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and therefore there is only three months of the time for which he is claiming compensation that was in my administration.
The CHAIRMAN. During the taking of this testimony from time to time—or at least at some time during the taking of the testimony—there were put into the record references to laws which were precedents, or seemed to be precedents, for this bill we are now discussing. Do you know of any measures similar to this that would be a precedent, that would enable this committee to make up its mind as to whether it would be justified in passing this bill or not, considering the policy that is involved ?
Mr. BURKE. Will you let me see that record, please, the record of the hearings? I read in the hearings the statement of Mr. Ballinger wherein he cited certain precedents. There were three, I think, and not being aware of any precedents that would apply to this case, I looked up the cases cited. Two of them, the act of August 1, 1914, and, I think, the act of July 6, 1912, which he cites, have to do entirely with some persons who were denied or had applications on file for individual enrollment and were successful in getting upon the rolls, and they were allowed to share in the tribal money, and Congress very properly authorized, where those persons had employed an attorney, that he should be paid for his services out of the funds due to the individual. In one case they were Indians of the Five Tribes. After they are enrolled they are citizens and could make a contract, and before they were enrolled you would hardly consider them as Indians because they might not be found to be Indians and there would not be that question of the right to enter into any agreement with them, and it is quite a different proposition from a contract made to represent a tribe of Indians.
You will find that those two cases are concrete and apply to just certain individual persons that were denied enrollment.
The CHAIRMAN. Of course, that is not a precedent for this at all?
Mr. BURKE. I would not say so. Now, the other case, the act of June 21, 1906, wherein he calls attention to compensation paid to Butler, Vale & Gordon, I did not look up because I have a very distinct recollection of the case when I was a member of this committee, and I am very clear as to what happened in that case.
A man by the name of Gordon was the clerk of the Indian Committee of the Senate, the Senate Indian Affairs Committee. His father was Senator Gordon, I think, of Georgia, who was then chairman of the committee. Mr. Gordon, the son, resigned from the Committee on Indian Affairs and went out and entered into a contract with the Colville Indians of Washington State, ascertaining or finding here that they probably had a claim against the Government, and my recollection is that he got a contract with the Indians under that contract proposed to compensate Mr. Gordon to the extent of 15 per cent in a contingent basis. It was submitted to the department and approved at 10 per cent. Mr. Gordon made a contract with Butler & Vale to assist and cooperate with him on a percentage basis-my recollection is it was 3 per cent-it might have been 5 per cent. There was a time limit in the contract.
Mr. Gordon went into the Spanish War. He went out of the country, and when the claim came up before the committees of Congress Butler & Vale, representing Mr. Gordon under the contract with him, appeared before the committees of Congress and the question came up as to their right to represent these Indians under this contract, the contract having lapsed by limitation of a year, or whatever it was, and Mr. Butler, ex-Senator, stated to the committee that in view of the absence of Mr. Gordon they felt they had an obligation to protect him in the contract that he had entered into; that they appreciated the contract had lapsed, and therefore they would render this service on a quantum meruit basis and leave it for the courts to determine what the fee should be.
And so, if you will examine the act-and I am sure I am right about itit authorizes the Court of Claims to determine the compensation of the attorneys in the case who had prosecuted before the committees of Congress successfully a claim where the Indians recovered $1,500,000, and to direct the payment of the fee.
The court, as I recall, fixed the fee at $45,000 or $50,000—I will not be certain about that—and apportioned it to the different attorneys. Mr. Gordon got something, and Butler & Vale, as I remember, received $30,000. In the act the attorneys were required to file a receipt in full of all claims whatsoever for attorneys' fees for their services in the case before they could get the money.
That $1,500,000, under the law, was paid to those Indians in $300,000 annual installments, and when the fifth one came due I was chairman of the Indian Affairs Committee of the House, and we put in the $300,000 to pay the last installment to the Colville Indians, and it went over to the Senate, and the Senate amended it to the extent of giving to Butler & Vale $100,000 for services rendered before the committees of Congress and in the Court of Claims upon this very proposition that I have just described, and the House conferees opposed it, and we had quite a contest. I think we came back to the House a second time and our attitude was that the bill would fail before we would consent to pay this additional $100,000. They-Butler & Vale-were asserting that the court had only allowed $50,000, and that under the terms of the contract which had been approved by the department there would have been a $150,000 fee, and therefore they were entitled to this $100,000.
