September 19, 1939

MEMORANDUM FOR MR. COHEN, CHIEF, INDIAN LAW SURVEY

FROM: R. H. FABIAN, CHAIRMAN, ADVISORY COMMITTEE FOR THE INDIAN BOOK.

RE: COMMITTEE REPORT.

The advisory committee met September 12, 1939, to consider proposed changes in the Table of Contents of the Indian Book and to make other suggestions with a view to the removal of objections emanating from various sources. Present were Messrs. Churchwell, Fabian, King, and Haas. Mr. Capo was out of the city.

* * * * *

1. Both the Interior and Justice Department are interested primarily in the relationship of the Federal Government to the Indian, the extent to which it has the right or duty to protect his interests, and the means by which such protection may be best accomplished. Because of this, the committee recommends that the function of the Federal Government should be uppermost in the mind of the writer as each chapter is prepared. For example, we are not as interested in whether it is the duty of a county registrar to allow an Indian to vote, as we are in the question of whether it is the duty of the Indian agent, representing the Interior Department, or the United States Attorney, representing the Department of Justice, to take steps to secure to the Indian the right to vote. It is true that once litigation starts and the United States becomes a party, authorities sustaining the constitutional rights of the Indian, as such, would be cited. But if the federal function does not touch the particular

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The Government, as guardian of the Indians, must be acquainted with all of the rights and duties of its Indian wards, even though there may not be any immediate need for it to take any legal action. In reaching decisions concerning legislative and administrative questions which arise daily, officials dealing with Indian Law should be given as complete a picture of the whole law as is feasible. This may prevent much litigation and will assist in law enforcement. It may also aid in the formulation of intelligent policies.

The majority of the committee seems to regard history as comparatively unimportant. The past and present fuse indistinguishably in most significant legal problems. This is especially true in many phases of Indian Law since most Indian claims originate in old treaties. The examination of federal cases on Indian affairs, of which about 1800 have already been read and analyzed, discloses that in many, and perhaps in the majority of cases, historical data occupies a large part of the court's attention. This is exemplified in many recent cases, such as the following which were submitted to me by Mr. Miller:

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Sioux Tribe v. United States,

84 Ct. Cl. 16 (1936)

Shoshone Tribe v. United States,

82 Ct. Cl. 25 (1935)

Duwamish Indians v. United States

79 Ct. Cl. 530 (1934)

Fort Berthold v. United States

71 Ct. Cl. 308 (1930)

These cases involved among other things whether expenditures
for certain services could be deducted from tribal money held
in trust by the United States.

The majority of the committee speaks of "historical
scholarly, completeness". While I am not sure what this term
means "completeness" is merely relative. Faced with the mass
of data and desirous of writing a book which should not be
too voluminous, selection is of the essence. However, I
should hesitate to say that the four chapters described by
you as background and by the committee as introductory mater-
ial could be adequately treated in from fifty to one hundred
pages, and deserves only one tenth to one twentieth of the
contents of this book. I should prefer to determine the size
of these chapters after drafts of these and other chapters
are submitted. Though I agree with the rest of the committee
that federal control over Indian tribes should be distinguish-
ed from federal control over Indians, and the basis of this
distinction is found in opinions of federal courts, neverthe-
less a discussion of federal control over both must necessari-

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1.ly be included in a discussion of tribal or individual rights.

1. Thus, for example, a discussion of federal control over the allotment of an individual Indian must include some mention of what the result would be had the property retained its tribal character.

2. While I do not think that the proposed grouping of the chapters is an improvement, I know that as the work progresses you are giving considerable thought to this problem.

that was
3. Conforming to your instructions the staff has,
as you know, carefully indexed material dealing with federal
control. Knowing that you want this subject adequately treated,
I see no reason for making any recommendation on this question.
While I favor an adequate coverage of this subject in view of
its importance, I prefer to let the Unit determine the mechan-
ics to be used in treating it.

4. Having seen the importance of chapter 12 in
the solution of a number of problems raised in cases, includ-
ing some of the foregoing decisions, and believing that it
will perhaps constitute the most rapidly expanding field of
Indian Law, I cannot agree with the recommendation that
this topic should not be adequately treated. While I agree
that Indian trade and depredation problems do not arise as
often as other questions, nevertheless they should be covered,

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if possible. Depredations, for example, are still a factor
in recent decisions of Indian cases. See *Duwamish Indians*
v. *United States*, 79 Ct. Cl. 530, at page 612 (1954).

Knowing that Indian liquor violations constitute a very
important problem for the Criminal Division of the Depart-
ment of Justice and the Law Enforcement Division of the
Bureau of Indian Affairs, Department of the Interior, I
was glad to see the first draft of chapter 18. I believe
that when it is in final form, it will give to District
Attorneys, as well as Indian agents and Federal Attorneys
in Washington, an opportunity for understanding this law
without consulting other sources of information. I cannot
see how the detailed circulars and instructions, which are
often very voluminous and difficult to use, can take the
place of a chapter on federal services which will summar-
ize the law.

I am in favor of a thorough discussion of the
Five Civilized Tribes because of the importance of litiga-
tion in the past affecting them. The importance which I
attach to this subject is demonstrated by my submitting,
for the consideration of the committee, the advisability
of devoting a separate survey wholly to these Indians.

1/ See Report of the Attorney General for 1938, L. 227, enumerating 1537 instances of Indian liquor violations for the preceding fiscal year.

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In view of the special problems involving Pueblos and Alaskan Indians, I do not believe that they should be relegated to a subordinate position in a general chapter. The first draft of the chapter on Pueblos has already been submitted and a study of it will disclose the problems peculiar to these interesting people. As I know from a reading of the material in the files, the 29,000 Alaskan Indians have special problems because of their geographic and economic condition and the special laws relating to them. Many legal problems are likely to arise regarding them. I am informed that within the past year a number of such questions have already arisen.

Respectfully

Theodore H. Haas

11

of less value to the Trial Section than to some other part of the
Department of Justice or some other agency, seems to me to represent an extreme
of bureaucratic provincialism. I know that the Trial Section, since it has
been under Mr. Collett, has never been dominated by any such attitude and
has cooperated most wholeheartedly with other agencies of the Federal Govern-
ment.

VI. Conclusion:

In conclusion I should like to take the opportunity to note that the
majority of the Committee apparently contemplates a work very different from
that which the undersigned was commissioned to prepare, the outlines and
purposes of which are set forth in my memorandum of April 12 to Assistant
Attorney General Littell, which served as a basis for staff selection,
budgeting and time schedule. Most of the files and writing thus far com-
pleted would perhaps be irrelevant to a work based on the general principles
enunciated by the Committee majority. My own judgment which is based upon a
certain amount of experience in book writing generally and in Indian litiga-
tion and prevention of Indian litigation, is that a book based upon the
principles laid down by the Committee majority in section 1 of its memorandum
would be impossible to write and very nearly useless when written. I do not
contemplate writing that sort of volume.

