Memorandum

Bill:

I think you have done a most thorough job of exposing the errors in our three drafts. I only wish you had been as graphic in exposing the errors of the memorandum of criticism. I think it unfortunate that while you describe the various errors of our drafts in all their gruesome details you content yourself with saying of the various erroneous points in the memorandum of criticism, "This is incorrect." [Wherefore? I point out why the memorandum is incorrect. WH?]

In general, I agree with your analysis of the cases and statutes cited, and there are only a few points on which I have interpreted primary legal materials somewhat differently from your reading of them. I have noted these points, together with my other comments, in slips tagged to the various paragraphs of your memo.

The really important point on which I disagree with a good many of your comments on Chapter 9 is this: I have looked upon this chapter (9) as one segment in a whole book and I think you have looked upon it as a complete essay. Looking upon the chapter as one of 34 chapters, dealing with only one out of 250 topical headings in our outline (Topic 5.33), I find it covered with excrescences which are easy to scrape off. The writer has gone off the

reservation repeatedly to talk about the Osages and the Five
Civilized Tribes, for which a separate chapter was reserved, and
to discuss problems that belong in chapters on tribal property,
allotments, individual personality, Federal power, etc.. This
would be most serious in a final paper, but from my point of view,
in reviewing the draft, it doesn't make any difference whether a
statement that does not belong in this chapter is true or false:
out it goes in either case. In fact there is a high probability
that a statement which does not belong in the chapter will be
false. The reason for this is that the chapter is written from
a file of raw materials - cases, statutes, etc. - on point 5.33.
On this point the file is reasonably near completion, and kinks
get ironed out. But nearly every case or statute or treaty that
deals with point 5.33 also deals with other related points, and
when the writer goes off on such a point, e.g. the nature of
tribal property (6.6) he does not have the benefit of that complete
file and therefore is likely to go haywire. It is the job of the
reviewer, as I see it, to eliminate, or postpone consideration of,
material that properly falls in other chapters until the other
chapters have been written.

This difference in our approaches leads to the following
situations:

2

(1) The draft contains a page or a paragraph that does not belong in the particular chapter. I consider this an easily remediable mistake. You find half a dozen serious errors on the page. You judge the whole text very largely by the accuracy of these irrelevant pages and paragraphs. I judge the text by the accuracy of the material that is to be retained. If the writer of this chapter had the habit of interspersing his legal statements with assertions that the earth is flat (and some of his assertions are only slightly less ridiculous) I would not regard that as a serious drawback in the process of getting our book into shape. A little blue pencil takes care of such things. It seems to me that you go to great pains to show that the earth really isn't flat and leave the impression that the shape of the earth is the most important part of the chapter.

(2) The draft cites, by way of illustration of a point that does not belong in the chapter, a statute dealing with the Osages or a case on Congressional power. From my standpoint this is perfectly proper: if an Osage statute of 1906 illustrates a way of dividing tribal property, it is immaterial, for the purpose of this discussion, that the statute was later repealed or amended. You have, however, considered whether these tangential illustrations were adequate as discussions of the law governing the Osages, etc., and therefore classified as inaccuracies statements which I would characterize as adequate for the purpose intended.

I think that if you are able to see the book from my stand-point, and I am able to see the cases (as I have tried to) from yours, we can come to pretty close agreement on the final analysis of these drafts and the criticisms directed at them.

F. L. Cohen

I attach a table of contents of the book and will send along a set of various half-dou-chapters. I am also attaching a personal memo to Mr. Nagel, that I'd like to have returned, and copies of but two justice correspondence which I'd like to have returned as soon as possible.

Inasmuch as the rights of an individual Indian to
share in tribal property are necessarily limited by the
nature of the tribal property, it is necessary to discover
what characteristics of tribal property affect him.

The individual Indian is affected by the nature of
the tribal title. He can receive from the tribe as his share
in the distribution of property owned by it no greater interest
than the tribe itself possesses. In the case of *United States
v. Chase*, 245 U.S. 89 (1917), the court held that where the
Omaha Tribe held only a right of occupancy in certain lands,
with the fee remaining in the United States, the tribe could
not convey more than its right of occupancy to a member without
the consent of the United States.

The individual Indian claiming a share in tribal
assets is subject to the general rule that he can obtain no
greater interest to property than that possessed by the
source under which he claims.

1/ "The right of the individual member in tribal land
is derived from and is no greater than the right of the tribe
itself." If the tribe cannot make a lease without the approval
of the Department of the Interior, neither can the individual.
Memo Sol. I.D., October 21, 1938.

In the case of the *Sioux Indians v. United States*,
277 U.S. 424 (1928), it was contended that the tribe was
entitled to the principal amount of a fund held in trust by
the United States. By a treaty entered into between the Sioux
and the United States on July 23, 1857 (10 Stat. 952), it was
provided that, in consideration of the cession of tribal lands
a certain amount of money was to be held by the United States in
a trust fund. Five per cent interest was to be paid annually
to be distributed among tribal members for a term of fifty years.
But since there was no provision for the payment of the principal
at that time or at any other time, the court held that the tribal
property consisted only of the interest payments and the members
had no right to the principal amount.

- 2 -

The individual's rights in tribal property are affected by any set-offs or claims against the tribe, because the amount of his share that he would otherwise be entitled to is decreased.

Viewed in this fashion, an allotment system or any act or treaty which extinguished tribal title decreases to that extent the quantity of tribal property in which the individual may share. This is true, even though by virtue of the allotment system, the Indian may receive some of the erstwhile tribal property as his own in severalty. The allottee of lands in severalty received the land free from any claim on the part of the tribe or any other member of the tribe.

2/ United States v. Old Settlers, 148 U.S. 427 (1893).

3/ Moore v. Carter Oil Co., 43 F. 2d 322 (C.C.A. 10, 1930); United States v. Fort Smith & W. R. R. Co., 195 Fed.

211 (C.C.A. 8, 1912); United States v. Fitzgerald, 201 Fed.

295 (C.C.A. 8, 1912); Choate v. Trapp, 224 U.S. 665 (1912);

The Kansas Indians, 5 Wall. 737 (1866).

4/ Op. Sol. I.D., 27770, May 22, 1935.

4a/ See Moore v. Carter Oil Co., 43 F. 2d 322 (C.C.A. 10, 1930).

- 3 -

In the case of *The Cherokee Trust Funds*, 117 U.S. 288 (1886), the court said,

"Their (Cherokee Nation) treaties of cession must, therefore, be held not only to convey the common property of the Nation, but to divest the interest therein of each of its members."

A distinctive feature of tribal property affecting the right of an Indian to share in it is that it is communal 5/ property. Each individual is owner of it all as such since he is a member of the community. By virtue of his being part of the community, he has an equitable interest in the tribal 6/ property. The general statement is that where the tribe held legal title to its property it held it in trust for its 7/ members.

In speaking of the title to the lands of the Creek Nation, the court in *Shulthis v. McDougal*, 170 Fed. 529, 533 (C.C.A. 8, 1909), declared,

"The tribal lands belonged to the tribe. The legal title stood in the tribe as a political society; but these lands were not held by the tribe as the public lands of the United States are held by the nation. They constituted the

5/ *Sizemore v. Brady*, 235 U.S. 441 (1914); *Heckman v. United States*, 224 U.S. 413 (1912); *Gritts v. Fisher*, 224 U.S. 640 (1912); *United States v. Cherokee Nation*, 202 U.S. 101 (1906). Compare with the right of the stockholder in a corporation and the right of the individual in community property.

6/ *In re Irwin*, 60 F. 2d 495 (C.C.A. 10, 1932); *Choate v. Trapp*, 224 U.S. 665 (1912); *Fleming v. McCurtain*, 215 U.S. 56 (1909).

7/ *Ligon v. Johnston*, 164 Fed. 670 (C.C.A. 8, 1908); *Cherokee Nation v. Hitchcock*, 187 U.S. 204 (1902). *Stephens v. Cherokee Nation*, 174 U.S. 445 (1899).

- 4 -

home or seat of the tribe. It was granted
to the tribe by the federal government not only
as the home of the tribe, but as a home for
each of the members." 7a/

That tribal property should be held in common for
the benefit of the members of the Indian Community as a whole
was the principle upon which conveyances of land to Indian
tribes were made. 8/ Treaties often provided that the land
conveyed to the tribe was to be held in common; each and every
member was to have an undivided interest in the whole. 9/

In the case of Mason v. Sams, 5 F. 2d 255 (D.C.W.D. Wash. 1925), the Treaty of 1855 between the United States and the Quinaielts (12 Stat. 971) is discussed. By the terms of the treaty, a tract of land was to be "reserved for the use and occupation of the tribes . . . and set apart for their exclusive use." The court construes the treaty to give the Indians an exclusive right of fishing in the waters on these lands; the right to fish being common to all members, even though the treaty was made with the tribe. 9a/

7a/ W. O. Whitney Lumber and Grain Co. v. Crabtree, 166 Fed. 738 (C.C.A. 8, 1908). Title to Creek lands were in Nation; occupants had no more than possessory rights.

8/ Woodward v. De Grafenried, 238 U.S. 284 (1918);
Heckman v. United States, 224 U.S. 413 (1912); United States
v. Fitzgerald, 201 Fed. 295 (C.C.A. 8, 1912); Shulthis v.
McDougal, 225 U.S. 561 (1912).

9/ Treaty of June 17, 1837, 7 Stat. 605; Treaty of June 22, 1855, 11 Stat. 611; Treaty of August 6, 1846, 9 Stat. 871, discussed in *Cherokee Trust Funds, 117 U.S. 288 (1886)*, and United States v. *Cherokee Nation*, 202 U.S. 101 (1906); Treaty of 1868, 15 Stat. 649; Treaty of April 28, 1866, 14 Stat. 769, Art. 33?

9a/ Halbert v. United States, 283 U.S. 753 (1931) in accord.

under which the fund was created. The case is clear authority for
the proposition asserted in the text.

14. Page 10. The criticism is that there is no citation
for the proposition that some tribal lands are held in fee, and
points out that this is the status of the Five Civilized Tribes, Osage
and Pueblo Indian tribal title. This is correct. A further criticism
is that the cases cited under footnote 23 are not the leading cases
for the proposition that an Indian tribe may have an estate of less
dignity than the fee, e.g., the right of occupancy only. The criticism
is correct. See cases cited in the memorandum.

15. Page 11. This criticism relates to the provision dealing
with the rights of individual Indians to use navigable bodies of water.
It has heretofore been fully discussed and needs no further comment
here.

16. Pages 1-12. The criticism is that the author has spelled
out the nature of tribal property on these pages; that if this subject
is treated elsewhere it probably should not be repeated; that if it
is not treated elsewhere then it is inadequate inasmuch as it gives
no comprehensive background nor discussion of the nature of the tribal
property. I understand that there is another chapter dealing with
tribal property but even so the separate treatment of the individual
Indian's rights in the tribal property does not appear to be inap-
propriate. The material on the pages mentioned is, however, defective

12

in my judgment because of the failure to discuss and distinguish
the right of the individual on the one hand in the property of a
tribe prior to legislation providing for conversion of the tribal
title into individual title by allotment in severalty and distribu-
tion of tribal funds, and the right of the individual on the other
hand in the property of the tribe made subject to division and dis-
tribution on the basis of final membership rolls. See comments on
No. 11 above.

17. Page 14, footnote 30. The criticism is that United States v. Fitzgerald does not support the proposition for which it is cited, namely, that the membership rule apparently operated especially in practice when tribal organization was strong enough to enforce the equitable distribution of its property in accordance with tribal law and custom. The criticism is correct. The cited case dealt with recovery of wool stolen from an individual Indian.

18. Pages 14-15. The text discusses the case of *Cherokee Nation v. Journeycake*, which dealt with the rights of registered Delawares who had been incorporated into the Cherokee Nation and held that they were entitled equally with the native Cherokees to share in the profits and proceeds of tribal lands. The case of *Cherokee Nation v. Black Feather* is then discussed. The criticism is that there is no basis for individual treatment of the latter case since in view of

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UNITED STATES
DEPARTMENT OF THE INTERIOR
WASHINGTON

19. Disagree in part. I think it is an overstatement to say that the text does not give "any conception" etc. It would be correct to say that the text gives an inadequate picture of this special legislation of the 5 Tribes etc., but then it should be added that another chapter was planned to give a more adequate picture of this subject.

