Congress never intended that the Indians should be deprived of the value of their property in such manner. As it is impossible to administer the act of 1908, aside from its confiscatory provisions, without heavy loss to the Indians, and consequent liability to the United States, all by reason of inaction on the part of those authorized by law to protect the rights of the Indians, it is respectfully submitted that this presents a further reason why the entire matter should be referred back to Congress for appropriate legislation under which the Indians will receive some reasonable degree of justice and the United States may be freed from the imputation of bad faith which now exists.

For the reasons set out in the appeal and this supplementary paper I respectfully submit that the report of the commission should be reversed and rejected. Respectfully submitted.

MARCH 20, 1923.

EDWARD A. ROGERS,
Representative.

Mr. BALLINGER. Before the Indians would select their representatives under the act of 1908, they adopted a resolution, and I think the chairman, Mr. Burke, was present at that meeting in which they expressly declared that their action in selecting representatives should not be considered as a waiver of any of their rights under the agreement of 1889.

Mr. BURKE. I drafted that resolution and urged it, because I did not intend as to the council electing an appraiser it was to be a bar to any legal claim that they might have, if they have one.

Mr. HENDERSON. Mr. Graves, representing the Red Lake Indians, desires to be heard orally in reply to what has been introduced this morning; that is, new matter introduced this morning, and also to make a reply in a written statement.

Mr. HUDSON. Very well, if he can finish in a few minutes.

ADDITIONAL STATEMENT OF MR. PETER GRAVES, REPRESENTING RED LAKE INDIANS

Mr. GRAVES. I just simply want to make a statement, after hearing Mr. Ballinger's argument, that I represent the Red Lake Band of Indians, and they expect me to make their wishes known here before Congress or the Indian department. I am authorized to speak on any subject that may come up pertaining to their tribal matters, and I want to express myself here that it is for their interests that H. R. 28 should be passed by Congress. I am not considering any arguments at all against it on behalf of the Red Lake band, and I want to go on record before this committee to that effect, that this $1,060,000, is accepted by me for and on behalf of the Red Lake Indians that I represent. This man who has had to do with the estimating of that timber is the most reliable man the Red Lake Indians could call upon. He has made these estimates, and if we called on any one, if we had the right, we would pick out the same man. Why should we delay having this matter placed to the credit of the Red Lake band whom I represent, which means that thi money will go to all the Chippewas of Minnesota, and it is for their benefit that this money, if it is placed to their credit, instead of keeping it away and saying that it would not be a correct settlement. În other words, I do not propose, if I can help it, to have some attorney here keeping legislation off expecting that, in the end, he may get 10 per cent contingent fee in these Chippewa tribal matters that may come up. In other words, I would not put the Red Lake Indians to 10 per cent expense for whatever may come to them in the claims in the future or in the past. I want to express myself so that my

people will know that I have said something here to establish myself in regard to these bills. These bills are for their benefit, and there is no attorney going to get 10 per cent fees out of it. In that one bill, if we should have to pay, we would lose $100,000 right there for the benefit of some certain individual, and that would not be right for me to let that go by without making some protest. The reestimating of that timber would amount to thirty or forty thousand dollars, and, in the meantime, we would be losing 5 per cent interest on $1,060,000, and it is out of the question to side with any objections against H. R. 28.

Mr. HASTINGS. As I understand, all parties have been heard, all the Indians present have been heard, and all attorneys representing any band or faction of Chippewa Indians have been heard, and the department has been heard. Is there anyone else who wants to be heard?

Mr. ROACH. I see Mrs. Madison shaking her head. Mr. Madison, before the committee a few days ago, requested permission to file some papers with the committee. I do not recall what statement it was he wished to file, but the committee gave him permission to file that with the chairman.

Mrs. MADISON. He does not wish to be heard. Mr. Madison is ill in bed. He expected to be here this morning before the committee, but is unable to leave, and asked that he might have the opportunity to give it to you.

Mr. HASTINGS. If the opportunity is given him to file that statement or argument, will that satisfy you?

