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Mr. BURKE. Mr. Chairman and gentlemen, I may say this report that has just been read was prepared by me. A report had previously been submitted which was adverse, I think, to the bill. I thought it involved a question that ought to be determined by a committee of Congress, namely, a question of policy. You requested me to read the hearings and I did so, and anticipating that I was to come here yesterday I prepared a little statement, but last evening I was handed an additional edition of the testimony, which I read, and I may want to comment on that.
The CHAIRMAN. Just go ahead in your own way.
Mr. BURKE. I have read the hearings before your committee and will make a brief statement with reference to what is involved without commenting or discussing at any length upon the services that may have been rendered by Mr. Ballinger to the Chippewa Indians of Minnesota. I have no personal knowledge of what he may have done for which he is claiming compensation, except from April 1 of last year, when I became Commissioner of Indian Affairs.
This case involves a question of policy, and one that I hope, as the result of the hearings on the pending bill, will be determined, so that hereafter there may not be similar claims presented.
The members of the committee are familiar with the sections of the Revised Statutes, sections 2103 to 2106, inclusive, with reference to the making of contracts or agreements with any tribe of Indians by attorneys, and I wish to say that it is my opinion that the legislation on the subject is wise. The sections of the statutes are in the hearings in connection with the statement made by the Assistant Commissioner, Mr. Meritt, on January 16.
Mr. Ballinger knew the law, but for reasons best known to himself he elected to proceed as the attorney of the so-called General Council of the Chippewa Indians without submitting any contract to the department for approval, as the law requires. It appears from the testimony that he had contracts at different times with the so-called generil council. He has not contended that there is any authority of law by which he could be paid for his services or for expenses by the department, and he knew that it would require legislation by Congress before the funds of the Chippewa Indians could be used to pay him.
This, however, is not true as to the $10,000 that Congress appropriated formerly for expenses of the general council. There is no doubt in my mind but what all of the $10,000 might have been paid to Mr. Ballinger for his services if the tribal council had so certified. That was entirely independent of any contractual relations. The bureau, from the hearings, disapproved the payments that were certified for his services, but the accounting officers held that under the language of the provision they could be paid-and I might call your attention to the pending bill; it is substantially in the same form of that language, and there is an authorization and direction to the Secretary of the Treasury to pay the money, subject to certain approvals.
It seems that in a prior Congress a bill was introduced authorizing payment for his services, and now it is here in the form of a bill which you are considering. I stated that the matter presents a question of policy and it is for the Congress to say whether or not an attorney who takes a contract with a tribe of Indians without complying with the law and without submitting it to the approval of the department, and the contract not being approved, can recover for his services, as Mr. Ballinger is seeking to do. Without any regard whatsoever and without considering to what extent, if any, Mr. Ballinger may have rendered services to the Chippewa Indians, it is for you to determine this question of policy.
Soon after I became commissioner I was informed by my assistant, Mr. Meritt, who has, as you know, been in the office for many years, that Mr. Ballinger was assuming to represent the Chippewa Indians of Minnesota as their attorney, but that, as he had no approved contract, he was not being officially recognized by the bureau or the department. He also stated that one James I. Coffey was claiming that he was the representative of the only authorized general council of these Indians and that he was frequently calling at the bureau, but that he was not recognized officially as a tribal delegate.
At this point let me say in May, as I recall, I assumed the position of declining to recognize either of these representatives and so advised the superintendent. The letter to Mr. Coffey appears to be in the record, and I do not know whether I notified Mr. Ballinger, but I think it was well understood.
I have no disposition or wish to keep Mr. Ballinger from being paid for any service that he may have rendered, if he has not already been sufficiently compensated for what he has done, but I have some doubt as to whether there is
justification for paying him for his alleged services out of the tribal funds belonging to the Chippewa Indians as a whole. Mr. Ballinger has for some years apparently been advising and representing what he terms the “general council," which in reality is mostly the White Earth Band of Chippewa Indians. They are mostly mixed bloods, highly competent and capable to do their own business, and having, under what is known as the Clapp amendment, had their restrictions removed they apparently are not concerned further about the Chippewa affairs except to conserve the funds belonging to the tribe in order that their per capita shares may not be affected. Therefore their attitude has been more or less hostile to the expenditure of tribal moneys for administrative purposes, hospitals, education, etc. They have attempted to obstruct practically everything the Indian Bureau has favored and have questioned even the authority of Congress to use any of the tribal funds for the support and civilization of the Indians. This has resulted in a large number, made up mostly of fullblood Indians who resent the attempts of the White Earth Band to control their affairs, organizing and I believe incorporating what they call a general council claiming to represent a large majority of the Indians.