Felix S. Cohen,
Chief, Indian Law Survey

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Again, there seems to have been no endeavor to make use of
All of the material submitted gives evidence of
the wealth of material available in the great volume of
inadequate research and lack of experience in the preparation
appellate briefs prepared by this Division in Indian cases.
of a law book designed to serve as a complete and accurate
Similarly, in the past two years, this Division has participated
handbook for lawyers engaged in actual litigation. Difficult
in hundreds of Indian cases on appeal, thus having a part in
and complex problems are casually answered in the handbook
writing a good deal of law which will govern the Indians for
by cursory paragraphs. General propositions of law are
years to come, yet, except in one or two instances, made of
stated repeatedly without citation of authority. Citations that
these current, live cases are cited.
are made do not support the propositions for which they are
principle. Specific citations of each chapter sub-
cited. Leading decisions of the Supreme Court of the United
 States are made freely, but it is pertinent to point out one
States and other courts are ignored and opinions of the
or two typical examples which separately support most of the
Solicitor of the Department of the Interior frequently are
observed made in the preceding paragraph.
relied upon as authority. Thus, ignoring the axiom that
1. On page 11 of Chapter 9, "Individual Rights in
"authorities are to be weighed and not numbered," a major
"Trial Property," there appears this paragraph:
promise is often proved by opinions of the Solicitor of the
Department of the Interior or by district court cases when
two and occupation of a tribe, members of the tribe
apposite United States Supreme Court cases are available.
are entitled to use before or movable water within
Statutes are discussed, quoted and cited without reference
to subsequent repeals or amendments. Apparently, no attempt
has been made to "Shephardize" either court decisions or
on the same page.
statutes, and certainly no effort has been spent in
distinguishing "holdings" from "dicta" in the cases cited.
In support thereof, the following footnote is found
the tracey of 1888 with the Crew Indians (15cht. 649), the
unless within the reservation were reserved for the equal

benefit of tribal members and when allotments of
these lands were made, the right to use the waters
passed to the allottees. See also Skeem v. United
States. 273 Fed. 93 (C.C.A.9, 1921) holding that
the members of the Shoshone tribe who occupied
tribal lands under Article 6 of the Fort Bridger
Treaty, ratified in 1869 by Congress (15 Stat.673)
and who were awarded allotments of these lands
under Article 8 of the Treaty of 1892 (31 Stat.
672) were entitled to the water rights.

To anyone familiar with the extremely technical,
difficult and important questions involved in any case where
individual rights in tribal waters are involved, this discussion
is almost startling.

Although it is cited as primary authority, the Solicitor's
Opinion is not available here, but this much is clear: Neither
the attorneys in this Department nor those handling Indian Irri-
gation cases in the Solicitor's office, Department of the
Interior, have been able to dispose of the Powers case as
easily as is done in this chapter. In the first place,
whether the statement of the holding is correct has been the
subject of much debate since it is possible to interpret the
opinion as holding either that the waters reserved were to be
distributed equally among allottees or upon a per acre basis -
a crucial distinction in water-right law. Cf. U. S. v. McIntire
101 F. 2d. 650, 654 (C.C.A. 9, 1939). Secondly, the main

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Lastly, to cite the *Powers* and *Skeem* cases as holding
that "members of the tribe are entitled to use bodies of
*nuvigable* water within the reservation" (italics supplied),
shows, at least, a lack of familiarity with the practical
problems involved. The subject matter of all these cases
has never been "bodies of navigable water", but, on the con-
trary, in each instance the dispute was over precious trickles
of water that mean life or death in the arid west.

2. Pages 10 to 13, inclusive, of the Chapter on "Indian Education" deal with the rights of Indian children to attend state schools with particular reference to the problem of discrimination because of race or color. Practically the whole discussion is devoted to a review of *Piper v. Big Pine School District of Ingo County*, 226 P. 928, a decision of the Supreme Court of California which is described as "the only case which has squarely considered the Indian's right to State Education." No mention is made anywhere in the discussion of *Missouri ex rel Gaines v. Canada* 305 U. S. 337, an historic decision rendered last term by the Supreme Court of the United States in which the identical problem was settled, the Court holding that the action of the State in furnishing legal education within the State to whites

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while not furnishing legal education within the State to made
negroes, was a discrimination repugnant to the Fourteenth Amendment,
and repugnant, since those criteria might be over-
seen by while such an omission is serious enough in itself,
it is to be hoped that it is not indicative of the research other
methods pursued. Obviously, the Gaines case will not be
found in any of the digests under the heading "Indians", but
clearly it appears under some cognate headings.

In short, it is plain that the preliminary drafts give
rise to the query of whether the manual may seriously embarrass
the sponsors of the project. This apprehension is further by
strongly reinforced by a more specific analysis of each separate
chapter, which follows, the main point being that there is a
complementarity between Chapter 9, "Individual Rights in Tribal Property" -

To point out all of the errors of statement, inaccuracies of
citation, and other substantive defects in the draft of this
chapter, which will print more than 100 pages, would require
a great deal of research and your personal use of a memorandum longer
than the chapter itself. In addition to example No. 1, supra,
(which alone weakens confidence in the draft) there is attached
hereto as "Exhibit No. 1" a list of specific page by page
criticisms which are apparent from a quick study of the draft.

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Throughout the chapter no attempt has been made to
differentiate or to warn the reader of any of these dis-
tinctions. Consequently, statements which on their face
are general and fundamental in their scope are nothing
more than a particular legislative right granted to one
tribe.

C. Chapter 25, "Pueblos of New Mexico." - Without commenting upon either the substance or the draughtsmanship of this chapter - which consists in large part of lengthy quotations from court opinions, "the Blair opinion", the "Iverson memorandum" and decisions of the Solicitor, Department of Interior - it is sufficient to point out that in the entire chapter there is cited only twenty six cases, nine of which are early New Mexico Supreme Court decisions and sixteen of which are federal cases. Of the sixteen federal cases, six are cited on page 26 in support of one proposition, and of the remaining ten, several are cited merely in support of general propositions of law not peculiar to the Pueblos. But in any event, it is quite clear that if, throughout the entire history of the Nation, the United States has been concerned in only sixteen law suits in which the Pueblos were involved, a seventy-five page chapter in the proposed handbook is wholly unwarranted.

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D. Chapter 12, "Indian Education." - The seventeen pages submitted on this subject are part of a larger chapter to be entitled "Federal Services for Indians". Laying aside the propriety of the introductory quotation from Cornplanter's conversation with George Washington, it is plain that all of the material submitted could be disposed of in not more than three pages. More seriously, though, are such criticisms as pointed out in Example No. 2, *supra*. Further examples may be found throughout the chapter. Thus on pp. 27-28 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 was simply that the husband of the child involved had no right to a writ of habeas corpus. On the same page (28) reference is made to "an Alaskan case", and no citation whatever is given; and *Sards v. Villepiano*, 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.

Again, the author undertakes to discuss (pp. 16-17) on the authority of one case, the "Use of Funds for Indian Education" and completely ignores a large group of cases in which

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the precise question was involved. See: 66 Ct.Cls. 64;  
Ct. Cls. 308, 81 Ct. Cls. 101; 84 Ct. Cls. 16; 87 Ct. Cls. 91.

As stated above, it is manifest that the submitted drafts are fundamentally unsound, require intensive further research and presentation de novo.

### II. Recommendations
- It should be clearly noted that none of the foregoing criticisms are intended as a reflection upon the work of any individual connected with the Survey. On the contrary, the difficulties inherent in a project of this magnitude would seem to make it impossible to treat the subject matter adequately within the time contemplated by a staff such as has been assigned to the Survey. Indeed, many persons familiar with the problems have expressed the view that the subject matter is so vast - it cuts through the entire field of law - that no staff could ever reduce it to an adequate handbook of usable proportions.

On the other hand, the drafts submitted are so fundamentally inadequate that, coupled with all other considerations, it would seem advisable to discontinue all further work on the manual forthwith.

