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way in presenting his case to the committee of not intentionally misrepresenting the facts in the case, but he does emphasize the importance and benefit of his work, at the same time painting as black as he possibly can the work of the Indian Bureau. I am not stating this behind Mr. Ballinger's back, because I have spoken to him outside of the committee room about that attitude of his. I think that the services of the Chippewa council and Mr. Ballinger have been helpful in a general way in the Chippewa situation in the administration of Indian affairs, and we have improved conditions up there as a result of matters brought to our attention. On the other hand, I must say frankly that some of the activities of the General Council of the Chippewa Indians and some of the activities of Mr. Ballinger have tended to stir up strife among the Chippewa Indians, and it has accentuated the differences there. The Red Lake Indians are bitterly opposed to the White Earth Indians and to the claims of Mr. Ballinger as the general counsel of the Chippewa Indians. The full-blood Indians of the Chippewa country are bitterly opposed to any recognition of Mr. Ballinger or the general council. We have in this city at this time a man by the name of Mr. Coffey, who claims to represent the full-blood element of the Chippewa Indians. In fact, he has claimed before this committee that he represented 90 per cent of the Chippewa Indians I think his statement is a great exaggeration, but he has a bill coming before this committee wherein he is claiming compensation and wants to be reimbursed out of the Chippewa funds. We have submitted an adverse report on Mr. Coffey's claim, and we know that if we recognize Mr. Ballinger's claim immedately we will have the claim of Mr. Coffey coming in, and he will insist on his bill being paid.
Mr. HAYDEN. Would not that be true of other tribes? The Osages have complained to us from time to time that they have millions of dollars of property and oil deposits and that they ought to have an attorney selected by their tribe acting independently of the Indian Bureau. The Indian Bureau has not for some time been able to agree with them about having an attorney. I do not know whether they have recently or not. But if this Indian council in Minnesota could have it, the Osages or other Indian tribes having a dispute with the department could come around to Congress and ask that they pay out of their funds for a lawyer likewise.
The CHAIRMAN. You recall that the bureau has been willing that the Osages should have counsel but not willing that the Osages should select their own counsel?
Mr. HAYDEN. Exactly, that is the situation.
The CHAIRMAN. But here is a case where the counsel went ahead on his own account after the bureau had decided to bring the elements together and insisted that the majority should rule.
Mr. HAYDEN. That was in 1918. This bill of Mr. Ballinger is submitted and runs from 1913.
The CHAIRMAN. He is simply trying to recover for his services during that period. This has been an active proposition before this committee since 1915, to my certain knowledge, and Ballinger's interest in the council and the division among the elements out there continued until finally, as the commissioner said, they were brought together and formed a body to represent that tribe, and a council was created from that convention, or whatever it was.
Mr. HAYDEN. The Osage council has existed in the same manner and had the same general line of difficulty with the department. They disagreed about how their property should be administered from time to time, and agreed on the name of an attorney and sent his name here to the department, but the department has not approved it.
The CHAIRMAN. That is exactly what I brought out here.
Mr. MERITT. There were two factions in the Osage country, one mixed-blood faction and one full-blood faction, the same fight we have on practically all these reservations. Each wanted to control the attorney and finally the full blood faction was successful in electing the majority of the members of the council, and they finally selected a reputable attorney and that attorney's contract was approved. That contract has been in force about two years.
Mr. BURTNESS. In the case of the Chippewa Indians, was this difficulty between the two factions out there apparent until the last two or three years?
Mr. MERITT. There have been factions among the Chippewas for the last 15 years to my knowledge.
Mr. HAYDEN. The division was among the full bloods and half bloods?
Mr. MERITT. The full bloods have been against the mixed bloods and the mixed bloods have been against the full bloods.
Mr. BURTNESS. When was the first. voting convention on the reservation? When did the full bloods first vote-at the annual meeting this last summer, 1921?
Mr. MERITT. About four years ago.
Mr. MERITT. I think they have had two meetings where they have had votes, and then they have had voting at separate meetings at various times.
Mr. HAYDEN. I wish you would answer the question asked at the other end of the table about the value of Mr. Ballinger's services, about schools, hospitals, and tribal funds, which you started to answer when I diverted you.
Mr. MERITT. Mr. Ballinger has taken the right attitude on a number of matters, and I think he has taken the wrong attitude on a number of questions coming up. For instance, he and the general council caused a material reduction in the appropriation for administrative expenses in the Chippewa country. As a result of that reduced appropriation we were compelled to close one of our best boarding schools in the Chippewa country and also two of our hospitals. The White Earth Boarding School, which is a splendid plant, was closed as the result of reduced appropriations. The hospital on the White Earth Reservation was closed, and the Fond du Lac hospital was closed.
