Pardoning Power of the Governor of Dakota.

ment. Under this clause of the Constitution it has been decided by the United States Supreme Court that the pardoning power of the President, being granted without limitation, is not subject to legislative control. (Ex parte Garland, 4 Wall., 380; United States v. Klein, 13 Wall., 128.)

Applying these principles to the various sections of the organic act, I think there is no difficulty in determining which of them come within the rightful sphere of legislation. Those provisions which-require consideration are found in the Dakota Revised Codes, 1877, page 912, sections 544, 545, 547, 548, 549, and 551, in which laws previously passed are re-enacted.

Section 544 grants the pardoning power to the governor "so far as the same is in accordance with the organic act and with the provisions of this code."

Section 545 limits the power to the granting of "reprieves, commutations, and pardons, after conviction, for all offenses except treason and cases of impeachment" "subject to the regulations provided in this chapter."

Section 549 provides that before the governor can act on an application for pardon ten days' written notice of it must be served by the applicant upon the district attorney of the county where the conviction was had, and an affidavit of such service must be presented to the governor, thus imposing certain limitations upon the pardoning power and upon the method of its exercise.

By these provisions the legislature of the Territory assumes to grant the pardoning power, and it assumes to withdraw from the pardoning power certain offenses, which, if they can be committed against the Territorial law, are proper subjects for pardon, and it restricts the mode in which the governor shall exercise the power by requiring certain notices to be served. In all these respects the legislation is obnoxious and in violation of the general authority given to the governor by the organic act. His power to pardon extends to all offenses against the Territorial laws whatsoever, and he may exercise it in any mode which he deems appropriate and upon such information or notice as he may deem sufficient for the purposes of justice.

To section 548 I find no objection. This is only a requisition upon the presiding judges of the courts to furnish the

Pardoning Power of the Governor of Dakota.

governor without delay with statements of facts proved on the trial, and in no way imposes any duty apon the governor.

Nor do I think any objection exists to section 547, which simply requires the governor to annually report to the legislature such case of reprieve, commutation, and pardon; as it is a legitimate object of legislation to ascertain not only the existence and character of crimes, but the mode in which they are dealt with.

Section 551 is, however, in my opinion, in violation of the organic act. By this the governor is required to file all papers presented to him on the application for pardon in the office of the secretary of the Territory, to be kept as records open to public inspection. These papers may or may not furnish all the reasons or grounds upon which the governor granted the pardon; but, even if they do, he cannot be required to make them public. He may act in regard to the matter of pardon upon papers confidentially presented to him if he sees fit so to do. And therefore the section is in violation of the organic act in this: that it requires the governor to lay before the public some of the grounds upon which he acted in reference to the issuance of the pardon. This it is not in the power of the legislature to require. The reasons upon which he has exercised an executive power are for him to disclose or withhold, as he may deem most compatible for the public interest. The last inquiry is as to what should be the action of the governor in regard to the exercise of his pardoning power.

Upon this I cannot properly advise. A public officer is always legally justified in disregarding an unconstitutional enactment, and in some cases it is no doubt his imperative duty to do so. Whether the law which I have discussed is or is not in violation of the organic act is a judicial question which can be determined finally only by the courts when legally put in issue before them. When an officer decides to obey or disregard a legislative act, he does so upon his own personal responsibility.

Governor Howard's letter is herewith returned.

Very respectfully, your obedient servant,

Hon. CARL SCHURZ,

Secretary of the Interior.

CHAS. DEVENS.

Creek Orphan Fund.

CREEK ORPHAN FUND.

Article 2 of the treaty with the Creek Indians of March 24, 1832-in providing that twenty sections of the lands therein referred to should be selected under the direction of the President for the orphan children of the Creeks, and divided and retained or sold for their benefit, as the President might direct—intended to make provision for those who were then orphan children of the Creeks, not those who might afterwards become such.

The taking of $176,755.97 by the Indian Bureau from the accrued interest arising from investments of the proceeds of the sale of those lands, known as the Creek orphan fund, and the expending of the same by the bureau for the benefit of the loyal refugees of the Creek tribe during the years 1863 to 1865, was a diversion of the fund not authorized by the said treaty of 1832 nor by subsequent legislation.

The assent of the Creek tribes in the eleventh article of the treaty of June 14, 1866, to the diversion of the annuities which had been made from the funds of the tribe, cannot be interpreted as an assent to the diversion of the Creek orphan fund; nor has this diversion been ratified by the Creeks by any subsequent treaty.

The Department of the Interior has no authority to remedy the diversion of the Creek orphan fund by restoring the moneys. Relief can only be obtained through Congressional action.

