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Mr. BURTNESS. Just one general question, Mr. Meritt. In dealing with Mr. Ballinger after he had assumed to represent the General Council of the Chippewa Indians did you deal with him any differently than you would have dealt with an attorney who had received an approved contract?

Mr. MERITT. We always dealt with Mr. Ballinger, with the understanding that we did not recognize him as the tribal attorney of the Chippewa Indians, but we did deal with Mr. Ballinger the same as we would any other attorney who would come in the Indian Office representing an individual or group of individuals.

Mr. BURTNESS. Was the only difference in dealing with Mr. Ballinger simply the fact that he was not recognized as an approved tribal attorney?

The CHAIRMAN. As a legal representative?

Mr. BURTNESS. As a legal representative.

Mr. MERITT. Yes, sir.

The CHAIRMAN. The point is we want to determine a general policy with regard to these matters. If a man does a service that benefits the people he does it for, he is entitled to consideration whether done morally or legally, and we want to determine that matter now.

We will recess until 10.30 o'clock Monday morning.

(Thereupon, at 12.30 o'clock p. m., the committee took a recess until 10.30 o'clock a. m. Monday, January 16, 1922.)

COMMITTEE ON INDIAN AFFAIRS,
HOUSE OF REPRESENTATIVES,
Monday, January 16, 1922.

The committee met at 10.30 o'clock a. m., Hon. Homer P. Snyder, chairman, The CHAIRMAN. The committee will come to order. We are opening a meeting which was recessed until this morning for further investigation of H. R. 6872. Mr. Meritt was making a statement. He will proceed.

STATEMENT OF MR. E. B. MERITT-Continued.

Mr. MERITT. Mr. Chairman, Mr. Ballinger referred to his work in connection with the tribal roll of the Chippewa Indians. As I understand it, Mr. Ballinger's contract with the Chippewa council began in 1918. The decision in connection with these tribal rolls occurred in 1911 or 1912, or six years before Mr. Ballinger's contract with the council.

The Indian Bureau took the position that those rolls should not be disturbed. I have a very distinct recollection of this matter, because at that time I was the chief law officer of the Indian Bureau, and that was my recommendation to the Commissioner of Indian Affairs.

I might say that the other faction in the Chippewa country is bitterly opposed to these Indians remaining on the roll, and I have incurred the enmity of the alleged representative of that other faction because of the position I took on that question at that time.

I reached that conclusion as a matter of law and justice to these Indians. It would have been a futile matter to have attempted to have taken those 89 Indians off the roll at that late date, after they had been on the roll for nearly 25 years, and, besides, the Clapp amendment had been enacted in the meantime, which removed the restrictions on most of those Indians, and as a result of that legislation 90 per cent of the Indians who had their restrictions removed by the Clapp amendments of 1906 and 1907 have since disposed of their lands. Besides, it is my understanding that the contracts in connection with this controversy were with individual Indians and another attorney represented a large number of those 89 Indians. Mr. Henderson, I believe, was the other attorney. Mr. BALLINGER. Mr. Meritt, I so said.

The CHAIRMAN. Just a moment. Whatever is said, I want it in the record. Mr. MERITT. Mr. Ballinger referred to the frauds in connection with timber matters in the Chippewa country. I wish to call the attention of the committee to the fact that these alleged frauds occurred 25 years ago, and Mr. Ballinger had nothing whatever to do with that matter, and full and detailed reports have been made to Congress in connection with timber frauds, and attention is invited to Senate document 70, Fifty-fifth Congress, third session, transmitted to Con

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gress with a letter of the Secretary of the Interior, dated January 21, 1899. There may be other correspondence in connection with the matter not contained in this document.

Therefore, Mr. Ballinger had nothing whatever to do with those timber frauds at that time, and I can say with confidence that there have been no timber frauds in the Chippewa country in recent years, and we are conducting their affairs without the suspicion of fraud.

The CHAIRMAN. Does that clear up the matter in your mind, Mr. Leatherwood?

Mr. LEATHERWOOD. I will not interrupt now. I have some questions I want to ask later.

Mr. MERITT. Mr. Ballinger also referred to the fact that the Chippewa Indians were not able to obtain any information in regard to their affairs. I wish to invite the attention of the committee to the fact that we are required by law to submit to Congress annually a report showing the expenditure of every dollar of Chippewa funds used for administrative expenses, or for school purposes, or for any other purpose; and you will note that when the question of funds used to pay the expenses of Mr. Ballinger as attorney for the Chippewa Council was referred to by Mr. Hayden, Mr. Ballinger replied that this matter was brought to the attention of Congress in these printed reports that we submitted to Congress. We submit to Congress a statement showing the expenditure of every dollar of the funds of the Chippewa Indians, and I might say there is no tribe in the United States that has had more publicity or where a more thorough accounting is furnished to Congress than the Chippewa Tribe.