It is unfortunate, of course, that such a desirable objective should have to be abandoned, but fiscal considerations

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*Chapter 30, "Table of Cases", 381

Chapter 31, "Table of Interior Department Decisions", 38

Chapter 34, "Index", 7

Total 1481

### III. Mise transcription of compiled
**Indian statutes.** 3387 out of 4369 items
already miseographed.

2. **Chapters Submitted for Review:** A first draft of Chapter 18, "Indian Liquor Laws", is submitted herewith for review.

### 3. Procedure for Review of Chapters:

On September 1 drafts of chapters on "Rights of Individual Indians in Tribal Property" and "Pueblos" and of a subchapter on "Indian Education" were submitted for review. To date, the only criticism I have received on any of this material has been your own brief note on the first of these chapters. According to the time schedule which I submitted on May 15th, the reviewing of each chapter was to take not more than two months. Under the circumstances, I wish to suggest the importance of establishing a definite procedure for expediting such review.

I feel that casual or haphazard review of these chapters is bound to be worse than useless. I also feel that review by committees and conferences is a useless waste of time. In order that review may have value, individual attorneys should be given specific tasks to accomplish within a specified time, and each reviewer should either have a previously acquired encyclopedic knowledge of the particular topic or he should recognize the extent of his ignorance and carefully examine the indexed materials, legislative, judicial, and administrative, upon which the chapter is based. The latter task is one that demands a good deal of time. It cannot be accomplished in off-hours by an attorney who is laboring under a full load of regular assignments.

In view of these circumstances, I should like to offer three suggestions:

(1) That not more than three chapters (preferably one or two) should be assigned for review to any one attorney.

(2) That such assignments should be seriously taken into account in weighing the amount of other work given the particular attorney.

(3) That as far as possible, the prior experience and the preferences of individual attorneys should be considered before any assignment is made.

FSC-DRW

October 14, 1939

MEMORANDUM FOR MR. LITTELL, ASSISTANT ATTORNEY GENERAL

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

RE: PRESENT STATUS OF HANDBOOK OF FEDERAL INDIAN LAW

1. Present Status of Work:

I. Files: Minor additions were made to the files during the past week, bringing the total number of items indexed and filed to 7439.

II. Writing of book: The writing of the book is proceeding according to schedule. The following table indicates the status of each chapter. Chapters of which the first draft has been completed are marked with an asterisk. Chapters for which the first draft has been partially completed show simply the number of completed pages already typed. Chapters on which work has been begun but no part of the first draft has yet been typed appear in the following list with a zero in the "pages completed" column.

| | Pages completed |
|---|---|
| Chapter 3, "History of Indian Treaties", | 55 |
| *Chapter 9, "Rights of Individual Indians in Tribal Property", | 84 |
| Chapter 10, "Rights of Individual Indians: Personal Property", | 0 |
| Chapter 12, "Federal Services for Indians", | 16 |
| Chapter 13, "Taxation", | 10 |
| Chapter 15, "Tribal Property", | 15 |
| Chapter 16, "Lessees, Licensees and Trespassers", | 0 |
| Chapter 17, "Indian Trade", | 0 |
| *Chapter 18, "Indian Liquor Laws", | 30 |
| *Chapter 25, "Pueblos", | 68 |
| *Chapter 27, "Alaska", | 73 |
| Chapter 29, "Table of Statutes and Treaties", | 763 |

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<table><tr><td>*Chapter 30, "Table of Cases",</td><td>381</td></tr><tr><td>Chapter 31, "Table of Interior Department Decisions",</td><td>55</td></tr><tr><td>Chapter 34, "Index",</td><td>7</td></tr><tr><td>Total</td><td>1557</td></tr></table>

### III. Mimeographing of compiled Indian statutes

3547 out of 4359 items already mimeographed.

2. Personnel: The legal staff of the Survey was completed on October 9th when Mr. Geiser reported for work.

3. Review of Chapters: No progress.

Respectfully,

October 21, 1939

MEMORANDUM FOR MR. LITTILL, ASSISTANT ATTORNEY GENERAL

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

## 1. Present Status of Work:

I. Files: Minor additions were made to the files during the past week, bringing the total number of items indexed and filed to 7496.

II. Writing of Book: The writing of the book is proceeding according to schedule. The following table indicates the status of each chapter. Chapters of which the first draft has been completed are marked with an asterisk. Chapters for which the first draft has been partially completed show simply the number of completed pages already typed. Chapters on which work has been begun but no part of the first draft has yet been typed appear in the following list with a zero in the "pages completed" column.

| | Pages completed |
|---|---|
| Chapter 3, "History of Indian Treaties", | 70 |
| Chapter 7, "Scope of Tribal Self-Govern-ment", | 0 |
| *Chapter 9, "Rights of Individual Indians in Tribal Property", | 84 |
| Chapter 10, "Rights of Individual Indians: Personal Property", | 0 |
| Chapter 12, "Federal Services for Indians", | 16 |
| Chapter 13, "Taxation", | 25 |
| Chapter 15, "Tribal Property", | 53 |
| Chapter 16, "Lessees, Licensees and Trespassers", | 0 |
| Chapter 17, "Indian Trade", | 0 |
| *Chapter 18, "Indian Liquor Laws", | 30 |

DEPARTMENT OF JUSTICE

WASHINGTON, D.C.

3. Your pages are devoted to a criticism of a single provision in chapter 9 regarding navigable water, and of the November 1, 1959, section that precedes it. It is argued that the writer about a lack of jurisdiction with the practical problems involved since he talks about "navigable water" when the machinery, in each instance, the dispute was over the area.

MEMORANDUM FOR MR. LITFELL, ASSISTANT ATTORNEY GENERAL

This statement is absolutely true. The primary citation shows that MR. LITFELL, ASSISTANT ATTORNEY GENERAL has not read the chapter and section in question. The quillate andunderline

RE: CRITICISM OF HANDBOOK OF FEDERAL INDIAN LAW available here.

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. Provost expressed concerning his.

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 analysed 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

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; 55 Columbia Law Review 309), 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 memorandum 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, 1939). The committee did not at any time see fit to confer with me on any question, but instead prepared, on my request, 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 memorandum 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 accordance with your request that I furnish you immediately with my comments on the memorandum of criticism.)

Copy to Solicitor Margold.
First Assistant Solicitor, Kirgis.

4

December 28, 1939.

MEMORANDUM for Mr. Cohen, Chief, Indian Law Survey.

FROM: Mary K. Morris.

RE: Solicitor's Office and Indian Law Survey Material.

In distributing mimeographed chapters of the handbook I have had occasion to discuss with members of the Solicitor's staff the value of the "outline" and the "index" of Solicitor's opinions. These conversations were so interesting that I am taking the liberty of transmitting to you a summary of them.

**Miss Lavender** Has just begun work in the field of Indian law. Feels that the "outline" has cut down immeasurably the orientation period usual when beginning research in an unfamiliar field. "Index" has also proved useful.

**Mr. Lachman** "Index" and "outline" have proved invaluable. Is looking forward to a similar "index" of statutes, cases, Congressional documents, texts etc. which he feels will eliminate waste motion.

**Mr. Mock** Feels "index" will be a definite time-saver but has not as yet had occasion to make full use of it or of the text material. Is desirous of obtaining in some available form coverage of legal questions which arise regarding Indians and has found that the only usable collection of such information is the index giving past rulings and decisions and the text material which is in process of preparation.

**Mr. Meiklejohn** Has found "index" very useful. Believes that "index" of other materials will be most important and helpful.

