A statutory limitation on expenditures of the public funds does
not, in the absence of special provision to that effect, relate to
expenditures of treaty and trust funds administered by the
government for the Indians.
The provisions in the Indian Appropriation Acts of 1895, 1896,
1897, 1898 and 1899 limiting and forbidding contracts for education
of Indians in sectarian schools relate only to appropriations of
public moneys raised by general taxation from persons of all creeds
and faith and gratuitously appropriated, and do not relate to the
disposition of the tribal and trust funds which belong to the
Indians -- in this case, the Sioux Tribe -- themselves, and the
officers of the government will not be enjoined from carrying out
contracts with sectarian schools entered into on the petition of
Indians and to the
pro rata extent that the petitioning
Indian are interested in the fund.
A declaration by Congress that the government shall not make
appropriations for sectarian schools does not apply to Indian
treaty and trust funds on the ground that such a declaration should
be extended thereto under the religion clauses of the federal
Constitution.
35 Wash.L.Rep. 766 affirmed.
The appellants filed their bill in equity in the Supreme Court
of the District of Columbia, alleging that:
"1. The plaintiffs are citizens of the United States, and
members of the Sioux Tribe of Indians of the Rosebud Agency, in the
State of South Dakota, and bring this suit in their own right as
well as for all other members of the Sioux Tribe of Indians of the
Rosebud Agency."
"2. The defendants are citizens of the United States and
residents of the District of Columbia, and are sued in this action
as the Commissioner of Indian Affairs, the Secretary of the
Interior, the Secretary of the Treasury, the Treasurer of
Page 210 U. S. 51
the United States, and the Comptroller of the Treasury,
respectively."
"3. That by Article VII of the Sioux Treaty of April 29, 1868,
15 Stat. 635, 637, continued in force for twenty years after July
1, 1889, by § 17 of the Act of March 2, 1889, 25 Stat. 888, 894,
895, c. 405, the United States agreed that, for every thirty
children of the said Sioux Tribe who can be induced or compelled to
attend school, a house shall be provided, and a teacher competent
to teach the elementary branches of an English education shall be
furnished, who will reside among said Indians, and faithfully
discharge his or her duties as a teacher."
"4. That, for the purpose of carrying out the above provision of
the said treaty during the fiscal year ending June 30, 1906, the
following appropriation was made by the Act of March 3, 1905, § 1,
33 Stat. 1048, 1055:"
" For support and maintenance of day and industrial schools,
including erection and repairs of school buildings in accordance
with article seven of the treaty of April twenty-nine, eighteen
hundred and sixty-eight, which article is continued in force for
twenty years by section seventeen of the Act of March second,
eighteen hundred and eighty-nine, two hundred and twenty-five
thousand dollars."
"The fund so appropriated is generally known as the Sioux Treaty
Fund."
"5. That § 17 of the said Act of March 2, 1889, further provides
as follows:"
" And, in addition thereto, there shall be set apart out of any
money in the Treasury not otherwise appropriated, the sum of three
million of dollars, which said sum shall be deposited in the
Treasury of the United States to the credit of the Sioux Nation of
Indians as a permanent fund, the interest of which at five
percentum per annum, shall be appropriated, under the direction of
the Secretary of the Interior, to the use of the Indians receiving
rations and annuities upon the reservations created by this act, in
proportion to the numbers that shall
Page 210 U. S. 52
so receive rations and annuities at the time that this act takes
effect, as follows: one half of said interest shall be so expended
for the promotion of industrial and other suitable education among
said Indians, and the other half thereof in such manner and for
such purposes, including reasonable cash payments per capita as, in
the judgment of said Secretary, shall, from time to time, most
contribute to the advancement of said Indians in civilization and
self-support."
"This fund of three million dollars is generally known as the
Sioux Trust Fund."
"6. That the interest on the said Sioux Trust Fund is paid
annually by the United States in accordance with the provisions of
the second clause of the Act of April 1, 1880, 21 Stat. 70, c. 41,
reading as follows:"
" And the United States shall pay interest semiannually, from
the date of deposit of any and all such sums in the United States
Treasury at the rate per annum stipulated by treaties or prescribed
by law, and such payments shall be made in the usual manner, as
each may become due, without further appropriation by
Congress."
"7. That the Act of June 7, 1897, § 1, 30 Stat. 62, 79, c. 3,
contains the following provision:"
" 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."
"8. That, in violation of the said provision of the Act of June
7, 1897, the said Francis E. Leupp, Commissioner of Indian Affairs,
as aforesaid, has made or intends to make, for and on behalf of the
United States, a contract with the Bureau of Catholic Indian
Missions of Washington, District of Columbia, a sectarian
organization, for the care, education, and maintenance, during the
fiscal year ending June 30, 1906 of a number of Indian pupils of
the said Sioux Tribe at a sectarian school on the said Rosebud
Reservation, known as the St. Francis Mission Boarding School, and
in the said contract has agreed to pay, or intends to agree to pay,
to the said Bureau of Catholic Indian
Page 210 U. S. 53
Missions of Washington, District of Columbia, a certain rate per
quarter as compensation for every pupil in attendance at the said
school under the said contract, the said payment (which, as the
plaintiffs are informed and believe, will amount to the sum of
$27,000), to be made either from the said Sioux Treaty Fund or from
the interest of the said Sioux Trust Fund, or from both."
"9. That all payments made to the said Bureau of Catholic Indian
Missions of Washington, District of Columbia, under the said
contract, either out of the said Sioux Treaty Fund or out of the
interest of the said Sioux Trust Fund, will be payments for
education in a sectarian school, and will be unlawful diversions of
funds appropriated by Congress, and in violation of the
above-recited provision of the Act of June 7, 1897, and such
payments will seriously deplete the interest of said Sioux Trust
Fund, to the great injury of the plaintiffs and all other members
of the said Sioux Tribe of Indians of the Rosebud Agency, and will
unlawfully diminish the amount of money which should be expended
out of the said Sioux Treaty Fund and the interest of the said
Sioux Trust Fund for lawful purposes, for the benefit of the said
plaintiffs and all other members of the said Sioux Tribe of Indians
of the Rosebud Agency, and will also unlawfully diminish the cash
payments which the said plaintiffs and all other members of the
said Sioux Tribe of Indians of the Rosebud Agency are entitled to
receive per capita out of the interest of the said Sioux Trust
Fund."
"10. That the plaintiffs have never requested nor authorized the
payment of any part of the said Sioux Treaty Fund, or of the
interest of the said Sioux Trust Fund, to the said Bureau of
Catholic Indian Missions of Washington, District of Columbia, or
any other person or organization whatever, for the education of
Indian pupils of the said Sioux Tribe in the said St. Francis
Mission Boarding School, or any other sectarian school whatever,
but have, on the contrary, protested against any use of either of
the said funds, or the interest of the same, for the purpose of
such education. "
Page 210 U. S. 54
"11. That the plaintiffs have no remedy at law."
