DEPARTMENT OF JUSTICE

WASHINGTON, D.C.

November 1, 1959.

MEMORANDUM FOR MR. LITTELL, ASSISTANT ATTORNEY GENERAL

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

RE: CRITICISM OF HANDBOOK OF FEDERAL INDIAN LAW

About a month ago you transmitted to me a brief memorandum on the preliminary draft of chapter 9 of the handbook, submitted on September 1, in which you wrote:

"Memorandum re chapter 9: Very interesting, and I can see, quite valuable. We are arranging for review, and for passing on any suggestions. It can doubtless be shortened somewhat. N.M.L."

Yesterday you advised me, in effect, that this draft was so poor as to justify the abolition of the entire Indian Law Survey.

This change of estimate appears to be based upon charges and criticisms made to you concerning the work of the Indian Law Survey which I had no opportunity to answer prior to your decision to terminate the project. Upon reading these charges and criticisms I find them to be true in two respects and false in five other respects.

1. It appears to be true that some recent briefs of the Government in Indian cases have not been used at certain points in chapter 9 where they might have been helpful. Responsibility for failing to discover these briefs rests primarily upon an individual (Mr. Fabian) who was detailed to the Indian Law Survey by you and on whose thoroughness in the collection of these materials I relied because of the high opinion which you and Mr. Provent expressed concerning him.

2. The criticism at page 9 of the memorandum that the author of the first draft of chapter 9 has not sufficiently distinguished between the various types of Indian property seems to me, on the whole, well taken, but I think the criticism ignores the fact that this subject is analyzed in detail in chapter 15, which had not been worked on at that time. Indeed, the fourfold classification suggested in the memorandum of criticism seems to me quite inaccurate in view of the material which

I have already analyzed in the preparation of chapter 15.

3. Four pages are devoted to a criticism of a single sentence in chapter 9 regarding navigable water, and of the footnote citation to that sentence. It is argued that the writer shows a lack of familiarity with the practical problems involved since he talks about "navigable water" when "on the contrary, in each instance the dispute was over precious trickles of water that mean life or death in the arid areas." This statement is simply untrue. The primary citation deals not with trickles in arid areas but with the rights of the Quilleute and Quinaielt Indians to operate boats for hire on the Queets River, Washington. Our unknown critic declares that this decision "is not available here." This also is incorrect, if the memorandum, as indicated, was prepared in the Department of Justice, since a number of copies of the decision in question are on file. The *Powers* case is cited in the footnote, after the primary citation, chiefly by way of analogy, and should be preceded by the clarifying signal *cf*. The weighty problems proposed in the memorandum of criticism are not analyzed in this footnote simply because they properly belong in two other chapters, chapter 11 and chapter 15. As for the correctness of the brief footnote comment on the *Powers* case, I can only point out that this comment paraphrases the express language of the Supreme Court, "The statute itself clearly indicates Congressional recognition of equal rights among resident Indians." The memorandum of criticism itself indicates that the main question in the *Powers* case was not a question that falls within chapter 9, and the criticism that this main question was not considered in a footnote in that chapter is therefore entirely pointless.

4. The second of the two specific examples of legal error discussed in the memorandum of criticism is directed against a reference in chapter 12 to *Piper v. Big Pine School District*, 226 Pac. 928, as "the only case which has squarely considered the Indian's right to State Education." Our critic claims that "the identical problem was settled" in *Missouri ex rel. Gaines v. Canada*, 305 U. S. 357. This statement is demonstrably false. The problem of discrimination against Negroes is not identical with that involved in Indian education. The uniform position of the States is that the Federal Government has a special responsibility for the education of its wards. Negroes are not wards of the Federal Government. I am entirely confident that Congress will not terminate per capita payments to State schools for Indian education on the theory, entertained by our unknown critic, that the *Gaines* case requires the States themselves to educate Indian children. The line of cases on discrimination under the fourteenth amendment, including the *Gaines* case, is being considered in chapter 8 (Personal Rights and Liberties of Indians), and in a later draft there would undoubtedly be a cross-reference to this discussion, but it is utterly incorrect to say that the problem of the *Gaines* case is "identical" with the problem considered in the *Piper* case.

