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<table><tr><td>"Property Rights of Individual Indians", Chapter 9; 84 pages,</td></tr><tr><td>"Federal Services for Indians", Chapter 12; 16 pages,</td></tr><tr><td>"Pueblos", Chapter 25; 68 pages,</td></tr><tr><td>"Table of Statutes and Treaties", Chapter 29; 513 pages,</td></tr><tr><td>"Table of Cases", Chapter 30; 295 pages.</td></tr></table>

The first draft of Chapters numbered 9 and 25 were submitted for review on September 1st. Chapter No. 30, "Table of Cases", was submitted on July 18th. A portion of Chapter No. 12 (Federal Services for Indians") is submitted herewith. While ordinarily it is not planned to submit portions of chapters, this material on "Indian Education" is substantially complete in itself and its consideration by the staff will be of value in our work on parallel problems of administration.

IV. **Mimeographing of compiled Indian statutes:**

2538 out of 3182 (revised count) items already mimeographed.

V. **General progress:**

Because of various mechanical difficulties which have been noted in preceding memoranda and need not be recounted, it has not been possible to bring the work of analysis, indexing and filing of source materials for the entire project to final completion by this date as was originally planned. The materials not yet indexed, however, are almost entirely materials of secondary importance, i.e., private acts and appropriation acts. Every effort will be made to complete the indexing of these materials at the earliest possible date.

In the actual writing of the book it has been possible to keep ahead of the original schedule which contemplated submission of the first draft of the first completed chapter on September 1st. As noted above, two completed chapters on substantive law, one sub-chapter on substantive law and one chapter consisting of the table of cases have already been submitted.

Respectfully,

Felix S. Cohen,
Chief, Indian Law Survey

"Father" requested Cornplanter speaking for the Senecas in 1792 "you give us leave to speak our minds concerning the tilling of the ground. We ask you to teach us to plow and to grind corn; * * * that you will send smiths among us, and, above all, that you will teach our children to read and write and our women to spin and to weave. 1/ With equal warmth George Washington replied that the Senecas might be sure of his willingness and desire to impart to them "the blessings of husbandry and the arts" and that their children would be received to be educated either at the time of the treaty or at such a time and place as they might select. 2/

In such a fashion did the President of the United States and a chief of an Indian tribe first discuss the possibility of governmental assistance in bringing to the red man the advantages of a European civilization. 3/ Although this particular arrangement was destined not to materialize the interest it aroused quickened and on December 2, 1794, educational provisions were included in a treaty negotiated with the Oneida, Tuscarora and Stockbridge Indians. 4/

1/ American Archives, 4th series, Vol. II, col. 1879.

2/ Ibid., p. 166.

3/ For additional examples see *Indian Education and Civilization*, Ex. Doc. No. 95, 48th Cong., 2d Sess. (1888), pp. 161, 162.

4/ 2 Stat. 48. These provisions allowed for the employment of one or two persons for three years to instruct in the arts of the miller and sawyer.

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This was followed in 1803 by a treaty with the Kaskaskia Indians making allowance for an annual contribution for a Roman Catholic priest who among other things was to instruct in literature.

Then for fifteen years with treaty makers engrossed in securing additional acres of land for the national domain no further mention was made of education in conventions with the Indians.

In the meantime Congress took the initiative and on March 30, 1802 appropriated the sum of $15,000. to promote civilization among the aborigines. For another decade this action stood as the only indication that the Federal government had recognized any responsibility in connection with the problem; then in his first message to Congress, President Monroe called for additional efforts to preserve, improve and civilize the original inhabitants. This recommendation was acted upon two years later when Congress made a permanent annual appropriation of $10,000. "for the purpose of providing against the further decline and final extinction of the Indian tribes adjoining the frontier settlements of the United States, and for introducing among them habits and arts of civilization."

5/ Ibid., p. 79.

6/ 2 Stat. 139. For details regarding the disposition of this amount see Senate Docs. 1050, 7th Cong., 1st Sess., Vol. I.

7/ 3 Stat. 516. The repeal of this law was contemplated several times and finally accomplished February 14, 1873, 17 Stat. 461.

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The expenditure of this fund occasioned no little difficulty. The President, anxious to apply it in the most effective manner possible, addressed a circular letter to those societies and individuals--usually missionary organizations-- who had been prominent in the effort to civilize the Indians offering the cooperation of the Government in their various enterprises. Soon the $10,000. was apportioned among them and later as treaty funds became available for this purpose these too generally were disbursed to such establishments.

