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whether, in their judgment, such contract or agreement has been complied with or fulfilled ; if so, the same may be paid, and, if not, it shall be paid in proportion to the services rendered under the contract.
“ SEC. 2105. The person so receiving such money contrary to the provisions of the two preceding sections, and his aiders and abettors, shall, in addition to the forfeiture of such sum, be punishable by imprisonment for not less than six months and by a fine of not less than $1,000. And it shall be the duty of all district attorneys to prosecute such cases when applied to to do so, and their failure and refusal shall be ground for their removal from office. Any Indian agent or other person in the employment of the United States who shall, in violation of the provisions of the preceding section, advise, sanction, or in any way aid in the making of such contracts or agreements, or in making such payments as are here prohibited, shall, in addition to the punishment herein imposed on the person making such contract, or receiving such money, be, on conviction, dismissed from the service of the United States and be forever disqualified from holding any office of profit or trust under the same.
“Sec. 2106. No assignment of any contracts embraced by section 2103, or of any part of one, shall be valid unless the names of the assignees and their residences and occupations be entered in writing upon the contract, and the consent of the Secretary of the Interior and the Commissioner of Indian Affairs to such assignment be also indorsed thereon.
Attention is also invited to the act of June 30, 1913 (38 Stat., 97), which reads as follows:
“No contract made with any Indian, where such contract relates to the tribal funds or property in the hands of the United States, shall be valid, nor shall any payment for services rendered in relation thereto be made unless the consent of the United States has previously been given."
It has also been held by the law officers of the Government that a citizen can not create a claim against the Government without the consent of the Government. There are a number of decisions on that subject.
Mr. Roach. In connection with the law you have just read, even if we should find an amount which, in our opinion, was due to Mr. Ballinger, and passed this bill, the Interior Department could not lawfully authorize the payment of the account, could it, as the bill is now drawn?
Mr. MERITT. We could not lawfully authorize the payment under the existing law. It would require specific direction from Congress.
The CHAIRMAN. Mr. Roach's question was whether, if this bill should be passed, you would then have authority to pay it?
Mr. MERITT. Congress would have authority to authorize payment of this bill.
Mr. Roach. Could the Secretary of the Interior approve the payment of Mr. Ballinger's account now, not having first approved his contract before he rendered the service?
Mr. MERITT. We could not, under existing law, but Congress could pass legislation directing that that bill be paid.
Mr. Roach. This law that is proposed now is identical with the one which you read a moment ago, under which you held the Interior Department was powerless and that this law required the approval of the account by the Secretary of the Interior after it has been passed by Congress?
Mr. MERITT. My interpretation is that if it was passed by Congress it would give the Secretary of the Interior legal authority to pay Mr. Ballinger such amount as he (the Secretary of the Interior) deemed his service is worth.
Mr. Roach. Notwithstanding, we already have a law which requires all these contracts to be approved by the Secretary of the Interior before the accounts can be paid?
Mr. MERITT. That would be my interpretation of it.
Mr. BURTNESS. The very purpose of this act would be to waive that provision of the law.
The CHAIRMAN. Yes. This would be a particular case; it would have no effect on the general law in the future, except it would establish a precedent whereby other attorneys could come before the committee and get special treatment.
Mr. Roach. I understand that, but Mr. Meritt made a statement just a moment ago that the Interior Department was helpless to prevent the payment of the $10,000 already paid to Mr. Ballinger, because in that law it did not require the approval of the Secretary of the Interior, but merely required the approval of the council of the tribe. Now, we have an identical
bill here with the law which he read, with the exception that this bill requires the approval of the Secretary of the Interior, and following up his idea about the matter, if that had been in the law he read, he could have stopped the payment of the account. Now, could he not just as well stop the payment of this account?
Mr. MERITT. We have stopped the payment of this account and will not pay it unless authorized by Congress, and this bill here is a direct authorization as it stands to-day.
Mr. BURTNESS. Even though it is a direct authorization, still it leaves the matter up to the Secretary of the Interior as to whether he will approve the account that may be approved by the tribal council.
The CHAIRMAN. But it goes this far-it notifies the Secretary of the Interior there is an account to be adjusted.
Mr. BURTNESS. Yes; it shows the intent of Congress that it requires the account to be adjusted and upon that the Secretary of the Interior would proceed.
Mr. LEATHERWOOD. But would this bill, if passed, authorize the payment of an irregular account, assuming it is irregular, as it now stands?