Mr. Coffey has so testified in these hearings, and in addition to this condition of affairs and by reason of the activities of the White Earth general council represented by Mr. Ballinger, the Red Lake Band, realizing that their rights were being assailed, entered into a contract with an attorney to represent their interests, which contract was made in accordance with the law and approved by the department, and their attorney is receiving under this contract $3,000 yearly, but is being paid out of the funds of the Red Lake Band—not out of the funds of the general Chippewa Tribe, as is proposed by Mr. Ballinger if this bill is enacted into law. It is my understanding that the Red Lake Band no longer affiliates with either of the other two factions. I mean to the extent that they do not take any part in the elections that the other factions hold for the purpose of choosing a general council. Since I have been commissioner Mr. Ballinger has called on a number of occasions at the bureau, and I have received numerous letters from him with reference to the Chippewa matters. In September, 1921, he presented a contract purporting to have been made by the so-called general council and himself as attorney, by which he was to receive $6,000 a year and expenses.
Now, this is the first contract that Mr. Ballinger has ever presented to the Interior Department for approval, so far as I am able to ascertain from the hearings and from the files of the department.
Mr. JEFFERIS. From what funds did he want to be paid?
Mr. BURKE. Yes, sir. This contract was not approved but was disapproved. I understand that Mr. Ballinger in the hearings indicated to this committee that I had written him a letter, in effect indicating that I was inclined to approve his contract and that you may know what I wrote him, I will read you the only letters that were written him by me on the subject.
On October 26, 1921, in order that you may see the attitude of the department, this question coming up of persons appearing either as attorney or delegate, representing Indians, apparently without authority, and it appearing to me that by receiving them there might be an implied liability on the part of the tribe, I took the matter up with the Secretary and he issued this circular under date of October 26, 1921 :
OCTOBER 26, 1921. Hon. CHAS. H. BURKE,
Commissioner of Indian Affairs. DEAR MR. COMMISSIONER: It has come to my notice recently that attorneys assuming to be employed by certain Indian tribes are appearing before your bureau and the department urging action on various matters pertaining to the affairs of the Indians. I wish to call your attention to departmental order of December 8, 1898, and also attention is invited to the provisions of the act of June 30, 1913 (38 Stat. L., 97), relating to contracts with Indians; also sections 2103 to 2106, inclusive, of the Revised Statutes.
Until attorneys have a contract secured and approved as provided by the regulations and the statutes, they should not be permitted to appear before the department on behalf of Indian tribes or be recognized as having any authority
to represent said tribes. No delegate or representatives who may be appointed by some band or faction of a tribe should be recognized as representing the tribe in any case to the extent of incurring any liability to the tribe or to the Government. Sincerely,
E. C. FINNEY, Acting Secretary. The CHAIRMAN. I notice there, Mr. Commissioner, that you use the word “ tribe” frequently. That is to designate the word tribe as against an individual or a band?
Mr. BURKE. Or a band, yes.
The CHAIRMAN. You have no objection, as I understand it, to an attorney representing a band for the band itself?
Mr. BURKE. None whatever. And I will discuss that later.
Mr. BURKE. I would like you to ask me that a little later and I will discuss it.
I visited these Indians last summer and held a number of councils with the different bands, and in each instance I urged them to consult the two Senators and the Members of the House of Representatives with regard to their affairs, stating that there is no State more ably represented than is Minnesota in both branches of the Congress; and that it seemed strange to me that, with men who are citizens of the United States and of the State of Minnesota, with the intelligence that prevails among a very large number of the Chippewa Indians, particularly those of the White Earth Reservation, they would be depending upon an attorney of this city to represent them instead of securing the assistance of their Senators and Congressmen.
Almost without exception, when I have talked with Senator Nelson or any of the House Members from Minnesota, with reference to the Chippewa Indians, I find they are not in accord with Mr. Ballinger's contentions, and I believe the only way to secure constructive legislation is through the Senators and Representatives from the State.