In 1855, the Commissioner of Indian Affairs, George W. Manypenny, noted that total expenditures for education among the Indian tribes during the ten-year period ending January 1, 1855, amounted to $2,150,000. Apparently only a small portion of this sum was contributed by the government for the Commissioner's report shows that while $102,107.14 had been furnished by the United States $824,160.61 had been added from Indian treaty funds, over $400,000. paid out by Indian nations

8/ American State Papers, Indian Affairs, Vol. II, P. 200, 201.

9/ A significant development during the 1840's was the establishment of schools by a number of Indian tribes. In 1841 and 1842 before a number of states had provided for public schools the Cherokee and Choctaw nations had put into operation a common school system. Educational Service for Indians by Floyd E. Blanck, Staff Study No. 18 prepared for the Advisory Committee on Education, p. 33.

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themselves, and $830,000 had come from private benevolence.<u>10/</u>

After the Civil War a more liberal policy for participation of the Government in the education of the Indians was pursued. In 1870, $100,000. was set aside for this purpose and in succeeding years the sums allocated were sufficiently <u>11/</u> liberal to permit a definite expansion of activities.

What this accomplished is best illustrated by the
following excerpt from a recent study prepared under the
auspices of the President's Advisory Committee on Education:

The period since 1900 is marked by a number
of changes. In 1906 the schools -- several
hundred day schools and a number of boarding
schools of the Five Civilized Tribes in
Oklahoma, previously operated by the tribal
Governments were placed in charge of the
Office of Indian Affairs. At first they were
operated under contract but later by the

<u>10/</u> Message from the President of the United States, Ex. Doc. No. 1, 34th Cong. 1st Sess. (1855), p. 561.

The educational provisions of the various treaties are
analyzed and summarized in the following Government
documents: <u>Industrial Training Schools for Indian Youths,</u>
<u>House Reports No. 29, 46th Cong., 1st Sess. (1879);</u>
<u>Industrial Training Schools for Indians,</u> House Reports
No. 752, 46th Cong. 2d Sess. (1880); Treaty Items, Indian
Appropriation Bill, House Doc. No. 1030, 63d Cong. 2d
Sess. (1914). The educational provisions of the Treaty
of February 16, 1869, with the Sioux Tribe of Indians formed
the basis of a petition filed May 7, 1923, in the Court of
Claims under authority of Act of June 3, 1920 (41 Stat. 738)

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Office of Indian Affairs * * * a uniform
course of study for the Indian schools — now
hardly to be regarded as a progressive step —
was provided in 1916. In order to increase
the efficiency of the teachers, provision was
made in 1912 for education leave not to
exceed five days a year to attend teachers'
institutes or training schools, and in 1922,
this leave was increased to thirty days. A
provision in 1928, permitted sixty days of
educational leave in any two year period.

Some of the changes which occurred are re-
flected in the data on enrollment of Indians
in schools. * * * from 1900 to 1926 the enroll-
ment increased from 26,451 to 69,892 or 164%. 12/

Since 1926, a number of other changes have taken place largely in response to criticism voiced by the Report of the Insti-tute for Government Research, 1928 13/ and the Report of the National Advisory Committee on Education, in 1931. 14/ These changes are summarized in additional passages from the 1939 Advisory Committee study:

A material change has occurred in the point
of view of the education of Indians, and a
program is being developed which seeks to
relate instruction to the needs and interests
of children as well as to develop

10/ (continued)

The petitioner alleged that said provisions were unfulfilled and asked compensatory damages. The court in dismissing the petition held that the treaty imposed an obligation upon the Indian parents which had not been discharged and that moreover, there existed no logical basis for computing damages. Sioux Tribe of Indians v. United States, 84 C. Cls. 16.

11/ 16 Stat. 359

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initiative and independence. Much of the deadening routinization has been eliminated. Increased emphasis has been placed on community day schools, there has been a notable decrease in the enrollments of Government boarding schools, and the programs of the boarding schools have been improved to serve primarily the need for secondary education.

Vocational education adapted to the needs of Indian children has received some attention. Provision has been made for the higher and technical education of Indian youth. Child labor in the schools has been reduced, although there is still too much of it in the elementary boarding schools. Improvement has been made in the educational personnel through higher requirements and increases in salaries. Congress has also made larger appropriations to provide for larger expenditures per child in the schools. Educational management has been somewhat decentralized, more control being given to the regional and local superintendents.

Another innovation is the Act of April 16, 1934, 15/ commonly known as the Johnson-O'Malley Act providing for Federal

12/ Educational Service for Indians by Lloyd E. Blauch, Staff
Study No. 18 prepared for the Advisory Committee on Education
(1959), pp. 37, 38.