"Wherefore the plaintiffs ask relief, as follows:"
"I. That a permanent injunction issue against the said Francis
E. Leupp, Commissioner of Indian Affairs, to restrain him from
executing any contract with the said Bureau of Catholic Indian
Missions of Washington, District of Columbia, or any other
sectarian organization whatever, for the support, education, or
maintenance of any Indian pupils of the said Sioux Tribe at the
said St. Francis Mission Boarding School, or any other sectarian
school on the said Rosebud Reservation or elsewhere, and that a
permanent injunction issue against the said Francis E. Leupp,
Commissioner of Indian Affairs, and the said Ethan Allen Hitchcock,
Secretary of the Interior, to restrain them from paying or
authorizing the payment of, either by themselves or by any of their
subordinate officers or agents whatever, any moneys of either the
said Sioux Treaty Fund or the interest of the said Sioux Trust
Fund, or any other fund appropriated, either by permanent
appropriation or otherwise, for the uses of the said Sioux Tribe,
to the said Bureau of Catholic Indian Missions of Washington,
District of Columbia, or to any other sectarian organization
whatever, for the support, education, or maintenance of any Indian
pupils of the said Sioux Tribe at the said St. Francis Mission
Boarding School or any other sectarian school on the said Rosebud
Reservation or elsewhere."
"II. And for a permanent injunction against the drawing,
countersigning, and paying any warrants in favor of the said Bureau
of Catholic Indian Missions of Washington, District of Columbia, or
any other sectarian organization whatever, for the support,
education, and maintenance of any Indian pupils of the said Sioux
Tribe at the said St. Francis Mission Boarding School, or any other
sectarian school on the said Rosebud Reservation or elsewhere,
payable out of any money appropriated, either by permanent
appropriation or otherwise, for the uses of the said Sioux
Tribe."
"III. And for general relief. "
Page 210 U. S. 55
The defendants answered, 1. Admitting
"that the plaintiffs are citizens of the United States, and
members of the Sioux Tribe of Indians, but aver that the said
Indians are only nominal plaintiffs, the real plaintiff being the
Indian Rights Association, who have had this suit brought for the
purpose of testing the validity of the contract hereinafter
referred to."
2. Admitting
"that they are residents of the District of Columbia, and are
sued in this action as Commissioner of Indian Affairs, the
Secretary of the Interior, the Secretary of the Treasury, the
Treasurer of the United States, and the Comptroller of the
Treasury, respectively. These defendants, as officers of the
government of the United States, have no interest in the
controversy raised by the bill except to perform their duties under
the law, and they therefore, as such officers, respectfully submit
the validity of the contract hereinafter referred to, and the
payments thereunder, to the judgment of this honorable court. The
real defendant in interest is the 'Bureau of Catholic Indian
Missions' -- a corporation duly incorporated by chapter 363 of the
Acts of Assembly of Maryland for the year 1894, for the object,
inter alia, of educating the American Indian directly, and
also indirectly, by training their teachers and others, especially
to train their youth to become self-sustaining men and women, using
such methods of instruction in the principles of religion and of
human knowledge as may be best adapted to these purposes."
"As the object of the bill filed is to test the validity of a
contract made between the Commissioner for Indian Affairs and the
said 'Bureau of Catholic Indian Missions,' and the validity of the
payment of the money thereunder, this answer will set forth the
facts and the statutes of the United States under which it is
contended that such contract and the payment of money thereunder
are valid."
This the answer then did at length, and inasmuch as the case was
submitted on bill and answer with certain statements of the
Commissioner of Indian Affairs, it is thought that the answer
Page 210 U. S. 56
should be given substantially in full as it is in the margin.
*
The case was heard on the bill, the answer, and certain
Page 210 U. S. 57
proofs, consisting of replies made by the Commissioner of Indian
Affairs to certain questions asked in behalf of the plaintiffs, and
also of certain statements in the reports of the
Page 210 U. S. 58
Commissioner of Indian Affairs for the years 1895 and 1906,
inclusive, and was argued by counsel, and, upon consideration, an
injunction was decreed from
"paying, or authorizing the payment of, either by themselves or
by any of their subordinate
Page 210 U. S. 59
officers or agents whatever, any moneys of the Sioux Treaty
Fund, referred to in the said bill and answer, appropriated for the
uses of the Sioux Tribe of Indians, to the Bureau of Catholic
Indian Missions at Washington, District of Columbia, for the
support, education,
Page 210 U. S. 60
or maintenance of any Indian pupils of the said Sioux Tribe at
the St. Francis Mission Boarding School on the Rosebud Reservation
in the State of South Dakota, as provided
Page 210 U. S. 61
in the contract referred to in said bill and answer, and that
the defendants be further restrained from drawing, countersigning,
and paying any warrants in favor of the said Bureau of Catholic
Page 210 U. S. 62
Indian Missions, for the purpose aforesaid, payable out of the
said Sioux Treaty Fund; and"
"It is further ordered, adjudged, and decreed that so much of
the prayer of the said bill as asks that an injunction issue
Page 210 U. S. 63
against the defendants, restraining them from paying or
authorizing the payment of any of the interest of the Sioux Trust
Fund to the said Bureau of Catholic Indian Missions under the said
contract, be refused; and "
Page 210 U. S. 64
"It is further ordered and adjudged that each party pay the
respective costs by each incurred."
Each party prayed an appeal from so much of the decree as was
adverse to them. It was stipulated
"that the amount
Page 210 U. S. 65
which was to have been paid from the Sioux Treaty Fund under the
contract in regard to which this suit is brought is approximately
$24,000. "
Page 210 U. S. 66
The case was submitted on record and briefs, and the court
affirmed the decree below in respect of the income of the "trust
fund," and reversed the injunction against the payment from the
"treaty fund," and remanded the case with directions to dismiss the
bill at the cost of the complainants, whereupon the case was
brought to this Court on appeal.
Page 210 U. S. 77
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
We concur in the decree of the Court of Appeals of the District,
and the reasoning by which its conclusion is supported, as set
forth in the opinion of Wright, J., speaking for the court. 35
Wash.L.Rep. 766.
The validity of the contract for $27,000 is attacked on the
ground that all contracts for sectarian education among the Indians
are forbidden by certain provisos contained in the Indian
appropriation acts of 1895, 1896, 1897, 1898. But if those provisos
relate only to the appropriations made by the government out of the
public moneys of the United States, raised by taxation from persons
of all creeds and faiths, or none at all, and appropriated
gratuitously for the purpose of education among the Indians, and
not to "tribal funds," which belong to the Indians themselves, then
the contract must be sustained. The difference between one class of
appropriations and the other has long been recognized in the annual
appropriation acts. The gratuitous appropriation of public moneys
for the purpose of Indian education has always been made under the
heading, "Support of Schools;" whilst the appropriation of the
"treaty fund" has always been under the heading, "Fulfilling Treaty
Stipulations and Support of Indian Tribes," and that from the
"trust fund" is not in the Indian appropriation acts at all. One
class of appropriations relates to public moneys belonging to the
government; the other to moneys which belong to the Indians and
which is administered for them by the government.
