Opinion of the Court

The record to warrant a recovery must not conclude with a mere showing that the provisions of the act of 1889 were not strictly complied with. The act of 1889 in its preamble discloses its purpose, and assuredly Congress was not compelled to permit a large population of tribal Indians to stand in need of the facilities of relief and civilization, when the tribe itself possessed ample and sufficient funds to supply the same. Under plaintiffs' contention the status of the tribe remained in statu quo for at least a half century if Congress in the meantime had refused appropriations.

Per capita distributions were all made to the Indians from the funds in accord with the following acts of Congress: 39 Stat. 135; 42 Stat. 221; 43 Stat. 1; 43 Stat. 798; 44 Stat. 7. Manifestly it was essential to make them. Changing economic and social conditions obviously inspired the legislation which altered the provisions of the act of 1889. The present generation of Indians, as well as many who have passed on, accepted these benefits and they were beneficial, and they did not then object that the so-called trust fund was being unlawfully depleted. It was not until after all these benefits had been fully realized by the tribe that solicitude was manifested for the designated remaindermen.

The plaintiffs contest an expenditure made by the Government for a drainage survey of ceded lands, and repeating the provisions of the act of 1889 point out that no provision is found therein authorizing this proceeding. It is, of course, true that no express provision authorizing the survey is found in the act. It was accomplished under congressional authority, and what was done inured to the Indians.

The extent of the funds to be realized from the sale of surplus lands was dependent upon their classification. Swamp lands if susceptible to drainage would enhance in value, and what the Government did was for the express benefit of the tribe. To bring the swamp areas into a state of cultivation was in direct accord with the intent of the act of 1889 which by express terms contemplated, if it did not express, an intent to bring the estate to the point of its greatest value.

See page 47.

Opinion of the Court

Out of the fund arising from the act of 1889 there was expended from 1905 to 1927 the total sum of $8,758,030.59. For the relief and civilization of the Indians for the years 1912 to 1927 the Interior Department expended approximately $2,526,267.74, and the per capita distributions during this same period totaled $5,684,341.60, a total disbursement of $8,210,609.34 either authorized by acts of Congress or disbursed in accord with the provisions of the act of 1889.

The plaintiffs subtract $8,210,609.34 from $8,758,030.59, which leaves $547,421.25, and upon this calculation insist that $547,421.25 was taken from the Indian fund without any authority either from Congress or the provisions of the act of 1889. No charge is made that this sum was disbursed for any other purpose than for the tribe's benefit, and authority must exist for the disbursements made.

The defense, and it is a conclusive one, discloses, and the record sustains the fact, that the report of the Comptroller General shows in detail all expenditures made for the benefit of the tribe from 1905 to 1927, inclusive. During the same period of time expenditures for the survey, allotment, and sale of the ceded lands totaled $669,606.34, and were expressly authorized by the provisions of the act of 1889.

The $8,210,609.34 represents expenditures authorized by acts of Congress and, to say the least, the court would not be warranted in holding that the $547,421.25 was not part of the expenditures authorized by the act of 1889 and did not exact congressional authority. In other words, aside from what has been said, the record fails to establish the contention advanced with that degree of certainty required to warrant a judgment.

In the Kadrie case heretofore cited, this language is used in the opinion of the Supreme Court:

When the act of 1889 was passed the Chippewa Indians in Minnesota comprised eleven bands or tribes occupying ten distinct reservations in that state in virtue of treaties or Executive orders. Collectively, they were regarded as a single tribe and commonly called the Chippewas of Minnesota. They numbered about 8,300, and their reservations contained approximately 4,700,000 acres. They were tribal Indians, under the guardianship of the United States, and held their reservations as tribal lands [p. 208.]

Supplemental Opinion of the Court

Also, on page 221 of the same opinion, the court said:

The second question is more easily answered, for not only does the act of 1889 show very plainly that the purpose was to accomplish a gradual rather than an immediate transition from the tribal relation and dependent wardship to full emancipation and individual responsibility but Congress in many later acts-some near the time of the decision in question-has recognized the continued existence of the tribe. * * * With the tribe still existing the criticism by counsel for the relators of the Secretary's decision in other particulars loses much of its force. [Italics inserted.]

To sustain the plaintiffs' contentions exacts a holding from this court that the act of 1889 accomplished an "immediate emancipation" of the plaintiff Indians, had the effect of dissolving the relationship of guardian and ward, and placed the Government in the position of being absolutely unable to administer their tribal affairs. This we can not do.

