Quick Bear v. Leupp/Opinion of the Court
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 Incians 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 7 of the Sioux treaty of April 29, 1868 (15 Stat. at L. 635, 637), continued in force for twenty years after July 1, 1889, by § 17 of the act of March 2, 1889 (25 Stat. at L. 888, 894, 895, chap. 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. at L. 1048, 1055, chap. 1479):

"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 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 $3,000,000 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. at L. 70, chap. 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. at L. 62, 79, chap. 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 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, eigher 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.

'11. That the plaintiffs have no remedy at law.

'Wherefore the plaintiffs ask relief, as follows:

'1. 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.'

2. 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.'

3. 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 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 should be given substantially in full as it is in the margin.

The case was heard on the bill, the answer, and 'certain

'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 Inproofs, 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, and, 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 Indian Missions, at Washington, District of Columbia, 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 amount

'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.' 21 Stat. at L. 70.

'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. at L. 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. 7. 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, chap. 72 (19 Stat. at L. 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.' 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.

Messrs. Charles C. Binney, Hampton L. Carson, and N. Dubois Miller for appellants.

Mr. Edgar H. Gans, Solicitor General Hoyt, and Attorney General Bonaparte for appellees.

[Argument of Counsel from pages 73-77 intentionally omitted]

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 on class of appropriations and the other has long been recognized in the annual appropriation acts. The gratuitious 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.

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 20 per cent 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 Intcrior shall make contracts, but only with present contract schools, for the education of lndian pupils during the fiscal year ending June 30, 1896, to an extent not exceeding eighty per centum 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.' This limitation of 80 per cent 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 50 per cent 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 40 per cent of the amount used in 1895. In the act of 1898 the amount applicable to contract schools was limited to 30 per cent, and in the act of 1899 the amount so applicable was limited to 15 per cent, 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 Shcools,' '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.

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. at L. 888, chap. 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 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 instalments. 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. Bradifield, 12 App. D. C. 475; Bradfield v. Roberts, 175 U.S. 291, 44 L. ed. 168, 20 Sup. Ct. Rep. 121. 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 neccssarily undenominational, as it cannot make any law respecting an 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 trust cannot be deprived of their rights by the trustee in the exercise of power implied.

Decree affirmed. 

Notes