Page 210 U. S. 78
From the history of appropriations of public moneys for
education of Indians, set forth in the brief of counsel for
appellees and again at length in the answer, it appears that,
before 1895, the government, for a number of years, had made
contracts for sectarian schools for the education of the Indians,
and the money due on these contracts was paid, in the discretion of
the Commissioner of Indian Affairs, from the "tribal funds" and
from the gratuitous public appropriations. But in 1894, opposition
developed against appropriating public moneys for sectarian
education. Accordingly, in the Indian appropriation act of 1894,
under the heading of "Support of Schools," the Secretary of the
Interior was directed to investigate the propriety of discontinuing
contract schools, and to make such recommendations as he might deem
proper. The Secretary suggested a gradual reduction in the public
appropriations on account of the money which had been invested in
these schools, with the approbation of the government. He said: "It
would be scarcely just to abolish them entirely -- to abandon
instantly a policy so long recognized" -- and suggested that they
should be decreased at the rate of not less than twenty percent a
year. Thus, in a few years they would cease to exist, and during
this time the bureau would be gradually prepared to do without
them, while they might gather strength to continue without
government aid.
Accordingly, Congress introduced in the appropriation act of
1895 a limitation on the use of public moneys in sectarian schools.
This act appropriated under the heading, "Support of Schools,"
"for support of Indian day and industrial schools and for other
educational purposes . . . $1,164,350, . . . Provided, That the
Secretary of the Interior shall make contracts, but only with
present contract schools, for the education of Indian pupils during
the fiscal year ending June 30, 1896, to an extent not exceeding
eighty percent of the amount so used for the fiscal year 1895, and
the government shall, as early as practicable, make provision for
the education of the Indian children in government schools. "
Page 210 U. S. 79
This limitation of eighty percent was to be expended for
contract schools, which were those that, up to that time, had
educated Indians through the use of public moneys, and had no
relation and did not refer to "tribal funds."
In the appropriation act of 1896, under the same heading,
"Support of Schools," the appropriation of public money of
$1,235,000 was limited by a proviso that contracts should only be
made at places where nonsectarian schools cannot be provided for
Indian children, to an amount not exceeding fifty percent of the
amount so used for the fiscal year 1895, and immediately following
the appropriation of public money appears the expression,
"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."
This limitation, if it can be given effect as such, manifestly
applies to the use of public moneys gratuitously appropriated for
such purpose, and not to moneys belonging to the Indians
themselves. In the appropriation act of 1897 the same declaration
of policy occurs as a limitation on the appropriation of public
moneys for the support of schools, and the amount applicable to
contract schools was limited to forty percent of the amount used in
1895. In the act of 1898, the amount applicable to contract schools
was limited to thirty percent, and in the act of 1899, the amount
so applicable was limited to fifteen percent, these words being
added: "This being the final appropriation for sectarian schools."
The declaration of the settled policy of the government is found
only in the acts of 1896 and 1897, and was entirely carried out by
the reductions provided for.
Since 1899, public moneys are appropriated under the heading,
"Support of Schools," "for the support of Indian and industrial
schools, and for other educational purposes," without saying
anything about sectarian schools. This was not needed, as the
effect of the legislation was to make subsequent appropriations for
education mean that sectarian schools were excluded in sharing in
them, unless otherwise provided.
Page 210 U. S. 80
As has been shown, in 1868, the United States made a treaty with
the Sioux Indians, under which the Indians made large cessions of
land and other rights. In consideration of this, the United States
agreed that for every thirty children a house should be provided
and a teacher competent to teach the elementary branches of our
English education should be furnished for twenty years. In 1877, in
consideration of further land cessions, the United States agreed to
furnish all necessary aid to assist the Indians in the work of
civilization, and furnish them schools and instruction in
mechanical and agricultural arts, as provided by the Treaty of
1868. In 1889, Congress extended the obligation of the treaty for
twenty years, subject to such modifications as Congress should deem
most effective, to secure the Indians equivalent benefits of such
education. Thereafter, in every annual Indian appropriation act,
there was an appropriation to carry out the terms of this treaty,
under the heading, "Fulfilling Treaty Stipulations with, and
Support of, Indian Tribes."
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 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. It differs from the "trust fund" in this: the
"trust fund" has been set aside for the Indians, and the income
expended for their benefit, which expenditure required no annual
appropriation. The whole amount due the Indians for certain land
cessions was appropriated in one lump sum by the act of 1889, 25
Stat. 888, c. 405. This "trust fund" is held for the Indians, and
not distributed per capita, being held as property in common. The
money is distributed in accordance with the discretion of the
Secretary of the Interior, but really belongs to
Page 210 U. S. 81
the Indians. The President declared it to be the moral right of
the Indians to have this "trust fund" applied to the education of
the Indians in the schools of their choice, and the same view was
entertained by the Supreme Court of the District of Columbia and
the Court of Appeals of the District. But the "treaty fund" has
exactly the same characteristics. They are moneys belonging really
to the Indians. They are the price of land ceded by the Indians to
the government. The only difference is that, in the "treaty fund,"
the debt to the Indians created and secured by the treaty is paid
by annual appropriations. They are not gratuitous appropriations of
public moneys, but the payment, as we repeat, of a treaty debt in
installments. We perceive no justification for applying the proviso
or declaration of policy to the payment of treaty obligations, the
two things being distinct and different in nature, and having no
relation to each other, except that both are technically
appropriations.
Some reference is made to the Constitution in respect to this
contract with the Bureau of Catholic Indian Missions. It is not
contended that it is unconstitutional, and it could not be.
Robert v. Bradfield, 12 App.D.C. 475;
Bradfield v.
Roberts, 175 U. S. 291. But
it is contended that the spirit of the Constitution requires that
the declaration of policy that the government "shall make no
appropriation whatever for education in any sectarian schools"
should be treated as applicable, on the ground that the actions of
the United States were to always be undenominational, and that
therefore the government can never act in a sectarian capacity,
either in the use of its own funds or in that of the funds of
others, in respect of which it is a trustee; hence, that even the
Sioux Trust Fund cannot be applied for education in Catholic
schools, even though the owners of the fund so desire it. But we
cannot concede the proposition that Indians cannot be allowed to
use their own money to educate their children in the schools of
their own choice because the government is necessarily
undenominational, as it cannot make any law respecting an
Page 210 U. S. 82
establishment of religion or prohibiting the free exercise
thereof. The Court of Appeals well said:
"The 'treaty' and 'trust' moneys are the only moneys that the
Indians can lay claim to as matter of right; the only sums on which
they are entitled to rely as theirs for education, and while these
moneys are not delivered to them in hand, yet the money must not
only be provided, but be expended, for their benefit, and in part
for their education; it seems inconceivable that Congress shall
have intended to prohibit them from receiving religious education
at their own cost if they desire it; such an intent would be one to
prohibit the free exercise of religion amongst the Indians, and
such would be the effect of the construction for which the
complainants contend."
