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CASES DECIDED

IN

THE COURT OF CLAIMS

December 5, 1938 to April 17, 1939

CHIPPEWA INDIANS OF MINNESOTA V. THE

UNITED STATES

(No. H-155. Decided November 14, 1938. Supplemental opinion

January 9, 1939]

On the Proofs

Indian claims; policy of the government.-In enacting the Act of

January 14, 1889, providing for the disposition of the lands held by the Chippewa Indians of Minnesota, it is held that Congress clearly intended to put into effect the Government's prevailing Indian policy, which was to secure the dissolution of the various Indian Bands and Tribes, allot to them lands in severalty, dispose of surplus lands for their benefit and other

wise seek to civilize the Indians themselves. Same; conservation of tribal funds not the establishment of a con

ventional trust.-Where Congress provided, in the Act of 1889, that tribal funds accruing from the sale of surplus lands, should be conserved for the benefit of the Indians, it was not the intent of Congress to establish a trust fund, which would

be beyond the control of Congress Itself. Same; division of the Chippewa Tribe into Bands.--The fact that the

Chippewa Indians of Minnesota as a Tribe were divided into bands does not destroy the identity of the Tribe as such or

alter the character of the title by which their lands are held. Same; tribal fund8.-Where, under the Act of 1889, there was a vol

untary merger of all the tribal lands, participated in by all the Bands of the Chippewa Tribe, and consummated by ces. sions of all the Chippewa Bands, the funds resulting from the sale of said lands were tribal funds.

Syllabus Same; authority of Congress over tribal funds. The fact that Con

gress in the Act of 1889 did not exert to the limit the power and authority which Congress indisputably possessed over tribal funds does not sustain the contention that the plenary power of Congress over tribal funds was surrendered; the inclusion of a referendum clause in the Act did not change the established relationship of the government and the Indians; the mutual assent of the interested parties to the enactment of

the Act did not create a contract. Same.-In the enactment of statutes similar to the Act of 1889, Con

gress did not intend to surrender its plenary power if subsequent conditions justified further legislation, for the benefit of the Indians, provided such subsequent legislation did not take

from the Indians vested rights. Same.-There is held to be no foundation for the contention that

under an Act of Congress providing for the settlement of Indian tribal estates a succeeding Congress is powerless to alter a former Act, when the succeeding Congress deems it essential to exercise its plenary power over tribal funds for

the good of the tribe. Indian tribal funds: reimbursement for appropriations.It is held

that the policy of Congress in providing that expenditures made by the Government for the benefit of the Indians, including education and drainage, should be reimbursed from tribal funds is an exercise of the discretion and authority of Congress

in which the courts may not intervene. Tribal affairs; administration by the Government.-It is held that

the Act of 1889 did not accomplish an "immediate emancipation" of the plaintiff Indians; that the Act did not dissolve the relationship of guardian and ward; and that it did not place the Government in the position of being absolutely un

able to administer their tribal affairs. Authority of Congres8.-If Congress determined to utilize the exist

ing fund for a generation of tribal Indians who in their judgment needed it to ward off the hardships of life, and who were really the creators of the fund, it was a matter for Congress

to determine and not the courts. Same.-Congress possesses the exclusive and plenary authority to

deal with tribal Indian lands and funds as in its wisdom it deems just; this is a matter within the exclusive jurisdiction of Congress and if the legislation does not impair vested rights or appropriate property for a public purpose the courts are

absolutely without jurisdiction. Jurisdictional Act.—The jurisdictional Act does not create rights and

consequent liabilities; nor does it by its terms recognize existing rights under the Act of 1889. Mille Lac Band of Chippewa Indians v. The United States (229 U. S. 498, 520) cited.

Reporter's Statement of the Caso The Reporter's statement of the case :

Mr. Donald S. Holmes for the plaintiffs. Mr. Webster Ballinger and Holmes, Mayall, Reavill & Neimeyer were on the briefs.

Messrs. Raymond T. Nagle and Walter C. Shoup, with whom was Mr. Assistant Attorney General Carl McFarland, for the defendant. Mr. George T. Stormont was on the brief.