Also, the statement in the criticism that the present law is not stated is incorrect.

[ATTACHED P. 14]

conclusive provisions of the contract between the two nations the
case was decided without discussion on
authority of *Cherokee Nation*
v. *Journeycake*. The criticism is correct.

19. Pages 17, 18. The criticism of these pages which deal with the membership rights of intermarried whites admits that the statements made are probably correct but suggests that they give no conception of the progressive, historical and legislative treatment of the problem or of the existing law. The criticism refers, for example, to legislation dealing with the Osage Tribe expressly prohibiting the transfer by any method of an Osage headright to a non-Indian. This latter statement is too broad. Osage headrights can be transmitted by descent or devise to white people subject to limitations set forth in the act of February 24, 1925 (43 Stat. 1008), and many of these headrights have already passed into non-Indian ownership by this method. By an act passed in 1924 permission was given to non-Indians to transfer interests owned by them, with the approval of the Secretary of the Interior, but this permission did not extend to Indian owners. The statement that these pages do not give any conception of the progressive, historical and legislative treatment of the problem is in my judgment correct. It would be necessary not only to consult the Cherokee intermarriage cases in which the text states the problem is discussed but in order to grasp the situation with respect to other tribes the legislation, tribal laws and customs

14

applicable to the particular tribe would have to be consulted.
For example, under the laws applicable to the Cherokee Nation
citizenship by intermarriage subsequent to November 18, 1875, did
not carry with it the right to participate in the lands and funds
of the tribe, but for a limited period prior to that time the inter-
married white might, by depositing $500 in the treasury of the tribe,
become entitled to a share in the tribal property. The Choctaw and
Chickasaw tribal laws and the treaty of 1866 conferred full member-
ship rights on intermarried whites. The Creek and Seminole nations
had no members by intermarriage. In view of the situation, it seems
fairly clear that the pages under consideration and the prior and
subsequent pages dealing with the "Eligibility to Share in Tribal
Property," are inadequate in that while purporting to make statements
applicable to all tribes the greater majority of the cases cited deal
with the Five Civilized Tribes, with respect to each of whom special tribal
and statutory laws have been enacted.

20. Page 19, footnote 35. The text refers to the act of August 9, 1888, prohibiting intermarried whites from acquiring any interest in tribal property and the footnote cites *Oakes v. United States*, 172 Fed. 305. The criticism is that the *Oakes* case merely mentions the act of 1888 in construing other statutes pertinent to the question before the court. The criticism is correct. The statute covers the point and the citation to the *Oakes* case is without value.

15

21. Pages 17-22. The criticism is that the discussion on these pages deals exclusively with the Five Civilized Tribes; that the understanding of the author of the criticism is that tribal are to be treated in a separate chapter; and if this is not true then the discussion on these pages is too cursory to be of value, and, furthermore, there is no warning to the reader that the statements may not be applicable to other tribes. The criticism appears to be correct. See comments under No. 19 above.

22. Page 23, paragraph 1. The criticism is that the act of January 18, 1881, is misstated. Further, that it is the recollection of the author of the memorandum that there are several cases discussing the proposition for which the footnote cites a Solicitor's memorandum. The text does not contain a complete statement of the act of 1881 but other than a typographical error it is not inaccurate in so far as it goes. A hurried search of the authorities discloses a number of cases dealing with the act of 1881 but these relate largely to the restrictions imposed upon lands of the Winnebagos and not with the particular proposition set forth in the text. The criticism does not appear to be correct.

23. Page 24. The criticism states that the discussion on this page by way of individual treatment of a particular tribe and legislation to the effect that citizenship did not deprive the individual of

16

his right to share in tribal property is the universal rule; that
there are Supreme Court cases establishing this proposition and that,
therefore, a better treatment of the proposition would be to state
the rule and its limitation, if any, and to cite the specific statute
dealing with particular tribes and situations by way of footnotes.
I agree.

24. Page 25, paragraph 2. The criticism is that this paragraph is a duplication of the first paragraph on page 23; that the paragraph overlooks rights gained by virtue of enrollment and that an individual who was enrolled in anticipation of a distribution of tribal property gained a vested right even though no particular property had been designated. The criticism concerning duplication is correct. The remainder of the criticism is not understood. The author of the memorandum may have had in mind the material appearing on page 27 of the text which discusses the question of whether a member's rights to share in tribal property are alienable or descendable and points out that a vested descendable right does not attach until the tribal property has become individualized. If so, I should agree that the text is inadequate in failing to differentiate between tribes for whom final rolls have been adjudicated as a basis for the distribution of tribal property and tribes for which no such final rolls have been adopted. In the former right the distributions of tribal property are made to the members shown on the final roll, the shares of deceased members passing to their heirs.

17

25. Page 28, paragraph 1. The criticism states that the rule stated in the text concerning the eligibility of illegitimates to share in tribal property is the universal rule among Indian tribes and suggests that there are cases dealing with the subject. There are cases dealing with the right of inheritance on the part of illegitimates but that is not the subject dealt with in the text. In the absence of statutory provision, the right of illegitimates to share in tribal property would be determined by tribal membership and this doubtless would be controlling by the usages and customs of the particular tribe.

I doubt if the rule is universal among all the tribes. While the criticism has little merit, attention might be called to the ruling of Acting Solicitor Fahy dated August 28, 1933, on the right of an illegitimate born to an Indian woman and a Negro father. Mr. Fahy pointed out that the child being illegitimate, there existed no rule of law which entitled him to enrollment as a matter of right and that in borderline cases the Supreme Court had held that administrative discretion rested in the Secretary and that the exercise of his judgment could not be controlled by mandamus.

18

28. This comment overlooks the fact that a discussion of Congressional and Secretarial power over enrolment belongs in Chapter 5. Rather than add cases here, the cases cited might well be deleted in favor of a cross-reference to Chapter 5. I would say that the original criticism, while not incorrect, fails to take account of the scheme of the book as a whole and is therefore of little value.

29. I do not consider this a valid criticism, since the subject of the "plenary power of Congress over tribal property" is reserved for Chapter 5. I agree that the suggested case would be a useful addition in that chapter, and agree, of course, that a cross-reference to that chapter should appear here.

tion has not been given by the author to the distinctive features
existing between tribes having final rolls and those whose membership
is constantly fluctuating.

28. Page 34, footnote 50 (d) (b). The criticism is that the footnote should include additional cases in support of the statement in the text that while Congress has the power to add new participants yet when one has been enrolled as a member on the tribal roll and has a right to participate in the division of tribal assets, the Secretary of the Interior cannot, summarily, strike his name from the roll. Further, that the text should contain a more detailed statement defining the power of the Secretary of the Interior to strike names from the roll and the remedy of individual Indians whose names were included on the roll. The criticism appears to be well taken. The work is again defective in failing to differentiate between final and fluctuating rolls. The power of the Secretary to add to or strike names from the roll will depend upon the finality of the roll in each case. Compare, for example, *United States v. Wilbur*, 281 U. S. 206, with *Cully v. Mitchell*, 37 F. (2d) 493, and *Ickes v. Pattison*, 80 F. (2d) 709.

29. Page 34, paragraph 3. The suggestion that *Chippewa Indians v. United States*, 307 U. S. 1, should be set out in the discussion of the plenary power of Congress over tribal property appears to be well taken. Whether the further suggestion that the importance of

20

30. Agree.

31. This comment suggests but does not say that the criticism is un- sound, I don't think that should be left to inference.

I do not agree that at this point a fuller discussion of Federal power is called for. Rather there should be a cross-reference to Chapter 5.

I disagree with the last para- graph of this comment, because I think the problems in the Creek and Mission cases are similar, though not identical, and that is as much as the text asserts.

this subject requires that it be discussed in detail depends upon
whether the subject is adequately treated in other chapters. If this
is done, and I understand it will be done, it would perhaps be suf-
ficient to cite the *Chippewa* case in support of the text with approp-
riate cross-references to the material in the subsequent chapters.

30. Page 34(a), paragraph 1. The discussion in the text of the case of Ne-Kah-wah-she-tun-kah v. Fall is criticized on the ground that the case deals with individual rights, a subject to be treated in another chapter. As the case appears to be used by the author of the text as throwing some light on individual rights in tribal property, the criticism seems to be without merit.

31. Page 37, line 3. The text refers to the act of June 19, 1934, providing for a per capita payment of a money judgment to members of the Creek Tribe of Indians as of a roll made on December 4, 1933, notwithstanding prior legislation under which a final membership roll had been made, and states without citation of authority that the act was a valid exercise of Congressional power over tribal property even though it conflicted with prior laws or agreements with the tribe, and that members on the final rolls who have lost their rights and were not members as of December 4, 1933, have no status entitling them to share. The criticism raises doubt as to the constitutionality of the act if it undertook to divest individuals or the heirs of individuals who were on the final rolls of their shares

21

and suggests that this question be looked into and if it constitutes
a departure from a previous practice that this be pointed out and
commented upon. I do not share the doubt as to the constitutional
power of Congress to disregard the final rolls and direct the divi-
sion of an undistributed tribal fund according to current roll member-
ship. The decisions upholding the power of Congress to change the
method of distribution of tribal property should, however, be cited.
Furthermore, the discussion would appear to be incomplete unless the
rights of members whose names appear on the final roll are analyzed
and discussed.

Not only is the material on this page poorly worded but the para-
graph at the bottom of the page describing the Solicitor's opinion of
April 8, 1937, as dealing with a problem similar to that presented
by the Act of Congress directing distribution of the Creek judgment
on a current membership roll, is incorrect. The Solicitor's opinion
dealt with certain bands of Mission Indians with respect to whom no
legislation providing for final roll had been enacted. In this regard,
the situation of the Mission Indians differs materially from that of
the Creek Nation.

32. Page 37, paragraph 1. The text refers to the Solicitor's opinion of April 8, 1937, holding that individual members of the Mission bands of Indians did not acquire vested rights in tribal property by the enactment of legislation authorizing allotments in severalty/until

22

the lands have been set aside for the individual Indian. The criticism
is that this is a duplication of material appearing at page 7. This
is correct. The criticism further points out that the proposition
asserted has been established by a holding of the United States
District Court in California and is now pending before the Circuit
Court of Appeals, Ninth Circuit, in the case of Genevieve St. Marie et al.
v. United States. I have been informally advised that the Ninth Circuit
Court of Appeals has affirmed the lower court, and that decision
should, of course, be cited and referred to.

33. Page 37(a), paragraph 1. The text states that communal ownership does not prevent a certain class of members from participating only in the distribution of a particular tribal fund and refers to and quoted from the Solicitor's opinion of December 29, 1921. The criticism is that there is a repetition of material appearing at page 19 (correct page is 9), footnote 19. This is correct. The criticism further suggests that the situation discussed is not contrary to or at variance with communal ownership but rather was an attempt to equalize by one payment acreage discrepancies that occurred when the land was allotted and that this point is incidentally involved in United States v. Magnolia Petroleum Co., which has been submitted to the Tenth Circuit Court of Appeals for decision. The situation dealt with in the Solicitor's opinion involved the use of tribal funds supplemented by

a Congressional appropriation in making payments to a number of
Stockbridge and Muncie Indians who had been denied enrollment under
an administrative interpretation of an Act of Congress. They were in
fact members of the tribe and entitled as such to their pro rata
share of the tribal funds. Having been erroneously omitted from
prior distributions, the fund was created to pay their shares. This
is entirely consistent with the idea that communal ownership means
equal participation by all members and does not involve, as the text
would indicate, the use of tribal assets for a particular class of
members to the exclusion of other members equally entitled. The statement
of the text at page 37(a) as well as at page 9 needs revision.

was

The *Magnolia Petroleum Co.* case/MAXBEE decided by the Circuit Court of Appeals, on November 8, 1939, and the Department of Justice has advised that no application for certiorari will be filed. The decision rejected the claim of the United States on behalf of the Choctaw and Chickasaw Nations of title to an abandoned railroad right of way. One argument made by the Government and to which the critic apparently refers was that the allottees were compensated for acreage excepted from their allotments on account of the railroad right of way and to hold they got title to the right of way strip upon abandonment would violate the spirit of equality in value *in making allotments*. The court recognized that equalization in value was the underlying theory of the allotment scheme but held that Congress was free to depart

24

34. I do not agree that the criticism is correct if applied to p. 37 (b). I agree that the tribe with which a treaty is made should always be mentioned, but since the citation here is merely used to negate a general proposition and the reader will not be interested in the particular tribe, it is not correct to say that the reference to this treaty is valueless unless the tribe is mentioned. I do not think the summary of Article 10 of the Treaty can fairly be called a misstatement, although it would be more exact if it referred to "certain other tribal property" instead of "other tribal property.