The
cestuis que trustent cannot be deprived of their
rights by the trustee in the exercise of power implied.
Decree affirmed.
*
"3. These defendants admit the allegations of paragraph 3 of the
bill, but the pertinent part of the Sioux Treaty of April 29, 1868,
is only partially stated therein. The full statement of that part
of the Sioux Treaty will be hereinafter made."
"4. These defendants admit the allegations of paragraph 4 of the
bill."
"5. These defendants admit the allegations in paragraph 5 of the
bill, but aver that, though the provision from § 17 of the Act of
March 2, 1889, is correctly stated, as far as it goes, there are
other portions of said act which should be called to the attention
of the court, which is accordingly done hereafter in this
answer."
"6. These defendants admit the allegations in paragraph 6 of the
bill, but aver that, although clause 2 of the Act of April, 1880,
is correctly stated, as far as it goes, there are other provisions
of law to be called to the attention of the court in this
connection, which is accordingly done in the subsequent part of
this answer."
"7. These defendants admit the allegations in paragraph 7 of the
bill, but aver that, although the provision in the Act of June 7,
1897, § 1, is correctly stated as far as it goes, the section is
not fully stated, nor are other parts of the act referred to which
bear directly on the question raised by the bill."
"8. These defendants admit that, within the meaning of the acts
of Congress the 'Bureau of Catholic Indian Missions' is a sectarian
organization, and the industrial school known as the 'St. Francis
Mission Boarding School' on the Rosebud Reservation is a sectarian
school."
"These defendants further say that a contract was made by and
between F. E. Leupp, Commissioner of Indian Affairs, for and on
behalf of the United States of America, and 'the Bureau of Catholic
Indian Missions' for the care, education, and maintenance during
the fiscal year ending June 30, 1906, of 250 Indian pupils of the
Sioux Tribe of Indians at the industrial school known as St.
Francis Mission Boarding School, on the Rosebud Reservation, and by
such contract it was agreed that there should be paid to the
'Bureau of Catholic Indian Missions' twenty-seven dollars ($27) per
quarter for every pupil in attendance, provided there should not be
paid under the contract a sum aggregating more than twenty-seven
thousand dollars ($27,000). This amount, according to the contract,
was to be paid from either or all of the funds of the Sioux Tribe
of Indians, designated technically as 'Interest on Sioux Fund,'
'Education Sioux Nation,' and 'Support of Sioux of Different
Tribes, Subsistence, and Civilization,' all of which, however, are
embraced in the two funds stated in the bill; to-wit, the 'Sioux
Treaty Fund,' described in paragraph 4 of the bill, and 'the Sioux
Trust Fund,' described in paragraph 5 of the bill."
"This contract has been fully performed by the 'Bureau of
Catholic Indian Missions,' and there is due to it thereunder from
the said funds the total amount of twenty-seven thousand dollars
($27,000) if the said contract was legally made. This contract was
approved by the Acting Secretary of the Interior, Mr. Jesse E.
Wilson, by direction of the President of the United States, but, by
the same direction, no payments have been made under it, in order
that the validity of the contract might be determined by the courts
of the United States. The circumstances under which this contract
was entered into and approved are hereinafter more fully
stated."
"These defendants deny the allegation in paragraph 8 of the
bill, that this contract was made in violation of the Act of June
7, 1897, or in violation of any other act of Congress."
"9. These defendants admit that payments under this contract
will be payments for education in a sectarian school, as the term
'sectarian school' is defined in the acts of Congress, but they
deny that said payments will be in violation of the Act of June 7,
1897, and they further deny that such payments will deplete the
interest of said 'Sioux Trust Fund' to the injury of the plaintiffs
and all other members of the said Sioux Tribe of Indians of the
Rosebud Agency, and they further deny that such payments will
unlawfully diminish the amount of money which should be expended
out of the said 'Sioux Treaty Fund,' and the interest of the 'Sioux
Trust Fund' for lawful purposes for the benefit of the plaintiffs
and all other members of the said Sioux Tribe of Indians of the
Rosebud Agency, and they further deny that said payments will also
unlawfully diminish the cash payments which the said plaintiffs and
other members of the said Sioux Tribe of Indians of the Rosebud
Agency are entitled to receive per capita out of the interest of
the said 'Sioux Trust Fund,' as alleged in paragraph 9 of said
bill, all of which will more fully and at large appear by the
detailed statements in this answer hereinafter made."
"10. These defendants admit that the plaintiffs, to-wit, the
three Indians whose names appear as plaintiffs in the caption of
this bill, have never requested or authorized the payment of any
part of the Sioux Treaty or trust fund to the said 'Bureau of
Catholic Indian Missions,' or any other person or organization
whatsoever for the education of Indian pupils of the said Sioux
Tribe in said 'St. Francis Mission Boarding School,' or any other
sectarian boarding school whatever, but, on the contrary, these
defendants admit that the said plaintiffs protest against any use
of either of the said funds, or the interest of the same, for the
purpose of such education, as stated in paragraph 10 of the
bill."
"11. But now these defendants, further answering, say that,
although they have answered in terms all the allegations in all the
paragraphs of the bill contained, it is necessary, for a full
understanding of the rights of the parties, that all the pertinent
facts connected with the use of money under the contract of the
United States for the education of the Indians in contract schools
which are sectarian within the meaning of the acts of Congress
should be stated, so that, in the light of all these facts, only a
few of which are stated in the bill, the legality of the contract
assailed may be judicially determined."
"12. The Catholic missions schools were erected many years ago
at the cost of charitable Catholics, and with the approval of the
authorities of the government of the United States, whose policy it
was then of encourage the education and civilization of the Indians
through the work of religious organizations. Under the provisions
of the act of 1819, ten thousand dollars ($10,000) were
appropriated for the purpose of extending financial help 'to such
associations or individuals who are already engaged in educating
the Indians,' as may be approved by the War Department."
"In 1820, twenty-one schools conducted by different religious
societies were given eleven thousand eight hundred and thirty-eight
dollars ($11,838), and from that date until 1870 the principal
educational work in relation to the Indians was under the auspices
of those bodies, aided more or less by the government. For a long
time the different denominational schools referred to were aided by
the government without any formal contract."