I want to say, Mr. Chairman and gentlemen, in connection with the disapproving of this contract which Mr. Ballinger presented in September, I think, 1921, executed on August 5, that there were two or three reasons why we disapproved it. One was that we were clearly of the opinion that Mr. Ballinger was representing mostly the White Earth Indians, and that this expense ought not to be incurred out of the funds belonging to all of the Chippewa Indians, which include the Red Lakers. I will say frankly that we also felt that by reason of Mr. Ballinger's activities it was doubtful if he could render a service commensurate with such a salary, due to certain antagonisms that seemed to exist–and I say that in all kindness; my relations with Mr. Ballinger are entirely cordial and friendly, but I have found with the Members of Congress from the districts that cover this Chippewa area, and the Senators from Minnesota, that there is not a feeling prevailing that I considered conducive to securing legislation that perhaps ought to be enacted in regard to the affairs of these Indians.
And I want to say also this with regard to Mr. Ballinger, there is no question at all about Mr. Ballinger's activities. The hearings disclose and the records disclose, and the chairman and perhaps other members of the committee know that he has in season and frequently been before the committee on matters pertaining to the Chippewa Tribe, but, as I have stated, his attitude has been that of questioning practically the entire administration, you might say, of the affairs of the Chippewa Indians to the advantage--that would seem to be the purpose of the mixed-blood element; and that you may understand my position-I do not wish to say he ought not to be paid; I think he ought to be paid; somebody ought to pay him if he has not been already compensated, but it has been stated here before this committee that the White Earth Band of Indians are not only intelligent, but many of them are very prosperous and well to do. Recently we made a per capita payment of $100 per person to the Indians, and if they want to employ an attorney they ought to contribute individually to raise a fund and employ an attorney, and so far as the bureau is concerned there will be no disposition whatsoever to ignore them; they will be given the most courteous reception and opportunity to present anything that they may wish to present; but the question,
gentlemen, that I am considering is whether Mr. Ballinger, by reason of his relations with this White Earth Band, can represent the interests of all the Chippewa tribes. Here is the element that Mr. Coffey assumes to represent; then there is the Red Lake Band. Now, there is another question that I want to submit for your consideration. I want to assume, for the sake of argument-not that that is admitted—that the so-called general council that Mr. Ballinger represents the regularly constituted General Council of the Chippewa Indians, and that there is no other, and that there is no question whatever about that being the general council. That council can not make a contract to employ an attorney that will incur a liability legally upon the members of the Chippewa Indians until it has been submitted and approved by the Interior Department. There isn't any question about that.
I want now to call your attention to Mr. Ballinger's position, or his actions, which carry out the thought that he did not expect that he could recover for his services except from the $10,000 appropriation, only by coming to Congress. In different bills heretofore introduced there is a provision authorizing payment to Mr. Ballinger for his services, clearly showing that he realized and understood that the only way that he could be paid, except out of the $10,000 fund, was by authority of Congress. And in the so-called Schall bill, I believe it is termed, there are two provisions, sections 8 and 9. In the first Schall bill, introduced in February, 1921, are similar provisions; but on June 17, H. R. 7214, the second Schall bill, section 8, provides that the General Council of the Chippewa Indians of Minnesota, organized in May, 1913, shall be continued ; that said council shall have the right to employ an attorney at a salary not exceeding $6,000 per annum and actual necessary expenses, under contract to be approved as required by existing law, the expenses of said council and attorneys to be paid out of the funds of said Indians.”
Then comes section 8, directly appropriating $21,000 out of the tribal funds in full payment for all services rendered and money expended by the attorneys for the General Council of the Chippewa Indians of Minnesota up to July 1, 1921.
Now, gentlemen, as I stated a moment ago, I am not questioning in any manner the services that may have been rendered by Mr. Ballinger. He has been very diligent, but the question that I want you to determine is whether or not that is a service that should be paid for from the funds of the Chippewa Tribe of Indians, assuming that he may not have already been compensated. I presume that is a question that you will consider.
I want to say further that in enacting legislation, should you so conclude to do, I hope you will change the form of the bill by first determining what amount, if any, you are going to pay Mr. Ballinger, and authorize the payment of that amount, because it does seem to me that this committee with all the information that there is in these hearings and the information that the chairman and other members of the committee may have by reason of having been on the committee since Mr. Ballinger's activities began some six or seven years ago, that you are better equipped to determine the question than anybody else, and I hope that you will finally determine it.