Mrs. MADISON. If that is satisfactory, the committee has this brief. All he wants is to get that material before the committee.

Mr. BURKE. I think the record ought to show, for the information of the committee, and I do not think this would be questioned, that under the act of 1889, before there was any change in legislation, there was, in round numbers, 200,000 acres of timber land disposed of, where the land went with the timber. Do you accept that, Mr. Ballinger?

Mr. BALLINGER. I am not certain.

Mr. HENDERSON. On behalf of the Red Lake Indians, may we have the privilege of replying to any new matter filed in papers by Mr. Madison.

Mr. ROACH. We have to have some place to close these hearings. Mr. HENDERSON. We have no idea what will appear in the papers filed by Mr. Madison, and if it in any way affects the attitude of the Red Lake Indians, we would like to have the opportunity to reply. Mr. HUDSON. Yes; if you are able to do it within five days.

Mr. BALLINGER. I think I have in my office several resolutions that have been adopted by Indians out there in council, dealing with this matter, and with the permission of the committee, I will transmit them, if you see fit to incorporate them.

Mr. HUDSON. They may be filed with the committee.

Mr. HASTINGS. I intended to make a motion to close the public hearings, except that such permission might be granted.

Mr. HUDSON. Mr. Madison may file his statement, and within five days Mr. Henderson may file a reply.

Mr. ROACH. Then Mr. Ballinger can file his matter.

Mr. BURKE. If you are going to have the resolutions of the socalled general council, which Mr. Ballinger speaks of, incorporated

in the hearings, then you should also have the resolutions of other councils of the Chippewa Tribe. There is another alleged general council which does not cooperate and operate with this other one. Are those resolutions of recent date? I suppose you have reference to the meeting of last July?

Mr. BALLINGER. I have not reference to that, although I figure it ought to go in.

Mr. ROACH. I am familiar with the fact, that there is a controversy with different factions or so-called factions of the tribal councils, and I do not see the necessity of encumbering the record with all these various resolutions, although I have no objection to it. Mr. HUDSON. The permission to Mr. Ballinger to file with the committee did not mean that they should go into the record. That will be for the committee to decide.

Mr. HASTINGS. I am perfectly willing to leave it to the chairman. Mr. ROACH. Let all these papers be filed with the chairman and the committee in executive session will determine which ones will into the record.

go

Mr. JAMES I. COFFEY. I would like to have Mr. Ballinger state just whom he represents. He went over that matter in a general way, but we can not tell from his statement just whom he represents. Mr. HUDSON. That is pretty thoroughly in the record.

Mr. BALLINGER. The only way I can answer that would be to submit the record of the last general council, showing the names of the delegates, where they are from, and who they are who elected

me.

Mr. F. W. PEAKE. You might inform the chairman that the general council is really not in existence any more.

Mr. COFFEY. There are three "councils" they call "general councils." One is what Ballinger calls "general council," and there is the real "general council," and the "General Council of the Chippewas."

The legislation proposed in H. R. 28, Sixty-eighth Congress, first session, is the growth of the agreement between the United States and the Chippewa Indians in the State of Minnesota, made pursuant to the act of January 14, 1889 (25 Stat. 642), in connection with which must be considered the act of May 17, 1900 (31 Stat. 129), the act of June 27, 1902 (32 Stat. 275), and the act of May 23, 1908 (35 Stat. 268.)

NELSON ACT

The act of January 14, 1889, commonly known as the Nelson Act, resulted in the cession and relinquishement by the Chippewa Indians in the State of Minnesota of all their reservation lands in that State; and the United States, as trustee, agreed to take the lands, and after making allotments thereon to the individual Indians entitled to allotments, to sell and dispose of the remainder of the property for the benefit of the Indians, upon terms and conditions set forth in the act.

The Minnesota Chippewa Indians, then as now, comprised the following bands: Grand Portage, Bois Forte, Fond du Lac, Red Lake, Pillagers (four bands), and Mississippis (six bands.)

There were 12 reservations, namely, Grand Portage, Bois Forte, Deer Creek, Fond du Lac, Chippewa, Red Lake, Leech Lake, Cases Lake, Lake Winnebagoshish, White Oak Point, Mille Lac, and White Earth.

