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gress with a letter of the Secretary of the Interior, dated January 21, 1899. There may be other correspondence in connection with the matter not contained in this document. Therefore, Mr. Ballinger had nothing whatever to do with those timber frauds at that time, and I can say with confidence that there have been no timber frauds in the Chippewa country in recent years, and we are conducting theiraffairs without the suspicion of fraud. The CHAIRMAN. Does that clear up the matter in your mind, Mr. LeatherWood 2 Mr. LEATHERwood. I will not interrupt now. I have some questions I want to ask later. Mr. MERITT. Mr. Ballinger also referred to the fact that the Chippewa Indians were not able to obtain any information in regard to their affairs. I wish to invite the attention of the committee to the fact that we are required by law to submit to Congress annually a report showing the expenditure of every dollar of Chippewa funds used for administrative expenses, or for school purposes, or for any other purpose; and you will note that when the question of funds used to pay the expenses of Mr. Ballinger as attorney for the Chippewa Council was referred to by Mr. Hayden, Mr. Ballinger replied that this matter was brought to the attention of Congress in these printed reports that we submitted to Congress. We submit to Congress a statement showing the expenditure of every dollar of the funds of the Chippewa Indians, and I might say there is no tribe in the United States that has had more publicity or where a more thorough accounting is furnished to Congress than the Chippewa Tribe. During the hearings last year before the committees of Congress this same statement was made—that we were not furnishing information to Congress regarding Chippewa funds; and you will find that that proposition was refuted at that time, and we placed in the record statements which we had furnished to Congress. Those statements are found on pages 296 to 315 of the hearings on the 1922 Indian appropriation bill. So that is a misleading statement to say to this committee that the Chippewa Indians are not able to get an accounting of their funds. We are required by law to make that accounting to the Congress of the United States annually, and we have been making that statement to Congress long before Mr. Ballinger was ever connected with Chippewa Indian affairs. Mr. Ballinger referred to a decision in regard to minor Indians that he obtained from the department and stated that he had saved the Indians an enormous amount of money. I wish to call the attention of the committee to the fact that there was no saving of money in this decision. It was simply a decision by the solicitor of the Interior Department holding that a certain class of Indians were entitled to participate in the distribution of the funds of the Chippewa Indians. The decision of the department prior to that time followed what is known as the Oaks decision—107 Federal, 305—rendered by one of the circuit judges of the United States who was a former solicitor of the Interior Department and who is now on the Supreme Court bench. We were following what we thought was the correct interpretation of the Oaks decision, and I might say that it is the opinion of a number of the lawyers of the Interior Department to-day that the decision of the solicitor was not in accordance with the Oaks decision. In fact, the solicitor in the decision referred to the Oaks case and said that it in substance was not exactly in line with the Oaks case. In order that the committee might have full information on this matter, I will place in the record at this point the decision of the solicitor in connection with this matter, and also the decision of the court in the Oaks case, so that . the two may appear in the record.
DEPARTMENT OF THE INTERIOR,
DEAR MR. SECRETARY : Questions having arisen as to the rights of certain children born to persons whose names appear on the tribal rolls of the Chippewa Indians of Minnesota to share in the interest accruing upon the fund arising under the act of January 14, 1889 (25 Stat., 642), the matter has been referred to me “for an opinion on the legal points involved.”
Said act must be construed on the same principles as a deed of trust, which in legal effect it is, so far as concerns the questions herein discussed. The Chippewa Indians of Minnesota, as a tribe or aggregation of tribes, are the
settlors ” of the trust. The acceptance by those Indians of the provisions of the statute is shown by the report of the negotiators (H. R. Ex. Doc 247, 51st Cong., 1st sess.). By their acceptance of the statutory provisions the tribe, as a tribe, became the settlors of the trust; and the trustee is the United States, to which the settlors transferred the legal title to their bonds, charged with the trusts specified. (The trust for allottees is distinct from that touching the funds, proceeds of the unallotted and unreserved lands thrown upon to sale.) The trust touching the funds has as its beneficiaries, not the Indians as a tribe (the settlors), but the Indians as individuals. In construing the act hitherto, it may have been too hastily assumed that the beneficiaries of the trust were identical with the settlers thereor. Such an identity is found only in the use of trusts created by a settler for his own benefit, a class by no means embracive of all trusts.
The Indians, considered as old reservation units, and the tribe as a whole, considered with reference to the Red Lake Reservation, surrendered their lands, the consent of individual Indians already holding allotments also being required to the surrender of those pre us allotments. The surrendered lands were to be sold as part of the public domain, and the proceeds of such sales were constituted a trust fund, one-half the interest accruing from which was to be paid as annuities“ in equal shares to the heads of families and guardians of orphan minors for their use," and one-fourth of which interest was to be paid “in equal shares per capita to all other classes of said Indians ”-the remaining one-fourth being devoted to Indian education; and the whole principal of said fund was to be distributed at the expiration of 50 years “ to all said Chippewa Indians and their issue then living, in cash, in equal shares.” Congress might divert not more than 5 per cent of the principal fund to other Indian uses during the 50 years.
