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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 is 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, 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 $15,000 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 an 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 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 Indiansand 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 committée.