35. Agree.

36. I agree, except that I would qualify the sentence about the application of the act by adding, after "This is correct", the words, "although the application of the act to these Chippewas was the only question considered in the cited case or the text, and the text does not say, as the criticism might seem to suggest, that the act applied only to the Chippewas."

[ATTACHED P. 25]

in such frequent instances from the plan of equalization in value, and
that it manifestly saw fit to do so for the purpose of avoiding the
evils of title to narrow strips crossing allotments remaining in
the tribe as remote dedicated.

34. Page 37. The criticism is that the material on this page
should indicate the tribe involved to be of value to the reader. The
criticism is incorrect as applied to page 37 and obviously is intended
to refer to page 37(b), the first paragraph of which discusses article
10 of the treaty of October 1, 1859, without mentioning the tribe with
which the treaty was made. This is also true of the paragraph beginning
at the bottom of page 37(b). The criticism is correct. In addition,
the provisions of article 10 of the treaty of 1859 are misstated.

35. Page 37(b), paragraph 2. The text states that sometimes the
act or treaty did not state specifically the proportion each member
would receive but left the distribution to the conscience of the tribe.
The criticism is that such a situation is a rare exception, and sug-
gests if it frequently occurs there should be additional citations of
authority. The text is incorrect. However, I am told
that a large number of citations are collected in section 22 of chapter
15. If so, there should, of course, be a cross-reference to that chapter.

36. Page 39, paragraph 1. The text describes the act of February
15, 1889 (25 Stat. 673), as authorizing the "Chippewas" living on cer-
tain reservations to cut the dead trees and timber on their reserva-

25

tions and keep the money for themselves, and cites *Pine River Logging and Improvement Co. v. United States*, 186 U. S. 279, as interpreting the purpose of the act to be for the benefit of all the Indians who were to share equally; no one group was to cut all the timber. The criticism is that the act of 1889 applies to all tribes and not merely the Chippewas. This is correct. The criticism further states that the statement of the *Pine River Logging Co.* case is inaccurate; that the act of Congress specifically provides that individual Indians would be permitted to and should receive compensation for dead and fallen timber which was cut and marketed by them; that the only reservation was that 10 percent of the proceeds would go to a poor fund for the tribe; and that the case held that a few Indians, without the permission of the Secretary, could not cut and sell all the timber.

The criticism is well taken except that the critic erred in stating that the statutes reserved 10 percent of the proceeds for a poor fund. This reservation was made by regulation and not by statute.

The *Pine River Logging Co.* case was a suit brought by the United States to recover damages for wrongful entry in cutting and removing timber from one of the Chippewa reservations in Minnesota. The defendants had entered into contracts with a few individual Indians under the act of 1889. The contracts provided for the cutting of an aggregate of 2,750,000 feet. Defendants cut and removed 17,000,000 feet. The court held that as to the excess timber both the Indians and the

26

37. I disagree. The original criticism is that the case does not discuss the act cited. This is untrue. The act is discussed at 39 F. 2d 814, and mentioned on other pages of the opinion. Whether the discussion is of sufficient value to warrant the citation is a question on which reasonable men may differ.

I would eliminate the citation, but I would not say that it was entirely "without value", and the statement in the original criticism that the case is not in point is itself not in point, as noted in my December 13 memo.

38. The discussion after the 1st paragraph seems to belong in Exhibit A-2 (Flanery Criticisms). The Osage material should be eliminated in favor of a cross-reference to Chapter 24 (Indians of Oklahoma).

[ATTACHED P. 27]

defendants were trespassers. In so holding the court pointed out
that the design of the act of 1889 was to permit every Indian on the
reservation to engage in the work of cutting dead and down timber
and that no one should obtain more than a fair share of the privilege.
The court further pointed out that the object of certain limitations
in the regulations was to prevent exactly what was done in the case
before the court, i.e., the appropriation to a few Indians of the
benefits of the act to the exclusion of the many. The text is in-
accurate in its statement of the act of Congress as well as its
statement of the interpretation by the court placed on the act.

37. Page 40, paragraph 1. The text refers to the act of March 3, 1905, without citing the volume and page number of the statute, and the footnote says "discussed in Clarke v. Boysen, 39 F. (2d) 800. The criticism is that the case is not in point; that it simply mentioned the act incidentally and does not discuss it. The criticism is correct. The citation is without value.

38. Pages 42-45. These pages are chiefly confined to the act of Congress dealing with the Osage Indians in Oklahoma. The criticism calls attention to this and states that the material deals for the most part with individual rights in restricted Indian funds which the author on page 44 states is not being considered in this chapter. Whether this subject should be discussed here or in the chapter dealing with individual property again is largely a matter of choice.

27

[ATTACHED P. 28]

Footnote 56 page 43 states that the trust period was extended until April 8, 1946, by the Act of March 3, 1921 (41 Stat. 1249) and later until April 8, 1958, by the Act of March 2, 1929 (45 Stat. 1478). The author has overlooked the fact that a further extension to January 1, 1984, was made by the Act of June 24, 1938 (52 Stat. 1034). Footnote 56a, page 43, refers to Choteau v. Commissioner, 38 Fed. 2d 976, in connection with the liability of recipients of Osage income to Federal income taxes. Aside from the fact that this important subject should not be disposed of in a footnote, the author has failed to cite the decision of the United States Supreme Court affirming the decision in 38 Fed 2d in so far as it ratifies held that an Osage having a certificate of competency must pay the tax.

Footnote 57a, page 44, states that the Solicitor for the department in an
opinion dated June 8, 1926, held that the amounts payable quarterly to "non-competents"
or minors are not to be affected by the inheritance of a headright and thus a non-
competent Osage may receive his $1,000 quarterly plus any amount due him as heir
or devisee. The "opinion" of the Solicitor was an informal memorandum containing
the comments of an attorney in reviewing a case. It was not signed by the Solicitor
and has no value as an authority. Besides the statement is misleading. Funds
accrued or accruing to the owner of an Osage headright either in his own right as
or as heir or devisee, where the owner does not have a certificate of competency,
are usually placed to his credit and become part of his surplus funds. Depending
upon certain conditions set up in the Acts of Congress dealing with the Osages, or
the exercise of discretionary authority conferred on the Secretary of the Interior
by such Acts of Congress, the individual Osage may or may not receive inherited
moneys. The use of the word "non-competent" is inept. It would be better to
refer to members of the Tribe not having certificates of competency.

[ATTACHED P. 28]

My criticism is that the discussion of the statutes on these pages
is too meager to afford an intelligent understanding of the situation.
Moreover, much of the discussion is confined to the acts of 1906, 1921
and 1925. The acts of 1912 and 1938 are not mentioned. The act of
1921 is cited in a footnote as extending the trust period. Without
attempting to mention all errors or insufficiency in the statements
appearing on these pages, attention is called to the statement on
page 44 that the individual members of the tribe could not receive a
share of segregated trust funds for a period of 25 years. Section 5
of the act of 1912 authorizes the payment of all or part of these
trust funds to the Indian owner under regulations to be prescribed
by the Secretary of the Interior and many of the Indians have availed
themselves of the privilege. The proposition stated at the bottom
of page 43 is discussed in *Work v. Lynn*, 266 U. S. 161, yet no citation
to this case appears. Notwithstanding the several changes made by the
act of 1925 in the method of distributing Osage income to individual
members, that act is mentioned only for the proposition that the adult
member not having a certificate of competency is placed on the same
footing as the member with a certificate of competency in the matter
of receiving his share of trust funds, royalties, etc. See paragraph
1, page 45. No mention of subsequent amendments affecting this situa-
tion is made and the statement is incorrect anyway. The two classes
of members were not placed on the same footing. The member having a

28

The criticism further states that the statement on page 47 for which
footnote 59 cites an opinion of the Solicitor in 1924 is exactly
contrary to the action which the United States Supreme Court sanctions
in 307 U. S. l.

The statement of the text for which the footnote cites the
Solicitor's opinion is that the Secretary of the Interior cannot
segregate an advance to any individual Chippewa Indian his pro rata
share of the permanent Chippewa fund and that if the Secretary of
the Interior were allowed to do this there is a possibility that
the permanent fund set apart for the benefit of all Chippewas
might be seriously depleted or exhausted. The case in 307 U. S. 1
dealt with the power of Congress to depart from the plan of distribu-
tion and expenditure provided for in the act of 1889 and held that
the act did not tie the hands of Congress so that it could not depart
from the plan. The text deals with the power of the Secretary of
the Interior to depart from the plan, a quite different question. The
case would not, therefore, support the proposition asserted in the text.
The text would nevertheless appear to be insufficient in failing to
point out the distinction between the power of Congress on the one
hand and the power of the Secretary on the other. The Secretary has
only such powers as Congress has conferred upon him either expressly
or by implication, and while, as in the act of 1889, Congress has
prescribed the method of distribution of tribal property, the Secretary

30

40. I agree except for last 6 lines on p. 30 and first on p. 31. This point has been mentioned before and I have noted my feeling that the distinction in question belongs more properly under Chapter 5 rather than Chapter 9.

first sentence

41. I agree except for the second paragraph. The text uses "may" in the sense of possibility rather than permission. If I say that Congress may adjourn early if the weather is hot, it would hardly be fair to say that I am dasting doubts on the constitutional power of Congress to adjourn if the weather is cool.

I also think that to be quite fair it should be noted that the criticism that the author has failed to distinguish between general and special acts cited on page 49 is wholly false. Three acts are cited and excerpts on this page show that two apply to "any Indian" or "any Indian tribe" and the third applies only to the Chippewas of Minnesota.

As for the first sentence, I find that the Dept. of Justice cited was wrong in his assertion that "incapable" should be "relaced" by "capable." I was wrong, in my Dec. 13 memo, in accepting this as an correct statement. The statute really says "incapable" as the text asserts, and that is what it means. It is applied to blind Indians, etc.

[ATTACHED P. 31] OK SCK

'has no authority to depart therefrom. It may be that this subject
is dealt with elsewhere. If so, there should be an appropriate cross-
reference.

Concerning the failure to refer to the applicable court deci-
sions dealing with the act of 1889 this would be a serious defect
if these pages were intended as a final treatment of the Chippewa
situation. Apparently, however, the statutes cited on these pages
are mentioned as exemplifying the statement of the text (page 45)
that the rights of the individual Chippewas to share in tribal property
have been limited by statutes affecting the time and manner of dis-
tribution of tribal funds. I assume, however, that the case referred
to by the critic will be given appropriate treatment in some other
branch of the work in which the historical, legislative and judicial
treatment of the complex Minnesota Chippewa situation will be analyzed
and discussed with appropriate citation to pertinent authorities.
Cross-references should, of course, be made if this assumption be
correct.

41. Page 49. The critic calls attention to a typographical error in stating the act of March 2, 1907, and refers to it as a misstatement of the act. The remainder of the criticism is that the acts of 1918 and 1907 referred to on this page are general Indian legislation; that before and after the discussion of these acts the text deals

31

with Chippewa Indian legislation and that this distinction is not
noted. The critic has apparently failed to notice that the author
on this and many other parts of the work states a general proposition
and then proceeds to refer to both general and special statutes
exemplifying the general proposition.

The text makes the general statement that where there is no
definite policy compelling the keeping of tribal funds intact, Congress
may pass acts authorizing the apportionment or allotment to the individual
of some or all of his share in tribal property. This statement would
indicate that where there is such a definite policy, the hands of
Congress are tied. That the hands of Congress would not be tied is
established by the recent decision of the United States Supreme Court
in *Chippewa Indians v. United States*, 307 U. S. 1. The statement in
the text, therefore, needs revision. The real problem presented is the
effect of general legislation authorizing distribution of tribal prop-
erty on special legislation providing for the distribution of the
property of a particular tribe in a different manner. The general
proposition of the text should be restated and this problem discussed
with appropriate citations to pertinent decisions.

The last paragraph on this page is a repetition of material
appearing at page 48.

