FEBRUARY 8, 1938.-Committed to the Committee of the Whole House on the state of the Union and ordered to be printed

Mr. HILL of Washington, from the Committee on Indian Affairs, submitted the following

REPORT

[To accompany S. 95]

The Committee on Indian Affairs, to whom was referred the bill (S. 95) referring the claims of the Turtle Mountain Band or Bands of Chippewa Indians of North Dakota to the Court of Claims for finding of fact and recommendations to the Congress, having considered the same, report thereon with a recommendation that it do pass with the following amendments:

On page 2, line 9, beginning with the word "The" strike the reremainder of said line and all of lines 10, 11, and 12.

On page 6, line 6, strike the comma following the word "States" and insert in lieu thereof a period and strike the remainder of the paragraph down to and including line 13.

On page 6, line 14, beginning with the word "Upon" strike all matter down to and including the word "Act," in line 25.

On page 7, line 2, strike the word "amounts" and insert in lieu thereof the word "proportion".

STATEMENT OF USHER L. BURDICK, ON S. 95

From time immemorial the Chippewa Indians occupied an area of land located in the northern part of North Dakota comprising approximately 10,000,000 acres of land. Their right by occupancy of this area was never disputed by the white people, but many times disputed by their Indian enemies, but they were always able to protect their own homes.

An Executive order was issued by the President of the United States on December 21, 1882 which opened up this area for white settlement, and the Indians were not compensated for the land nor were they

H. Repts., 75-3, vol. 1-46

consulted. The matter stood in accordance with this order until June 3, 1884 when another Executive order was issued still limiting the area of land to which they were entitled and they were confined on the small reservation where their decendants still live.

In 1902 an agreement was entered into between the Government and a few of the leaders of some of the bands of Chippewas whereby the Indians finally agreed to accept $1,000,000 for the 10,000,000 acres taken away from them, This agreement was ratified by Congress on April 21, 1904.

The bill now before this Congress provides that the entire matter be submitted to the Court of Claims for the purpose of finding out the facts and presenting those facts to Congress. There is no attempt in this bill to authorize the Court of Claims to enter any judgment, but merely to find the facts and have those facts submitted to Congress. The legal and moral grounds upon which the Indians want to submit facts are as follows:

1. Over 20 years had elapsed from the time the Government arbitrarily took possession of their land until any settlement whatever was attempted, so that if the Indians did, in fact, agree to the contract, which all did not, it would be no more than might be expected by Indians who had seen their claim held up for 20 years, and no doubt some of them thought it would be better to take something than nothing.

2. All of the bands did not enter into the agreement, and particularly the band of Chief Little Shell, who absolutely refused to enter into the deal, and his was the most powerful band of the Chippewas.

3. That the payment of $1,000,000 for 10,000,000 acres of land shows upon its face that the transaction was unconscionable. At the same period of time the Northern Pacific Railroad Co. was in possession of millions and millions of acres of land given to them by the Government, and at the time this settlement was made at 10 cents an acre with the Indians, these Northern Pacific lands within the same State, and of a similar character, were selling from $1.25 to $20 an acre.

Inasmuch as all that is asked for by the Indians in this bill is to have the facts found by the Court of Claims and presented to Congress for such action as they deem, in their wisdom, appropriate, just, and equitable, it would seem to me, therefore, that there should be no Member of Congress from any section of the United States who would oppose this bill.

The following is a letter addressed to the chairman, Committee on Indian Affairs, United States Senate, relative to this proposed legislation:

Hon. ELMER THOMAS,

THE SECRETARY OF THE INTERIOR,
Washington, April 20, 1937.

Chairman, Committee on Indian Affairs,

United States Senate.

MY DEAR MR. CHAIRMAN: Further reference is made to your request for a report on S. 95, referring the claims of the Turtle Mountain Band or Bands of Chippewa Indians of North Dakota to the Court of Claims for finding of fact and recommendations to the Congress.

An investigation discloses that these Indians assert a number of claims against the Government for what they consider violation of treaties with the United States. These Indians originally held the lands by right of occupancy and possession approximately 10,000,000 acres of land situated in the north central part of the State of North Dakota. It is alleged that the United States entered

upon these lands, except those withdrawn for their benefit by Executive order of December 21, 1882, and opened them to homestead entry and settlement without the consent of the Indians or without making any compensation for the land so entered. These Indians were later further limited in the area reserved for their benefit by Executive order of June 3, 1884, by which they were confined to their present reserve. An agreement was later entered into which was ratified by the act of Congress of April 21, 1904 (33 Stat. L. 195), whereby the Indians agreed to accept $1,000,000 and execute a general quitclaim and release of all claims whatsoever held by them against the United States. The Indians allege that the 10,000,000 acres of land were of much greater value than $1,000,000 inasmuch as other lands of like character in the locality had been conveyed by the treaty for a much larger sum.