13/ Meriam and Associates, *The Problem of Indian Administration* (1928) c. IX.

14/ Federal Relations to Education (1931), The National Advisory Committee on Education was organized in 1929 by the Secretary of the Interior acting for the President.

15/ 48 Stat. 596, amended by Act of June 4, 1936, 49 Stat. 1458; 25 U. S. C. secs. 452-456.

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State Cooperation. Under the terms of this legislation, moneys appropriated by Congress for Indian education may be turned over to "any State or Territory or political subdivision thereof" or to "any State university, college, or school" or "any appropriate State or private corporation, agency, or institution" under a contract by which the recipient of Federal funds undertakes to provide educational facilities in accord with standards established by the Secretary of the Interior to a specified number of Indian students. So far contracts in accordance with this act have been made with Arizona, California, Minnesota and Washington.

In line with the foregoing tendency towards decentralization of Federal educational activities it should be noted that in a long series of special statutes Congress has appropriated money directly to various counties and school districts for the maintenance of public schools attended by Indians. 16/ Generally such statutes contain some such provision as the following:

16/ 49 Stat. 327, 328, 329, 330, 331, 333, 336, 1013, 1014.

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"That there is hereby authorized to be appropriated, out of any funds * * * to be used for the purpose of cooperating with School District * * * in the improvement and extension of high-school buildings * * * Provided, that said schools, shall be available to both white and Indian children without discrimination, except that tuition may be paid for Indian children attending in the discretion of the Secretary of the Interior * * *"

From these varying governmental policies -- innumerable statutory provisions and treaty stipulations -- have emerged a number of problems concerning education of the Indian. Are all Indians eligible to attend Federal schools; state schools? Can Indians be compelled to attend public schools? What are the limitations upon the use of funds for Indian education? At various times these and other questions have been dealt with judicially and the substance and application of these decisions must be examined at length.

## Eligibility for School Attendance

### Federal Schools

The restrictions imposed on the Indians right to attend Federal schools are few. In recent money bills it is provided that "no appropriation, except appropriations made pursuant to treaties, shall be used to educate children of less than one-fourth Indian blood whose parents are citizens of the United States and of the state wherein they live and where there are adequate free school

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facilities provided." 17/ This restriction was first used in the appropriation for 1918, although the appropriation for 1916 declared that "the facilities of the Indian schools are needed for pupils of more than one-fourth Indian blood." 19/ A later appropriation bill re-enacts the restriction but declares that it shall not apply to the item for the Five Civilized Tribes and the Quapaw Agency in Oklahoma. 20/

17/ U. S. C. A., Title 25, sec. 2971.

18/ 40 Stat. 564

19/ 39 Stat. 123

20/ 42 Stat. 576.

Although the issue raised does not concern admittance to a Government Indian school the interpretation of statutory limitation upon the right to Federal educational benefits in Davis v. Sitka School Board is interesting. Here plaintiffs -- mixed block Sitka Indians -- sought a writ of mandamus to require the school board of the Territory of Alaska to admit them to the Sitka school by virtue of an act of Congress (33 Stat. 616), providing for the establishment of a school for the education of white children and children of the mixed blood who live a civilized life."

The construction of the term "civilized" received considerable attention from the court which in denying the writ held that civilization was "more than a prosperous business, a trade, a home, white man's clothes, and membership in a church". Davis v. Sitka School Board, 3 Alaska 481, 491.

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State Schools

That the right to attend state schools is coincident with
state citizenship, and cannot be circumscribed unless an alternative
opportunity 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 Indian's right to State education.<sup>21</sup>

In this regard the California Supreme Court has
been explicit. The question arose in that state in 1924, when
Alice Piper, a full-blooded Indian, who was a citizen of the
United States and of California, who had never lived in tribal
relations with any tribe of Indians, nor owed or acknowledged al-
legiance or fealty of any kind to any tribe or "nation" of Indians,
nor lived on a Government Indian reservation, sought admittance to
a state public school. A law of California declared that the
governing body of the public school could exclude Indian children
from attending, provided the United States Government maintained
an Indian school within the school district which the Indian
children were eligible to attend. Pursuant to this statute, the
school board refused Alice Piper admission, and through her
parents she sought a writ of mandamus to compel the school board

<u>21</u> Piper v. Big Pine School District of Inyo County, 226 P. 928 (1924).

