p. 15 (cont'd)

UNITED STATES
DEPARTMENT OF THE INTERIOR
WASHINGTON

9 was prepared before any of the related chapters had been begun, it was not easy to determine exact boundaries, and the writer of the draft was advised to include materials, in case of doubt, on the theory that the reviser could strike irrelevant or unsound discussions more easily than he could supply omissions. Considering that the final size of the chapter was to be considerably less than the size of the first draft, there is much to be said in justification of the procedure adopted.

"It should also be recognized, in passing judgment upon Chapter 9, that this draft was prepared at a time when the files were incomplete, when there was no other model draft to be followed with respect to scope and manner of treatment, and when the outlines of the rest of the work were not yet clear -- circumstances which no longer existed after September 1."

p. 2

It seems to me that the criticism from x on
assumes that the sentence attempts to define
Indian water rights. Taken out of context,
the sentence seems to do just that. But that
is not the intent. The chapter deals with
the individual right to participate in tribal
property. The sentence tries to show that
where a tribe has water rights, the individual
members of the tribe enjoy those rights. This
is true of the right to use navigable waters
and is also true of the right to use water for
irrigation. This was clumsily expressed,
perhaps, and in a later draft of this chapter,
the following sentence was added: "In all
these cases, the individual enjoys a right of
user derived from the legal or equitable right
of the tribe in which he is a member." The
question of whether a tribe has any water rights
and what the limits of those rights are belongs
in Chapter 15, and the question of what rights
pass to the allottee on allotment belongs in
Chapter 11.

p. 16

It seems to me that a distinction should be made between Chapter 9 and section 1 of Chapter 12. They were written by two different employees. One has already been discharged; the other may be discharged on the basis of our present judgment of his work. I think that any carry-over of condemnation from errors in one draft to criticisms of the other should be scrupulously avoided.

Also I think that the three general charges made against the whole work should be separately weighed. To say that these chapters "require intensive further research" is one thing. I am sure that this is the case with Chapter 9, it may be true also of the submitted portion of Chapter 12, but with respect to this it should be mentioned that the further research required is of a rather limited scope.

I do not agree that either draft requires presentation de novo, as charged, which, if I understand the Latin language, means that an editor should throw the draft away and begin again.

Likewise, I do not agree that either draft is "fundamentally unsound". Certainly the fragment of Chapter 12 cannot be called "fundamentally unsound" on the basis of the errors pointed out - nearly all of which are either errors of omission or else minor errors of language and form. Whether the characterization "fundamentally unsound" applies

properly to Chapter 9 depends upon what is
considered fundamental in the Chapter.
Apparently we disagree on that. I think the
Chapter is extremely unsound when it deals with
the 5 Tribes, Osages, and the nature of tribal
property, but I think these are not fundamental
to the chapter and don't belong in the chapter
at all, and I think that the material that does
belong in this chapter is fairly reliable, so
far as I have already checked it.

p. 16

The use of the word "embarassing" apparently assumes, and certainly suggests, that the work was to appear in such form that the Department would assume responsibility for the statements contained in the volume. In fact, the Eminent Domain Handbook contains, and the Indian Law Handbook was to contain, a statement that the views contained were those of the editor alone. I think, therefore, that the worst that could properly be said of the hypothetical case suggested is that the resulting volume would be useless.

Apart from this rather minor objection, I think it unfortunate to have the last sentence deal with a hypothetical case. The last sentence of this report will be looked to as stating a final conclusion. It will suggest that perhaps the editor of the handbook did not intend to revise these drafts carefully and conscientiously before putting his name on a published work.

As I analyze the criticisms made of this chapter, I find: Nine justified criticisms, of which two are directed at awkward language, three point to omissions of citations to material used, one points to a typographical error in the citation of a case, one points to an inadequacy of treatment of a subject which is also treated in another chapter, and two relate to inadequacies of treatment because of failure to consider recent statutes. In this respect, it should be noted that recent statutes had not yet been filed when this draft was prepared, and it was understood that the draft would be checked against recent statutes at a later date.

There are five other points on which we disagree as to whether or not a mistake was committed. These involve, if substantiated, one criticism ascribing to the text overgeneralization from a single case, one citation of a case not in point, one unnecessary citation of a Solicitor's Opinion, one defect in language, and one error of omission relating to a failure to *distinguish* between two kinds of funds.

*develop the distinction*

Even if *all* these criticisms are well taken, I think it should be said that the

[ATTACHED P. 13]

p. 13

I think this judgment "of little
use unless substantially revised"
applies an unjustified standard. There
was never any intention to publish this
"first draft" without revision, as seems
to be implied. The real question, as
I see it, is whether this is a reasonably
useful first draft or whether somebody
trying to describe the legal status of
Federal education for Indians would have
to throw this away and start de novo.

UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
WASHINGTON

February 10, 1940.

MEMORANDUM for the Solicitor:

Certain developments connected with the termination of the Indian Law Survey by the Department of Justice leave me with the necessity of making certain decisions upon which I should like to have your advice. I am therefore briefly recounting the situation which has given rise to these questions.

On October 31 last, the Indian Law Survey, instituted in the Lands Division of the Department of Justice with the cooperation of the Interior Department, was eight months old. I was suddenly called at about two o'clock in the afternoon before Assistant Attorney General Littell. Mr. Littell advised me that he was dissatisfied with the work of the project and had determined to put an end to it. He also advised me that the Solicitor of the Interior Department had concurred in this decision.* When I expressed a reluctance to believe that the Solicitor had joined in a condemnation of my work without notifying me of any criticism made against it and without affording me a hearing, Mr. Littell revised his statement and asserted merely that the Solicitor had expressed the view that the question of continuing or ending the project was one for Mr. Littell to decide, since the costs of the project were being met by the Department of Justice. In explaining his decision to end the project, Mr. Littell read to me from an unsigned document containing various charges. I had not seen the document before, but the substance of some of the charges had been conveyed to me a day or two earlier by the newly appointed Assistant Chief of the Trial Section, Mr. Churchwell. When I questioned the accuracy of the charges and mentioned that I thought I understood the viewpoint of the person responsible for them, Mr. Littell express considerable irritation, said that my word was not to be trusted and advised me that my attitude for some time had been unsatisfactory.

This was the first intimation I had ever had from Mr. Littell that either my work or my attitude was not entirely satisfactory. In fact, only a few weeks earlier, Mr. Littell had written to me as follows:

*This statement was repeated in a letter dated December 13, signed by Attorney General Murphy. The error of this statement was noted in the reply to this letter dated January 16 and signed by Acting Secretary Burlew, which declared that Mr. Littell was advised that Mr. Margold and Mr. Kirgis would have come to his decision in the matter if they entertained his views as to the hopelessly worthless character of the material submitted but that in view of their knowledge of Mr. Cohen's work over a long period "they found it difficult to believe that the committee selected by Mr. Littell to criticize the material submitted by Mr. Cohen was justified, and they requested an opportunity fully to examine into the matter on the merits."

"Re Chapter 9: Very interesting, and I can see, quite valuable. We are arranging for review, and for passing on any suggestions. It can doubtless be shortened somewhat. NML."

This was said of the very draft which was now attacked as fundamentally unsound and worthless.