2

5. At page 10 the memorandum of criticism seems to assume that there is a law of Indian affairs apart from treaties and legislation. This theory of law as "a brooding omnipresence in the sky," (to quote Holmes) I have elsewhere attacked (see 1 Modern Law Review 5; 35 Columbia Law Review 809), and I need only note that this basic error seems to me to infect the argument of this Division in the *Klanath* and *Shoshone* cases last year, which the Supreme Court definitely rejected.

6. The suggestion, at page 11, that "throughout the entire history of the Nation the United States has been concerned in only 16 lawsuits in which the Pueblos were involved," which is used as a basis for arguing that "a 75-page chapter in the proposed handbook is wholly unwarranted," is so far from the truth as to be absurd. Since 1900 the United States has employed a special attorney who has been busy year in and year out handling Pueblo litigation, the great bulk of which, of course, does not culminate in reported cases. It is true that this special attorney has been paid through the Department of the Interior, but I have not thought this a sufficient reason for ignoring the serious problems which concern the litigation that he manages.

7. The general criticism that "the submitted drafts are fundamentally unsound, require intensive further research and presentation de novo" appear to be clearly untrue in their generality, in view of the admission that the only criticism that could be made of Chapter 27 (Pueblos) was its excessive length. In the section of Chapter 12 submitted, again excessive length is the basic criticism, except for the reference to the *Gaines* case, discussed above, an unclear reference to pages 27-28 (there being no such pages), a typographical error in citation, and a legitimate difference of opinion on the interpretation of one case cited. Nothing "fundamentally unsound" is found in this chapter. I have not yet examined all the detailed criticisms of Chapter 9 made in the appendix to the memorandum of criticism, but assuming that *all* these criticisms are well taken (which is far from the case with those examined), the most serious criticism that could then fairly be made would be that *one* of the draft chapters submitted requires extensive revision, and that I was mistaken in thinking, after a hasty reading, that this draft needed and merited review, -- which opinion you yourself reached on a first reading.

In conclusion I should like to make the following facts clear:

1. The alleged errors -- if they are errors -- are found in a preliminary draft of one chapter which I had not yet corrected and on which a good deal of further work has been done and planned.

2. The preliminary drafts criticized were the first to be finished and were completed at a time when Court of Claims cases and Supreme Court

3

cases of the past year or so were missing from the files, there being a
definite understanding that the drafts would be checked against these
materials when they were added.

3. In so far as budgetary considerations are discussed in the memo-
randum of criticism, it should be noted that the monthly expenditures of
the Indian Law Survey have been considerably less than those originally
agreed to by you and by the Attorney General.

4. In so far as "other considerations" for terminating the project (aside from the alleged inadequacy of the drafts submitted) are suggested in the memorandum of criticism, I shall only note that if there was a lack of meeting of the minds between the "advisory committee", headed by Mr. Fabian, and myself, this resulted from an ignoring of your instructions. You directed the committee to "confer with Mr. Cohen at any times deemed desirable with the object of reaching entire agreement as to the choice and arrangement of subject matter and the distribution of emphasis throughout this manual" (memorandum, August 3, 1959). The committee did not at *any* time see fit to confer with me on *any* question, but instead prepared, *ex parte*, a sweeping criticism of the entire project and then, when I took issue on certain points, failed even to discuss my rejoinder.

5. The first criticism which you made to me of the quality of any of
the work of the Survey was made on the afternoon of October 31, when you
informed me of the termination of the project and advised me that you had
already communicated your views to the Solicitor and to the First Assistant
Solicitor of the Interior Department.

In view of the erroneous statements and serious omissions in the memo-
randum of criticism upon which you have relied I must respectfully request
that you reconsider your announced determination in this matter, either upon
the basis of a first-hand investigation by you of the points on which I hold
the memorandum of criticism to be incorrect and misleading, or on the basis
of an independent inquiry by a person who has no possible interest in the
termination of this project, such as the Chief of the Legislative Section,
or the Chief of the Condemnation Section in this Division.

Respectfully,

Felix S. Cohen,
Chief, Indian Law Survey.

(The foregoing memorandum is designed to replace a hasty
draft submitted to you at 6 p.m. on October 31, in accord-
ance with your request that I furnish you immediately with
my comments on the memorandum of criticism.)

