THE LAST WILL AND TESTAMENT OF WILLIAM DUNCAN

In the name of God, amen: I, William Duncan, of Metlakahtla, Alaska, of the age of eighty-four (84) years, being of sound mind and body, but remembering the uncertain nature of this transitory life, do make this my last will and testament in manner and form as follows, to wit:

First. It is my will and I do order that all my just debts and funeral expenses be duly paid and settled as soon as can conveniently be done after my decease.

Second. Whereas it has always been my intention and desire to, as far as practicable, perpetuate the mission work which our most gracious Lord has permitted me as his humble instrument to conduct for the betterment and uplifting of the people of certain native tribes of the North Pacific coast, and in particular the Tshimsheans, whom upon my arrival in 1857 I found in a degraded state of heathenism; and

Whereas our Heavenly Father has with tender mercy blessed our efforts and many have been rescued from their dark and evil ways to the light of the simple Gospel of our Redeemer, Jesus Christ; and Whereas a large number of these people have attained to a creditable degree of Christian civilization and their material condition has been considerably improved; and

Whereas my experience and observation have convinced me that it is necessary in the case of our native races for them to have very careful guidance for some generations at least to secure the necessary self-restraint, self-respect, and self-reliance and to create in them a spirit of manliness and pride so that they may make their own way and become entirely self-supporting and worthy of the rights of full citizenship; and

Whereas I have certain just claims against the Government of the United States on account of the destruction of industries and business and the seizure of buildings and other property; and

Whereas in the course of my said missionary work I have by my own labor and efforts acquired a certain amount of money and property which is my own property but which I propose and intend shall be expended for the maintenance and support of said mission or similar work along the lines upon which I have so long conducted it;

Now, therefore, to carry such intent and purpose into execution, I hereby give and bequeath unto Thos. N. Strong of the city of Portland, Oregon, and Dr. Benjamin L. Myers and H. C. Strong of Ketchikan, Alaska, all of my property, real, personal and mixed, and wheresoever situated;

In trust, however, for the carrying on and support of the religious, medical, and educational work in behalf of and for the use and benefit of the Mission of the Christian Church of Metlakahtla, Alaska, now being conducted at said Metlakahtla, and such other institutions or for such other native people as they may hereafter deem wise or

proper; under condition, however, that said medical, religious, and educational work shall always be carried on in the same spirit and as free from all sectarian influence as it has been my aim and endeavor during the past years to carry it on.

The said trustees shall be vested with the title and ownership and shall take to themselves all my property, real, personal, and mixed, with full power of sale or other disposition thereof, and shall invest and reinvest the same as such trustees shall deem best or as circumstances may make necessary, and apply it and the rents, issues and profits thereof and of such investments to the maintenance, support and upbuilding of said mission work or such similar work as they may hereinafter undertake. In the maintenance of such work I urge upon my said trustees that they shall encourage cleanliness in all things and orderliness and discipline; they shall encourage domestic virtues and habits of forbearance and obedience to, and respect of, parents, and shall train the young girls in domestic duties; that they shall encourage healthy sports and amusements; and the spirit of helpfulness to others who may be in distress or who may meet with misfortune. No alcoholic drinks shall be allowed or dance halls or similar places of bad character, and the living of any of the people in adultery shall be sternly discouraged.

And to the end that the said trustees may have power to carry out as far as may be my intentions in this will, I do hereby declare that for such purpose I give to my said trustees full, free, and absolute power to formulate and carry into effect such or any scheme or schemes as they may deem advisable so as to give effect as nearly as possible to my wishes, and for such purpose to execute and do such acts and deeds as they may deem expedient in order to carry out what they, my trustees, shall decide to be my original desires and wishes, so as to make the same conformable to law; and in case any question shall arise between my trustees and any beneficiary in respect thereto or otherwise in regard to my estate, the decision of my trustees shall be final and binding; and I hereby declare that if it shall appear to my trustees or be decided by any court that any plan to carry out the provisions of this will adopted by said trustees is impracticable or inexpedient, my trustees shall be at liberty to reject the same and adopt new measures and plans; and

I declare that all moneys liable to be invested under this my last will may be invested in the name of the trustees or under their legal control, as to them shall seem expedient, in any good or substantial bonds or first mortgages which my trustees shall deem best. In case of loans on mortgages my trustees shall lend not more than one-half the value of such securities as certified by the valuer or valuers employed by my trustees. And I also declare that the trustees shall serve without compensation but shall be repaid all traveling or other expenses, and shall be at liberty to conduct the said business through other persons or parties or corporations to be formed by themselves or otherwise, to whom they shall pay or give a reasonable support or compensation; and

I also declare that twenty thousand dollars ($20,000.00) of such funds shall be invested separately, and the income thereof shall constitute a fund to be known as the "Benevolent Fund." My trustees, at their absolute discretion, may make from this Benevolent Fund

grants or contributions to members of the Mission of the Christian Church at Metlakahtla, Alaska, or elsewhere, in cases of distress and misfortune which may render them helpless or incapable of proper self-support.

If at any time my trustees shall consider that the need or desirability of such grants from the Benevolent Fund has ceased, then the twenty thousand dollars ($20,000.00) and the income thereof may be merged into the general fund.