**Mr. Elwell** Has read mimeographed chapters and much impressed with readability and thoroughness of exposition. Is enthusiastic about having "handbook" finished. Feels that "handbook" and various "indexes" would make possible important savings in expenditures for legal services. Would like to see same research methods used for other litigation problems of Interior.

COPY

UNITED STATES
DEPARTMENT OF THE INTERIOR

Office of The Commissioner of Indian Affairs

Washington

Commr J C
647-40

January 12, 1940.

MEMORANDUM for Mr. Margold:

I have received a copy of Mr. Brophy's letter of December 29 pertaining to the memorandum upon the chapter upon Pueblo law. I had not mentioned previously, that I think this whole chapter is an admirable and exceedingly useful piece of work. I do suggest a reconsideration of the matter discussed in Mr. Brophy's third paragraph, i. e., that it would be desirable to define a Pueblo as that sort of corporation which is not liable for torts.

cc Mr. Brophy

LEGISLATION & GENERAL SECTION

FRANK CHAMBERS, Chief

WM. B. JONES, Asst. Chief

Miss Williams, Secretary

Mrs. Moody, Secretary

Miss Turner, Docket Clerk

(All matters regarding pending or proposed legislation, including preparation of memoranda thereon; supervision of research projects and preparation of opinions, except when assigned to Appellate Section or elsewhere; miscellaneous requests for information or service.)

ATTORNEYS SPECIALLY ASSIGNED

Bassford

King

Vaughan

(All staff members are called upon to assist in this work from time to time.)

CLERKS & STENOGRAPHERS

John Cain - Clerk

John Willard - Steno (LWOP)

TITLE AND CONDEINATION SECTIONS FIELD STAFF

(ATTORNEYS IN CAPITAL LETTERS, STENOGRAPHERS IN LOWER CASE)

Alabama:

BEATTY, MAC
BONDURANT, GEORGE P.
LOGAN, HILLARY DUKE
MAYFIELD, MRS. VIRGINIA H.
Egan, Jennie A.
Seals, Evelyn

Arkansas:

FLORENCE, MRS. BESSIE N.
McKeehan, Lois

California:

BRETT, IRL D.
SHORTRIDGE, SAMUEL M.
WHELAN, FRANCIS C.
WHEELER, JOHN L.

Colorado:

GINSBERG, MORRIS S.
Howard, Mrs. Beulah

Connecticut:

GOOGEL, SAMUEL S.

Florida:

BALL, JOHN W.
CALDWELL, STAFFORD
RUSH, JOHN A.
SEARS, W. JOE, JR.
WIGGINTON, JOHN T.
Archer, Blanche A.
Dodd, Patricia
Fallin, Julia W.
Watkins, Roe

Georgia:

SIBLEY, U. ERWIN
Meadows, Olive

Idaho:

CHAPMAN, W. ORR
Aukerman, B. Marie

Illinois:

BEATTY, CLARENCE W., JR.
DUMAS, JAMES F.
SCHWARZ, G. R.
Ferris, Katherine
Walsh, Helen

Indiana:

WRIGHT, EWING E.

Iowa:

DELANEY, ELMETT P.
KELLY, GLENN D.
MELANGTON, ROBERT H.
MURPHY, ANDREW J., JR.
STECK, DANIEL F.
WEBBER, BAILEY C.
Berg, Angela
Bowlby, Mrs. Dorothy T.
Colgan, Letha
Kelley, Sally L.
Minke, Adlene
Schebler, Carlotta
Musgrove, Theodore S.
Coughlin, Catherine

Kentucky:

ELSWICK, KIT C.
MOORE, BACON R.
MULLIGAN, MATHLEEN
MILLER, HARRY B.
See, G. Veryl
Moore, Eula C.

Louisiana:

WISDOM, NORTON L.

Massachusetts:

MORIARTY, THOMAS F.

Michigan:

BAY, HARRY K.
DONNELLY, JOS. M.
KABATSKY, JULIUS L.
KIRBY, WALTER
MARTINEAU, VINCENT
MILTNER, CHARLES
STEWART, JAMES P.
Hyland, Mary
Ervin, Lillian E.

Minnesota:

COURTNEY, JOHN J.
LANDRUM, CLARENCE U.
LINDEMAN, DEWEY
Rasmussen, Florence
Strand, Ruth K.
Tschida, Ann E.

TITLE AND CONDEMNATION SECTIONS FIELD STAFF

## Mississippi:

JONES, L. BARRETT
NASON, ROBERT E.
SACK, LESTER M.
McKinney, Lucille F.
Tabor-Munn, Anni-Loyd

## Missouri:

COOPER, M. WALKER
GIBBONS, F. HITCHIE
HUGHES, CHARLES J.
SENN, G. WILLIAM
SMITH, VIVIAN
WEBER, L. JOHN
WELBORN, A. TARANCE
Cole, Elizabeth
Kelly, Josephine S.
Maddox, Lillian

## Montana:

BUNTIN, C. W.
COLTON, THOMAS C.
Dahl, Camilla
Weber, Katherine
Arnold, Lucille

## Nebraska:

HETH, LYNN E.
Stilwell, Hazel

## New Hampshire:

ROYSTON, MARTIN
BOLTON, CLARENCE H.

## New Mexico:

KIKER, HENRY A.
Brennan, James J.

## New York:

APFEL, ISADORE
DOLAN, HARRY T.
GALLAGHER, THOMAS J.
GOLDSTEIN, NATHAN L.
MURPHY, EDWARD H.
RORTY, PHILIP A.
SULLIVAN, JOHN T.
WACMAN, ABE
WOLKINSON, HERMAN (LWOP)

## North Carolina:

DUNN, J. ALLEN
GOOCH, CLYDE E.
GRIER, BARRON K.
Lucas, Rachael
White, Alma

## North Dakota:

HAAKENSTAD, OTTO
SPAULDING, WALTER R.
Anderson, Margaret
Garske, Ruth
Lundwall, Minnie O.

## Oklahoma:

HARRIS, CURTIS P.
Biver, Lucille E.
Jones, Alberta R.

## Oregon:

BARNES, E. W.
KUYKENDALL, NORMAN
McLOUGHLIN, DAN P.
RAMSEY, BERNARD
Ballard, Johanna N.

## Puerto Rico:

RIEFKOHL, OTTO T.
VALDES, ADOLFO

## South Carolina:

McLEOD, YANCEY A.
Edwards, Roberta

## South Dakota:

BROWN, MATTHEW A.
Schmitt, Irene
Steckelberg, Hazel

## Tennessee:

COOPER, JAMES W.
McKENZIE, JAMES G.
Chiles, Mary Ruth
Hudson, Betty

## Texas:

EIDMAN, CHARLES, JR.
McPARKLANE, W. M. D.
Fernandez, Louise
Johnson, Beatrice

## Washington:

COUGHLIN, PAUL
FISHBURNE, JOHN W.
KYLE, HENRY I.
LeSOURD, FRANCIS A.
SNYDER, HART
Hayes, Opal W.
Morris, Juanita

## West Virginia:

GIVEN, LESLIE E.
DYER, JOHN R.
LUTTRELL, RALPH J.

<table><tr><td>TITLE AND CONDEMNATION SECTIONS FIELD STAFF</td></tr></table>

Wisconsin:

AMLIE, THOMAS R.

CONWAY, BYRON B.

HARRINGTON, JOHN T.

Gleue, Doris

Kenevsky, Ann

O'Brien, Mary C.

Roth, Melva A.

APPELLATE SECTION

LAWRENCE S. APSEY, Chief

CHARLES R. DENNY, Asst. Chief

Miss Rawlings, Secretary

Miss Filsinger, Secretary

(Supervision of all appellate matters; specially requested research, including trial briefs, on important questions of law.)

