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

DEPARTMENT OF JUSTICE

WASHINGTON, D. C.

February 3, 1939

MEMORANDUM TO MR. FELIX COHEN

Mr. McFarland has submitted to me and to other attorneys
in this Section a preliminary outline of the research into
Indian law prepared by you.

There are several matters I should like to discuss with
you, but I wish to make one suggestion which you might
consider before we talk about it.

I have found some difficulty, as have other attorneys,
in finding adequate information on Indian Indian tribal claim
cases in the Digests, R. C. L. and C.J. It might be worth
while to assign Indian tribal claims to a separate division
in the outline, both as to the substantive law and procedure.
It is true that much of the substantive law logically would
be covered by your outline, but where it would occur there
could be a cross reference.

Respectfully,

Raymond T. Nagle,
Associate Chief, Trial Section.

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Mr. McFarland suggested that either he, you or I might arrange
in the near future to make a trip west for the purpose of inter-
viewing those applicants listed above who are unable to come to
Washington.

Applications from Messrs. Benner, Hagg, Smart, Brown, Miller,
Wilkinson and Bames are now on file in this Department. Further
information concerning them is available in letters to me from law
professors and others. No applications have yet been received from
Messrs. Lenigan, Lehman, Faricy and Folsom, with whom correspondence
has only recently been initiated. The first two named, however,
have submitted to me samples of legal work which I attach herewith.

Respectfully,

Felix S. Cohen,
Special Assistant to
the Attorney General

REPORT ON STATUTE COMPILATION

March 1; 1939

Work completed:

1. 15 volumes of the statutes at large, paged and marked. Some of these require a little re-checking to bring them into line with the standards of selection which we have been gradually developing.

2. 1 volume of the statutes at large, mimeographed.

3. Materials on Indian Treaties inspected at Archives building. The early treaties are not uniformly annotated in the statute volumes in respect to date of ratification and date of proclamation. The Archives materials will supply this deficiency.

Work to be done:

1. 37 volumes of the statutes at large to be paged and marked. Some of these volumes are in 2 or more parts. This work should now move very rapidly, since our standards of selection are stabilized and the pertinent items will decrease in number. Estimated time-- 3 weeks.

2. All but 1 volume of the statutes at large to be stencilled and mimeographed. More girls should be put on this work. No estimate is possible at this time.

3. Archives materials on treaties to be utilized. Estimated time-- 1 or 2 days.

March 8, 1938

MEMORANDUM FOR MR. McFARLAND

Attached is a sample volume of our "Compilation of Indian Statutes". The first part of this volume, under the tab heading 1 Stat., is actually complete. The remainder of this volume is "dummy", made up with duplicate pages in order to show the probable bulk of this compilation.

Present evidence indicates that approximately 20 volumes of this size will be required for a complete compilation of Indian statutes to date.

Before going further in the muneographing of this work, I should like to have an opportunity to discuss with you the following questions:

1. Shall we continue to run off 1,000 copies of each page. Upon this schedule we shall have to set up temporary storage facilities for approximately 8 million pages, which will fill one moderate sized office.

2. Shall we continue to use the plain muneographing paper used in this volume or shall we use bond or special paper, which are more expensive but present a better appearance.

3. Shall we make arrangements to provide an inexpensive cardboard binding for each volume so that it will not be necessary to order spring binders in large quantities.

4. Shall we provide a table of contents for each volume and shall we number the muneographed pages.

Respectfully,

UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
WASHINGTON

March 22, 1939

REPORT ON WORK DONE TO DATE BY INDIAN RESEARCH UNIT

Work in this Unit was begun by Mr. Cohen in the middle of
January. Miss Williamson was assigned to this work on January 23;
Mrs. Pollitt on January 28, and Mr. Glasser on February 1. The
work thus far accomplished may be summarized as follows:

1. **Outline.** An outline of the law governing Indian Affairs was prepared by Mr. Cohen to serve as a guide to indexing and analysis of legal materials.

2. **Compilation of Statutes.** Thirteen volumes of the United States Statutes at Large have been combed for all statutory references to Indian matters. Material thus selected is being mimerographed for future reference use in this project and for general distribution to a list of several hundred employees of the Department of Justice and the Department of the Interior in Washington and in the field. Volume 1 is now completed. Volume 2 is now being mimerographed. Volume 3 is being stenciled. Volumes 4 to 13 are ready for stenciling. Volumes 14 to 51 remain to be scanned. This work is being done by Mr. Glasser under Mr. Cohen's supervision. The actual compilation should be completed about the first or second week in May.

3. **Compilation of Legal Materials in Interior Department Files.** Files of the Office of the Solicitor in the Department of the Interior have been examined and all material which may be valuable in the preparation of the Handbook of Federal Indian Law has been copied. This material is being supplemented by reference to the files of individual attorneys in the Office of the Solicitor and is further being supplemented by reference to the files of the various Divisions of the Indian Bureau. To date 588 memoranda, totaling 2958 pages, have been selected and copied. It is possible that an almost equal amount remains to be gathered. The process of gathering this material should be completed by the end of April. This material is being indexed by reference to the draft outline of Indian law. This work is being done by Mrs. Pollitt under Mr. Cohen's supervision and with the assistance of four stenographers temporarily assigned from the Lands Division Pool.

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4. Compilation of Legal Materials in Justice Department Files. This work will be started as soon as personnel is made available.

5. Examination of Reported Cases. This work will be started as soon as personnel is made available.

6. Examination of Literature. This work will be started as soon as personnel is made available.

7. Personnel and Administrative Work. During the first two months of this work it has been necessary to spend a considerable amount of time in interviewing applicants for positions, corresponding with Deans of law schools and others in an effort to find suitable personnel, organizing office routine, working out details of publication with reference to the statutory compilation, and other matters incident to the setting up of a governmental unit. This work has been done by Mr. Cohen with the assistance of Miss Williamson.

Felix S. Cohen,
Assistant Solicitor.

FSC-VV

March 22, 1939

MEMORANDUM FOR MR. PROWST

Re: Personnel recommendations.

The following statement is offered as a summary bringing up to date the various recommendations which I have thus far made to Mr. Asbill in connection with attorneys' appointments in the Indian Research Unit. References to V, W, X, Y and Z relate to the attached organization chart.

Position V. Listing and analyzing reported cases; assisting in writing, compiling and summarizing filed materials.

Samuel Miller (Wisconsin). I have recommended Mr. Miller on the basis of his written application, samples of his research work, and strong letters of recommendation. I do not know Mr. Miller personally and have not had an opportunity to interview him. Some weeks ago I recommended Miss Hodel (New York) for this position. Mr. Asbill and Mr. McFarland approved this recommendation but when the appointment papers were cleared Miss Hodel had been offered a position by another Government agency which carried a greater remuneration and she was therefore not available for this position.

Position W. Analyzing materials taken from Interior Department files; assisting in writing of handbook. This position should be filled by an attorney with some experience in administrative law and procedures, preferably, although not necessarily, familiar with Indian problems.

I feel that I can conscientiously recommend Mr. Hugh Miller (California) for this position on the basis of legal memoranda prepared by him for the National Bituminous Coal Commission. I have not known Mr.

- 2 -

Miller personally but did interview him briefly recently at Mr. Asbill's request. Some weeks ago I recommended Mr. Lee K. Beznor (Wisconsin) for this position. I felt, as did Mr. Asbill, that Mr. Beznor possessed excellent qualifications for this work but apparently Mr. Beznor would not accept a salary of less than $3200, which was higher than the custom of the Department permits for a recent graduate.

**Position X.** Collecting memoranda and unreported cases in the files of the Department of Justice; analyzing such materials; cooperation in writing of handbook. This position requires a fast worker with keen discrimination and sound judgment, preferably an attorney familiar with Department of Justice procedures and having ample experience in litigation.

I have not yet found any applicant whom I could conscientiously recommend for this position.

**Position Y.** Collecting and analyzing articles and other legal literature; organizing material; cooperation in writing of handbook. This position requires a man with writing experience and good judgment, preferably, although not necessarily, one with experience in the field of Indian affairs.

I have suggested James Lanigan (California) for this position. This suggestion is made on the basis of an examination of written materials submitted by Mr. Lanigan and on the basis of strong recommendations. I do not know Mr. Lanigan and have not had an opportunity to interview him and I am, therefore, not in a position to make a strong recommendation in this case.

**Position Z.** Selecting important general statutes from complete compilation now being prepared; systematizing collection of such statutes with annotations; cooperation in writing of handbook; cooperation in supervision of Indian Research Unit. This work requires, in particular, an attorney with experience in handling and systematizing statutory materials. The position should be filled by an attorney who has had a fair amount of supervisory experience in the managing of research projects and who has the judgment and tact necessary for the work involved

- 3 -

in this position.

I have strongly recommended Mr. Hads (New York) for this position on the basis of a fair knowledge of Mr. Hads' work for some years and on the basis of an interview and examination of various handbooks prepared by Mr. Hads.

Alternative possibilities for positions V and I are the following individuals upon whom I have made written or oral reports to Mr. Asbill:

Herbert Smart (Utah)
Glen Wilkinson (Utah)
John Braun (New York)
Walter Lehman (California)
John Faricy (Colorado)
Fred Folsom, Jr., (Colorado)
John O. Rames (Colorado)
Leon Halman (New York)

I understand that the applications of all the persons named above are now on file in the Department.

REPORT ON STATUTE COMPILATION

9 a.m., March 25, 1939

Ready for review Vol. 16
Ready for stenciling Vol. 4 - 6, 9 - 15
Being stenciled Vol. 3
Stenciled Vol. 2
Finished Vol. 1

Approximately 40% of the material in the Archives Building to be collected is ready for photostating; the administrative details are completed, and the final word remains to be given by the Archivist for the photostating to be started.

It is expected that Vol. 3 will be finished and ready for mimeographing today.

Vol. 2 should be completely mimeographed by the middle of next week.

Abraham Glasser,
Special Attorney

MR. COHEN

FSC-AG-DRW

March 28, 1939

Honorable R. D. W. Connor,
Archivist of the United States,
The National Archives,
Washington, D. C.

Dear Mr. Connor:

In connection with the preparation by this Department of a compilation of treaties and statutes relating to Indian Affairs, it is necessary to have copies made of certain treaties which are in your keeping. While it would be possible for this Department to detail typists to copy the text of such treaties from the original documents, it is thought that such handling of these documents might be avoided if you could supply photostats of the original documents.

The documents in which this Department is interested include the Indian treaties published in Volumes 7 and 9 of the Statutes at Large, together with the related papers of proclamation and ratification, certain unratified and unpublished treaties, and certain international treaties published in Volumes 8 and 9 of the Statutes at Large, which include references to Indians, together with the related papers of proclamation and ratification. It is estimated that this work will produce a total of approximately 2,000 photostat pages.

Mr. Abraham Glasser, Special Attorney in this Department, has been detailed to supervise the copying of the documents in question and has already informally discussed the project with Dr. Hamer of your office. If you advise me that you are in a position to supply the required photostats, I will direct Mr. Glasser to proceed with this work in such manner and at such time as may be agreeable to you.

Respectfully,
For the Attorney General,

CHARLES E. COLLETT,
Acting Assistant Attorney General

March 30, 1939

MEMORANDUM FOR MR. LITTELL

The cost of the Indian law book to March 31 will amount to approximately $3,470.33. This is a total derived from the following figures:

Salaries

| | |
|:---|---:|
| **Cohen, Feb. 1 - March 31** | $1,025.00 |
| **Glasser, Jan. 1 - Mar. 31** | 500.00 |
| **Pollitt, Jan. 1 - Mar. 31** | 333.33 |
| **Williamson, Jan. 23 - Mar. 31** | 270.00 |
| **O'Connell, Feb. 15 - March 31** | 180.00 |
| **4 Typists, Feb. 15 - March 31** | 810.00 |
| **Total salaries** | **$3,116.33** |

Supplies

| | |
|:---|---:|
| Stencils, 300 @ $.12 1/2 | 37.50 |
| Moneograph paper, 195,000 sheets @ $.85 per 500 | 314.50 |
| **Total supply costs** | **352.00** |
| **GRAND TOTAL** | **$3,470.33** |

At this time it is possible to submit a tentative estimate of the total cost of the entire project, which indicates an over-all figure of approximately $73,092.

This figure is based upon the estimate that each attorney will require the full time of one stenographer or typist, although it is expected that most or all of such stenographers or typists will be supplied from the Lands Division pool as needed.

This figure assumes that 1,000 complete copies of the statutory compilations are to be prepared. The estimated cost of $18,032. for this item could be cut down almost proportionally if a lesser number of

MR. COHEN

March 31, 1939.

OAP: EFT

MEMORANDUM FOR MR. LITTELL

Re: Estimated cost of Research
Units and Handbooks.

1) **Eminent Domain:** Attached is a statement prepared by Mr. Bowie in cooperation with Mr. Apsey and Mr. Denny with reference to the estimated cost to date of the handbook on Federal Eminent Domain Law.

You will note that attempt has been made to allocate the percentage of time devoted by attorneys and stenographers to the preparation of the handbook as distinguished from work on the research files and other assignments made to the Research Unit. I question the correctness of this allocation. For example, it is said that the work done by the attorneys in building up the research files in the Unit should not be made a charge against the book. However, I am under the impression that these files have the greatest utility in connection with the book and are seldom, if ever, used apart from work on the book. Again, it has been the practice of the Unit to prepare a complete abstract of each case cited in the book, which abstracts are preserved in the research files. Obviously, the preparation of such abstracts involves a great deal of time on the part of both attorneys and stenographers which cannot logically be divorced from the book, since there would be no occasion for abstracting these cases if the book were not being written. Yet, the attempted allocation of percentages undertakes to do just that.

-2-

As you will note from the exhibit attached to
Mr. Bowie's memorandum, the grand total expended by
the Research Unit of the Condemnation Section to date,
not including the many items which cannot be reckoned,
is $41,639.17. It is my opinion that practically all
of this amount is properly chargeable against the book.

However, even excepting the percentages given,
this same exhibit shows that during the eight months'
period beginning July 25, 1938, to date, a total of
$16,658.63 has been expended. Of this amount
$15,268.33 has been spent for salaries. Mr. Apsey
estimates that the book will consist of approximately
ten chapters and will require about seventeen months
longer to complete at the present rate of progress.
On this basis, then, the Eminent Domain Handbook will
 cost $52,654.05, of which $47,713.75 will be expended
for salaries, and $4,940.30 for printing and binding.
If expenses continue at the same rate as during the
past eight months, the Research Unit of the Condemnation
Section will expend more than $125,254.75 before the
book is completed.

2) **Indian Law:** Also attached is a statement prepared by Mr. Cohen in cooperation with Mr. Bowie, and myself with reference to the estimated cost of the proposed Indian handbook.

As you will note, the grand total cost of the book,
exclusive of the $3,470.05 already spent, will be
$73,092.00. Mr. Bowie, Mr. Cohen and I agree that this
is a conservative estimate.

This estimate is predicated, however, upon the
assumption that personnel will be obtained who can and
will be willing to complete the project within a year.
This, to my mind, is a question of great doubt, since
the psychological reaction must inevitably be that most
persons employed will be unwilling "to work themselves
out of a job" but will be inclined to protract the work

-3-

as long as possible. This estimate also assumes that the personnel in the Unit will devote their exclusive time to preparing the handbook and will not be assigned a great many and variety of research problems in connection with current cases.

Again, we have estimated only $500 for miscellaneous expenses and that amount will probably not be adequate if it is desired to set up an elaborate filing system and to furnish the Unit with all of the books and other supplies which will be needed; nor, has there been any calculation made of the cost of obtaining two ximeographing machines which will be necessary if the statutory compilations are to be prepared. I do not know whether we can make arrangements to use equipment now in the Department or to rent additional equipment. Amounts set forth for salaries are those at which Mr. Cohen anticipates we will have to pay to get the type of personnel required. The amount given does not take into consideration any possible increases which may be sought.

You will note that the estimated cost of this book is more than $20,000 in excess of the estimated cost of the Eminent Domain handbook. However, if the same method of apportioning the costs of building up a filing system is used here, as in the case of the Condemnation Research Unit, the cost of this handbook will be considerably less than that of the Eminent Domain handbook.

3) Public Lands and Title Examination Units: If additional research units be set up in the Trial Section to prepare a handbook on Indian Law and in the Title Section to prepare a handbook on Title Examinations, it may be anticipated that the cost of these units will be comparable to those described above, or somewhere near $100,000 per unit.

-4-

4) Conclusion: It appears that an expenditure of approximately $400,000.00 will be required to maintain the four research units until these handbooks will be published. I am having an investigation made from which I will be able to advise you, in a few days, as to whether our budget estimate adequately provides for the payment of so much of this expenditure as will fall due in the fiscal year 1941. It is plain that these projects will also extend into the fiscal year 1942, and whether Congress will appropriate sufficient funds to complete the work at that time may only be conjectured.

Oscar A. Provoet,
Chief, Administrative Section.

The National Archives

Washington, D. C.

From Files of
Indian Research Unit
Lands Division
Department of Justice
PLEASE RETURN

OFFICE OF THE ARCHIVIST

April 17, 1939.

The Attorney General,
Washington, D. C.

My dear Mr. Attorney General:

This is in reply to your letter of March 28, 1939 (C.E.C.-F.S.C.), in which you state that the Department of Justice has in preparation a compilation of treaties and statutes relating to Indian affairs and express your desire to secure copies of certain documents necessary for this compilation which are in the custody of the Archivist of the United States.

An examination of the documents concerned has been made, and I am informed that the 257 Indian treaties involved and the documents accompanying them constitute 2,350 pages. To photostat these and an unknown number of pages of international treaties which include references to Indians would impose a considerable strain upon the financial and personnel resources of The National Archives available for this type of work. In this connection, however, I note that in your letter you state that it would be possible for the Department of Justice to detail typists to copy the text of the documents in which you are interested. I shall be glad, accordingly, to make the documents available in one of our search rooms for use by Mr. Abraham Glasser, Special Attorney in the Department of Justice, who has been detailed to supervise their copying, and such persons as may be designated to assist him. It would thus be possible to secure copy for your stencil cutters either by typing directly from the originals or by collating with the originals such of the documents as have been printed in the two volumes of the *Statutes-at-Large* which you mention. It is believed that it would be easier to make a correct copy from the originals in this way than by working from photostats which, particularly when the ink of the originals is faded, do not always reproduce the writing clearly.