"In 1870, an act of Congress was passed appropriating one
hundred thousand dollars ($100,000) for the support of Indian
schools among Indian tribes not otherwise provided for,
i.e., among tribes not having treaty stipulations
providing funds for educational purposes, and these appropriations
continued until 1876. Contracts were made annually with the mission
schools of the different denominations, payable out of this
appropriation for the education of Indian pupils. As to the tribes
having funds for educational purposes under treaty stipulations,
contracts were also made with the mission schools of the different
denominations payable out of the treaty funds. In 1876, Congress
began the general appropriation 'for the support of industrial
schools and other educational purposes for the Indian tribes,' and
these annual appropriations from the public moneys of the United
States have been made from that time until the present. These
appropriations always were put in the appropriation acts under the
heading 'Support of Schools,' and from these public funds, and, in
the discretion of the Commissioner of Indian Affairs, from the
tribal funds hereinafter explained, were paid the amounts due under
the contracts made by the Commissioner of Indian Affairs, with the
approval of the Secretary of the Interior, with the various
denominational schools for the education of Indian pupils."
"Sometime before 1895, opposition developed to these contracts
with denominational schools, on the ground that the public moneys
of the United States, raised by taxation, should not be used for
education in sectarian institutions, and also for other
reasons."
"Accordingly, there is found in the appropriation act of 1894,
c. 290, 28 Stat. 311, approved August 15, 1894, in that part of the
act appropriating the public moneys for the support of Indian
schools and under the heading 'For Support of Schools,' the
following:"
" That the expenditure of the money appropriated for school
purposes under this act shall be at all times under the supervision
and direction of the Commissioner for Indian Affairs and in all
respects in conformity with such conditions, rules, and regulations
as to the conduct of and methods of instruction and expenditure of
money as may, from time to time, be prescribed by him, subject to
the approval of the Secretary of the Interior."
" Provided. That the Secretary of the Interior is hereby
directed to inquire into and investigate the propriety of
discontinuing contract schools and whether, in his judgment, the
same can be done without detriment to the education of the Indian
children, and that he submit to Congress at the next session the
result of such investigation, including an estimate of the
additional cost, if any, of substituting government schools for
contract schools, together with such recommendations as he may deem
proper."
"In his annual report for the fiscal year ending June 30, 1894,
the Secretary of the Interior said:"
" The contract schools are now the subject of general
discussion. I agree fully with those who oppose the use of public
money for the support of sectarian schools. But this question
should be considered practically. The schools have grown up. Money
has been invested in their construction at a time when they were
recognized as wise instrumentalities for the accomplishment of
good. I do not think it proper to allow the intense feeling of
opposition to sectarian education, which is showing itself all over
the land, to induce the Department to disregard existing
conditions. We need the schools now, or else we need a large
appropriation to build schools to take their place."
" It would scarcely be just to abolish them entirely -- to
abandon instantly a policy so long recognized. My own suggestion is
that they should be decreased at the rate of not less than 20% a
year. Thus, in a few years more, they would cease to exist, and
during this time, the bureau would be gradually prepared to do
without them, while they might gather strength to continue without
government aid. This is the policy which is now controlling the
Department, and, unless it is changed by legislation, it will be
continued. The decrease in the appropriation for the present fiscal
year is 20%."
"Congress, in pursuance of this recommendation, introduced for
the first time in the appropriation act of 1895, c. 188, 28 Stat.
888, a limitation on the use of public money in sectarian
schools."
"The act appropriates, under the heading 'Support of Schools,'
of the public moneys of the United States"
"for support of Indian day and industrial schools and for other
educational purposes . . . $1, 164,350. . . ."
" Provided, That the Secretary of the Interior shall make
contracts, but only with present contract schools, for the
education of Indian pupils during the fiscal year ending June 30,
1896, to an extent not exceeding 80% of the amount so used for the
fiscal year 1895, and the government shall, as early as
practicable, make provision for the education of Indian children in
government schools."
"Congress, in the Indian appropriation act of 1896, c. 398,
appropriated from the public moneys of the United States, under the
head 'Support of Schools,' 'for support of Indian day and
industrial schools and for other educational purposes, . . .
$1,235,000, . . . ' and then, as a qualification upon the
appropriation, and following immediately thereupon, under the same
heading, 'Support of Schools,' occurs the following language in the
act:"
" 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. Provided, That the Secretary of
the Interior may make contracts with contract schools,
apportioning, as near as may be, the amount so contracted for among
schools of various denominations, for the education of Indian
pupils during fiscal year 1897, but shall only make such contracts
at places where nonsectarian schools cannot be provided for such
Indian children, and to an amount not exceeding 50% of the amount
so used for the fiscal year 1895."
"Congress, in the Indian appropriation act of 1898, c. 545,
appropriated from the public moneys of the United States, under the
head of 'Support of Schools,' for"
"support of Indian day and industrial schools, and for other
educational purposes . . . $1,100,000 . . . Provided, That the
Secretary of the Interior may make contracts with contract schools,
apportioning, as near as may be, the amount so contracted for among
other schools of various denominations, for the education of Indian
pupils during the fiscal year 1899, but shall only make such
contracts at places where nonsectarian schools cannot be provided
for such Indian children, and to an amount not exceeding 30% of the
amount so used for the fiscal year 1895."
"Congress, in the Indian appropriation act of 1899, c. 324,
appropriated from the public moneys of the United States, under the
head of 'Support of Schools,'"
"for support of Indian day and industrial schools, and for other
educational purposes, . . . $1,100,000 . . . Provided, That the
Secretary of the Interior may make contracts with contract schools,
apportioning as near as may be the amount so contracted for among
schools of various denominations, for the education of Indian
pupils during the fiscal year 1900, but shall only make such
contracts at places where nonsectarian schools cannot be provided
for such Indian children, and to an amount not exceeding 15% of the
amount so used for the fiscal year 1895, the same to be divided
proportionately among the said several contract schools, this being
the final appropriation for sectarian schools."
"The several Indian annual appropriation acts since 1899,
to-wit, beginning with 1900 to the present time, contain under the
head of 'Support of Schools' simply a general appropriation of
public moneys 'for the support of Indian and industrial schools,
and for other educational purposes,' without any proviso in any of
them respecting contracts with sectarian schools, or without any
statement in any of them of the policy of the government with
respect to sectarian schools."
"It will be observed that the phrase"
"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,"
"which is cited and relied on in paragraph 7 of the bill, is
found only in the Indian appropriation acts of 1896 and 1897, and
in no prior or subsequent acts of Congress; that in these two acts,
it is a limitation on the appropriation of public moneys, and is
found only under the heading 'Support of Schools,' under which the
money of the United States is appropriated for support of Indian
schools, and does not occur in any other part of these acts of
Congress. These defendants therefore submit that this statement of
policy, insofar as it can now have any legal effect, was intended
only to apply to appropriations of public moneys for education in
sectarian schools, and inasmuch as the appropriation of public
moneys for these purposes was being reduced from year to year by a
percentage which would make the last appropriation to be for the
fiscal year ending June 30, 1900, there was no necessity for
repeating the phrase containing the policy of the government in any
acts after 1897. The cessation of the appropriation from the public
moneys for education in the sectarian schools was treated as the
accomplishment of the purpose contained in the statement of the
policy found in the acts of 1896 and 1897."