ATTORNEYS SPECIALLY ASSIGNED TO SECTION

<table><tr><td>Cotter</td><td>MacDonald,</td></tr><tr><td>Dugan</td><td>Norman</td></tr><tr><td>Glasser*</td><td>Marquis</td></tr><tr><td>Hearne</td><td>Wasserman</td></tr><tr><td>Hickey</td><td>Whiteside</td></tr><tr><td>Koerner</td><td>Wilkinson</td></tr></table>

*Specially assigned

Alabama:

Alaska:

KELLY, EDWARD C.

Arkansas:

California:

Colorado:

Florida:

BALL, JOHN W.
CALDWELL, STAFFORD
GIBSON, W. TERRY
JOHNSTON, THOS. McE.
RUSH, JOHN A.
SEARS, W. JOE, JR.
ULMER, HERMAN
WIGGINTON, JOHN T.
Archer, Blanche A.
Watkins, Roe

Georgia:

Idaho:

CHAPMAN, MARSHAL
Aukerman, B. Marie

Illinois:

Indians:

WRIGHT, EWING E.

Iowa:

DELANEY, EMMETT P.
KELLY, GLENN D.
MELANGTON, ROBERT H.
MURPHY, ANDREW J., JR.
STECK, DANIEL F.
WEBBER, BAILEY C.
Berg, Angela
Bowlby, Mrs. Dorothy T.
Colgan, Letha
Coughlin, Catherine
Kelley, Sally L.
Minke, Adelena
Musgrove, Theodore S.
Schebler, Carlotta

Kentucky:

ELSWICK, KIT C.
MILLER, HARRY B.
MOORE, BACON R.
MULLIGAN, KATHLEEN
Moore, Eula C.
See, G. Veryl

Louisiana:

WISDOM, NORTON L.

Massachusetts:

MORIARTY, THOMAS F.

Michigan:

BAY, HARRY K.
DONNELLY, JOS. M.
KABATSKY, JULIUS L.
KIRKBY, WALTER
MARTINEAU, VINCENT
MILTNER, CHARLES
STEWART, JAMES P.
Ervin, Lillian E.
Hyland, Mary

Minnesota:

Wisconsin:

AMLIE, THOMAS R.
CONWAY, BYRON B.
HARRINGTON, JOHN T.
Gleue, Doris
Kanevsky, Ann
O'Brien, Mary C.
Roth, Melva A.

UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SECRETARY
WASHINGTON

FEB 15 1940

The Honorable

The Attorney General.

My dear Mr. Attorney General:

On February 1, this Department received portions of the Indian Law Survey files on loan from your Department in partial fulfillment of the arrangements defined in your letters of December 18 and January 18. I assume that we shall receive the remainder of this file, together with the promised 50 copies of a compilation of Indian laws and treaties which were to have been sent to us on February 1, at the earliest possible moment.

Of the six employees detailed to work upon these files under the supervision of Solicitor Margold, five have already reported for duty and the sixth employee, now on leave, is expected to report within a few days.

First Assistant Secretary.

-2-

tribution in the files. However, it now appears
that in many instances more than fifty copies were
used for distribution in the files. Moreover, ap-
proximately 10% of all the copies mimeographed are
now unfit for use because of damage and soilage in
handling and failure of the machines to print clearly.

(2) It also appears that approximately 10% of the stencils are unfit for re-use because, (a) the practice of underlining the main topics of each act resulted in cutting many of the stencils so as to make it impossible to fit them to the mimeographing machines a second time; (b) some stencils were damaged beyond repair by occasional faulty performance of the machines. Moreover, no provision was made for the filing of this large number of stencils. They were stacked in piles without regard to order or arrangement. To find any particular stencil, it would be necessary to search the entire lot of approximately 13,000.

Furthermore, apart from the non-availability of
mimeographed copies or of stencils from which they
could be made, there is no means of determining which
of the statutes or treaties have been mimeographed
since no record seems to have been made of the work
which had been assigned for mimeographing.

As I advised you over the telephone this morn-
ing, the most that we can do under the circumstances
will be to make available to you all of the mimeo-
graphed material and stencils which we have for such
further use as you see fit. If this is satisfactory
I suggest that we arrange to conclude the matter as
soon as possible.

NORMAN M. LITTELL
Assistant Attorney General.

UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
WASHINGTON

February 27, 1940.

MEMORANDUM for Mr. Kirgis.

I have personally looked over the materials prepared in the De-
partment of Justice for the "Compilation of Indian Statutes and
Treaties" in order to check the condition of these materials and the
accuracy of the statements made in the memorandum to you dated Febru-
ary 16 and signed with the name "Norman M. Littell, P" (apparently
signed by Mr. Provost). In this check I was accompanied by Mr. Seaton,
of Mr. Updike's office, upon whose expert advice I have relied in my
check of the mimeographed materials.

I find that the statements contained in the memorandum of February
16 are true in certain respects and erroneous in several other important
respects, and that they fail to support the conclusions which they are
designed to prove.

1. It is true that there are not 50 copies of each mimeographed page available in the Department of Justice. If I stated that not more than 25 of the 100 mimeographed pages were used in the files, I was mistaken--but it is my recollection that I advised Mr. Provost only that this was generally true. There were some instances where an unusually large number of copies were used for distribution in the files. This was the case with perhaps a hundred appropriation acts. In such cases copies of these acts can be taken back from the files to make up any deficiencies in assembling the compilation. If necessary, we could undertake to supply the missing copies in these cases, without much trouble.

2. It is not either universally or generally true that "the stencils from which the missing pages could be supplied are likewise not available." The memorandum itself indicates that it would be impossible to determine whether any given stencil is missing without searching the entire lot of approximately 15,000 stencils. This has not been done. It is true that some stencils are not in good condition, but the estimate that "approximately 10% of the stencils are unfit for re-use" appears to be an exaggeration. Further, the statement that this situation was caused by "the practice of underlining the main topics of each act" is not true. There was no such practice. There was some underlining, of words italicized in the original statutes, and Mr. Seaton and I were able to find one sheet, out of 30 or 40 that we looked through, where such underlining, inexpertly done, had resulted in a tear of the stencil.

3. The statement is made: "It appears from a test count of some 800 pages that approximately 50% of the pages have fewer than fifty copies and that there are as few as eleven copies of some pages." In the first place, it is not possible to determine from a test count of 800 pages that 50 percent of the pages have fewer than 50 copies unless an examination of all the material is undertaken, since it may happen that the copies of a particular page have been divided into two or more packages, in which case counting the copies in one package (and finding perhaps 11 copies) would not give an accurate figure of the total. It is apparent that no complete check of all the material has been made and therefore the estimate that 50 percent of the pages have fewer than 50 copies is of little value. My own sample check showed that at least 80 percent of the pages checked have more than 50 copies. (It may be that further search would disclose extra copies of the remaining 20 percent.) These deficiencies could be made up (as nearly all the deficiencies could be made up) by transferring from the files sent over to this Department extra copies of the missing statutes.

4. The statement that the stencils "were stacked in piles without regard to order or arrangement" is not entirely true. The stencils are assembled by volumes, although the order of the volumes is haphazard and within single volumes some deviations from the order of paging in accordance with page numbers has been noted.

5. The statement that "there is no means of determining which of the statutes or treaties have been mimeographed since no record seems to have been made of the work which had been assigned for mimeographing" is untrue. I attach herewith a check list of the statutes and treaties assigned for mimeographing. The date upon which any of these statutes was assigned for mimeographing can be determined from the records kept by my secretary, which are in my possession.