Very truly yours,

FSC-DRW

April 20, 1939

MEMORANDUM TO MR. LITTELL, ASSISTANT ATTORNEY GENERAL

FROM: FELIX S. COHEN

RE: DRAFT OUTLINE OF INDIAN LAW

In accordance with the suggestion which you made yesterday, I am reducing to a brief written statement the conclusions which were unanimously reached by the informal committee of three considering the scope of the draft outline of Indian law.

1. Two specific suggestions for eliminating material now listed in the draft outline were canvassed. The first of these referred to the subject of criminal procedure. Examination of the cases listed under this heading in Federal Digest, Ruling Case Law and Corpus Juris showed that the number of cases included would be rather small. Some of these cases, however, particularly those relating to arrest by Indian police and officers of the Indian service, have an important bearing on current or recent litigation. The elimination of this subject, therefore, would not save very much time or space and none of the attorneys considering the matter felt justified in recommending the elimination of this topic from the outline.

The second specific suggestion canvassed related to Indian claims. It was brought out that detailed analysis of the law of Indian claims in a published work might unnecessarily aid the government's adversaries in pending or future cases. On the other hand, the indexing of existing cases in this field would be valuable to those in the Department responsible for the defense of these cases. For these reasons it was agreed that it would be unwise to eliminate the subject of claims from the present outline, but that the question of how extensively this material should be written up in a handbook would be left for future consideration.

Mr. Cohen

MEMORANDUM TO MR. CLIFFORD R. STEARNS

You are hereby transferred to the Indian Research
Unit, Trial Section, Lands Division, effective not later than
Monday, April 24, 1939.

Respectfully,

CHARLES E. COLLETT
Acting Assistant Attorney General

CC to
Mr. Collett
Mr. Cohen
Mr. Bowie
Mrs. Hamilton
Mr. Provost
Miss Folsom

DEPARTMENT OF JUSTICE

WASHINGTON, D. C.

April 19, 1939

MEMORANDUM TO MR. COHEN

FROM: RAYMOND T. NAGLE

I reported to Mr. Littell according to the
attached outline and after a short discussion he was
inclined to agree with the conclusions. He will get
in touch with you, no doubt, and ask that you state
them in the form of a memorandum.

RAYMOND T. NAGLE,
ASSOCIATE CHIEF OF TRIAL SECTION

1. Only two suggestions for striking any portion of the outline.

a) Criminal--not enough to matter

b) Claims--not large

2. Should make up complete files, then the pruning must be done in the writing. Cannot tell what there is until the files are made up. Even if book never written files would be worth while.

3. Should have complete files in 2 or 3 months.

FSC-DRW

April 21, 1939

MEMORANDUM TO MR. PROVOST, GENERAL ASSISTANT

FROM: FELIX S. COHEN
RE: APPLICATION OF JULIUS SCHNAPPER

In accordance with your memorandum I interviewed Mr. Schnapper on April 20. Mr. Schnapper does not have either the familiarity with the subject matter or the special training in legal research and writing that would justify consideration for any of the positions left open in the Indian Research Unit. I shall be glad to furnish a supplementary memorandum setting forth my impression of Mr. Schnapper's general ability when I have had an opportunity to examine certain legal materials which he wishes to submit to me.

Felix S. Cohen,
Assistant Solicitor,
Department of the Interior.

FSC-DRW

April 24, 1939

MEMORANDUM FOR MR. PROVOST, GENERAL ASSISTANT

FROM: FELIX S. COHEN

RE: APPLICATION FOR POSITION BY FRANCIS O'DUNNE

In accordance with your memorandum I interviewed Mr. O'Dunne this morning. Mr. O'Dunne has undertaken to submit for my perusal a sample brief on which he worked and I shall withhold making a definite recommendation in this case until I have had an opportunity to examine that.

My tentative impression is that Mr. O'Dunne is well above average in legal ability and training, but he has had no experience either in the subject matter or in the type of research work that is involved in the Indian Research project and would, therefore, not be a particularly useful addition to our Unit.

DEPARTMENT OF JUSTICE

WASHINGTON, D. C.

April 29, 1939

MEMORANDUM FOR MR. COLLETT, ACTING ASSISTANT ATTORNEY GENERAL

FROM: FELIX S. COHEN

RE: PUBLICATION OF ATTACHED PAPER

The Minnesota Law Review has asked my permission to publish the attached paper, which I wrote some months ago. The paper was an entirely private and unofficial piece of work, as you may gather from its present form, even to the typing. Personally, I should like to see it published. Nevertheless, since the subject matter is related to my present work for the Department, I should like to make sure that the publication of such a law review article would not be a violation of any Departmental regulations or policies. I should appreciate your guidance on this matter.

not
Go ahead
C&L
File
C&L

May 1, 1939

FROM: FELIX S. COHEN

RE: REMOVAL OF DEPARTMENT OF JUSTICE MATERIALS
FROM INTERIOR BUILDING

You are requested to make the necessary arrangements for the removal of the Department of Justice materials now in Room 6026, new building, Department of the Interior, to the Justice Building. This includes two typewriters and two Rite-Lines, as well as the copied material.

Since the work at the Interior Department has been completed, it is desired that these arrangements be made as soon as possible.

DEPARTMENT OF JUSTICE

WASHINGTON, D. C.

May 1, 1939

MEMORANDUM FOR MR. FELIX COHEN

FROM: OSCAR A. PROVOST

RE: PREPARATION AND SIGNING OF MAIL OF INDIAN RESEARCH UNIT.

It has come to my attention that mail has been prepared particularly with reference to personnel matters by you as Assistant Solicitor of the Department of Interior. In view of the fact that such correspondence may be, in certain instances, construed as a commitment by this Department, all mail dealing with personnel matters should be prepared in the usual form for the signature of the head of the Lands Division and transmitted to my office for approval. A carbon copy for the files of this office should be prepared in each instance. All other mail should be prepared and handled in the manner prescribed in Lands Procedure.

In this connection, it is understood, of course, that your Unit is a part of the Trial Section of this Division, and subject to the general supervision of the chief of that section.

Respectfully,

OSCAR A. PROVOST
Chief of the Administrative Section

Mr. Cohen

May 2, 1939

MEMORANDUM FOR MR. LITTELL

FROM: O. A. PROVOST

RE: PERSONNEL FOR INDIAN RESEARCH UNIT

The appointment of Theodore H. Haas of New York, and Samuel Miller of Wisconsin, have finally gone through. Mr. Haas reported for work yesterday, and Mr. Miller is expected tomorrow. Mr. Hugh Miller, the other applicant whom you approved before you left, has decided not to accept an appointment for he prefers to stay with the Federal Trade Commission where he now is.

Mr. Cohen has gone through the list of eligible applicants for this work, and he is particularly interested in Walter Lehman, of California, and John Farley and Fred Folsom, Jr., both of Colorado. Mr. Cohen states that from the information which he has, all of these men will be acceptable except that he dislikes very much to make a definite recommendation for their appointment without personally having interviewed them. Accordingly, he asked me if there was any possibility that you would have an opportunity to interview these applicants while you are in the West. I told him that you would be very busy, but that I thought you might be able to so arrange it. If you can do so, I know that Mr. Cohen will be very happy about it and I am enclosing herewith on separate sheets a brief recapitulation of the files on each of these three men.

If it will be impracticable for you to interview these men, please let me know so that I may advise Mr. Cohen accordingly.

Inclosure No. 165532

RE: WALTER MELVILLE LEBMAN

The above named applicant is 25 years of age, unmarried, and resides at 1221 Hyde Street, San Francisco, California. He received a B.A. degree from the University of California at Berkeley in 1934, and an L.L.B. Degree from the same institution, in 1938. While in Law School, he was an associate editor and contributor of the California Law Review. At present, he is employed by Stephen M. White, at 550 Montgomery Street, San Francisco. His compensation varying according to work performed.

Mr. Lehman was recommended to Mr. Cohen by Professor Max Radin of the School of Jurisprudence at the University of California. He had also submitted to Mr. Cohen some law review notes which he prepared and which Mr. Cohen has reviewed.

RE: JOHN LAWRENCE FARICY

The above-named applicant is 25 years old, unmarried, and resides at 1227 East 10th Street, Pueblo, Colorado. He attended the University of Colorado, from 1932 to 1936, at the end of which time he received both the B.S. and L.L.B degrees. At present, he is employed by the C. F. & I. Corporation, Pueblo, at a salary of $1800 a year. He has written some law review notes for the Rocky Mountain Law Review, and during his college days, as an N. Y. A. student, worked on a number of research projects for the University of Colorado Bureau of Business and Government Research.

He has submitted some samples of his work which Mr. Cohen has reviewed and he is recommended to Mr. Cohen by Professor Weihofen of the University of Colorado Law School.

MR. COHEN

FSC-HS

May 11, 1959

MEMORANDUM TO CHARLES E. COLLETT,
ACTING ASSISTANT ATTORNEY GENERAL,

FROM: FELIX S. COHEN,

RE: ATTACHED ARTICLES CONCERNING MR. HAAS.

A trade publication in the insurance field is writing up Mr. Haas' career in that field and has asked him to explain the nature of his present work for the Department of Justice. I attach herewith for your consideration and approval a brief statement which Mr. Haas has submitted to me and which seems to me to be accurate.

I am also attaching for your information a write-up of Mr. Haas' transfer to this Department, which has already been published in another trade magazine.

Kindly return this when you have time and opportunity to glance at it.

The Lands Division of the Department of Justice and the Office of the Solicitor of the Department of the Interior have been compelled by the increasing volume of litigation relating to Indian affairs, including claims totaling more than a billion dollars, 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 increasingly 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, the Trial Section of the Lands Division of the Department of Justice, which is headed by Charles E. Collett, has undertaken a comprehensive survey of the entire field of existing federal law on Indian affairs, including statutory, judicial and administrative matters. Felix S. Cohen, Assistant Solicitor of the Department of the Interior, is supervisor of this survey, and on April 19th Theodore H. Haas was appointed Special Attorney in the Department of Justice and was subsequently designated as assistant to Mr. Cohen.

DEPARTMENT OF JUSTICE

WASHINGTON, D. C.

May 12, 1939

MEMORANDUM TO MR. COHEN

FROM: CHARLES E. COLLETT, ACTING ASSISTANT ATTORNEY GENERAL

RE: PUBLICATIONS CONCERNING MR. HAAS

I have your memorandum of May 11, with which was at-
tached a brief statement for publication prepared by Mr.Haas,
as well as a copy of the May issue of "The Spectator," con-
taining a biographical statement about Mr. Haas.

I would suggest that Mr. Haas' statement be revised
to read as follows:

The Department of Justice and the Depart-
ment 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 writ-
ten during the past half century, the legal liter-
ature 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 undertaken.
Mr. Haas was appointed as a Special Attorney
in the Department of Justice on April 19, 1939,

- 2 -

In the field of material selection there remain two
tasks: (1) the selection of published literature (law review
articles, notes, etc.), and (2) the selection of unreported
cases, memoranda and opinions from Justice Department files.
These tasks are to be assigned to 3 persons yet to be employed.
If these appointments can be made by June 1st, it should be
possible to complete the task of collecting these materials by
August 1st.

3. Analysis of Materials.

The second principal task in the preparation of the
handbook is the analysis of the selected materials and the
indexing of these materials under the proper analytical headings.
When this task is completed, the files of the Indian Law Survey
will be available for use by attorneys in the Department. At
this point in the work, it should be possible to turn over to an
attorney writing a chapter of the book (or to an attorney writing
a brief) a complete file under any point in the outline. Such a
file will include moneographed copies of all relevant treaties
and statutes and typed copies or references to all other relevant
legal materials.

The present schedule of our unit calls for the com-
pletion of this analysis in the field of reported federal cases,
Interior Department materials and public acts and treaties by
July 1st. The analysis of the remaining materials (private acts,
law review literature and Department of Justice materials) should
be completed by August 15th.

4. Writing of Handbook.

The writing of the handbook should begin when the major
part of the analysis of materials has been completed, that is to
say, on or about July 1st. The handbook will consist of approx-
imately 30 chapters. Each of 5 or 6 attorneys on the project will
be assigned primary responsibility for completing drafts of
specified chapters. The remaining members of the legal staff of
the project will be assigned special jobs of research, editing
and indexing. Upon a completion of the first draft of a chapter,
the draft will be subject to a process of review and discussion,
in which interested members of the Lands Division and perhaps
certain members of the Solicitor's staff of the Department of the
Interior may be invited to participate. The first chapter draft
should be ready for discussion on or about September 1st, and
thereafter chapter drafts should be completed for discussion at an
average rate of 5 per month. The first draft of the entire hand-
book should, therefore, be completed by March 1st, 1940. The

May 15, 1939

MEMORANDUM FOR THE FILE,

FROM: FELIX S. COHEN

RE: TYPING ASSIGNMENTS

1. Personnel:

The following typists and stenographers are assigned for full-time work:

Glasser      Bohraus
Mitchell     Hughes
O'Connell   Slyer
Lane        Kearney

Two additional persons are to be added to this list in the near future.

2. Work to be accomplished:

The main typing work to be done between May 15 and July 1 will be the stenciling of statutes and the typing of index cards. As of May 15 1024 p. of public acts already had been stenciled and 3992 p. remain to be stenciled. 221 public acts have been card indexed, and 2768 public acts remain to be card indexed.

3. Assignments:

Mrs. O'Connell, Mrs. Lane and Miss Mitchell, and the two typists to be added to the staff will spend full time on the stenciling of public acts and treaties.

Mrs. Hughes and Mrs. Kearney will spend approximately 1/2 of their time on this work.

This work will in effect absorb the time of six typists. At the rate of 15 stencils per day, it should be completed in 44 days, that is to say, on or about July 15, 1939.

Mrs. Hughes, Miss Slyer, Mrs. Glasser and Mrs. Kearney will be available for the typing of index cards for public acts.

-2-

At the rate of 35 items per day, this should take 79
days, or when equally divided among 4 typists, 20 days total.
The number of working days between May 15 and July 1 is approxi-
mately 38. Each of the 4 typists designated should spend
slightly more than 1/2 time on index cards.

Miss Bohraus is assigned to the typing of index cards cover-
ing Interior Department materials. It is estimated that this work
will be completed on July 1st.

Under the foregoing assignments Mrs. Glasser and Miss Slyer
may be called on for work other than the typing of index cards
and the stenciling of statutes, up to approximately 1/2 of their
time.

Felix S. Cohen
Chief, Indian Law Survey

DEPARTMENT OF JUSTICE

WASHINGTON, D. C.

May 15, 1939

MEMORANDUM FOR ATTORNEYS OF THE INDIAN LAW SURVEY

FROM: FELIX S. COHEN
RE: TIME SCHEDULE

Attached is a time schedule which I should like to submit today to the Acting Assistant Attorney General.

Before doing so, I should like to have the benefit of any criticisms which you may have to offer. Please submit any such criticisms in writing immediately.

Mr. Haas

Mr. Miller

Mrs. Pollitt

Miss Renner

Mr. Stearns

DEPARTMENT OF JUSTICE

WASHINGTON, D.C.

May 15, 1939

MEMORANDUM FOR MR. COHEN, CHIEF, INDIAN LAW SURVEY

FROM: THEODORE H. HAAS

RE: YOUR MEMORANDUM ON TIME SCHEDULE

1. In lieu of the term "handbook", the term "book" should be used.

2. In the middle of paragraph 1, the words "the handbook should be in print" should be omitted.

3. The prediction, page 3, about the completion of the first chapter by November 1st, and the prediction of the completion of the last chapter by May 1st, leaves out of account necessary revisions of chapters to integrate them with the whole book. It seems to me that one month should be allowed for this task and consequently all chapters should be completely revised otherwise on or before April 1, 1940. This additional month could also be used for additions or possibly additional chapters which will be suggested by seeing the work as a whole.

Theodore H. Haas,
Special Attorney

C
O
P
Y

DEPARTMENT OF STATE
Washington

May 15, 1939

In reply refer to
Le 138/3986

My dear Mr. Attorney General:

I have received your Department's letter of April 27, 1939 in which it is stated that a question has arisen regarding the interpretation of the act of April 30, 1878 (20 Stat. 40), which directed the Secretary of State to issue passports, free of charge, "to any colored citizens of the United States who may wish to go to Brazil to engage in work upon the Madera and Mamore Railway ..." It is requested that information be furnished regarding the question whether the records of this Department indicate that in the administration of the act the words "colored citizens" were ever construed to include Indians or persons of Indian blood.

A search of the Department's records fails to indicate that any matter arose in connection with the administration of the act which required this Department to pass upon the question whether the words "colored citizens", as used in the act, included Indians or persons of Indian blood. However, as of possible interest in this relation, attention is directed to the statement of Attorney General Stanbery in an opinion of July 24, 1867 (12 Op. Atty. Gen. 208, 214) to the effect that the general laws of the United States, in which Indians are not mentioned, "are never understood to apply to them" and also to the following statement in *Elk v. Wilkins* (112 U. S. 94, 100):

"General acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them."

C

O

P

Y

General Counsel
Treasury Department
Washington

May 16, 1939

My dear Mr. Attorney General:

In your letter dated April 27, 1939, you stated that in connection with the preparation of a handbook on Indian law in the Lands Division of your Department a question has arisen regarding the interpretation of the acts of March 5, 1880, and February 15, 1882. These acts authorized the importation, duty free, of certain charitable contributions for the aid of colored persons emigrating to other states. You suggested that perhaps the records of the Treasury Department may show whether, in the administration of this law, the words "colored persons" were ever construed to include Indians.

A search of the records retained in the Treasury Department has revealed only copies of two letters of the Department constructing the above-mentioned statutes. These are published in T. Ds. 4446 and 5389. We have made no search of our files transferred to the Archives.

The Honorable

The Attorney General of the United States.

FSC-DRW

May 16, 1939

MEMORANDUM FOR MR. PROVOST, CHIEF, ADMINISTRATIVE SECTION

FROM: FELIX S. COHEN

RE: APPLICATION FOR POSITION BY NANITA ANTILOTTI

After examining some sample material submitted by Miss Antilotti, I have come to the conclusion that her special abilities lie along the line of case analysis and indexing. Under present arrangements this work should be completed within about two months. I should, therefore, not want to recommend Miss Antilotti's appointment on the Indian Law Survey.

Felix S. Cohen,
Chief, Indian Law Survey

FSC-DRW

May 16, 1939

MEMORANDUM TO MR. PROVOST, CHIEF, ADMINISTRATIVE SECTION

FROM: FELIX S. COHEN

RE: APPLICATION FOR POSITION BY HERBERT BARENBOIM

After consultation with several attorneys and administrators with whom the applicant was associated, I am inclined to feel that his interests and abilities do not lie along research lines, and that the applicant would not be happy or efficient in such work. I cannot, therefore, conscientiously recommend his appointment, although I think that Mr. Barenboim has legal abilities which might well be considered by the Department in connection with other openings.

