the State Board of Land Commissioners to utilize every means within their power to insure that the highest possible revenues are obtained from the coal located under the Fort Lewis lands, considering the fact that once this precious resource has been exhausted the money will no longer be available for the purposes set out by the Board of Agriculture.

If you would like to discuss any aspects of this opinion in greater detail, I would encourage you to contact Mr. David W. Robbins, First Assistant Attorney General, in my office at your convenience.

SUMMARY

After payment of tuition for qualified Indians who wish to attend Ft. Lewis College, money in the Hesperus Account may be used for public purposes as determined by the State Board of Agriculture.

Very truly yours,
                              J.D. MacFARLANE
Attorney General
                              SINCE ITS ISSUANCE THIS
OPINION LETTER WAS ADOPTED
AS A FORMAL OPINION OF THE
ATTORNEY GENERAL BY ATTORNEY
GENERAL J.D. MacFARLANE
INDIANS
EDUCATION, HIGHER

C.R.S. 1973, 23-52-101 C.R.S. 1973, 23-30-114 C.R.S. 1973, 23-30-115

HIGHER EDUCATION, DEPT. OF Fort Lewis College AGRICULTURE, STATE DEPT. Administrative Services

After payment of tuition for qualified Indians who wish to attend Ft. Lewis College, money in the "Hesperus" Account may be used for public purposes as determined by the State Board of Agriculture.