Copy to Solicitor Margold.
First Assistant Solicitor Kirgis.

UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
WASHINGTON

MEMORANDUM for the Solicitor.

Pursuant to your request I have examined the comments made in a
memorandum prepared in the Department of Justice on the preliminary
chapters of the Handbook on American Indian Law and submit the follow-
ing for your consideration:

The chapters examined are Chapter 9, Individual Rights in Tribal
Property, Chapter 25, Pueblos of New Mexico, and pages 1 to 17 of
Chapter 12 on Indian Education.

General Grounds of Criticism

A number of general grounds of criticism applicable to all of the
material presented are made. These are that the material gives evidence
of inadequate research and lack of experience in the preparation of a
law book designed to serve as a complete and accurate handbook for
lawyers engaged in actual litigation; that difficult and complex problems
are casually answered by cursory paragraphs; that general propositions
of law are stated repeatedly without citation of authority; that cita-
tions made do not support the propositions for which they are cited;
that leading decisions of the Supreme Court of the United States and
other courts are ignored, and opinions of the Solicitor frequently are
relied upon as authority; that a major premise is often proved by So-

licitor's opinions or by District Court cases when apposite United
States Supreme Court cases are available; that statutes are discussed,
quoted and cited without reference to subsequent repeals or amendments;
that apparently no attempt has been made to "Shephardize" either court
decisions or statutes; that no effort has been spent in distinguishing
"holdings" from "dicta" in the cases cited; that no attempt to make
use of the wealth of material available in the great volume of appellate
briefs prepared in the Lands Division of the Department of Justice in
Indian cases has been made and that current live Indian cases in which
the Lands Division participated have not been cited save in a few instances.

Two examples are cited as supporting concretely the several general
grounds of criticism set forth above. These will be first discussed.

1. This example deals with the following provision appearing at
page 11 of Chapter 9 entitled "Individual Rights in Tribal Property":
"where certain lands have been reserved for the use and occupation of a
tribe, members of the tribe are entitled to use bodies of navigable
water within the reservation." The footnote cites as primary authority
for the foregoing statement the Solicitor's opinion of May 14, 1928,
dealing with the right of the Quileute and Quinaielt Indians to operate
boats for hire on the Queets River in Washington. It also cites United
States v. Powers, 305 U. S. 527 and Skeem v. United States, 273 Fed.

2

93, both of which deal with the rights of individual Indians or their successors in interest to use water from streams running through Indian reservations for irrigation purposes. The chief objection made by the memorandum is in substance that one of the most vital and complicated subjects of Indian law is summarily and inadequately disposed of without mention or discussion of the leading Supreme Court case on the subject and many other lower court decisions. If the quoted paragraph were intended to deal with the right of Indians to use water for irrigation purposes, the objection would certainly be well founded. But the criticism loses its force because the criticized paragraph is not intended to deal with Indian irrigation water rights, that subject, so I am informed, being covered in other chapters.

The further objection in the memorandum that the *Powers* and *Skeem* cases do not support the proposition of law asserted is, however, well taken. Neither case deals with the rights of Indians to use navigable waters and it would be improper to cite them even as "of" cases.

The provision of the handbook reproduced above appears to be seriously objectionable on grounds other than those specifically stated in the memorandum. An important subject on which the law is well defined only in some of its aspects is disposed of in a 4-line statement to the effect that the members of the tribe for whom a reservation has been created have the right to use bodies of navigable waters. The particular

3

use rights are not specified nor are the limitations, if any, on the
exercise of the rights set forth or discussed. The question of whether
the rights, whatever they may be, are exclusive, or whether they may
be exercised in common with other citizens and hence subject in their
exercise to State regulation and control is not mentioned or discussed.
Whether the Indians have the rights broadly asserted may depend upon
the language of the treaty, act of Congress or Executive order by which
the reservation was created and must depend in most cases upon whether
the reservation was created prior or subsequent to statehood. These
questions and possibly others must be discussed in the light of such
decisions as may be available and there are several, including decisions
of the Supreme Court of the United States, having material, if not de-
cisive, application. See *Shively v. Bowlby*, 152 U. S. 1; *United States*
v. *Holt Bank*, 270 U. S. 49; *Alaska Pacific Fisheries v. United States*,
248 U. S. 78, 86; *Brewer Oil Co. v. United States*, 260 U. S. 77, and
*United States v. Utah*, 283 U. S. 64, 75.