The court made special findings of fact as follows:

1. This suit is brought under a special jurisdictional act approved May 14, 1926 (44 Stat. 555), as amended by acts of April 11, 1928 (45 Stat. 423), and June 18, 1934 (48 Stat. 979), which act as so amended provides in part as follows:

Sec. 1. That jurisdiction be, and is hereby, conferred upon the Court of Claims, with right of appeal to the Supreme Court of the United States by either party as in other cases, notwithstanding the lapse of time or statute of limitations, to hear, examine, and adjudicate and render judgment in any and all legal and equitable claims arising under or growing out of the Act of January 14, 1889 (25 Stat. L. 642), or arising under or growing out of any subsequent Act of Congress in relation to Indian Affairs which said Chippewa Indians of Minnesota may have against the United States, which claims have not heretofore been determined and adjudicated on their merits by the Court of Claims or the Supreme Court of the United States. In any such suit or suits the plaintiffs, the Chippewa Indians of Minnesota, shall be considered as including and representing all those entitled to share in the final distribution of the permanent fund provided for by Section 7 of the Act of January 14, 1889 (25 Stat. L. 642), and the agreements entered into thereunder: Provided, That nothing herein shall be construed to affect the powers of the Secretary of the Interior to determine the roll or rolls of the Chippewa Indians of Minnesota for the purpose of making any distribution of the permanent Chippewa fund or of the interest accruing thereon or of the proceeds of any judgments: Provided further, That nothing herein shall be construed to authorize the submission to the Court of Claims for determination of any individual claim or claims to enrollment with the Chippewa Indians of Minnesota or to share in the interest or principal of the perReporter's Statement of the Case manent Chippewa fund or in any funds hereafter acquired : Provided further, That the qualifications necessary to such enrollment shall not be changed or affected in any manner by the provisions of this Act.

SEC. 3. In said suit or suits the court shall also hear, examine, consider, and adjudicate any claims which the United States may have against the said Chippewa Indians, and any payment or payments which may have been made by the United States upon any claim against the United States by said Indians shall not operate as an estoppel, but may be pleaded as an offset in such suit or suits as may gratuities, if any, paid to or expended for said Indians subsequent to January 14, 1889.

Sec. 4. If it be determined by the court that the United States, in violation of the terms and provisions of any law, treaty, or agreement as provided in Section 1 hereof, has unlawfully appropriated or disposed of any money or other property belonging to the Indians, damages there for shall be confined to the value of the money or other property at the time of such appropriation or disposal, together with interest thereon, at 5 per centum per annum from the date thereof; and with reference to all claims which may be the subject matter of the suits herein authorized, the decree of the court shall be in full settlement of all damages, if any, committed by the Government of the United States and shall annul and cancel all claim, right, and title of the said Chippewa Indians

in and to such money or other property. 2. Plaintiffs, the Chippewa Indians of Minnesota, who constitute the class designated and described in the Act of January 14, 1889 (25 Stat. 642), as "all of the Chippewa Indians of Minnesota," and the class authorized by the acts aforesaid to maintain suits as therein provided, filed their petition in this court on April 13, 1927, and defendant filed its general traverse thereto on May 23, 1927. Thereafter on August 18, 1930, pursuant to leave granted by order of this court of that date, plaintiffs duly filed their amended petition. On September 27, 1930, defendant filed its general traverse to the amended petition. On August 22, 1935, plaintiffs by leave of court filed their second amended petition and on October 1, 1935, defendant filed its general traverse thereto.

3. On and long prior to the approval of the Act of Congress of January 14, 1889 (supra), the various bands or

Reporter's Statement of the Case tribes of Chippewa Indians in Minnesota resided on twelve reservations in that State as to which the Indian title had not been extinguished.

4. The act of January 14, 1889 (supra), entitled "An: Act for the Relief and Civilization of the Chippewa Indians. in Minnesota," is in words and figures as follows: An Act for the Relief and Civilization of the Chippewa

Indians in the State of Minnesota Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States is hereby authorized and directed, within sixty days after the passage of this act, to designate and appoint three Commissioners, one of whom shall be a citizen of Minnesota, whose duty it shall be, as soon as practicable after their appointment, to negotiate with all the different bands or tribes of Chippewa Indians in the State of Minnesota for the complete cession and relinquishment in writing of all their title and interest in and to all the reservations of said Indians in the State of Minnesota, except the White Earth and Red Lake Reservations, and to all and so much of these two reservations as in the judgment of said commission is not required to make and fill the allotments required by this and existing acts, and shall not have been reserved by the Commissioners for said purposes, for the purposes and upon the terms hereinafter stated; and such session and relinquishment shall be deemed sufficient as to each of said several reservations, except as to the Red Lake Reservation, if made and assented to in writing by two-thirds of the male adults over eighteen years of age of the band or tribe of Indians occupying and belonging to such reservations; and as to the Red Lake Reservation the cession and relinquishment shall be deemed sufficient if made and assented to in like manner by two-thirds of the male adults of all the Chippewa Indians in Minnesota; and provided that all agreements therefor shall be approved by the President of the United States before taking effect: Provided further, That in any case where an allotment in severalty has heretofore been made to any Indian of land upon any of said reservations, he shall not be deprived thereof or disturbed therein except by his own individual consent separately and previously given, in such form and manner as may be prescribed by the

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