Mr. HAYDEN. The beneficiaries of the schools and hospitals were mainly full-blood Indians and their children?
Mr. MERITT. Yes, sir; and we have had protests since those hospitals were closed and since the schools were closed about the closing of those institutions. There is now quite an activity to get those hospitals reopened and there has also been considerable correspondence about the opening of the boarding school at White Earth.
Mr. HAYDEN. The motive of the mixed blood was that if the children did not go to the Indian school and their families did not need the Indian hospital that the money that was not expended for schools and hospitals would be available for distribution to him?
Mr. MERITT. That is one of the motives.
The CHAIRMAN. I suggest that Mr. Meritt be allowed to proceed in his own way.
Mr. MERITT. It is no new proposition to get In:lian children into the public schools. Mr. Ballinger has emphasized that point. We are doing that all over the country. It has been the policy of the Indian Bureau and of this committee and of Congress to get Indian children into the public schools and we are pursuing that same policy in the Chippewa country. So far as the hospitals are concerned, we have supplied three goo:1 hospitals for the Chippewa Indians and as one of the results of the activities of the general council we have been compelled to close two of those hospitals and now we are criticized because of the health conditions among these Indians. Mr. Ballinger claims that trachoma and tubercular cases were not admitted to those hospitals. We took that matter up with the superintendent recently and the superintendent denies the statement of Mr. Ballinger on that proposition.
As to the swamp-lands claim, Mr. Ballinger represented that the Indian Bureau had taken no action in that. I want to bring to the attention of the committee a letter dated as far back as December 7, 1905, where the Indian Office took a strong position on this matter and we have always contended that the Indians were entitled to certain swamp lands in Minnesota, and for the information of the committee I woull like to include two of these letters in the record, one dated December 7, 1905, and the other dated July 20, 1907.
The CHAIRMAN. If there is no objection, they will be inserted.
DEPARTMENT OF THE INTERIOR,
December 19, 1905.
SIR: The matter of the selection of swamp lands by the State of Minnesota within the reservations under the jurisdiction of the Leech Lake Agency has been the subject of considerable correspondence between this office and the department, especial reference being made to letters of January 27, 1904, and April 5, 1905. In this correspondence the office did not raise the question of the correctness of the decisions in 27 L. D., 418, and 32 L. D., 328, but, based
upon the statements of Acting Agent Scott, took the position that the field notes were wholly unreliable, and that an examination should be made in the field for the purpose of ascertaining what lands are in fact "
swamp lands” within the meaning of the act of September 28, 1850 (9 Stats., 519), the provisions of which were extended to the States of Minnesota and Oregon by the second section of the act of March 12, 1860 (12 Stats., 3).
The State of Minnesota has filed in this department lists of swamp land selections under the act of March 12, 1860, to the amount of 17,000 acres within the Indian reservation created by the treaties of May 7, 1864 (13 Stats., 693), and March 19, 1867 (16 Stats., 719), or reserved by the Executive orders of November 4, 1873, and May 26, 1874. The State also filed other lists of swamp land, aggregating more than 143,000 acres, which were returned by the General Land Office for correction, and which have not been refiled. It is quite certain, however, that the lists will be modified and refiled. They include a large quantity of land selected by the Forest Service from which to make its ultimate selection of 200,000 acres provided for hy the act of May 27, 1902 (32 Stats., 400). The lands contain many million feet of pine timber which the Indians will lose if the State succeeds in its claims. The large quantity of land involve:) and the fact that the Government has no redress in case of erroneous action by the department, in my judgment, constitute a warrant for a most careful and thorough reconsideration of the matter.
In the act of Congress of March 12, 1860, a present grant is the chief question involved.
The act of September 28, 1850 (9 Stats., 519), the provisions of which were extended to the States of Minnesota and Oregon by the second section of the act of 1860, has been decided in Wright v. Roseberry (121 U. S., 488) to be a present grant. If the words "hereby granted” and “hereby extended ” of the first section of the act are not modified by any subsequent words of the statute, they would certainly carry the title as of the date of tha act and make the grant a present one.
To avoid the conditions which campelled the enactment of the act of March 2, 1855 (10 Stats., 634), a proviso was added to the first section of the act of 1860. This proviso is inconsistent with a present grant, as under it a reservation, sale, or disposal of the land which will defeat the grant can be made at any time before the approval of the swamp selection; provided only it is made under a law enacted prior to the swamp act. If the title were conveyed by the act as of its date, it could not be so defeated. We can not suppose a present grant liable to such defeat by the action of a third party.