I was given the rest of the afternoon to reply to the charges handed me, which covered about 23 pages of detailed criticism of 3 preliminary drafts of portions of the proposed Indian Law handbook, which drafts had been submitted for criticism, discussion and revision. During the three hours or so allotted me I prepared and submitted a hasty response. The time allotted was enough to show that most of the more important charges made were false. This hasty response was elaborated somewhat and resubmitted the next day. On that day, November 1, at 10:30 a.m., I was called to Mr. Littell's conference room and publicly relieved of my command in the presence of my staff, which was then assigned to various other units of the Lands Division.

I was naturally very much amazed and somewhat rattled by this procedure. That the successors of Assistant Attorney General McFarland and his Chief of the Trial Section, Mr. Collett, should not share the interest in this project or the confidence in my ability to see it through, held by their predecessors, was perfectly natural and understandable. What I could not understand was why Mr. Littell did not simply advise me of this situation. After all, I had undertaken the work at the urgent request of the Department of Justice and at considerable inconvenience to myself and to the Interior Department. If the Department of Justice no longer considered my services indispensable, there was no need to conduct an elaborate inquiry, of which I was not apprised, to hear charges, which I had no reasonable opportunity to answer, and to seek finally to humiliate me personally before my staff and later to attack my scholarship and my character before my superiors in the Interior Department and before various senators and other officials on occasions when I was not present to reply.

Although I felt that these attacks were unjustified in fact and inconsistent with the obligations of a public officer towards his subordinates, I refrained from answering them at the time because I feared that the raising of a personal issue might interfere with the proper utilization of the materials which the Indian Law Survey had already gathered or produced. As events turned out, although I was formally relieved of all responsibility for the work of the Indian Law Survey by Mr. Littell's memorandum of November 1, I was

2

REPORT OF WORK AS
CHIEF OF INDIAN LAW SURVEY:
1939 - 1940

1. The Inauguration of the Indian Law Survey.

During the autumn of 1938 Assistant Attorney General Carl McFarland and the then Chief of the Trial Section of the Lends Division, Mr. Charles E. Collett, asked me to organize and head a survey of Federal Indian law that would produce (1) a compilation of materials on Indian law, and (2) a handbook on the subject. The need for such a survey had become apparent to me in the course of five years' work for the Interior Department, most of it spent on Indian Affairs and much of it in the Indian country. I was unwilling, however, to terminate or interrupt work in the Interior Department and personal relationships there, with colleagues and superiors, which were to me a source of very deep satisfaction. I therefore urged that Mr. McFarland and Mr. Collett find some other person to head up this project, and made some efforts myself to find such a person. None of us was successful. The request for my services was renewed. My superior officer, Solicitor Nathan R. Margold, urged me to accede to this request, in order to accommodate the desire of the Department of Justice and at the same time to help fill the needs of the Interior Department that the proposed handbook would serve. I thereupon discussed the entire matter with Assistant Attorney General McFarland and advised him that I was willing to devote a year's service to this project in the Department of Justice if adequate personnel could be made

available to help me to finish the work in that time. I advised him,
however, that in my opinion this project would be resented by certain
Justice Department employees. I also expressed the fear that the job
itself might take five years or a lifetime to complete if individuals
working on the job were not sincerely anxious to complete the work at
a fixed date. Mr. McFarland agreed that these fears had some basis in
fact, but assured me that adequate personnel, acceptable to me, would
be furnished to assist me in the completion of the project within the
specified period. He also advised Solicitor Margold and me that I might
retain my position in the Interior Department and remain subject to call
for service, on occasion, as Acting Solicitor, and for other special
assignments. These understandings were reached on or about November 20,
1938. It was agreed that I should be detailed to the Department of
Justice and that Justice would reimburse Interior for my salary. My
salary was at that time $5,800 per annum. Mr. McFarland proposed that
it be raised to $6,500. I said that I thought such a raise was some-
what excessive, but on this point I was overruled and the Civil Service
Commission subsequently approved a reclassification of grade from P6 to
P7. It was agreed that in my work on the Indian Law Survey I would be
responsible to the Assistant Attorney General in charge of the Lands
Division and to the Solicitor of the Interior Department.*

* The description of duties, agreed upon by the two Departments and submitted to the Civil Service Commission, stated: "The duties of this position will be performed under the general supervision of the Solicitor of the Department of the Interior, and in collaboration with attorneys of the Department of Justice."

2

Mr. McFarland had indicated that it was not a matter of great
importance whether the actual work was carried on in the Interior De-
partment Building or in the Department of Justice Building. Actually
I began work on the project, working in the Interior Department Build-
ing, in the middle of January. I was assigned a room and secretary in
the Department of Justice Building on or about January 23, and Justice
began to reimburse Interior for my salary on February 1.

2. The Purpose of the Indian Law Survey.

The purpose of the Indian Law Survey was set forth in the follow-
ing terms in a memorandum from Charles B. Collett, Acting Assistant
Attorney General, dated May 12, 1939:

"The Department of Justice and the Department of the Interior have been compelled by the increasing volume of litigation relating to Indian affairs, to give increasing attention to the laws governing Indians in the United States. Although this law is exceptionally voluminous and complex, there is no existing textbook, treatise or case book covering this important field. Furthermore, there have been no serious attempts to correlate the mass of federal laws, judicial decisions (many unreported) and administrative rulings in this branch of law. Except for a handful of law review articles written during the past half century, the legal literature in this field lacks worthwhile studies. Consequently, a comprehensive survey of the entire field of existing federal law on Indian affairs, including statutory, judicial and administrative matters has been undertaken **."

In my memorandum of April 12 to Assistant Attorney General Littell, pre-
pared in response to his request for a brief "justification" of the project,
I had called attention to the fact that between one third and two thirds of the work

3

of the Trial Section, the Appellate Section, and the Legislative Sec-
tion of the Lands Division involved Indian cases, that the face value
of pending Indian claims was said to be in the neighborhood of two
billion dollars, and that much Indian litigation was the result of
lack of knowledge of pertinent legal rules on the part of administra-
tive officers and Indians, in the field, which might be substantially
lessened by the proposed handbook.

About the end of May, Assistant Attorney General Littell suggested the desirability of eliminating *procedure* and *jurisdiction* from the scope of the proposed handbook. I indicated that I would be glad to make this modification in our original plan but suggested that a decision on the point be postponed until a check had been made on the amount and character of the materials being collected on procedure and jurisdiction. Mr. Littell agreed to this suggestion and appointed a committee of three to consider the question, which reported unanimously that work on the procedural and jurisdictional aspects of the law should continue.

Later, I was advised by another "advisory committee" that the sub-
stantive portions of the handbook should be entirely subordinated to
considerations of procedure and jurisdiction.

I have since been advised that my failure to carry out these two
inconsistent and opposite directions, both of them varying from the
originally described scope of the handbook, is evidence of an improper
attitude on my part towards my superiors.

4

Assistant Attorney General. The Staff of the Survey.

Mr. It had been agreed that I was to have the assistance of nine law-yers or law clerks in my project, that all these employees were to be subject to my approval and direction, and that these employees were to be chosen as rapidly as specific jobs for them developed. Actually the jobs were all marked out in March but the process of hiring the promised assistants was not completed until October 9. Of the 10 persons (apart from clerical employees) who worked for me — one of these a replacement of a vacancy — only four were originally selected by me (subject to the approval of my superiors): Messrs. Haas, Miller and Folsom and Miss Morris. A fifth, Mr. Gaiser, was picked by me out of two men presented by Mr. Littell. Messrs. Glasser and Stearns, Mrs. Pollitt and Miss Renner were employees of the Lands Division, assigned to me. In three of the four cases I was advised that the assignment was being made be-cause of difficulties in arranging for other employment for these in-dividuals. In each case I expressed my willingness to accommodate the Division in this manner. Three of these assigned employees did satis-factory work. The work of the fourth was disappointing, and I aug-gested to Mr. Provost that the individual be transferred to some other work in which he might have a greater interest, but this suggestion was not followed.