Now, those are the facts in regard to that case, without having looked it up, and it has been some years, but I'think I have stated it reasonably accurately. And so I do not think that case under any circumstances could be a precedent for this case.
The CHAIRMAN. Then, so far as you know, there is no distinctive precedent for this act where similar conditions are involved. As I understand the conditions now, they are this: Here is an attorney appearing before the committee for action by Congress to compensate him for work he has done for a regularly constituted council of a certain tribe of Indians, and he has not complied with the law, which law is distinctive that he must, before proceeding, get his contract approved by the Secretary of the Interior and the Commissioner of Indian Affairs. Now, isn't that the question that is involved in this matter here?
Mr. BURKE. That is the question.
The CHAIRMAN. Then, if this committee sees fit to report this measure and it goes through, it will certainly establish a precedent, so far as you are concerned-so far as your knowledge goes?
Mr. BURKE. Well, Mr. Chairman, I delayed, I may say, taking action upon Mr. Ballinger's contract that he submitted, for the purpose of expecting and anticipating that this committee would hear the matter later and would determine the policy, and I thought perhaps we could act more intelligently if we knew what the attitude of Congress would be on the proposition. Now, I want to reiterate, so that you will get my point and so the committee will understand it: Assuming that this general council is the only council and that it is constituted and represents a majority of the tribe, it could not make a countract upon which anyone could recover for attorneys' fees without the approval of the department, and, in my judgment, the general council could not make any contract whatsover upon which there could be recovery without authority of Congress. Now, do you get my point?
If a tribe of Indians can elect a general council and can enter into contracts without any approval of the department or authority of Congress, you can see where the supervision of the Government would be very promptly.
Mr. DALLINGER. Mr. Commissioner, if this precedent is established by this committee, it will practically mean that this committee hereafter is to pass upon all the details of all these contracts—legal contracts with the Indians and you would be simply relieved of it?
Mr. BURKE. Mr. Congressman, I would answer that question by stating this: If I were a member of this committee, if I were conscientiously of the opinion that Mr. Ballinger had rendered a service to the Chippewa Indians of Minnesota as a whole for which he had not been compensated, and that his compensation ought to come from the tribal funds, I would vote to pay him such an amount as I thought was due, but with the distinct understanding that it was not to be a precedent and not to be considered as meaning that hereafter anyone can make such arrangements as they see fit and that Congress will reimburse him.
Mr. DALLINGER. But it would be a precedent, would it not?
Mr. DALLINGER. As I understand it, as Commissioner of Indian Affairs, having gone into the matter in all its details, you have refused to approve this contract under the law ?
Mr. BURKE. Yes; but this contract, Mr. Congressman, is not the question that is pending before the committee.
The bill before the committee is to pay Mr. Ballinger for services up to July 1, 1921. The contract that I disapproved, or that the department disapproved, was made on August 6, 1921; so that question is not before the committee.
The CHAIRMAN. You see, Mr. Ballinger had never presented the contract for approval up to this year.
Mr. DALLINGER. Then, why isn't it up to Mr. Ballinger to go before your department and present his bill up to that time?
Mr. BURKE. But he had done so—not the contract, but he had been paid out of the $10,000 appropriation for expenses and services, and when those items came into the Indian Bureau-I get that from the record—they were disapproved, but the auditing officers, the accounting officers of the Treasury, held under the language in the act that they should be paid because they were to be paid upon the certificate of the tribal council, and the department did not have anything to say about it. It was not a question of Mr. Ballinger's contract that they were paid ; they were paid because the council certified to the account; and they might have paid that $10,000 to a ball club if they had seen fit.
The CHAIRMAN. And that action is the nearest to being a precedent for this act of anything that has yet taken place. That was legislation in an appropriation bill.
Mr. BURTNESS. And the situation would be this: I think Mr. Dallinger suggests the possibility that Mr. Ballinger might file a claim now for services that he has rendered with the bureau and have it passed upon. The bureau would be absolutely without authority of law to pay that, even though it might be a case where the bureau thought it ought to be paid.
The CHAIRMAN. Because there is no contract for it.
