Reuben Quick Bear v. Leupp

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 Indians 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 Washington Law Reporter, 766, affirmed.

APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. 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 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 section 17 of the act of March 2, 1889, c. 405, 25 Stat. 888, 894-5, 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, section 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 section 17 of the said act of March 2, 1889, further i 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 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 per centum 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 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 fxxnd is paid annually by the United States in accordance with the provisions of the second clause of the act of April 1, 1880, c. 41, 21 Stat. 70, reading as follows: “ ‘And the United"States shall pay interest semi-annually, from the date of the 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, c. 3, § 1, 30 Stat. 62, 79, 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, D. C., 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 Missions of Washington, D. C., 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 twenty-seven thousand dollars), 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, D. C., 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, 18Q7, 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 nevei 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, D. C., 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. “ 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, D. C., 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, D. C., 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, D. C., 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. 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 Indians 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 base was submitted on bill and answer with certain statements of the Commissioner of Indian Affairs, it is thought that the answer should be given substantially in full as it is in the margin.1 The case was heard on the bill, the answer and "certain 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 Commissioner of Indian Affairs for the years 1895 and 1906, inclusive,” and was argued by counsel, arid upon consideration an injunction was decreed from “paying or authorizing the payment of, either by themselves or by any of their subordinate 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 .» ian Missions, at Washington, D. C., for the support, education 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 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 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 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 “ 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 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.” 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. When Congress in 1894 directed, the Secretary of the Interior “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 Indian children, and that he submit to Congress, at the next session, the result of such investigation, including an estimate of the annual cost, if any, of substituting Government schools for contract schools,” and when the Secretary reported, suggesting a plan for gradually doing away with the contract schools, making no distinctions among them, both Congress and the Secretary referred to the contract schools in general, and not merely to those of them which were supported from the appropriations expressly made by Congress for Indian education, to the exclusion of the contract schools supported from Indian treaty and trust funds. After the close of the fiscal year 1900 the Secretary of the Interior could not legally make or authorize any contract, in behalf of the United States, for the education of Indian pupils in any sectarian school. Considering the direction to the Secretary of the Interior in 1894 to investigate the propriety of discontinuing contract schools, and to report the cost of substituting Government schools for contract schools; his report advocating a gradual reduction in the contract schools during a short period of years, during which period the Government should prepare to do without them; the adoption of the system advocated by him, successively restricting more and more his authority to contract with such schools; the declarations in the. acts of 1896 and 1897 that, subject to the restricted authority granted by thosé acts, it was “the settled policy of the Government to hereafter make no appropriation whatever for education in any sectarian school”; the declaration in the act of 1899 that the appropriation there made was “the final appropriation for sectarian schools”; and the fact that since 1899 no statute has granted the Secretary any authority to contract with sectarian schools for the education of Indian pupils; the conclusion is irresistible that Congress decided to abolish the entire system of Government aid to such schools, and to do so by depriving the Secretary of all authority to make any more such contracts. Moreover; as it has been shown above that the term “ contract schools ” was officially used as including contract schools supported from Indian treaty and trust funds, the conclusion is irresistible that Congress made no distinction between contracts as to which the money was to come from the appropriation for the support of schools, and contracts as to which the money was to come from Indian treaty and trust funds. In either case the Government was the disburser of the money— the hand which directly dispensed the aid — and the money was disbursed under a contract. To deprive the Secretary of the power to make such contracts altogether was the only effectual means of preventing him from using Indian treaty and trust funds for sectarian schools, and it would operate just as effectually in regard to such funds as in regard to funds derived from the appropriation for the support of schools. The Secretary’s power to make such a contract was taken away altogether, and not merely as regards contracts where the money was to be paid out of appropriations by Congress expressly for the support of Indian schools. As regards the taking away of the Secretary’s power to make such a contract, no distinction can be drawn between money expressly appropriated by Congress for the support of Indian schools and money appropriated by Congress in fulfillment of Indian treaties and available for education. As regards use under contracts with sectarian schools, no distinction can be drawn between money expressly appropriated by Congress for the support of Indian schools and money paid by the Government as interest on Indian funds held in trust by it. While in the case of the Sioux trust fund the appropriation is made by a different system from that pursued with the Sioux treaty fund, there is still an appropriation within the meaning of the acts of 1896 and 1897, declaring it to be “the settled policy of the Government to hereafter make no appropriation whatever for education'in any .sectarian school,” and the act of 1899 which said, “this being the final appropriation for sectarian schools.” The word “appropriation,” used as it is here, in statutes of the class known as “ appropriation acts,” is necessarily, technical. It means an appropriation by Congress of money in the Treasury of the United States. Restricted as this meaning is, however, the whole phrase, “make no appropriation whatever,” is as broad a phrase as the limits of that meaning will possibly permit, and it refers to any and every kind of appropriation that Congress can make, without regard to the method of such appropriation. “No appropriation whatever” is a phrase that can have no limits but those which necessarily restrict the word “appropriation” itself. The appropriations of funds in the United States Treasury are of two kinds, viz., those made for each successive fiscal year, and permanent annual appropriations. The latter are provided for in §§ 3687-3689, Rev. Stat., and cover a number of matters (the cost of revenue collection, payment of interest on the public debt, etc.), which are expected to recur every year, either indefinitely or for a considerable period, so that it is held inadvisable to make a special appropriation for them every year. When the Revised Statutes were compiled, the Indian trust funds were all invested (under §§2095,2096), and the income received was paid to the Indians or expended for them, and this system was not changed until the act of April 1; 1880, c. 41, 21 Stats. 70. That act, providing for the payment of interest upon Indian trust funds deposited in the Treasury to the credit of Indian tribes, such payment to “be made in the usual manner, as each may become due, without further appropriation by Congress,” really constitutes a permanent annual appropriation of such interest. Had that change been made before the Revised Statutes were compiled, the interest on the Indian trust funds would presumably have been included in the permanent annual appropriation system, The words “ without further appropriation by Congress ” clearly show that the provision of the act of 1880 constituted' an appropriation once for all, or in other words a permanent annual appropriation.