I also declare that in case of the death or inability to act of any of said trustees, or if any of said trustees should desire to resign or decline to undertake said trust, that the remaining trustees shall appoint a trustee to take the place of such trustee not acting; and

I do hereby declare that in case any person whomsoever or any institution which shall take any benefit under this will shall take or attempt to take or support any adverse proceedings to set aside any of the provisions of this my will, or shall set up any claim in respect of any of my property whatsoever or wheresoever situated other than what is specifically given to any such person or institution by this my will, such person or institution shall thereby be deprived of such benefit as though no provision had been made for him, her, or them, or for such institution in this will; and

I do hereby declare that the said trustees shall have full power and authority over all said property and all the rents, issues, and profits through the said trust; and if at any time the said mission work at Metlakahtla is carried on by the people connected with it in such manner as may not meet with the approval of my trustees, or it is without effect or beneficial results, then in such case the said trustees may apply the said property and all funds derived by them from the rents, issues, and profits thereof to other church and mission work of the same general character at said Metlakahtla or at such other point or points in Alaska or elsewhere as they mav deem best; and

Lastly, I nominate, constitute, and appoint the said Thos. N. Strong, of Portland, Oreg., Benjamin L. Myers and H. C. Strong, of Ketchikan, Alaska, to be the executors of this my last will and testament, and desire that all bonds to be given by them as such executors or trustees shall be paid for out of the funds of my said estate.

In witness whereof I hereunto set my hand and seal this seventh day of September, in the year of our Lord one thousand nine hundred and sixteen.

[SEAL]

(Signed) WILLIAM DUNCAN.

The above instrument consisting of three pages was at the date hereof signed, published, and declared by the said William Duncan, the testator herein named, as and for his last will and testament. in the presence of us, who, at his request and in his presence and in the presence of each other, have hereunto subscribed our names as witnesses thereto.

(Signed) HENRY S. WELLCOME, Scientific Chemist, residing at 10 Henrietta St. London W. England. (Signed) HENRY J. MINTHORN, M. D.

Residing at Metlakahtla, Alaska.

(Signed) CHARLES S. BOREN,

Court Reporter, residing at 547 East 39th St.,

Portland, Oreg.

*EXCERPTS FROM LEGAL OPINIONS ON THE

METLAKAHTLA CASE

THE OPINION OF HON. JAMES M. BECK, FORMERLY SOLICITOR GENERAL OF THE UNITED STATES

66* * * I am of opinion, for reasons hereinafter stated, that the seizure by Government officials of the buildings and other improvements was without authority of law and against the policy of Congress

* *

"It would be difficult for any fair-minded man to justify in the forum of conscience the act of the Interior Department in forcibly depriving a missionary and his converts of valuable property, to the construction of which the Government had not contributed a penny and which was, in all respects, the lawful property of those who had expended their money and labor upon it. The great commandment, "Thou shalt not steal', the most famous moral statement of property rights, fairly implies that that which a man has constructed with his own money and labor is his property and remains his property until he in some way voluntarily divests himself of it."

THE OPINION OF HON. FRED DENNETT, FORMERLY COMMISSIONER OF THE GENERAL LAND OFFICE

Can the theory be soberly advanced that the Government intended to confiscate the buildings, after asking Father Duncan and the members of his mission to erect them? Such a proposition does not seem to have the elements of good faith.

*

* I may add that the facts, as I understand them, portray a most astounding and unparalleled situation; surely the responsible officers of the Government must have been deplorably deceived and misled."

THE OPINION OF HON. JAMES W. WITTEN, FORMERLY OF THE OFFICE OF THE SOLICITOR FOR THE DEPARTMENT OF THE INTERIOR

"It would be difficult, indeed, to find an instance showing a more flagrant violation of the absolute prohibition of our Constitution which solemnly declares that no person can be deprived of life, liberty, or property, without due process of law' than the Secretary's action in this case, or a precedent more dangerous to the liberties and property of our people.

"Surely such actions can never be upheld where justice is justly administered."

*NOTE: See chapter V, Page 19085 for alleged vandalism committed.

OPINION OF HON. JAMES M. BECK, FORMERLY SOLICITOR GENERAL OF THE UNITED STATES

(July 28, 1926)

You have asked my opinion as to the legal merits of the Metlakahtla case, involving the rights and claims of the late William Duncan, and of the Indians of his Metlakahtla Christian Mission, and you especially direct my attention to your brief on the law, and ask my opinion as to the soundness of its conclusions.

I have carefully considered your brief and the opinion of Mr. Cragin in behalf of the Interior Department, and I am of opinion, for reasons hereinafter stated, that the seizure by Government officials of the buildings and other improvements was without authority of law and against the policy of Congress.

I recognize that the Secretary of the Interior took his action under an authority which, evidently relying on the Cragin opinion, he presumed Congress had given to him by the act of March 3, 1891. This act I shall discuss hereafter, and it is enough to say at the moment that the power of the Secretary of the Interior to regulate the use of the islands by this Christian mission did not give him any power to seize other people's property, and I am confirmed in this conclusion by the first six words of the statute, in which the right of this Christian mission to hold and occupy the reservation of Annette Islands was confirmed "until otherwise provided by law." This obviously meant an act of Congress, and until Congress acts, its previous authority to Duncan and his Indians to hold and use these lands remains inviolable. To prevent misconstruction, I will go further and say that, in my judgment, even Congress could not take, without just compensation, the improvements on these islands, although the statute apparently gives it the power at its will to reoccupy the land upon which the improvements were built.

I need not recite the facts, which are set forth at length in your brief and that of Mr. Cragin. The material facts do not seem to be in dispute. The question is essentially one of law, and as such the matter should be determined.

I began my consideration of the Metlakahtla case with the reasonable presumption that the action of a great department of the Government, especially when it had the sanction of the signature of the Secretary of the Interior, was lawful. This presumption is justified by general experience, for, in the period of the last 30 years, during which I have at different times had the honor of representing the Government as one of its law officers, its actions have generally been not only lawful but just. But the same experience impresses me, and the records of the courts give ample confirmation, that many actions are taken by public officials, presumably inadvertently, which are unjust, and it may be added that there are no injustices quite so great