The remaining one of the 10 employees, Mr. Fabian, was assigned to me in June, without prior consultation with me, and I was advised by

5

unfortunate attitude taken by Mr. Fabian and its disruptive effect
on staff morale, Mr. Provost advised me that too rapid promotions had
gone to Mr. Fabian's head and that he needed to have "his ears pinned
back!" **

### 4. Organization of the Work

The work of the Indian Law Survey involved two tasks, (1) the compilation of materials; (2) the preparation of a handbook based on these materials.

The first task involved (a) examining all laws and treaties, reports of Federal cases, and opinions of the Attorney General, and a considerable number of briefs and memoranda of the Department of Justice, rulings of the Interior Department, Congressional documents, law review articles, and legal treatises, relating to Indians; (b) analysing each of approximately 8400 items thus collected, and indexing these items under all appropriate subject, statute, and tribal headings; (c) preparing typed copies of various unpublished materials and mimesographed copies of all statutes and treaties, based upon original documents in the Archives wherever the Statutes at Large were found to be inadequate.

The second portion of the work involved a critical summarizing and
systematizing of the materials collected.

### 5. Budget

At the request of Assistant Attorney General Littell I submitted
on March 30, 1939, a proposed budget for the entire Indian Law Survey,
totaling $73,092, and at the same time I suggested ways of cutting this

** Mr. Fabian was on January 29, 1940, given another promotion, to the post of Chief of the Research Unit of the Condemnation Section, from which Mr. Jacob Wasserman was removed on the same day.

7

budget down to $58,178. This budget was submitted by Mr. Littell to Attorney General Murphy and was approved, subject to the reductions which I had suggested. My memorandum of April 11, setting forth the revised figures, indicated that the budget estimates were based on the assumption, not yet fulfilled, that I would be assigned a staff adequate to complete the task within one year from the time it was assembled.

The actual expenditures of the Survey were consistently under these budget estimates since various legal and clerical positions provided for were unfilled for substantial periods of time. As of October 31, total expenditures for the Survey amounted to $27,441.49.

## 6. Time Schedule and Progress of Work

On May 4, the fifth of the nine lawyers or law clerks who were to assist me was employed. I thereupon presented to Mr. Collett, the Acting Assistant Attorney General, a time schedule calling for concentration on filing and indexing until July, the beginning of actual writing in that month, the submission of the first draft of the first chapter of the book "for discussion" on September 1, 1939, and the submission of the book for printing on May 1, 1940. Although this estimate was based upon "the assumption that the remaining vacancies on the staff can be expeditiously filled" and the remaining vacancies were not filled for some time (the last vacancy on October 9), the actual progress of the Survey was slightly ahead of the schedule submitted, with respect to the actual writing. Because of steno-

8

graphic vacancies and almost total lack of the assistance which I
had been advised I would receive from the regular mimeographing
force and the stenographic pool, it proved to be impossible to
maintain the original time schedule with respect to the stenciling,
mimeographing and filing of mimesographed materials. These mechani-
cal delays were compensated in part by the cooperation of the Interior
Department. In two or three days the mimesographing force of the
Interior Department ran off, as an accommodation to the Department of
Justice, about as much work as the mimesographing force under the
Administrative Section of the Lands Division had turned out in the
four months from about February 20 to June 24. Efforts of the
Interior Department to assist in proofreading and in other ways
were largely frustrated by a ruling of the Chief Clerk of the
Department of Justice that employees of the Interior Department,
including my secretary, Miss Simpson, could not enter the Department
of Justice building after hours, even though accompanied by me.
In making this ruling, the Chief Clerk of the Department of Justice
stated that he could not permit a "bunch of high school kids" to
enter the building at night. (Actually neither Miss Simpson nor
anybody else helping me was a high school student, while on the
other hand hundreds of high school students are admitted to the
Department of Justice at night on FBI tours.) This ruling is
mentioned because it is typical of various artificial obstacles,
noted in my weekly memorandum progress reports to the Assistant

9

Attorney General, preventing the speedy completion of the mechanical aspects of the Survey work.

The first substantive chapters to reach the "first draft" stage were Chapter 9 (Individual Rights in Tribal Property) and Chapter 25 (Pueblos). Work on these drafts was begun about the end of July, and the drafts, together with a draft of a fragment of Chapter 12 (Federal Services), were submitted for discussion and criticism on September 1. Our time schedule allowed, generally, about one month for the preparation of the "first draft" of an average chapter and about two months for the revision of the draft. As of November 1, when the writing of the handbook was ordered terminated, eight of the contemplated 34 chapters had reached the "first draft" stage and another three or four were close to that state.

## 7. Responsibility for the Survey

My official responsibility in the conduct of the project was stated to be to the Assistant Attorney General in charge of the Lands Division and to the Solicitor of the Interior Department. Immediate supervision was in the hands of the Chief of the Trial Section of the Lands Division. So long as Mr. Collett held this post, he gave me helpful advice, based upon years of experience with Indian litigation, with respect to the mapping out of chapters of the handbook and other problems which the work presented. At no time prior to October 31 did either Mr. Collett or Mr. Littell intimate that the work of the Survey was in any respect unsatisfactory.

On or about August 2, Assistant Attorney General Littell suggested

10

the creation of a "control committee" of five members. To this suggestion I raised the objection that a committee of this sort could not efficiently direct the project and that confusion of responsibility would result from any such arrangement. Mr. Littell conceded the justice of this objection, and agreed that the committee to be appointed would be merely advisory in character. He asked if I would have any objection to having Mr. Churchwell, an attorney of the Trial Section, head the committee, and I replied that I would have no objection. On August 3, he appointed an "advisory committee," of which an employee supposedly under my supervision, Mr. Fabian, was made chairman, and directed it to "confer with Mr. Cohen at any time deemed desirable with the object of reaching entire agreement as to the choice and arrangement of subject matter and the distribution of emphasis throughout this manual." Of the five members of this committee, two had, to my knowledge, expressed opposition to the preparation of the handbook or disbelief in my capacity to complete it as planned, and two had expressed some skepticism on the latter point. The so-called advisory committee did not meet until September 12, and at no time did it confer with me. Instead, three members of the committee prepared a memorandum of criticism which was transmitted to me on September 19, with the dissent of a fourth member of the committee (the fifth committee member being absent from the Department at the time). It appeared to me that while most of the specific suggestions made by the committee were entirely acceptable, the general criticisms submitted were basically inconsistent with the original program for the survey which I had undertaken to carry out and which had been approved by Assistant Attorney General Littell and presumably by

11

Attorney General Murphy as well. It also seemed to me that these
criticisms indicated an attitude of hostility towards the Interior
Department that was incompatible with the cooperative purpose of the
Survey, and an attitude of narrow unconcern with aspects of the Survey
that might be of value to other units of the Department of Justice,
such as the Title Section, the Legislation Section, the Civil Liberties
Unit and the Criminal Division. I stated my views on these points
in a memorandum to the advisory committee on September 25. I received
no reply to this memorandum, and the advisory committee held no further
meetings and made no attempt to answer my objections or to resolve our
differences. When I expressed my concern at the character of the
criticisms made, Mr. Collett, the Chief of the Trial Section and my
immediate supervisor, advised me not to pay too much attention to
them, since they were based on a failure to appreciate the object of
the Survey, which was primarily to provide a sound introduction to
the subject rather than to add to the knowledge of the Department's
experts on specific problems. Under the circumstances, I saw no
need to take up with Mr. Littell the differences of opinion that had
developed with reference to the objects of the Survey.