During the hearings last year before the committees of Congress this same statement was made that we were not furnishing information to Congress regarding Chippewa funds; and you will find that that proposition was refuted at that time, and we placed in the record statements which we had furnished to Congress. Those statements are found on pages 296 to 315 of the hearings on the 1922 Indian appropriation bill. So that is a misleading statement to say to this committee that the Chippewa Indians are not able to get an accounting of their funds. We are required by law to make that accounting to the Congress of the United States annually, and we have been making that statement to Congress long before Mr. Ballinger was ever connected with Chippewa Indian affairs.

Mr. Ballinger referred to a decision in regard to minor Indians that he obtained from the department and stated that he had saved the Indians an enormous amount of money. I wish to call the attention of the committee to the fact that there was no saving of money in this decision. It was simply a decision by the solicitor of the Interior Department holding that a certain class of Indians were entitled to participate in the distribution of the funds of the Chippewa Indians. The decision of the department prior to that time followed what is known as the Oaks decision-107 Federal, 305-rendered by one of the circuit judges of the United States who was a former solicitor of the Interior Department and who is now on the Supreme Court bench. We were following what we thought was the correct interpretation of the Oaks decision, and I might say that it is the opinion of a number of the lawyers of the Interior Department to-day that the decision of the solicitor was not in accordance with the Oaks decision. In fact, the solicitor in the decision referred to the Oaks case and said that it in substance was not exactly in line with the Oaks case.

In order that the committee might have full information on this matter, I will place in the record at this point the decision of the solicitor in connection with this matter, and also the decision of the court in the Oaks case, so that the two may appear in the record.

SOLICITOR'S OPINION.

DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SOLICITOR, Washington, February 17, 1919.

DEAR MR. SECRETARY: Questions having arisen as to the rights of certain children born to persons whose names appear on the tribal rolls of the Chippewa Indians of Minnesota to share in the interest accruing upon the fund arising under the act of January 14, 1889 (25 Stat., 642), the matter has been referred to me for an opinion on the legal points involved."

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Said act must be construed on the same principles as a deed of trust, which in legal effect it is, so far as concerns the questions herein discussed. The Chippewa Indians of Minnesota, as a tribe or aggregation of tribes, are the "settlors" of the trust. The acceptance by those Indians of the provisions of the statute is shown by the report of the negotiators (H. R. Ex. Doc 247, 51st Cong., 1st sess.). By their acceptance of the statutory provisions the tribe, as a tribe, became the settlors of the trust; and the trustee is the United States, to which the settlors transferred the legal title to their bonds, charged with the trusts specified. (The trust for allottees is distinct from that touching the funds, proceeds of the unallotted and unreserved lands thrown upon to sale.) The trust touching the funds has as its beneficiaries, not the Indians as a tribe (the settlors), but the Indians as individuals. In construing the act hitherto, it may have been too hastily assumed that the beneficiaries of the trust were identical with the settlers thereor. Such an identity is found only in the use of trusts created by a settler for his own benefit, a class by no means embracive of all trusts.

The Indians, considered as old reservation units, and the tribe as a whole, considered with reference to the Red Lake Reservation, surrendered their lands, the consent of individual Indians already holding allotments also being required to the surrender of those previous allotments. The surrendered lands were to be sold as part of the public domain, and the proceeds of such sales were constituted a trust fund, one-half the interest accruing from which was to be paid as annuities"in equal shares to the heads of families and guardians of orphan minors for their use," and one-fourth of which interest was to be paid “in equal shares per capita to all other classes of said Indians ”—the remaining one-fourth being devoted to Indian education; and the whole principal of said fund was to be distributed at the expiration of 50 years "to all said Chippewa Indians and their issue then living, in cash, in equal shares." Congress might divert not more than 5 per cent of the principal fund to other Indian uses during the 50 years.

Thus it appears that Indian blood-membership among the individual Indians originally enrolled as together constituting the tribe that created the trust and conveyed the surplus lands giving rise to the trust fund, or descent from those Indians--is made the essential and sole basis of the right to participate in the current interest accruing from the fund and in its final distribution. Participations in the current interest (the "annuities") and in the principal differ somewhat from one another-the one being (as to one-half of the interest) by heads of families and by guardians of orphan minors for their use, and (as to one-fourth of the interest) by "all other classes of said Indians "-adults not heads of families, and minors not members of families or orphans under guardianship-and the other being by "all said Chippewa Indians and their issue then living, in cash, in equal shares." But so the trust is settled. And nowhere in its terms of settlement is either residence with or continued or “recognized" membership of the tribe, or birth on the reservation, or United States citizenship, or any other qualification mentioned, save only being "a Chippewa Indian," i. e., possession, in whole or in part, of the blood of one of the originally enrolled members of that tribe.