2. The second example alleged to support the several general grounds of criticism relates to that part of the chapter on "Indian Education" which deals with the constitutional duty of a State to provide for Indians educational facilities equal in every respect to those provided for other citizens. The specific criticism is that the entire discussion is devoted to a review of *Piper v. Big Pine School District of Inyo County*,

4

226 Pac. 928, without any mention being made of *Missouri ex rel. Gaines v. Canada*, 305 U. S. 337, which case is described by the author of the memorandum as "an historic decision rendered last term by the Supreme Court of the United States in which the identical problem was settled."

In the *Gaines* case the State of Missouri had provided separate schools and universities for whites and Negroes. In the State university attended by whites there was a course in law; at the Lincoln University attended by Negroes there was no course in law but the curators of the institution were obligated to establish one whenever in their opinion this should be necessary and profitable and pending such determination they were authorized to arrange for legal education of Missouri Negroes and to pay the tuition charges therefor at law schools in adjacent States where Negroes were accepted and where the training was equal to that obtainable at the Missouri State University. The curators of the State University refused to admit a Negro as a student in the law school because of his race, whereupon he sought a mandamus in the State courts, which was denied. The United States Supreme Court ruled that the action of the State in furnishing legal education within the State to whites, while not furnishing legal education within the State to Negroes, was a discrimination repugnant to the Fourteenth Amendment; that the unconstitutional discrimination is not avoided by the purpose of the State to establish a law school for Negroes whenever it is necessary and profit-

5

able in the opinion of the curators, and that the requirements of
the equal protection clause are not satisfied by the opportunities
afforded by Missouri to its Negro citizens for legal education in
other States.

It appears that the author of the memorandum has, himself, fallen
into error in describing the *Gaines* decision as one which settles the
education problem discussed in the handbook. The decision does settle
the problem of racial discrimination in educational matters and estab-
lishes the principle that the State must provide equal educational
facilities for all citizens within its jurisdiction, regardless of
race or color. Whether Indian wards of the United States who reside
on Indian reservations and whose welfare has been regarded as the
peculiar responsibility of the United States and over whom it is estab-
lished that the State has only limited jurisdiction are entitled to
receive education in State institutions and hence are protected against
State discrimination, is a question not considered and therefore not
decided in the *Gaines* case. Nor do I regard the *Piper* case as decisive
of this question. The Indian in that case was not a ward Indian but
one over whom the jurisdiction of the State was full and complete. As
a citizen of the State, such an Indian under that decision must be ac-
corded educational facilities equal to those accorded its citizens of

6

other races. Accordingly, the proposition stated in the handbook
that "the right to attend State schools is coincident with State
citizenship, and cannot be circumscribed unless an alternative op-
portunity for education equal in every respect to the one withheld
is afforded, is the holding of the only case which has squarely con-
sidered the Indians' right to State education," seems too broad and
may prove misleading unless qualified by confining the statement to
Indians of the class dealt with in the decision.

It seems to me that the question of whether all Indians, regard-
less of their status as full-fledged citizens subject to the juris-
diction of the State, or as members of a tribe under national guardian-
ship, are entitled as an incident of State citizenship to educational
facilities equal to those furnished by the State to its other citizens
should be left open in the handbook as an undecided question. If this
question be ultimately answered in the affirmative, then the principles
stated and applied to the Negro by the Supreme Court in the *Gaines* case
are equally applicable to the Indian. Under such principles, the Indian
would be protected from discrimination. Segregation for scholastic pur-
poses might be made but the State would be bound to furnish substantially
equal advantages to the Indians. No treatment of this problem would in
any event be complete without reference to the *Gaines* case and discussion
of its applicability to the Indians. I understand that the *Gaines* case

7

is to be considered and discussed in another chapter dealing with
racial discrimination. If so, my conclusion would be that while the
part considered in example 2 needs substantial revision for the reasons
stated above, the criticism contained in the memorandum is not correct.