About the ninth of October, Mr. Collett was transferred from his
post as Chief of the Trial Section, and was succeeded by Mr. Mulroney.
Mr. Mulroney advised me, and other individuals, on various occasions,

12

that he was a novice at problems of Indian Law, that he was unfamiliar
with the work of the Indian Law Survey, and that he considered research
work of secondary importance. Mr. Littell had likewise indicated, on
various occasions, his lack of familiarity with the Indian law field.
He had indicated on or about April 15, that he would look over our files,
but did not do this until after November 1. I was thus placed in the
impossible position of being responsible to men who were not familiar
either with what I was doing or with the field in which I was working,
and at the same time of having on my hands an "advisory committee" of
four (originally five) members, including two or three members who
were opposed to the completion of the Survey under my supervision.

8. Evaluation of the Work of the Indian Law Survey

The first part of the work of the Indian Law Survey was the preparation of an extensive file system arranged under a triple index of topics, statutes, and tribes. The value of this work is evidenced by the fact that the files from the time when they were substantially completed in August, were in almost constant use by attorneys of the Lands Division, most of whom expressed their appreciation of the aid which these files gave them, that even on November 1, when Assistant Attorney General Littell ordered the writing of the handbook abandoned, he provided for the completion of the files, **and that Attorney General Murphy, on December 13, agreed to detail several employees to the In-

*** "The files on Indian Law which were inaugurated by the Survey will be completed under direction of the Chief of the Trial Section, who will also be charged with the responsibility of keeping them current and making them readily accessible for use by all attorneys in the Division." Memorandum from Mr. Littell, November 1, 1939.

13

terior Department for a period of four and a half months, and at a
cost exceeding $5000, for the purpose of indexing these files. This
work occupied about 90 percent of the time, energy, and budget of the
Indian Law Survey, until September 1.

The remaining 10 percent of the work of the Survey prior to
September 1 was devoted to preparation of "first drafts" **** of Chap-
ter 9 (Individual Rights in Tribal Property) and Chapter 25 (Pueblos)
and a fragment of Chapter 12 (Federal Services to Indians), and to the
commencement of work on Chapter 13 (Indian Liquor Laws) (first draft
completed on September 30), and Chapter 27 (Alaskan Natives) (first
draft completed on October 15).

During September and October, first drafts were completed of the
foregoing two chapters and also of Chapter 10 (Rights of Individual
Indians in Personal Property). On November 1, the following chapters
were approaching "first draft" stage: Chapter 3 (History of Indian
Treaties); Chapter 8 (Personal Rights and Liberties of Indians); Chap-
ter 15 (Tribal Property); Chapter 17 (Indian Trade). In addition to
the foregoing substantive chapters, three chapters consisting of anno-
tated tables of statutes, cases, and Interior Department rulings had
been brought substantially to the "first draft" stage; (Chapters 29,

**** The term "first draft" was used to designate unreviewed drafts. The procedure of the Survey contemplated the submission of such drafts to attorneys in the Department of Justice or the Interior Department for criticism and the subsequent review of such drafts, and attached criticisms, by the Chief of the Survey. Attorneys preparing such drafts were instructed that the final draft would be much shorter than the first draft and that it was better to include than to omit doubtful materials, on the theory that a reviewer can delete doubtful or erroneous items more easily than he can supply omissions.

14

30, 31). Thus there were in "first draft" stage, or close to that stage, on November 1, 12 chapters and a fragment of a 13th.

When the project was abandoned work had begun on five additional chapters which never reached the "first draft" stage: Chapter 13 (Taxation); Chapter 16 (Lessees, Licensees and Trespassers); Chapter 32 (Attorney General Opinions); Chapter 33 (Bibliography); and Chapter 34 (Index). There were between 11 and 15 chapters on which work had not been begun, (Chapters 1, 2, 4, 5, 6, 7, 11, 14, 20(?), 21(?), 22(?), 23(?), 24, 26, 28, depending upon whether certain proposed consolidations were made.

On those chapters which have reached "first draft" stage and on which criticism has been sought, the following summary of criticisms and appraisals is offered. It will be noted that some of the critics, by virtue of their official duties, should have expert knowledge of the legal or administrative problems dealt with in the chapters they examined:

## Chapter 9 - Individual Rights in Tribal Property.

"Quite valuable" - Norman M. Littell, Assistant Attorney General, (undated Memorandum, c. October 1).

"Fundamentally unsound, require intensive further research, and presentation de novo." - Unknown critic in memorandum to Mr. Littell.

"Impressed with readability and thoroughness." - Richard E. Elwell, Spec.Asst. to the Solicitor.

15

## Chapter 10 - Individual Rights in Personal Property.

Accurate compendium of information,
but lacking in critical analysis.

Charlotte T. Westwood,
Assistant Solicitor.

## Chapter 12 - Indian Education.

### Section 1

"Fundamentally unsound, require in-
tensive further research, and presen-
tation de novo."

Unknown critic in memo-
randum to Mr. Littell.

"Impressed with readability and thor-
oughness."

## Chapter 15 - Tribal Property.

Extremely useful.

Various attorneys in Lands
Division utilizing draft.

## Chapter 16 - Indian Liquor Laws.

Very valuable, no inaccuracies discovered.

Fred H. Daiker,
Asst. to the Commissioner
of Indian Affairs.

Ditto.

Louis Mueller,
Chief Special Law Enforce-
ment Officer.

## Chapter 25 - Pueblos.

"An admirable and exceedingly useful
piece of work."

John Collier,
Com'r of Indian Affairs.

16

"Accurate. Very useful."

Chapter 27 - Alaska Natives.

Excellent piece of work. Very val-
uable.

Appears to be accurate and valuable.

Accurate; very valuable; found no
errors of omission or commission.

Splendid statement of legal problems
relating to wardship of Alaska natives.

William A. Brophy,
Special Attorney for
Pueblo Indians.

Richard E. Elwell,
Spec. Asst. to the Solicitor.

D. E. Thomas,
Alaskan Expert in Indian
Office.

Ernest H. Gruening,
Governor-elect of Alaska.

Anthony J. Dimond,
Alaskan Delegate to Congress.

Seton Thompson,
Asst. Chief, Alaska Section,
Bureau of Fisheries.

Chapter 31 - Interior Department Decisions.

Very useful. Eliminates waste motion.

Messrs. Heiklejohn, Mock,
and Lachmann. Miss Lavender,
Assistant Solicitors, spec-
ializing in Indian matters.
Richard E. Elwell,
Spec.Asst. to the Solicitor.

9. Termination of Survey.

Work on the proposed Indian law handbook was ordered terminated
by Assistant Attorney General Littell on November 1.

Assistant Solicitor.

17

Department of Justice
Washington

November 1, 1939

NORMAN M. LITTELL
ASSISTANT ATTORNEY GENERAL

Frederic Kirgis, Esq.
Assistant Solicitor
Department of the Interior
Washington, D. C.