Thus it appears that Indian blood—membership among the individual Indians originally enrolled as together constituting the tribe that created the trust and conveyed the surplus lands giving rise to the trust fund, or descent from those Indians—is made the essential and sole basis of the right to participate in the current interest accruing from the fund and in its final distribution. Participations in the current interest (the “annuities") and in the principal differ somewhat from one another-the one being (as to one-half of the interest) by heads of families and by guardians of orphan minors for their use, and (as to one-fourth of the interest) by “all other classes of said Indians”-adults not heads of families, and minors not members of families or orphans under guardianship—and the other being by “all said Chippewa Indians, and their issue then living, in cash, in equal shares.” But so the trust is settled. And nowhere in its terms of settlement is either residence with or continued or “recognized ” membership of the tribe, or birth on the reservation, or United States citizenship, or any other qualification mentioned, save only being “a Chippewa Indian,” i. e., possession, in whole or in part, of the blood of one of the originally enrolled members of that tribe.
In the direction for final distribution to “all the said Chippewa Indians and their issue then living," the word “issue” is used in its enlarged, not its restricted, sense. That is, it includes all the ancestor's lineal descendants in the second and subsequent generations as well as in the first generation. (See Wistar 1. Scott, 105 Pa. St., 200, 51 Am. Rep., 197; Pearce 1. Rickard, 19 L. R. A., 472; Bouvier's Law Dict., tit. “ Issue”; Price v. Sisson, 13 N. J. Eq. 168, 176; Jarman on Wills, vol. 2, p. 33.)
The issue, then, includes all the lineal descendants of the ancestor. But the ancestor must be found to have been of the tribal membership at the time of the creation of the trust. His “recognition” by the tribe as such is merely evidentiary of such membership, and is not the sole evidence competent to establish the fact. His descendants (whether children or grandchildren) take an interest, not as tribal members but as of the ancestor's blood; his blood entitling him and them alike, because it was tribal blood.
This construction of the trust is in line with that given by the United States Supreme Court on Cherokee Nation v. Journeycake (155 U. S., 196, 205), to the agreement of April 8, 1867, between the Cherokee Nation and the Delaware Tribe; holding that the agreement, although made with the Delaware Tribe, was for the benefit of the individual members of that tribe, vesting them as individuals, with specific allotments, and at the same time incorporat
ing them as individuals into the membership of the Cherokee Nation, with consequent proportional rights, per capita, in all its lands as well as funds. The construction is also in accord with the general policy of the United States in dealing with its Indian wards. That policy has been directed chiefly toward the object of preparing them for the duties and advantages of citizenship and of effecting their amalgamation in the general mass of citizenship. To this end they have been encouraged to acquire the customs and habits of civilized life as rapidly as practicable. This necessarily involves abandonment of their tribal organization and associations. It was obviously in contemplation of such abandonment that the statute here under discussion was framed. This policy is exhibited both in the sundry cession and reservation treaties and preliminary or confirmatory statutes and in the provisions for allotments, including the general allotment act of February 8, 1887 (24 Stat., 388), and also in the statutes providing for Indians' acquisition of citizenship without impairment of their Indian property rights. See section 6, act of 1887, supra, conferring citizenship on allotted Indians and those who have severed tribal relations without loss of their rights in tribal property; section 2, act of August 9, 1888 (25 Stat., 392), conferring citizenship on Indian women contracting marriage with white citizens without loss of their rights in tribal property; section 1 (at p. 90), act of June 7, 1897 (30 Stat., 62), securing to the issue of an Indian woman by blood then or at the time of her previous death recognized by her tribe, and her white husband, the same rights and privileges as other tribal members ; the provisions of the act of June 21, 1906 (34 Stat., 325), removing restrictions on alienation of White Earth Reservation allotments to mixed-blood Indians and such full bloods as the Secretary of the Interior shall find competent; and section 1, act of March 2, 1907 (34 Stat., 1221), providing for apportionment and payment of their pro rata shares of any tribal trust funds to individual Indians found capable of managing their own affairs. The decision of the Circuit Court of Appeals in Oakes v. United States (172 Fed., 305, 309) involved only the trust created under the act of 1889 as to reserVation lands and their allotment, and was not concerned with the trust as to distribution of tribal funds and their current interest yield. The enjoyment of an allotment right places the allottee in immediate contact with others of the tribe, so that there was more reason for holding it intended that none should enjoy that right except those having not merely a share in the tribal blood but recognized