PSC-NS

May 16, 1959

MEMORANDUM TO MR. PROVOST, CHIEF OF THE ADMINISTRATIVE SECTION.

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

RE: APPLICATION OF MARY K. MORRIS.

I have interviewed Miss Morris and read a number of the memoranda and speeches prepared by her which are attached. These speeches and memoranda prepared for various governmental agencies exhibit a remarkable faculty for sizing up problems of law administration and law enforcement and a remarkable gift of expression. Senator Pittman's reference to Miss Morris as not only a "scholar" but "the greatest woman orator that I have ever known" seems justified. I am glad to recommend Miss Morris for a position in the Indian Law Survey.

The applicant grew up and went to school on an Indian Reservation in Nevada and is intensely interested in the legal and administrative phases of Indian affairs. Because of that interest she would like to transfer from her present position, that of information assistant in the Wages and Hours Administration, to a position with the Indian Law Survey. Her present salary is $2600 per annum and her position is under civil service. I assume that her transfer, if it can be arranged, would be on the basis of her present salary. She has, however, indicated a willingness to accept a lower salary, if necessary. The applicant does not have a law degree, but is now attending law school.

I believe that her experience with problems of law adminis-
tration and law enforcement and her exceptional writing ability
would amply justify her appointment to a position in the Indian
Law Survey. Her particular assignment would be writing those
portions of the handbook that deal primarily with problems of
law administration and law enforcement. If there are no insuper-

FSC-DRW

May 18, 1939

MEMORANDUM FOR MISS RENNER

FROM: FELIX S. COHEN

RE: JOB ANALYSIS SHEET

The following duties should be noted in your job
analysis sheet:

1. To read and analyze statutes and to index each
statute under the appropriate heading in the topical outline.

2. To collaborate in perfecting the topical outline by suggesting additional topical headings or other modifications on the basis of material analyzed.

3. To check the analysis and indexing of statutes
by co-workers.

4. To read proof and perform other editorial tasks involved in the compilation of Indian statutes and treaties.

5. To study books, articles, legal opinions and other data relating to Indian law and history, in order to prepare for work in preparation of handbook.

6. To attend conferences relating to Indian matters and to report to Mr. Cohen.

FSC-DRW

May 18, 1939

MEMORANDUM FOR MR. HAAS

FROM: FELIX S. COHEN

RE: JOB ANALYSIS SHEET

6. To make decisions and answer inquiries regarding all phases of the Indian Law Survey when Mr. Cohen is not available.

7. To sift and synthesize suggestions concerning procedure and to systematize and coordinate all work relating to statutes.

FSC-DRW

May 18, 1939

MEMORANDUM FOR MR. STRAINS

5. To study books, articles, legal opinions and other data relating to Indian Law and history, in order to prepare for work in preparation of handbook.

6. To carry out specific tasks of research in legal history, assigned by Mr. Cohen.

FSC-MB

May 19, 1989

MEMORANDUM FOR MRS. POLLITT AND MRS. MILLER

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

RE: LIST OF UNREPORTED CASES.

Please make a list of all unreported cases referred to in any legal opinions, administrative decisions or other material that you have occasion to analyze. Notations with respect to such cases need not be placed on the regular index cards, but should be in such form as to permit the preparation of a list of unreported cases with reference to places in which reference is found.

FELIX S. COHEN
Chief, Indian Law Survey.

-5-

## IV. Mimeographing of compiled Indian statutes,

599 out of 5909 items already mimeographed

### 5. Personnel selection.

All but one of the stenographic and typing positions set up in the proposed survey budget have now been filled. It is understood that the remaining vacancy will be filled at the earliest possible date. Both secretarial positions provided in the original budget (secretary and file clerk) have now been filled.

Of the nine attorney and law clerk positions (excluding that of the undersigned), five have now been filled, two of these by new appointments made at the recommendation of the undersigned (Theodore Haas, Samuel Miller), and three by transfer from other positions in the Justice Department (Mrs. Mima Pollitt, Mr. Clifford Stearns, Miss Bettie Renner). Four vacancies remain to be filled. For one such vacancy (law clerk), I have recommended Miss Mary K. Morris, of Nevada. For another such vacancy I have recommended Mr. Frederic Anderson of Oklahoma. There remain two vacancies. One of these I have asked Mr. Littell to fill, if possible, by selection out of four names submitted to him, James Lanigan and Walter Lehman, of California, Fred Folsom, Jr., and John Faricy, of Colorado. The final vacancy might be filled either by a second selection from among the individuals whom Mr. Littell plans to interview, or by an appointee from Oklahoma now under consideration in the Division, namely, Maurice F. Ellison.

It is hoped that at least three of these vacancies may be filled on or about June 1st, in order to permit the carrying out of the time schedule set forth in part 1 of this memorandum.

Respectfully,

Felix S. Cohen,
Chief, Indian Law Survey.

MR. COHEN

FSC-DRW

May 22, 1939

Julius M. Keller, Esq.
Mills Building
San Francisco, California

Dear Mr. Keller:

Your letter of May 12, 1939, addressed to Mr. Cohen of this Department, has been referred to me. I note your statement that you are not interested in a temporary position. I regret to have to advise you that the position about which you inquire, in connection with the Indian Law Survey, is a temporary position.

FSC-DRW

May 25, 1939

FROM: FELIX S. COHEN

RE: ASSEMBLING OF MINEOGRAPHED STATUTES

It would save us considerable time in putting our files into shape if the Mimeographing Section would furnish us with 25 copies of each statute mimeographed, stepling together the loose sheets of statutes running to more than one page.

Our budget calls for the full time services of one mimeograph operator. You may wish, before making a definite assignment of this work, to ask the Mimeographing Section to advise you how much time the work they are now doing for the Indian Law Survey is taking, and how much additional time the job suggested above would require.

Brooklyn, N.Y.

May 25, 1939.

Felix S. Cohen, Esq.,
Indian Land Survey,
Lands Division,
Department of Justice,
Washington, D. C.

Dear Mr. Cohen:

Since our conversation on Tuesday of this week, I have given considerable thought to the proposal which you made regarding the treatise on Indian law. Your outline of the advantages and possible disadvantages of a position which would be immediately dependent on this project was quite complete, I believe, and I appreciate your explaining all the circumstances to me as you did. As I indicated to you, however, I feel very strongly that my particular needs are such that it would be unwise for me to undertake any specific commitment which might impair my chances for experience of more general significance and practical value than that afforded by your project. For this reason, I believe that you had better return my file to the office of Mr. Provost to await consideration for some other opening later on.

I am more than grateful for your compliments about my various writings, and I regret that we may not have an opportunity to work together immediately, since I am sure that our association would be most pleasant. Should I be fortunate enough to obtain some other position in Washington, I hope that we may see each other frequently.

May 25, 1939

MEMORANDUM FOR MISS BURNSIDE, LIBRARIAN,
LANDS DIVISION LIBRARY,

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

Re: Books from Library.

Pursuant to your request I am submitting herewith
a list of the books from the Lands Library now in the
offices of Mr. Cohen, Mr. Haas, Mr. Miller, Miss Renner,
Mrs. Pollitt, and Miss Williamson.

FSC-DRW

May 26, 1939

FROM: FELIX S. COHEN

RE: APPLICATION FOR POSITION BY PARKER BAILEY

On May 23 I interviewed Mr. Bailey at your suggestion. I had already read some of his legal writings and Mr. Collett had conveyed to me his rather favorable impressions of the applicant. I believe that Mr. Bailey has the kind of ability to systematize a confused field which is particularly important in the Indian Law Survey. I should be glad to have him on my staff. In advising him of my intention to recommend his appointment at a probable salary of $3,600.00, I pointed out that the work of the Survey would be confined to a field that would be of little practical value to him in later practice, although I added that upon the completion of the Handbook there would be a good chance for a transfer to a better position in the Department.

Mr. Bailey asked time to consider the problem which I have presented. I have just received the attached letter, in which he indicates that he does not wish to be considered for the Indian Law Survey position. I am glad, however, to recommend him for consideration in connection with any other openings in the Department.

DEPARTMENT OF JUSTICE

WASHINGTON, D.C.

May 26, 1939

MEMORANDUM FOR MR. PROVOST, CHIEF OF ADMINISTRATIVE SECTION

RE: USE OF STORAGE SPACE.

Permission is requested to use one of the closets
in Room 2343, now occupied by Mr. Maurer and Mr. Wilkinson,
for the storage of supplies of stencils for a temporary
period.

<table>
  <tr>
    <td>ADMINISTRATIVE SECTION</td>
  </tr>
  <tr>
    <td>Lands Division</td>
  </tr>
  <tr>
    <td>RECEIVED</td>
  </tr>
  <tr>
    <td>MAY 26 1939</td>
  </tr>
  <tr>
    <td>11:00 AM</td>
  </tr>
  <tr>
    <td>Assumed to:</td>
  </tr>
  <tr>
    <td>Action due:</td>
  </tr>
</table>

FSC; JCH

May 27, 1959

FROM: FELIX S. COHEN, Chief, Indian Law Survey.

RE: PRESENT STATUS OF HANDBOOK OF FEDERAL INDIAN LAW.

1. Present status of work.

I. Selection of materials.

1. Statutes and treaties, already completed

2. Interior Department legal materials, already completed

3. Reported cases, already completed

4. Justice Department materials, work not begun

5. Other materials, work not begun.

II. Analysis of materials.

1. Public acts and treaties, 501 out of 2732 items
   already analyzed and
   indexed.

2. Reported cases, 350 out of 842 cases
   already analyzed and
   indexed.

3. Interior Department decisions, 210 out of 1,000 items
   already analyzed and
   indexed.

4. Private acts, 192 acts out of 1177
   have already been
   analyzed and indexed.

5. Justice Department materials, work not begun

6. Other literature, work not begun

- 2 -

III. Writing of book,

work not begun

599 out of 3909 items
already mineographed

2. Personnel selection.

The one stenographic vacancy reported in my memorandum to
you of May 20 remains unfilled. In addition, it appears that
a second vacancy will be created by the contemplated resignation
of Mrs. Ungerer because of poor health.

The four attorney and law clerk vacancies reported in my
previous memorandum remain unfilled. In my last report to you
I expressed the hope "that at least three of those vacancies may
be filled on or about June 1st in order to permit the carrying
out of the time schedule set forth" in that report. If early
action can not be had either on the personnel recommendations which
I have already submitted or on those which Mr. Littell may make
upon his return to the office, I am afraid that it will be impos-
sible to carry out that time schedule.

Respectfully,

FSC-DRW

May 31, 1939

FROM: FELIX S. COHEN

RE: APPLICATION FOR POSITION BY JACOB ABRAMSON

Mr. Parker Bailey, whom you asked me to interview a
week ago, strongly recommends Mr. Jacob Abramson for the
position which Mr. Bailey turned down. Mr. Abramson is now
in Washington and I suggest that you interview him. If you
are favorably impressed with his ability, as I am, I would
recommend that the attached inquiries be sent to the persons
whom he names as references.

I should not like to make a definite recommendation
concerning Mr. Abramson without such further information as
these inquiries may elicit.

Mr. Abramson's application, filed on February 15, 1939,
is available in Mr. Provoast's office. I attach herewith
Mr. Bailey's letter of recommendation.

U

Department of Justice
Washington

NORMAN M. LITTELL
ASSISTANT ATTORNEY GENERAL

August 3, 1939

MEMORANDUM TO THE INDIAN LAW BOOK RESEARCH UNIT AND ATTORNEYS
WORKING ON INDIAN MATTERS

FROM: NORMAN M. LITTELL, ASSISTANT ATTORNEY GENERAL

REGARDING: ADVISORY COMMITTEE ON INDIAN LAW BOOK

The following will serve as an Advisory Committee for the Indian
book work, pursuant to our conference of August 2, 1939:

From the Indian Book Unit:

Mr. R. H. Fabian and Mr. T. H. Haas

From the Trial Section:

Mr. W. H. Churchwell and Mr. Pedro Capo-Rodriguez

From the Legislation Section:

Mr. Joseph T. King, Jr.

There are others so well qualified to serve on this committee
that selection had to be somewhat arbitrarily made in order to limit
the size in favor of workability.

Mr. Fabian will serve as chairman of this committee.

The committee should 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.

Any matters which cannot be agreed can be the subject of con-
ferences with the writer when necessary, but the committee should come
out with a satisfactory preliminary outline of the manual upon which
the work can proceed with satisfaction to all parties interested in it.

Suggestions can be submitted from any sources to the writer or
directly to the committee if this is preferred.

N. M. L.

DEPARTMENT OF JUSTICE

WASHINGTON, D. C.

September 20, 1939

FROM: THEODORE H. HAAS, MEMBER, ADVISORY COMMITTEE FOR THE INDIAN BOOK.

RE: COMMITTEE REPORT

I very respectfully dissent from some of the conclusions set forth in the report of the majority of the committee, which I received last night.

1. So far as I have been able to determine, the committee members who have objected to the draft of the Table of Contents of the Indian Law Book have taken the position that since the Trial Section of the Lands Division has been allocated the money for this survey, its paramount objective should be to fulfil the needs of this Section. Emphasis also seems to be placed on the needs of the lawyers of the Section in Washington, D. C.

In order to clarify the objectives of the survey, I circulated to the committee a copy of your memorandum to Mr. Littell dated April 12, 1939, entitled "Justification for Handbook of Federal Indian Law". A perusal of this memorandum shows that the needs of the Trial Section form only a part of the purposes of the Indian Law Unit.

The difficulty of attaining these objectives, which include fulfilling the needs of the Departments of Interior and Justice, including Federal Attorneys and Indian field officials, cannot be denied, particularly in view of the complexity and extent of the materials on Indian Law, the limited time allotted, mechanical difficulties, etc. Having collected and analyzed the necessary data in its files in order to fulfil these aims, the Unit is well on its way to meeting these needs.

- 2 -

Even in considering the needs of the Trial Section, we must be farsighted and bear in mind that the book should be useful in the solution of future, as well as present, problems. The subject matter of Indian litigation has varied in the past and, undoubtedly, some of the problems which were litigated during the past ten years will not be raised so often in the future. For example, the subject of allotted lands and even the rights of the Five Civilized Tribes may not be contested so frequently. That these subjects must be adequately covered does not preclude a proper discussion of new fields of Indian Law in which litigation may occur and in which the law is more unsettled. Some of the New Deal legislation will undoubtedly give rise to much litigation in the near future. The Handbook must anticipate these needs. Like all lawyers, we must in part be prophets.

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:

Sioux Tribe v. United States,
84 Ct. Cl. 16 (1936)

Shoshone Tribe v. United States,
82 Ct. Cl. 23 (1935)

Dwamish Indians v. United States
79 Ct. Cl. 530 (1934)

Fort Berthold v. United States
71 Ct. Cl. 308 (1930)

-3-

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-
ly be included in a discussion of tribal and individual rights.
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.

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 mechanics 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, including 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, if possible. Depredations, for example, are still a factor

- 4 -

in recent decisions of Indian cases. See *Duamish Indians v. United States*, 79 Ct. Cl. 530 (1934), at page 612.
Knowing that Indian liquor violations constitute a very important problem for the Criminal Division of the Department of Justice¹ 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 summarize the law.

I am in favor of a thorough discussion of the Five Civilized Tribes because of the importance of litigation 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.

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.

¹/ See Report of the Attorney General for 1938, enumerating 1337 instances of Indian liquor violations for the preceding fiscal year.

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

DEPARTMENT OF JUSTICE

WASHINGTON, D. C.

October 9, 1939

MEMORANDUM TO MR. FELIX COHEN, CHIEF OF INDIAN LAW SURVEY

FROM: FRANK CHAMBERS, CHIEF OF THE LEGISLATION AND GENERAL SECTION

RE: INDIAN SURVEY BOOK

There are attached memoranda referring to legislation affecting individual and tribal Indians, with the exception of jurisdictional bills, which memoranda should be of some aid to you in learning of the problems confronted by the Lands Division in Indian matters. These memoranda are furnished you as a result of our conversation regarding this matter a week or ten days ago.

Some of the attached memoranda were never officially used by the Department for the reason that no committee or member of Congress ever requested a report on some of the legislation.

When you have finished with this material please return it to me as I need it to complete the Legislation and General Section's files.

Chief of the Legislation and
General Section

-3-

the General Allotment Act of February 8, 1877, 24 Stat. 388, was to encourage individual rather than tribal ownership. This policy was reversed under the Wheeler-Howard Act of June 18, 1934, 48 Stat. 984, but it is significant that Section 5 of that act declares tax exempt all lands purchased under its terms.

It is recommended therefore that the intent of Congress with reference to tax exemption be specifically stated in the bill by adding the proviso to Section 1 declaring the land purchased under its terms either tax exempt or subject to state taxation.

**Syllabus:** Section 2 of a bill providing for payment by the United States of the amounts due on delinquent homestead entries and purchases on certain Indian reservations, objected to on the ground that it may lead to litigation since it purports to affect only entrymen.

**Discussion:** The various plans for the disposition of surplus Indian lands usually provided only for entry under the homestead laws but in some instances direct sales were authorized. Ordinarily, purchasers at the direct sales were required to pay the full value of the land in cash at the time of the purchase, but in some few instances instalment payments were provided for. See the provisions for cash payments by purchasers in the Act of January 14, 1889, 25 Stat. 642, and the provisions for instalment payments in the Proclamation dated April 6, 1917, 40 Stat. 1653. Section 2 of the proposed bill provides only that the act is in no way to affect the liability of entrymen to complete payments on their entries, and further, that payments made by homesteaders are to be covered into the general fund of the treasury. This ambiguity may give rise to a claim by purchasers that the provisions of this bill relieve them from making further payments. Such claims would doubtless lead to litigation.

In view of the distinction between entrymen and purchasers and since both Sections 1 and 3 of the proposed bill refer to purchasers in addition to entrymen, it is considered that if it is the intention of Congress to include purchasers within the terms of Section 2 the words "or purchasers" should be

April 13, 1939

MEMORANDUM FOR THE ACTING ASSISTANT TO THE
ATTORNEY GENERAL, MATTHEW F. McGUIRE

Attention: Mr. Holtzoff

Re: H. R. 5451, 76th Congress, 1st Session, a bill "To authorize the consolidation of the lands on the Sisseton Indian Reservation, North and South Dakota, and for other purposes".

**Syllabus:** A bill authorizing the Secretary of the Interior to acquire any interest in Indian or non-Indian lands, water rights or surface rights to lands within the boundary of the Sisseton Indian Reservation, North and South Dakota, objected to on the ground that no specific provision is made as to the taxable status of the lands or rights.