Mr. BURTNESS. Mr. Chairman, this is not a question, but I just want to intersperse this statement. As far as I see it, it is plainly a new situation for which there is no precedent, but I agree absolutely with the commissioner, who says that if services were actually rendered that have been for the benefit of the entire tribe, then we ought to forget the situation of the law possibly as it exists and consider the matter upon its merits. But I can conceive of a situation that might arise where some one, desirous of rendering services for the entire tribe, might not be able to render those services unless he takes the chance of proceeding without a contract, in the event that the Indian Bureau takes an antagonistic position or something of that sort. I am not intimating that that was done in this case, but if we ever had such a case before us it would seem to me that it would be our duty then to consider the real merits of the situation and give them such compensation as the claimant would be entitled to; but unless there is a specific showing to that effect, then surely we would be establishing a dangerous precedent should we start out on a proposition here which would look as though any disappointed attorney who could not get a contract approved, could later come before this committee and get such money as he desired for his services.
The CHAIRMAN. But really we are not at this moment discussing the merits of the bill; we are trying to get from the commissioner such information as he can give us as to the precedent, any precedent, and as to the law on the question.
Mr. BURKE. I want to call your attention to the language under which Mr. Ballinger was paid certain sums of money : “ That the sum of $10,000,” and so forth—“and said expenses to be approved by the president and secretary of the general council and certified to the Secretary of the Interior; and as so approved and certified to be paid.”
Certified by whom? The secretary of the council; not the Secretary of the Interior.
Mr. BURTNESS. In other words, Congress has already authorized those payments, not knowing exactly to whom they would go or anything of that sort, but relying upon the judgment of the council to that extent, but to that extent alone.
Mr. BURKE. I want to correct any impression-I don't think Mr. Ballinger intended to perhaps create a wrong impression—I read in the hearings and in his brief that it is conceded by the parties that there must be a jurisdictional act and judicial determination of the question of the Red Lake Band of Indians. I do not know who conceded it; I have not conceded it, and I can not find anyone in the department that has conceded it. Congress legislated in 1906, is it not, Mr. Ballinger-or 1904, in which it recognized the Red Lakers, and they have their separate reservation and their own funds, and I have not conceded that that must be litigated. It may be some time litigated, but I have not said that it should be.
Mr. JOHNSON. I want to ask the commissioner a question or two. Mr. Commissioner, if this bill becomes a law, the funds to pay Mr. Ballinger will come from all of the bands constituting the Chippewa Tribe, will they not?
Mr. BURKE. Yes, sir.
Mr. JOHNSON. Well, is there the faintest possibility that Mr. Ballinger's work or activity has been of any benefit to the Red Lake Band?
Mr. BURKE. Well, that is a question that calls for an opinion. I think the result of his activities brought about, as I stated, the feeling among the Red Lakers that they should have an attorney, and they were permitted to employ one and have an attorney under an approved contract, to represent their interests, which were being assailed by the activities of the so-called general council.
Mr. JOHNSON. As a matter of fact, then, if Mr. Ballinger was successful in his contentions, the Red Lake Band would be injured rather than helped, would it not?
Mr. BURKE. The funds that they otherwise would receive would go to the funds of the Chippewa Indians rather than the members of the Red Lake Band.
Mr. JOHNSON. If my statement is correct, then, that the Red Lakers would be injured rather than helped by Mr. Ballinger's activities, would there be any reason that we should take funds from these Red Lake Indians and pay Mr. Ballinger for injuring them?
Mr. BURKE. I recommended the disapproval of the contract that permitted that.
Mr. JOHNSON. And one other question, Mr. Commissioner. I was not here for the first few minutes of your testimony. Does it appear of record the exact amount that Mr. Ballinger has received for all of his activities?
The CHAIRMAN. That is all in the record.
Mr. DALLINGER. In other words, Mr. Commissioner, you mean that the Red Lakers would be paying for the attorney on the other side as well as for their own counsel?
Mr. BURKE. They have a separate fund, as the result of the proceeds from the sale of some surplus land, and perhaps some timber, that the general council claims they are not entitled to and are questioning the right of Congress to enact the Steenerson bill, I think it is, of 1904.
Mr. BURTNESS. But that is carried as a separate fund belonging to the Red Lake Indians?
Mr. BURKE. Yes, sir; and the Red Lake Indians, understand, no one questions their right to participate in the funds of the general Chippewa Tribe?
Mr. JOHNSON. Mr. Commissioner, is there any way that we could make the White Earth Band pay the expenses of this litigation without making the other Indians participate in the payment?
Mr. BURKE. Well, I think it would be impracticable. I do not know how you could so adjust it. I think we would have very much less trouble with the Chippewa Band of Indians if there could be legislation that would authorize, out of the tribal funds, to compensate that element that are mostly white, so that they could take what is coming to them and be separated from the balance of the Chippewa Indians.