tribal membership. The Oakes case, while embracing statements arguendo adverse to the construction here given the statute, is not, in its conclusion upon the precise subject involved, opposed to the views herein expressed touching the proper scope of distribution of the trust fund and its interest yield. Underlying the Oakes case and cited therein to sustain its conclusions are two decisions of this department, William Banks (28 L. D., 71), an Opinion by former Assistant Attorney General Van Devanter, who afterwards, as judge, rendered the decision in the Oakes case, resting in part on his own earlier opinion ; and Minnie H. Sparks (36 L. D., 234). In Willaim Banks, supra, the Secretary of the Interior was advised that a member of the Sac and Fox Tribe of Missouri Indians who had severed his tribal relations and resided at a distance from the tribe, but whose tribal rights came within the protection of the act of June 7, 1897, Supra, was still entitled to an allotment as if his name were still on the original tribal roll, but that his children were not so entitled. In Minnie H. Sparks, supra, it was held that while residence upon the White Earth Reservation was a condition precedent, under the acts of January 14, 1889, supra, and April 28, 1904 (33 Stat., 539), to the right to an allotment thereon, it was not a condition of the right to share in the tribal annuities. This decision rests, arguendo, upon the governmental policy of encouraging the Indians to abandon tribal relations and adopt the habits of civilized life. Itwould not be in furtherance of that policy to subject Indians so doing to forfeiture of annuities for their children afterwards born apart from the reservation, while preserving their own annuities. - - In the particular case giving rise to a call for this opinion, Sarah Kadrie, née Cogger, was a full-blood Chippewa Indian woman born On the reservation in the year 1892, subsequent to the cession and the original enrollment. She was an only child of her mother, a member of the original enrollment. As such she is entitled to participate for herself in the annuities; and that right is
accorded to her. She married, in 1909, Mall Kadrie, a native of Syria, and since then has resided with him mainly in Canada, but for a short time in Syria, and at no time on the reservation, although occasionally visiting it. There have been born of said marriage four children, the oldest now about 9 years of age. Her three oldest children were for some years enrolled among the Chippewa Indians, and she was paid annuities for them until the year 1917, when, by direction of the Indian Bureau, their names were stricken from the roll and their annuities withheld. At the same time, the enrollment of the youngest child was refused.
In my opinion, this action was erroneous and should be corrected. Sarah Kadrie and her children are “issue” of her mother, a full-blood Chippewa Indian duly enrolled, and as such they will be entitled, at the expiration of the trust period, to share in the distribution of the trust fund; and meanwhile they are equally entitled to share in the annuities arising from that fund. These rights they have not forfeited either by acquiring foreign citizenship or by abandoning, or failing to acquire, residence on the Indian reservation or with the tribe.
Whether the current annuity payments or the final distribution of the principal should properly be made per capita or per stirpes is not here considered, and until the question is directly presented the distribution may well follow, in that respect, the usage of the Indian Bureau hitherto. But the basis of distribution should at all events be solely the possession of blood of tribal members at date of creation of the trust, irrespective of residence or citizenship. Cordially, yours,
CHARLES D. MAHAFFIE,
Solicitor. The SECRETARY OF THE INTERIOR.
OAKES ET AL, V. UNITED STATES.
[Circuit Court of Appeals, Eighth Circuit. Aug. 2, 1909. No. 2797.) 1. Indians (sec. 13)–Right to share in tribal property: Originally the test of the right of individual Indians to share in tribal lands and other tribal property was existing membership in the tribe; but this rule has been so broadened by act March 3, 1875, c. 131, sec. 15, 18 Stat., 420 (U. S. Comp. St., 1901, p. 1419), and act February 8, 1887, c. 119 sec. 6, 24 Stat., 390, and other acts, as to place individual Indians who have abandoned tribal relations, once existing, and have adopted the customs, habits, and manners of civilized life, upon the same footing in respect of this right as though they had maintained their tribal relations.
[Ed. NOTE.—For other cases, see Indians, Dec. Dig., sec. 13.]
2. Indians (sec. 13)-Act January 14, 1889, relating to Chippewas in Minnesota-Interpretation : Act January 14, 1889, c. 24, 25 Stat., 642, relating to the cession of part of the Chippewa Reservations in Minnesota and to the allotment in severalty of the remainder, does not expressly or by necessary implication displace the saving provisions of the acts of 1875 and 1887, above named, whereby individual Indians who have abandoned tribal relations, once existing, and have adopted the customs, habits, and manners of civilized life, are accorded the same right to share in tribal property as though they had maintained their tribal relations; nor does it render those provisions less applicable to the Chippewas in Minnesota than to other Indians.
[Ed. NOTE. -For other cases, see Indians, Dec. Dig., sec. 13.)