In the direction for final distribution to "all the said Chippewa Indians and their issue then living," the word "issue" is used in its enlarged, not its restricted, sense. That is, it includes all the ancestor's lineal descendants in the second and subsequent generations as well as in the first generation. (See Wistar v. Scott, 105 Pa. St., 200, 51 Am. Rep., 197; Pearce v. Rickard, 19 L. R. A., 472; Bouvier's Law Dict., tit. "Issue "; Price v. Sisson, 13 N. J. Eq. 168, 176; Jarman on Wills, vol. 2, p. 33.)

The issue, then, includes all the lineal descendants of the ancestor. But the ancestor must be found to have been of the tribal membership at the time of the creation of the trust. His "recognition" by the tribe as such is merely evidentiary of such membership, and is not the sole evidence competent to establish the fact. His descendants (whether children or grandchildren) take an interest, not as tribal members but as of the ancestor's blood; his blood entitling him and them alike, because it was tribal blood.

This construction of the trust is in line with that given by the United States Supreme Court on Cherokee Nation v. Journeycake (155 U. S., 196, 205), to the agreement of April 8, 1867, between the Cherokee Nation and the Delaware Tribe; holding that the agreement, although made with the Delaware Tribe, was for the benefit of the individual members of that tribe, vesting them as individuals, with specific allotments, and at the same time incorporat

ing them as individuals into the membership of the Cherokee Nation, with consequent proportional rights, per capita, in all its lands as well as funds. The construction is also in accord with the general policy of the United States in dealing with its Indian wards. That policy has been directed chiefly toward the object of preparing them for the duties and advantages of citizenship and of effecting their amalgamation in the general mass of citizenship.

To this end they have been encouraged to acquire the customs and habits of civilized life as rapidly as practicable. This necessarily involves abandonment of their tribal organization and associations. It was obviously in contemplation of such abandonment that the statute here under discussion was framed.

This policy is exhibited both in the sundry cession and reservation treaties and preliminary or confirmatory statutes and in the provisions for allotments, including the general allotment act of February 8, 1887 (24 Stat., 388), and also in the statutes providing for Indians' acquisition of citizenship without impairment of their Indian property rights. See section 6, act of 1887, supra, conferring citizenship on allotted Indians and those who have severed tribal relations without loss of their rights in tribal property; section 2, act of August 9, 1888 (25 Stat., 392), conferring citizenship on Indian women contracting marriage with white citizens without loss of their rights in tribal property; section 1 (at p. 90), act of June 7, 1897 (30 Stat., 62), securing to the issue of an Indian woman by blood then or at the time of her previous death recognized by her tribe, and her white husband, the same rights and privileges as other tribal members; the provisions of the act of June 21, 1906 (34 Stat., 325), removing restrictions on alienation of White Earth Reservation allotments to mixed-blood Indians and such full bloods as the Secretary of the Interior shall find competent; and section 1, act of March 2, 1907 (34 Stat., 1221), providing for apportionment and payment of their pro rata shares of any tribal trust funds to individual Indians found capable of managing their own affairs.

The decision of the Circuit Court of Appeals in Oakes v. United States (172 Fed., 305, 309) involved only the trust created under the act of 1889 as to reservation lands and their allotment, and was not concerned with the trust as to distribution of tribal funds and their current interest yield. The enjoyment of an allotment right places the allottee in immediate contact with others of the tribe, so that there was more reason for holding it intended that none should enjoy that right except those having not merely a share in the tribal blood but recognized tribal membership. The Oakes case, while embracing statements arguendo adverse to the construction here given the statute, is not, in its conclusion upon the precise subject involved, opposed to the views herein expressed touching the proper scope of distribution of the trust fund and its interest yield. Underlying the Oakes case and cited therein to sustain its conclusions are two decisions of this department, William Banks (28 L. D., 71), an opinion by former Assistant Attorney General Van Devanter, who afterwards, as judge, rendered the decision in the Oakes case, resting in part on his own earlier opinion; and Minnie H. Sparks (36 L. D., 234).

In Willaim Banks, supra, the Secretary of the Interior was advised that a member of the Sac and Fox Tribe of Missouri Indians who had severed his tribal relations and resided at a distance from the tribe, but whose tribal rights came within the protection of the act of June 7, 1897, supra, was still entitled to an allotment as if his name were still on the original tribal roll, but that his children were not so entitled.