**Facts:** This bill authorizes the Secretary of the Interior to acquire any interest in Indian or non-Indian lands, water rights or surface rights to lands within the boundaries of the Sisseton Indian Reservation in North and South Dakota. The apparent purpose of the bill is to consolidate individually owned land within the reservation as a step toward the administration of the affairs of the tribes on a communal basis, in conformance with the policy expressed in the Wheeler-Howard Act of 1934, 48 Stat. 984. Title to the land is to be acquired in the name of the United States in trust for the tribes as distinguished from the prior policy of allotting the land in severalty. While the bill contemplates the acquisition of land which is presently subject to taxation it does not specify whether land so acquired is to be subject to or immune from state taxation.

**Discussion:** In the absence of an express exemption by Congress, Indian land is free from state taxation only if it is such an instrumentality of the United States

-2-

as will be declared immune from taxation. Shaw v. Oil Corporation, 276 U. S. 575, 578. Which governmental instrumentalities will be held free from state taxation, in the absence of express provision, must be determined from the intent of Congress. id. p. 578. It is not enough that the lands are instrumentalities of the United States. To be exempt from state taxation they must be intimately connected with the performance of an essential governmental function. id. p. 580. Thus land allotted to individual Indians is tax-exempt. Carpenter v. Shaw, 280 U. S. 363, 366; United States v.lickert, 198 U. S. 432; while land purchased for an individual Indian with trust funds is taxable, even though subject to restrictions on alienation. United States v. Benson, 265 U. S. 691; McCurdy v. United States, 243 U. S. 263. Of course Congress may expressly protect land from state taxation. Shaw v. Oil Corporation, 276 U. S. 575, 581. For example, see section 5 of the Wheeler-Howard Act of 1934, 48 Stat. 994.

Title to land acquired under this bill would be in the United States whereas the title to the land involved in the cited cases was vested in individuals. However, the fact that title is vested in the United States would be merely supportive and not conclusive of the premise that the land is such an instrumentality of the United States as to be immune from state taxation. Small doubt is entertained that land acquired under this bill would not be subject to state taxation, yet, since doubt exists, it would invite litigation. Compare, United States v. Wright, 55 F. 2d 300, (C.C.A., 1931), where the state attempted to tax Indian land although the act under which the land was purchased expressly provided the land should be tax-exempt.

An express declaration would resolve any uncertainty. If it is the intention that the land be tax-exempt a comma should be substituted for the period following the word "Indians" on line 1, page 2 and the following words added:

"and such lands or rights shall be exempt from state and local taxation."

If it is the intention that the land be subject to taxation a comma should be substituted for the period following the word "Indians" on line 1, page 2 and the following words added:

-3-

"and such lands or rights shall be subject to state and local taxation."

**Syllabus:** A bill authorizing the Secretary of the Interior to acquire any interest in lands, water rights or surface rights and providing that title to any land acquired shall be taken in the name of the United States in trust for the tribes, objected to on the ground that the bill does not specify in whom title to the water rights and surface rights is to be taken.

**Discussion:** The bill provides for the acquisition of any interest in water rights or surface rights as well as the land itself. It further provides "Title to any land so acquired shall be taken in the name of the United States *********, but makes no provision with reference to the title to water or surface rights. To dispel any uncertainty the following addition is suggested. After the word "land" in line 9, page 1, insert the words "or rights".

Respectfully,

CHARLES R. COLLETT,
Acting Assistant Attorney General

By

Chief of Legislation and General Section.

-1-

It appears from the letter dated February 15, 1933, from the Acting Secretary of the Interior to the President of the Senate, transmitting the proposed bill which became S. R. 4679, that certain of the funds appropriated under the Act were used for the development of Indian subsistence homesteads. For several reasons set forth in that letter, the Secretary of the Interior deems it advisable that he be given authority (a) to cancel or readjust obligations of repayment of any sums advanced under the Act in order to establish and preserve as tribal assets lands and improvements acquired through such expenditures, (b) to assign certain lands and improvements to Indians and (c) to establish as Indian reservations any of such lands as he may designate. It is not necessary to elaborate upon the details for the purpose of this memorandum.

**Discussion:** The proposal raises a question of policy which is not within the province of this Department. However, if the bill be enacted without amendment, Indian tribal claims-ants undoubtedly will contend that the Act removes from the operation of the Act of August 15, 1933 (49 Stat. 896), and any other statute authorizing the Court of Claims to offset gratuities, all loans made under authority of Section 206, *surre*. The letter of the Acting Secretary of the Interior to the President of the Senate does not indicate that there was any intention that the Act should have such an effect and no reason is perceived why gratuities of this nature should be treated differently from other gratuities. It is suggested therefore that the Act be amended by adding thereto a new sec-tion to read as follows:

> Nothing in this Act shall be construed as pre-venting, and nothing done by the Secretary of the Interior under the authority of this Act shall have the effect of preventing the Court of Claims, under the authority of any statute now existing or here-after enacted, from offsetting against any judgment of said court in favor of any Indian nation, tribe, band, or other group permitted to sue, any unrepaid sum or sums disbursed under the authority of Title II, Section 206, of the Act of June 15, 1933

RMV-GEW

78-242

March 3, 1959.

MATTHEW F. McGUIRE

Attention: Mr. Holtzoff

Re: H. R. 4096, 76th Cong., 1st Sess.,
"To credit the Crow Indian tribal
funds with certain amounts hereto-
fore expended from tribal funds on
irrigation works of the Crow
Reservoir, Montana.

This will acknowledge your memorandum dated March 1, 1959 in which you inform me that the Attorney General has been requested by the House Committee on Indian Affairs to submit his views as to the merits of the above bill, and in which you request that I submit a memorandum to you containing my views, as well as a summary of the pertinent facts.

H. R. 4096 provides that the amount of tribal funds of the Crow Indians heretofore expended for construction and operation and maintenance of irrigation systems on the Crow Reservation shall be reimbursed from the Treasury of the United States and placed to the credit of the Crow Tribe and be available for such expenditures for the benefit of the Tribe as the Congress may hereafter direct.

FC-TEW

90-2-0-209

March 3, 1939

MEMORANDUM FOR THE ACTING ASSISTANT TO THE ATTORNEY GENERAL
MATTHEW F. McGUIRE

Attention: Mr. Holtzoff

Re: H. R. 3917 - 76th Congress, 1st Session,
"For the relief of George P. Parker."

This bill directs that the Secretary of the Interior
"investigate the removal of George P. Parker, a member of the
Red River Band of Chippewa Indians, and an allottee upon the
Red River Reservation in Wisconsin, from said reservation, and
if he shall find that such removal by officers and agents of the
Government is illegal, the Attorney General concurring, he shall
so certify to the Secretary of the Treasury." The bill further
directs that upon the certification being made to the Secretary
of the Treasury, he shall "pay to said George P. Parker the sum
of $6,000 to compensate him for injuries to his business and
property by reason of such illegal removal."

Private laws intended to compensate individuals for
injuries to their business or property resulting from illegal
acts of officers and agents of the Government are not infrequent
or uncommon, the matter being one of legislative policy. Further-
more, the bill under consideration is not without precedent.
See an act entitled "An Act for the relief of Frank Murrey,"
approved May 29, 1928, 48 Stat. 2024.

This bill involves merely a question of policy for
Congress to decide and while Section 1 provides that the finding
of the Secretary of the Interior, if such a finding is made,
that the removal of Parker was illegal must be passed upon by
the Attorney General, I assume there is no objection on the
part of the Attorney General to performing this function. It
is concluded, therefore, that this bill should not be objected
to by this Department.

Respectfully,
CARL McFARLAND,
Assistant Attorney General,

By
Chief of the Legislation
and General Section.

WBJ-TEW

78-242

February 9, 1939

MEMORANDUM FOR THE ASSISTANT TO THE ATTORNEY GENERAL
JOSEPH B. KEENAN

Attention: Mr. Holtzoff

Re: H. R. 2777 - 76th Congress, 1st Session
"To credit certain Indian tribes with sums heretofore expended from tribal funds on Indian irrigation works."

This will acknowledge receipt of your memorandum dated February 7, 1939, in which you inform me that the Attorney General has been requested by the House Committee on Indian Affairs to submit his views as to the merits of the above bill, and in which you requested me to submit a memorandum to you containing my views, as well as a summary of the pertinent facts.

H. R. 2777 provides that the amount of tribal funds of the San Carlos Apache Indians, the Fort Hall Indians, the Crow Indians, the Fort Belknap Indians, the Klamath Indians, and the Indians of the Uintah and Ouray Reservation heretofore expended for construction and operation and maintenance of irrigation systems on their respective reservations for which they have not been previously compensated, shall be reimbursed from the Treasury of the United States and placed to the credit of their respective tribal funds and be available for such expenditures for their benefit as Congress may hereafter direct.

The purpose of the proposed legislation is to remove in-justices to the tribes named, resulting from the administration of the Act of August 1, 1914 (38 Stat. 582) by the Secretary of the Interior. That Act provided, in substance, that the general appropriations theretofore made, and up to that time apparently considered as gratuities, as well as those appropriations thereafter to be made, should be reimbursable from tribal funds,

- 2 -

and further that the whole cost of any project theretofore
financed by appropriations from the Treasury and made reimbursable
from tribal funds, was to be apportioned to the individuals of the
tribes whose lands actually benefited under rules and regulations
to be prescribed by the Secretary of the Interior. In the admin-
istration of this Act it was impossible in many instances to assess
white purchasers of the allotments of deceased allottees, who had
purchased both before and after 1914, under advertisements issued
by the Secretary of the Interior exempting the purchasers from
construction charges. (See 33 Op. Atty. Gen. 25).

The Secretary of the Interior has recommended the passage
of this legislation, although the Director of the Bureau of the
Budget has advised it would not be in accord with the financial
program of the President. The question as to whether the several
Indian tribes should be credited with the sums heretofore ex-
pended from tribal funds on Indian irrigation works is, of course,
a matter of policy which does not concern this Department. Since
the enactment of the legislation would in no way affect the
conduct or control of litigation with the Department of Justice,
it is recommended that no objection be made to the bill.

RV:JEW

33-49-221

March 14, 1939.

MEMORANDUM FOR THE ACTING ASSISTANT TO THE ATTORNEY GENERAL,
MATTHEW F. McGUIRE,

Attention: Mr. Holtzoff.

Re: H. R. 2653, 76th Congress, 1st Session, "To
authorize the acquisition of complete title
to the Puyallup Indian Tribal School property
at Tacoma, Washington, for Indian sanatorium
purposes."

This will acknowledge receipt of your memorandum, dated March 1,
1939, in which you inform me that the Attorney General has been re-
quested by the House Committee on Indian Affairs to submit his views
as to the merits of the above bill and in which you request that I
submit a memorandum to you concerning my views, as well as a summary
of the pertinent facts.

H. R. 2653 proposes to authorize the Secretary of the Interior to acquire from the Puyallup Tribe of Indians, for Indian sanatorium purposes, certain tracts of land, including all tribal-owned improvements thereon, in the Indian addition to the City of Tacoma, Washington, established under the Act of March 3, 1869 (27 Stat. 633). The title is "to be conveyed to the United States by such form of relinquishment or deed to be executed by authorized members of the tribe elected by the tribe for that purpose." The bill also contains provision for an appropriation of $220,825.00 to be distributed by the Secretary in equal shares to the 340 enrolled members of the Puyallup Tribe under such rules and regulations as he may prescribe, provided that the acceptance by each individual of the pro rata share of the amount so appropriated shall be recognized as completely extinguishing any and all right or interest which such member of the Tribe might have had in the property. The fulfillment of these provisions is not to bar the hospitalization of or medical attention to members of the Tribe at the Indian sanatorium.

Whether the acquisition of these tracts and the proposed appropri-
tion therefor should be authorized is a question of policy which does

- 4 -

As to Items 5 and 6, which the court said were not satisfactorily established and would in any event be rejected, the proof relied upon by the Government was the report of the Comptroller General. In subsequent cases in the Court of Claims the report of the Comptroller General was accepted as sufficient proof to sustain the allowance by the Court of Claims of millions of dollars of gratuity offsets. As to Items 8 and 9, which represent the cost to the Government of educating Osage children in non-reservation Indian schools, and which were rejected by the court as being for the benefit of individuals of the tribe and not for the benefit of the tribe as a whole, it is here pointed out that in subsequent cases under acts containing similar provisions with reference to offsets, expenditures of this nature amounting to hundreds of thousands of dollars have been sustained by the Court of Claims as proper offsets.

These seven items of offset amount in all to $535,798.18.

These items were all based upon the report of the Comptroller General on file in the case. The closing date of that report was June 30, 1922, nearly seventeen years ago. In these seventeen years the United States has undoubtedly expended gratuitously for the benefit of these Indians thousands of dollars, possibly hundreds of thousands, for the same purposes as set out in Items 6 and 9 above referred to. The total amount thus expended can readily be ascertained through a request upon the Comptroller General for a statement showing the amount.

It is shown in the discussion under Syllabus I that this "claim" is neither a legal nor an equitable one. It is at most a "moral" obligation. Therefore, the United States is as "morally" entitled to the benefit of these offsets as the Tribe is entitled to have this "moral" obligation satisfied. Furthermore, this solution of the matter would be in full consonance with the provisions of the Act of August 12, 1935 (49 Stat. 571, 596), which provides in short that the claims of Indian tribes against the United States shall be reduced by the amounts expended gratuitously for their benefit by the Government.

In this connection, as perhaps furnishing an alternative method of dealing with the matter, attention is directed to Attorney General Mitchell's letter of February 6, 1932 (file 78-6) to the Chairman of the Senate Committee on Indian Affairs upon S. 2352 of the 72nd Congress, 1st Session, wherein he recommends that:

-3-

$12,000,000, or so much thereof as may be necessary, to pay the nations, in consideration for the transfer of the mineral deposits, the amount determined by the appraisement; and the amount so paid is to be placed to their credit on the books of the Treasurer of the United States and is to be distributed to the members of the tribes. For the purpose of enabling the Secretary of the Interior to carry into effect the provisions of this Act, the sum of $10,000 is to be made immediately available.

Whether or not the coal and asphalt deposits in the mineral lands of these Indians should be acquired by the United States, and an appropriation therefor should be made, is a question of policy with which this Department is not concerned. The enactment of this legislation would in no way affect the conduct or control of litigation by the Department of Justice. It is therefore recommended that no objection be made to the bill.

Respectfully,
CARL MEFARLAND
Assistant Attorney General

-2-

**Discussion:** All parties agree that the Indians have no legal right to this $400,000. (See House Report No. 1199, 75th Congress, 1st Session, to accompany S. 642; and Senate Report No. 771, 75th Congress, 1st Session, to accompany S. 642.)

As will be seen from the committee reports mentioned, both the House and Senate committees, as well as the Secretary of the Interior, have expressed the opinion that the United States is under a moral obligation to pay these Indians $400,000. The question has been thoroughly discussed in memoranda prepared by George T. Stornent, an attorney in the Lands Division, under dates of August 26, 1935, and January 23, 1936, and in my memorandum of February 9, 1936, relative to S. 642, 75th Congress, 1st Session (Departmental File No. 78-60). It may be seen from these memoranda that under the Fort Laramie Treaty of September 17, 1851, the Fort Berthold Indians were already obligated to keep the peace and to allow the United States the right "to establish roads, military and other posts, through their respective territories," and that such Indians had no right whatever to the tract of land purported to have been ceded by the unratified treaty of 1866.

The history of the Arickarees, Gros Ventres, and Mandans, the three tribes from which the Fort Berthold Indians are descended, shows that in early times they were not affiliated but lived in separate villages on the west side of the Missouri River at points much farther down that river than their present location; in fact, the Arickara formerly lived on the Missouri near the mouth of the Cheyenne River. The Sioux were the implacable enemies of all three tribes and waged incessant war against them. Because of this, and because of the ravages of smallpox, their villages were gradually reduced in numbers until there was only one village in each tribe. These villages were slowly forced up the Missouri River by the Sioux, until in self protection they consolidated in the vicinity of Fort Berthold. The Gros Ventres reached their present location in 1845; the Mandans joined them, some in 1845 and the balance in 1857; and the Arikara not later than 1862.

From and after 1857, none of these Indians lived on the east side of the Missouri River. All that country and all of it on the north side "from the region of the Gros Ventre to the mouth of the Big Sioux River" was claimed and occupied, in parts sparsely, it is true, but nevertheless occupied, by the Yanktonas and Yanktonai Sioux (Rept., Commr. Ind. Affrs., 1856, pp. 556, 618; Idem., 1866, p. 56; Rept., Secy. War, 1856, p. 665; "Explorations in the Dakota Country," by Lieut. G. E. Warren of the Topographical Engineers, 1855, Sen. Ex. Dec. 76, 34th Cong., 1st Sess., p. 16). It is thus seen that after 1857 none of these Indians occupied the country covered by the cession in this unratified treaty, and as far as can be ascertained never claimed any rights therein after that date other than in this unratified treaty. The citations show that all of the country border-

-2-

Indians at the rate of 10¢ per acre for the reservation set apart in that article, would provide a lieu reservation elsewhere, and would add to the trust fund the amount to be paid under the amendment when ascertained by the Department of the Interior. This amount was determined to be $112,000, and by the Act of August 30, 1862 (10 Stat. 41, 52), was added to the trust fund, making it amount to the sum of $1,478,000.

As a result of an outbreak on the part of the Sioux Indians in 1868, the Congress, by the Act of February 16, 1868, annulled all treaties with them. Nevertheless, the interest reserved by the treaty of 1851 was actually credited and fully accounted for to them for a period of fifty years. The Indians thus received interest aggregating 250%, which under the terms of the treaty extinguished the obligation to repay the principal.

On March 17, 1917, these Indians, under authority of the Act of April 11, 1916 (39 Stat. 47), filed a petition in the Court of Claims containing ten counts. Count 4 of that petition was based on the provisions of the treaty of 1851 above recited. The petition alleged that the plaintiff bands "did not understand nor in fact willingly agree" that the fifty annual payments provided for in the treaty were to be "in full payment of said balance, principal and interest." Testimony upon this issue was taken in the field. On the trial of the case the Court of Claims found:

> It appears from the evidence that some of the members of the plaintiff bands did not understand, at the time of the making of said treaty, that the payments of interest on said trust fund for fifty years was to be in full payment of the principal thereof, but understood that at the end of said fifty-year period the principal was to be paid to said bands: but it does not appear that the provision of the treaty on this point was misunderstood by the chiefs and headmen who represented said band in the making of the treaty. (Under-scoring supplied.) (Finding VIII, 56 Ct. Cls. 302, 311.)

