Menominee Tribe of Indians v. United States, 44296.

Citation59 F. Supp. 137
Decision Date05 March 1945
Docket NumberNo. 44296.,44296.
PartiesMENOMINEE TRIBE OF INDIANS v. UNITED STATES.
CourtU.S. Claims Court

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Andrew E. Stewart, of New York City (Richard E. Dwight, of New York City, Ernest L. Wilkinson and John W. Cragun, both of Washington, D. C., and Dwight, Harris, Koegel & Caskey, of New York City, on the brief), for plaintiff.

Benjamin F. Pollack, of Washington, D. C., and Norman N. Littell, Asst. Atty. Gen. (Raymond T. Nagle, of Washington, D. C., and Walter C. Shoup, of Washington, D. C., on the brief), for defendants.

Before WHALEY, Chief Justice, and LITTLETON, WHITAKER, JONES, and MADDEN, Judges.

WHITAKER, Judge.

This is one of several suits brought by plaintiff growing out of the defendant's administration of its affairs. This one involves interest on the "Menominee Log Fund." The plaintiff had on deposit in the Treasury of the United States a fund known as the "Menominee Log Fund," upon which defendant had agreed to pay interest at 5 per cent. Withdrawals were made from this fund, but when reimbursement was first made the sum repaid was deposited in what is known as the "Menominee 4% Fund." Later all withdrawals from the 5 per cent fund were restored, except for $152,704.88. Interest on this amount has been credited to the Indian tribes at 4 per cent instead of at 5 per cent. The plaintiff sues for the difference of 1 per cent, plus interest on this interest.

On June 12, 1890, Congress passed an Act, 26 Stat. 146, authorizing the cutting of a certain portion of the timber on the Indian reservation and for the sale thereof. One-fifth of the "net proceeds of sales" was to be used for the benefit of the Indians under the direction of the Secretary of the Interior, and the residue was to be deposited in the Treasury of the United States at 5 per cent interest, the interest to be paid to the tribe per capita, or expended for their benefit under the direction of the Secretary of the Interior.

In 1905 a cyclone blew down a lot of the timber on plaintiff's reservation. On June 28, 1906, 34 Stat. 547, Congress authorized this timber to be cut into logs by the Indians and authorized the Secretary of the Interior to make contracts with portable-mill owners to come upon the reservation and saw the logs into lumber. Such mill owners were to be paid a sum not in excess of $3.50 per thousand feet board measure. The expenses of cutting the logs and sawing them into lumber were to be paid out of the funds of the tribe on deposit in the Treasury, the sums withdrawn to "be reimbursed from the sale of the lumber as herein provided." It was further provided that "from the proceeds of the sales of such lumber there shall be deposited in the Treasury of the United States to the credit of the said Menominee tribe of Indians the amount of money paid out of said fund as the expense of cutting, sawing, piling, and grading said lumber." One-fifth of the "net proceeds" were to be used for the benefit of the Indians under the direction of the Secretary of the Interior, and the balance was to be deposited in the Treasury of the United States at 4 per cent interest.

It was found impossible to induce satisfactory mill owners to enter into contracts to saw the logs into lumber at the price fixed in the Act, and so on March 28, 1908, Congress passed an Act, 35 Stat. 51, authorizing the Secretary of the Interior "to cause to be cut and manufactured into lumber the dead and down timber, and such fully matured and ripened green timber as the forestry service shall designate." To this end the Secretary was authorized to build suitable sawmills and buildings and to construct necessary roads and make necessary improvements in streams. The lumber manufactured from the timber was required to be sold to the highest and best bidder for cash, and it was provided that "the net proceeds of the sale of such lumber and other material shall be deposited in the Treasury of the United States to the credit of the tribe entitled to the same. Such proceeds shall bear interest at the rate of four per centum per annum * *."

All expenses incurred under the Act of 1906 were paid out of the "Menominee Log Fund" and two non-interest-bearing funds denominated "Interest on Menominee Log Fund" and "Fulfilling Treaties with Menominees, Logs." Likewise, after the passage of the Act of March 28, 1908, the expenses of the erection of sawmills and buildings and for the construction of roads and improvement of streams and for the operation of the sawmills and other expenses were paid out of these funds. After the timber was sold the gross proceeds of the sales were not deposited in the funds from which they had been withdrawn, but in a fund known as the "Menominee 4% Fund."