The CHAIRMAN. As I understand it, it would notify the Secretary of the Interior that there was an account which ought to be adjusted, and the Secretary of the Interior would make the adjustment, and if he found nothing new, nothing would be paid:
Mr. BURTNESS. And all technicalities or irregularities would be waived?
Mr. BURTNESS. That would be the intent of the law, simply that the Secretary of the Interior would get at the matter of the details of the account.
Mr. Roach. Does the fact here that the contract was supposed to have been made with the general council in any way change or alter the terms of the law referred to by Mr. Meritt?
Mr. MERITT. No, sir. I would say that any contract made by the council would have no validity under sections 2103, 2104, 2105, and 2106 of the Revised Statutes without the approval of the Commissioner of Indian Affairs and the Secretary of the Interior, and in accordance with the provisions of those statutes.
Mr. GENSMAN. You mean a contract made at this time after the service has been performed?
Mr. MERITT. A contract made at this time, or a contract made at any time.
Mr. BURTNESS. But, Mr. Meritt, if I understand it correctly, Congress could at any time later, by appropriate legislation, ratify a contract that was made?
Mr. MERITT. Yes, sir.
Mr. ROACH. I want to get this clear in the record, if I may: The bill Mr. Meritt read, which provides for the appropriation of certain funds to defray the expenses of legal proceedings, had the same provisions in it as the bill now under consideration, with the exception that the bill under consideration requires the matter to be finally passed upon by the Secretary of the Interior.
Now, if I understood Mr. Meritt correctly a moment ago, he at least left the impression upon me that if that provision had been in the bill which authorized these other payments that have been made, the Secretary of the Interior would have stopped the payments that have been made to Mr. Ballinger. Now that is in the present bill, and I do not understand why anyone questions that he could stop it, it being in the bill, and in the other instance he could not. This bill merely requires the council to pass upon the matter and pass it over to the Secretary of the Interior, and requires the approval of the Secretary of the Interior before it can be paid. I understood his statement a moment ago to be that if that provision had been in the bill the payment would have been stopped. How does this change it? It simply provides for paying legal expenses without specifying what they are, and authorizes the Secretary of the Interior to pass on the matter finally.
Mr. MERITT. Under that law I read, making appropriations for the Chippewa Council, there was no discretion vested in the Secretary of the Interior in regard to the payment of those bills. The only thing we could do under that language was to certify the bill to the accounting officers of the Treasury Department, which we did with an adverse recommendation, but notwithstanding the adverse recommendation, under the language of the law, the accounts were passed by the accounting officers of the Treasury Department. Under
this proposed legislation it places the matter before the Secretary of the Interior to be decided on an equitable basis, regardless of previous legislation regarding attorney contracts.
Mr. Roach. That is what I am trying to get at, whether you feel that way about the matter; whether that is your idea of the purpose of this bill.
Mr. MERITT. That is my interpretation of the legislation before the committee.
Mr. JOHNSON. In other words, it is discretionary with the Secretary of the Interior to either approve or disapprove the entire bill, or to approve any part thereof?
Mr. MERITT. Yes, sir; if this legislation passes in its present form.
Mr. JOHNSON. There is one question I would like to ask, Mr. Chairman, at this point of the record : Did Mr. Ballinger know of this law when he entered into this contract with the Indians ?
Mr. MERITT. Undoubtedly he knew it, because he had been practicing before the Indian Bureau for many years.
Mr. BURTNESS. That was admitted in Mr. Ballinger's testimony the other day.
Mr. MERITT. Going to another subject, Mr. Ballinger, as attorney for the Chippewa Council, endeavored to prevent the department from using the appropriations passed by Congress for administrative expenses in the Chippewa country, and this matter was fought out in the courts and was carried to the Supreme Court, and it was decided by the Supreme Court, on March 4, 1918, in the case of Morrison v. Lane (246 Supreme Court reports, p. 214) that authority was vested in the department to use the appropriation authorized by Congress in the appropriation act of that year, which was a resolution extending the appropriation act of the previous year, and for the information of the committee I will read the syllabus of that decision.
Mr. GENSMAN. How was that question raised, in the State court or in the Federal court?
Mr. MERITT. It was raised in the Federal court.
Congress, in the acts making appropriations under the general head for the current and contingent expenses of the Indian Department (or Bureau) and fulfilling treaty stipulations with various Indian tribes.' having long made a practice of appropriating each year specifically for the 'civilization and selfsupport’ of Chippewa Indians in Minnesota out of their trust funds under the act of January 14, 1889 (c. 24, 25 Stat., 642), held that the appropriation so expressed in the appropriation act for the fiscal year 1915 was repeated for the fiscal year 1916 by the joint resolution of March 4, 1915 (38 Stat., 1228), which, in default of a new appropriation act, declared the appropriations for the former year continued for the latter, employing only the general language of the former appropriation acts to designate the purposes, and providing against the duplication of special payments and the execution of any purpose intended by the former act to be paid for but once or confined to the former fiscal year. (45 App. D. C., 79, reversed.)”