3. Indians (sec. 13)--Act June 7, 1897, relating to rights of children of mixed blood : Act June 7, 1897, c. 3, 30 Stat., 62, relating to the rights of children of a white man and an Indian woman in tribal property, does not embrace the children of a mother who was living at the time of its passage and was not then recognized by the tribe as one of its members.
[Ed. NOTE.—For other cases, see Indians, Dec. Dig. sec. 13.]
4. Suit to enforce right to allotment-Parties-Quære: Whether in a suit against the United States under act Feb. 6, 1901, c. 217, 31 Stat., 760, to enforce a right to an allotment of specified land, which has been allotted to another Indian, a decree displacing or annulling the existing allotment lawfully can be rendered, without making the allottee a party and giving him an opportunity to defend.
(Syllabus by the court.)
Appeal from the Circuit Court of the United States for the District of Minnesota.
Harvey S. Clapp (C. B. Miller, on the brief), for appellants.
Van Devanter, circuit judge. By their suit commenced and prosecuted under act February 6, 1901, c. 217, 31 Stat., 760, the appellants asserted that they were entitled to have allotted to them in severalty, under act January 14, 1889, c. 24, 25 Stat., 642, certain specified lands in the White Earth Indian Reservation in Minnesota, that their applications for such allotments had been unlawfully denied by the officers charged with the allotment of the lands in that reservation, and therefore that they were entitled to a decree recognizing and enforcing their rights to such allotments. Upon the final hearing the circuit court, being of opinion that none of the appellants came within the terms of the act of 1889, entered a decree dismissing the bill, and an appeal has brought the case here. The facts established by the proofs are as follows:
The appellants are descendants of Margaret Beaulieu, a full-fledged Mississippi Chippewa, who was enrolled and recognized during all her life as a member of that tribe and was living upon the tribal reservation at White Earth at the time of her death in 1877. Jane B. Oakes, one of the appellants, is a daughter of Margaret Beaulieu, was hy birth a member of the same tribe, and was enrolled and recognized as such from the time of her birth until 1849. In 1829, while she was attending a mission school, she married a Mr. Oakes, a white man, and they lived at a trading post in the Chippewa country until 1849. In that year they moved to Fort Ripley, on the Mississippi, and the next year to St. Paul, where Mr. Oakes engaged in the banking business until the time of his death in 1879. Jane B. Jones, another of the appellants, is a daughter of Mrs. Oakes, was born in the Chippewa country in 1841, and was enrolled and recognized as a member of the Mississippi Chippewa Tribe until 1849, when her parents took her to Fort Ripley and then to St. Paul. to womanhood in the latter place and has been married twice, each time to a white man. Jane Andrews and Cornelia Vạn Etten Bent, the remaining appei-. lants, are daughters of Mrs. Jones by her first husband. They were born and reared in St. Paul, never were enrolled or recognized as members of the tribe, and are married to white men. After the Oakes family moved to St. Paul, Mrs. Oakes and Mrs. Jones abandoned their former tribal relations, adopted the customs, habits, and manners of civilized life, and ceased to be recognized as members of the tribe. Sometimes they exchanged visits with members of the tribe; but these visits did not occur often and were confined to relatives. The appellants were all residents of St. Paul when the act of 1889 was passed, and shortly thereafter they asserted that they were entitled to allotments thereunder. In 1894 the names of Mrs. Oakes and Mrs. Jones were placed upon a supplemental census of White Earth Mississippi Chippewas by the chairman of the commission charged with making a census and allotments under the act of 1889, and the next year their names were dropped from the census; but the circumstances in which these acts were done are not disclosed. In 1905, before applying for allotments of specific lands, Mrs. Oakes and Mrs. Jones removed to and took up their residence upon the White Earth Reservation. Whether or not Mrs. Andrews and Mrs. Bent did likewise may be left undetermined, because, if they did, it would not help them, as will be seen presently.
The White Earth Reservation was set apart as a tribal reservation for the use and occupancy of the Mississippi Chippewas under the treaty of March 19, 1867 (16 Stat. 719), and was being allotted in severalty under the act of 1889 when the appellants applied for allotments therein and when this suit was commenced. That act is entitled “ An act for the relief and civilization of the Chippewa Indians in the State of Minnesota," and provides for obtaining a cession and relinquishment by “all the different bands or tribes of Chippewa Indians in the State of Minnesota," of all their tribal reservations in that State, excepting so much of the Red Lake Reservation and of the White Earth Reservation as shall be deemed necessary “to make and fill the allotments required by this and existing acts.” It further provides: That the cession and relinquishment shall be deemed sufficient as to each reservation, other than the Red Lake Reservation, if made and assented to in writing by a designated Ortion of “the band or tribe of Indians occupying and belonging to " such Yervation, and shall be sufficient as to the Red Lake Reservation if made and ented to in like manner by a like portion of "all the Chippewa Indians in