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Creek Orphan Fund.

with those tribes, so much of the same as may be necessary, to be applied to the relief of such portions of such tribes as have remained loyal to the United States, and have been or may be driven from their homes in the Indian Territory into the State of Kausas or elsewhere."

By the acts of July 5, 1862 (12 Stat., 528), March 3, 1863 (12 Stat., 793), June 25, 1864 (13 Stat., 180), and March 3, 1865 (13 Stat., 562), being appropriation acts for the current and contingent expenses of the Indian Bureau, and for fulfilling treaty stipulations with various Indian tribes for the fiscal years ending June 30, 1863, 64, 65, and '66, provision was made that all appropriations theretofore or thereafter "made to carry into effect treaty stipulations or otherwise, in behalf of any tribe or tribes of Indians, all or any portion of whom shall be in a state of actual hostility to the Government of the United States, including the Cherokees, Creeks, Choctaws, Chickasaws, Seminoles, Wichitas, and other af filiated tribes, may and shall be suspended and postponed, wholly or in part, at and during the discretion and pleasure of the President: Provided, further, that the President is authorized to expend such part of the amount heretofore appropriated and not expended, and hereinbefore appropiated for the benefit of the tribes named in the preceding proviso, as he may deem necessary for the relief and support of such individual members of said tribes as have been driven from their homes and reduced to want on account of their friendship to the Government."

In said appropriation acts there was appropriated for the benefit of the Creek Indians, to pay for permanent annuities, permanent provisions, annual installments for specific objects, and annual interests provided for by treaty stipulations, the respective sums of $49,140 (12 Stat., 515 and 516), $49,140 (12 Stat., 778), $40,920 (13 Stat., 165 and 166), and $41,920 (13 Stat., 544 and 545), which amounts were expended by the Indian Bureau for the benefit of the loyal refugees of the Creek tribe during the years 1863, 64, 65, 66. During the same periods of time, there was also expended by the Indian Bureau, for the support of the said loyal refugees and for general purposes of the tribe of the Creek Nation, the sum of $176,755.97, which was taken from the accrued interest

Creek Orphan Fund.

arising from the investments of the proceeds of the sale of lands belonging to the orphan children of the Creeks as provided for by the treaty of March 24, 1832 (7 Stat., 366), and the act of March 3, 1837 (5 Stat., 186).

The legislation referred to did not assume to direct the use of the Creek orphan fund for the benefit of loyal refugees or any other portion of the tribe, and the payments of the principal and interest of this fund were not subjects of appropriation by Congress, for it will be observed that under the provisions of the third section of the said act of March 3, 1837, the President might, at his discretion, at any time have paid the parties entitled to have received the same. The legislation, therefore, does not require us to consider whether or not it would have been competent, in view of the fact that a treaty had been concluded between the Creek Nation and the public enemies, to have confiscated this fund to the benefit of the United States, or directly condemned it to other uses than those provided by the treaty, as no such act was assumed to be done by Congress. The accrued interest of the Creek orphan fund, arising from investments made in interest bearing stocks, was drawn out of the Treasury by the Indian Bureau in the same manner as interest on trust funds is generally drawn. But the act of the Indian Bureau in devoting it to the benefit of loyal refugees of this tribe was a diversion of the fund not authorized by the original intention of the treaty, the act providing for the creation of the same, nor by the subsequent legislation during the rebellion. The acts cited, which provided for the support and maintenance of the loyal refugees of the Creek Nation during the civil war, did not undertake to condemn this fund, which belonged to certain individuals of the tribe, although they did assume to condemn the annuities, some of which were payable to the tribe and some to the individuals of the tribe.

Whether Congress would have had power to confiscate individual property by its own act without invoking the interposition and action of the courts, is not a question that arises in the present case so far as this fund is concerned. It did not assume to make such confiscation.

After the civil war was concluded, a new treaty was made, on June 14, 1866 (14 Stat., 786), by which a general amnesty

Cre k Orphan Fund.

was declared for all past offenses against the laws of the United States committed by any member of the Creek Nation. By the third article of that treaty, $100,000 in part was to be paid to soldiers and loyal refugee Indians of this tribe, who were driven from their homes by the rebel forces, to reimburse them in proportion to their respective losses. By the eleventh article of said treaty (pp. 789-790), the Creek Nation ratified and confirmed all diversion of annuities that had been made from the funds of the Creek Nation by the United States. By the twelfth article of said treaty, the United States reaffirmed and reassumed all obligations of treaty stipulations with the Creek Nation entered into before the treaty of said Creek Nation with the so-called Confederate States, July 10, 1861, not inconsistent with the provisions of said treaty of June 14, 1866, and further agreed to renew all payments of annuities accruing by force of said treaty stipulations from and after the close of the fiscal year ending June 30, 1866, except as was provided in article 11 of the said treaty of June 14, 1866. By article 14 of said treaty, it was further agreed that all treaties theretofore entered into between the United States and the Creek Nation, which were inconsistent with any of the articles or provisions of said treaty of June 14, 1866, were by said treaty rescinded and annulled·