In Minnie H. Sparks, supra, it was held that while residence upon the White Earth Reservation was a condition precedent, under the acts of January 14, 1889, supra, and April 28, 1904 (33 Stat., 539), to the right to an allotment thereon, it was not a condition of the right to share in the tribal annuities. This decision rests, arguendo, upon the governmental policy of encouraging the Indians to abandon tribal relations and adopt the habits of civilized life. It would not be in furtherance of that policy to subject Indians so doing to forfeiture of annuities for their children afterwards born apart from the reservation, while preserving their own annuities.

In the particular case giving rise to a call for this opinion, Sarah Kadrie, née Cogger, was a full-blood Chippewa Indian woman born on the reservation in the year 1892, subsequent to the cession and the original enrollment. She was an only child of her mother, a member of the original enrollment. As such she is entitled to participate for herself in the annuities; and that right is

accorded to her. She married, in 1909, Mall Kadrie, a native of Syria, and since then has resided with him mainly in Canada, but for a short time in Syria, and at no time on the reservation, although occasionally visiting it. There have been born of said marriage four children, the oldest now about 9 years of age. Her three oldest children were for some years enrolled among the Chippewa Indians, and she was paid annuities for them until the year 1917, when, by direction of the Indian Bureau, their names were stricken from the roll and their annuities withheld. At the same time, the enrollment of the youngest child was refused.

In my opinion, this action was erroneous and should be corrected. Sarah Kadrie and her children are "issue" of her mother, a full-blood Chippewa Indian duly enrolled, and as such they will be entitled, at the expiration of the trust period, to share in the distribution of the trust fund; and meanwhile they are equally entitled to share in the annuities arising from that fund. These rights they have not forfeited either by acquiring foreign citizenship or by abandoning, or failing to acquire, residence on the Indian reservation or with the tribe.

Whether the current annuity payments or the final distribution of the principal should properly be made per capita or per stirpes is not here considered, and until the question is directly presented the distribution may well follow, in that respect, the usage of the Indian Bureau hitherto. But the basis of distribution should at all events be solely the possession of blood of tribal members at date of creation of the trust, irrespective of residence or citizenship. Cordially, yours,

The SECRETARY OF THE INTERIOR.

CHARLES D. MAHAFFIE,

Solicitor.

OAKES CASE.

OAKES ET AL. V. UNITED STATES.

[Circuit Court of Appeals, Eighth Circuit. Aug. 2, 1909. No. 2797.]

1. Indians (sec. 13)-Right to share in tribal property: Originally the test of the right of individual Indians to share in tribal lands and other tribal property was existing membership in the tribe; but this rule has been so broadened by act March 3, 1875, c. 131, sec. 15, 18 Stat., 420 (U. S. Comp. St., 1901, p. 1419), and act February 8, 1887, c. 119 sec. 6, 24 Stat., 390, and other acts, as to place individual Indians who have abandoned tribal relations, once existing, and have adopted the customs, habits, and manners of civilized life, upon the same footing in respect of this right as though they had maintained their tribal relations. [Ed. NOTE. For other cases, see Indians, Dec. Dig., sec. 13.]

2. Indians (sec. 13)-Act January 14, 1889, relating to Chippewas in Minnesota-Interpretation: Act January 14, 1889, c. 24, 25 Stat., 642, relating to the cession of part of the Chippewa Reservations in Minnesota and to the allotment in severalty of the remainder, does not expressly or by necessary implication displace the saving provisions of the acts of 1875 and 1887, above named, whereby individual Indians who have abandoned tribal relations, once existing, and have adopted the customs, habits, and manners of civilized life, are accorded the same right to share in tribal property as though they had maintained their tribal relations; nor does it render those provisions less applicable to the Chippewas in Minnesota than to other Indians.

[Ed. NOTE. For other cases, see Indians, Dec. Dig., sec. 13.]

3. Indians (sec. 13)-Act June 7, 1897, relating to rights of children of mixed blood: Act June 7, 1897, c. 3, 30 Stat., 62, relating to the rights of children of a white man and an Indian woman in tribal property, does not embrace the children of a mother who was living at the time of its passage and was not then recognized by the tribe as one of its members.

[Ed. NOTE. For other cases, see Indians, Dec. Dig. sec. 13.]

4. Suit to enforce right to allotment-Parties-Quære: Whether in a suit against the United States under act Feb. 6, 1901, c. 217, 31 Stat., 760, to enforce a right to an allotment of specified land, which has been allotted to another Indian, a decree displacing or annulling the existing allotment lawfully can be rendered, without making the allottee a party and giving him an opportunity to defend.

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