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REUBEN QUICK BEAR v. LEUPP, 210 U.S. 50 (1908)

U.S. Supreme Court

REUBEN QUICK BEAR v. LEUPP, 210 U.S. 50 (1908)

210 U.S. 50

REUBEN QUICK BEAR, Ralph Eagle Feather, and Charles Tackett, on Behalf of Themselves and All Other Members of the Sioux Tribe of Indians of the Rosebud Agency, South Dakota, Appts.,
FRANCIS E. LEUPP, Commissioner of Indian Affairs; James Rudolph Garfield, Secretary of the Interior; George Bruce Cortelyou, Secretary of the Treasury, et al.
No. 569.

Argued February 26, 27, 1908.
Decided May 18, 1908.

The appellants filed their bill in equity in the supreme court of the district of Columbia, alleging that:

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. [210 U.S. 50, 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.

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 an- [210 U.S. 50, 56]   swer should be given substantially in full as it is in the margin. 1  

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

1 '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.

___ dian 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.

___ 'Congress, in the Indian appropriation act of 1897, chap. 3, 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 . . . $1,200,000 . . .' and then, as a qualification upon this appropriation, and following immediately thereupon, under the same heading, 'Support of Schools,' occurs the following language:

___ 'Osage fund: Interest, $416,371.95 per annum (treaty 1865, art. 2, 14 Stat. at L. 687; act July 15, 1870, 16 Stat. at L. 362, chap. 296; act of June 16, 1880, 21 Stat. at L. 292, chap. 251).

Each party prayed an appeal from so much of the decree as was adverse to them. It was stipulated 'that amount

[210 U.S. 50, 68]   []

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. Labre 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 []

[210 U.S. 50, 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 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. [210 U.S. 50, 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 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.' [210 U.S. 50, 79]   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. [210 U.S. 50, 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. 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 [210 U.S. 50, 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 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 [210 U.S. 50, 82]   establishment of religion or prohibiting the free exercise thereof. The court of appeals well said:

The cestuis que trust cannot be deprived of their rights by the trustee in the exercise of power implied.

Decree affirmed.


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.

States, raised by taxation, should not be used for education in sectarian institutions; and also for other reasons.

time in the appropriation act of 1895, chap 188 (28 Stat. at L. 888), a limitation on the use of public money in sectarian schools.

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, in so far 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.

terior. With the exception of the Osage funds, no 'tribal funds' were applied to education in denominational schools from 1900 to 1904.

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.



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.

per annum, amounting to $27,000. The contract was approved by Jesse E. Wilson, Acting Secretary of the Interior.

$250,047.90, or a per capita of $50.15.

cis 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.


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