Dear Fred:

Regarding Indian Law Handbook, I am enclosing a
copy of the memorandum from Cohen to which I referred.
You will realize, of course, that this was prepared
between 3 P. M. and 6 P. M. yesterday, and, therefore,
does not represent a thorough analysis of the objec-
tions, but I think you should have a copy nevertheless.

Enclosure

October 31, 1939

MEMORANDUM FOR MR. LITTELL, ASSISTANT ATTORNEY GENERAL

FROM: NELIX S. COHEN, CHIEF, INDIAN LAW SURVEY

RE: PRESENT STATUS OF HANDBOOK OF FEDERAL INDIAN LAW

In the brief period at my disposal since our conference this afternoon, I have naturally not been able to examine the accuracy of the more general criticisms made in the memorandum which you handed me, but I have examined all the specific criticisms made in this memorandum, with the following results:

L. The citation referring to the use of bodies of navigable water, which is criticized because it does not deal with the *Powers* case and other cases involving water rights in arid land states, means exactly what it says, i.e. it refers to navigable water and the primary citation upon which it is based deals with the rights of the Quillequáte and Quinzielt Indians to operate boats for hire on the Queets River, Washington. "Discussion of the question of rights to irrigated water is not attempted at this point in the volume, but is attempted in two other chapters: 11 and 15. The *Powers* case is cited in the footnote, after the primary citation, chiefly by way of analogy, and should probably have been preceded by the clarifying signal,"cf.".

II. The argument that the *Gaines* case deals with "the identical problem" considered in the section on "Indian Education" appears to me entirely erroneous. The *Gaines* case deals with racial discrimination. The exclusion of Indians from state schools is defended on the ground that the Indians are wards of the Federal government and that the Federal government has assumed a special responsibility for their education. This argument, it seems to me, is in no way affected by the *Gaines* case and I am confident that Congress will not terminate per capita payments to state schools for Indian education on the theory that the *Gaines* case requires the states themselves to educate Indian children.

- 2 -

The memorandum of criticism seems to be based on the assumption,
recently defended by Heinrich Kirger, of the Notgemeinschaft
der Deutschen Wissenschaft (3 George Washington Law Review 379),
that Indian law is a form of "American racial law". It seems
to me that this conception is fundamentally erroneous and that
the peculiarities of Indian law spring from the peculiar political
status of the Indian tribes.

III. The criticism, at page nine of the memorandum, that the author
of the first draft of chapter 9 has not sufficiently distinguished
between the various types of Indian property, seems to me, on the
whole, well taken, but, I think the criticism ignores the fact that
this subject is analyzed in detail in chapter 15. Indeed, the four-
fold classification suggested in the memorandum of criticism seems to
me extremely over-simplified in view of the material which I have
myself prepared for chapter 15.

IV. At page ten, the memorandum of criticism seems to assume that there
is a law of Indian affairs apart from legislation. This theory of
law as "a brooding omnipresence in the sky" (to quote Holmes) seems
to underlie the argument of the government in the Klamath and Shoshone
cases, and I think that the Supreme Court has said the last word on
the subject.

V. The statement, at page eleven, that the United States has been
concerned in only sixteen law suits in which the Pueblos are in-
volved is entirely erroneous. For several decades the United
States has employed a special attorney who has been busy year in
and year out handling Pueblo litigation. It is true that this special
attorney is paid by the Department of the Interior, but I have not
thought this a sufficient reason for ignoring the problems which
concern the litigation which he manages.

VI. It is true, as the memorandum of criticism notes, that in-
sufficient attention has been paid in these first drafts to several
excellent briefs of the United States. Unfortunately, the task of
collecting and indexing these briefs was given to Mr. Fabian, who
appears to have been too busy on other work to do this job adequately
(or, for that matter, to complete the first chapter assigned him,
which he undertook to have completed some two weeks back.

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In conclusion, I should like to point to the fact that these
first drafts of individual chapters necessarily depend to a certain extent
upon material considered in other chapters. Therefore, all these first
drafts are bound to be inadequate and incomplete at various points.
Indeed, on September first, when the first drafts of the three chapters
criticized were presented, even the files were incomplete and therefore no
attempt was made at that time to shepardize or annotate the materials
covered.

I shall, of course, be sorry if you feel that you must revise your
first judgment on chapter 9, namely, that it was "very interesting, and
I can say, quite valuable", because of a memorandum of criticism which
appears to me, so far as I have been able to test its specific statements,
to be entirely inaccurate.

For reasons quite other than those proposed in the memorandum of
criticism, I should be very glad to see the responsibility of the De-
partment of Justice for this work terminated, and the task of completion
transferred to the Interior Department.

Respectfully,

Felix S. Cohen,
Chief, Indian Law Survey

December 13, 1939.

MEMORANDUM for the Solicitor:

I have examined the comments on a first draft of Chapter 9 of the handbook on Federal Indian Law contained in an unsigned document marked "Exhibit No. 1" which was submitted to you by Assistant Attorney General Littell on October 30, and I desire at this time to report my findings. My delay in making this report demands a word of explanation. Many of the criticisms which had to be considered dealt with matters that were being considered in another chapter which I was in the midst of writing on November 1. I therefore postponed a critical examination of the exhibit submitted until the completion of a first draft of this chapter on November 30, and since that date I have been able to put consecutive work on the present matter only after hours and during week-ends.

I find that the exhibit in question contains 57 comments on the draft of Chapter 9, of which 4 are mere suggestions which cannot be viewed as criticisms. Of the remaining 53 comments, 28 purport to be criticisms of content, alleging misstatements of law and fact, inconsistencies, and citations of cases which are not in point. Of these 28 criticisms of content, I find that 3 are well founded, at least in part, while 27 are unsound, in whole or in part. (The overlapping is to be ascribed to comments which are sound, in part, and unsound, in part.) These 27 unsound criticisms reveal a wide variety of errors on the part of the critic, including ignorance of relevant laws and statutes, misunderstandings of important cases and doctrines, ignorance of American legal history, and misreading of the text of the draft criticized. It is interesting to note that while the draft criticized contains only 3 errors of content (according to my analysis; 28 according to the unknown critic) in 72 pages; the "Exhibit", which purports to be not a preliminary draft but a final statement of a serious indictment, contains 27 errors of content in 11 pages.

The "Exhibit" contains 30 criticisms of form. (Again the overlapping is to be ascribed to criticisms which relate to both content and form.) By criticisms of form I mean criticisms relating to unnecessary repetitions in the text, unclear expressions, confusing arrangements of material, the citation of cases whose conclusiveness on the point cited is subject to dispute, faulty distribution of material between this chapter and other related chapters of the hand-

book, and the omission of relevant authorities which, if cited, would not affect the text statement but would give it added confirmation. Of the 30 criticisms of form thus presented, I find that 21 have some justification and that 12 are wholly or partially unsound.

Of the 4 suggestions not regarded as criticisms I find that 2 are useful and 2 proceed from erroneous assumptions and are therefore useless.

The attached detailed analysis of the comments will indicate the basis for the foregoing statements.

In considering the weight to be given to criticisms of form, particularly with those alleging incompleteness in the draft criticized, it should be noted that work on this draft was begun in the middle of July and finished on September 1, that during most of this period the files upon which the work was based did not contain recent statutes and Supreme Court decisions, Court of Claims decisions, or departmental regulations, that it was understood that the preliminary draft submitted on September 1 would be revised in accordance with these supplementary materials when they had been added to the files, that at the time of writing this draft no other draft chapters had been prepared so that it was impossible to utilize, in this first draft, material included in other related chapters, such as the chapters on tribal property, on Indian treaties, on individual rights in personal property, and on allotments, and that again it was understood that this coordination and cross-referencing would be worked out when first drafts of the other connected chapters had been completed. In view of all these considerations, the number of items on which sound criticisms of form are offered by "Exhibit No. 1" is surprisingly small.