An article was proposed to said treaty providing for the disposition to be made of the bonds in which the Creek orphan fund had been invested, which was struck out by the Senate, and which need not now be considered.

The assent, by the eleventh article of the treaty, of the Creek Nation to the diversion of the annuities which had been made from the funds of the Nation by the United States cannot be interpreted as an assent to the diversion of the Creek orphan fund; annuities having a distinct meaning in the treaty, and bearing no relation whatever to the fund in question.

The diversion of this fund to the amount of $176,755.97, by the Indian Bureau, between the years 1862 and 1865, to the benefit of the loyal refugees of the Creek Nation was one that has not been ratified by the Creek Nation by its subsequent treaties.

I do not find any authority by which this diversion can be

Creek Orphan Fund.

remedied by the Department of the Interior by restoring the moneys. It will be for Congress to determine, upon a consideration of this legislation and the facts connected therewith, whether the sum in question should be appropriated and placed to the benefit of this fund in the Treasury.

A second inquiry arises as to the limitation of the Creek orphan fund by reason of alleged mistaken investments thereof.

A portion of the proceeds of the sale of the lands belonging to the Creek orphans, as heretofore stated, was originally invested in 1837 in bonds of the State of Alabama. On July 1, 1851, the principal and accrued interest on said bonds were exchanged for bonds of the State of Virginia. At the time the original investment was made in the stocks of the State of Alabama there was no objection to it. The Presi dent stood as a trustee for this fund, and by authority of the third section of the act of March 3, 1837, could invest the same in interest-bearing stocks as he deemed most advantageous for those who were the beneficiaries of the fund. Subsequently the act of September 11, 1841 (5 Stat., 465; Rev. Stat., sec. 3659), required investments made after that date to be in United States stocks, bearing interest at not less than 5 per cent. per annum. The bonds upon which the reinvestment was made (those of the State of Virginia) subsequently depreciated in value, and from and after the commencement of the civil war no interest has been paid on the same.

While, therefore, the original investment was authorized by the act of March 3, 1837, there was an actual investment made after the act of September 11, 1841, out of funds arising from a sale of stocks of the State of Alabama. By this action an error was undoubtedly made by the President, in investing in stocks which the law at that time prohibited an investment in.

It is to be observed that the act requiring an investment in United States stocks of the trust fund is not a portion of the treaty, nor was it in existence at the time of the treaty, but is a rule which the United States had itself laid down for the conduct of the trustee of this fund in order that the provisions of the treaty might be properly carried out.

Paymasters in the Army.

In answer to your inquiry, I am, therefore, of opinion that in making the investment of the proceeds of the sale of Indian lands (which sales were provided for by treaty stipulations) the President was required by the provisions of the second section of the Act of September 11, 1841, to make all such investments from and after that date in United States stocks bearing interest at not less than 5 per cent. per annum.

There is, however, no mode in which this error can now be remedied by the Department of the Interior; and it will be for Congress to consider whether it is just that the loss which has been occasioned by this mistake in investing the funds should be one which should fall upon the United States, or whether it is the duty of the United States to restore to the Creek orphan fund the value of the property thus invested.

In general answer to both inquiries proposed by your letter, I have to say that whatever errors may have been committed in the administration of the fund in question, to which I have called attention in the former part of my opinion, there are none which can now be remedied by Executive action.

Very respectfully, your obedient servant,

Hon. CARL SCHURZ,

CHAS. DEVENS.

Secretary of the Interior.

PAYMASTERS IN THE ARMY.

The compensation of a paymaster in the Army runs from the date of the acceptance of his appointment, not from the date of the approval of his bond.

The Regulations of the Army have the force and effect of law so far as they are consistent with the statutes. Those at present in force (regulations of 1863) have been adopted by the act of July 28, 1866, chap. 299, which provided (sec. 37) that the then existing regulations should remain in force until further action by Congress.

DEPARTMENT OF JUSTICE,

June 8, 1878.

SIR: Your letter of the 16th ultimo submits the question whether a bonded officer of the United States shall receive

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