"The above paragraph contains all the matter pertinent to the
appropriation of public moneys for the support of education in
sectarian schools. These appropriations ceased with the Indian
appropriation act of 1899, have never been made since, nor is
anyone asking that they should be made, or that any public moneys
of the United States raised by taxation should be employed for such
purposes."
"13. But these defendants, further answering, say that, entirely
separate and apart from the public moneys which, as stated in
paragraph 12 of this answer, were appropriated until 1899 for
education in sectarian schools, there are other funds, known as
'tribal funds,' which may be applied for these purposes. These
funds, these defendants respectfully submit, are not public moneys,
but really belong to the Indians themselves, and it is the purpose
of this paragraph of this answer to give a general account of these
funds, and a particular account of the 'tribal funds' of the Sioux
Indians, which are directly in controversy in this case, will be
given in the next paragraph."
"These 'tribal funds' may be roughly grouped into two classes:
(a) Where cessions of land or other property have been made by the
Indians, and, in consideration thereof, a certain sum of money is
deposited in the Treasury of the United States, which is used for
the Indians in the discretion of the Secretary of the Interior.
These are called 'trust funds.' (b) Where cessions of land or other
property have been made by the Indians under treaties, and in
consideration therefor the government of the United States has, by
treaty, bound itself to furnish money for the civilization and
education of the Indians. These are called 'treaty funds.'"
"Examples of these funds are as follows:"
"Menominee Fund: Interest, $7,651.96 per annum (Treaty of 1848,
Art. 5, 9 Stat. 952)."
"Menominee Log Fund: Interest, $76,313.98 per annum (Act of
March 22, 1882, 22 Stat. 30, c. 46; Act of June 12, 1890, 26 Stat.
146, c. 418)."
"Osage fund: Interest, $416,371.95 per annum (Treaty 1865, Art.
2, 14 Stat. 687; Act July 15, 1870, 16 Stat. 362, c. 296; Act of
June 16, 1880, 21 Stat. 292, c. 251)."
"Osage fund: Interest on $69,120, 5% (Treaty Jan. 2d 1825, for
educational purposes per Senate Resolution, Jan. 9, 1838, 7 Stat.
242)."
"The yearly amounts provided for the Indians under treaties are
annually appropriated in the Indian appropriation acts, not in that
part of the act under the title 'Support of Schools' which
appropriated the public money of the United States, but under the
heading 'Fulfilling Treaty Stipulations with, and Support of,
Indian Tribes,' for, although formally appropriated, the moneys are
not regarded as the moneys of the United States, but moneys
belonging to the Indians, due to them under the treaties, in
consideration of their cession of lands and other rights."
"But inasmuch as, according to Indian custom, the property is
held in common, and inasmuch as the Indians are regarded as wards
of the nation, the money is not distributed per capita, but is
expended for them, and for their benefit and advantage, under the
discretion of the Secretary of the Interior. For some of the laws
conferring this discretion,
see 14 Stat. 687; 16 Stat.
362, c. 296; 21 Stat. 292, c. 251; 22 Stat. 30, c. 46; 25 Stat.
895, c. 405; 26 Stat. 146, 344."
"14. As to the 'Sioux Funds' directly in controversy, the facts
are as follows:"
"On March 2, 1889, the act of Congress of 1889, c. 405, was
approved. This was entitled, 'An Act to Divide a Portion of the
Reservation of the Sioux Nation of Indians in Dakota into Separate
Reservations, and to Secure the Relinquishment of the Indian Title
to the Remainder.' Under this act, the Indians made certain
cessions of land, and, in partial consideration therefor, it was
provided in § 17 of the act as follows:"
" And, in addition thereto, there shall be set apart out of any
money in the Treasury not otherwise appropriated the sum of three
millions of dollars, which said sum shall be deposited in the
Treasury of the United States to the credit of the Sioux Nation of
Indians as a permanent fund, the interest on which at five
percentum per annum, shall be appropriated under the direction of
the Secretary of the Interior to the use of the Indians receiving
rations and annuities upon the reservations created by this act, in
proportion to the numbers that shall so receive rations and
annuities at the time this act takes effect, as follows: one half
of said interest shall be so expended for the promotion of
industrial and other suitable education among said Indians, and the
other half . . . for such purposes, including reasonable cash
payments per capita, as, in the judgment of said Secretary, shall,
from time to time, most contribute to the advancement of said
Indians in civilization and self-support."
"This is the fund called the 'Sioux Trust Fund' in the fifth
paragraph of this bill."
"The method of the payment of the interest on this fund was
changed in 1880 by the act of 1880, chapter 41, as follows:"
" The Secretary of the Interior be, and he is hereby, authorized
to deposit in the Treasury of the United States, any and all sums
now held by him, or which may hereafter be received by him, as
Secretary of the Interior and trustee of various Indian tribes, on
account of the redemption of United States bonds or other stocks
and securities belonging to the Indian trust fund, and all sums
received on account of sales of Indian trust lands, and the sales
of stocks lately purchased for temporary investment, whenever he is
of the opinion that the best interests of the Indians will be
promoted by such deposits in lieu of investments, and the United
States shall pay interest semiannually from the date of deposit of
any and all such sums in the United States Treasury at the rate per
annum stipulated by treaties, or prescribed by law, and such
payments shall be made in the usual manner, as each may become due,
without further appropriation by Congress."
"This provision is partially cited in the bill in paragraph
6."
"15. Under a treaty between the United States and different
tribes of Sioux Indians, made on April 29, 1868 (15 Stat. 635),
these Indians made large cessions of land and other rights, and, in
partial consideration therefor, the United States agreed with them
as follows:"
" Art. VII. In order to insure to civilization of the Indians
entering into this treaty, the necessity of education is admitted,
especially of such of them as are or may be settled on said
agricultural reservations, and they therefore pledge themselves to
compel their children, male and female, between the ages of six and
sixteen years, to attend school, and it is hereby made the duty of
the agent for said Indians to see that this stipulation is strictly
complied with, and the United States agrees that, for every thirty
children between said ages, who can be induced or compelled to
attend school, a house shall be provided and a teacher competent to
teach the elementary branches of an English education shall be
furnished, who will reside among said Indians and faithfully
discharge his or her duties as a teacher. The provisions of this
article to continue for not less than twenty years."
"By the Act of Congress of February 28, 1877, c. 72 (19 Stat.