# Chapter 9 - Individual Rights in Tribal Property

## General:

The general criticism of Chapter 9 - Individual Rights in Tribal Property - is that the author seems not to have been aware of and hence made no effort to distinguish between the three or four distinct types of Indian property, namely (1) The Five Civilized Tribes and Osage Nations who held a determinable fee simple title to their lands; (2) the Pueblo Indians who have a communal fee simple title; (3) the Indians who possess the right of use and occupancy; and (4) the Indians of the Southwest who resided on lands acquired by the Treaty of Guadalupe Hidalgo who may or may not have any rights in the lands occupied by them at all; that the author has indiscriminately and without recognition of this problem cited cases dealing with these four types of situations as though all Indian rights were uniform; that the chapter does not contain any differentiation between (a) the legal concepts of tribal individual property, (b) the plenary power of the United States in so far as it has added to or decreased the privileges incident to tribal or

8

individual property as such, and (c) the rights which have been claimed
solely on the basis of legislation; that throughout the chapter no at-
tempt has been made to differentiate or warn the reader of any of these
distinctions and that consequently statements which on their face are
general and fundamental in scope are nothing more than a particular
legislative right granted to one tribe.

The three or four different types of tribal title to which the
critic refers do exist and while it is important that these different
types of title be borne in mind in discussing the rights acquired by
the individual Indian when allotments in severalty were made, it would
not appear to be important in analyzing the rights of the individual
prior to the acquisition of vested rights in the process of making
allotments in severalty because the historical rule common to all the
tribes was communal ownership of tribal property. Under this rule,
the right of the individual was one in common with all members of the
tribe and dependent upon tribal membership. The member had no vested
right in the tribal property and as membership terminated with death
the right of the individual was neither alienable nor descendible. In
so far as undistributed tribal property is concerned, the rule of com-
munal ownership with its incidents obtains today as in the beginning,
save where modified by treaties, allotment agreements or acts of Congress.

9

As the treaties and legislation are not uniform as to all tribes,
it is necessary in order to determine what modifications have been
made to analyze, first, the rights of individuals under general
legislation such as the General Allotment Act and decisions there-
under, and second, the rights of the individual as affected by
treaties or special enactments and decisions relating thereto deal-
ing with his particular tribe. The author of this chapter has not
done this. Instead, he has attempted to evolve general rules appli-
cable to all tribes and in the course of his discussion refers indis-
criminately to general statutes and statutes and decisions dealing with
a particular tribe. In my opinion, no adequate conception of the law
on this subject can be gained from such a treatment. For example,
citations to statutes and decisions relating to the Five Civilized
Tribes and Osage Nations predominate. Yet it is common knowledge
that special bodies of law control the problems of these tribes and
many of the decisions pertaining thereto have limited, if any, appli-
cation elsewhere. See Whitebird v. Eagle-Picher Lead Co., 28 F. (2d)
200, aff'd 40 F. (2d) 479, cert. denied 282 U. S. 844, wherein the
court pointed out that rules established from construction of leasing
statutes applicable to the Five Civilized Tribes should be limited
to the Five Civilized Tribes and had no application to the leasing of
lands of Quapaw Indians in Oklahoma. See also decision of the Ninth
Circuit Court of Appeals, January 3, 1940, in Genevieve P. St. Marie
v. United States, holding that the problem before the court was to be

10

controlled by the special Mission Indian Allotment Act and not by the
General Allotment Act and decisions thereunder.

### Specific Grounds of Criticism of Chapter 9:

Attached to the memorandum of the Department of Justice is a list
containing 56 specific grounds of criticism of Chapter 9. Review of
these discloses that 29 are correct and that 19 are incorrect, but in
8 of these the material is defective on grounds other than those stated
by the critic. Eight of the criticisms are correct in part and incor-
rect in part, and in 4 of these the material is defective on other
grounds. Comments and findings on these 56 points are listed in
numerical order on the attached sheets marked Exhibit "A-1." In addi-
tion to the defects in Chapter 9 other than those mentioned by the
Department of Justice critic and to which attention is called in
Exhibit "A-1" (see items Nos. 11, 15, 16, 19, 31, 38, 40, 41, 42, 44,
48, 49 and 51), 44 additional defects are listed in Exhibit "A-2."