42. Page 50, paragraph 1. The text states that under the act
of 1906 an Osage could not receive any part of the principal or the

32

trust fund held by the United States until the expiration of the trust
period but that by section 5 of the act of 1912 it was possible for
the Osage to receive part (the statute says all or part) of the trust
fund from time to time, and cites and quotes from *McCurdy v. United
States*. The criticism is that the text is not borne out by the cita-
tion; that the author has failed to distinguish between the so-called
Osage trust funds and oil and gas royalties accruing from tribal sources
and that here again the distinction between individual rights in tribal
property and restricted individual property rights has not been ob-
served. The latter portion of this criticism appears to be justified.
Certain Osage tribal funds were segregated under the act of 1906 and
placed to the credit of individual members of the tribe in equal shares.
The share of each member amounted to $3,819.76, and this sum was placed
to the credit of the member in the United States Treasury at interest.
This sum became the individual property of the member free from any
tribal claim. The remainder of the criticism is incorrect because
the paragraph in its entirety deals with the segregated trust funds.
The chief difficulty with this statement and similar material appear-
ing on page 43 is that there is no definite description of the
segregated trust funds that will enable the reader to distinguish
between that fund and the funds accruing to the member from the quarterly
distribution of an income from oil and gas royalties, etc. Nor has
the author attempted to describe the right of the Osage Indian to

33

share in tribal property commonly called an Osage headright. This
right has been referred to and discussed in both Federal and State
court decisions.

43. Page 50(b), footnote 681. The criticism is that *McKee v. Henry*, 201 Fed. 74, does not support the proposition for which it is cited. The critic admits the correctness of the proposition and states that there are Supreme Court decisions so holding. The principal criticism is incorrect. That part of the decision in *McKee v. Henry* appearing at page 76 and top of page 77 clearly support the proposition asserted, decisions of United States Supreme Court in support of the statements in the decision being cited.

44. Page 50(e). The criticism which apparently refers to page 50(c) rather than 50(e) states that both acts (act of 1889, dealing with the Chippewas, and the act of 1897, conferring rights to share in tribal property on the issue of marriages between Indian women and white men) have been discussed previously. This is true but the author has again referred to the statutes in presenting a somewhat different question. The criticism is incorrect. However, the statement on this page that if the Chippewa fund be tribal then in order to participate one must be a member in his own right or the issue of a marriage between an Indian woman and a white man whose rights are saved by the act of 1899, is incomplete in failing to mention the rights of former members which were saved by other statutory provisions notwithstanding the fact

34

that they had abandoned their tribal relations and adopted the habits
and customs of civilized life. A similar statement occurs in para-
graph 2, page 50(d). Furthermore, paragraph 2, page 50(d), refers
to the question of whether the fund is tribal or individual and states,
"It means that they will be getting less as their shares and it also
means that people who have tribal blood as their only qualification
will be enjoying the use of proceeds derived from the sale of lands
as heirs of a member who had a vested right." The antecedent of the
word "it" is uncertain. The statement is not supported by any cita-
tion, is not self-supporting, and is ambiguous at best.

45. Page 50(d), lines, 3,4. The statement in the text is that the fund created for the Chippewas under the act of 1889 is a tribal fund. The criticism is that the authorities cited are at best *Of* authorities inasmuch as they hold that determination of the question comes within the jurisdiction of the Secretary of the Interior. This is correct. Furthermore, the case of *Chippewa Indians v. United States*, 307 U. S. 1, decides the question and should be cited in support of the text statement.

46. Page 50(e) (second). The text states that the position has
been taken that all lineal descendants of an ancestor who had been
enrolled may share *aقبة* as soon as the fund was vested in him, and cites
the Solicitor's opinion of June 17, 1924, and *United States ex rel.*

35

<u>Kadrie v. West</u>, 30 F. (2d) 989. The criticism is that the <u>West</u> case was reversed by the United States Supreme Court and that presumably also the Solicitor's opinion is not good law. The criticism is correct. The Solicitor's opinion was overruled by a <u>later opinion</u> of the Solicitor. Besides, the statement of the text is made as of general application whereas the situation is peculiar to the Minnesota Chippewas.

47. Page 51. The criticism that this page contains a repetition of material appearing at pages 8 and 27 is correct.

36

48. I agree with the first two paragraphs, relating to page 53, paragraph 1, which is the paragraph criticized. I do not think that the remaining paragraphs, which (except for a reference to a typographical error in a statutory citation) refer to later text materials belonging in this discussion. What might properly be said, if this material is to be discussed at all here, is that the text statements on Osage headrights contain several errors and exhibit many inadequacies if viewed as ~~an complete statement~~ of the law on Osage headrights, but that the imposition of such a standard would be unjustified since Osage headrights were to receive special treatment in the chapter on Oklahoma Indians, and the discussion of the subject at this point should be entirely eliminated except for illustrative citations and cross references.

Of the errors mentioned, (which, I think, belong in "A-2")

No. 1 is a typographical error which was corrected in the mimeographed copies of the first draft.

No. 2 I can't find.

No. 3 is well taken, - although the text statement criticized is true.

No. 4 O.K. but not essential.

No. 5. O.K. but references to Solicitor's Memoranda are errors in copying - Check List lists these as "Sol. Off. Memos." i.e. informal memos within the Office. Instructions were given to cite these in first drafts not as authorities but as references to be consulted by regiewer and discarded in later drafts.

No. 6 O.K.

ATTACHED P.37]

48. Page 53, paragraph 1. The criticism is that the problem which is demonstrated by this paragraph and which occurs throughout the section entitled "The Transferability of the Right to Share in Tribal Property" and which is not acknowledged is whether or not the Osage headright should be considered in the chapter on individual Indian property. The critic states that the right as such is certainly individual Indian property for it possesses none of the characteristics of the mere right of a member in tribal property; that the case cited in connection with the headright does not bear out the author's position that this is an individual right in tribal property as distinguished from restricted individual Indian property and in any event this distinction and the fusion of these two types of rights should be acknowledged in this chapter.

As to the alleged erroneous citation, the only one appearing on page 53 is *Taylor v. Tayrien*, 51 F. (2d) 884, and it is cited in support of the statement that a provision in the act of 1921 removing restrictions from individual allotments does not affect the nature of the tribal trust existing in the subsurface minerals to give the individual Osage a right to dispose of them. This statement is supported by the case cited. Inasmuch as the question of whether the Osage headright should be discussed in this chapter or in a chapter dealing with individual Indian property appears to be largely a matter

of choice, The criticism of this paragraph would, therefore, appear
to be unjustified on the grounds stated by the critic.

The material appearing on page 53 and succeeding pages, however,
contain many errors of omission and commission in discussing the
right of individual Osages in tribal property. Some of these errors
are so serious as to give strong support to practically all of the
several general grounds of criticism contained in the memorandum of
the Department of Justice. These are:

Paragraph 1, page 53. The act of April 18, 1912, is erroneously
referred to as the act of April 12, 1913.

Page 54 cites section 4 instead of section 3 of the act of 1921
as removing restrictions from allotted lands of adult Osages of less
than one-half blood.

Page 54, footnote 63, cites the Solicitor's memorandum of October
2, 1933, as holding that an Osage may validly assign his right to share
in tribal property commonly called a headright with a power of attorney
coupled with an interest. The Solicitor was overruled by an opinion
of the Attorney General dated October 12, 1933. See Indian Office
file 24536-25, Osage 312. Besides, *Taylor v. Tayrien*, 51 F. (2d) 884,
and *Taylor v. Jones*, 51 F. (2d) 892, and *In re Dennison*, 38 F. (2d)
662, ap. dis. 45 F. (2d) 585, are direct authority to the contrary.

Page 55, line 2. The word "funds" should be preceded by the word
"tribal".

Page 55. The text stated that unless statutes so provide, this right of the individual Osage to share in the tribal income was not an asset to be turned over to a trustee in bankruptcy for the benefit of creditors. In support of this statement the footnote cites as primary authority Solicitor's memos dated May 31, 1929, June 26, 1930, July 8, 1930, and October 2, 1933. Only one of these was signed by the Solicitor -- that dated October 2, 1933 -- and it was overruled by the Attorney General as pointed out above. The remaining memos, none of which was signed by the Solicitor, were wholly informal and were prepared for the information of the Secretary or for use by the First Assistant Solicitor in defending suits which had been brought against the Secretary of the Interior. They have no value as authority for the statements in the text. The footnote also cites *In re Dennison* and *Taylor v. Tayrien*. These two cases along with *Taylor v. Jones*, 51 F. (2d) 892, should be cited as authority for the statement in the text but the text should be extended to distinguish the proposition asserted from that involved in the case of *In re Irwin*, 60 F. (2d) 495, in which it was held that an Osage headright inherited by a white person would pass to a trustee in bankruptcy.

The next statement on page 55 is that the Osage headright is not subject to the claims of creditors of the Indian at his death. The footnote cites a Solicitor's memorandum of July 8, 1930, and *Tapp v. Stuart*, 6 Fed. Supp. 577, The memorandum of July 8, 1930, was not one

signed by the Solicitor but an information statement prepared for
use in defending a lawsuit against the Secretary of the Interior.
It is of no value as an authority. The case of *Tapp v. Stuart* was
reversed by the Tenth Circuit Court of Appeals, 81 F. (2d) 155. The
question of whether an Osage headright is subject to the claims of
creditors cannot be disposed of without analyzing and comparing the
decisions of the Supreme Court of Oklahoma in *Denoya*, 20 Pac. (2d) 563,
and *Tucker v. Brown*, 90 Pac. (2d) 1071, with *Globe Indemnity Co. v.
Bruce*, 81 F. (2d) 183, and *Tapp v. Stuart*, 81 F. (2d) 155. The
Hand Filed
cause on appeal in *Hand v. Brown*, 38 S. D. South Dakota.

The next statement on page 55 is that at the death of an Osage
his income derived from tribal sources is transferred directly to
his heirs or devisees and is not to be paid over to the administrator
or executor. The footnote 66 (b) cites *United States v. Hughes*, 6 Fed.
Supp. 972, in support of this proposition. The decision in *United
States v. Hughes* relates to the taxability of personal property
belonging to Osage Indians including moneys in the hands of executors
and administrators. The decision was by Judge Kennamer and the state-
ments appearing therein which support the text coincide with the views
expressed by the same judge in *Tapp v. Stuart* but which were rejected
by the Court of Appeals in 81 F. (2d) 155. The decision of the Court
of Appeals in that case and in the case of *Globe Indemnity Co. v. Bruce*,
81 F. (2d) 143, are direct authorities against the statement of the
text.
(40)
part 1 of 55 have been struck out for technical reasons.
Hand v. Hughes, 38 S. D. South Dakota.

49. I disagree for reasons stated in Dec. 13 memo. The alleged confusion noted with respect to the last sentence of this section seems to me to disappear if one noted the *paragraph*, referring to "a statute of this type". It is *a type of statute* that is being discussed here, and not the law governing the 5 Civilized Tribes in the year 1939.

I think that the generalization as to "the difficulty which occurs throughout this chapter" is not entirely justified. There is confusion and overgeneralization at some points of the text, but not here, and not "throughout this chapter."

[ATTACHED P. 41]

49. Page 56. The text refers to the provision in the original and supplemental Creek allotment agreements to the effect that where a person whose name appears upon the roll died before receiving his allotment and distributive share of the funds of the tribe, the lands and moneys he would be entitled to if living shall descend to his heirs. The statement is then made that a statute of this kind provides for a change in beneficiaries; that the heir takes direct and stands in the stead of the ancestor; that it is really not a case of descent of property which had lost its tribal status and had become vested in the ancestor before his death; that the heir does not take by inheritance; that where the heir takes direct, State statutes regarding allotments and distribution of assets do not apply and the heir does not have to pay the administrative tax imposed for determination of heirship. In support of these statements footnote 67 cites the Solicitor's opinion of December 29, 1921.