Mr. JOHNSON. That is what would call a competent Indian? They might just as well be released from Government supervision.
Mr. BURKE. Absolutely.
Mr. BURTNESS. Have the White Earth Band any separate funds at all, aside from the entire tribal funds?
Mr. BURKE. No.
Mr. JEFFERIS. The Red Lakes even deny that the Chippewas are entitled to some of that reservation, do they not?
Mr. BURKE. That is the element that Mr. Coffey assumes to represent. They claim that the White Earth mixed bloods, those men of high type, Morrison and Fairbanks and Beuleau, have no right whatever to Chippewa properties,
overlooking the fact that regardless of their original status they were duly enrolled years ago and are members of the tribe, regardless of how they may have gotten there.
Mr. MCCORMICK. May I ask, Mr. Commissioner, are there any matters with which the Chippewa Tribe of Indians are concerned in which you would recoguize this general council as speaking for the tribe as a whole?
Mr. BURKE. Mr. McCormick, I go to the very extreme in permitting an individual Indian, a band of Indians, or a tribe of Indians to have the fullest opportunity to present and suggest anything that they may wish to present with reference to their affairs; and so with the White Earth Band of Indians, the so-called “general council.” I have and will continue to receive anything that they may have to offer, but I deny the right of any tribal council to dictate what shall be done—that is, they can not control the situation.
Mr. MCCORMICK. In other words, you do not regard this general council as being authorized to speak both for the Red Lake Indians and for the White Earth Indians ?
Mr. BURKE. Well, I do not think they do speak for them.
The CHAIRMAN. Well, it is fact, though, that up to the time you decided, in May of last year, to not recognize the council as a council of the whole tribe, that they were recognized by the department as being the regularly constituted council of the Chippewa Indians?
Mr. BURKE. I think they were up to a certain point, but I thought I had made clear that I am assuming, for the sake of argument, that there is not any question on that point; that they could not in any event create a liability on the tribe as a whole, except under the law, and that is by authority of the Congress or contract approved by the Interior Department.
The CHAIRMAN. I think you have stated that clearly.
Mr. LEATHERWOOD. Mr. Commissioner, does the Bureau of Indian Affairs have the power to ratify a contract between an Indian tribe and an attorney that is at all retroactive in its effect? This thought comes to me, that you may understand why I asked the question : Supposing an attorney goes ahead and renders valuable services for a period of months, and then comes in and asks to have a contract ratified, which reaches back and includes that service.
Mr. BURKE. That might be done within a reasonable time. I do not imagine it would be done, covering a period of many years' service.
Mr. LEATHERWOOD. Are there any precedents for any such contracts?
Mr. BURKE. There is always authority of law to approve a contract. I presume we could approve a contract whenever it was submitted, if we wished to do so.
Mr. DALLINGER. Is there any reason why this committee could not report a bill authorizing you to act upon this contract of Mr. Ballinger?
Mr. BURKE. Well, Mr. Congressman, I would assume that it is Mr. Ballinger's desire, and I am sure it is that of the bureau, that this controversy should be settled. The relations that I found between Mr. Ballinger and the department might indicate that he would not be possessed of very much if you were to do what you suggested, because it was one of antagonism to such an extent that there existed a feeling that he was perhaps not rendering a service for which they would approve any payment. That is for Congress to say, I 'think.
The CHAIRMAN. The testimony before us clearly shows that.
Mr. HAYDEN. Now, you ask, Mr. Commissioner, that the committee determine this matter. It seems to me there are two ways that it can be settled : To report out a bill paying him money for services rendered, if the committee was conscientiously convinced that he had rendered a service to the entire tribe for which compensation should be paid out of tribal funds.
Mr. BURKE. You know you can not appropriate; you can only authorize.
Mr. HAYDEN. Well, to accomplish that end at least. On the other hand, if the committee, after hearing all the evidence, is convinced that the services rendered by Mr. Ballinger were primarily for the benefit of a faction of the tribe—that is, the mixed bloods—and that his activities wherever successful or to whatever extent he carries them on, were detrimental to the full-blood members of the tribe; and that therefore his services as rendered were not for the benefit of the tribe as a whole, but for only a part of them; and if the committee was further convinced that a precedent ought not to be established whereby an attorney can secure a contract from a faction of a tribe or part of a tribe without going through the formal process provided in the law-in