The investment in bonds of the State of Virginia, in 1851, of the moneys belonging to the Creek orphan fund arising from the sale of bonds of the State of Alabama, was an error on the part of the President; he being then required, by section 25 of the act of September 11, 1841, chap. 25, to make such investment in stocks of the United States. That error cannot now be remedied by the Interior Department. It is for Congress to determine whether the loss thereby occasioned is one which should be borne by the United States.

DEPARTMENT OF JUSTICE,

June 6, 1878.

SIR: Your letter of the 18th ultimo presents to me certain inquiries in relation to the fund set aside for the orphans of the Creek tribe of Indians under the second article of the treaty of March 24, 1832.

A claim is presented by the representatives of the orphans of the Creek tribe of Indians for reimbursement of the sum of $176,755.97, claimed by them to have been illegally diverted from the fund belonging to said orphans and to have been expended for the general benefit of the tribe; and also to restore to the Creek orphans the par value of certain stocks now held in trust by the United States for the benefit of said orphans.

Creek Orphan Fund.

The inquiries substantially are, first, whether there has been any diversion of the fund in question, and, second, whether it is in the power of the Executive Department, of which you are the head, to remedy any such diversion.

If such remedy can only be afforded by Congress, the considerations moving toward it should of course be presented to that body.

The claim grows out of the treaty made with the Creek Indians on the 24th day of March, 1832 (7 Stat., 366). By the first article of that treaty, the Creek tribe of Indians Iceded to the United States all their lands east of the Mississippi River. The second article of the treaty provides for the survey and apportionment of the whole tract of land belonging to said tribe; and also that twenty sections of said land should be selected under the direction of the President for the orphan children of the Creeks and divided and retained, or sold for their benefit, as the President might direct.

An examination of the treaty shows that this article was intended to make proper provision for those who were then the orphan children of the Creeks, and was not a provision for the permanent benefit, by means of education and otherwise, of those who might afterwards become orphans of this tribe. The other articles of the treaty show that the divisions of the land were to be made between a certain number of the chiefs and the other heads of families, that annuities were to be paid to the tribe itself and certain individuals of the tribe, and that certain debts of the tribe were also to be paid by the United States; and this article was intended only to set aside a certain portion of the property for the benefit of the orphan members who were not represented through the chiefs or other heads of families.

Under the provisions of the act of March 3, 1877 (5 Stat., 186), the President did direct that said lands should be sold, and they were sold accordingly, and the proceeds, amounting to $108,713.82, invested in interest-bearing stocks, a portion of which were those of the State of Alabama.

By the third section of the act of March 3, 1837, the President was authorized to pay to the persons entitled thereto the principal derived from the proceeds of the sale of said

Creek Orphan Fund.

lands, or to invest the whole, or any part of said principal, in interest-bearing stocks, and pay the accrued interest to the persons entitled to receive the same, in such amounts and in such manner as in his opinion would be most advantageous for them.

By the fifth article of the treaty subsequently made with the Creek Indians, on August 7, 1856 (11 Stat., 700), the said Indians quit-claimed and relinquished to the United States all their right, title, and interest in and to any lands that had been owned or claimed by them, whether east or west of the Mississippi River. But, by the same article (p. 701), there was excepted from the said quit-claim, relinquishment, release, and discharge the fund created and held in trust for Creek orphans under the second article of the treaty of March 24, 1832. And it was further agreed that the right and interest of the Creek Nation and people in and to the matters so excepted should continue and remain the same as though the convention then held had never been entered into.

By the sixth article of said treaty of August 7, 1856 (p. 701), it was provided that in consideration of the said quit-claim, relinquishment, &c., a large sum of money should be paid, which sum was paid to the said Creek Nation per capita, and that certain claims should be paid and the balance, consisting of the sum of $200,000, should be invested in interest-bearing stocks for educational purposes for the benefit of the whole Creek Nation, which sum was thus invested.

On the 10th day of July, 1861, the Creek Nation made a treaty with the so-called Confederate States whereby they ignored their allegiance to the United States. (Vide Preamble to treaty proclaimed August 11, 1866, 14 Stat., 785.) A large number of the Creeks, however, remained loyal to the United States, fled from the Indian Territory, and sought refuge in the State of Kansas.

By the joint resolution of February 22, 1862 (12 Stat., 614), Congress provided "that the Secretary of the Interior be authorized to pay out of the annuities payable to the Seminoles, Creeks, Choctaws, and Chickasaws, and which have not been paid in consequence of the cessation of intercourse