The date of the decision of the Court of Claims was April 23, 1925; through inaction the bands lost their right of appeal to the Supreme Court, but this was restored by the Act of March 4, 1927 (44 Stat. 1847). In the appeal prosecuted under this Act the claim here under consideration was one of four presented to the Supreme Court for review. The decision of the Court of Claims was affirmed, *Sioux Indians v. United States*, 277 U. S. 424.

78-209

WBJ-MVS

January 16, 1939.

MEMORANDUM FOR THE ASSISTANT TO THE ATTORNEY GENERAL
JOSEPH B. KENAN

Attention: Mr. Holtzoff

Re: H. R. 792 - 76th Congress, 1st Session,
"Authorizing payment to the Devils Lake
Band of Sioux Indians of the Devils Lake
(North Dakota) Indian Reservation at the
Fort Totten (North Dakota) Indian Agency,
for damages for wood and timber used and
destroyed by the armies of the United
States while maintaining a military post
at Fort Totten, North Dakota, between the
years 1867 and 1890 and for which damages
the said Indians have not been heretofore
compensated.

1.

**Syllabus:** In view of the fact that this claim has heretofore been litigated and held by the Court of Claims to be "devoid of merit" because of prior settlement, the payment thereof is objected to and it is recommended that the bill do not pass.

**Facts:** This Bill proposes to appropriate the sum of $300,000, with interest thereon at five per centum per annum since October 1, 1890, in payment of the claim of the Devils Lake Band of Sioux Indians for wood and timber cut from their lands and used at the military post of Fort Totten, North Dakota, between the years 1867 and 1890

During the years mentioned the United States maintained a military post (Fort Totten) on the lands of these Indians at Devils Lake, North Dakota. During a portion of this period timber on the said

- 2 -

lands belonging to the Indians was cut therefrom and used by the
military forces at Fort Totten. The amount used was of the value of
$50,000 (See Sisaket and Wahpeton Bands of Sioux Indians v. The United
States, 58 Ct. Cls. 302, Finding XVI, page 321). *

On November 2, 1901, an agreement was entered into between these
Indians and the United States providing for the sale to the United
States of the Indians' unallotted surplus lands. During the nego-
tiations leading up to this agreement the Indians insisted that a
number of their claims against the United States be settled in the
agreement. Accordingly the agreement provided that "In consideration
of the land ceded, relinquished and conveyed by Article I of this
agreement * * * also in full for timber taken from their reservation
for use of the military post of Fort Totten from 1867 to 1890, covering
the period from the time of its establishment to the time of its dis-
continuance, the United States stipulates and agrees to pay to said
Indians, in the manner hereinbefore provided, the sum of $345,000."
This agreement was submitted to the Congress for ratification, and
by the Act of April 27, 1904 (33 Stats. 319), the agreement was amended
and confirmed. As amended by the Congress the agreement read: "In
consideration of the land ceded, relinquished and conveyed by article
one of this agreement * * * also in full for timber taken from their
reservation for the use of the military post of Fort Totten" from 1867
to 1890 (covering the period from the time of its establishment to the
time of its discontinuance), "the United States stipulates and agrees
to dispose of said lands to settlers under the provisions of the home-
stead and town site laws * * * and to pay to said Indians the proceeds
derived from the sale of said lands;" etc. As a result of the opera-
tion of this Act amending, ratifying and confirming the agreement, the
Indians of the Devils Lake reservation received the sum of $421,650.21,
or $76,850.21 more than the amount originally agreed upon. (See Sisaket
and Wahpeton Bands of Sioux Indians v. The United States, 58 Ct. Cls. 302
Finding XVI, page 321.)

By the Act of April 11, 1916 (39 Stats. 47), the Sisaket and
Wahpeton Bands of Sioux Indians were given permission to sue in the

* By the treaty of February 19, 1867 (15 Stats. 505), two reservations
were set apart for the members of the Sisaket and Wahpeton Bands of
Sioux Indians, one at Devils Lake, North Dakota, and one at Lake Tra-
verse, South Dakota. The Indians on the first named reservation be-
came known as the "Devil's Lake band of Sioux Indians" and were included
in the parties plaintiff in the case referred to.

- 3 -

Court of Claims "upon all claims of whatsoever nature which (they) may have or claim to have against the United States." Among the claims asserted under the petition filed under this Act was this claim for the value of the timber cut from their lands by the military at Fort Toten. The Court of Claims found as a fact that the timber used by the military forces was worth only $50,000, and in its opinion (58 Ct. Cts. 302, 335) stated:

> Items 9 and 10 (i.e. this being the claim for timber), Findings XV and XVI. These items are so obviously devoid of merit that we think the findings fully explain them.

A bill, N. R. 10503, identical with this bill, was introduced in the 75th Congress. A memorandum similar to this was prepared under date of May 19, 1938 and sent to you. That bill was never reported out of committee.

**Discussion:** This claim, which involves an actual damage of only $50,000 and not $300,000, has heretofore been litigated in the Court of Claims and there shown to have been settled by agreement between the Indians and the United States. It is, therefore, without merit. Under these circumstances it is not believed that the Congress will desire to pass a bill for its payment, and it is recommended that this bill be disapproved.

## II.

**Syllabus:** Should the bill be considered favorably by the Committee notwithstanding the lack of merit in the claim, it is recommended that the provision in lines 5 and 6 of page 1, to wit, "plus interest at 5 per centum per annum since October 1, 1890," be stricken.

**Discussion:** Whether Congress should provide for interest on the $500,000 proposed to be appropriated by this bill is of course a matter of legislative policy and not one to be determined by an Executive Department of the Government. However, in this instance the payment of interest at the rate of five per cent per annum on the principal sum of $500,000 from October 1, 1890, which would increase the amount actually to be expended to more than $1,000,000, has neither a legal nor a moral basis. As has been said, the damage resulting to the Indians from the use and destruction of their timber by the army of the United States amounted to $50,000, and not

-3-

* * * and to pay to said Indians the proceeds derived from the sale of said lands", etc.

As a result of this Act, ratifying and confirming the agreement, the Indians of the Devil Lake Reservation received the sum of $421,850.21, or $76,850.21 more than the amount originally agreed upon. (See Sisseton and Wahpeton Bands of Sioux Indians v. The United States, 58 Court of Claims, 302, Findings IV and XVI, pages 320, 322.)*

By the Act of April 11, 1916 (39 State. 47) the Sisseton and Wahpeton Bands of Sioux Indians were given permission to sue in the Court of Claims, "Upon all claims of whatever nature which (they) may have or claim to have against the United States." Among the claims asserted in the petition filed under that Act was this claim for the value of the lands excluded from the Reservation by reason of the erroneous survey. After trial the Court of Claims found the facts with reference to this claim as above related, and in its opinion (58 Court of Claims 302, 335), stated:

Items 9, (1. e. the claim for the 64,000 acres) and 10, Findings IV and XVI. These items are so obviously devoid of merit that we think the findings fully explain them.

**Discussion:** In view of the fact that this claim has heretofore been litigated in the Court of Claims and there found to have been settled by agreement between the Indians and the United States, it is apparent that the claim is without merit. Under these circumstances, it is not to be assumed that the Congress will pass a bill for its payment, and it is therefore recommended that the bill do not pass.

* By the treaty of February 19, 1867 (15 Stat. 505), two reservations were set apart for the members of the Sisseton and Wahpeton bands of Sioux Indians, one at Devil Lake, North Dakota, and one at Lake Traverse, South Dakota. The Indians on the first named reservation became known as the "Devil Lake Band of Sioux Indians" and were included in the parties plaintiff in the case referred to.

- 3 -

additions which would adequately cover the many situations
which might be brought about by its enactment.

I recommend that passage of the bill be opposed.

Respectfully,

CHARLES R. COLLYETT,
Acting Assistant Attorney General

By
Chief, Legislation and General Section

2

20, 1936, 49 Stat. 1542, declaring all such lands tax exempt. Approximately a year later the Act of May 19, 1937, 50 Stat. 188, limited the exemption to homesteads. The purpose of the present bill is to amend the 1937 act in such manner as, in effect, to make the original exemptions in the 1936 act apply only to homesteads. Section 4 of the bill, however, would cancel penalties and interests on the unpaid 1936 taxes on property originally within the terms of the 1936 act.

When the 1936 act was passed the 1936 taxes had already been assessed but not levied against all taxable property in the state of Oklahoma, including property purchased with restricted funds, homestead and non-homestead alike. In Osage County, Oklahoma, this assessment against lands purchased with restricted funds was never cancelled despite the terms of the 1936 act and in many instances the 1936 taxes were paid under protest. Following this seven suits were instituted by the United States on behalf of the Indian owners of the land to recover these taxes. These suits were consolidated and the question of the applicability of the Act of June 20, 1936 to taxes which had been assessed at the time of its passage was raised by motion to dismiss. On February 14, 1939, the motion was overruled. United States v. Board of Commissioners of Osage County, 26 F. Supp. 270 (N.D. Okla.). The defendant has recently filed separate answers in all of the cases, but unless the court reverses itself it may be presumed that judgments will be entered in favor of the United States as soon as the cases can be tried. In addition to the suits to recover the taxes which have been paid two proceedings have been instituted to restrain the County Treasurer from selling other Indian lands purchased with restricted funds upon which the 1936 taxes were not paid. In both the latter cases temporary injunctions have been entered.

**Discussion:** The obvious purpose of this bill is to nullify the effect of the decision in the Osage County cases. The bill will not necessarily accomplish this result, however, for it is on its face retroactive legislation which, if pleaded, would have to be questioned by the United States in the Osage County litigation. No opinion is expressed on the constitutionality of the bill but since its purpose is to deprive the Indians of a tax-exempt status which they now enjoy with respect to 1936 taxes a proper presentation of Indians' rights in the existing cases would necessitate questioning the efficacy of this bill to accomplish the results which its proponents intend.

3

Compare, Forbes Boat Line v. Board of Commissioners, 258 U. S. 338. It might be contended that the bill is merely a declaration of legislative policy but even this consideration would not dispose of the existing litigation for the United States would be bound to contend that a declaration of legislative intent is not controlling on the courts with reference to transactions prior to the passage of the declaratory law when the original statute is clear and unambiguous. See Stockdale v. The Insurance Companies, 20 Wall. 323, 332, and United States v. Claflin, 97 U. S. 546, 548, 549. Compare, United States v. Stafoff, 260 U. S. 477, and Caminetti v. United States 242 U. S. 470.

II.

**Syllabus:** A bill amending the Act of May 19, 1937, 50 Stat. 188, for the purpose of limiting to Indian homesteads the tax exemption created by the Act of June 20, 1936, 49 Stat. 1542, objected to on the ground that it might lead to litigation.

**Discussion:** Presuming that the bill would accomplish its purpose of subjecting all lands purchased with restricted funds, other than homesteads, to taxation for the year 1936, it is possible that the Indian owners of this property may at some future date contend that they were thus deprived of a vested right and demand compensation for this claimed taking. In addition section 4 of the bill purports to cancel penalties, interests and costs on unpaid 1936 taxes but if the taxes for that year are validated it is likely that the right of the United States to cancel existing charges may be challenged by litigation on this point. In this connection, it may be noted that the right of the United States to cancel existing state liens and charges would present an entirely different case than the right of the United States to declare its instrumentalities exempt from future taxes.

In view of the foregoing it is not considered that the bill should be passed.

Respectfully,

By
Frank Chambers, Chief,
Legislation and General Section

-2-

In 1865 the United States entered into treaties with the Southern Osages and the Northern Osages (Treaty of September 29, 1865, proclaimed January 21, 1867, 14 Stat. 687) wherein it was provided:

"ART. I. * * * said lands shall be surveyed and sold * * * for cash * * *; and after reimbursing the United States the cost of said survey and sale and the said sum of $500,000 placed to the credit of said Indians, the remaining proceeds shall be placed in the Treasury of the United States to the credit of the 'civilization fund,' to be used, under the direction of the Secretary of the Interior, for the education and civilization of Indian tribes residing within the limits of the United States."

In 1876 the Osage Indians learned that the "civilization fund" was being used for the benefit of Indians other than the Osages and from that time on protested against this use of the fund. A jurisdictional act was enacted by Congress in 1921 (Act of February 6, 1921, c. 36, 41 Stat. 1097) which permitted the Osage Tribe of Indians to bring suit against the United States in the Court of Claims to recover any sums claimed to be due because of misappropriation of tribal funds, or the failure of the United States to pay the tribe money arising from the sale of the Osage land.

Pursuant to this Act the Osage Tribe instituted suit against the United States and on December 28, 1928, judgment was rendered in favor of the United States. Osage Tribe of Indians v. United States, 66 Ct. Cls. 64. In this case the court said at page 82:

"We conclude that the Osage Tribe of Indians, under the language and meaning of said treaty, have not established a claim or right in the fund or moneys arising from the sale of the Osage lands under said treaty, and that the United States has not wrongfully appropriated any part or parcel of the lands or the funds of said Osage Tribe of Indians under said treaty."

Certiorari was denied. 279 U. S. 811.

RTN-MMS

June 13, 1939

MEMORANDUM FOR THE ACTING ASSISTANT TO THE ATTORNEY GENERAL
MATTHEW P. McGOULINE

Attention: Mr. Holtzoff

Re: H. R. 6506 (76th Cong. 1st Sess.), a bill
"to declare that the United States holds
certain lands in trust for Indian use."

**Syllabus:** A bill to declare that the United States holds certain lands acquired with its own funds in trust for Indian use presents a question of policy upon which no comment is made, except to suggest an amendment providing for the offset of the value of any such lands in the event of recovery in the Court of Claims by Indian tribes who may receive the beneficial interest in such lands.

**Facts:** The projects for the purchase of the lands involved were inaugurated for the purpose of securing additional lands for Indian use, the purchases being made through the Federal Emergency Relief Administration, the Resettlement Administration, and the Farm Security Administration, out of public funds. Title was taken in the name of the United States and the bill is a proposed declaration of trust for the benefit of the Indians, the beneficial interest of the particular tribes to be fixed upon proclamation by the Secretary of the Interior, whereupon the lands are to become new reservations or additions to existing reservations.

**Discussion:** Since the general statute requiring the Court of Claims to offset gratuitous expenditures for the benefit of Indian tribes (Act of August 12, 1935, 49 Stat. 596) expressly excludes a number of cases and because there are differences in the

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Carolina objected to on the ground that the bill does not provide for service of notice of the pendency of the suit upon the Attorney General; amendment suggested eliminating objection.

**Facts:** R. R. 6666 authorizes the Secretary of the Interior to convey to the State of North Carolina a right-of-way for the Blue Ridge Parkway across land within the Cherokee Indian Reservation in North Carolina held in trust by the United States for the Eastern Band of Cherokee Indians. The bill further authorizes either the United States or the Eastern Band of Cherokee Indians to bring suit against the State of North Carolina for the enforcement of all obligations and rights running to or vested in either of them under the bill, and jurisdiction to hear the suit is vested in the United States District Court for the Western District of North Carolina. The Eastern Band of Cherokee Indians may intervene in or be made a party to any such suit brought by the United States and the United States may intervene in any such suit brought by the Eastern Band of Cherokee Indians but shall not be made a party involuntarily.

The bill then provides in Section 6, beginning in line 21, page 5 "That promptly upon the institution of any such action to which the United States is not a party the said Band shall cause written notice of the pendency of the action to be served upon the United States attorney for the Western District of North Carolina, and that upon the expiration of sixty days from the date when such notice is served the United States shall be bound by any judgment or other order there-after entered in the proceedings, the same as a party thereto."

**Discussion:** Rule 4 (d) (4) of the Federal Rules of Civil Procedure, which sets forth the manner of service upon the United States, provides: "Upon the United States by delivering a copy of the summons and of the complaint to the United States attorney for the District in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the Clerk of the Court and by sending a copy of the summons and of the complaint by registered mail to the Attorney General of the United States at Washington, District of Columbia, **so**-

- 3 -

It is plain that the Attorney General, the chief law officer of the United States, should be notified of the pendency of any action in which the United States would be bound by a judgment. The provision in the bill for service of notice upon the United States Attorney for the Western District of North Carolina is not sufficient to protect the interests of the United States. It is not at all improbable that a period of sixty days would elapse after the United States Attorney received notice of the pendency of an action before he brought it to the attention of the Attorney General. In that case, the United States would be bound without having had a hearing in the case.

It is suggested that the provision in Section 6 of the bill be amended to read "that promptly upon the institution of any action to which the United States is not a party the said Band shall cause written notice of the pendency of the action to be served upon the United States Attorney for the Western District of North Carolina and shall send a written notice of the pendency of the action by registered mail to the Attorney General of the United States, District of Columbia, and that upon the expiration of sixty days from the date when such notices are served the United States shall be bound by any judgment or other order thereafter entered in the proceedings the same as a party thereto".

I recommend that the bill in its present form be opposed.

Respectfully,

HONorman M. LITTELL
Assistant Attorney General.

-2-

**Discussion:** Section 1 and Section 3 of the bill speak of "enrolled, recognized, or allotted individual Indians". An "enrolled" Indian apparently means a person appearing on a tribal roll and an "allotted" Indian must mean a person who has received an allotment. However, the meaning of "recognized" Indian is not apparent. Since three classes of Indians are enumerated, the term "recognized" Indian would appear to mean a person of Indian blood not included in the other two classes. Whether an Indian in order to be "recognized", must be a fullblood, a one-half blood, a one-thirty second blood, or what quantum of Indian blood is not clear.

Section 2 of the proposed bill reads in part:

"That each individual Indian sharing in such payment and settlement shall sign a receipt, release, or agreement with the Federal Government absolving said Federal Government from all prior or future claims and obligations to said individual Indians, and from all further obligations or responsibilities to provide for said individual Indians as wards of the Federal Government;"

It is believed that litigation now pending in the Department would be seriously affected in the event the above quoted provision should be interpreted as taking away the rights of the United States to intervene in suits involving Indians who sign the release.

The ambiguous language and the broad terms used in the bill make it impossible to determine its purpose and what its effect may have upon the Indians. Enactment of this bill would undoubtedly give rise to extensive litigation necessary to define its purpose and meaning.

I recommend that the passage of the bill be opposed.

Respectfully,

NORMAN M. LITTELL
Assistant Attorney General.

BY
Chief of Legislation and
General Section

RTN-M1118

June 19, 1939

MATTHEW Y. McQUIRE

Attention: Mr. Holtzoff

Re: H. R. 6743, a bill "to promote the general welfare of the Indians of the United States of America, and for other purposes."