The act of 1850 provided for selection by the Secretary of the Interior, and it was eminently proper that his failure to act should not be held to work a forfeiture of the State's grant, for the State has no control over him. But the act of 1860, on the other hand, recognized in its second section the right of the State to make its own selection. This is explicitly stated in Wright v. Roseberry. It not only does this, but it places a limitation of time in which the selections " shall be made " why this shall except to prescribe a limitation.
The proviso of the first section was designed for the protection of intervening rights under prior statutes, and the second section for the protection of subsequent claimants. Without these limitations the conditions that gave rise to the act of 1855 and the act of March 3, 1857 (11 Stats., 257), would be repeated, and no claimant to land in the swamp-land States would be safe from claims on the part of the State, and settlement and entry of the public land would be discouraged. It is perfectly just that the State should suffer for the inaction or neglect of its officers. The whole statute should be considered to determine its intentions. See Com. Kent Com. 462; Rice v. Minn. and Co. (188 U. S., 108) ; Nev. Railroad Co. (66 U. S., 1 Black 358) ; Nelson v. N. P. Ry. The act confers a general public benefit, and any doubt should be taken most strongly against the grantee. (Mills v. St. Clair Co., 8 How., 581).
Nullification is the “natural and usual consequences of disobedience” of the legislative direction. See Endlich on Interpretation of Statutes, page 612, section 433. The rule which operates with disfavor upon provisions of forfeiture admits of compensation and restoration, and should not be applied in the case of a public gift, as the swamp land act, where the compensation can not be made to the settlers, Indians, and others locating upon and seeking the public lands after the lapse of time fixed by the statute for selection. (See Farnsworth v. Minn. & Pac. R. R. Co., 92 U. S., 49.)
The act of 1860 has never been interpreted by a court, except in the case of Pengra v. Munz (29 Fed. Rep., 830). In this case the court held the grant to be one on condition precedent. While this decision seems well founded, and being the only one by the courts on the grant, should be followed. It makes no difference in this case whether the condition be held a precedent or a subsequent one. If a subsequent condition, there have been ample legislative declarations of forfeiture which would defeat the grant. The act of January 14, 1889 (25 Stats., 642), and the amendatory act of June 7, 1902 (32 Stats. M., 642), and the disposition of the lands after directing the classification of a part as pine and all others as agricultural. (See United States v. De Repentigny 5 Wall, 267; McMichen v. United States, 97 U. S., 204; Farnsworth v. Minn. & Pac. R. R. Co., 92 U. S., 49)
The act of October 19, 1890 (26 Stats, p. 357) appropriated $150,000 to pay for damages to the Chippewa Indian lands embraced in these reservations, by the building of dams and reservoirs, thereby overflowing them. This naturally caused damage to swamp lands first, and under this act over 1,800 of the 17,000 acres selected in this case have been paid for to the Indians.
The act of December 27, 1872 (17 Stats., 404), recites the failure of the State of Missouri to select within the two years prescribed by the act of 1860 and regrants the land forfeited and recognizes intervening rights. The regranting act did not provide specifically for the issuance of patents for the lands regranted, and this was remedied by the act of June 23, 1874 (18 Stats., 282). These acts constituted a legislative construction of the act of 1860 and determined it a grant upon condition and recognized the failure without legislative or judicial declaration of forfeiture. Congress, therefore, construed it to be a grant upon condition precedent. The Secretary of the Interior has fully discussed the act of 1860 in the decisions found in Copp's Public Land Laws, page 1081, and the Annual Report of the General Land Office, 1880, page 158, and determined that the requirement of selection within a definite time was a mere legislative discretion. His decisions, however, were based upon two entirely untenable positions, namely, (1) that the act of 1860 requires the selection to be made by the Secretary (see Wright v. Roseberry for contrary holding) ; (2) that the act of the Legislature of Minnesota, agreeing to accept the field notes of survey as evidence of the character of the land, constituted a selection. Besides being contrary to his first position, this second position is ill founded, because the agreement as to the evidence on which to select can not constitute the selection itself. The Secretary similarly construed the grant in Marquan v. Susmela (21 L. D., 279); but this decision is based on the decisions in French v. Fyan et al (93 l'. S., 169) and Railroad Co. v. Smith (9 Wall., 95), rendered upon the act of 1850, and upon the theory that the Secretary should make the selection. The decision also cites and is based upon the decision in United States v. Louisiana (127 U. S., 191), which discusses a provision of the act of 1849 similar to the one in the act of 1850, as to the application of the provision upon the sale of the lands and clearly did not in any way relate to or bear upon the second section of the act of 1860. In 22 L. D., 388, the Secretary held that the act of 1889 could be deemed a legislative declaration that the lands in the reservation were not swamp in character. In the case of Minnesota 1. Craig (23 L. D., 305) the Secretary clearly indicated a different view of the act of 1860, and virtually agreed with the views here set forth, namely, that it was a grant upon condition.