6. The question of whether "approximately 10% of all the copies mimeographed are now unfit for use because of damage and soilage in handling and failure of the machines to print clearly" is largely a matter of taste. I should say that this estimate was far too low if the standards observed in the Interior Department were applied. Most of the stenciling is of second-rate quality. Nevertheless, I think that the percentage of pages which are damaged or soiled to the point that they cannot be clearly read is far less than 10 percent.

## Conclusion

The long and short of the matter is that the Department of Justice cannot furnish us with the 50 sets of the complete compilation which

2

they promised to furnish unless they remimeograph a certain number of pages. In a small percentage of these cases they would have to cut a new stencil to do the remimeographing. The Department of Justice is apparently advancing this state of affairs as a reason for not making up any sets of the compilation which was promised us. Even if all the facts stated by the Department of Justice were true, it would still be possible for them to furnish us with 50 sets of the compilation as promised, by mimeographing extra copies of a portion of the pages (50 percent according to their estimate, a small fraction of this according to mine) and by recutting about 5 percent of the stencils (according to their estimate, a small fraction of this according to mine). Or, without doing any more mimeographing or stencil cutting at all, it would be possible for the Department of Justice to furnish us with 50 sets of the compilation, of which a certain number of sets would be incomplete. If they did this we could fill up the gaps in the incomplete sets either by using extra copies of the statutes in question, which are now in the survey files in this Department, or we could remimeograph the missing pages ourselves. As a final alternative we could utilize the incomplete copies. Since the incompleteness relates in almost every case to appropriation acts, this incompleteness would not make the compilation valueless. After all, the compilation will be utilized chiefly by offices and agencies that cannot afford a complete set of the United States Statutes at Large. Even an incomplete compilation would be a great advance over the materials that some of these offices and agencies now have to work with.

The alternative arrangement proposed by the Department of Justice memorandum, under which this Department would undertake the task of systematizing and assembling all the materials now in the Department of Justice, would impose upon this Department an administrative burden and expense which the Department of Justice originally undertook to bear. It would mean our handling and arranging approximately one million pages. I do not think that the memorandum of February 16 suggests any valid reason for our undertaking this task.

Should it be decided, however, that this Department is to undertake the arrangement and assembling of the existing material, I would suggest that special precautions be taken so that in the process of moving the material the Department of Justice delivers it to our mimeograph section in an orderly way.

I hope that the foregoing memorandum does not give the impression that the job of mimeographing these materials was in any sense a creditable performance. The fact is that a series of false economies insisted upon by Mr. Provost, who was in charge of personnel matters generally

3

and to whom the stenographic section and mimeographing section are
responsible, resulted in the assignment of inexperienced messengers
to do the job of mimeographing and the assignment of some of the
most inexpert or inexperienced typists in the Lands Division to do
the work of stencil cutting. As a result of further administrative
decisions, over which I had no control, the regular facilities of
the mimeographing section of the Lands Division for the assembling
of mimeographed materials were denied to our project. Inadequate
storage space was assigned to the project, and material was shifted
from one place to another in such a manner as to result in a certain
amount of spoilage.

Recommendation
:=

In my opinion, we should advise the Attorney General that we
shall expect the Department of Justice to fulfill its undertaking to
supply us with 50 complete sets of the compilation of Indian Treaties
and Statutes and that we can see no reason why that Department cannot
put the mimeographed materials and the stencils into an orderly ar-
rangement, mimeograph additional pages where additional pages are
needed, and even retype a few stencils.

I think we should say, at the same time, that if the Department
of Justice does not desire to carry out its undertaking in full, we
will be glad to receive 50 sets of the compilation even though some
of the sets are incomplete and the Department of Justice does not
care to remedy such incompleteness.

While I do not think that the Department of Justice has done any-
thing to deserve special concessions on our part, if any concessions
are to be made I would suggest the following: (1) an offer to reduce
the number of copies that we are to receive from 50 to 40; (2) an of-
fer to supply from the files in our possession copies of statutes
needed to make up the deficiencies found; (3) possibly, although I
urge that this not be done, an offer to take over and put into order
all the stencils and remimeograph all missing pages.

I think, finally, that we should say that we expect to deliver
50 copies of the promised index of file materials to the Department of
Justice in an orderly way on June 1, as promised, each volume assembled
and bound in paper covers, and that we hope to receive the compilation
of statutes and treaties from the Department of Justice in as good
shape, but that if the Department of Justice would prefer we will ac-
cept the compilation in unassembled form and send over the indexes in
the same shape, using the labor that we had expected to devote to the
assembling of the Justice Department's 50 copies of the index to put
into usable condition such materials as the Department of Justice may
send us.

Attachment.

5 Stat. 1 (Chap. 1) - 59 copies

5 Stat. 1 (Chap. 3) - 58 copies

7 Stat. 13 )
( More than 75 copies.
7 Stat. 15 )

12 Stat. 4 - 35 copies

12 Stat. 15 - 37 copies

23 Stat. 15 )
( More than 75 copies.
23 Stat. 22 )

31 Stat. 7 )
( More than 75 copies.
31 Stat. 32 )

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

1. The Inauguration of the Indian Law Survey.

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

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

October 8, 1966. Of the 10 persons (part from About the end of May, Assistant Attorney General Littell suggested the desirability of eliminating procedure and jurisdiction from the scope of the proposed handbook. I indicated that I would be glad to make this modification in our original plan but suggested that a decision on the point be postponed until a check had been made on the amount and character of the materiale being collected on procedure and jurisdiction. Mr. Littell agreed to this suggestion and appointed a committee of three to consider the question, which reported unanimously that work on the procedural and jurisdictional aspects of the law should continue.

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

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

4

## 7. The Staff of the Survey.

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

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

5

Assistant Attorney General Littell and his Administrative Assistant, Mr. Provost, that Mr. Fabian's salary would not be deducted from the done to Mr. Fabian's head and that he needed to have this salary placed in Indian Law Survey budget. I, not understanding the special capacity in which Mr. Fabian was to operate, could see no reason why his salary, like that of any other employee responsible to me, should not be met out of the Indian Law Survey budget, urged that it be so met, and this completion of materials. I was informed by various attorneys of the Lande Division that Mr. Fabian had been detailed by Mr. Provost to the first task involved (a) excluding all law and other discredit or to take over control of the project, but rejected such reports as idle gossip. As matters turned out, Mr. Fabian did not complete either of the two assignments he was given during the four months or so that he was supposed to be working under my supervision. I assigned to Mr. Fabian the task of collecting and indexing Justice Department briefs, memoranda, and unreported cases. The incompetence with which this job was executed later became a chief basis of criticism of the Survey. The second job assigned to him was the writing of a chapter which should have been completed at the end of September, which he undertook to finish by October 14, and which has not been done yet. His attitude of non-cooperation took the form, on occasion, of withholding from his colleagues pertinent information which they needed and which he collected in the course of his work, and of constantly disparaging the work of his colleagues and of the attorneys of the Interior Department. When I complained to Mr. Provost about the

6

budget down to $58,178. This budget was submitted by Mr. Littell to Attorney General Murphy and was approved, subject to the reductions which I had suggested. My memorandum of April 11, setting forth the revised figures, indicated that the budget estimates were based on the assumption, not yet fulfilled, that I would be assigned a staff adequate to complete the task within one year from the time it was assembled. In two or three days the miscalculating force of the Survey would be in the field. The actual expenditures of the Survey were consistently under these budget estimates since various legal and clerical positions provided for were unfilled for substantial periods of time. As of October 31, total expenditures for the Survey amounted to $27,441.49.