Mr. MERITT. And I will also read the last paragraph of the decision of the Supreme Court. With the permission of the committee, I will put the whole decision in the record.
The CHAIRMAN. Very well.
The case is stated in the opinion. Mr. Assistant Attorney General Warren for appellants. Mr. Webster Ballinger for appellee. Mr. Justice McReynolds delivered the opinion of the court. Appellee, by bill in Supreme Court, District of Columbia, sought to prevent officers of ne Interior Department froi disbursing during fiscal year ending June 30, 1916, $160,000 out of trust funds belonging to Chippewa Indians of Minnesota on deposit in United States Treasury.
An act making appropriations for the current and contingent expenses of the Bureau of Indian Affairs, for fulfilling treaty stipulations with various Indian tribes, and for other purposes, for the fiscal year ending June 30, 1915, approved August 1, 1914 (c. 222, 38 Stat., 582, 590), provided :
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the following sums be, and they are hereby, appropriated out of any money in the Treasury not otherwise appropriated, for the purpose of paying the current and contingent expenses of the Bureau of Indian Affairs, for fulfilling treaty stipulations with various
Indian tribes, and in full compensation for all offices the salaries for which are provided for herein for the service of the fiscal year ending June 30, 1915, namely, “ SEC, 8. *
The Secretary of the Interior is hereby authorized to withdraw from the Treasury of the United States, at his discretion, the sum of $205,000, or so much thereof as may be necessary, of the principal sum on deposit to the credit of the Chippewa Indians in the State of Minnesota, arising under section 7 of the act of January 14, 1889, entitled 'An act for the relief and civilization of the Chippewa Indians in the State of Minnesota,' and to use the same for the purpose of promoting civilization and self-support among the said Indians in manner and for purposes provided for in said act: Provided, That not more than $45,000 of this amount may be used for purchase of lands and removal of bodies of certain deceased Indians.”
The annual appropriation bill for current and contingent expenses of the Bureau of Indian Affairs, etc., for fiscal year ending June 30, 1915, failed of passage, and in lieu of it Congress passed the joint resolution approved March 4, 1915 (38 Stat., 1228), which follows: JOINT RESOLUTION Making appropriations for current and contingent expenses of the
Bureau of Indian Affairs, for fulfilling treaty stipulations with various Indian tribes, and for other purposes, for the fiscal year ending June 30, 1916.
“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That all appropriations for the current and contingent expenses of the Bureau of Indian Affairs and for fulfilling treaty stipulations with various Indian tribes, which shall remain unprovided for on June 30, 1915, are continued and made available for and during the fiscal year 1916 to the same extent in detail and under the same conditions, restrictions, and limitations for the fiscal year 1916 as the same were provided for on account of the fiscal year 1915 in the Indian appropriation act for that fiscal year. For all of such purposes a sufficient sum is appropriated out of any money in the Treasury not otherwise appropriated, or out of funds to the credit of Indians as the same were respectively provided in the Indian appropriation act for the fiscal year 1915: Provided, That the appropriations from the Treasury of the United States or from Indian funds shall not exceed in the aggregate the amounts of such appropriations for the fiscal year 1915: Provided further, That this joint resolution shall not be construed as providing for or authorizing the duplication of any special payment or for the execution of any purpose provided for in said appropriation act that was intended to be paid only once or done solely on account of the fiscal year 1915
The original bill alleged that no part of the $205,000 appropriated by act of August 1, 1914, was for expenses of the Bureau of Indian Affairs or for fulfilling treaty stipulations with Chippewa Indians of Minnesota, but all (except the $10,000 item not here involved) was for special payments and limited to fiscal year ending June 30, 1915; that it was not intended as a regular annual appropriation, and the joint resolution of 1915 in express language excluded such items in act of 1914 from being reexpended during 1916; that notwithstanding this the Comptroller of the Treasury had ruled the joint resolution did reappropriate $160,000, and the Secretary of the Interior and Commissioner of Indian Affairs were preparing to expend such sum out of Indians' trust funds; and that unless enjoined they would draw warrants therefor upon the Treasury, which would be honored.