We regret the necessity for lengthy and involved findings of fact, but find no way to avoid them. If, however, we are correct in holding the lands and funds to be tribal ones subject to the plenary power and authority of the Government. over the same, the detailed accounting becomes immaterial. The petition will be dismissed. It is so ordered.

WHALEY, Judge; WILLIAMS, Judge; LITTLETON, Judge; and GREEN, Judge, concur.

SUPPLEMENTAL OPINION

BOOTH, Chief Justice, delivered the opinion of the court: The plaintiffs and defendant file motions to amend the findings and for a new trial. The defendant's motion does not challenge the judgment or opinion of the court. It is confined to amendment of the findings to make some of them more positive and to clarify others. The plaintiffs' motion alleges both errors of fact and law and points out the same, and while the judgment and opinion of the court are challenged, a request for a reargument of the case is not asked.

The plaintiffs contend that one of their principal claims has been inadequately disclosed in the court's findings, and

Supplemental Opinion of the Court

additional findings are requested in order that the claim may be so stated as not to foreclose a presentation of the same in the event of a review of the court's judgment. The request is a reasonable one and it may be the court did not find in extenso with respect to the facts involved. We grant plaintiffs' motion in part and amend our findings accordingly.

Plaintiffs' contention with respect to per capita payments made to the Indians under the acts appended to this opinion is thus stated: "Disbursement of large portions of the principal fund, prior to the termination of the fifty-year trust period, to persons then in being, many of whom are now dead, and who, so far as still living, may or may not survive to the end of the trust period so as to be entitled to share in the final distribution of principal to 'all said Chippewa Indians and their issue then living.'"

The Secretary of the Interior did, in accord with the acts of Congress attached hereto, make per capita distributions from the funds of the Indians in the Treasury to the amount of $5,684,341.60 and manifestly this decreased to this extent the amount of the fund available for distribution at the end of the fifty-year period. Hence the issue presented by the requested findings is identical with plaintiffs' contentions as to all claims preferred.

If a beneficiary under the acts received a per capita payment from the principal fund and thereafter died before the expiration of the fifty-year period there can be no doubt as to the financial consequences to the issue of the Indian at the end of the fifty-year period. The final result, so far as the distributees mentioned in the act of 1889 are concerned. is in no way obscure. That, however, is not the issue. If Congress determined to utilize the existing fund for a generation of tribal Indians who in their judgment needed it to ward off the hardships of life, and who were really the creators of the fund, it was a matter for Congress to determine and not the courts.

Congress did not arbitrarily or capriciously deplete the so-called trust fund in the payment of a per capita distribution. On the contrary, it submitted to the Indians the

Supplemental Opinion of the Court

question as to whether they wished or disapproved it. A referendum appeared in every act but one authorizing the same. Obviously, the response to the referendums indicated immediate necessities and displeasure with the prolonged period involved in the disposition of the Indian tribal fund. It is manifestly beyond the jurisdiction of the court to express agreement or disagreement with the provisions of the act of 1889. Congress possesses the authority to care for tribal Indians, and, under established precedents we have cited, the courts may not question its discretion or the exercise of the plenary power they have of right. If the case is restricted to a matter of accounting under the act of 1889 the findings tell the story.

The plaintiffs say that they appear in this case under the special jurisdictional act for and on behalf of "all those entitled to share in the final distribution," meaning all those entitled to receive a share of the fund when the trust period has expired, and it is insisted that the damages suffered by this class occasioned in part by the per capita payments from the fund "are to be here redressed."

If the contention advanced is predicated upon the theory that the jurisdictional act creates rights and consequent liabilities, or by its terms recognizes existing rights under the act of 1889, it is answered by the decision of the Supreme Court in the Mille Lac Band of Chippewa Indians v. United States, 229 U. S. 498, 500, wherein the following rule applicable to the construction of special jurisdictional acts was established:

The jurisdictional act makes no admission of liability, or of any ground of liability, on the part of the Government, but merely provides a forum for the adjudication of the claim according to applicable legal principles. Nor does it contemplate that recovery may be founded upon any merely moral obligation, not expressed in pertinent treaties or statutes, or upon any interpretation of either that fails to give effect to their plain import, because of any supposed injustice to the Indians. United States v. Old Settlers, 148 U. S. 427, 469; United States v. Choctaw &c Nations, 179 U. S. 494, 735; Sac and Fox Indians, 220 U. S. 481, 489.

134281-39—c. c.—Vol. 88-5