The fact that only three errors of content are found in the entire draft indicates the attainment of an unusually high degree of accuracy. Ordinarily I should expect that 72 pages of text and 214 footnotes, even if prepared by an expert in the field, which involves controversial problems of peculiar complexity, would contain a greater number of errors.

Having examined all of the criticisms of this draft presented and having made an independent study of the draft with a view to its general revision, I am of the opinion that the draft is an able treatment of a very difficult field of Indian law, that it reveals a sounder grasp of the principles of Indian law than does the memorandum which purports to criticize it, and that only four or five days' work would be required to put the chapter in final shape.

Felix S. Cohen,
Assistant Solicitor.

Attachment.

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COMMENTS ON EXHIBIT NO. 1

Page 2, line 5. The criticism that the cases in footnote 3 do not support the text is irrelevant and unjustified. The text sentence is a statement of fact, not a proposition of law. The cases cited illustrate the fact situation discussed. Thus *Moore v. Carter Oil Company* deals with the terms of a deed to a Seminole allottee, and the court comments:

"*** Each allottee, in accepting a deed to his allotment, relinquished his interest in all other allotments, - a transmutation of the tribe's communal estate to private ownership in severalty by its enrolled members." (At page 326.)

A similar purpose is served by the citation of *The Kansas Indians* and of *Choate v. Trapp*. The case of *United States v. Fort Smith* and *W. R. R. Company* offers a different sort of illustration of the situation discussed in the text, namely, one in which damages that would have been payable to the entire tribe before allotment are payable to the allottee thereafter.

The criticism is well taken only in so far as it relates to *United States v. Fitzgerald*, which should not be included in this footnote, or in footnote 30, page 13.

Page 2, line 10. This criticism is incorrect. The text statement is true generally, though perhaps not universally. The word "generally" should be inserted after "severalty" and there should be added to the footnote cross-references to chapter 15 and chapter 11 (neither of which had been begun at the time this draft was prepared).

Page 3, par. 2. This criticism is logically fallacious. The sentence "So long as men are mortal they make mistakes" does not logically imply that some men are immortal.

Page 3, par. 2. This criticism is unjustified. The paragraph does not refer simply to the Creek Tribe, as the criticism

assumes, but is general in its expression, and is
so intended. Of course every citation of a par-
ticular case is specific. It is true that neither
the *Irwin* case nor any other case cited proves the
general proposition given in the text, since no
particular case can logically prove a general prop-
osition, but the cases cited do *support* or *exemplify*
the general proposition. The argument that they
should be cited as mere dictum is logically fallac-
ious. The fact that the parties to the *Irwin* case
were not Indians does not show that no question of
Indian rights is involved in the case. In fact the
right of the non-Indian bankrupt in this case was
derived from and dependent upon the right of the
deceased, an Indian.

Page 4, par. 2. This criticism is unjustified. It proceeds from an assumption that in the case of *Mason* v. *Sams* fishing rights "in customary places *outside* the reservation" were being litigated. The fact of the matter is that the Interior Department regulations which were the subject matter of litigation in the case referred only to the Quinaielt river and, as the court pointed out, "the Quinaielt River through its entire course, *flows through the reservation*, emptying into the Pacific Ocean." (At page 255.)

Page 4, par. 2, footnote 9a - This criticism is unjustified. The case cited as an "accord" case deals with the same section of the same treaty and applies to allotments the same rule that *Mason* v. *Sams* applies to fishing rights, namely, that the treaty promise to the tribe confers rights or equities upon all the members of the tribe, which the Interior Department is bound to respect.

Page 5, par. 3. This criticism of repetititiousness is well taken. The second sentence referred to should be deleted.

Page 6, par. 1. This criticism is unjustified. That individuals' rights are discussed in the *Seufert* case will be obvious to anyone who reads the opinion, particularly paragraphs 2 and 3 on page 197 and paragraph 5 on page 198, not to mention the phrase quoted in the

2

text of the chapter itself, which the Court in *Mason v. Sams* cited and approved. The whole criticism that a case is irrelevant because it involves suit by a tribe shows a misunderstanding of the scope and purpose of this chapter. The chapter does not attempt to deal with individual property rights generally, but considers only the rights of the individual in tribal property. The fact that the suit here is brought by the tribe does not prove that the case is irrelevant.

Page 6, par. 2. This comment does not contain any criticism unless it be assumed that a book on Indian law should contain only statements that are "novel." I do not think that the use of the word "obvious" as an epithet constitutes a valid criticism. In fact I must agree with Holmes J. that education in the obvious is sometimes more important than the investigation of the obscure.

Page 7, par. 1, footnote 15 - The criticism of the use made of the *McKay* case is inaccurate as a criticism of substance but justified in so far as it suggests a clarification of form. The case does involve the problem for which it is cited but might better be preceded by the signal, "See." The statement of the critic concerning the *Shulthis* case that the court decided it did not have jurisdiction over the controversy is untrue. The Supreme Court decided that it did not have jurisdiction over the *appeal*, and therefore affirmed the C.C.A. decision, which does expressly consider the problem for which the case is cited. Probably a better form of citation here would be: See *Shulthis* v. *McDougal*, 170 Fed. 529 (C.C.A. 8, 1909); appeal dismissed 225 U. S. 561.

Page 7, footnote 15B, C, D. - The criticism that this discussion belongs in a chapter on individual restricted property rather than in the present chapter is unjustified. The criticism apparently proceeds from two erroneous assumptions: (a) that headrights are not rights to share in tribal property, and (b) that upon enrollment tribal ownership disappears and tribal property becomes vested in the individual members. The criticism that the language cited in describing the rights of individuals in tribal property is affected by the question of whether the Five Civilized Tribes or the Osages held property in fee simple, is likewise unsound. The phrases used and cited in describing the extent of the individual interest in tribal property do not depend upon the character of the tribal title.

3

Page 8, par. 2, footnote 17 - This criticism is well taken in so far as it deals with the order in which the cases are cited in the footnote. The *Stephens* case should be cited first. The *Charles* case should be third and should be labeled "Accord."

Page 9, footnote 19 - This suggestion is not well taken. *United States v. Chippewa Tribe*, 307 U. S. 1, is not in point here because in that case the entire tribe benefited and not a particular class.

Page 10. The criticism that this page is inadequately documented is beside the point, since Chapter 15 (Tribal Property) covers this ground and cites all the cases mentioned as well as many others. In the final version of Chapter 9, a cross-reference would take the place of any detailed statement or footnotes on the point here discussed.

Page 11. This criticism is unfounded, in substance, as noted in the memorandum to Assistant Attorney General Littell, dated November 1.

Pages 1 - 12. This criticism is similar to that made of page 10 and subject to the same answer.

Page 13, footnote 30. - See page 1, comment 1, paragraph 3, *supra*.

Pages 14 - 15. As a suggestion for abridgment of the text, this comment is well founded.