The criticism is that the law has been established to be the direct opposite of the contention, citing *Talley v. Burgess*, 246 U. S. 105; *Harris v. Bell*, 250 Fed. 209, 254 U. S. 103, and cases cited. The following quotation from the decision of the United States Supreme Court in *Harris v. Bell*, 254 U. S. 103, shows that the criticism is correct:

"1. It is urged that the heirs took the lands as allottees and not as heirs of Freeland, - in other words, that they received the lands as a direct allotment to them

and not as an inheritance, - and therefore that such of them as were full-blood Indians were restrained and disabled from disposing of the lands by reason of the restrictions applicable to living allottees of the full-blood. If the premise were right, the conclusion would be unavoidable. See section 19, Act of 1906, *supra*, and section 1, Act of 1908, *supra*. But the premise is not right, as is shown by statutes already mentioned, such as section 28 of the Act of 1901, section 7 of the Act of 1902 and section 5 of the Act of 1906. The allotment was made in virtue of the right of Freeland, who was one of those among whom the tribal property was to be distributed. Under the statutes that right was not extinguished by his death but was preserved for his heirs; and it was preserved for them because they were his heirs, and not because their relation to it was otherwise different from that of other members of the tribe. Such individual claims as they had to the tribal lands were to be satisfied by their individual allotments. What they were to receive in the right of Freeland was the lands and moneys to which 'he would be entitled if living'; and these were to 'descend' to and vest in them as 'his heirs,' as if he had received the same 'during his life.' Putting aside the distinctions between title by purchase and title by descent which prevail in the absence of controlling statutes, and giving effect to the letter and spirit of what Congress has enacted, we think it is manifest that these heirs must be regarded as having received these lands as an inheritance from Freeland, and not as a direct allotment to them. Perryman v. Woodward, 238 U. S. 148, 150; Talley v. Burgess, *supra*.

The last sentence on this page is most confusing. It is attached to a paragraph referring to statutes dealing with the allotments and distributive shares of members of the Creek Nation. The Oklahoma courts exercised jurisdiction in the matter of the determination of heirs of deceased members of the Five Tribes, and no administrative fee is collected by this Department. The Solicitor's opinion of December 29, 1921, dealt with Stockbridge and Munsee Indians and is without application to Indians of the Five Civilized Tribes. The difficulty which

occurs throughout this chapter is that the author has attempted to
evolve general rules applicable to all tribes without acknowledgment
or appreciation of the fact that rules based upon special statutes
applicable only to particular tribes seldom have general application.
The result is that the discussion comingles general and special stat-
utes with citations to decisions of Solicitor's opinion which in many
instances are extremely limited in scope and operation. See in this con-
nection *Genevieve P. St. Marie v. United States*, decided January 3,
in which the Court of Appeals, Ninth Circuit, ruled that the particular
problem before it must be determined by the special Mission Allotment
Act and that the provisions of the general allotment act and decisions
based thereon were not applicable.

50. Page 59, footnote 73. The text refers to the laws of the
Creek Nation and states that provision was made for establishing
under certain conditions more extensive pastures near the frontier
to protect the occupant against influx of stock from adjacent nations,
citing, in footnote 73, *Turner v. United States*, 248 U. S. 354. The
criticism is that the case cited does not support the proposition.
The statement of the text is almost identical with the statement of
fact appearing at page 355 of the case cited. As *the* citation is made
in support of a factual statement, the criticism is not correct.

51. Page 61, line 3. The criticism is that the proposition stated
in the text is contradicted or at least modified by the first paragraph

52. Agree.

53. Agree.

54. References to pp.66-68 should be to pp.64-66. I agree, except that I would substitute for the last three words: "The chief purpose and result of the act in question was to stop the making of allotments. The suggestion has weight if interpreted to refer to assignments of occupancy rights, but the suggestion of the critic that these involve life estates in land is extremely dubious."

55. I have expressed agreement with this criticism previously (Dec. 13 memo) but I now find that this was a product of exhaustion rather than reason. The section has nothing to do with the subject of individual Indian grazing rights but rather with the rights of grazing generally, on ceded Indian lands. It belongs in Chapter 15 and not in Chapter 9. Also reference is made in another part of Chapter 9 (second draft) to individual Indian and pueblo member rights under sec. 3 of the Taylor Act, to graze on lands outside the reservation.

56. Agree in substance.

[ATTACHED P. 44]

on page 64. The text refers to the fact that under the tribal laws (p. 61) improvements passed from father to son and were not subject to sale with the single restriction that they should not be sold to the United States, individual States, or to individual citizens thereof. The statement on page 64 is that the right of occupancy was not descendable; that/the death of the occupant the right of possession reverted to the tribe and became part of the public domain of the tribe. On page 64 the author obviously is dealing with the situation under section 11 of the Curtis Act of 1898 and the text statement is supported by the case of *Woodward v. De Grafenried*, 238 U. S. 284, 292. While the criticism is incorrect, the text would be clarified by referring to section 11 of the Curtis Act.

52. Page 63, line 3. The criticism is that the Curtis Act which the text refers to as "relating to the Creeks" is not confined to the Creeks alone. This is correct.

53. Pages 57-64. The criticism is that the discussion on these pages deals with Oklahoma Indians save with two minor exceptions, — Pueblos and the Stockbridge and Munsee Indians — and that this either should be acknowledged or it should be demonstrated that the proposition is applicable to all Indians. The criticism is correct.

54. Pages 66-68. These pages discuss certain provisions of the Indian Reorganization Act which are aimed at the preservation and

43

44

maintenance of communal ownership of tribal property. The criticism
is that the Indian Reorganization Act provides one of the most novel
applications of the question of individual rights in tribal property
which is a current problem, that is, a new system of "allotments" where
the individual has a life estate in tribal lands with preferential
right to the same lands in his heirs, and suggests that this problem
warrants more complete treatment. This is a suggestion for improve-
ment of the text rather than a criticism and appears to be correct
save that the critic's use of the word "allotments" is inept. He means
"assignments".

55. Pages 68-72. This is a suggestion that section 11 of the Taylor Grazing Act which deals with ceded Indian lands be set out some- where in this section. Compliance with the suggestion would improve the text.

56. General. The criticism states that no mention is made of the
customary provision included in treaties whereby a system was set up
so that individual Indians could acquire a recognized possessory right
to a tract of tribal property; that this right was subsequently recognized
in the various allotment acts by giving a preference right to an Indian
occupying a particular tract of land; that Congress by legislation (cit-
ing 25 U. S. C. 345, 346) provided a method whereby Indians could
resort to the Federal courts to establish this type of right and that

there is a considerable body of law dealing with this proposition.
The criticism further suggests that there is a considerable body of
departmental rules and regulations which were promulgated to aid in
the administration of the problems dealt with in this chapter and that
some mention should be made of these rules and regulations.

The latter suggestion is well made and compliance therewith would
improve the text. The statement that the text does not discuss the
possessory right given to occupants of Indian tribal land is incorrect.
This is discussed in the section dealing with improvements. See par-
ticularly page 76. Sections 345 and 346, United States Code, provide
for suits in Federal courts by Indians claiming to be entitled to allot-
ments of land and there is a considerable body of law dealing with this
subject. However, I assume that this subject will be dealt with in
another chapter. If so, there should be an appropriate cross-reference.

p. 1

1. I do not agree with this particular criticism, although I do agree that the language is neither clear nor concise. "The nature of the tribal property" is used to cover not only the nature of the estate in land but the matter of set-offs, the quantity of the property, etc., all of which affect the individual's rights, just as the character of the corporate property affects the value of a share of stock.

2. Agree.

3. Agree. [Signature] May 4, 1938

Sol. Op. May 22, 1938

CHAPTER 9

INDIVIDUAL RIGHTS IN TRIBAL PROPERTY

¶ 1, p. 1. - The first paragraph and first sentence of paragraph 2 are unclear. The first paragraph states that as the rights of the individual Indian to share in tribal property are necessarily limited by the nature of the "tribal property" it is necessary to discuss what characteristics of "tribal property affect him." The first sentence of the second paragraph states that the individual Indian is affected by the nature of the tribal "title." These statements are confusing. I assume that what is intended is that the right of the individual Indian in tribal property depends upon the nature of the tribal title. If so, a statement to that effect should be substituted for the first sentence of the second paragraph and the first paragraph could be eliminated in toto.

Par. 2, p. 1, pars. 2 and 3. - These paragraphs contain repetitious statements. The third paragraph should be eliminated.

Par. 3, p. 2, par. 1. - This paragraph states that the individual's rights in tribal property are affected by any set-offs or claims against the tribe because the amount of the share that he would otherwise be entitled to is decreased. The statement is a self-evident truth, but *United States v. Old Settlers*, cited in the footnote as authority therefor, does not appear to support it. That

p. 3

4. I think *In re Irwin* gives support to the text statement, and I don't see any conflict between the text statement and pages 7-8. I agree with Fleming. *Mclntyre v. U.S.* 215 U.S. 56, does not support the text. It should, however, be cited as a *C.J. Case*.

5. I agree that the text statement needs qualification, but call attention to the words of the Supreme Court ("has frequently been referred to as being held in trust") confirming the text statement ("The general statement is ...")

case dealt with the claim of a group of Indians known as the Old
Settlers against the United States. Concerning them the Supreme
Court said:

"They are not a governmental body politic nor have they a corporate existence nor any capacity to act collectively. The money belongs to them as individual members of an Indian community, recognized as such by the Treaty of 1846, and treated as separate and distinct from the Cherokee Nation, so far as necessary to enable the Government to accord them their treaty rights."

<u>Footnote 4, p. 2</u> cites the Solicitor's opinion of May 22, 1935, for a similar statement in the text. That opinion merely holds that subsequent to enactment of the Indian Reorganization Act no authority exists for patenting to individual Indians lots in the village of Taholah on the Quinaielt Reservation in Washington. The opinion is not in point.

In re 4, p. 3, par. 2. - The statement is made that the individual
Indian in virtue of his membership in the community has an equitable
interest in the tribal property. The case of *In re Irwin*, 60 Fed. (2d)
495, is questionable authority for this statement, inasmuch as that
case dealt with an Osage headright granted under special legislation
applicable only to the Osage Indians. See comment No. 4, *page 5*;
A-1,
this Exhibit, In the case of *Choate v. Trapp*, the United States
Supreme Court pointed out that while the individual Indian had no
 authority or enforceable right in the tribal property, yet as one
of those entitled to occupy the land he would have an equitable in-

48

terest which Congress recognized in the allotment agreement and which
it desired to have satisfied and extinguished. In order to avoid
conflict with material appearing on pages 7 and 8 of the text, the
statement on page 3 should be enlarged to conform to the actual
statement made to the court. The case of Fleming v. McCurtain, 215
U. S. 57, hardly can be said to support the text statement. It held
that a treaty with the Choctaw Nation did not grant a trust for the
individuals then members of the Nation and their respective descendants
in whom as tenants in common the legal title would merge with the
equitable title on dissolution of the Nation.

Per. 5, p. 3, par. 2. - According to the text "the general statement is that where the tribe had legal title to its property it held it in trust for its members." Footnote 7 cites Ligon v. Johnston, 164 Fed. 670; Cherokee Nation v. Hitchcock, 187 U. S. 204; Stevens v. Cherokee Nation, 174 U. S. 445. That this statement is misleading is shown by the following language in the Ligon case (p. 672):

* * * Complainants contend that the language of the treaty of 1830 and the grant of 1842 to the Choctaw Nation "in fee simple to them and their descendants to inure to them while they shall exist as a nation and live" on the lands granted is exceptional, and is distinguishable from that employed in other treaties and grants to other Indian tribes, often held by the courts as conveying title to the tribes and not to the individual members thereof. We do not think the contentions can be sustained. We find nothing in the history of the Choctaws, their relations to the government and the negotiations leading to their removal west of the Mississippi river, that would afford a reason for such a radical departure from the course pursued with other tribes under like circumstances, nor

3

P. 5

6. The Fitzgerald case is, of course, an erroneous citation, and this is noted at two other points. The Shulthis citation should be to the C.C.A. decision in 170 Fed., and with this correction (elsewhere noted) the citation appears to be proper. I agree that the limitation of the text statement to the 5 Civ. Tribes would be proper, on the basis of the authorities cited.

7. I agree that the phrase "about an undivided interest" is misleading, because it is used sometimes in the proper technical sense to indicate a tenancy in common and sometimes in a looser sense to apply to tribal ownership. If this phrase is eliminated, the citations support the text sentence (except for the one garbled citation).

do we think the words of the treaty and the grant in question are so dissimilar from those employed in other cases as to indicate a different purpose. That the lands involved were public lands belonging to the Choctaw and Chickasaw Nations and not to the individual members has been assumed without contradiction from the inception of their titles through a long sequence of acts of Congress and treaties and agreements with the tribes. True, as contended, the title so held has frequently been referred to as being held in trust for the members of the tribes, but it is so only in the broad, comprehensive sense in which the public property of any representative government is in trust for the welfare of its people. Until specific, private, individual rights attach pursuant to law, the enforcement of such trusts must be at the bar of public conscience. They are not justiciable in the courts. The disposition of the tribal property of the Indian tribes falls within the legislative domain, the power of Congress is supreme, and its action is conclusive upon the courts.
<u>Cherokee Nation v. Hitchcock</u>, 187 U. S. 295, 23 Sup. Ct. 115, 47 L. Ed. 183; <u>Lone Wolf v. Hitchcock</u>, 187 U. S. 553, 23 Sup. Ct. 216, 47 L. Ed. 299.

