prosecutions, on the other hand, involve public rights and duties. The whole community "in its social and aggregate capacity" is affected. The social end is to prevent similar offenses. For these reasons, the court declared, the State has a care in the outcome of a criminal trial. It will not permit the individual to exercise his discretion in surrendering his liberty and perhaps his life. (See Mich. Law Review, 1926-27, p. 708.)

Thus in New York and other States the defendant can not waive a jury, whereas in the United States district courts in those same States, a jury may under all circumstances be waived, if this bill passes.

If Congress is to declare the right of waiver, at least, let certain safeguards be thrown about the process. Surely the defendant should understand fully the nature of the waiver. Attempts in committee to amend the bill to provide that the jury could be waived only upon advice of counsel failed. Many defendants are illiterate and appear without counsel. Prohibition has brought many poor and lowly and ignorant defendants into the Federal courts. Their rights are just as sacred as those of the rich and intelligent. A jury should not be waived without the advice of a lawyer, whom, if necessary, the court shall assign to the defendant. This requirement would not impair the bill in the slightest degree, but would insure fullest justice to the illiterate defendant.

While there may be some reason for invoking the right of waiver in petty or inconsequential cases, like misdemeanor, yet the rule should be different in capital and felony cases. The bill as presented brooks no discrimination. All cases are treated alike.

The court in the case of Commonwealth ex rel Ross v. Eagan (261 Pa. 251) was careful to point out that while the defendant should be permitted to waive the right to trial by jury when charged with any of the lesser offenses, yet the rule should be different and no permission to waive the right to jury trial should be given him when the charge involves a capital offense.

In the Patton case, supra, the Supreme Court held:

In affirming the power of the defendant in any criminal case to waive a trial by a constitutional jury and submit to trial by a jury of less than 12 persons, or by the court, we do not mean to hold that the waiver must be put into effect at all events. That perhaps sufficiently appears already. Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of Government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.

Even in the Patton case, supra, the Supreme Court recognized the distinction between grades of criminal offenses, a distinction which the instant bill ignores.

This bill may be construed as another attempt at whittling away a right for which we have dearly paid. The history of the struggle for trial by jury is the recital of the struggle for liberty and freedom from tyranny. We should hesitate long before we weaken in the slightest respect the right of trial by jury. That right is so all important that waiver of it under any but most exceptional circumstances is tantamount to a weakening of it.

F. LAGUARDIA.
EMANUEL CELLER.

AUTHORIZE THE CREATION OF INDIAN TRUST ESTATES

MAY 28, 1930.-Referred to the House Calendar and ordered to be printed

Mr. LETTS, from the Committee on Indian Affairs, submitted the following

REPORT

(To accompany H. R. 6979]

The Committee on Indian Affairs, to whom was referred the bill (H. R. 6979) to authorize the creation of Indian trust estates, and for other purposes, having considered the same, report thereon with a recommendation that it do pass with the following amendments: Page 2, line 4, strike out all after the colon, and all of lines 5, 6, 7, and all of line 8 up to and including the colon.

Page 2, line 8, strike out "further".

Page 3, line 11, after "annual" insert "itemized".

Page 4, line 21, strike out "however,".

Page 4, line 24, after the period insert:

Provided further, That all trusts created hereunder shall be examined semiannually by the Comptroller of the Currency, who shall make an itemized report to the Secretary of the Interior of such examinations.

This legislation is suggested by the Indian Bureau. The necessity for it arises out of the fact that we now have quite a number of Indians who have to their credit large amounts of money. The bureau is not equipped to do an investment business. When it was created, nobody supposed that the time would come when it would be called upon to invest large sums of money for the Indians. It has developed that the fiscal affairs of the wealthy Indians consume a large part of the time of the superintendents. The handling of investments for rich Indians has placed upon the Indian Bureau a mass of detail and a corresponding responsibility to preserve and protect the funds of rich Indians. The efforts of that bureau should more properly be directed to help the Indian who has no wealth and who is without education, without means of support and, in some intances, destitute.

This legislation will permit an incompetent Indian, with the approval of the Secretary of the Interior, to avail himself of the advan

HR-71-2-VOL 4- -24

tages of trust methods. Through this legislation investment of the funds of rich Indians may be made and handled through banks and trust companies authorized by law to act as fiduciaries in just the same way as any competent person might do for himself. The bill provides that an incompetent Indian, may, under rules and regulations to be prescribed by the Secretary of the Interior, invest his restricted funds through the medium of a bank or trust company. Upon the expiration of a trust so created, the funds will by law revert to the custody of the Secretary of the Interior as restricted individual Indian funds.

Under existing law such a trust may be created only after the Secretary of the Interior has removed the restrictions from the Indian funds. The provisions of this bill would permit such a trust without removing the restrictions. This bill would invest large discretionary power in the Secretary of the Interior who is charged with the administration of the law. It will be for him to say whether a given bank or trust company is acceptable as a trustee. He will have full authority to inspect the securities and to compel accountings.