The reservations above named are shown on a rough sketch of the State of Minnesota hereto attached.

The act, together with a copy of each of the agreements made with the several bands, is to be found embodied in H. R. Ex. Doc. No. 247, Fifty-first Congress, first session.

After the cession and relinquishment provided for in the act the United States proceeded to make allotments, to sell the pine lands, and to open the agricultural

lands to homestead settlement. The sale of their pine lands, under the operation of the act of 1889, proved very unsatisfactory, if not indeed disastrous, to the Minnesota Chippewas. Some idea of the lack of protection afforded the Indians may be gathered from the report of J. Geo. Wright, United States Indian inspector, in his report of December 31, 1896, made in compliance with department instructions dated October 21 and 31, 1896, in regard to the estimation of timber on Chippewa ceded pine lands in Minnesota, report being found in Senate Document 70, Fifty-fifth Congress, third session. În speaking of the tracts of pine lands examined by him in 1896 he says:

"A total of eighty-five 40-acre tracts were examined and found to contain 17,271,000 feet, against 9,635,000 feet previously reported, of which 61 tracts containing 12,472,000 feet, against 5,547,000 reported, were sold, and 24 tracts with 4,799,000, against 4,088,000 previously reported, remained unsold at time of my examination."

A report from the Committee on Indian Affairs of the House (H. Rept. No. 1473, 57th Cong., 1st sess.), in referring to the act of 1889, says of it:

"It may safely be said that no act has been so troublesome to the Government as has the law to dispose of the timber lands of the Chippewa Indians of Minnesota. The department has done all it could to protect the interests of the Indians and of the Government, but has been unable to do so except by withdrawing the timber from the markets. The plan of sale provided in the original act was far from satisfactory. An examination of the reports of the various corps of estimators will convince anyone that great frauds were committed. Upon investigation it was found that many tracts of pine contained more than twice the amount reported in the estimates. The valuable timber on this reservation has been disappearing and the Government has been expending large sums of money for salaries and to the Indians, and but a small amount has been received from the sale of timber.

"There are 4,747,931 acres of land in the Chippewa Reservations in Minnesota. There were nearly 3,000,000 acres of land ceded. Of this amount about 2,000,000 acres have been classified, leaving about 1,000,000 acres yet to be examined and classified. There have been 160,000 acres of timber land sold and 500,000 acres of agriclutural land homesteaded.

"The commissioners who were sent out to treat with the Chippewas reported that the pine ceded was estimated by the various parties at from $25,000,000 to $50,000,000, but the Department has received from the sale of said timber and lands only the sum of $1,040,440.49, while it has paid out and advanced over $2,800,000. The Secretary of the Interior, the members of the Minnesota delegation in Congress, and the members of the Chippewa Tribe of Indians ask that the act of January 14, 1889, be amended."

MORRIS ACT

The act of June 27, 1902, commonly known as the Morris Act, amended the act of 1889 in several essential respects; greater protection was provided for the Indians in regard to the manner of advertising, estimating, measuring, and selling the timber. The plan of bank scaling the logs under the Scribner's rules was adopted; all merchantable pine, whether green or dead, standing or fallen, was required to be accounted for; and the system of checking was included, which added much to the protection of the Indians.

But the act of 1902, ignoring the fact that the United States had taken over the Chippewa lands under an express agreement, solemnly entered into with the Indians, assumed to treat the unallotted and unsold lands as public domain, and established thereon a forest reserve, of 200,000 acres or more, without providing compensation to the Indians therefor. Indeed, there appears to be no indication in the act itself that Congress contemplated making compensation for the same in the future.

Under the act of 1889 no distinction was made between the different grades, kinds, and quality of pine timber; the minimum price for all pine was fixed at $3 a thousand. Under the act of 1902 the minimum prices of two kinds of pine, namely, Norway pine and white pine, were fixed at $4 and $5 per thousand, respectively. The distinction between merchantable pine and what might not be considered merchantable is first made by the terms of the later act, and all merchantable pine timber on any tract purchased is required to be cut. The act provides that the purchaser shall cut no timber other than pine; but sets a minimum price for only two kinds of pine, namely, Norway and white pine.