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to admit her, asserting that the state law was contrary to the
state constitution. The Supreme Court of California granted
the writ, and held that the law violated the state constitution
and the federal constitution as well, saying:

> The privilege of receiving an education
> at the expense of the state is not one belonging
> to those upon whom it is conferred as citizens of
> the United States. The federal Constitution does
> not provide for any general system of education to
> be conducted and controlled by the national govern-
> ment. It is distinctly a state affair. * * * But
> the denial to children whose parents, as well as
> themselves, are citizens of the United States and
> of this state, admittance to the common schools
> solely because of color or racial differences with-
> out having made provision for their education equal
> in all respects to that afforded persons of any
> other race or color, is a violation of the provi-
> sions of the Fourteenth Amendment of the Constitu-
> tion of the United States, * * *.22

At this point another question arises. What type of
educational benefit is the state bound to confer upon the citizen
Indian? Are state laws segregating for scholastic purposes the
Indian child from the white child and denying to the former ad-
mittance to other than the prescribed school constitutional?

22/ "The facts stated in the amended writ show that the petitioners' child was entitled to be admitted as pupil of said school district No. 7, and to receive instructions therein in all respects as the white children. They and their parents are citizens of the United States and of the State of Oregon and reside in said school district. They are not members of any Indian tribe, and they conform to the customs and habits of civilization. These children are half white and white, and their rights are the same as they would be if they were wholly white." Crawford v. School District No. 7, 68 Ore. 388, 137 P. 217.

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While this question has not been raised directly, the validity
of such legislation is supported by dicta provided there is no
disparity in the educational advantages offered, for as the
California court in the Piper case indicated:

> The establishment by the state of separate
> schools for Indians, as provided by the statute,
> does not offend against either the federal or
> state Constitutions. Questions of racial dif-
> ferences have arisen in various forms in the sev-
> eral states of the Union and it is now finally
> settled that it is not in violation of the organic
> law of the state or nation, under the authority of
> a statute so providing, to require Indian children
> or others in whom racial differences exist, to at-
> tend separate schools, provided such schools are
> equal in every substantial respect with those fur-
> nished for children of the white race. "Equality,
> and not identity of privilege and rights, is what
> is guaranteed to the citizen."23

Of course, it is beyond question that Indian children have
a right to state educational benefits when Congress appropriates
grants-in-aid to state schools with a provision that Indian children
shall be allowed to attend without discrimination.24 Similarly, when
schools are established on Indian land, the federal statute disposing
of the lands may provide that Indian children shall be allowed to at-

23/ See for similar opinion McMillan v. School Committee, 12 S.E.330.
For construction of legislative intent in this respect see Ammons
v. School District #5, 7 R. I. 596.

24/ Cf. Stat. This footnote to be filled in when file is
completed.

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attend the schools. The usual provision is "Provided, that said
school shall be conducted for both white and Indian children
without discrimination." 25/

Compulsory School Attendance


Sometimes in an excess of zeal Government agents have under-
taken to compel the attendance of Indian children at federal schools.
Whenever such action has been referred to the courts, they have held
that in the absence of Congressional provision in this respect such
methods were illegal. This proposition was first advanced in 1881
when a Montana court, in denying a writ of habeas corpus compelling
the return of two Indian children alleged to have been taken away from
the Agency school against the wishes and without the consent of the
agent, pointed out:

The Government does not assume to force upon the
Indians an education, nor to compel them to adopt
the modes of civilized life. 26/

In Iowa an Indian child named Lelah-puc-ka-chee, while in
attendance at federal school, married an Indian. 27/ Thereafter

<u>25</u> 52 Stat. 685; other statutory references to be added when file
is completed.

<u>26</u> United States v. Imoda, 4 Mont. 44, 38 Pac. 721.
It has been made unlawful for and Indian agent or other employee of the Government to induce or seek to induce by withholding rations or by other improper means, the parents or next of kin of any Indian to consent to the removal of any Indian child beyond the limits of any reservation. U.S.C.A., Title 25, sec. 286, Act of August 15, 1894, sec. 11, 28 Stat. 313; and U.S.C.A., Title 25, sec. 287, Act of June 10, 1896, sec. 1, 29 Stat. 348.

<u>27</u> In re Lelah-puc-ka-chee, 98 Fed. 429, 434 (1899).

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the Indian agent and the school superintendent sought to compel her to continue her education. However, the court ruled that the Indian agent and the school superintendent were without the power to compel the attendance of the children contrary to the wishes of their parents. 28/

Nor can the judicial process of the state be invoked to
defeat this proposition. This is well illustrated by an action which
arose as the result of an effort on the part of an Indian agent to
overcome opposition to a school near the Sac and Fox Reservation.