254-256), ratifying an agreement with bands of Sioux Nation, in
consideration of further land cessions, it was provided:"
" In consideration of the foregoing cession of territory and
rights, and upon full compliance with each and every obligation
assumed by the said Indians, the United States does agree to
provide all necessary aid to assist the said Indians in the work of
civilization, to furnish to them schools and instruction in
mechanical and agricultural arts, as provided for by the treaty of
1868."
"By the seventeenth section of the act of 1889, c. 405 (25 Stat.
894), it was provided:"
" that the 7th article of the said Treaty of April 29, 1868,
securing to said Indians the benefits of education, subject to such
modifications as Congress shall deem most effective to secure to
said Indians equivalent benefits of such education, shall continue
in force for twenty years from and after the time this act shall
take effect."
"By the act of 1905, c. 1479 (33 Stat. p. 1048), entitled
--"
" An Act Making Appropriations for Current and Contingent
Expenses of the Indian Department, and for Fulfilling Treaty
Stipulations with Various Indian Tribes for the Fiscal Year Ending
June 30th, 1906, and for Other Purposes"
"it was provided under the heading 'Fulfilling Treaty
Stipulations with, and Support of, Indian Tribes' as follows:"
" For support and maintenance of day and industrial schools,
including erection and repairs of school buildings in accordance
with Art. 7 of the Treaty of April 29th, 1868, which article is
continued in force for twenty years by sec. 17 of the Act of March
2, 1889, $225,000."
"A similar appropriation has been annually made for many years
back in the Indian appropriation acts."
"This is the 'treaty fund' in dispute, referred to in the 4th
paragraph of the bill."
"These defendants respectfully represent that this 'treaty fund'
does not differ from the 'trust fund,' in the main point that it is
money belonging to the Indians, and not public money of the United
States."
"Both funds arise from cessions made by the Indians of lands and
other rights. The one is a specific sum of which the United States
is a trustee for the Indians; the other is an obligation payable in
installments under the agreement of a treaty."
"These defendants therefore respectfully submit that as to both
of these funds there is nothing to prevent the Secretary of the
Interior from using them in his discretion, and especially from
using them as the real owners thereof desire and request."
"16. Prior to 1900, the sectarian schools were aided by
appropriation from the public moneys, and, in the discretion of the
Secretary of the Interior, from the tribal funds just
described."
"In 1900, not only the public appropriations ceased, as has been
heretofore shown, but all aid from the tribal funds also ceased,
except as to the Osage treaty and trust funds hereinbefore referred
to. At the request of the Osage Indians, their treaty funds have
been annually and uninterruptedly applied to the Catholic mission
schools under annual contract with the Commissioner of Indian
Affairs, approved by the Secretary of the Interior. With the
exception of the Osage funds, no 'tribal funds' were applied to
education in denominational schools from 1900 to 1904."
"In the meantime, application was made to President McKinley by
the 'Bureau of Catholic Indian Missions' for the revocation of the
'Browning ruling' and the use of 'tribal funds' for the education
of the Catholic Indian children in Catholic schools."
"On September 30, 1896, the then commissioner of Indian Affairs,
D. M. Browning, in answer to the question, 'whether parents of
Indian children have the right to decide where their children shall
attend school,' said:"
" It is your duty first to build up and maintain the government
day schools, as indicated in your letter, and the Indian parents
have no right to designate which school their children shall
attend."
"This was the 'Browning ruling.' It was ordered abrogated by
President McKinley in 1901, and some eight months after, to-wit,
January 17, 1902, it was formally abrogated by the Commissioner of
Indian Affairs with the approval of the Secretary of the
Interior."
"The question of the use of the 'tribal funds' was referred by
President McKinley to the Secretary of the Interior, and by him to
the Commissioner of Indian Affairs, who decided adversely to the
appropriation on February 12, 1901."
"17. On or about January 1, 1904, the matter of the application
for the use of 'tribal funds' for the education of Indian children
in mission schools was brought to the attention of President
Roosevelt by the 'Bureau of Catholic Indian Missions,' who urged
that the Indians should be allowed to use their own money in
educating their own children in the schools of their choice."
"President Roosevelt took up the matter on January 22, 1904 at a
meeting in the executive office of the White House at which were
present the Attorney General (Mr. Knox) and Mr. Russell, of the
Department of Justice, and Secretaries Hitchcock, Cortelyou, and
Wilson, and Postmaster General Payne. The President was legally
advised that, notwithstanding the declaration of Congressional
intent not to make appropriations in the future of public moneys of
the American people for sectarian institutions, the previous laws
giving the Secretary of the Interior discretion to use certain
moneys of the Indians, held in trust, in any way that he might see
fit, including assistance to sectarian schools, were not repealed,
and consequently his discretion remained."
"The President decided that, inasmuch as the legal authority
existed to grant the request of the Indians, they were entitled, as
a matter of moral right, to have the moneys coming to them used for
the education of their children at the schools of their
choice."
"A full and detailed statement of the action of the President in
1904 is set forth in his letter of February 3, 1905, which, with
its enclosure, is herein set out at length:"
"
* * * *"
"This new request was submitted to the Department of Justice,
and the Department decided, as set forth in the accompanying
report, that the prohibition of the law as to the use of public
moneys for sectarian schools did not extend to moneys belonging to
the Indians themselves, and not to the public, and that these
moneys belonging to the Indians themselves might be applied in
accordance with the desire of the Indians for the support of the
schools to which they were sending their children. There was, in my
judgment, no question that, inasmuch as the legal authority existed
to grant the request of the Indians, they were entitled, as a
matter of moral right, to have the moneys coming to them used for
the education of their children at the schools of their choice.
Care must be taken, of course, to see that any petition by the
Indians is genuine, and that the money appropriated for any given
school represents only the
pro rata proportion to which
the Indians making the petition are entitled. But if these two
conditions are fulfilled, it is, in my opinion, just and right that
the Indians themselves should have their wishes respected when they
request that their own money -- not the money of the public -- be
applied to the support of certain schools to which they desire to
send their children. The practice will be continued by the
Department unless Congress should decree to the contrary, or, of
course, unless the courts should decide that the decision of the
Department of Justice is erroneous."
"This communication enclosed a letter from the Attorney General
setting forth at length the grounds for the conclusion"
"that, notwithstanding the declaration of Congressional intent
not to make appropriations in the future of public moneys of the
American people for sectarian institutions, the previous laws
giving the Secretary of the Interior discretion to use certain
moneys of the Indians, held in trust, in any way that he might see
fit, including assistance to sectarian schools, were not repealed,
and consequently his discretion remained. For some of these laws,
see 14 Stat. 687; 16 Stat. 362, c. 296; 21 Stat. 292, c.
251; 22 Stat. 30, c. 46; 25 Stat. 895, c. 405; 26 Stat. 146,
344."