On the lands reserved for forestry purposes it is provided that 5 per cent of the pine timber shall be left standing for the purpose of reforestation. No provision is made in the act for paying for the timber so left standing.

MINNESOTA NATIONAL FOREST ACT

By the act of May 23, 1908, Congress, after a lapse of nearly six years, recognized the right of the Indians to a settlement for the value of the property taken under the Morris Act, and additional property taken under the act of 1908 itself.

It provided for the appointment of a commission to estimate and report to the Secretary of the Interior the amount of loss or damage to the Indians by reason of the forestry provisions contained in the two acts.

This commission, instead of being appointed forthwith as the act provided for, was not appointed until 1922, 14 years later.

Then it did not proceed with its work, executing the same promptly; and its report to the Secretary of the Interior was filed in January, 1923.

JACK PINE AND HARDWOODS

After estimating, appraising, and reporting on the value of the white and Norway pine over 10 inches in diameter left standing on the ceded lands, for which the Indians were entitled to payment, the commission made further report of the other timber thereon, namely, the jack pine, the hardwoods, and the small Norway and white pine trees, estimating the total value of these three classes at the amount named in the bill H. R. 28, namely, $1,060,887.70.

It seems that because the terms "jack pine" and "hardwood" were not specifically mentioned in the act of 1889, of 1902, or of 1908, and because pine trees smaller than 10 inches in diameter were, perhaps, not considered "merchantable in the early days, doubt has arisen in the minds of some as to whether the Indians are now entitled to pay from the United States for the actual value of these three classes of timber.

Unquestionably, under the agreement of 1889, the United States, acting as the curator, guardian, trustee, or agent for the Indians, accepted from the latter a cession of the lands and timber and agreed to sell the same at the highest obtainable price. That was the representation held out by the Rice commission when negotiating with the Indians and was the inducement to bring about the cession. (H. R. Ex. Doc. No. 247, 51st Cong., 1st sess., p. 71.)

Under the 1889 agreement there is no distinction made between the several kinds of pine. All lands on which there is standing or growing pine must be classed as "pine lands" and sold accordingly; all other lands are arbitrarily called “agricultural lands" to distinguish them from the pine lands, and are to be disposed of as provided in the act.

By the amendment of 1902 it is clearly shown that it could never have been the intention of Congress, merely by using, in the 1889 act, the language "standing or growing pine," to deprive the Indians of pay for the value of the so-called "dead and down" timber found on the ceded lands; so, likewise, if there was saleable hardwood on such lands, it could not fairly be contended that Congress ever intended, merely by adoption of the arbitrary term "agricultural lands,' used in the act, to deprive the Indians of the value of such hardwood timber, and to allow the land, with timber included, to be homesteaded at $1.25 an acre. No express authority is found in the law for classifying jack pine land as "agricultural land"; and no valid reason can be offered for depriving the Indians of the value of saleable hardwood solely because of the arbitrary classification as "agricultural lands" of all ceded land on which there was not "standing or growing pine" timber.

In 1902 Congress, disregarding the express agreement of 1889 between the Indians and the United States, saw fit, under the Morris Act, to appropriate a vast area of the ceded lands for a purpose wholly foreign to anything contemplated in the agreement, and thereby to subject the Government to the obligation to pay for the property so appropriated, at least the price that it was then worth in the market. The same is true of the additional ceded property similarly appropriated and taken by the United States under the act of 1908.

A part of the property so taken, under the two acts thus referred to, and not vet paid for, are the jack pine, the hardwood, and the Norway and white pine under 10 inches in diameter on the forest reserve. Their value has been estimated by the commission at $1,060,887.70, the amount named in the bill H. R.

28.

The evidence submitted shows that the sum named is the minimum value of the property; and, if the Indians do not receive pay for it, then the United States has by legislation acquired the same from the Indians, without consider