**Syllabus:** A bill which proposes to reimburse all Indian tribes in the United States for all tribal moneys expended in payment of administration expenses presents a question of policy and no comment is made except to point out (1) that it has been held that the Government may properly expand tribal funds for many administrative purposes and (2) that the bill provides no machinery for carrying its provisions into effect.

**Facts:** The Government has disbursed large sums of tribal funds for administrative purposes, such as agency expense, pay of Indian police, cost of erecting agency buildings, and the like.

H. R. 6743 would have the Government assume the liability for these expenditures and would authorize to be appropriated as much money as may be necessary to reimburse all Indian tribal funds expended for such purposes, with interest at the rate of 5% per annum from the respective dates of such expenditures.

There is no information presently compiled which will show the amount of the tribal funds expended for administration of Indian affairs.

Division of Records

RSE-FMR

90-2-01-10

February 15, 1939

MEMORANDUM FOR THE ASSISTANT TO THE ATTORNEY GENERAL
JOSEPH H. KERMAN

Attention: Mr. Holtzoff

Re: S. 626 - 76th Congress, 1st Session, "A Bill to amend Public Law Numbered 383, Seventy-third Congress (48 Stat. L. 984), relating to Indians, by exempting from the provisions of such Act any Indian tribe or reservation located in the State of Nevada".

**Syllabus:** A bill providing in effect that the provisions of the Act of June 18, 1934, 48 Stat. 984, commonly known as the "Wheeler-Howard Act, shall not apply to any Indian tribe or reservation located in the State of Nevada, objected to on the ground that it will create uncertainty as to the law applicable to Indian tribes and reservations in Nevada.

**Facts:** Senate 626, 76th Congress, 1st Session, provides for the amendment of Section 13 of the act entitled "An act to conserve and develop Indian lands and resources; to extend to Indians the right to form business and other organizations; to establish a credit system for Indians; to grant certain rights of home rule to Indians; to provide for vocational education for Indians; and for other purposes", approved June 18, 1934, 48 Stat. 984, commonly known as the Wheeler-Howard Act, by inserting after the word "United States" in the second line of said section, the following: "or to any tribe or reservation located in the State of Nevada". Section 13 of the Wheeler-Howard Act provides, in so far as pertinent here, "that the provisions of this Act shall not apply to any of the Territories, colonies or insular possessions of the United States", and the effect of the enactment of the bill under consideration would be to exclude Indian tribes and reservations

-2-

located in the State of Nevada from the operation of that
Act.

There are in the State of Nevada over five thousand
Indians, nearly two-thirds of whom, represented by sixteen
different groups, are located upon seven Indian reservations
and various colony sites, and the remaining one-third are
scattered Indians who have never been located upon any Indian
reservation or colony site. All of the sixteen groups which
comprise the most important tribes and bands of Indians in
the state, with the possible exception of one, the so-called
Fallon group, have already voted pursuant to Section 16 of
the Wheeler-Howard Act, as amended by the Act of June 15, 1935,
49 Stat. 378, to come under the provisions of that act, and
proceeded to adopt their respective constitutions and by-laws,
as provided by Section 16 of the act, or are now working
through constitutional committees in the preparation thereof.

Seven of the more important groups have received, accepted
and ratified their respective charters and become bodies corporate
under Section 17 of the act. These seven groups are now and
have been for some time exercising their corporate powers in
various ways, including the execution of leases and other trans-
actions, such as borrowing money from the Indian revolving fund
provided for in Section 10 of the act, and using that money for
tribal enterprises or for leading to individual Indians.

**Discussion:** Because of the form of the proposed amendment it may be applied retrospectively, in which event chaos would result. Corporations formed under the Wheeler-Howard Act which have been doing business for some time would have to be treated as though they never existed, and the possible effect of such treatment on their business relations would lead to endless difficulty.

Even if the bill is construed to have only a prospective
application, the question of its effect upon corporations already
formed and doing business under the Wheeler-Howard Act remains
open. If the bill has the effect of revoking their charters,
then some machinery for winding up their affairs should be
provided, while if the bill will permit them to continue in
existence its purpose to do so should be made clear.

It is probably true that under the Wheeler-Howard Act
some Indians in Nevada have conveyed their allotments to their
respective tribes and in exchange have taken shares in the

-2-

concomitant tax exemption remain in force during the restrictive
period even though the property has descended to the allottee's heirs.
Bowling v. United States, 283 U. S. 828. Subject to treaty rights,
the Congress may provide when and on what terms lands allotted to
Indians shall be taxable, Childers v. Beaver, 270 U. S. 855; United
States v. Rickert, 168 U. S. 432, and an extension by Executive order
of the period of exemption is valid. See United States v. Jackson,
280 U. S. 183, 191. In the present instance the original restrictions
on the allotments to Indians of these tribes were extended by the Act
of June 21, 1906 (24 Stat. 325-326), by Executive Order No. 4548,
dated December 4, 1926, and by Executive Order No. 7464, dated Septem-
ber 30, 1926.

Discussion: The effect of the bill under consideration would be
to return allotted Indian lands to their original tax-exempt status.
The tax liability of real property in Nebraska is determined by its
status on April 1 of each year. Section 77-1601, Compiled Statutes
of Nebraska, 1929; see In re Chapin Colglaguer Const. Co., 112 Neb.
269, 199 N. Y. 724. Since the lands here involved are now on the tax
rolls and will be assessed for the 1939 taxes unless removed or de-
clarued tax exempt before April 1, the bill is objectionable for the
reason that it might lead to litigation concerning the taxability of
the allotments for the current year.

Under Federal decisions a State tax lien cannot attach to pro-
erty of the United States or to an instrumentality of the Federal
Government if the property is acquired by the Government or the ex-
emption thereon is declared prior to the time the amount of the tax
becomes ascertainable under State law. United States v. Pierce County
193 F. 529; Rannon v. Burnes, 59 F. 892; United States v. City of
Buffalo (C.C.A.) 5, 1921) 50 F. 2d 471. If this bill should be en-
acted and become effective prior to the levy of 1929 taxes, the con-
tention could be made that the property of the Indians had been ex-
empted from these taxes. The exact date of the levy varies with the
particular county, but in no event may it be made prior to July 1.
Sections 77-1702, 77-1601, Compiled Statutes of Nebraska, 1929. There-
fore, the approval of this bill between April 1 and July 1 would un-
doubtedly lead to litigation with respect to the 1929 taxes.

The question here discussed has already arisen under the Act
of June 20, 1930 (49 Stat. 1648), which exempted from taxation pro-
erty purchased with restricted Indian funds. Seven cases involving
this question are currently pending decision in the United States
District Court for the Northern District of Oklahoma. See Depart-
mental File No. 90-2-5-193.

In view of the foregoing, it is suggested that, unless the bill
can be approved prior to April 1, 1939 (which seems highly improbable),

-2-

The claim has been pressed in the Congress almost from the date of the adverse decision of the Court of Claims on May 26, 1926 (66 Ct. Cls. 64; app. diam., cert. den. 279 U. S. 611) and has been the subject of numerous memos-stands and letters of disapproval by the Attorney General (see files 78-6 and 78-116).

Under article 1 of the treaty of 1868, the Osage Indians ceded a certain tract of land. "In consideration of the grant and sale to them" of the de-scribed lands, the United States agreed to deposit in the Treasury to the credit of the tribe the sum of $800,000. The article further provided that the land ceded should be surveyed and sold and, after reimbursing the United States the sum of $800,000, the remaining proceeds should be placed in the Treasury to the credit of the "Civilization Fund," to be used, under the di-rection of the Secretary of the Interior, "for the education and civilization of Indian tribes residing within the limits of the United States." The total funds according from the sales mentioned amounted to the sum of $776,931.56. Of this amount only $189.55 was expended for the benefit of the Osages. The balance, $776,742.03, with the exception of a small amount returned to sur-plus in the Treasury, was expended for the benefit of other tribes "residing within the limits of the United States."

On March 4, 1922, under authority of the Act of February 6, 1921 (40 Stat. 1097), the Osage Tribe filed its petition in the Court of Claims al-leging that as interpreted to and understood by it, the net proceeds of the "Civilization Fund" were to be used solely for the benefit of the Great and Little Osage Tribes, and prayed judgment for the amount of such net proceeds; to-wit: $776,742.03 with interest from January 1, 1876. The court rendered judgment in favor of the United States (66 Ct. Cls. 64, app. diam. and cert. den., 279 U. S. 611).

**Discussion:** In its decision in favor of the United States, the Court of Claims declared (66 Ct. Cls., at page 82):

> We conclude that the Osage Tribe of Indians, under the language and meaning of said Treaty, have not established any claim or right in the fund or moneys arising from the sale of the Osage lands under said Treaty, and that the United States has not wrongfully appropriated any part or parcel of the lands or the funds of said Osage Tribe of Indians under said treaty.

From this decision of the Court of Claims it is apparent that the Osage Tribe has no "claim" to the proceeds of the "Civilization Fund." Whether under these circumstances an appropriation should be made is a matter to be de-termined by the Congress. However, in view of the above mentioned opinion of the Court of Claims, it is believed that objection should be made.

## II

**Syllabus:** A bill authorizing an appropriation of $776,742.03 for payment to the Osage Tribe

- 2 -

of February 12, 1925, c. 214, 43 Stat. 866. Pursuant to that
act, a petition was filed August 21, 1926, in the Court of Claims,
seeking to recover the sum of 875,865,416.00 on behalf of the 19
tribes. The major claims of the Duvanish Tribe arose under the
treaty of Point Elliot, 12 Stat. 927. Twenty-three tribes signed
that treaty. Eleven of those tribes were parties plaintiff in
the suit in the Court of Claims. The Court of Claims dismissed
the petition on June 4, 1954. The Duvanish, et al. Indians v.
United States, 79 Ct. Cls. 550, cert. den. 285 U. S. 755.

On behalf of the Duvanish Indians, the court considered
the following claims;

1. The Duvanish and 6 other tribes claimed compensation
at $6.00 per acre for 64,925.24 acres allegedly taken under the
Oregon Donation Act of September 27, 1860, 8 Stat. 496. The court
considered this claim on its merits and rejected it on the grounds
that;

(a) It was impossible to ascertain the
separate loss of each tribe.

(b) The boundaries of the tribal lands
were not capable of even approximate
location so as to permit a determination of whether or not the lands
patented to the settlers under the
Oregon Donation Act fell within the
boundaries of the tribal lands.

(c) The jurisdictional act as to these
tribes was limited to claims arising
out of the specified treaties and not
sets of Congress.
(79 Ct. Cls. 550, 566-572.)

2. The Duvanish and 13 other tribes claimed compensation
for 862,461 acres allegedly taken by the act of March 2, 1865,
10 Stat. 172. The court considered this claim on its merits and
rejected it for the reasons expressed with reference to the claim
noted in paragraph number 1, above. 79 Ct. Cls. 550, 572-574.

3. The Duvanish and one other tribe claimed compensation
for 8,645.94 acres allegedly taken under the Act of July 17, 1864,
10 Stat. 305. The court concluded the claim was without merit.
79 Ct. Cls. 550, 574.

- 5 -

4. The Dusunah and 14 other tribes sought $2,286,834.50 as compensation for improvements abandoned by them when they removed to their respective reservations. The Dusunah Tribe was found to be entitled to $14,000.00. 79 Ct. Cls. 580, pp. 574-577. Finding of Fact II, p. 588.

5. The Dusunah and 13 other tribes claimed compensation for failure to carry out alleged treaty obligations to allot to each of the Indians 60 acres of land. The court rejected this claim on the ground that it was not an obligation under the treaty but discretionary with the President. 79 Ct. Cls. 580, 577-580.

6. The Dusunah claimed $18,686.53 representing 1/11th of the allegedly unpaid consideration for the Treaty of Point Elliot. The court granted judgment of $1,555.04 to all 11 tribes without determining the separate amount due to the Dusunah Tribe. 79 Ct. Cls. 580, 580-584.

7. The Dusunah and 10 other tribes claimed compensation for 1630.09 acres allegedly lost by virtue of an overlapping of the reservations delimited in the Point Elliot Treaty. The court determined that by virtue of subsequent Executive orders the Indians gained 5,598.60 acres and rejected the claim on the ground without merit. 79 Ct. Cls. 580, 588.

8. The Dusunah and 10 other tribes sought compensation for loss due to failure to maintain schools as provided by the Point Elliot Treaty. The court rejected the claim on the ground that loss of education to the plaintiffs' ancestors constituted conjectural and intangible damages incapable of measurement. 79 Ct. Cls. 580, 585-586.

9. The Dusunah and 12 other tribes sought compensation for failure to employ blacksmiths, carpenters, farmers and physicians pursuant to the treaty provisions. The court rejected this claim on the ground there was no proof of damage. 79 Ct. Cls. 580, 589-590.

Most of the claims of the Dusunah Tribe were merged with those of other tribes and were not separately treated by the court, apparently because the proportionate interests of the tribes were indefinite. However, it does appear that of the 457,050.18 acres for which compensation was sought by the tribes jointly only 10,685.70 acres was within the country of the Dusunah. The court decided that the 19 tribes were entitled to $71,496.45. While the interest of each tribe was not specified it would seem that the

- 5 -

Claims, the bill is objectionable since it contravenes the policy of Congress expressed in the Act of August 12, 1836, supra, to permit gratuitous expenditures by the United States on behalf of an Indian tribe to be offset against any recovery by the tribe on its claims. If a direct appropriation is made, no opportunity is afforded the United States to assert its off-sets. The Court of Claims found that the United States had disbursed the sum of $2,468,024.55 for the benefit of the 19 tribes, parties plaintiff, of which $2,163,074.47 was an off-set against the claims of the Duvamish and 10 other tribes. In an action before the Court of Claims the United States would be entitled to set off the proportionate amount of that sum expended on behalf of the Duvamish Tribe.

Respectfully,

COLL. N. AMSS. S-1, 325 No.

FELIX S. COHEN PAPERS

-3-

Discussion: In view of the conclusions announced by the Court of Claims on January 9, 1939, hereinbefore quoted, and the opinion of the Supreme Court of December 10, 1900, in the case of *United States v. Choptaw and Chickasaw Nations*, et al., 179 U. S. 494, it must be conceded that the lands known as the "Leased District" were ceded to the United States by the Choptaw and Chickasaw Nations by the treaty of 1866 and that said Indian Tribes have no claim against the United States arising out of a taking of said lands. If, therefore, the Congress should conclude that the Indians should be paid compensation in addition to the compensation heretofore paid as stipulated in the treaties, then the amount of the award should be determined on the basis of the value of the lands as of the date of the cession of 1866, rather than on the basis of the prices obtained on sales of the lands which were made many years subsequent to the cession. Finding 10 of the Court of Claims in Congressional No. 17,641, *supra*, is illustrative of the point. There the Court states that 380,000 acres of the land in the tract known as the "Big Pasture" were sold by the United States pursuant to the Act of July 6, 1906, 31 Stat. c. 812, pp. 679, 671, for $4,864,417.05, or approximately $12.80 per acre. The bill proposes to pay to the Tribes compensation for the 380,000 acres on the basis of the price thus obtained.

Attention is also called to the fact that the United States set apart 2,968,893 acres of the "Leased District" for the absolute use and occupation of the Kiowa and Comanche Tribes by Treaty of October 21, 1867, 15 Stat. 581. By agreement of 1891 with Kiowa, Comanche and Apache Tribes, approved by Act of June 6, 1900, the United States acquired the surplus lands of said Tribes composing approximately 2,033,583 acres for a consideration of $2,000,000.00. Furthermore, there is pending a joint Resolution, N. J. Res. 290, 76th Congress, 1st Session, which refers to the Court of Claims the claim of Kiowa, Comanche and Apache Tribes for additional compensation for the lands thus ceded to the United States.

The bill being one for a gift, grant, or bounty it is not proper for this Department to oppose the same. It is believed proper for this Department to bring to the attention of Congress the facts as herein set forth.

Respectfully,

CHARLES B. COLLETT,
Acting Assistant Attorney General

By:
Chief of Legislation and General Section

- 2 -

Discussion: Section 1 of the bill reads in part:

"That certain enrolled, recognized, or allotted individual Indians, to be determined as provided herein, or their heirs who have agreed to accept the full responsibilities of American citizenship shall be paid the sum of $5,000 each . . . ."

Although the bill states that the Indians are "to be determined as provided herein", a careful reading of the bill fails to disclose any provision defining the Indians to be affected or any method by which they can be ascertained other than the language quoted above. The only possible interpretation of this language is that all Indians who have previously accepted the full responsibilities of American citizenship are entitled to participate in the provisions of the bill. However, such an interpretation would mean that all Indians are included since the Act of June 2, 1924, c. 233, 43 Stat. 253, declared that all Indians born in the United States are citizens, and this interpretation would render the first proviso of Section 2 of the bill meaningless. That proviso reads:

"Provided, that all Indians accepting said settlement shall henceforth be entitled to enjoy all the rights, privileges, immunities and responsibilities of American citizens;"

Section 3 of the proposed bill allows "all other enrolled, recognized, or allotted individual Indians or their heirs" to come under the provisions of the bill if application therefor is made within one year. If the interpretation given to Section 1 is correct, there would be no other Indians who could be affected by Section 3.

The bill speaks of "enrolled, recognized, or allotted individual Indians" in Section 1 and in Section 3. An "enrolled" Indian would mean a person appearing on a tribal roll and an "allotted" Indian would mean a person who had received an allotment. But the meaning of "recognized" Indian is not readily apparent. Since three classes of Indians are enumerated, the term "recognized" Indian must mean a person of Indian blood

- 3 -

not included in the other two classes. Whether an Indian,
in order to be "recognized", must be a full-blood, a
one-half blood, a one thirty-second blood, or what quantum
of Indian blood is necessary is not clear.

"Section 2 of the proposed bill reads in part:

"That each individual Indian sharing in
such payment and settlement shall sign
a receipt, release, or agreement with
the Federal Government absolving said
Federal Government from all prior or
future claims and obligations to said
individual Indians as such, and from
all further obligations or responsi-
bilities to provide for said individual
Indians as wards of the Federal Govern-
ment:"

The problems which would probably arise upon the
enactment of this provision can only be imagined. It might
be interpreted as taking away the right of the United States
to intervene in suits involving Indians who signed the
release, in which case litigation now pending in the
Department would be seriously affected.

The ambiguous language of the bill prohibits a
construction necessary to determine its purpose. The failure
to express the definition of the persons included within
the scope of its provisions clearly makes it almost impossible
of executive administration. It is manifest that the enact-
ment of the bill would give rise to extensive litigation
necessary to define its purpose and meaning.