Par. 6, p. 4, par. 1. - The text states that the principle upon which conveyances of land to Indian tribes were made is that tribal property should be held in common for the benefit of the Indian community as a whole. One of the cases cited in footnote 8 is <u>United States v. Fitzgerald</u>, 201 Fed. 295. That case dealt with the recovery of sacks of wool stolen from an individual Indian and is not in point. Another case cited in support of the text statement is <u>Schulthis v. McDougal</u>, 225 U. S. 561. That decision merely dismissed an appeal on jurisdictional grounds and contains nothing to support the text statement. The remaining case, <u>Woodward v. de Graffenried</u>, 238 U. S. 284, deals only with the Five Civilized Tribes,

50

and statements made in the course of the decision at pages 293 and 305 lend some support to the text statement in so far as the Five Civilized Tribes are concerned. *Ligon v. Johnston* is better authority for the text statement.

*Par. 7, p. 4, par. 1.* - The statement of the text is that treaties often provide that the land conveyed to the tribe was to be held in common and that each and every member was to have an undivided interest in the whole. The footnotes cite the Treaty of June 17, 1837, 7 Stat. 605; Treaty of June 22, 1855, 11 Stat. 611; Treaty of August 6, 1846, 9 Stat. 871, discussed in Cherokee Trust Funds, 117 U. S. 288, and United States v. Cherokee Nation, 202 U. S. 101; Treaty of 1868, 15 Stat. 649; Treaty of April 28, 1866, 14 Stat. 769, Article 33. The Treaty of June 17, 1837, is not found at page 605 nor at any other page of 7 Stat. The Treaty of June 22, 1855, 11 Stat. 611, contains a provision supporting the text, but in view of the holding in Fleming v. McCurtain, 215 U. S. 56 (see comment No. 4 above), the statement indicating that each and every member was to have an undivided interest in the whole is apt to prove misleading. The Treaty of 1846 supports the text statement that the lands were to be held in common but it contains nothing to the effect that each member would have an undivided interest in the whole. The Treaties of 1866 and 1868 do not provide that each member shall have an undivided interest in the tribal property. The Treaty of 1866 contains extensive provisions for allotments in

p. 6

8. While I agree that the case is not perfectly clear on the point there is some basis for the text statement in the discussion of Indian title as related to "their habits and modes of life" (pp. 745-746) and the theory stressed at various points in the opinion that Indian laws and customs continued in force until altered by the conqueror.

9. Reference to "Memo. Sol." should be to "Memo. Sol. Off." as "Check List" shows. The use of this material has been discussed above.

10. Agree as to typographical error which was corrected in carbon sent to mimeographer. The act is cited as an example of a type of statute, not as a description of a present law, so later amendments are not pertinent at this point.

severalty and Article 33 relates to such allotments. In Franklin v. Lynd, 233 U. S. 269, 271, the Supreme Court pointed out that the individual members had "neither an undivided interest in the tribal land nor vendible interest in any particular tract." The statement in the text is inaccurate, misleading and in conflict with material appearing on pages 7 and 8.

Par. 8, p. 5, 1st sentence par. 1. - Mitchell v. United States, 9 Pet. 711, supports the view that the tribal property is held for the common benefit of all but the case is no authority for the statement that Indian tribal laws and customs foster that theory.

Par. 9, p. 7. - Footnotes 15(a) and 15(e) cite a memorandum of the Solicitor dated July 8, 1930. This memorandum was not signed by the Solicitor but is an informal statement prepared for use in defending a lawsuit against the Secretary of the Interior. It has no value as an authority.

Par. 10, p. 8, par. 1, second sentence. - The act of June 28, 1898, is erroneously referred to as the act of June 28, 1892. The text states that the mineral deposits were reserved "below the surface of the lands allotted" by the act. As a matter of fact, subsequent allotment agreements negotiated with the tribes did not reserve the minerals save as to the Choctaw and Chickasaw Nations, and there the mineral reservations extended only to coal and asphalt.

Par. 11, p. 8. - Footnote 18 cites Dukes v. Goodall, 5 Ind. Ter.

p. 7

11. Agree.

12. O.K.

13. I do not think the case is cited in support of the general proposition that judgment proceeds are distributed to members of the tribe. That is rather simply a concise classification of the case, which is cited in support of the text sentence, that individual Indians may have an interest in proceeds of tribal property, etc.. I think, therefore, that the case is properly cited, but it might be more precisely described.

14. I agree, but a suggestion for condensation might well be distinguished from a criticism. The text statement is true, and to those not expert in the field it os of interest. Your feeling and mine that this sentence should be deleted is largely a matter of taste.

145, in support of the statement that individual members of the
tribe have no vested rights so as to maintain an action to protest
the admission of others to citizenship which would increase the
number of distributees and lessen the individual shares of the mem-
bers. The decision of the United States Supreme Court in *Gritts v. Fisher*, 224 U. S. 640, is final authority on this point.

*Par. 13, p. 10, footnote 25.* - The case of *Tapp v. Stuart*, 6 Fed. Supp. 577 (9 Fed. Supp. 23) was reversed in 81 Fed. (2d) 155.

*Par. 13, p. 10.* - Footnote 25 cites *Eastern Cherokee v. United States*, 225 U. S. 572, in support of the statement that proceeds received in payment of the judgment rendered in favor of the tribe is distributed among the members of the tribe. The statement is generally true but the case cited does not support it. A judgment had been rendered in favor of the Cherokee Nation on one item with respect to which the Eastern Cherokees, as distinguished from the Cherokee Nation, was the beneficiary. The court held that the Nation was the titular claimant authorized to prosecute the item to recovery, although it was for the ultimate benefit of the Eastern Cherokees; also that the attorneys for the Cherokee Nation were entitled to fees on the entire amount recovered, both for the Nation and for the Eastern Cherokees.

*Par. 14, p. 11, par. 2.* - The statement is made without citation of authority that to the extent that tribal property is not taxable

53-7

15. I agree that the material can be condensed and rearranged to advantage. This was done some weeks ago, along rather different lines than you have suggested.

16. O.K. This typographical error was corrected in the carbon sent to the mimerographer.

17. Check. 195 Fed. 707

Agree.

by the State, the value of the share of the individual is enhanced.
The truth of this statement is obvious but it is of no particular
value in the handbook of Indian Law.

Per. 15, pp. 1-12. - These pages constitute a section headed "Extent of Individual Rights is Limited by the Nature of Tribal Property." It is suggested that a more appropriate heading would be "The Extent of Individual Rights Depends upon the Nature of the Tribal Title." The suggestion is made for the reason that the major portion of the discussion on these pages is devoted to communal ownership of tribal property and its incidence, particularly the rights of the individual in communal property. Eliminating repetitious and conflicting statements, the material on these pages could appreciably be shortened.

Per. 16, p. 12, footnote 28. - The case of LaRoque v. United States is found in 239 U. S. instead of 237 U. S.

Per. 17, p. 16. - Footnote 33 cites United States v. Jacobs, 195 Fed. 707, for the statement that the rights of freedmen who had been resided but had left were subject to the qualification that they had to resume their residence within six months after the effective date of the treaty. The Jacobs case was a suit by the United States to cancel an allotment and patent made to the heirs of a Creek freedman. It contains nothing to support the text statement.

p. 9

18. O.K.

19. I disagree. The citation is given as a dictum case ("See also"). As such it is correctly cited. To the comment "This is typical of numerous citations in this work", the writer of the draft might appropriately reply, "This is typical of numerous criticisms of this work."

20. This comment assumes that the purpose of the text is to analyze the problem of rights of freedmen. That is not the intent. These situations are cited as examples of the general proposition that Congress may bestow interests in tribal property upon persons not theretofore members of the tribe. The status of freedmen is discussed in Chapters 8 and 24. My own criticism here was that too much, rather than too little, was said on the subject at this point. Most of this material was deleted.

21. O.K., but see note 14, above.

Par. 18, p. 16. - The cases of Lowe v. Fisher and Cherokee Nation v. Whitmire are found in 223 U. S. instead of 233 U. S.

Par. 19, p. 16.- Footnote 34 cites Goat v. United States, 224 U. S. 458, as construing the Treaty of 1866 to give freedmen residing in Seminole territory rights of membership and the same rights in tribal property as native Seminoles. The court merely made a statement to this effect in the course of its decision on the question of the rights of Seminole freedmen to convey the lands allotted to them in severalty. This is typical of numerous citations in this work.

Par. 20, pp. 15 and 16. - These pages which discuss the rights of freedmen to share in tribal property deal with the problem peculiar to the Five Civilized Tribes. The situation does not obtain elsewhere and material on these pages gives no adequate picture of the problem concerning the rights of the freedmen to share in the tribal property of these slave-holding tribes. The freedmen were not Indians by blood and they became members or citizens by adoption. It is of interest to note that while the Creek, Cherokee and Seminoles did adopt their freedmen, the Choctaws and Chickasaws did not. These Choctaw and Chickasaw freedmen therefore did not become members or citizens of the tribes, although they did receive land allotments. See United States v. Choctaw and Chickasaw Nation, 193 U. S. 155; section 3, Choctaw and Chickasaw Supplemental Allotment Agreement, 32 Stat. 641.

Par. 21, p. 19. - The paragraph beginning at the bottom of this

55

9

p. 10

22. Agree, but this is hardly a criticism.

23. I don't think either the present footnote or the suggested alternative or the statute in question deserves to be included in this chapter, in view of the fact that citizenship is discussed in Chapter 8 at some length.

24. O.K. This typog. error was corrected in the carbon sent to the mineographer.

25. O.K. This error of citation is a typographical error which was corrected in the carbon sent to the mineographer.

page states that the question of whether new members should share
in the distribution of tribal assets is important not only from the
viewpoint of the individual claimant but also from the viewpoint of
those eligible to share "for the greater the number of distributees
the less the share of each is." The truth of this statement is self-
evident but it has little value in a work of this kind.

Par. 22, p. 20-22. - These pages contain a sketchy outline of
the problem arising out of the claims of the Mississippi Choctaws to
enroll with the Choctaw Nation in Oklahoma. These problems are
7 peculiar to the Choctaw Nation and should be covered in a separate
chapter dealing with the Five Civilized Tribes.

Par. 23, p. 24, par. 3. - The text refers to the act of June 2,
1924, conferring citizenship on Indians with the proviso that such
citizenship shall not impair or affect the right of the Indian to
tribal or other property. Footnote 37(a) states that this act is
discussed in Mason v. Sams, 5 Fed. (2d) 255. It would be more ap-
propriate for the footnote to point out that the court in the Sams
case ruled that the proviso preserved the fishing rights conferred
on Indians by treaty provisions.

Par. 24, p. 24, par. 3. - The act of March 3, 1875, 18 Stat.
402, 420, is erroneously identified as the act of March 13, 1875,
18 Stat. 402.

Par. 25, p. 25, par. 3. - Reynolds v. United States is found

56

in 205 Fed. instead of 305. The text discussion of this case is
incomplete in failing to show that the right of the Indian to share
in tribal property was recognized in virtue of saving clauses con-
tained in Congressional enactments. The case was decided in the
case of *Oakes v. United States*, 172 Fed. 305.

Par. 26, p. 27. - This paragraph contains a repetition of
material appearing at pages 7 and 8.

Par. 27, p. 29. - The text refers to the act of June 7, 1897, saving the rights of children born to a marriage between an Indian woman and a white man, and footnote 46 states that the act was applied in *Stookey v. Wilbur*, 58 Fed. (2d) 522. This is incorrect. The court in that case merely referred to the action of the Secretary of the Interior in invoking the act of 1897. What the case decided was that mandamus would not issue to compel the Secretary of the Interior to restore certain names to the tribal roll. Several cases, including one by the United States Supreme Court, in which the act was applied, are collected under section 184, Title 25, U. S. C. A.