In 27 L. 1., 418, and 32 L. D., 328, the Secretary held the act of 1860 to be a present grant, but discussed only the date and manner of the creation of the reservation; and in the latter case sided with the decision of the Supreme Court in Railroad ('0. 1. Fremont Co. (9 Wall., 89), which was rendered upon the act of 1850, and a grant to the railroad making an express exception in favor of that act. In neither of these decisions was the second section of the act of 1860 even mentioned. There seems to be no reason now why the Secretary of the Interior may not fully consider a case involving the construction of this second section on its merits.
The case of Farnsworth *. Minn, & Pac. R. R. (92 U. S., 49), refers to the direction contained in the act as to how the State legislature was subject to the condition precedent as to disposition provided by the act of Congress, and that no conveyance in disregard of the condition could pass any title.
In other words, the law seems to be that in case of a condition precedent no title is conferred if the condition is not performed. This applies to the failure of the State to select within the two years as required by the second section of the act of 1860. Again, the law is that in case of condition subsequent, there
must be an assertion of a breach of the condition by the grantor to restore the estate. In case of a private grant this must be by entry or its equivalent; and in case of a public one by judicial proceedings, “the equivalent of an inquest of office at common law," or some legislative assertion of ownership, “such as an act directing the possession and appropriation of the property, or that it be offered for sale or settlement."
In the case of the State of Minnesota v. Craig (23 L. D., 305), the Secretary, referring to section 2 of the act of 1860, after propounding the question “What was the effect of the requirement that the selection should be made within two years after notice? Was it mandatory and imperative, or simply directory?' cited Endlich on the Interpretation of Statutes (612, sec. 433). See section 436 of the same author.
The Secretary held in said decision relative to the character of the grant of the act of 1860:
" It is not enough to say that the grant in hehalf of the States of Oregon and Minnesota contained in the act of 1860 was a present grant, and therefore conveyed the title to all lands which were in fact of a swampy character on the date of the passage of that act of March 12, 1860.
"A grant must have definiteness and precision, and there is and could be no definiteness and precision until selection. To say that 35 years after a grant of swamp land had passed within its domain that a State can assert title to a particular tract of land is to say that there is actually no bar of time within which such selection can be made, and there would be no such thing as quiet, peaceable possession of real estate inside the State of Minnesota, for fear that now or hereafter the State of Minnesota might undertake to prove any given tract unpaten’ed was, in fact, swamp and inured under its grant."
The department could not have held this decision in mind when it rendered the decision in 27 L. D., 418, and 32 L. D., 328. In said decision the Secretary recognized the constructive notice to the State arising by reason of its acceptance of selections made for it in the same township wherein the land involved was situated.
In this case the claim of the Indians to the proceeds of all of the land not allotted thereunder and the timber thereon, which was recognized in the act of January 14, 1889, and which was validated by treaty with the Indians, and the right of overflow secured by the appropriation under the act of August 19, 1890, and the reservation of forestry lands created by the act of June 27, 1902, are, in my judgment, such adverse claims as will bring this case within the principle of the decision in the case of Minnesota 1. Craig, and prevent the State from now making such selection.
The State had actual notice of the survey of those townships lying partly within the reservation and partly without in which it made swamp selections more than two years before the date of the act of 1889, and in some other townships in which it made such selections more than two years before the act of 1902. Again, it made some indemnity school selections which were approved June 19, 1891, February 19, 1896, and perhaps on other dates, as may be shown by tract books of the General Land Office.
The department, in the case of the State of Minnesota (22 L. D., 388), held that these words of the act of 1889 were an express declaration as to the character of said land to be accepted by this department as its guide in disposing of the same.” They also constituted a recognition on the part both of the United States and the Indians that the grant by the act of 1860 had failed or been forfeited. The act was the subject of a treaty before it became operative, and the condition of the land must have been well understood by both parties thereto.
Congress further recognized the Indian title to these lands and the failure of forfeiture of the swamp grant by the act of August 19, 1890 (26 Stats., 357), which appropriated $150,000 for payment of damages sustained to such lands caused by building of dams and reservoirs ; in other words, for overflow. The damage would necessarily have been done to the swamp lands in the main, as they most naturally lie on the banks of the lakes and streams whose waters were raised by the dams and reservoirs.
The act of May 18, 1796 (1 Stats., 465), prescribes the manner in which the public lands must be surveyed, and in the latter part of section 2 thereof provides that the field books of the notes of survey should be returned to the surveyor general, who should cause a copy thereof to be filed in the local office, and who should also cause a plat of the land to be made and recorded in books kept for that purpose, and a copy thereof open at his office, and other copies