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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 sonot 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. It looks that way to me.
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 you 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 other words, we ought to condemn the idea of attorneys seeking to be com. pensated when they have not received a contract from the department; then the thing for us to do, it seems to me, is to submit an adverse report upon this bill setting out those facts as notice to all attorneys that if they pursue that course Congress will not compensate them by legislation.
Mr. Roach. Right on that point may I say, if I understood it correctly, he said that this bill involves a policy that he would like to have settled by this committee rather intimating that it involves a policy that would have to be settled. Furthermore he suggested later, in a remark, that he was a member of this committee years ago, and that where there was a meritorious claim, where it appeared that valuable services had been rendered to the entire Chippewa Tribe, for which adequate compensation had not been made, he would vote to compensate the person rendering such services. Do I understand by that that you would advocate the policy of paying those claims?
Mr, BURKE, I would make such a declaration that anyone who might see it would understand it; that it was not unlimited as establishing a policy.
Mr. Roach. Mr. Commissioner, whenever we pay one of these claims, regardless of whether we intend to establish a precedent, do we not establish a precedent?
Mr. BURKE. You do; but at the same time it is not one that is binding.
Mr. ROACH. Now just this further question : If, after considering the evidence in this claim, we are of the opinion that there was no merit in the bill itself, would we necessarily need to establish a precedent, passing on this policy of whether or not we were going to pay claims, by passing on the claim in this particular bill?
Mr. BURKE. I think you ought to do either one thing or the other.
Mr. Roach. In other words, if we determined there was not any merit in the account rendered and refused to allow it, refused to enact a bill, I do not take it by that that we were establishing a policy that if there was a meritorious bill we would not enact it into law.
Mr. BURKE. No.
Mr. DALLINGER. As a matter of fact, Mr. Commissioner, we can not bind succeeding Congresses anyway, can we?
Mr. BURKE. No, sir.
Mr. DALLINGER. Mr. Ballinger could come to succeeding Congresses for 20 years with this bill.
Mr. ROACH. But the commissioner was asking us to establish a policy.
The CHAIRMAN. No; he suggested that we might do that sort of a thing and not establish a precedent that could not be overthrown at some other time.
Mr. HAYDEN. This is the thought that I had in mind by suggesting an adverse report, if such was the view of the committee: We have spent a good many days here in hearing this testimony-as much time as has ever been devoted to a case of this kind—and if we have reached a conclusion as to what should be done in a case of this sort, the only way to make that conclusion a matter of record is either to report out the bill favorably, setting forth that he should be compensated and why, so that any succeeding committee considering any subsequent case could find out whether it was in line with this case or not by reading the report; if we are satisfied that he is not entitled to any compensation and that a bad precedent would be established, we can file an adverse report setting forth those reasons so that any succeeding committee can know just why we acted as we did.
Mr. DALLINGER. Is it customary to file adverse reports?
Mr. HAYDEN. There are numerous adverse reports filed in every Congress. You will find the Committee on Claims time and time again, after investigating a claim and finding there is no merit in it, report adversely to the House.
Mr. DALLINGER. The House never sees them unless some one happens to know about it and digs it up.
The CHAIRMAN. Are there further questions anybody desires to ask the commissioner?
Mr. JEFFERIS. What do you suppose, Mr. Commissioner, would be the result of allowing a claim like this? Would there be attorneys in different parts of the country who might get together bands of Indians and be in here with many claims?
Mr. BURKE. I think that could be safeguarded against. I do not think the gentleman from Missouri -Mr. Roach-perhaps got quite my point. Mr. Bal
linger, if I understand his attitude correctly, originally started to render service for these Indians, expecting that he could be paid out of the $10,000 appropriation without a contract. Is that not a fact?
Mr, BALLINGER. No.
Mr. BALLINGER. No; they told me in the inception that they would obtain from their funds compensation for me.
Mr, BURKE. And that later, the money not being sufficient to fully compensate him, and later still Congress discontinuing the $10,000 appropriation, then he turned to Congress, after getting this $6,000 contract—when was your first $6,000 contract?
Mr. BALLINGER. I submitted the first one to you, Mr. Burke.
Mr. Roach. I understand Mr. Ballinger's claim all right; but what I wanted to get clear in my mind was whether you were recommending the establishment of a policy that would be established if we passed and made a favorable report on this bill; and in order to bring that out I asked you the question that I did, because your recommendation or statement as to how you would vote practically, in my opinion, amounted to recommending establishing that policy if the claim justified it.
Mr. BURKE. Well, I think this claim has got to be disposed of. You do not want to have it for the rest of time. It has got to be disposed of one way or the other, and personally, as I say, if I were a member of the committee, I would consider the question from the standpoint of its merits, and if of the opinion that he had not been fully compensated and that his services had inured to the benefit of all the Indians, I would vote to compensate him.
Mr. HAYDEN. On the other hand, if you were convinced that his services had not been of benefit to the entire tribe, and that a bad precedent would be established by reporting a bill of this kind out, would you favor an adverse report?
Mr. BURKE. I would ; certainly.
The CHAIRMAN. If the committee will recall, the question was asked of the assistant commissioner whether or not he thought Mr. Ballinger had been fully compensated for his services to the Chippewa Indians, and I think the assistant commissioner said he thought he had not been or that he was entitled to further compensation. But that question was asked advisedly, and I think the commissioner has answered that question by including in his answer all of the tribe. I think the commissioner would probably concede about what Mr. Meritt did, although I have not talked with him about it, that Mr. Ballinger has done work enough so that he might be entitled to more money than he has actually received from the Indians that he has benefited; but the point that the commissioner makes is that there isn't any real-at least, this is the point, I think, that he makes : That he can not be compensated except all the Indians are charged with that compensation-all the tribe.
Mr. BURTNESS. But, Mr. Chairman, did not Mr. Meritt's testimony involve something further than that? Was it not rather to this effect: That while he believed that Mr. Ballinger had perhaps put in time and services which, in a way, were worth more than he had gotten, yet in so far as accomplishing results for the tribe is concerned he doubted very much whether the tribe had really received the benefits to the extent that he had been paid.
The CHAIRMAN. He distinctly stated that time and again.
Mr. BURTNESS. On a quantum meruit basis it would seem he felt that Mr. Ballinger had been paid more than he was entitled to, if I understood his testimony correctly.
Mr. BURKE. Will you permit me to say that I have not expressed-at least I have not intended to express—any opinion upon the value of Mr. Ballinger's services, because I think you are quite capable of doing that, and I was not in the department except three months of the time covered by the bill and I am not expressing any opinion as to the value of the services-none whatever.
Mr. MONTOYA. Or for whom they are rendered?
The CHAIRMAN. What I was trying to clear up was that Mr. Meritt was particular to state in his answer that Mr. Ballinger, he thought, was entitled to some compensation on account of the services that he had rendered to the Indians. Now, that did not mean by any means that he thought he had rendered an advantage to all the Indians, and he clearly stated time and again that he did not and that he thought his action had been adverse to the whole tribe.