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thing, but just whether or not it will turn out the way he expects I am not so sure.
Mr. JEFFERIS. What is the policy of the department, really, in permitting the council to employ a local lawyer to present some claim that they may have in reference to Indian properties?
Mr. MERITT. If Indians have a just claim against the Government, we have no objection to the Indians having attorneys to prosecute that claim in the Court of Claims. Heretofore we have been waiting as a general rule until after a jurisdictional bill passed Congress, and then we would enter into a contract with the attorney under the provisions of sections 2103, 2104, 2105, and 2106 of the Revised Statutes.
Mr. BURTNESS. You say if the claim is a just one. That is, after you have really judged of the merits of the claim. Why, then, if you have already determined that the claim is just should there be any necessity for it to be represented or litigated at all?
Mr. MERITT. Because they will need an attorney to present their claim before the Court of Claims in proper form.
Mr. BURTNESS. But there are some claims that are disputed which may be just or they may not be. There may be some question in the minds of the men in the bureau. How about those?
Mr, MERITT. Where there is a prima facie claim we have no objection to the Indians having an attorney. There have been asserted claims amounting to millions of dollars against the Government of the United States, not necessarily by the Indians, but by the claims attorneys, and in order to protect the Government the present Commissioner of Indian Affairs is conservative in submitting favorable reports on these claim bills, and I have included in the record in the Wichita hearing a letter prepared by Commissioner Burke and addressed to the Secretary of the Interior setting out his views on these claims.
The CHAIRMAN. It has been my understanding, at least, that it is the universal practice of the bureau to supervise the selection of an attorney to present those matters at all times, whether before or after they have come to the conclusion that the claim is just. I think that is the practice to-day, is it not?
Mr. MERITT. Yes, sir.
Mr. BALLINGER. One question: Mr. Meritt, the timber frauds were known to the department in the nineties, were they not?
Mr. MERITT. Yes, sir.
Mr. BALLINGER. Was any action taken by the department looking to suit against the timber companies for the recovery of the timber?
Mr. MERITT. I will place the answer in the record. That was 25 years ago. Mr. BALLINGER. Has any suit ever been brought against any lumber company ?
Mr. MERITT. Yes. See United States v. Pine River Logging & Improvement Co. (89 Fed. Rep., 909).
Mr. BALLINGER. Was the question of ownership of the Red Lake Reservation by the Chippewa Indians brought to the attention of the department prior to the time I brought it to its attention?
Mr. MERITT. That question was never raised by anyone that I know of until you raised it, and it is very vigorously denied now by not only the representatives in Congress from that State, but by the Red Lake Indians.
Mr. BALLINGER. If my position should be ultimately sustained in the courts and you should proceed to distribute the Red Lake Reservation among the Red Lakes, it would lay the Government liable to several million dollars, would it not?
Mr. MERITT. We have not yet distributed the property of the Red Lake Indians. One reason for this controversy in the Red Lake and the White Earth Reservations is this: The White Earth Indians were allotted and a large majority of the White Earth Indians lost their property. We have not yet allotted the Red Lake Indians, and the Red Lake Indians own every foot of their diminished reservation. The White Earth Indians now propose to try to get part of the property of the Red Lake Indians after the White Earth Indians have lost their property.
(The statement above referred to is as follows:) The following information in regard to the Chippewa Indians' funds is submitted to the committee for its information :
Statements showing receipts and expenditures of the tribal funds of the Chippewa Indians of Minnesota arising under the acts of January 14, 1889
(25 Stats. L., 642); February 26, 1896 (29 Stats. L., 17); and June 27, 1902
$13, 208, 023, 36
3, 966, 540. 37
Analysis of expenditures :
Amount reimbursed to the United States on account of ex-
penditures from reimbursable appropriations by Con-
gress for relief, civilization, surveying, education, etc.---
etc., under act Feb. 27, 1902-
478, 353. 81
5, 381, 00
1, 511, 469. 27
7, 777, 771. 61
Interest on Chippewa in Minnesota fund, act Jan. 14, 1889 (25
nesota fund from Sept. 30, 1896, to June 30, 1921.
4, 797, 130. 51
Analysis of expenditures :
Educational purposes, act Jan. 14, 1889_
929, 109. 57
Analysis of expenditures-Continued.
Amount reimbursed to the United States on account of ex
penditures from appropriations under "Advance interest
$969, 367. 83
4, 530, 718. 56
Balance in Treasury July 1, 1921.
264, 007. 98
266, 411.95 Mr. BALLINGER. It is a matter of legal right to be determined by a court, is it not?
Mr. MERITT. We are willing that that matter should be determined by the court.
Mr. BALLINGER. It is conceded by the Red Lakes and the department that such a question has been raised that it is now necessary to send it to the courts?
Mr. MERITT. I think it was unfortunate that the question was raised.
(Thereupon the committee adjourned to meet again at the call of the chairman.)
COMMITTEE ON INDIAN AFFAIRS,
HOUSE OF REPRESENTATIVES,
Thursday, February 2, 1922. The committee met at 10.30 o'clock a. m., Hon. Homer P. Snyder (chairman) presiding.
The CHAIRMAN. Gentlemen, we will come to order. We are resuming again, under recess, the hearings. We have met this morning for further discussion and investigation of the so-called Ballinger case, dealing with H. R. 6872, and we have, as I hope, the last witness in the case, the Commissioner of Indian Affairs appearing before us this morning to secure the final view of the department on matters of this kind and, in particular, his viewpoint of the measure that we are discussing, and I will ask the commissioner to look at a letter dated December 16, which I have before me, which, perhaps, he has a copy of. You have seen that letter before and are fully familiar with it?
STATEMENT OF HON. CHARLES H. BURKE, COMMISSIONER OF
INDIAN AFFAIRS. Mr. BURKE. Yes, sir.
The CHAIRMAN. This is the report of the Assistant Secretary of the Interior on this matter, and I will read the last paragraph of it so as to familiarize any member of the committee with it who has not heard about it. He says:
• There is a division in the tribe and two distinct factions, one dominated by the mixed-blood element, the other by the full-blood Indians. Both claim to represent the majority of the tribe. Both have an organization in a so-called general council, and each has an alleged representative claiming to be duly authorized to represent their respective council, and one protests against tribal funds being expended on the part of the other. The department has taken the position of not recognizing either faction as being duly authorized to represent the tribe and has therefore not approved the payment of expenses said to have been incurred for attorneys' fees or representatives, pending a determination of who, if anyone, is entitled to legally represent the Chippewa Indians. Until this section has been determined I am unable to approve the enactment of H. R. 6872, believing that the committee and Congress will be able to determine first, whether the Chippewa Indians of Minnesota shall be permitted to employ a general attorney, and if so, whether it shall be an attorney for the whole tribe or attorneys representing different factions of the tribe, and how the attorneys to be employed are to be selected.”
Now, my thought is that since the commissioner undoubtedly had to do with dictating this letter, we ask him to state in his own way how he came to this vidual or a band ?
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