Respectfully,

October 31, 1939

MEMORANDUM FOR MR. LITTELL, ASSISTANT ATTORNEY GENERAL

In the brief period at my disposal since our conference this afternoon, I have naturally not been able to examine the accuracy of the more general criticisms made in the memorandum which you handed me, but I have examined all the specific criticisms made in this memorandum, with the following results:

I. The citation referring to the use of bodies of navigable water, which is criticized because it does not deal with the *Powers* case and other cases involving water rights in arid land states, means exactly what it says, i.e. it refers to navigable water and the primary citation upon which it is based deals with the rights of the Quillehuite and Quineielt Indians to operate boats for hire on the Queets River, Washington. Discussion of the question of rights to irrigated water is not attempted at this point in the volume, but is attempted in two other chapters: 11 and 15. The *Powers* case is cited in the footnote, after the primary citation, chiefly by way of analogy, and should probably have been preceded by the clarifying signal, "cf.".

II. The argument that the *Gaines* case deals with "the identical problem" considered in the section on "Indian Education" appears to me entirely erroneous. The *Gaines* case deals with racial discrimination. The exclusion of Indians from state schools is defended on the ground that the Indians are wards of the Federal government and that the Federal government has assumed a special responsibility for their education. This argument, it seems to me, is in no way affected by the *Gaines* case and I am confident that Congress will not terminate per capita payments to state schools for Indian education on the theory that the *Gaines* case requires the states themselves to educate Indian children.

- 2 -

The memorandum of criticism seems to be based on the assumption, recently defended by Heinrich Kirger, of the Notgemeinschaft der Deutschen Wissenschaft (3 George Washington Law Review 379), that Indian law is a form of "American racial law". It seems to me that this conception is fundamentally erroneous and that the peculiarities of Indian law spring from the peculiar political status of the Indian tribes.

III. The criticism, at page nine of the memorandum, that the author of the first draft of chapter 9 has not sufficiently distinguished between the various types of Indian property, seems to me, on the whole, well taken, but, I think the criticism ignores the fact that this subject is analyzed in detail in chapter 15. Indeed, the four-fold classification suggested in the memorandum of criticism seems to me extremely over-simplified in view of the material which I have myself prepared for chapter 15.

IV. At page ten, the memorandum of criticism seems to assume that there is a law of Indian affairs apart from legislation. This theory of law as "a brooding omnipresence in the sky" (to quote Holmes) seems to underlie the argument of the government in the Klamath and Shoshone cases, and I think that the Supreme Court has said the last word on the subject.

V. The statement, at page eleven, that the United States has been concerned in only sixteen law suits in which the Pueblos are involved is entirely erroneous. For several decades the United States has employed a special attorney who has been busy year in and year out handling Pueblo litigation. It is true that this special attorney is paid by the Department of the Interior, but I have not thought this a sufficient reason for ignoring the problems which concern the litigation which he manages.

VI. It is true, as the memorandum of criticism notes, that insufficient attention has been paid in these first drafts to several excellent briefs of the United States. Unfortunately, the task of collecting and indexing these briefs was given to Mr. Fabian, who appears to have been too busy on other work to do this job adequately (or, for that matter, to complete the first chapter assigned him, which he undertook to have completed some two weeks back).

- 3 -

In conclusion, I should like to point to the fact that these
first drafts of individual chapters necessarily depend to a certain extent
upon material considered in other chapters. Therefore, all these first
drafts are bound to be inadequate and incomplete at various points.
Indeed, on September first, when the first drafts of the three chapters
criticized were presented, even the files were incomplete and therefore no
attempt was made at that time to shepardize or annotate the materials
covered.

I shall, of course, be sorry if you feel that you must revise your
first judgment on chapter 9, namely, that it was "very interesting, and
I can say, quite valuable", because of a memorandum of criticism which
appears to me, so far as I have been able to test its specific statements,
to be entirely inaccurate.

For reasons quite other than those proposed in the memorandum of
criticism, I should be very glad to see the responsibility of the De-
partment of Justice for this work terminated, and the task of completion
transferred to the Interior Department.

Respectfully,

DEPARTMENT OF JUSTICE

WASHINGTON, D.C.

November 1, 1959.

RE: CRITICISM OF HANDBOOK OF FEDERAL INDIAN LAW

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

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

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

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

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

I have already analyzed in the preparation of chapter 15.

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

4. The second of the two specific examples of legal error discussed in the memorandum of criticism is directed against a reference in chapter 12 to *Piper v. Big Pine School District*, 226 Pac. 928, as "the only case which has squarely considered the Indian's right to State Education." Our critic claims that "the identical problem was settled" in *Missouri ex rel. Gaines v. Canada*, 305 U. S. 337. This statement is demonstrably false. The problem of discrimination against Negroes is not identical with that involved in Indian education. The uniform position of the States is that the Federal Government has a special responsibility for the education of its wards. Negroes are not wards of the Federal Government. I am entirely confident that Congress will not terminate per capita payments to State schools for Indian education on the theory, entertained by our unknown critic, that the *Gaines* case requires the States themselves to educate Indian children. The line of cases on discrimination under the fourteenth amendment, including the *Gaines* case, is being considered in chapter 8 (Personal Rights and Liberties of Indians), and in a later draft there would undoubtedly be a cross-reference to this discussion, but it is utterly incorrect to say that the problem of the *Gaines* case is "identical" with the problem considered in the *Piper* case.

2

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

6. The suggestion, at page 11, that "throughout the entire history of the Nation the United States has been concerned in only 16 lawsuits in which the Pueblos were involved," which is used as a basis for arguing that "a 75-page chapter in the proposed handbook is wholly unwardented," 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 criticisms, but assuming that all these criticisms are well taken (which is far from the case with those examined), the most serious criticism that could then fairly be made would be that *one* of the draft chapters submitted requires extensive revision, and that I was mistaken in thinking, after a hasty reading, that this draft needed and merited review, -- which opinion you yourself reached on a first reading.

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

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

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

3

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

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

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

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

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

Respectfully,

(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 Hargold.
First Assistant Solicitor Kirgis.

4

November 16, 1959.

MEMORANDUM for the Solicitor:

Last February, the Department of Justice and this Department entered into an agreement whereby I was to take charge of a Department of Justice survey of Federal law relating to Indian affairs. The chief objective of this survey was the preparation of a manual on Federal Indian Law, and incidentally I was to prepare a complete compilation of Indian laws and treaties and a complete file of court decisions, Interior Department rulings, and other pertinent materials. The compilation and the file now are substantially completed. The handbook, which is about half finished, is to be abandoned, primarily on the ground that the proposed handbook will be less valuable to the Lands Division of the Department of Justice than the file of original materials. This may very well be true, and yet the objectives of the Interior Department in cooperating on this project will be entirely nullified by the shift of plans. A compilation of statutes and treaties without index, explanation or commentary will be of little value, and a file in the Department of Justice will be of less value to this office and to the various interested bureaus of this Department.

I respectfully suggest, therefore, that if there is any practical way to do so, this Department should bring the proposed handbook to completion. The reasons which led this Department to cooperate by making my services and all our legal files available to this project are as valid now as they were nine months ago. Briefly stated, you felt, as I did, that a large portion of the time of attorneys and administrators handling Indian matters would be saved by such a manual, that many inconsistencies in memoranda prepared or approved by different attorneys would be eliminated, and that such a manual might serve as a basis for future legislative work, particularly in providing a basis for eliminating the mass of anachronistic laws and regulations that now interfere with efficient administration and cause many needless expenditures of time and energy.

At the present stage of the project, with all the spadework done and the actual writing of the handbook nearly half completed, I feel that the completion of the handbook in this Department would involve a very slight expense which would be more than repaid within a very short time in the increased speed and efficiency of our handling of Indian matters. I would suggest the following cut-to-the-bone budget for the completion of the work (eliminating certain chapters of little value to this Department), after January 31 when my connection with the Department of Justice expires:

Salary one attorney six months ............ $1,600
Salary one editorial assistant six months .... 1,300
Salary two stenographers six months .......... 1,600
Expenses of machine graphing, supplies, etc..... 600

$5,100

Expense of printing 1,000 copies of 1,000
page handbook (according to estimate of
General Printing Office).................. $2,400
                                        $7,500

I do not think there can be any reasonable doubt that a copy of
the handbook will be worth many times $7.50 in the hands of several
hundred attorneys, probate examiners, leasing clerks, and other depart-
mental employees who must act on their understanding of the law and
have no guide available today outside of the statute books and the law
reports. Of course the expense of carrying through such a project
would be many times the suggested figure, but the Department of Justice
will have spent about $40,000 or $50,000 on the project by January 31,
and this Department would have to meet only the cost of harvesting.

Whether I should be the person to see this job through ought to de-
pend upon your estimate of the value of the work I have thus far done,
but quite apart from your decision on this point, I think that the job
should not be allowed to drop and anyone else whom you may assign to
take charge of the work would have my loyal cooperation.

Whether the money that is needed to see this job through could be
obtained through a deficiency appropriation or through allocation from
the offices that would most directly profit from the work, I am not in
a position to know. I do believe that the Chairman of the House Sub-
committee on Interior appropriations would be sympathetic to the project.
On the other hand immediate allocations would permit the speedy comple-
tion of the work without interruption, and thus save the added expense
involved in training new personnel. It is my hope that, however the
money may be raised, the Department of Justice should detail to this
Department, on a reimbursable basis, experienced personnel that have
worked on this project and could most efficiently complete it.

I feel entirely confident that, under the proposed budget, the
handbook can be sent to the printer in six months, and my confidence is
based on the fact that work on the project in the Department of Justice
was consistently ahead of the original schedule, and expenses consist-
ently below the original budget, that I gave to Assistant Attorney General
McFarland last year.

Felix S. Cohen.

2

December 21, 1939.

MEMORANDUM for the Solicitor:

I should like to offer the following comments concerning
(1) the details of procedure involved in the transfer of services
proposed by the Attorney General's letter of December 13; and (2)
the advice offered to the Secretary of the Interior in this letter
against attempting to prepare any sort of handbook on the basis
of the materials thus far collected.

1.

Details of Transfer

At your suggestion I have attempted to determine what typing
and mimeographing services would be involved in the indexing project
which the Department of Justice proposes. I find that the actual
indexing, together with additional explanatory materials that might
be integrated with the index, would involve the cutting of approxi-
mately 2200 stencils and a proportionate amount of preliminary typ-
ing and clerical work. As for the actual stenciling Mr. Updike in-
forms me that this can easily be done by his present force, since
the work can be done at any time, during a 4½-months period, when
help is available. Mr. Updike would, however, need an allocation
of approximately $360 to cover material costs. At Mr. Updike's
suggestion, I have inquired of Mr. Armstrong, Budget Officer of the
Indian Service, whether the Indian Service would have funds avail-
able for this purpose. Mr. Armstrong has advised me, this morning,
that such funds are available from field appropriations, and that
in view of the fact that copies of the projected materials would
be utilized in the field he would be glad to make the necessary
sum available for the intended purpose. Apart from the actual work
of stenciling, and in addition to the legal and editorial work which
the individuals to be assigned from the Department of Justice can
handle, there will necessarily be involved in the project an amount
of typing and clerical work that should engage the full energies of
three persons, two of whom should be competent stenographers.

I suggest, therefore, that we advise the Attorney General that
the preparation of the proposed index, and the carrying out of tasks

incidental thereto, would involve stenographic and clerical services
in addition to those which this Department can immediately provide, and
that we, therefore, suggest that two stenographers and one filing
clerk, preferably persons experienced in the work of the Indian Law
Survey, be assigned to this Department, together with the persons
mentioned in the Attorney General's letter, and that if necessary the
Department of Justice terminate the payment of my salary on January
31 instead of May 1. This would involve a saving to that department
of $1625, which would be enough to cover the stenographic and clerical
aid required. I should be very happy to be relieved of the necessity
of working for the Department of Justice beyond January 31, the date
set in the agreement itself. I recognize that in view of the under-
standing that the term of my detail would be extended to May 1 there
may be some difficulty about continuing to receive my present salary,
or any salary at all, between January 31 and May 1. I should consider
this, however, a slight cost to pay for the privilege of working once
more for superiors who know enough about my work to appraise it in-
telligently instead of repeating, in parrot-like fashion, charges of
disgruntled employees which show on their face that they emanate from
prejudice or ignorance, or both.

2.

Questions of Substance

The letter of the Attorney General takes issue with the state-
ment made in the Secretary's letter of December 4, which was prepared
at Commissioner Collier's direction and which you approved, to the
effect that this Department desires to reduce the materials already
collected "to handbook compass" in order to have a "manual" that would
meet the needs of this Department and that the preparation of such a
manual would involve an expenditure for salaries totaling approximately
$5,000. In reply to this the Attorney General states that the work
thus far done has been "of such inferior quality that no practicable
amount of revision would make them adequate to serve the needs of
attorneys either in this Department or, in our opinion, in the De-
partment of the Interior." The Attorney General further states that
on the basis of the work thus far done the materials could not be
reduced to a form that would be of practical value unless the Depart-
ment of Justice "virtually started the work over again." If these
statements were simply reflections upon my ability or the abilities
of my staff at the Department of Justice it might be proper to delay
a response to these allegations until Mr. Flanery has completed his
study of the criticisms which Mr. Littell referred to you on October
30. Actually, however, the present letter of the Attorney General

2

preliminary drafts upon which criticisms were based has been characterized as a most useful and accurate piece of work by persons familiar with the subject matter of the chapter. I shall at a later time transmit to you a more detailed statement concerning the reasons presented by Mr. Littell to Solicitor Margold for his action in deciding to terminate the writing of the proposed handbook of Federal Indian law. I do not even care to comment upon the procedure involved in condemning a project of this sort, upon the basis of *ex parte* accusations, without offering the employee of this Department who was in charge of the project any opportunity to reply to unsigned accusations and without offering the Solicitor of this Department, who was an immediate sponsor of the entire project, an opportunity to conduct an objective investigation of the validity of these charges. These are matters within your own department with which I have no desire to interfere. I do expect equal deference to the judgment of this Department, based upon knowledge of the caliber of work heretofore done by our own employees and upon an examination of part of the materials collected and analyzed by the Indian Law Survey, that a modest expenditure of effort by this Department will produce a handbook that will be of great utility to those of us who are interested in safeguarding and protecting Indian rights."

4

DRAFT

The Honorable

The Attorney General.

My dear Mr. Attorney General:

Last January an arrangement was made between the Department of
Justice and this Department looking towards the preparation of a
handbook of Federal law relating to Indian affairs. The interest of
this Department in the project was described in the following terms:

"*** the correlation and systematizing of the
Indian laws, and the opinions of the law officers, will
be of particular value to the legal and administrative of-
ficers of the Indian Service, who at present find the
legal authorities, upon which administrative action is
based, in hundreds of scattered sources."

Pursuant to the foregoing understanding, the services of an at-
torney in this Department considered to possess especial qualifications
for this work were loaned to your Department under an agreement of
January 31, 1939, signed on behalf of the Department of Justice by
Assistant Attorney General Carl McFarland, and on behalf of this De-
partment by Acting Solicitor Frederic L. Kirgis and First Assistant
Secretary E. K. Burlew. This agreement covered a period from February
1, 1939, to January 31, 1940, and it was understood that the agreement
would be renewed for a 3-months' period, if necessary, so as to extend
to April 30, 1940, when the project was to be completed.

The project itself, according to our understanding, involved a
compilation of Indian statutes, the annotation of the statutes with

Washington, D. C.,
February 12, 1940.

David Schenker, Esq.,
Benedick Hotel,
Washington, D. C.

Personal

Dear Dave:

Some days ago you suggested that I give you the facts, so far
as I know them, on the current reports of a "purge" in the Lands
Division of the Department of Justice.

These are the characters involved and the bare facts, as I see
them:

Dramatic Personae.

Norman M. Littell, Assistant Attorney General, In Charge of Lands Division.
R.F.D. #3, Braddock Road, Fairfax, Va. (Fairfax 181)

Oscar A. Provost, Chief, Administrative Section, Lands Division.
5148 Tilden Street, N. W. (N. 7088)

John J. O'Brien, Chief, Title Section, Lands Division.
1760 Euclid Street, N. W. (Co. 7702)

Felix S. Cohen, Former Chief, Indian Law Survey, Trial Section, Lands Division.
2201 Observatory Place, N. W. (No. 5905)

Abraham Glasser, Attorney, Appellate Section, Lands Division.
1734 Connecticut Ave., N. W. (Mi. 6135)

Bernard H. Levinson, Former Chief, Research Unit, Title Section, Lands Division.
7423 12th Street, N. W. (Rd. 5957)

Theodore Spector, Former Head of Reviewing Unit, Title Section, Lands Division. 3601 Connecticut Avenue, N. W. (No. 1357).

Jacob N. Wasserman, Former Acting Chief, Research Unit, Condemnation Section.
309 No. Thomas Street, Arlington, Va. (Ch. 3904).

Case No. 1.

On November 1, I was relieved of my job directing the preparation of a handbook of Indian Law. On the preceding day I had been told by Assistant Attorney General Littell that my work and my attitude were unsatisfactory and had been given three hours to answer about 24 pages of detailed charges concerning alleged errors in three preliminary drafts of portions of the handbook which was being prepared under my supervision, which drafts had been submitted for criticism and correction. Prior to October 31, neither Mr. Littell nor his administrative assistant, Mr. Provost, had made any criticism to me of either my work or my attitude (although I was advised that Mr. Provost had described me as a _________________ ) and, in fact, Mr. Littell had characterized me as "very valuable" the very material which was now described as so bad that the project had to be immediately terminated. Following the termination of the project I attempted for some time to bring unfinished chapters to completion but was subsequently ordered by Mr. Littell to abandon all such attempts and to confine my activities during the remainder of my term (which expired February 1) to various clerical duties.

Case No. 2.

On or about January 6, Mr. Abraham Glasser, of the Appellate Section, was advised by Mr. Provost that he was being discharged under an order of discharge dated December 18, and that the reasons for this discharge were (a) that Mr. Glasser's desk was disorderly, (b) that his attitude was unsatisfactory, (c) that he was spending time on outside research, and (d) that he had taken too much time in writing a certain brief. Mr. Glasser insisted that these charges, or at least the last three of them, were unfounded. Some time later Mr. Glasser's superior, Mr. Denny, acknowledged that the brief in question was excellent. Former Assistant Attorney General Carl McFarland and Professor Corwin testified to Mr. Glasser's exceptional abilities. (Mr. Glasser worked for me for two months and I can testify from personal knowledge of his work that he is a brilliant, conscientious, accurate and rapid worker.) Mr. Gordon Dean, Assistant to the Attorney General, appears to have intervened in the matter. Very recently Mr. Provost advised Mr. Glasser that his notice of discharge was being canceled, that he was being given another trial, and that nobody had asked him, Mr. Provost, to reinstate Mr. Glasser but that he was doing it on his own initiative.