Upon motion, the trial court dismissed the bill for want of equity. The court of appeals reversed the decree, holding the joint resolution did not reappropriate $160,000 and the relief prayed should have been granted. Treating this as final and conclusive of issues involved the cause was brought here by appeal.
The only point presented for decision is whether by the language used Congress has sufficiently indicated an intent to appropriate the money in question. The bill does not challenge its power.
Under an act approved January 14, 1889 (25 Stat., 642), lands in Minnesota occupied by Chippewa Indians were disposed of and proceeds deposited to their credit in the United States Treasury, it being agreed that the fund should bear 5 per cent interest to be paid directly to the Indians or used for their schools, and further “ that Congress may, in its discretion, from time to time, during the said period of 50 years, appropriate, for the purpose of promoting civilization and self-support among the said Indians a portion of said principal sum, not exceeding 5 per cent thereof." For many years subsequent to 1889 under the general head of “Current and contingent expenses of the Indian Department
and fulfilling treaty stipulations with various Indian tribes ”
appropriations were made for general benefits of Chippewas “to be reimbursed to the United States out of the proceeds of sales of their lands.” In 1911 their funds derived from land sales had become very large; and beginning then and continuing down to 1914 the annual Indian appropriations bill contained an item essentially similar (except as to amounts) both in words and position to the one in section 8, act of 1914, quoted above.
It seems clear that “ civilization and self-support among the Indians can not be promoted effectively by disconnected efforts, but must be accomplished, if at all, by definite, permanent plans operating through many years. And in view of the long-continued practice of Congress to provide funds for such continuous efforts by annual appropriations, the circumstances under which the joint resolution became law, and the studied incorporation therein of the language of former appropriation acts, we think the purpose was to authorize expenditure of $160,000 during 1916, as had been done for 1915. A different construction might have occasioned disruption of well-ordered arrangements for advancing the Nation's wards, to the great detriment of all concerned; and to such unfortunate consequences experienced legislators probably were not oblivious.
By construing the resolution too narrowly the court below reached an erroneous conclusion. Its decree is therefore reversed; and the decree of the Supreme Court, District of Columbia, is affirmed.
Mr. MERITT. The action of the council in attempting to prevent the department from using appropriations for administrative expenses in the Chippewa country is a fair illustration of some of the acts of this council, and when they thought they had certain authority given them by Congress, as contained in the Indian appropriation act, the conditions got so bad that it was almost intolerable in the Chippewa country as a result of this authority granted to this Indian council. It caused disruption and the bitterest feeling among the Chippewa Indians. There are now two factions in the Chippewa country, and it is largely the result of the antagonism raised by the mixed-blood Indians there.
I want to call the attention of the committee to the fact that one faction in the Chippewa country is bitterly opposed to any of their funds being used to pay for the attorney for the other faction, and if any of these Chippewa funds are used for that purpose the Congress will be called upon to pay for the expenses of the other faction out of the Chippewa funds. I think it only fair to bring this matter to the attention of Congress. With that statement we rest on the report that we have submitted to the committee for its decision as to the policy in regard to this matter and as to what course should be taken.
The CHAIRMAN. Now, I want to ask you one question, and one only, and this is for your opinion only, and you do not have to give it if you do not want to : Do you think that during the period which you have mentioned in the statement you have put in with reference to Mr. Ballinger's services from 1917 down to December, 1920, covering an amount of approximately $10,000, that he has been reasonably compensated for the benefits that he has brought to the council which he has been serving?
Mr. MERITT. Mr. Ballinger has devoted a great deal of time and a great deal of hard work to this Chippewa matter. I think his work has been largely misdirected. I think he has caused a great deal of unnecessary work in the Indian Bureau. He has cost the Government a great deal of money in all this antagonistic work of the Chippewa council. If his work had been directed in proper channels, I would say he had not received adequate compensation for the work he had done in connection with this Chippewa matter, but at the same time I must keep in mind the fact that he has done this work under a contract in direct violation of a law of Congress, and he did not have his contract approved in accordance with the terms of that law.
The CHAIRMAN. Well, that has not quite answered the question. Just read the question again.
(The question was thereupon read by the reporter, as follows:)
“Do you think that during the period which you have mentioned in the statement you have put in with reference to Mr. Ballinger's services from 1917 down to December, 1920, covering an amount of approximately $10,000, that he has been reasonably compensated for the benefits that he has brought to the council which he has been serving?
Mr. MERITT. To supplement my statement, I would say that $10,000 would hardly be full compensation for the work that he has done for the Chippewa council, but whether or not this compensation should be paid out of the Chip