## 6. Time Schedule and Progress of Work

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

8

graphic vacancies and almost total lack of the assistance which I
had been advised I would receive from the regular mimeographing
force and the stenographic pool, it proved to be impossible to
maintain the original time schedule with respect to the stenciling,
mimeographing and filing of mimeographed materials. These mechani-
cal delays were compensated in part by the cooperation of the Interior
Department. In two or three days the mimeographing force of the
Interior Department ran off, as an accommodation to the Department of
Justice, about as much work as the mimeographing force under the
Administrative Section of the Lands Division had turned out in the
four months from about February 20 to June 24. Efforts of the
Interior Department to assist in proofreading and in other ways
were largely frustrated by a ruling of the Chief Clerk of the
Department of Justice that employees of the Interior Department,
including my secretary, Miss Simpson, could not enter the Department
of Justice building after hours, even though accompanied by me.

In making this ruling, the Chief Clerk of the Department of Justice
stated that he could not permit a "bunch of high school kids" to
enter the building at night. (Actually neither Miss Simpson nor
anybody else helping me was a high school student, while on the
other hand hundreds of high school students are admitted to the
Department of Justice at night on FBI tours.) This ruling is
mentioned because it is typical of various artificial obstacles,
noted in my weekly memorandum progress reports to the Assistant

9

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

11

DEPARTMENT OF JUSTICE - STATIONERY

MEMORANDUM FOR THE ATTORNEY-GENERAL:

At the close of a year's work as Special Assistant to the At-
torney General, and later as Chief of the Indian Law Survey, I feel
that I owe you an accounting and offer the following summary account
of the work which has been accomplished.

During the autumn of 1938 Assistant Attorney General Carl McFarland
and the then Chief of the Trial Section of the Lands Division, Mr. Charles
E. Collett, asked me to organize and head a survey of Federal Indian law
that would produce (1) a compilation of materials on Indian law, and (2)
a handbook on the subject. The need for such a survey had become ap-
parent to me in the course of five years' work as Assistant Solicitor,
most of it spent on Indian Affairs and much of it in the
member of the Board of Appeals, and, on occasion, Acting Solicitor of
the Interior Department. I was unwilling, however, to terminate or
interrupt work in the Interior Department and personal relationships
with colleagues and superiors, which were to me a source of very deep
satisfaction. I therefore urged that Mr. McFarland and Mr. Collett find
some other person to head up this project, and made some efforts myself
to find such a person. None of us was successful. The request for my
services was renewed. My superior officer, Solicitor Nathan R. Margold,
urged me to accede to this request, in order to accommodate the desire
of the Department of Justice and at the same time to help fill the needs

of the Interior Department that the proposed handbook would service.
I thereupon discussed the entire matter with Assistant Attorney General
McFarland and advised him that I was willing to devote a year's service
to this project in the Department of Justice if adequate personnel could
be made available to finish the work in that time. I advised him, how-

be made available to finish the work in that time. I advised him, however, that this project would interfere with the vested interests of certain Justice Department employees who had a monopoly of private information in the field, and I also expressed the fear that further, that the job itself might take five years or a lifetime to

complete if individuals working on the job were not sincerely anxious
to complete the work at a fixed date. Mr. McFarland agreed that these
fears had some basis in fact, but assured me that adequate personnel,
acceptable to me, would be furnished to assist me in the completion of
the project within the specified period. He also advised Solicitor

Margold and me that I might retain my position in the Interior Department and remain subject to call by the Solicitor of that Department for special assignments. These understandings were reached on or about November 20, 1938. It was agreed that I should be detailed to the Department of Justice and that Justice would reimburse Interior for my salary. My salary was at that time $5,800 per annum. Mr. McFarland proposed that it be raised to $6,500. I said that I thought such a raise was somewhat excessive, but on this point I was overruled and the Civil Service Commission subsequently approved a reclassification of grade. It was agreed in that/my work on the Indian law survey I would be responsible to the Assistant

Attorney General in charge of the Lands Division and to the Solicitor of the Interior Department.*

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

## 2. The Purpose of the Indian Law Survey.

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

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

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

3

Condemnation Section, from which Mr. Jacob Wasserman, who, according to his superiors, had done excellent work, was removed on the same day.

#### 4. Organization of Work

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

The first task involved (a) examining the statutes at large, the reports of Federal courts, the opinions of the Attorney General, the rulings of the Interior Department, Congressional documents, law review literature, and legal treatises; (b) indexing each of the approximately 8,400 items thus collected under all appropriate subject, statute, and tribal headings; (c) preparing typed copies of various unpublished materials and mimeographed copies of all copies and treaties, based upon original documents in the Archives wherever the Statutes at Large were found to be inadequate.

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

#### 5. Budget

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

6

The actual expenditures of the Survey were consistently under these budget estimates since various legal and clerical positions provided for were unfilled for substantial periods of time, as of October 31, 1939, totalling 27,441.49 cents. This amounts to $27,441.49.

### 6. Time Schedule and Progress of Work

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

7

and lack of expected assistance from the regular mimeographing force and stenographic pool, it proved to be impossible to maintain the original time schedule with respect to the stenciling, mimeographing and filing of mimeographed materials. These mechanical delays were compensated in part by the cooperation of the Interior Department.

In one afternoon, the mimeographing force of the Interior Department ran off, as an accommodation to the Department of Justice, approximately 100 statutes, which is more than the number of stencils which the mimeographing force under the Administrative Section of the Lands Division had been able to turn out in the four months from about February 20 to June 24. Efforts of the Interior Department to assist in proofreading and other ways were frustrated by a ruling of the Chief Clerk that employees of the Interior Department, including my secretary, Miss Simpson, could not enter the Department of Justice building after hours, even though accompanied by me.

In making this ruling, the Chief Clerk of the Department of Justice stated that he could not permit a "bunch of high school kids" to enter the building at night, which was rather peculiar, since neither Miss Simpson nor anybody else helping me was a high school student, while on the other hand hundreds of high school students are admitted to the Department at nights on FBI tours.) This ruling is mentioned because it is typical of various artificial obstacles, noted in my weekly memorandum progress reports, preventing the speedy completion of the mechanical aspects of the Survey work.

8

The first substantive chapters to reach the "first draft" stage were Chapter 9 (Individual Rights in Tribal Property) and Chapter 25 (Pueblos). Work on these drafts was begun about the end of July, and the fragment of Chapter 12 (Federal Services) were submitted for discussion and criticism on September 1. As of November 1, when the writing of the handbook was ordered terminated, seven of the contemplated 34 chapters had reached the "first draft" stage and another three or four were close to that state.