Par. 28, p. 30, par. 3. - This is part of the quotation from
the *Halbert* case, and should be so indicated.

Par. 29, pp. 31-32. - These pages refer to the act of March 1,
1901, as amended by the act of June 30, 1902, as providing for the
distribution of "Creek funds." These acts are commonly known as
the original and supplemental Creek allotment agreements and provide

52

30. I do not consider this a valid criticism. The Osage statute is cited merely as illustrative material and not with a view to presenting a complete summary of the law on Osage enrollments, which is a matter that belongs under Chapter 24.

31. It is true that most of the cases cited show equal distribution, but this is not in-consistent with the text statement that equal distribution is not necessary in all cases. The case cited shows an equal distribution of a given fund to make up a past inequality. I think that it supports the text, but the text sentence should read, "Certain classes of members may receive more tribal property at given times than others."

32. Agree. First five citations in fn. 50e should read Sol. Off. Memo, May 31, 1929; Sol. Off. Memo., Jan. 30, 1938;

" " " , March 10, 1931;

" " " , July 8, 1930. The reason for citing such informal memos in a "first draft" has been stated before. The errors in designating these memos are errors which may be corrected by reference to the Check List of Interior Decisions, which had not been prepared when this draft was written.

for the distribution of both lands and funds among the enrolled
members of the tribe.

P. 30, pp. 32-33. - These pages refer to the provision in the
Osage Allotment Act of 1906, concerning the preparation of a member-
ship roll. This provision of laws was discussed and construed in
Ickes v. Pattison, 80 Fed. (2d) 708, and Jump v. Ellis, 100 Fed. (2d)
130, but no mention of either of these cases is made.

P. 31, p. 34, par. 2. - The statement is made that it is not
necessary that all members of the tribe share equally in the distri-
bution of tribal assets, and that different classes of members may
receive of certain funds and at different times than others. Many
of the examples given on succeeding pages show that equal distri-
bution is the usual rule. See paragraph 1, page 34(b) and the
several paragraphs on pages 35 and 36. The illustration made in
the first paragraph, page 37(a), is an illustration of equal dis-
tribution rather than unequal distribution because the fund there
referred to was created for the purpose of equalizing the shares
of members who had been erroneously omitted from prior distributions.

Par. 32, p. 35. - Footnotes 50(d) and (e) cite seven Solicitor's
memoranda and opinions. Only two of these, dated April 23, 1936, and
March 25, 1939, are signed by the Solicitor, and one of these merely
made administrative suggestions without deciding anything. The re-
maining five were informal memoranda and have no value as authorities.

58

33. Agree. Typographical error noted in first sentence was corrected in memographed copy.

34. Agree, except that I think "badly misstates" is stronger language than the inaccuracy at this point warrants. This material belongs in Chapter 15 rather than Chapter 9.

35. Agree, but note that this statute is cited as illustrating a method of dealing with tribal funds and it is not attempted at this point to describe whole Minnesota Chippewa fund situation.

Per. 33, p. 37. - The word "require" in the fourth line of paragraph 1 should be changed to "acquire." The word "causing" in the fifth line of paragraph 1 should be changed to "authorizing."

Par. 34, p. 39, par. 2. - This paragraph badly misstates the question and holding in the Solicitor's opinion of February 19, 1938. The question was raised, the text states, whether the member of a certain band was to share in the proceeds derived from the sale of only his band's lands and whether under section 3 of the Indian Reorganization Act, where funds were converted into lands, members of each tribe were to share only in proportion to the lands originally ceded by them. It is then stated that the opinion held otherwise, ruling to the effect that the equitable and also the most practical rule would be for all members to share equally regardless of the amount ceded by his tribe. The question considered in the Solicitor's opinion was whether the remaining undisposed of lands ceded by the Red Lake Band of Chippewa Indians under the act of January 14, 1889, should be restored under section 3 of the act of June 18, 1934, to the Red Lake Band or the Minnesota Chippewa Tribe. The opinion held that the restoration should be made to the Chippewa Indians of Minnesota, which group includes the Red Lake Band and all other Chippewas in Minnesota.

Per. 35, p. 40, par. 1. - This paragraph also refers to an opinion of the Solicitor dealing with the distribution of interest

annuities. Other opinions of the Solicitor deal with this subject.

The case of *Wilbur v. United States*, 281 U. S. 206, is not mentioned, although it has an important bearing on the subject. The paragraph refers to a provision in the act of 1889, for annual payment of one-half of the interest in equal shares to the heads of families and guardians of orphan minors, and one-fourth of the interest in equal shares to all other eligibles. It is then stated that this is an illustration of different classes of members sharing differently, although all within a class share alike. The author *evidently* overestimates the fact that it was early ruled administratively that these provisions in the act of 1889 meant that three-fourths of the interests should be paid annually to the Indians in equal shares per capita, and that all payments up to the present time have been made in conformity with that construction. See *Wilbur v. United States*, *supra*, at pages 211, 212.

*Par. 36.* - The paragraphs on pages 39 and 40 give no adequate picture of the complicated situation which exists with respect to the Minnesota Chippewas, nor of the complex problems peculiar to these particular Indians, many of which have been the subject to decisions in the Federal courts, including the United States Supreme Court.

*Par. 37, p. 37(a).* - The paragraph beginning at the bottom of this page and extending over on page 37(b) contains an obvious truth.

38. Agree.

39. I agree that the case is not in point. It does contain a dictum to the effect that the remainder over $1000 was to remain in the hands of the Secretary. The comment should recognize this.

40. O.K. This typographical error was caught in the mimeographing.

41. Agree.

42. Agree, but would add: These clerical errors on the original were corrected in the carbon sent to the mimeographer.

43. See 10 supra.

No citation of authority is made and the statement is of little value.
A similar statement, also without the citation, appears at page 40.

*Par. 38, p. 50(b), par. 2.* - This paragraph contains a duplication of material appearing at page 37.

*Par. 39, p. 44.* - Footnote 58 cites *United States v. Mullendore*, 74 Fed. (2d) 286, in support of the statement that the funds of Osage Indians over and above their quarterly amounts were to be reinvested and placed to the individual's credit. The case involved a claim for damages arising out of the use by the defendants of individual Osage lands for grazing purposes and is not in point.

*Par. 40, p. 50(b).* - The date of the treaty last mentioned in footnote 68(a) is August 7 instead of August 15, 1856.

*Par. 41, p. 50(b), par. 1.* - The ruling in *Fleming v. McCurtain* is misstated. The text states that the court held that the title was in the tribe in trust for its members. The court held that the Treaty of 1830 did not create a trust for the individuals then comprising the Nation and their descendants.

*Par. 42, p. 59.* - The passage from *Bell v. Atlantic & P. R. Co.* is incorrectly quoted. The citation is incomplete. The case is found in 63 Fed. p. 417.

*Par. 43, p. 63.* - The Curtis Act of June 28, 1898, is again referred to as providing for the allotment of surface rights. This is misleading unless the subsequent allotment agreements which pro-

1. I agree, in general, but would not agree that the Cornplanter - Washington exchange is of merely historic interest and of no legal importance. I consider this historic incident of legal importance because it shows, more graphically than could be said in abstract terms:

(a) That Federal education of Indians had its basis in Indian desire to learn the essentials of civilized life, rather than in any coercion by the Federal Government.

(b) That no essential distinction was drawn between the education of children and the education of adults; the needs of both were asserted.

(c) That education of individual Indians was a matter of concern to the Indian tribe, in its dealings with the Federal Government.

(d) That the first constitutional method of arranging for Indian education was by treaty.

I think it worth noting the significance of this apparently trivial matter because I have been informed that the use of this quotation from an Indian chief was the "last straw" leading to the termination of the Handbook project by the Department of Justice.

As for the criticism that the chapter could be compressed into 3 pages (presumably of the same length as the original pages), I should say that while a 3-page essay on the subject could be written it would not be possible to give a fair picture of the services which have been and are rendered by the Federal Government to the Indians in the field of education, the grounds

upon which such services are authorized, and the
limits of such authorization, together with a
statement of the legal problems raised thereby,
in three pages, as the critic suggests. Actually,
I think this material is very concisely written.

2. Elsewhere discussed.

(a) Agree.

(b) Agree.

(c) I agree, but suggest adding the words "instead of ____ v. Leuff, 210 U.S. 80" in order to make clear to a hasty reader that what is involved here is a typographical error rather than a disagreement on the propriety of a citation.

(d) I disagree. The citation would not be of value in a final draft, but is of value in a first draft, since it indicates to the reviewer that the rule laid down in 1908 in this case was still considered good law by the Solicitor 25 years later (1933).

(e) I disagree (a) because part of my instructions at the Department of Justice was not to write about claims, and the distinction mentioned seems to be of importance only in claims cases and in the sectarian school question, which is separately discussed at pp. 16-17; and (b) because the statement that the first 8 pages fail to differentiate between gratuity and treaty expenditures is not justified, in view of the fact that this distinction is made explicit at p. 3 of the text, where the amount taken from treaty funds is compared with the amount furnished by the U.S., and the distinction is implicitly made at pp. 1 and 2 also.

4. Agree, but would add: "A reference to *In re Can-ah-con-qua*, 29 Fed. 687 was accident-ally omitted in the original copy of this draft. It was included in the carbon from which the mimeographed copy was made.

5. I disagree. The criticism is based upon, and the comment lends dignity to, a misunderstanding of the point made in the last two sentences of the footnote. The case is cited as a "contrast" case to show that outside of the Indian situation discussed the claim of parents to the custody of children is highly regarded by the courts, even where the parent is not morally perfect and has voluntarily surrendered custody. The case is strong authority for this point (a) because the case is recent, (b) because the second highest Federal Court decided it, and (c) because it was an extreme case. It is quite true that additional and stronger authorities might be found, but I don't think the point, being merely tangential, is worth the time that intensive research would take. The mention of this contrast was intended to be suggestive rather than exhaustive.

6. I agree, up to the phrase, "The discussion of this question is nevertheless defective."

(1) I think that the question in the case is fairly and aptly stated, though perhaps not clearly and artistically stated. (2) It is true that the clauses discussed in the Quick Bear case are not separately cited, as they should be. (3) It is also true that the later statutes on the subject (which were not in the file when this draft was prepared) should be cited and discussed in the final draft. (4) I would substitute for the general phrase "is nevertheless defective" the more specific language, "contains *tqw* errors of omission, one a matter of citing the statutory language which was construed in the case discussed, the other relating to later legislation on the subject, which ought to be set forth and discussed in this section."

EXHIBIT B

Part of Chapter 12, Indian Education.
(17 pages)

The critic states:

1. That, laying aside the propriety of the introductory quotation from Cornplanter with George Washington, all the material submitted could be disposed of in not more than three pages;

2. That, in addition to Example No. 2, which is alleged to support most of the general grounds of criticism, other examples may be found throughout the chapter;

3. That, on pages 27-28 (correct pages are 13-14), there is described as the court's ruling in *In re Lelah-puc-Ka-chee*, 98 Fed. 429, 434, certain dicta found in the case relating to the power of the Indian superintendent whereas the holding of the case simply was that the husband of the child involved had no right to a writ of habeas corpus;

4. That, reference is made to an *Alaskan* case (p.4), without citation;

5. That, *Sards v. Villapiano*, 81 F. (2d) 255, which held merely that an adulterous mother was, because of extenuating circumstances, entitled to the custody of her child as against the child's paternal grandfather, is weak authority for the point to which it is cited;

6. That the author undertakes to discuss (pp. 16-17) on authority of one case, the "Use of Funds for Indian Education" and completely

ignores a large group of cases in which the precise question was
involved. (See 66 C. Cls. 308; 81 C. Cls. 101; 84 C. Cls. 16; 87 C. Cls.
91.)

Comments on the foregoing criticisms:

1. The conversation between Cornplanter and George Washington, while of little use in so far as the legal problems arising in Indian education are concerned, is of some historic interest. The suggestion that the material submitted on these 17 pages could be reduced to three pages perhaps is induced by the fact that a good deal of the discussion, particularly pages 1 to 8 inclusive, deals with matters of governmental policy rather than legal problems. However, as the author points out on page 8, certain legal problems have arisen out of "these varying Government policies" so that a brief reference to such policies prior to discussion of the legal problems would not seem to be inappropriate.