The more serious of these defects, one or more examples of which
will be found in Exhibits "A-1" and "A-2", are citations of cases not
in point; failure to distinguish between holdings and dicta; duplica-
tions, conflicts and ambiguities in statements; fundamental miscon-
ception of the law due to the failure to distinguish and differentiate
between the rights of individuals in tribal property prior to legis-
lation looking to dissolution of the tribes and individualization of
the tribal property and the rights of individuals based on general

11

or special legislation; citations to Solicitor's opinions when court
cases are available; citations to inferior court decisions when United
States Supreme Court cases are available; citations to Solicitor's
opinions and court decisions that have been overruled or reversed;
failure to cite leading cases on a particular subject; summary dis-
position of a complicated subject without discussion of the legal
problems involved; discussion as of general application of the prob-
lems concerning the adoption into citizenship of intermarried whites
and freedmen of the Five Civilized Tribes and inadequate discussion of
these problems in so far as the Five Civilized Tribes are concerned;
failure to distinguish between fluctuating and final rolls with re-
spect to the power of the Secretary of the Interior to strike names
from the roll or to discuss the court decisions applicable thereto;
inadequate statements of Congressional power to change the method of
distribution of tribal property; misinterpretation of Solicitor's
opinions; inaccurate statements of acts of Congress and misstatement of
court decisions relating thereto; inadequate presentation of acts of
Congress dealing with the Osages; misstatements of law applicable to
the Osages brought about apparently by the failure to read and analyze
pertinent court decisions; failure to distinguish between the power of
Congress and that of the Secretary of the Interior with respect to the
distribution of tribal funds; failure to distinguish between general
legislation relating to the distribution of tribal property and special

12

legislation applicable to a particular tribe or to discuss the effect
of the one upon the other; numerous citations to memoranda of the
Solicitor which were not in fact signed by the Solicitor and have no
value as authorities; misleading statements of law; discussion of
particular statutes without mentioning changes effected by subsequent
legislation; statements of general propositions of law followed by
examples disproving rather than proving the general proposition and
inaccurate quotations from decided cases.

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

With respect to that part of Chapter 12 dealing with Indian
Education, consisting of 17 pages, I find that of the six grounds of
criticism, two of a minor nature are correct, one is correct in part
and incorrect in part but defective on other grounds, and three are
incorrect but in two of these the work is defective on other grounds.
Five additional defects, one of which is of a material nature, have
been noted. These criticisms and defects are discussed in Exhibit "B"
hereto attached. My conclusion is that this portion of the work is of
little use unless substantially revised.

## Chapter 25 - Pueblos of New Mexico

Concerning Chapter 25 - Pueblos of New Mexico - the critic refers
to the fact that the chapter contains lengthy quotations from court
opinions, "the Blair opinion," "the Iverson memorandum," and decisions
of the Solicitor for the Interior Department, and points out that in

13

the entire chapter there are cited only 26 cases, 9 of which are early
New Mexico Supreme Court decisions and 16 of which are Federal cases;
that of the 16 Federal cases 6 are cited on page 26 in support of one
proposition and of the remaining 10 several are cited merely in support
of general propositions of law not peculiar to the Pueblos. The specific
criticism made is that if throughout the entire history of the Nation
the United States had been concerned in only 16 lawsuits in which the
Pueblos were involved, a 75-page chapter in the proposed handbook is
wholly unwarranted.

I find no quotation in the work from the "Blair opinion." The
Iverson memorandum, which is quoted from extensively, was addressed to
Assistant Attorney General Blair and deals with questions concerning
the religious liberties of members of the Pueblos. The author ac-
knowledges that this is a subject which is so difficult and complex,
due to the intimate connection between religious and political affairs
in the Pueblo system of government, that "it would be rash to attempt
to formulate the law governing this field except in terms of specific
fact situations." As pointed out on page 35c of the work, the Iverson
memorandum illustrates the difficulties of the subject and provides a
useful guide for further inquiry. It is used largely for that purpose
and so used it would appear to be a helpful addition to the work.

