captives have been surrendered to the lawful authorities of the United States. [R. S.] Res. No. 62, of May 15, 1870, 16 Stat. L. 377. [No payments to Indians holding any captives other than Indians.] That the Secretary of the Interior be authorized to withhold, from any tribe of Indians who may hold any captives other than Indians, any moneys due them from the United States until said captives shall be surrendered to the lawful authorities of the United States. * * * [18 Stat. L. 424.] This is from the Act of March 3, 1875, ch. 132, making appropriations for current and contingent expenses of the Indian department for the next fiscal year. Sec. 2103. [Contracts with the Indians.] No agreement shall be made by any person with any tribe of Indians, or individual Indians not citizens of the United States, for the payment or delivery of any money or other thing of value, in present or in prospective, or for the granting or procuring any privilege to him, or any other person in consideration of services for said Indians relative to their lands, or to any claims growing out of, or in reference to, annuities, installments, or other moneys, claims, demands, or thing, under laws or treaties with the United States, or official acts of any officers thereof, or in any way connected with or due from the United States, unless such contract or agreement be executed and approved as follows: First. Such agreement shall be in writing, and a duplicate of it delivered to each party. Second. It shall be executed before a judge of a court of record, and bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs indorsed upon it. Third. It shall contain the names of all parties in interest, their residence and occupation; and if made with a tribe, by their tribal authorities, the scope of authority and the reason for exercising that authority, shall be given specifically. Fourth. It shall state the time when and place where made, the particular purpose for which made, the special thing or things to be done under it, and, if for the collection of money, the basis of the claim, the source from which it is to be collected, the disposition to be made of it when collected, the amount or rate per centum of the fee in all cases; and if any contingent matter or condition constitutes a part of the contract or agreement, it shall be specifically set forth. Fifth. It shall have a fixed limited time to run, which shall be distinctly stated. Sixth. The judge before whom such contract or agreement is executed shall certify officially the time when and place where such contract or agreement was executed, and that it was in his presence, and who are the interested parties thereto, as stated to him at the time; the parties present making the same; the source and extent of authority claimed at the time by the contracting parties to make the contract or agreement, and whether made in person or by agent or attorney of either party or parties. All contracts or agreements made in violation of this section shall be null and void, and all money or other thing of value paid to any person by any Indian or tribe, or any one else, for or on his or their behalf, on account of such services, in excess of the amount approved by the Commissioner and Secretary for such services, may be recovered by suit in the name of the United States in any court of the United States, regardless of the amount in controversy; and one-half thereof shall be paid to the person suing for the same, and the other half shall be paid into the Treasury for the use of the Indian or tribe by or for whom it was so paid. [R. S.] Act of March 3, 1871, ch. 120, 16 Stat. L. 570; Act of May 21, 1872, ch. 177, 17 Stat. L. 136. Literal compliance required. - The provisions of this section are explicit and leave no margin of discretion to the secretary of the interior. The law must be literally complied with, and nothing can be taken by intendment, nor can the secretary dispense with any of its requirements. (1886) 18 Op. Atty.Gen. 497. --- No obligation imposed upon government. This section, and the two following sections, while intended to protect the Indians from improvident and unconscionable contracts, by no means create a legal obligation on the part of the United States to see that the Indians perform their part of a contract. In re Sanborn, (1893) 148 U. S. 222. What contracts included Transactions with government. · -The restrictions and regulations placed upon the making of transactions with Indians by R. S. secs. 2103 to 2106 are designed for the protection of such Indians in their dealings with other persons, and appear to have no application to transactions with the government. (1885) 18 Op. Atty.Gen. 181. Purchases or grants from Indians. The provisions of this section do not include contracts of the character described in section 2116, infra. (1885) 18 Op. Atty.-Gen. 235. Leases of land. This section has no application to leases of land by the Indians to persons for a moneyed consideration. Cherokee Strip Live Stock Assoc. v. Cass Land, etc., Co., (1897) 138 Mo. 394. - Assignment of claim for loss by fire. An assignment by an Indian of his claim against a person who negligently caused the Indian's property to be destroyed by fire is not within the purview of this section. Missouri Pacific R. Co. v. Cullers, (1891) 81 Tex. 382. Executed contract. The mere circumstance that a contract has been executed at the time of its presentation for approval does not except it from the operation of this section. (1884) 18 Op. Atty.