Pursuant to the procedure agreed upon in Mr. Littell's conference with Solicitor Margold and First Assistant Solicitor Kirgis, the memorandum to Mr. Littell, the authorship of which is unknown to me, has been subjected to a careful examination. This examination was made by First Assistant Solicitor Frederic L. Kirgis, based on extensive review of the authorities and principles by Assistant Solicitor William H. Flanery, two members of my legal staff who are especially qualified to render an impartial and informed judgment on the merits, and whose qualifications Mr. Littell recognized. I am enclosing herewith a memorandum signed by First Assistant Solicitor Kirgis showing the results of his examination.

The memorandum indicates that out of approximately 64 criticisms contained in the unsigned memorandum to Mr. Littell (55 directed at chapter 9, 2 directed at chapter 25, and 7 directed at a fragment of chapter 12), 20 were entirely erroneous, 26 more were partly erroneous and partly correct, and the remaining 18 were well founded. It is further indicated that, for the most part, the matters properly criticized could be quite readily corrected. The errors found in the unsigned memorandum of criticism involve both errors of law and errors arising from failure to understand the arrangement of subject matter in the proposed handbook, because of which many passages were criticized for not dealing with points elsewhere covered in the handbook. Those charges which turned out to be justified generally point to errors which one may reasonably expect to find in preliminary drafts of a difficult legal study, particularly when the preliminary drafts consist of fragments which have to be integrated into a larger whole.

The only conclusion which I can reach is that Mr. Littell was imposed on by the submission to him, as a basis for final action, of a memorandum which was not based on adequate research or inquiry. It seems to me that the memorandum itself might well have been designated as a preliminary draft, as were the fragments of the Survey which were so thoroughly criticized by the memorandum.

Although the intensive study undertaken by First Assistant Solicitor Kirgis was limited to the specific criticisms contained in the unsigned memorandum to Mr. Littell, I should like myself to comment briefly on the more general charge made in Attorney General Murphy's letter to me dated December 13, 1939, in which my suggestion that the Department of Justice contribute to this Department funds or services which were necessary to put the results of the survey into handbook form, for the use of this Department, was rejected. The Attorney General's letter of December 13, 1939, declared:

2

cost of the project was to be borne by the Department of Justice, it
was improper for Mr. Cohen, in his direction of the work, to cover in
detail certain subjects not of particular interest to the Department
of Justice. This assumption is implicit in the criticism made of
chapter 25 dealing with the Pueblos, which ran to 63 mimeographed
pages. In fairness to Mr. Cohen, it should be said that the legal
problems involving the Pueblo Indians which affect the work of this
Department are extensive and complicated, and that Solicitor Margold,
who shared with the Assistant Attorney General responsibility for
supervising the work of the survey, had specifically requested Mr.
Cohen to prepare a detailed analysis of these problems. Similarly,
the memorandum of an "advisory committee" which was attached to the
unsigned memorandum to Mr. Littell criticized the entire project on
the ground that it was not limited to those questions (primarily
jurisdictional and procedural) which the Trial Section of the Lands
Division would be likely to deal with in litigation.

I doubt whether any one can say with certainty of any sub-
stantial part of the field of Federal Indian law that it will never
be involved in Federal litigation; but quite apart from such doubts,
it is only fair to note that when Solicitor Margold and Assistant
Attorney General McFarland agreed upon the project it was clearly
understood that the project should serve the needs of this Depart-
ment in presenting litigation as well as the needs of your Department
in conducting litigation. The assumption of a basic divergence
between the interests of the Department of Justice and the interests
of this Department in the field of Indian law seems to me unfortunate.
Since a large part of the work of the Department of Justice in this
field involves litigation under statutes drafted in this Department,
and since such litigation often arises out of mistakes made by admin-
istrative officials, it seems to me that work which is designed to
lessen the number of such mistakes and to provide a more adequate
basis for legislative work will ultimately prove of value to the
Department of Justice, even though portions of the work may be of no
immediate use to brief writers. What is true of the needs of this
Department is true in perhaps a lesser degree of the needs of other
administrative agencies and legislators, several of whom have already
indicated the high valuation which they place upon the work of the
Indian Law Survey.

Enclosure 2302098.

4

CHECKING

1. Condensation - 10% at least, preferably 20%.

2. Elimination of duplications and inconsistencies.

3. Add cross-references, particularly in early chapters.

4. Check cases for overrulings, etc., where not already checked.

5. Check statutes for repeals, interpretations, etc., where not already checked.

6. Make sure all general regulations in 25 C.F.R. are considered.

7. Go through topical index and make sure that all important references are considered under relevant chapters.

UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF INDIAN AFFAIRS

WASHINGTON

June 1, 1939

FOR: MR. COHEN

FROM COMMISSIONER OF IND. AFFAIRS

(N.B. you may keep these papers)

ITEM: Do you still have a file of
AMERICAN INDIAN LIFE, loaned to you
April 12, 1939, thru Mrs. Pollitt?
It has never come back here.

W. M. Pomeroy

## Plan of Work

## Handbook of Federal Indian Law

### Week ending April 27, 1940

- Already mimeographed - 113 chapters (8, 9, 10, 17, 18, 25, 27, 30, 31, 32, 33, 34 of 34)

- F.S.C. - review chapters 15 and 12, finish chapter 14.

- B.R. - continue on chapters 29 and 34.

- P.C.R. - finish chapter 6.

- T.K. - write chapter 1.

- L.K.C. - finish chapter 2.

- T.H. - work on chapter 5 - read proof on chapter 15.

- M.P. - help P.C.R. on chapter 6.

- To be sent down for mimeographing - 3 chapters (12, 14, 15)

### Week ending May 4, 1940

- F.S.C. - write chapter 7, review chapters 1, 2, 3.

- B.R. - start chapter 20, continue on chapter 29, finish chapter 34.

- P.C.R. - start chapter 22.

- T.K. - write chapter 13.

- L.K.C. - help review on chapter 1.

- T.H. - finish chapter 5.

- M.P. - finish chapter 6, start chapter 28 and Tribal Index.

- To be sent down for mimeographing - 2 chapters (1, 2).

### Week ending May 11, 1940

- F.S.C. - continue on chapter 7, review chapter 5, 6.

- B.R. - continue on chapters 20 and 29.

- P.C.R. - continue on chapter 22.

- T.K. - start chapter 11.

- T.H. - finish chapter 3.

- M.P. - continue on chapter 28 and Tribal Index.

- To be sent down for mimeographing - 2 chapters 5, 6.