Pages 17 - 18. The criticism that pages 17 to 18 "give no conception of the progressive, historical and legislative treatment of this problem or of the existing law" is not well taken. These pages, together with page 19, give a concise and fair sketch of the development of the law. Instead of setting forth the "progressive, historical and legislative treatment" in detail, the author quite properly refers the reader to the excellent discussion of this by the Supreme Court in the *Cherokee Intermarriage* cases. The existing law is stated at pages 18 - 19, and the criticism that existing law is not stated is entirely without foundation. The critic's comment regarding the Osages is irrelevant and incorrect: irrelevant because it relates to trans-

4

fers between individuals, which is not here being considered, and incorrect because approximately 200 Osage headrights have already been transferred to non-Indians, despite the critic's statement that this is impossible.

Page 19, footnote 35 - As a suggestion for eliminating an unnecessary reference this criticism is well taken.

Pages 17 - 22. The criticism that the discussion "deals exclusively with the Five Civilized Tribes" is incorrect. The general statute covering the rights in tribal property of intermarried non-Indians is set forth at pages 18 - 19. It was intended that material on the Five Civilized Tribes not considered essential to illustrate general problems would be transferred to a separate chapter on "Indians of Oklahoma."

Page 23, par. 1. This criticism is incorrect. The paragraph criticized does not purport to set forth the substance of the entire act cited and cannot fairly be criticized for not doing that. The paragraph does summarize (correctly) the provision relevant to the subject under consideration, which is the allocation of funds to persons who have severed tribal relations. (The word "setting" should read "settling".)

Page 24. The suggestion for abbreviation of the text and incorporation of special legislative provisions in footnotes is well taken.

Page 25, par. 2. The criticism in the first sentence, pointing to a duplication on page 25 of material contained on page 23, is well taken. The remainder of this comment is unintelligible as it stands. I suspect that this is the result of a typing error, rather than idiocy on the part of the critic (although this is not an assumption which the critic makes in passing upon typographical errors in the text). If this criticism is intended to refer to page 27, instead of page 25, the criticism that enrollment creates vested rights would be significant but untrue. A right to a particular share of a particular tract or fund cannot vest before division. Therefore, enrollment prior to allotment of land or segregation of funds does not convey such a vested right. If an undivided interest

5

in an entire tract or fund is to be called "vested",
then such an interest antedates enrollment and cannot
be viewed as a result of enrollment. If intended as
a statement of constitutional law, the argument that
enrollment confers vested rights is answered by the
Supreme Court in *Sizemore v. Brady*, cited in the text
at page 34 and 34a, to the effect that Congress could
repeal an allotment law after enrollment but before
actual allotment. *Gritts v. Fisher*, 224 U. S., also
holds that enrollment does not confer rights which
Congress is powerless to impair.

Page 28, par. 1. This comment does not involve any criticism of the text, but it is itself subject to criticism, inasmuch as it assumes the existence of a rule of domestic relations that is universal among Indian tribes, — something that no student of the subject has ever yet discovered.

Page 31, par. 1. The second sentence of this paragraph, which involves no criticism of the text, is probably correct. The lack of information on the part of the critic, which this statement concedes, might be remedied by consideration of the statutes and treaties, filed under headings 6.62 and 6.621, which provide for payments to Indians where no official departmental rolls exist. There are today more than 100 tribes for which no final rolls have ever been made. The practice of having tribal officials distribute tribal funds to those whom they consider to be members of the tribe, is still in vogue on certain reservations and has been sanctioned by general legislation from 1834 to the present day (25 U.S.C. 111).

Pages 31, 32, 33. No criticism is here involved. The suggestion that certain material might be placed in footnotes or that cross-reference to a separate chapter might be substituted is well taken and is in accord with established plans for revision of the preliminary draft.

Page 34, footnote 50d. The suggestion of additional citations is well taken. The recommendation for a more detailed statement on the Secretarial power to strike names from a tribal roll overlooks the fact that this is a question of Federal administrative power covered by Chapter 5.

6

Page 34, par. 3. This suggestion is subject to the comment made in the foregoing paragraph.

Page 34a, par. 1. This criticism is not well founded. The case, and the passage quoted therefrom, throw light on the nature of individual equities in tribal property, although, as noted, the case deals also with other questions.

Page 37, line 3. This criticism is unsound for reasons already noted. The criticism amounts to a doctrine that the United States is liable to persons removed from rolls on the ground that once being on a roll gives one a vested right that neither Congress nor the tribe can terminate. The demolition of this theory is left to chapters 5 and 7.

Page 37, par. 1. The suggestion that there is a duplication here is not well taken, since this paragraph contains new material. While the case now pending is not cited, the substance of the Government's position in this litigation is contained in the Solicitor's Opinion which is cited. If this viewpoint is sustained by the courts, the fact will be noted in due course.

Page 37a, par. 1. As a suggestion for the removal of unnecessary duplication, this comment is well taken. I assume that the reference to page 19 in the memorandum of criticism should be to page 9.

Page 37. The criticism that the tribes are not mentioned on this page is incorrect since the first paragraph refers in terms to the Creeks and the second in terms to the Mission Indians. It may be that this criticism is intended to apply to the following page. In that case the criticism is in my opinion without force. The text attempts to show that communal ownership does not necessarily imply equal participation. This is proved by a single negative example. The tribe from which the example is taken (Stockbridge) is quite without significance.

Page 37b, par. 2. This criticism is erroneous. The provision in question is not a rare exception by any means. A large number of statutes and treaties of this type are cited in section 22 of Chapter 15, and this list is by no means complete. A cross-reference to chapter 15 at this point would make the addition of further citations unnecessary.

7

Page 39, par. 1. The statement of the statute in the criticism and the statement of the decision in the paragraph criticized are both slightly inaccurate. The critic says that the statute reserved 10 percent of the proceeds of timber sales for the tribe, which is not true. (Such reservation, however, was made by departmental regulations.) The author of the text fails to make it clear that the statute governing the Chippewa Indians in the *Pine River* case governed various other tribes as well. Furthermore, the author uses the word "equally" in a common but imprecise sense. It is true that all the members of a tribe have equal rights under the statute. That, however, does not mean that if one Indian cuts twice as much timber as another he will receive an equal return. The dependence of returns upon the amount of work done, and the dependence of work upon departmental permission, should be made clear in the text. To this extent the criticism is well taken.

Page 41, par. 1, footnote 50g. The criticism that the case cited for discussion is not "in point" is itself not in point, since the citation merely notes that the statute is "discussed in Clark v. Boysen." Nevertheless, if it is intended to suggest that this citation does not add any useful information, I should agree.

Pages 42-45. This comment repeats that made with reference to page 7, footnotes 15B, C, D. The comment involves no criticism of content. The exact line of division in material between Chapter 9 and Chapter 10 is stated at page 44.

Page 45, par. 1. Again this comment involves no criticism of content. The suggestion for an additional statement on subsequent legislation is well taken. The act of June 24, 1938 (52 Stat. 1034), (which had not been filed when this chapter was written), should be cited in a paragraph supplementing the first paragraph on page 45. As for the act of March 2, 1929 (45 Stat. 1478), this is cited, so far as it is relevant to tribal property, in footnote 56 on page 43.