-Gen. 5. Approval Contract approved in part. — A contract that provides for the performance of several distinct acts may be approved as to one or more than one of them, with the effect of validating the contract for the part approved, and no more. Rollins r. U. S., (1888) 23 Ct. Cl. 106; (1876) 15 Op. Atty. Gen. 585. Contract to be approved as made. - Where a contract provides that the fee for services shall not exceed a certain rate per centum, but the commissioner and secretary in their approval fixed the rate at a certain per centum, the contract is not approved as made. (1876) 15 Op. Atty.-Gen. 585. Defective contract. — A contract entered into by Indians which is defective and invalid cannot be cured by subsequent ratification thereof by a committee of the Indians not appearing to have authority to ratify, and the secretary of the interior is not authorized by such ratification to approve the contract. (1886) 18 Op. Atty.-Gen. 497. Rehearing as to approval. — Quære, whether there can be a rehearing as to an approval once indorsed upon the contract and acted upon; but if a reopening of the case is possible, it can only be accomplished by an indorsement of that fact upon the contract affected. (1884) 18 Op. Atty.-Gen. 5. - Rate per centum must be fixed. - A contract which contains a statement that the fee for services shall not exceed a certain rate per centum does not comply with the above section. (1876) 15 Op. Atty.-Gen. 585. Act of May 21, 1872. The Act of 1872, above cited, relieved the President from the consideration of Indian contracts for the payment of money and vested that duty elsewhere. (1884) 18 Op. Atty.-Gen. 11. Act of March 1, 1889, relating to Creek Indians. R. S. secs. 2103 and 2104 were, by necessary implication, repealed by the Act of March 1, 1889, ch. 317, sec. 4, as to the case embraced therein. This Act provided for the payment, out of the appropriations made therein, of a certain amount to the national treasurer of the Muskogee or Creek nation, or to such persons as should be duly authorized to receive the same, at such time and in such sums as should be directed and required by the national council of the said nation. By the express terms of the statute, the money was to be paid in obedience to the direction of the national council, and this was the only condition required to exist before payment. None of the things were required which are necessary under R. S. sec. 2103 to make valid a contract upon which money belonging to an Indian tribe is to be paid. U. S. v. Crawford, (1891) 47 Fed. Rep. 561. The following provisions concerning certain private agreements with Indians prior to the passage of the Act of May 21, 1872, which Act was incorporated into the above section, were made in the Act of April 29, 1874, ch. 135, 18 Stat. L. 35, 36. "SEC. 1. That hereafter it shall not be lawful for any United States officer, or other person under its employ or control, to recognize the binding force or legality, or in any manner sustain or enforce or counsel, or give any aid or assistance to sustain or enforce, any contract or agreement made by any person or persons, or corporation, with any band, tribe, or nation of Indians, or individual Indian or Indians, not a citizen of the United States, entered into prior to the date of the act of Congress entitled 'An act regulating the mode of making private contracts with Indians,' approved May twenty-first, eighteen hundred and seventy-two, for the payment or delivery of any money or other thing of value. in present or prospective, or for the granting or procuring any privilege to him or her, or any other person or persons, or corporation, in consideration of services for, or advancements made to, said Indians relative to their lands, or to any claim growing out of or in reference to annuities, instalments, or other moneys, claims, demand, or thing under laws or treaties with the United States, or official acts of any officer thereof, or in any way connected with or due from the United States, unless such contract or agreement was reduced to writing and duly signed by the parties in interest thereto at the time it was entered into and fully made known to the parties at the time the contract was signed, and then not until such original written contract shall first have been presented to and examined by the Secretary of the Interior and the Commissioner of Indian Affairs, and these facts by them severally endorsed thereon, and a copy of said contract and of any assignments that may have been made thereon duly entered of record in the office of the Commissioner of Indian Affairs." "SEC. 2. That in addition thereto there shall also be filed in said Commissioner's office, and retained therein as official papers, and be examined by said Commissioner and Secretary, and that fact indorsed on them, the following statement of facts touching each and all such contracts and agreements so presented; which statements shall be sworn to specially by all and severally the person or persons claiming interest in and seeking the support and enforcement of such contract or agreement, and not by agent or attorney: First, that the writing presented for examination and record, as provided for in the first section of this act, and purporting to be the original contract or agreement, is in fact such, and that it was entered into and reduced to writing at the date and for the purposes it purports to have been made and executed; secondly, such sworn statement shall give particularly the names of the real parties in interest in the original contract or agreement, naming them if not named in the written contract or agreement, and if either of the contracting parties is a band, tribe, or nation of Indians, or a corporation or firm, the name of the person, officer, or agent contracting in their behalf, together with his authority