In so far as lengthy quotations from court decisions and Solicitor's
opinions are concerned, this might perhaps be considered unnecessary from
the viewpoint of those already trained in this field but it must be re-
membered that the work is intended as a guide for all employees of the

14

Department, particularly those in the field to whom adequate library
facilities are not generally available and who are generally without
access to opinions of the Solicitor, which opinions until reversed or
modified by decisions of courts of competent jurisdiction, constitute
the law of this Department. To these employees the work would lose
much of its value unless made sufficiently comprehensive to afford
definite information on the numerous subjects with which they deal as
an every-day proposition.

A number of defects noted in reviewing Chapter 9 are listed in
Exhibit "C" hereto attached. With one exception (see comment No. 13
of Exhibit "C"), the defects are of a minor nature. On the whole, I
regard the chapter as an excellent treatment of a difficult subject.

## Conclusions

Recognizing that many of the defects to which attention has been
called in the exhibits hereto attached, consist of minor inaccuracies
to be expected in the preliminary or first drafts of a work dealing
with a field so vast and complicated as that of Indian law, my con-
clusion is that the major grounds of criticism leveled at the work by
the Department of Justice are fully justified with respect to Chapter
9 - Individual Rights in Tribal Property - and that part of Chapter
12 (17 pages) dealing with Indian Education. Many of the errors of
omission and commission in these two chapters are of such a serious

15

nature that the conclusion of the Department of Justice that the drafts "are fundamentally unsound and require intensive further research and presentation de novo" must, in my opinion, be acknowledged as correct. This conclusion is not, however, correct as to Chapter 25 - Pueblos of New Mexico. That chapter, for a preliminary draft, is, notwithstanding its length, remarkably free from error.

The question whether the project should or should not be abandoned may, in my opinion, be answered only by stating that if the remaining chapters are prepared and Chapters 9 and 12 are revised with the care, skill and studious analysis of decisions and statutes shown in the preparation of Chapter 25, the project should, by all means, be completed and when completed should prove invaluable to this Department, as well as to the Department of Justice. If, on the other hand, the haphazard practices resorted to in the preparation of Chapters 9 and 12 are continued, the completed work is bound to be more embarrassing than useful.

W. H. Flanery,
Assistant Solicitor.

Attachments.

16

p. 7

UNITED STATES
DEPARTMENT OF THE INTERIOR
WASHINGTON

Quotation marks in line 2 should be
outside word *that*.

I agree that there should be a statement to the effect that the general question is an open one, so far as decided cases go. I do not agree that the statement of the holding in this case is inaccurate, which seems to be implied by this page and by the phrase "substantial re-vision" on the next page. Stating the decision in one case, and a State case at that, was not intended, and should not be construed as equivalent to a generalization about Federal law.

p. 10

The comment "The author of this chapter has not done this. Instead, he has attempted, etc" seems too sweeping. It is true that he "has not done this consistently" and that _at times_ he has "attempted to evolve general rules, etc." But there are many statements about particular treaties and tribes, in the chapter, that are properly qualified.

draft represents a useful first draft which
needs checking as to citations and supplementa-
tion with respect to recent statutes (both of
which processes were contemplated by the editor).
If, on the other hand, it be agreed that my
exceptions to these five disputed criticisms
should be sustained, then the draft deserves
 commendation as a careful piece of work

p. 11

I think this listing of types of mistake gives a one-sided picture unless it is balanced by a listing of types of mistakes made by the Justice Department's critic, which might sound just about as horrifying. Also, I think the listing of types of mistake should include the less important as well as more important errors and should mention the number of times each occurs, to give a fair picture. I also think the analysis of the 56 criticisms made by the Department of Justice should be separated from the analysis of errors independently discovered by Mr. Flanery.

Finally, I think it should be explained that the chapter was not supposed to deal with Osage or Five Civilized Tribes problems. Citations to cases and statutes in this field were to be restricted to instances where it was advisable to illustrate a general problem or rule by reference to such material. This decision on the subject matter of the chapter was reached after the draftsman had begun work on the chapter. I suggested that such material be left in the chapter in all doubtful cases, as it would be easier for a reviewer to delete what was unnecessary than to discover what was missing. In the second draft of the chapter, a large part of the Oklahoma material was omitted. A large proportion of the Justice Department criticisms and criticisms about a large proportion of Mr. Flanery's criticisms relate to this tentatively included and finally omitted material.