Case No. 3.

On January 16, Mr. Theodore Spector, Head of the Reviewing Unit

2

of the Title Section, was advised by Mr. Provost that his salary was being reduced, as of that day, by $400, and that his title was being abolished. Mr. Spector's efficiency ratings had been "excellent" up to December 15, when his Chief, Mr. Apsey, had been transferred from the position of Head of the Title Section to the position of Head of the Appellate Section. Mr. Spector was told by Mr. Provost that he must now be willing to do any task, no matter how menial, even to scrubbing floors.

### Case No. 4.

On January 16, the position of Head of the Research Unit of the Title Section, held by Mr. Bernard Levinson, was abolished. Mr. Levinson was advised by Mr. Littell that no fault had been found with his work but that it was desirable to cut down unnecessary positions.

### Case No. 5.

On or about January 29, Mr. Jacob Wasserman was advised by Mr. Littell that he had been removed from his position as Acting Head of the Research Unit of the Condemnation Section, and that the vacancy thus created had been filled by a certain Mr. Fabian. Mr. Littell stated that Mr. Wasserman was being shifted to the Appellate Section in order that he might have an opportunity to write briefs and argue cases. In fact, Mr. Wasserman had had such opportunities in the job from which he was being shifted. Mr. Littell also stated that Mr. Fabian had done very valuable work for the Department recently. The fact is that Mr. Fabian had been working under me for the greater part of the past eight months. His work for me was inaccurate and undependable. Mr. Provost himself had advised me that Mr. Fabian had received too many rapid promotions and that it was up to me to "pin his ears back." My unwillingness to take Mr. Fabian's "advice" in the management of my project was later cited by Mr. Littell as an example of my unsatisfactory attitude and as a reason for relieving me of my position.

It seems to me that the foregoing five cases at least suggest the need for a careful examination of the entire personnel situation in the Lands Division of the Department of Justice, before critics of the Administration make a campaign incident out of these five cases.

Sincerely yours,

Felix S. Cohen.

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

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

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

2/ Ibid., p. 166.

3/ For additional examples see *Indian Education and Civilisation*, Ex. Doc. No. 95, 48th Cong., 2d Sess. (1868), pp. 161, 162.

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

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

5/

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

In the meantime Congress took the initiative and on March 30, 1802 appropriated the sum of $15,000. to promote civilization among the aborigines. 6/ For another decade this action stood as the only indication that the Federal government had recognized any responsibility in connection with the problem; then in his first message to Congress, President Monroe called for additional efforts to preserve, improve and civilize the original inhabitants. This recommendation was acted upon two years later when Congress made a permanent annual appropriation of $10,000. "for the purpose of providing against the further decline and final extinction of the Indian tribes adjoining the frontier settlements of the United States, and for introducing among them habits and arts of civilization." 7/

6/

7/

5/ Ibid., p. 79.

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

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

-3-

The expenditure of this fund occasioned no little difficulty. The President, anxious to apply it in the most effective manner possible, addressed a circular letter to those societies and individuals—usually missionary organisations— who had been prominent in the effort to civilize the Indians offering the cooperation of the Government in their various enterprises. 8/ Seen the $10,000. was apportioned among them and later as treaty funds became available for this purpose 2/ these too generally were disbursed to such establishments.

In 1855, the Commissioner of Indian Affairs, George W. Manypenny, noted that total expenditures for education among the Indian tribes during the ten-year period ending January 1, 1855, amounted to $2,150,000. Apparently only a small portion of this sum was contributed by the government for the Commissioner's report shows that while $102,107.11 had been furnished by the United States $62,160.61 had been added from Indian treaty funds, over $400,000, paid out by Indian nations

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

2/ A significant development during the 1840's was the establishment of schools by a number of Indian tribes. In 1841 and 1842 before a number of states had provided for public schools the Cherokee and Choctaw nations had put into operation a common school system. Educational Service for Indians by Floyd H. Blank, Staff Study No. 10 prepared for the Advisory Committee on Education, p. 55.

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

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

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

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

10/ Message from the President of the United States, Ex. Doc. No. 1, 34th Cong. 1st Sess. (1895), p. 561.

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

- 6 -

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

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

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

12/ Educational Service for Indians by Lloyd E. Blauch, Staff Study No. 13 prepared for the Advisory Committee on Education (1959), pp. 37, 38.

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

14/ *Federal Relations to Education* (1951), The National Advisory Committee on Education was organized in 1929 by the Secretary of the Interior acting for the President.

15/ 48 Stat. 596, amended by Act of June 4, 1956, 49 Stat. 1458; 25 U. S. C. secs. 452-456.

- 7 -

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

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

16/ 49 Stat. 527, 528, 529, 550, 551, 555, 556, 1013, 1014.

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

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

## Eligibility for School Attendance

### Federal Schools

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

-9-

facilities provided." 17/ This restriction was first used in the appropriation for 1918, 18/ although the appropriation for 1916 declared that "the facilities of the Indian schools are needed for pupils of more than one-fourth Indian blood." 19/ A later appropriation bill re-enacts the restriction but declares that it shall not apply to the item for the Five Civilized Tribes and the Quapaw Agency in Oklahoma.

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

18/ 40 Stat. 564.

19/ 39 Stat. 125.

20/ 42 Stat. 576.

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

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

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## State Schools

That the right to attend state schools is coincident with
state citizenship, and cannot be circumscribed unless an alternative
opportunity for education equal in every respect to the one withheld
is afforded, is the holding of the only case which has squarely con-
sidered the Indian's right to State education. 21

In this regard the California Supreme Court has
been explicit. The question arose in that state in 1928, when
Alice Piper, a full-blooded Indian, who was a citizen of the
United States and of California, who had never lived in tribal
relations with any tribe of Indians, nor owed or acknowledged al-
legiance or fealty of any kind to any tribe or "nation" of Indians,
nor lived on a Government Indian reservation, sought admittance to
a state public school. A law of California declared that the
governing body of the public school could exclude Indian children
from attending, provided the United States Government maintained
an Indian school within the school district which the Indian
children were eligible to attend. Pursuant to this statute, the
school board refused Alice Piper admission, and through her
parents she sought a writ of mandamus to compel the school board

21/ *Piper v. Big Pine School District of Inyo County*, 226 P. 936 (1924).

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

> The privilege of receiving an education at the expense of the state is not one belonging to those upon whom it is conferred as citizens of the United States. The federal Constitution does not provide for any general system of education to be conducted and controlled by the national government. It is distinctly a state affair. * * * But the denial to children whose parents, as well as themselves, are citizens of the United States and of this state, admittance to the common schools solely because of color or racial differences without having made provision for their education equal in all respects to that afforded persons of any other race or color, is a violation of the provisions of the Fourteenth Amendment of the Constitution of the United States, * * *.22/

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

22/ "The facts stated in the amended writ show that the petitioners' child was entitled to be admitted as pupil of said school district No. 7, and to receive instructions therein in all respects as the white children. They and their parents are citizens of the United States and of the State of Oregon and reside in said school district. They are not members of any Indian tribe, and they conform to the customs and habits of civilization. These children are half white and white, and their rights are the same as they would be if they were wholly white." Crawford v. School District No. 7, 68 Ore. 385, 137 P. 217.

- 12 -

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

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

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

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

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

- 13 -

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

Compulsory School Attendance

Sometimes in an excess of seal Government agents have under-
taken to compel the attendance of Indian children at federal schools.
Whenever such action has been referred to the courts, they have held
that in the absence of Congressional provision in this respect such
methods were illegal. This proposition was first advanced in 1861
when a Montana court, in denying a writ of habeas corpus compelling
the return of two Indian children alleged to have been taken away from
the Agency school against the wishes and without the consent of the
agent, pointed out:

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

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

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

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

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

- 14 -

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

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

28 In an Alaskan case the question of continued attendance at school was at issue. It is interesting to note that the decision was put on a quasi contract basis, the Alaska district court holding the mother of the child could not reclaim him from the custody of a Presbyterian mission school because she had agreed to allow him to attend for five years, and unless a clear breach or abuse of the child or a failure to educate and provide for and properly superintend its moral training was shown, it would be presumed that the best interests of the child would be served by continuance at school. Contrast with this the accepted view that when a white parent agrees to transfer custody of the child to another not in loco parentis, he may ordinarily repudiate that agreement and the courts will return custody to him unless a reciprocal affection has grown up between the custodian and child. The primary concern in these situations is still the best interest of the child, but the courts ordinarily hold that when the parents are alive and competent, it is to the best interest of the child, when he so desires it, to return him to the parents. Sards v. Villapiano, 91 F. 2d 255, 65 App. D. C. 121.

- 15 -

He applied at the district court of the county to be appointed the guardian of the persons of the Indian children. His application was granted and he was directed to place the children at the industrial school, which was done. Later this proceeding was declared invalid by the federal court which ruled that if a county court could appoint a competent person as guardian of Indian children and could direct the placing of these children in any of the schools of the state, then the tribal condition of the Indians would be speedily broken up, not in pursuance of the acts of the national government, but through the enforcement of the laws of the state acting upon the persons and property of the Indians. 29/

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

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

- 16 -

## Use of Funds for Indian Education

From time to time Congress has placed certain restrictions on its appropriations for support of Indian schools. The difficulty in distinguishing such moneys from tribal funds made available for the same purpose has led to certain complications. In fact, the question of whether an appropriation of Congress under the heading, "Fulfilling Treaty Stipulations and Support of Indian Tribes", was subject to general restrictions, so that the money could not be used to fulfill a contract made by the Commissioner of Indian Affairs with the "Bureau of Catholic Missions" for the care and education of 250 Sioux Indian children, went to the Supreme Court of the United States. 50/

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

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

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

- 17 -

naturally, as they are essentially different in
character. One is the gratuitous appropriation of
public moneys for the purpose of Indian education,
but the "Treaty Fund" is not public money in this
sense. It is the Indians' money, or at least is
dealt with by the Government as if it belonged to
them, as morally it does. 51

The proper application of funds made available as loans to
Indian students who could not maintain themselves in attendance in
schools without such assistance has been another perplexing problem.
Recently the Commissioner of Indian Affairs recommend that a short
course in mechanics be established under the Phoenix Indian School
in order to fit certain Indians for technical employment on reserva-
tions. It developed that a number of the students were unable to
take the course unless financial support was provided for the families
during the period of the course. Accordingly the Solicitor of the
Interior Department was asked for his opinion as to the right of
the Indians to loans for the payment of tuition and other expenses.
It was held that such loans fell within the scope of Section 11 of
the Act of June 18, 1954 52 and supplementary appropriation
statutes governing federal education loans to Indians attending.

51 Id., the Solicitor of the Interior cited this case with approval August 1, 1953. Acting Solicitor, Department of the Interior, Opinion No. M-27514.

52 48 Stat. 984 and 49 Stat. 190.

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.)

ATTOPNEYS SPECIALLY ASSIGNED TO SECTION

Cotter MacDonald,

Dugan Norman

Glasser* Merquis

Hearne Wasserman

Hickey Whiteside

Koerner Wilkinson

*Specially assigned

## 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 elsewhere; miscellaneous requests for information or service.)

## ATTORNEYS SPECIALLY ASSIGNED TO SECTION

Bassford*

King

Vaughan

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

## CLERKS & STENOGRAPHERS

John Cain - Clerk

John Willard - Steno (LWOP)

TITLE AND CONDEMNATION 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

## Alaska:

KELLY, EDWARD C.

## Arkansas:

FLORENCE, MRS. BESSIE N.
McKeehan, Lois

## California:

BRETT, IRL D.
SHORTRIDGE, SAMUEL M.
WHELAN, FRANCIS C.

## Colorado:

GINSBERG, MORRIS S.
Howard, Mrs. Beulah

## 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:

SIBLEY, U. ERWIN
Meadows, Olive

## Idaho:

CHAPMAN, MARSHAL
Aukerman, B. Marie

## Illinois:

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

## Indiana:

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:

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

Wisconsin:

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

SPECIAL LIST OF FIELD EMPLOYEES

<table><thead><tr><td>Name</td><td>Position</td><td>Office</td><td>Location</td></tr></thead><tbody><tr><td>Adams, Ann</td><td>Steno</td><td>U.S. Attorney</td><td>St. Louis, Missouri</td></tr><tr><td>Allen, June</td><td>Steno</td><td>U.S. Attorney</td><td>Portland, Ore.</td></tr><tr><td>Arnold, Lona M.</td><td>Clerk</td><td>U.S. District Ct.</td><td>Springfield, Mo.</td></tr><tr><td>Aubol, Myrtle</td><td>Steno</td><td>U.S. Attorney</td><td>Albuquerque, N.M.</td></tr><tr><td>Briell, Meldon S.</td><td>Steno</td><td>U.S. District Ct.</td><td>St. Louis, Mo.</td></tr><tr><td>Cain, Leola R.</td><td>Steno</td><td>U.S. Attorney</td><td>Montgomery, Ala.</td></tr><tr><td>Collins, Margaret</td><td>Clerk-Steno</td><td>U.S. Attorney</td><td>St. Louis, Mo.</td></tr><tr><td>Cook, Dorothy</td><td>Steno</td><td>U.S. Attorney</td><td>Spokane, Wash.</td></tr><tr><td>Crowe, Zoe E.</td><td>Steno</td><td>U.S. Attorney</td><td>Birmingham, Ala.</td></tr><tr><td>DeLisle, Elna</td><td>Clerk-Steno</td><td>U.S. Attorney</td><td>St. Louis, Mo.</td></tr><tr><td>Fallin, Julia W.</td><td>Steno</td><td>U.S. Attorney</td><td>Gainesville, Fla.</td></tr><tr><td>Farley, Mrs. Lillian</td><td>Steno</td><td>U.S. Attorney</td><td>Charleston, W. Va.</td></tr><tr><td>Feldheim, Lena H.</td><td>Examiner</td><td>U.S. Attorney</td><td>Brooklyn, N. Y.</td></tr><tr><td>Fernsler, Agnes</td><td>Steno</td><td>U.S. Attorney</td><td>Sunbury, Pa.</td></tr><tr><td>Foster, Wm. D.</td><td>Clerk-Steno</td><td>U.S. Attorney</td><td>Salt Lake City, Utah</td></tr><tr><td>Gann, Patty</td><td>Steno</td><td>U.S. Attorney</td><td>Clarksdale, Miss.</td></tr><tr><td>Goldstein, Mildred</td><td>Steno</td><td>U.S. Attorney</td><td>Brooklyn, N.Y.</td></tr><tr><td>Hair, Gertrude L.</td><td>Steno</td><td>U.S. Attorney</td><td>Los Angeles, Calif.</td></tr><tr><td>Harrison, Emanuel M.</td><td>Searcher</td><td>U.S. Attorney</td><td>Brooklyn, N. Y.</td></tr><tr><td>Hawkins, Pearl</td><td>Steno</td><td>U.S. District Ct.</td><td>Cape Girardeau, Mo.</td></tr><tr><td>Hays, Mrs. Tommie L.</td><td>Steno</td><td>U.S. Attorney</td><td>Jackson, Miss.</td></tr><tr><td>Higgins, Mrs. Theresa O.</td><td>Steno</td><td>U.S. Attorney</td><td>New Orleans, La.</td></tr><tr><td>Holliday, Catherine</td><td>Steno</td><td>U.S. Attorney</td><td>San Juan, Puerto Rico</td></tr><tr><td>Horning, Ruth</td><td>Clerk-Steno</td><td>U.S. Attorney</td><td>St. Louis, Mo.</td></tr><tr><td>Hughey, Dorothy</td><td>Steno</td><td>U.S. Attorney</td><td>Pensacola, Fla.</td></tr><tr><td>Krupp, Katherine</td><td>Steno</td><td>U.S. Attorney</td><td>Grand Rapids, Mich.</td></tr><tr><td>Lara, Manuel Gonzales</td><td>Steno</td><td>U.S. Attorney</td><td>Aguadilla, Puerto Rico</td></tr><tr><td>Lemke, Helen M.</td><td>Steno</td><td>U.S. Attorney</td><td>Los Angeles, Calif.</td></tr><tr><td>Maddox, Lillian E.</td><td>Steno</td><td>U.S. Attorney</td><td>St. Louis, Mo.</td></tr><tr><td>McCarthy, Mary</td><td>Steno</td><td>U.S. Attorney</td><td>St. Louis, Mo.</td></tr><tr><td>McDonald, Francis J.</td><td>Clerk</td><td>U.S. Attorney</td><td>Grand Rapids, Mich.</td></tr><tr><td>Mau, Ethelyn S.</td><td>Steno</td><td>U.S. Attorney</td><td>Los Angeles, Calif.</td></tr><tr><td>Mefford, Vivian M.</td><td>Steno</td><td>U.S. Attorney</td><td>Los Angeles, Calif.</td></tr><tr><td>Miles, Ellen N.</td><td>Steno</td><td>U.S. Attorney</td><td>Tacoma, Wash.</td></tr><tr><td>Palladino, Rose</td><td>Steno</td><td>U.S. Attorney</td><td>Brooklyn, N. Y.</td></tr><tr><td>Rueh, Florence</td><td>Steno</td><td>U.S. Attorney</td><td>St. Louis, Mo.</td></tr><tr><td>Saladino, Antoinette</td><td>Steno</td><td>U.S. Attorney</td><td>Brooklyn, N. Y.</td></tr><tr><td>Schoenfield, Gertrude</td><td>Steno</td><td>U.S. Attorney</td><td>Brooklyn, N. Y.</td></tr></tbody></table>

p. 16

UNITED STATES
DEPARTMENT OF THE INTERIOR
WASHINGTON

I think this condemnation is too undiscriminating.

I agree that Chapter 9 "requires intensive further research".

I agree that Chapter 17 requires some further research.

I do not believe that either Chapter requires "presentation de novo."

The characterization "fundamentally unsound" is unjustified with respect to Chapter 17. Whether it applies properly to Chapter 9 depends upon what is considered fundamental in the Chapter. Apparently we disagree on that. I think the Chapter is extremely unsound when it deals with the 5 Tribes, Osages, and the nature of tribal property, but I think these are not fundamental to the chapter and don't belong in the chapter at all, and I think that the material that does belong in this chapter is fairly reliable, so far as I have already checked it.

Memorandum

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

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

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

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

This difference in our approaches leads to the following
situations:

2