2. Example No. 2 is fully discussed at pages ___ of the memorandum to which this exhibit is attached.

3. The criticism is incorrect. It is true that the main point decided by the court was that the petitioner who claimed to be the husband of the child was not entitled to the writ. But the Indian agent and the superintendent of the Indian school were parties to the proceeding and one of the questions raised related to the authority of these officials to compel Indian children to attend school off the reservation. On this

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point the court ruled that under the act of March 2, 1895 (28 Stat. 906), the Indian officials not only lacked the power to compel children to attend school by force, but that the consent of the parents or next of kin of such children is required to authorize their removal thereto. The petition of the alleged husband was denied largely on the ground that the wife had a right to remain at school or leave at her own election.

The text is, however, defective on other grounds. Footnote 27 (p. 13) is misplaced or the statement for which it is cited should be revised to show that it refers to a court case arising in Iowa. Otherwise, the citation seems to be in support of a statement that two Indians got married while one was attending a Federal school in Iowa. Furthermore, these pages (13-15), which deal with compulsory attendance, purport to show that efforts by Government officials to compel school attendance by Indians is illegal in the absence of Congressional provision therefor. The test is decidedly inadequate in failing to go on to show that compulsory school attendance has in fact been authorized by Congress. See sections 282 and 284, Title 25, U. S. C., by which the Commissioner of Indian Affairs and the Secretary of the Interior are authorized to make and enforce by proper means such rules and regulations as will secure the attendance of Indian children of suitable age and health at schools established and maintained for their

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benefit; see also the act of February 15, 1929 (45 Stat. 1185), authorizing State agents and employees, under regulations to be prescribed by the Secretary of the Interior, to enter Indian reservations for the purpose, among others, of enforcing compulsory school attendance of Indian pupils, as provided by the laws of the State. A measure designed to coerce school attendance by Indians is also contained in the act of March 3, 1893 (27 Stat. 628).

4. The criticism is correct.

5. The criticism is correct. No question of compulsory school attendance or the right of a parent to take his child from school was involved. A statement of the critic as to the holding of the case is correct.

6. The criticism is incorrect. Dictum in the case of *Osage Tribe of Indians v. United States* (66 C. Cls. 64), is to the effect that under the jurisdictional act of February 6, 1921, counter claims based on expenditures for education of individual Indians could not be considered as an offset against a tribal claim. *Fort Berthold Indians v. United States* (71 C. Cls. 308), contains a direct holding to the same effect under a similar jurisdictional act. *Blackfeet et al. Nations v. United States* (81 C. Cls. 101), ruled the other way largely because of different language contained in the jurisdictional act of March 13, 1924. *Sioux Tribe of Indians v. United States* (84 C. Cls. 16) dealt with the question

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of whether the United States was liable for the failure to furnish
educational facilities provided for in a treaty with the Indians.

<u>Chickasaw Nation v. United States</u> (87 C. Cls. 91) held that ex-
penditures of tribal funds for the education of non-enrolled Chickasaw
children were legal. That portion of the handbook to which the criticism
is directed does not purport to deal with the problems discussed in
these Court of Claims cases. The question considered in the handbook
is entirely different, namely, whether a declaration of policy by
Congress against the making of an appropriation for education in any
sectarian school is confined to gratuitous appropriations of Federal
funds as distinguished from tribal funds or funds appropriated by
Congress in fulfillment of Indian treaty obligations. The discussion
of this question is nevertheless defective on the grounds other than
those stated by the critic. The question is not aptly stated. Citation
to the acts of Congress containing the declaration of policy is not made.
The declaration of policy is found in the acts of June 10, 1896 (29 Stat.
321, 345) and June 7, 1897 (30 Stat. 62, 79). These were the acts con-
sidered in <u>Quick Bear v. Leupp</u> (210 U. S. 50), and it was held that the
limitation contained in them had no application to the expenditure of
treaty or trust funds administered by the United States for the Indians.
Some years later the declaration of policy was reenacted with some
changes in language (see act of March 2, 1917, 39 Stat. 969, 988).

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The question therefore arises whether this later enactment changed the law as announced in the *Quick Bear* case. This question should be considered and discussed in the text.

Additional defects are:

(a) Page 2, paragraph 2. Citation should be made to the work in which President Monroe's message is found.

(b) Page 8, paragraph 2. The words "money bills" and "appropriation bills" appearing in the paragraph beginning at the bottom of this page should be changed to "appropriation acts."

(c) Page 16. The correct citation to the case cited in footnote 30 is *Reuben Quick Bear v. Leupp, Commissioner of Indian Affairs* (210 U. S. 50).

(d) Page 7. Footnote 31 states that "The Solicitor of the Interior Department cited this case (the *Quick Bear* case) with approval August 1, 1923." Such a citation obviously is without value.

(e) The discussion of Government policies leading up to the statement of the legal problems arising thereunder (pp. 1-8) is inadequate in failing to differentiate between (1) purely voluntary or gratuitous expenditures made by the United States Government for Indian educational purposes, and (2) expenditures based upon legal obligations imposed by the Government in treaties negotiated with the Indian tribes, and in failing to formulate and discuss the legal problems arising in connection

6

with each class of expenditures. One problem arising under Class 1 is whether gratuitous expenditures for Indian educational purposes may be offset against tribal Indian claims and, as will be observed from the discussion under No. 6 above, the difference of opinion exists in the decisions of the Court of Claims on the question, although the conflicting views may be ascribed to the lack of uniformity in the language of the jurisdictional acts. An example of the problems arising with respect to expenditures in Class 2 will be found in *Sioux Tribe of Indians v. United States* (84 U. Cls. 16).

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1. O.K. - both typographical errors were caught in the mimeographing of the chapter.

2. O.K.

3. O.K. ("not" was misprint for "next"). This typographical error was caught in the mimeographing.

4. I should say that "Jemes" is correct because that's the way Congress spelled it in the act, but I note that the mimeographed copy uses "Jemez".

5. The Seymour article is identified in an earlier footnote, but I would agree that "op. cit." is a nuisance which should be eliminated where it serves no useful purpose. I think "would ascribe" is gramatically correct, since I am describing the situation prior to statehood, in this section, and the Sandoval case came after statehood.

I agree that it would be well to include at least a "see infra" cross-reference to the discussion of the Sandoval case.

I do not understand the point that the Seymour footnote should be tagged to the statement about the effect of the Joseph case. That is what it is tagged to, isn't it?

ATTACHED P.1J

EXHIBIT C

Comments on Chapter 25 - "Pueblos of New Mexico."

1. Page 1a. The footnote contains two typographical errors. "Jemey" should be "Jemez." The citation to the act of June 10, 1936, is 49 Stat. instead of 41 Stat.

2. Pages 6 and 7. The text refers to Article 8 of the Treaty of Guadalupe Hidalgo concerning citizenship of the Pueblo Indians and quotes from United States v. Lucero (1 N. Mex. 422), in which it is stated, among other things, that the Pueblos "became citizens of the United States." In United States v. Sandoval (231 U. S. 208) the Supreme Court of the United States pointed out that whether the Pueblos were at that time citizens was an open question. The text should acknowledge that fact.

3. Page 7, final paragraph. The word "not" in the first line should be deleted.

4. Page 9. The word "Jemes," fourth line, paragraph 1, should be "Jemez."

5. Page 20, paragraph 1. The text after quoting extensively from United States v. Joseph states that some years later the Supreme Court "would ascribe" the views expressed in 1876 in the Joseph case to inaccurate information but that for nearly five decades the Joseph case fixed the law governing New Mexico Pueblos. The footnote contains a quotation and cites "F. W. Seymour op. cit. p. 39." The work in which Seymour's quotation is found should be identified and as the quotation apparently refers to the Joseph case the quotation should be cited only

in connection with the statement in the text that the *Joseph* case
fixed the law governing the New Mexico Pueblos for a number of years.
The words "would ascribe" should be changed to "ascribed" and citation
made to the *Sandoval* case, 231 U. S. 28, in support of the statement
that some years later the Supreme Court ascribed the views expressed
in the *Joseph* case to inaccurate information.

6. Page 27. This page contains a quotation without identifying
the author or the work from which it is taken.

7. Page 28, last paragraph. The words "the right" appear to have
been omitted from line 3 after the word "Pueblo."

8. Page 29, paragraph 1. The word "disperse" should be changed
to "disburse" or "expand."

9. Page 30. The footnotes on this page should include references
to the acts of March 13, 1928 (45 Stat. 312), August 27, 1935 (49 Stat.
887), and June 10, 1938 (52 Stat. 778), all of which deal with conserva-
tion, irrigation, drainage, and flood control of Pueblo lands. Unless
the difficult legal problems which have arisen out of these acts are
covered in another chapter this particular chapter should be enlarged
to cover these questions.

10. Page 32. The text refers to the inhibition against aliena-
tion, contained in section 4 of the Indian Reorganization Act. While
none of the Pueblos has as yet incorporated under the Indian Reorganiza-
tion Act, it would be well to refer also to the inhibition against

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"C" p. 3

11. O.K.

12. O.K.

13. O.K.

14. I am perfectly willing to modify the discussion along the lines suggested, at least to the point of indicating arguments on both sides of the question of liability to suit and stating that the question has never been squarely decided, but it should be noted that this is a point on which the experts disagree and I have followed the view adopted by the Solicitor after careful consideration of Mr. Brophy's objections

[ATTACHED P. 3]

alienation contained in section 17 of the act. Some, if not all, of the Pueblos who have accepted the acts doubtless will incorporate at some later date.

11. Pages 33, 34. These pages refer to legislation preventing the expansion of Indian reservations in New Mexico and Arizona. It would be well to add a footnote citing the acts of June 3, 1919 (41 Stat. 3, 34), and March 3, 1927 (44 Stat. pt. 2, 1347). While these are general acts, they apply to the Pueblos as well as other tribes.

12. Page 34. The legislative picture with respect to the Pueblos would not be complete without reference to the act of April 21, 1928 (45 Stat. 442), extending various general acts of Congress authorizing the acquisition of rights-of-way across Indian lands to the Pueblos.

13. Page 35h. This page is a continuation of a quotation from Acting Solicitor Kirgis' memorandum opinion of April 19, 1939. However, a considerable portion of the opinion appearing between the first and second paragraphs on this page have been omitted. The omission should be indicated by an appropriate symbol.

14. Section 9 of this chapter, the title of which has been changed from "The relation of the Pueblos to third parties" to "The Pueblo as a corporate entity" has been criticized by Mr. William A. Brophy, Special Attorney for the Pueblo Indians, in a letter dated December 29, 1939. Mr. Brophy questions the treatment of the Pueblos as municipal corporations

3

and as such liable to suit in civil actions for damages etc. (See
also page 21, paragraph 2 of the text.) A Solicitor's opinion quoted
at page 51 holds that the Pueblos are municipal corporations "with
power to bring suit against third parties and liability to suits brought
by third parties" and "that the legal relations of the Pueblo with private
parties not members of the Pueblo will be governed by the general body
of law governing municipal corporations." The text then states that the
status of the Pueblos as municipal corporations is in no way inconsistent
with the power of the Federal Government; that every municipal corpora-
tion in the United States is limited in its powers; that the limitations
are to be found in the series of Federal statutes reviewed in the chapter;
and that apart from such limitations the Pueblos may deal with third
parties and third parties may deal with the Pueblos as they deal with
other municipal corporations. The Solicitor's opinion and the text ap-
pear to go too far in recognizing the liability of the Pueblos to suit.
The status of the Pueblos as corporate entities enables them to sue and
be sued, but it should be remembered that the Pueblos, notwithstanding
incorporation, are Indian tribes possessing certain attributes of
sovereignty. One of these is immunity from civil suit except when ex-
pressly authorized. **Turner v. United States** (248 U. S. 354); **Thebo v.
Choctaw Tribe of Indians** (66 Fed. 372); **Adams v. Murphy** (165 Fed. 304);
**United States v. United States Fidelity and Guaranty Co. et al.** (106 F. (2d)
804). While these decisions relate to the Five Civilized Tribes in Okla-

4

homa, they are equally applicable to the Pueblos inasmuch as the
situation with respect to the Pueblos is essentially the same as it
is with respect to the Five Civilized Tribes (United States v. Sandoval,
231 U. S. 28, 48). Under these decisions it would appear that suits
against the Pueblos cannot be maintained unless expressly authorized
and that the text should accordingly be revised in this respect.

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