There are large sums of money belonging to these rich Indians which lie idle in the Treasury of the United States because the Secretary of the Interior is not suitably equipped to make necessary and proper investments for the Indians.

Under existing law, some five or six trusts have been established, but it is thought that they are not suitably safeguarded. If a court should set aside a trust so created the funds go to the Indian without restriction and subject to all manner of unconscionable demands. Such trusts can now only be created after the Secretary of the Interior has removed the restrictions thereon. They immediately become subject to taxation and subject to the debts of the Indian. Under this bill the restrictions will not be removed from the funds invested. They will not be subject to taxation during the restricted period and will not be subject to the debts of the Indian.

It is believed that this legislation will be beneficial to the restricted rich Indian and will relieve the Indian Bureau of a burden of detail. The time and effort of the bureau will be conserved in the interest of poor and needy Indians.

Following is the letter of transmittal of the Secretary of the Interior and the favorable memorandum from the Commissioner of Indian Affairs:

Hon. SCOTT LEAVITT,

DEPARTMENT OF THE INTERIOR,
Washington, December 6, 1929

Chairman Committee on Indian Affairs,

House of Representatives.

MY DEAR MR. LEAVITT: I have the honor to transmit the proposed bill authorizing the creation of trust estates of restricted Indian funds, which provides for reversion to the custody of the Secretary of the Interior in case the trust is for any reason annulled.

I inclose also a memorandum from the Commissioner of Indian Affairs on this subject, in which I concur. I respectfully ask your careful examination of this proposed legislation, which I believe to be desirable.

Very truly yours,

RAY LYMAN WILBUR.

Memorandum for the Secretary.

DEPARTMENT OF THE INTERIOR,
OFFICE OF INDIAN AFFAIRS,
Washington, December 6, 1929.

There is transmitted herewith a draft of a bill to authorize the creation of Indian trust estates, and for other purposes.

The Attorney General in his opinion of October 5, 1929, relative to the power and authority of the Secretary of the Interior in regard to the creation of trusts by Indians through agreements with trust companies and in regard to the removal of restrictions from Indian funds for the purpose of the trust as provided for in such agreements, held in effect that under existing law the Secretary of the Interior lacks authority to create or approve the creation of private trusts with restricted Indian funds, or to transfer restricted Indian funds to agencies outside the department for the purpose of such trusts. It was indicated, however, that the Secretary of the Interior has authority to remove restrictions from certain Indian funds and that upon removal of such restrictions and the release of the fund to the Indian, such Indian may then use the fund as he sees fit and if he so desires may create with the released funds a private trust by agreement with a trust company.

In view of the Attorney General's opinion and with due regard to the best interests of the restricted Indians having large estates, we have given the matter consideration with a view of suggesting that Congress be requested to enact legislation providing that such trusts may be created from restricted Indian funds and other property with appropriate limitations and continued supervision and under such terms, conditions, rules, and regulations as the Secretary of the Interior may prescribe.

Great pressure is brought by parties interested in separating the Indians from their money, and in many cases by Indians themselves, upon the superintendents of the Indian agencies and upon the department to purchase various and sundry things with Indian moneys or to make loans on all kinds and classes of securities and even to pay out the money without restrictions and to obtain investment of the Indian moneys in all kinds of enterprises.

We believe that in the cases of the rich Indians of the restricted class, the creation, out of their restricted funds and property, of trust estates in the hands of well established and competent trust companies or corporations authorized by law to act as fiduciaries or trustees for the benefit of the particular Indians, their heirs or other beneficiaries designated by them, is in the line of sound policy and good business, and to the best interests of these rich Indians belonging to the restricted class. It is believed that the creation of such trust estates by proper contracts or agreements with such trust companies or corporations will make for the better conservation and protection of the estates of the Indians covered by the trusts.

We are convinced that it would be of substantial benefit to the wealthy Indians of the restricted class to permit them under certain circumstances to create, subject to approval of the Secretary of the Interior, trust estates for the benefit of themselves, their families, or other beneficiaries designated by them, such trusts to be created from their restricted funds or other property and to be under the continued supervision of the department as restricted property.

It is believed that for the purpose, legislation along the lines of the inclosed draft of a bill should be obtained, and that the enactment of such legislation will be to the best interests of the restricted Indians and tend to the better conservation and protection of their estates.

The draft of a bill submitted herewith is, with some modifications, very similar to S. 4222, Seventieth Congress, which passed the Senate but failed in the House of Representatives.

In view of the above, it is hereby suggested that the inclosed draft of a bill be transmitted to Congress with recommendation that it be introduced in Congress and enacted. C. J. RHOADS, Commissioner.