The propriety of making withdrawals from a fund bearing interest at 5 per cent and making repayments to a fund bearing interest at 4 per cent was questioned, and the matter was referred to the Comptroller of the Treasury, who rendered an opinion holding this illegal. Thereupon, the Secretary of the Interior in 1912 transferred $79,623.89 of the 4 per cent fund to restore the fund for "Fulfilling Treaties with Menominees, Logs," and the balance of $999,455.51 was restored to the "Menominee Log Fund." Thereafter, further withdrawals were made from the "Menominee Log Fund," but all subsequent receipts were deposited in that fund. The total amount withdrawn from it from the beginning of operations under the 1906 Act through 1917 was $3,583,365.30. The total amount restored to this fund was $3,430,660.42, a deficit of $152,704.88. The 4 per cent fund was sufficient at the close of the year 1917 to have restored this deficit.

The defendant filed an answer and counterclaim in which it alleged that no amount should have been transferred from the 4 per cent fund to the 5 per cent fund and that it was improper to have deposited receipts in the 5 per cent fund, but that the excess of receipts over operating expenses should have been deposited in the 4 per cent fund.

It does not seem to us to be open to question that it was improper to have made withdrawals from the 5 per cent fund and to have made reimbursement to a fund bearing a lesser rate of interest.

The Acts of 1906 and 1908 are in pari materia and should be construed together. The Act of 1908 was supplementary to the Act of 1906. It was passed because the provisions of the 1906 Act for the making of contracts with private mill owners for the sawing of the logs into lumber had proven impracticable. The Act of 1906, authorizing withdrawals from the 5 per cent and other funds, expressly required their repayment to these funds, and for the deposit in the 4 per cent fund only of the ...

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    • United States
    • United States Supreme Court
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    ...507, 364 F.2d 320, 322 (1966); Klamath & Modoc Tribes, v. United States, 174 Ct.Cl. 483, 490-491 (1966); Menominee Tribe v. United States, 102 Ct.Cl. 555, 562, 59 F.Supp. 137 (1945); Menominee Tribe v. United States, 101 Ct.Cl. 10, 18-20 (1944); Smith v. United States, 515 F.Supp. 56, 60 (N......
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    • United States District Courts. United States District Court (Columbia)
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    ...at 1245; Navajo Tribe of Indians v. United States, 176 Ct.Cl. 502, 364 F.2d 320, 324 (1966); and Menominee Tribe of Indians v. United States, 102 Ct.Cl. 555, 59 F.Supp. 137, 141 (1944)). c. Duty Not to "The trustee is under a duty to the beneficiary not to delegate to others the doing of ac......
  • Moose v. U.S.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 19, 1982
    ...used trust language. Treaty with the Creeks and Seminoles, August 7, 1856, 11 Stat. 699, art. VIII. In Menominee Tribe v. United States, 102 Ct.Cl. 555, 59 F.Supp. 137 (1945), the United States was held to have acted improperly in withdrawing money from a tribal Treasury account bearing 5% ......
  • AM. INDIANS RESIDING ON MARICOPA-AK CHIN v. US, 235.
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    • Court of Federal Claims
    • December 2, 1981
    ...20, 224 Ct.Cl. at ___, 624 F.2d at 990-91; Cheyenne-Arapaho Tribes v. United States, supra note 23; Menominee Tribe of Indians v. United States, 102 Ct.Cl. 555, 59 F.Supp. 137 (1945). 64 Gila River Pima-Maricopa Indian Community v. United States, 38 Ind.Cl.Comm. 1, 21-23 (1976). 65 Fort Bel......
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    • FNREL - Annual Institute Vol. 36 Rocky Mountain Mineral Law Institute (FNREL)
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    ...Tribe of Indians, 471 U.S. 759 (1985); accord Seminole Nation v. United States, 316 U.S. 286 (1942); Menominee Tribe v. United States, 59 F. Supp. 137 (Ct. Cl. 1945); Manchester Band of Pomo Indians v. United States, 363 F. Supp. 1238 (N.D. Cal. 1973). [19] See note 15, supra. [20] Letter f......

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