Pages 45 - 48. The criticism that the distribution of Chippewa tribal funds has been considered by the Supreme Court in *three cases* and that these cases were *not* considered by the writer of this chapter is untrue at both ends. The

8

Solicitor's Opinion cited by the writer in footnote
60 analyzes *Minnesota v. Hitchcock*, 185 U. S. 373;
*Morrison v. Work*, 266 U. S. 481; *United States v.
*Mille Lac. Chippewas*, 229 U. S. 498; *La Roque v. United
States*, 239 U. S. 62; and, also, *Oakes v. United States*,
172 Fed. 305. The further criticism that the statement
for which footnote 59 cites a Solicitor's Opinion of
May 31, 1924, as authority is exactly contrary to the
decision of the United States Supreme Court in 307 U. S.
1, is wide of the mark. The statement in the text is
that the Secretary of the Interior, under the 1889 act,
is not authorized to segregate and advance to individ-
uals pro rata shares of the tribal fund. The recent
Supreme Court decision supports this view, holding that
the fund is *not* the property of individual Indians but
is tribal property which Congress may appropriate for
the benefit of the tribe.

Page 49. This comment is well taken in so far as it suggests a clearer order of presentation. In so far as a criticism of content is intended, the criticism that general and special acts have not been distinguished is incorrect. All the acts here referred to are quoted and the quotations ("any Indian tribe", in the second paragraph; "any Indian", in the third paragraph; and "Chippewa Indian", in the fourth paragraph) show that the first two acts are general and the last is special. The so-called "mis-statement" is a simple typographical error in a quotation, obvious to anybody familiar with the subject.

Page 50, par. 1. This criticism is erroneous. The text follows the opinion of the Supreme Court which is cited, in referring to the "Osage Trust Fund", which had nothing to do with the oil and gas royalties discussed in the criticism. The borderline between chapters 9 and 10 has been commented upon in an earlier paragraph of this memorandum.

Page 50b, footnote 68a. - The statement that the *Henry* case "does not support the proposition for which it is cited" is incorrect. The case involved a question of inheritance which depended upon the date when an individual right in the property was established. It was therefore necessary to construe the treaties upon which the unsuccessful defendant relied and the decision that the treaties did not confer a vested right was an integral part of the holding. Other decisions, including decisions of the Supreme Court, are cited in the *Henry* case.

9

Page 50e. (This apparently should refer to page 50c.) The comment does not involve any criticism. A single act may be discussed a good many times if it raises many different questions.

Page 50d, lines 3-4. - This criticism is well taken in that the two cases cited are not conclusive authorities on the point. The sentence in the text should be revised to read: "Support for this view may be found in * * * ."

Page 50e (2nd). This criticism is unjustified. The opinion of the Supreme Court reversing the Court of Appeals' decision in the Kadri case is cited on the preceding page. The opinion of the Court of Appeals is cited not as "good law" but as an expression of a particular viewpoint, as, likewise, is the 1924 Solicitor's Opinion which was reversed by the Solicitor's Opinion of 1927, upon which the Supreme Court based its holding.

Page 51. This criticism is well taken in so far as it points to a duplication which can be eliminated on revision.

Page 53, par. 1. This criticism is unjustified. An Osage headright does constitute a share in tribal property, as the case cited clearly shows, since the oil and gas remain the property of the tribe and the proceeds therefrom are tribal property until they are divided, when they become individual personalty. The headright, like a share of stock, is a right to have tribal or corporate property transformed into individual property. This point the criticism misses completely.

Page 56. This criticism is not well taken. The Harris and Talley cases are not contra the position here taken. These cases do not show that the heir, under the statute, inherits an allotment (which has not been made before the death of the decedent does not exist at the time of such death, and therefore cannot in the strict sense be inherited). See Shulthis v. McDougal, 170 Fed. 529 (C.C.A. 8, 1909), aff'd 225 U. S. 561 (1912)). It is true, however, that the right to an allotment is inherited, in these cases, which is what the text declares. The text and the criticism would both be less confusing if the distinction between an allotment and a claim were made clear.

10

Page 59, footnote 73. - The criticism that the "case cited does not support the proposition" is irrelevant and immaterial on its face. The proposition in question is not a proposition of law. It is a statement of historical fact. The historical facts are set forth in the case cited.

Page 61, line 3. The criticism of inconsistency is unjustified. Page 61 relates to conditions prior to the Curtis Act of June 28, 1898 (30 Stat. 495) and so states. Page 64 relates to conditions after the act, and so states.

Page 63, line 3. As a suggestion for clarification, this comment is well taken. There might well be added, after the word "Creeks", the words "(as well as to the other tribes in the Indian Territory)".

Pages 57-64. The suggestion for the addition of supplemental material is well taken. (This material was not available in the files when the preliminary draft was written.)

Pages 64-66. The comment made above is applicable. It should be noted, however, that the criticism is entirely wrong in so far as it asserts that "allotments" have been made under the act of June 18, 1934. The chief purpose and result of the act was to end the making of allotments.

Pages 68-72. The comment made in the paragraph before the last is equally applicable here.

General - The comment in the preceding paragraph is applicable here as well, so far as the reference to departmental regulations is concerned.

There is no justification for the criticism that the text fails to mention any treaty provisions on assignment and allotment. Instances of such statutes are discussed at page 76 of the text. The problem is treated separately, in more detail, in chapter 3 and would be covered also in chapter 11.

The criticism is likewise wrong in suggesting that 25 U. S. C., sections 345, 346, relate to "a recognized possessory right to a Tract of the Tribal Reservation". The sections relate only to rights to allotments conferred by statute.

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UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF INDIAN AFFAIRS
FIELD SERVICE

806 First Natl. Bank Bldg.
Albuquerque, New Mexico

December 29, 1939

Honorable Nathan R. Margold
Solicitor
Department of the Interior
Washington, D. C.

Dear Mr. Margold:

I have now had time to study Chapter 25, Pueblos of New Mexico, Indian Law Survey, Draft No. 1, which was sent me with your letter of November 7. On July 14, 1939, I commented to Mr. Kirgis on a somewhat similar memorandum. I believe that the chapter submitted is accurate. It will be very useful to us as a compilation of all of the pertinent statutes and cases relating to the pueblos.

I am glad that the draft incorporates at page 45 the memorandum of Mr. Kirgis, dated April 14, especially that portion of it in which, after analyzing possible situations, Mr. Kirgis declines to give a definitive opinion until an actual assignment, with all the facts surrounding it, including the by-laws, ordinances and unwritten customs of the pueblo involved, is submitted. This leaves the matter of the interest which is actually created in each pueblo undecided.

I would not follow the writer in his conclusions as to Section 9, The Pueblo as a Corporate Entity, pages 60 to 63. The mere fact that the Indian pueblos are given the status of bodies political and corporate (page 62) should not mislead us into the belief that they are municipal corporations. Municipal corporations are liable for various kinds of torts. I have in mind particularly the type of case which arises in cities, some of which have arisen in New Mexico, where a pedestrian falls into a small hole or trips over an obstruction on the sidewalk or highway. In several cases our local courts have granted judgments against cities in this type of case. If in such a case brought in a state court we were confronted with a memorandum from your office in which it is indicated that the pueblos are municipal corporations, it would be impossible to get the court to hold that we were public corporations such as some of the irrigation and drainage corporations organized under New Mexico and other western law, and, therefore, not subject to suit in this type of case.

OFFICE OF THE COMMISSIONER OF INDIAN AFFAIRS

Cmmr J C
647-40

WASHINGTON

January 12, 1940

MEMORANDUM for Mr. Margold:

I have received a copy of Mr. Brophy's letter pertaining to the memorandum upon the chapter upon Pueblo law. I had not mentioned previously, that I think this whole chapter is an admirable and exceedingly useful piece of work. I do suggest a reconsideration of the matter discussed in Mr. Brophy's third paragraph, i.e., that it would be desirable to define a Pueblo as that sort of corporation which is not liable for torts.

cc Mr. Brophy