"
* * * *"
"Accordingly, the following contracts were made by the United
States with various sectarian organizations for the education of
Indian children from 'tribal funds' for the fiscal year ending June
30, 1906:"
---------------------------------------------------------------------
Name of School Denomination Pupils Tribe Rate per Total per
annum year
---------------------------------------------------------------------
St. Joseph Catholic 170 Menominee $108 $ 18,360
St. Louis Catholic 75 Osage 125 9,375
St John Catholic 65 Osage 125 8,125
Immaculate
Conception Catholic 65 Sioux 108 7,020
Holy Rosary Catholic 200 Sioux 108 21,600
St. Francis Catholic 250 Sioux 108 6,480
St. Labore Catholic 60 Northern
Cheyenne 108 6,480
St. Mary Catholic 60 Quapaw 50 500
Zoa's Boarding
School Lutheran 40 Menominee 108 4,320
--- --------
Total 935 $102,780
---------------------------------------------------------------------
"In June, 1905, the Commissioner of Indian Affairs was notified
by the 'Bureau of Catholic Indian Missions' that it was prepared to
care for and educate during the fiscal year ending June 30, 1906,
Indian pupils at the several schools carried on by it among the
Sioux, Menominee, Osage, Northern Cheyenne, and Quapaw tribes, upon
the same terms and conditions as stipulated in its contracts for
carrying on these schools for the fiscal year 1905, and requested
that it be granted a renewal of the contracts in question, payable
in each case from the trust and treaty funds of the tribe among
which the school is located, for the twelve months beginning July
1, 1905."
"To this application the Commissioner replied that the request
would receive careful consideration; that the applicability of the
trust and treaty funds had been submitted to the proper authorities
for a definite determination, and indicated how petitions should be
prepared, and the safeguards under which the signatures of the
Indians should be made. Petitions were duly filed, signed under all
the safeguards, by the Catholic Indians."
"In the meantime, the schools were opened at the usual time and
instruction given to the required number of pupils, in the
confidence that the contracts applied for would be renewed."
"The Attorney General not having rendered any decision in the
matter, the President, by a letter dated December 23, 1905,
addressed to the Commissioner of Indian Affairs, after quoting a
part of his letter of February 3, 1905, hereinbefore referred to,
said:"
" There are two kinds of Indian funds involved in this matter.
One is the trust fund, which requires no appropriation by Congress,
and which clearly is to be administered as the Indians themselves
request. As regards this fund, you will treat it on the assumption
that the Indians have the right to say how it shall be used, so far
as choosing the schools to which their children are to go is
concerned, and each Indian is a tribe to be credited with his
pro rata share of the funds, which you will apply for him
to the government school, where that is the school used, or to the
church school, where that is the school used, instead of
segregating any portion of the fund for the support of the
government school, and prorating the balance."
" The other fund consists of moneys appropriated by Congress in
pursuance of treaty stipulations. As to these moneys, it is
uncertain as to whether or not the prohibition by Congress of their
application for contract schools applies -- that is, whether or not
we have the power legally to use these moneys as we clearly have
the power to use the trust funds. It appears that certain of the
contract schools are now being run in the belief that my letter,
quoted above, authorized the use of the treaty funds. It would be a
great hardship, in the absence of any clearly defined law on the
subject, to cut them off at this time arbitrarily, and inasmuch as
there is a serious question involved, I direct that, until the
close of the fiscal year, these schools be paid for their services
out of the moneys appropriated by Congress, in pursuance of treaty
obligations, on the same basis as the schools paid out of the trust
funds -- always exercising the precautions directed in my letter of
February 3d 1905, 'to see that any petition by the Indians is
genuine, and that the money appropriated for any given school
represents only the
pro rata proportion to which the
Indians making the petition are entitled.' But no new contracts are
to be entered into for such payments after the close of the present
fiscal year unless there is authorization by Congress or some
determination by the courts."
"Accordingly, the contracts for the fiscal year ending June 30,
1905, hereinafter set forth, were renewed for the fiscal year
ending June 30, 1906, the new contracts being executed as of July
1, 1905."
"The services have been performed under all these contracts and
the money paid in all of them, except under the contract with the
'Bureau of Catholic Indian Missions' for the education of 250
Indian pupils at St. Francis Mission School on the Rosebud
Reservation. The payment of the $27,000 which is due under this
contract has been withheld pending the decision by this honorable
court as to validity of the contract and the appropriation of
tribal funds for such purposes."
"18. And these defendants, specifically answering as to the
contract in dispute, say:"
"That it is a contract made between F. E. Leupp, Commissioner of
Indian Affairs, for and on behalf of the United States of America,
and the 'Bureau of Catholic Indian Missions,' executed as of July
1, 1905, for the care, education, and maintenance of 250 Indian
pupils at the St. Francis Mission School, Rosebud Reservation,
South Dakota at $108 per capita, per annum, amounting to $27,000.
The contract was approved by Jesse E. Wilson, Acting Secretary of
the Interior."
"Application for the contract was made by the 'Bureau of
Catholic Indian Missions' on June 6, 1905."
"On March 26, 1906, a petition duly signed and genuinely signed
by 212 members of the Sioux Tribe of Indians of the Rosebud Agency,
South Dakota, was filed, asking that the said contract applied for
be entered into with the bureau."
"The payments under the contract were to be made from the 'Sioux
Trust Fund' and the 'Sioux Treaty Fund,' as hereinbefore described,
in the discretion of the Commissioner of Indian Affairs."
"There are 4,986 Indians on the rolls of the Rosebud
Reservation, and the amount of tribal income applicable to
education, in the discretion of the Commissioner, is- -"
"$250,047.90, or a per capita of $50.15."
"The 212 petitioners represent 669 shares, or $33,550.35, and of
this they ask that $27,000 be used for the education of their
children in St. Francis Mission School. The following table will
represent the
pro rata shares in these tribal funds, and
the per capita shares:"
4,986 Indians, $250,047.90 Tribal funds, $50.15 per capita
669 shares
Petitions, 33,550.35 Tribal funds, $50.15 per capita
4,317 Petitions (non-
petitions)
----- -----------
4,986 $250,047.90 Tribal funds, $50.15 per capita
"The cost of the government school for the fiscal year was about
$76,830. Since the shares of the petitioning Indians amount to
$33,550.35, and the sum asked for the school is only $27,000 out of
this share, and the petitioners were genuinely signed, the terms of
the executive order of President Roosevelt of February 3d 1905,
e.g., 'to see that any petition by the Indians is genuine,
and that the money appropriated for any given school represents
only the
pro rata proportion to which the Indians making
the petition are entitled,' have been strictly carried out."
"The services under this contract have been fully performed to
the satisfaction of the Commissioner of Indian Affairs, and the
twenty-seven thousand dollars ($27,000) agreed to be paid is due
and payable, if this honorable court determines that it is legally
payable out of the 'Sioux Trust Fund' and the 'Sioux Treaty
Fund.'"
"
* * * *"