28 In an Alaskan case the question of continued attendance at school was at issue. It is interesting to note that the decision was put on a quasi contract basis, the Alaska district court holding the mother of the child could not reclaim him from the custody of a Presbyterian mission school because she had agreed to allow him to attend for five years, and unless a clear breach or abuse of the child or a failure to educate and provide for and properly superintend its moral training was shown, it would be presumed that the best interests of the child would be served by continuance at school. Contrast with this the accepted view that when a white parent agrees to transfer custody of the child to another not in loco parentis, he may ordinarily repudiate that agreement and the courts will return custody to him unless a reciprocal affection has grown up between the custodian and child. The primary concern in these situations is still the best interest of the child, but the courts ordinarily hold that when the parents are alive and competent, it is to the best interest of the child, when he so desires it, to return him to the parents. Sards v. Villapiano, 81 F. 2d 255, 65 App. D. C. 121.

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He applied at the district court of the county to be appointed the guardian of the persons of the Indian children. His application was granted and he was directed to place the children at the industrial school, which was done. Later this proceeding was declared invalid by the federal court which ruled that if a county court could appoint a competent person as guardian of Indian children and could direct the placing of these children in any of the schools of the state, then the tribal condition of the Indians would be speedily broken up, not in pursuance of the acts of the national government, but through the enforcement of the laws of the state acting upon the persons and property of the Indians.

29 Peters v. Malin, 111 Fed. 244, 251 (1901).

In North Carolina the court considered the constitutionality of a state law compelling attendance at a federal school, saying: "It has been suggested that, the school being supported and maintained by the federal government, the state could not compel the defendant to send his child there. The point does not arise for the act while creating the district a "special school district" — as is also the case with graded schools supported in whole or in part by other than state and county funds — and requiring the Indians within that district to send their children between 7 and 17 to school, provided the United States government furnishes 'all proper facilities, together with board, clothing, books, medicine, medical attendance and other necessary expenses,' does not require them specifically to send the children to the government school, but specifically says that they may send their children to any 'other school for a like time and period.'" However, notice the dissent which was emphatic in declaring the law violative of the Constitution. State v. Wolf, 145 N. C. 440, 59 S. E. 40.

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Use of Funds for Indian Education

From time to time Congress has placed certain restrictions on its appropriations for support of Indian schools. The difficulty in distinguishing such moneys from tribal funds made available for the same purpose has led to certain complications.

In fact, the question of whether an appropriation of Congress under the heading, "Fulfilling Treaty Stipulations and Support of Indian Tribes", was subject to general restrictions, so that the money could not be used to fulfill a contract made by the Commissioner of Indian Affairs with the "Bureau of Catholic Missions" for the care and education of 250 Sioux Indian children, went to the Supreme Court of the United States. 30

The contract was fully performed by the mission society, but three Sioux Indians objected to its payment on the ground that it violated the restriction in the clause, "and it is hereby declared to be the settled policy of the Government to hereafter make no appropriation whatever for education in any sectarian school." But the court distinguished gratuitous appropriations for education from appropriations of tribal funds, pointing out:

> These appropriations rested on different grounds from the gratuitous appropriations of public moneys under the heading "Support of Schools." The two subjects were separately treated in each act, and,

30/ Reuben Quick Bear v. Leuff, Commissioner of Indian Affairs, 210 U. S. 80 (1908).

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naturally, as they are essentially different in
character. One is the gratuitous appropriation of
public moneys for the purpose of Indian education,
but the "Treaty Fund" is not public money in this
sense. It is the Indians' money, or at least is
dealt with by the Government as if it belonged to
them, as morally it does. 31

The proper application of funds made available as loans to
Indian students who could not maintain themselves in attendance in
schools without such assistance has been another perplexing problem.
Recently the Commissioner of Indian Affairs recommend that a short
course in mechanics be established under the Phoenix Indian School
in order to fit certain Indians for technical employment on reserva-
tions. It developed that a number of the students were unable to
take the course unless financial support was provided for the families
during the period of the course. Accordingly the Solicitor of the
Interior Department was asked for his opinion as to the right of
the Indians to loans for the payment of tuition and other expenses.
It was held that such loans fell within the scope of Section 11 of
the Act of June 18, 1934 32 and supplementary appropriation
statutes governing federal education loans to Indians attending.

31 Id., the Solicitor of the Interior cited this case with approval
August 1, 1933. Acting Solicitor, Department of the Interior,
Opinion No. M-27514.

32 48 Stat. 984 and 49 Stat. 190.