## 7. Responsibility for the Survey

My official responsibility in the conduct of the project was stated to be to the Assistant Attorney General in charge of the Lands Division and to the Solicitor of the Interior Department. Immediate supervision was in the hands of the Chief of the Trial Section of the Lands Division. On or about August 2, Assistant Attorney General Littell suggested the creation of a "control committee" of five members. To this suggestion I raised the objection that a committee of this sort could not efficiently direct the project and that confusion of responsibility would result from any such arrangement. Mr. Littell conceded the justice of this objection, and agreed that the committee to be appointed would be merely advisory in character, and that Mr. Churchwell would head the committee. On August 3, he appointed an "advisory committee," of which

9

an employee supposedly under my supervision, Mr. Fabian, was made chairman, and directed it 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." The so-called advisory committee did not meet until September 12, and at no time did it confer with me. Instead, three members of the committee prepared a memorandum of criticism which was transmitted to me on September 19, with the dissent of a fourth member of the committee (the fifth committee member being absent from the Department at the time). It appeared to me that while most of the specific suggestions made by the committee were entirely acceptable, the general criticisms submitted were basically inconsistent with the original program for the survey which I had undertaken to carry out and which had been approved by the Assistant Attorney General and presumably by the Attorney General as well. It also seemed to me that these criticisms indicated an attitude of hostility towards the Interior Department that was incompatible with the cooperative purpose of the Survey, and an attitude of narrow unconcern with aspects of the Survey that might be of value to other units of the Department of Justice, such as the Title Section, the Legislation Section, the Civil Liberties Unit and the Criminal Division. I stated my views on these points in a memorandum to the advisory committee on September 25. I received no

10

DRAFT

Substitute for first 2 paragraphs of "Memorandum for the Solicitor" dated June 7, 1940.

July 8, 1940.

MEMORANDUM for the Secretary:

When work on the Indian Law Survey, which had been begun as a joint project of this Department and the Department of Justice, was abandoned by the latter Department, Assistant Attorney General Littell handed to Solicitor Margold an undated and unsigned memorandum of unknown authorship setting forth criticisms of portions of the work already done by the Indian Law Survey. Mr. Margold and I, in conference with Mr. Littell, were advised that these criticisms constituted the fundamental basis for the determination to abandon the Survey. It was suggested that Solicitor Margold have an independent examination made of these criticisms. Solicitor Margold undertook to comply with this suggestion although he advised Mr. Littell that because of the pressure of other urgent matters and the difficulty of analyzing the criticisms in question, and the fragments of the handbook to which they were directed, the task would take a considerable period of time.

The criticisms in question were directed towards preliminary drafts of two chapters of the proposed handbook and the preliminary draft of a severable portion of a third chapter.

The task of analyzing these criticisms was assigned to me, and since the Solicitor had no opportunity to examine my findings in detail before leaving Washington last week, he has asked me to

report my findings directly to you. In my review of this matter I
have not done basic research into the principles involved or the
authorities. In the first place, as anticipated, I have not had the
time to devote to original research; in the second place, such re-
search was unnecessary by reason of the fact that I have before me
the extensive discussion of both principles and authorities prepared
by Mr. Flanery at the direction of the Solicitor, after several weeks
of exhaustive research by him. I have, of course, check/some matters
independently and drawn on my own understanding and knowledge of Indian
legal problems in the course of the review.

2

Superintendent C. C. Upchurch, Tulalip Agency, Washington: "As an appreciation of the painstaking research that has made the clarity and authority of your delineation possible. You no doubt have thought of the preparation of a more comprehensive volume on Indian law comparable to Mr. McKinney's book on Indian land. I am sure you would be the person to write such a book and that it would be a valuable contribution to the literature of the Indian political minority."

Oliver LaFarge, President, American Association on Indian Affairs, Inc.: "Enlightening and stimulating. We have been reading it with interest and shall read it again. It opens new fields of thought."

Louis C. Mueller, Chief Special Officer, Indian Service: "Instructive and enlightening."

## Chapter 8.

Charlotte T. Westwood: "Represents an amazing amount of research and provides a comprehensive statement of the subject."

## Chapter 9.

Richard E. Elwell, Special Assistant to Solicitor: "Impressed with readability and thoroughness."

## Chapter 10.

Fred H. Deiker: Accurate and extremely useful.

Richard E. Elwell: "Impressed with readability and thoroughness." (Section on education.)

Dr. Willard Beatty, Director, Education Division, Indian Office: Very useful. (Section on education.)

## Chapter 13.

Charlotte T. Westwood: "An able and useful survey and analysis."

## Chapter 14.

Charlotte T. Westwood: "A thoughtful analysis of important principles in Indian law, furnishing a wealth of material."

3

## Chapter 15.

Various attorneys in the Lands Division, Department of Justice: Extremely useful.

## Chapter 16.

J. Allison Moore, Special Officer, Indian Service: "The citations set forth on the many points that constantly come up for consideration in the trial cases will be of tremendous assistance in the future."

Fred H. Baker: Very valuable; no inaccuracies discovered.

Louis G. Mueller: Very valuable; no inaccuracies discovered.

## Chapter 17.

John Collier, Commissioner of Indian Affairs: "I think this whole chapter is an admirable and exceedingly useful piece of work."

William A. Brophy, Special attorney for pueblo Indians: "I believe that the chapter submitted is accurate. It will be very useful to us as a compilation of all pertinent statutes and cases relating to the pueblos." "For my purpose abbreviation would not be helpful at all."

## Chapter 27.

D. E. Thomas, Chief, Alaska Section, Indian Office: "Mr. Bass has done a brilliant piece of work in compiling this chapter on laws dealing with Alaskan Natives. It is the most complete thing of its kind that I have seen in my many years of service dealing with Alaskan Natives, and I sincerely hope that it may be possible to have it printed and made available to persons interested in Alaska and the Natives of that Territory."

Seton H. Thompson, Assistant Chief, Division of Alaska Fisheries: "In my opinion this chapter on Alaskan natives is very complete and I have no comments or criticisms to offer concerning it. I am sure that this document will be extremely valuable to those who are charged with the administration of Federal laws in the Territory."

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COPY

OFFICE OF THE ATTORNEY GENERAL

Washington, D. C.

August 2, 1940

Honorable Harold L. Ickes,
Secretary of the Interior,
Washington, D. C.

My dear Mr. Secretary:

This will acknowledge the receipt of your letter of
July 24, 1940 in regard to our criticisms of the Indian Law
Survey, and enclosing a memorandum in respect to this subject
by Mr. S. L. Kirgis, First Assistant Solicitor of the Depart-
ment of the Interior.

Careful consideration has been given to the comments
in your letter, and to the analysis of this matter presented
by the memorandum of Mr. Kirgis.

At this time I can only express my regret, and that
of Assistant Attorney General Littell to whom you refer, over
the wide differences of opinion which arose between those in
our respective Departments who were involved in the Indian Law
Survey work. No doubt the natural differences of opinion be-
tween the litigating and administrative branches of the
Government in respect to Indian affairs, in endeavoring to
develop a manual for joint use, helped to make the problem of
composing differences an acute one.

I am very glad indeed that a manual useful to your
Department has in the end been developed as a result of the
further work which your Department has done in this matter.
Mr. Felix S. Cohen is to be congratulated upon achieving this
success and winning the praise from competent students of
Indian law and Indian affairs whom you mention in your
letter.

Both Assistant Attorney General Littell and I will appreciate it very much if one or more copies of the Manual could be sent to us when it is printed, for my ready reference and for use in the Lands Division of this Department.

ADDRESS REPLY TO
"THE ATTORNEY GENERAL"
AND REFER TO
INITIALS AND NUMBER

JJO'B-

DEPARTMENT OF JUSTICE

WASHINGTON, D.C.

November 22, 1940.

Mr. Frederic L. Kirgis
First Assistant Solicitor
Department of the Interior
Washington, D. C.

Dear Mr. Kirgis:

This will acknowledge receipt of and thank
you for your letter of November 20, 1940, in which
you advise that under separate cover you are send-
ing to Mr. J. J. O'Brien three sets of the "Hand-
book of Federal Indian Law" in a 13-volume, tempo-
rary edition.

Your courtesy in making available these hand-
books is very much appreciated.