for so doing, shall be specially stated; thirdly, a particular statement of all and singular the services rendered or the thing or things done under such contract or agreement prior to said filing, with those things to be done or rendered, together with a particular statement of any and all moneys paid or advanced by either party under such contract or agreement, giving in all cases the time, place, and real value of services rendered, or thing or things done, or the kind and manner of payment, whether in money, property, or credits, up to the date of the filing of the said sworn statement; fourthly, state specifically whether the original contract or agreement had been submitted to any Secretary of the Interior, Commissioner of Indian Affairs, superintendent of Indian affairs, Indian agent, commissioner, or other person having official control of or connection with Indian affairs, giving the time when, place where, and person by name to whom such submission was made, and whether by said officer indorsed or not, or whether any such officer was cognizant of such contract or agreement having been made, though not submitted to him for approval. "SEC. 3. That the Secretary or Commissioner of Indian Affairs is hereby empowered to require, in writing, any additional facts or proofs that may be necessary to aid in determining the true character of the contract or agreement, or assignment thereof. "SEC. 4. That no such contract or agreement shall be recognized by any officer or employee of the United States until the Secretary of the Interior shall, after full consideration of any such contract or agreement, together with the proofs and papers in this act required to be filed, and such as the Secretary of the Interior or Commissioner of Indian Affairs may require in addition thereto, the Secretary of the Interior shall consider to be just and reasonable, and not tainted with fraud, and not exorbitant in its demands: Provided, That the Secretary of the Interior shall in all cases enter, in writing, on such original contract, on the record in the office of the Commissioner of Indian Affairs wherein such original contract is recorded, an official statement, showing that the contract or agreement and proofs have been filed in accordance with the provisions of this act and considered by him, and in his opinion said contract or agreement or assignments thereof are not exorbitant and not fraudulent, and that they are just, the same shall be valid. But if, in the opinion of the Secretary of the Interior, such contract or agreement, or the assignment thereof, is fraudulent or exorbitant, he shall officially enter his rejection, in writing, upon the record of such contract or agreement, and they shall not be considered of binding force by any officer or employee of the United States. "SEC. 5. That it is hereby made the duty of the Secretary of the Interior to cause an investigation to be made of all existing contracts or agreements, within the purview of this act, now on file in his office, or of the office of the Commissioner of Indian Affairs, or any other office or bureau under his control, and by special notice to the party or parties in interest compel, in the case of each such contract or agreement so found on file, the same strictness of official examination, and indorsement, record and sworn statement of fact, as is required by the several provisions of this act: Provided, That the investigation of facts touching the character of any contract or agreement contemplated by this act may be made by a commissioner appointed by the President for that purpose, who shall report all such facts to the Secretary of the Interior in writing." Failure to present a claim to the secretary of the interior and commissioner of Indian affairs for services rendered prior to 1872, in behalf of an Indian tribe, as required by section 1 of the above Act, was held to be fatal to the enforcement thereof. Hanks v. Hendricks, (1900) 3 Indian Ter. 415. Sec. 2104. [Payments under contracts restricted.] No money shall be paid to any agent or attorney by an officer of the United States under any such con 3 F. S. A.-24 369 Volume III. tract or agreement, other than the fees due him for services rendered thereunder; but the moneys due the tribe, Indian, or Indians, as the case may be, shall be paid by the United States, through its own officers or agents, to the party or parties entitled thereto; and no money or thing shall be paid to any person for services under such contract or agreement, until such person shall have first filed with the Commissioner of Indian Affairs a sworn statement, showing each particular act of service under the contract, giving date and fact in detail, and the Secretary of the Interior and Commissioner of Indian Affairs shall determine therefrom whether, in their judgment, such contract or agreement has been complied with or fulfilled; if so, the same may be paid, and, if not, it shall be paid in proportion to the services rendered under the contract. [R. S.] Act of May 21, 1872, ch. 177, 17 Stat. L. 136. Services rendered before approval of contract. In making proof of services rendered under a contract pursuant to this section, the claimant is not confined to acts performed subsequently to the date of the approval thereof, but may show acts done any time after the date of the contract. (1876) 15 Op. Atty.