I stated that I came here with no unfriendliness toward Mr. Ballinger whatsoever. It seems that he proceeded along here for six or seven years under some understanding with the so-called general council. And he knew the law. He came to Congress on more than one occasion; he is here now, and there is no question about the power of Congress to act; that Congress can appropriate the entire amount if it so desires, but it is for Congress to say. Mr. Chairman, if there are any questions that anybody desires to ask me I will be glad to answer them if I can.
The CHAIRMAN. I have a few questions that I would like to ask you.
It has come to the notice of the chairman at least a statement that you have written a letter to Mr. Ballinger recommending a contract or indicating that you would recommend a contract. What have you to say about that?
Mr. BURKE. I guess I have all the letters that were written on the subjectcopies of them here. If I have not, I intended to bring them. You say that is stated in a letter?
The CHAIRMAN. No; it has been stated to me.
Mr. BURKE. My recollection is that the reason I brought these letters was that I saw in the record that Mr. Ballinger had stated that I had written him some letter in which I indicated that I would make such a recommendation.
The CHAIRMAN. I am not certain about that, but I have been told so.
Mr. BURKE. Well, I have copies of three letters written Mr. Ballinger. One is dated September 21, which acknowledges receipt of a formal attorney's contract executed August 5, which is a mere acknowledgment.
The CHAIRMAN. That may go into the record. (The paper referred to follows :)
SEPTEMBER 21, 1921. Mr. WEBSTER BALLINGER,
Washington, D. C. MY DEAR MR. BALLINGER: Receipt is acknowledged by your reference of a formal attorney's contract, executed August 5, 1921, with the Chippewa Indians of Minnesota, to represent the latter in all matters affecting their property interests, etc. The contract, which is executed in triplicate, will receive proper consideration, Cordially yours,
Chas. H. BURKE, Commissioner.
Mr. BURKE. I have another letter which probably is the letter he had reference to, which is addressed to Mr. Ballinger, dated December 17, 1921 :
DECEMBER 17, 1921. Mr. WEBSTER BALLINGER, City.
MY DEAR MR. BALLINCER: After carefully considering all that you have presented by letter and orally with reference to the contract you have submitted for approval between the so-called business council of the Chippewa Indians of Minnesota and yourself as attorney, I will say that at this time I am unable to recommend that the contract be approved, and, in view of your request that it be determined one way or the other at once, I have recommended that it be disapproved, and in this recommendation the Assistant Secretary concurs.
It is apparent, without any regard as to whether the business council that authorized your contract represents a majority of the Chippewa Indians, that it is distinctively representative of a faction of the tribe and that its attitude is not in accord with that of other bands or factions, and it would therefore hardly seem that we would be justified in authorizing tribal funds to be expended in paying for your services as proposed by the contract submitted.
I fully appreciate that you are actuated entirely by conscientious motives and that you believe that your ideas concerning the Chippewa situation are for the best interests of all the members of the tribe, and therefore it is with regret that I am compelled to recommend unfavorable consideration of your employment as proposed in the contract submitted. Cordially, yours,
CHAS. H. BURKE,
Commissioner. On December 20, 1921, a formal letter was sent to Mr. Ballinger, reading as follows:
DECEMBER 20, 1921. Mr. WEBSTER BALLINGER,
Washington, D. C. MY DEAR MR. BALLINGER : Referring to my letter of December 17, 1921, you are advised that your attorney's contract with the so-called business council of the Chippewa Indians of Minnesota was disapproved December 17, 1921, by the Acting Secretary of the Interior.
The superintendent in charge of the White Earth Agency, Minn., is being advised of the action had in the case. Sincerely, yours,
CHAS. H. BURKE, Commissioner. The CHAIRMAN. Those are the only letters you have written Mr. Ballinger with regard to a contract?
Mr. BURKE. Yes; and I want to call the committee's attention, so they will not be confused, to the fact that the bill pending proposes to pay Mr. Ballinger for services previous to July 1, 1921. These letters and our action on the contract were entirely with reference to a contract that he had submitted in September, 1921, that I have spoken of, and it has no reference to anything prior to July 1; and furthermore, as I stated, I did not come into office until April 1,