Another claim which has been brought forward by these Indians is that children born to members of the tribe since October 8, 1904, the date on which the Indians accepted the amended agreement, as well as children born prior thereto, are entitled to allotments on the public domain. There is no land on the reservation which is now vacant and subject to allotment. In the case of Voight v. Bruce (44 L. D. 524), the Department held that children born since October 8, 1904, are not entitled to allotment or to enrollment with this tribe. There are approximately 1,000 children for whom the Indians desire to obtain allotment on the public domain or a cash payment in lieu thereof.

They also claim that the individual Turtle Mountain Indians who were forced to take allotments on the public domain, paid from $5 to $7 for each such allotment, whereas the agreement of April 21, 1904, provided that they should be entitled to take such allotments without charge. These charges arose by reason of payments by individual Indians to "professional locators" for services rendered to such Indians in locating the land for their allotments. No charges, either for the land or by way of fees or commissions of any kind to the Government were made against the Turtle Mountain Indians for any allotment taken on the public domain. As these Indians resided in North Dakota, and most of the public lands then available for allotment were in Montana, the payment of these fees to locators appeared to be necessary, to enable the Indian applicants to fill out the necessary papers for filing in the local land office.

They further claim that by the act of June 22, 1910 (35 Stat. L. 585), their rights under the agreement were further abridged, inasmuch as they were given patents for the surface rights only, and were not entitled to any mineral lying beneath the surface. Whether these claims for individual allotments, payments made in order to obtain them, and the patenting of surface rights instead of unlimited patents are tribal or individual, may be considered as a matter for the court to decide, inasmuch as it appears that such allotments were provided for by the agreement.

A part of this tribe left the main body thereof and refused to participate in any way under the various treaties. This division was under the leadership of Chief Little Shell. These Indians finally settled at various places in the State of Montana on the public domain, where they now reside. The Little Shell Band asserts certain claims under the various treaties with the United States even though the band did not participate in the negotiations. The Little Shell Band also has claims which should be adjudicated.

This bill would refer the claims to the Court of Claims for finding of fact and report to Congress. It does not require the court to render judgment but only to submit a report to Congress for such action as may be taken by that body. There is, however, a provision in section 1 of the bill which may prove embarrassing.

It is recommended, therefore, that the words "as recognized by the officials of the United States," in lines 3 and 4, page 2, be eliminated, inasmuch as such words do not designate any particular official. Such recognition as might be introduced in court under the phrase above quoted may have been made by a superintendent in the field, or even a lesser authority at some Indian agency, and would not be binding upon the United States. The only authority which would ordinarily bind the United States in these circumstances is the Congress.

The Bureau of the Budget advised, on March 23, that neither the proposed legislation nor your proposed favorable report thereon would be in accord with the program of the President.

The Bureau of the Budget requested the opinion of the Attorney General on this legislation. In a letter dated March 17, the Attorney General stated that no objection was found to the enactment if it is amended as follows:

a. Štrike out the last sentence of section 1 (p. 2, lines 9-12) of the bill.

b. Strike out the word "directly" appearing in section 2 (p. 3, line 18). c. Strike out the last part of section 4, beginning with the word "and" on page 6, line 6, to the end of the section.

d. Strike out the words "the recovery in each instance" appearing in section 5 (p. 6, lines 16-17) and substitute the following: "any amount subsequently awarded the said band or bands of Indians by Congress.'

The reasons given by the Attorney General for these proposed amendments are: a. This sentence proposes to direct the court to consider all claims de novo, without regard to any prior decision, finding, or settlement.

b. As drawn, section 3 proposes that the United States should allow credit for any sum paid or expended directly for said band or bands of Indians; whereas, it is the prevailing policy in this type of cases to allow the Government credit not only for direct expenditures in behalf of the tribe, but for all disbursements made for its benefit.

c. This provision proposes to direct the Court of Claims to recommend to the Congress such amount as may appeal to its conscience under the principles of equity and justice as proper to be paid to the Indians. The preceding part of the same sentence proposes to direct the court to make findings with respect to the claims and determine the value of the lands involved therein at the time that they were ceded to or taken from the Indians by the United States. It would seem proper that the findings of the Court of Claims should not include any general recommendations as to what should be paid to the Indians as a matter of equity and justice.

d. In view of the fact that under the proposed bill the Court of Claims would not render judgment, but merely report findings of fact to the Congress, the term "recovery" would seem inappropriate.

The Attorney General advised further that he had no objection to the amendment proposed on page 3 of this report.

Sincerely yours,

CHARLES WEST, Acting Secretary of the Interior.

O