-Gen. 585. Sec. 2105. [Penalty for receiving moneys from Indians under prohibited contracts.] The person so receiving such money contrary to the provisions of the two preceding sections, and his aiders and abettors, shall, in addition to the forfeiture of such sum, be punishable by imprisonment for not less than six months, and by a fine of not less than one thousand dollars. And it shall be the duty of all district attorneys to prosecute such cases when applied to to do so, and their failure and refusal shall be ground for their removal from office. Any Indian agent, or other person in the employment of the United States, who shall, in violation of the provisions of the preceding section, advise, sanction, or in any way aid in the making of such contracts or agreements, or in making such payments as are here prohibited, shall, in addition to the punishment herein imposed on the person making such contract, or receiving such money, be, on conviction, dismissed from the service of the United States, and be forever disqualified from holding any office of profit or trust under the same. [R. S.] Act of March 3, 1871, ch. 120, 16 Stat. L. 570. Sec. 2106. [Assignments of contracts restricted.] No assignment of any contracts embraced by section twenty-one hundred and three, or of any part of one shall be valid, unless the names of the assignees and their residences and occupations be entered in writing upon the contract, and the consent of the Secretary of the Interior and the Commissioner of Indian Affairs to such assignment be also indorsed thereon. [R. S.] Act of May 21, 1872, ch. 177, 17 Stat. L. 136. Sec. 2107. [Restriction on payments to contractors, etc., until accounts and vouchers submitted, etc.] No payments shall be made by any officer of the United States to contractors for goods or supplies of any sort furnished to the Indians, or for the transportation thereof, or for any buildings or machinery erected or placed on their reservations, under or by virtue of any contract entered into with the Department of the Interior, or any branch thereof, on the receipts or certificates of the Indian agents or superintendents for such supplies, goods, transportation, buildings, or machinery beyond fifty per cent. of the amount due, until the accounts and vouchers shall have been submitted to the executive committee of the board of Indian commissioners appointed by the President for examination, revisal, and approval; and such board of commissioners shall, without unnecessary delay, forward the accounts and vouchers so submitted to them to the Secretary of the Interior, with the reasons for their approval or disapproval of the same, in whole or in part, attached thereto; and the Secretary shall have power to sustain, set aside, or modify the action of the board, and cause payment to be made or withheld, as he may determine. [R. S.] Act of March 3, 1871, ch. 120, 16 Stat. L. 583. While there is no express repeal of this section the restriction of the authority of the board of Indian commissioners by the Act of May 17, 1882, ch. 163, set forth supra, p. 340. Senate apparently renders it ineffective. Document No. 452, "Indian Affairs," 57th Congress, 1st session, p. 12, note. Claims for damages do not come within the scope of this section. Power v. U. S., (1883) 18 Ct. Cl. 263. Sec. 2108. [Moneys due incompetent or orphan Indians.] The Secretary of the Interior is directed to cause settlements to be made with all persons appointed by Indian councils to receive moneys due to incompetent or orphan Indians, and to require all moneys found due to such incompetent or orphan Indians to be returned to the Treasury; and all moneys so returned shall bear interest at the rate of six per centum per annum, until paid by order of the Secretary of the Interior to those entitled to the same. No money shall be paid to any person appointed by any Indian council to receive moneys due to incompetent or orphan Indians, but the same shall remain in the Treasury of the United States until ordered to be paid by the Secretary to those entitled to receive the same, and shall bear six per centum interest until so paid. [R. S.] Act of July 5, 1862, ch. 135, 12 Stat. L. 529. Sec. 2109. [Number of Indians present and receiving food, etc., to be reported.] Whenever the issue of food, clothing, or supplies of any kind to Indians is provided for, it shall be the duty of the agent or commissioner issuing the same, at such issue thereof, whether it be both of food and clothing, or either of them, or of any kind of supplies, to report to the Commissioner of Indian Affairs the number of Indians present and actually receiving the same. [R. S.] Act of Feb. 14, 1873, ch. 138, 17 Stat. L. 463, 464. See further as to keeping rolls of the In dians entitled to supplies the Act of March 3, 1875, ch. 132, sec. 4, set forth supra, p. 360. Sec. 2110. [Rations for Indians.] The President is authorized to cause such rations as he deems proper, and as can be spared from the Army provisions without injury to the service, to be issued, under such regulations as he shall think fit to establish, to Indians who may visit the military posts or agencies of the United States on the frontiers, or in their respective nations; and a special account of these issues shall be kept and rendered. [R. S.] Act of June 30, 1834, ch. 162, 4 Stat. L. 738. SEC. 6. [Property not required for use to be removed or sold report.] That hereafter at any of the Indian reservations where there is now on hand Government property not required for the use and benefit of the Indians at said. reservation, the Secretary of the Interior is hereby authorized to move such property to other Indian reservations where it may be required, or to sell it and apply the proceeds of same in the purchase of such articles as may be needed for the use of the Indians for whom such said property was purchased; and he shall make report of his action hereunder to the next session of Congress thereafter. [30 Stat. L. 596.] |