sent to the place of sale, which was the local office, and to the Secretary of the Treasury, who at that time had control of the public land. This record notice would seem to affect the governor of the State, as well as others, and, besides, as to those townships lying partly within and partly without the reservations, the State had actual notice, as is shown by its selections therein as aforesaid.

It may be that the record of the surveyor general's office would show actual notice to the governor as to the survey of all of said lands, but such does not seem necessary.

It would seem, therefore, that the right of the State to lands embraced in its pending lists herein referred to could and should be rejected, because the act of 1860 is a grant on condition precedent, which condition has not been performed within the time fixed by the act, after due notice, actual or constructive, and because the later act of 1889 recognized this failure and declared the character of those lands to be pine and agricultural; that is, not swamp, so as to be effected by the act of 1860, in any event. Surely Congress did not intend to appropriate this money to pay the Indians for lands owned by the State and for which, if so owned, it will be liable to the Indians.

However, before rendering a decision in the case, inquiry might be made at the surveyor general's office to ascertain if actual notice has been given the governor. The examination as to the character of the lands embraced in the pending lists at the date of the act of 1860, and as to the alleged fraudulent character of the field notes of survey, should be concluded, and findings of fact thereon made. And in view of the various decisions herein cited the matter is respectfully submitted to the department, with the suggestion that the subject be again inquired into and a decision rendered thereon.

Very respectfully,

F. E. LEUPP, Commissioner.

THE SECRETARY OF THE INTERIOR.

DEPARTMENT OF THE INTERIOR,
OFFICE OF INDIAN AFFAIRS,
Washington, July 20, 1907.

SIR: The office is in receipt of a letter from Agent Frater, of the Leech Lake Agency, Minn., dated July 11, submitting petitions of the Leech Lake, Cass Lake, and other Indians under his jurisdiction, protesting against the claim of the State of Minnesota to the swamp lands in the Leech Lake, Cass Lake, Chippewa, and other reservations belonging to the Leech Lake Agency. The Indians say in the petition:

"We, the undersigned members of the Chippewa Tribe of Indians of the State of Minnesota, have heard with much surprise, through the newspapers, the various Government officials, and general rumor that the United States has or is about to convey the title to all swamp lands within the boundaries of the ceded Chippewa lands in the State of Minnesota to the State of Minnesota, without compensation to the Chippewa Indians.

"When these lands were ceded to the Government by the Indians it was specifically stipulated in the treaty that all such lands were to be held in trust by the United States Government and sold, the proceeds to be paid to the Chippewa Indians.

"If your department decides that the claim of the State to the so-called swamp lands within the boundaries of the Chippewa ceded lands is valid, it is earnestly requested that action be delayed until such time as we can present to your department evidence that the greater part of he so-called 'swamp lands' wihin the reservation boundaries, now selected by the State, are pine lands,' and were so classified by the Government corps of estimators, and that specific evidence can be given by the Government officials in the field here now in the service of the United States Indian Agent, the superintendent of logging, and the United States Forest Service.

"We most earnestly protest against any lands within the boundaries of the ceded lands in the State of Minnesota being given to the State of Minnesota or any other party or parties gratuitously."

The agent's letter and the petitions are transmitted herewith, and I most earnestly request that their protest be given careful consideration.

On December 7, 1905, the office submitted to the department an elaborate argument against the claim of the State of Minnesota to the swamp lands referred to. Attention is respectfully invited to said letter as embodying the

views of the office on the subject. The office maintained, among other contentions, that the act of Congress of 1860 (12 Stats., 3) was a grant on condition precedent, which condition had not been performed on the part of the State within the time fixed by the act, after due notice, actual or constructive, and that the later act of 1889 (25 Stat., 642) recognized this failure and declared he character of these lands to be pine and agricultural; that is, not swamp lands so as to be affected by the act of 1860, supra, and that the act provided for the disposal of all the lands within said reservation without reference to their character, as to swamp, etc.

It is respectfully requested that the said letter of December 7, 1905, be considered in connection with the inclosed petitions of the Indians.

On July 10 the Acting Commissioner of the General Land Office, in response to office letter of June 29, gave the status of the applications of the State of Minnesota for swamp-land selections within the reservations under the jurisdicion of the Leech Lake Agency. The acting commissioner said:

"Under departmental instructions of December 10, 1903, there was prepared from the field notes on file in this office two lists of swamp lands, designated as Lists Nos. 144 and 145, special, containing 11,178.04 and 6,296.63 acres, respectively, being situated in the cede portions of the Cass Lake, Winnibigoshish, Chippewa, and Leech Lake Reservations. Such lists were confined to the lands embraced in the printed schedules of Chippewa pine lands of May 29 and August 29, 1903. The same lands were carried into approved lists Nos. 153 and 154, special, approved by the Secretary January 4, 1904, but patents have not yet issued thereon.

"The United States surveyor general reported additional swamp lands in the reservations as follows:

"List 153, February 24, 1905, 4,581.61 acres in the White Oak Point Reservation; list 154, May 29, 1905, 33,761.73 acres in the Chippewa Reservation; list 155, May 29, 1905, 8,308.71 acres in the Winnibigoshish Reservation; and list 156, May 29, 1905, 4,164.64 acres in the Leech Lake Reservation.

No action has been taken on any of the above lists except to hold for rejection the claim to those tracts which were not found to be swampy in character by the field notes on file in this office aggregating in the neighborhood of 5,000 acres."

The office urgently renews its recommendation of December 7, 1905, that the claim of the State to the swamp lands on the Chippewa reservations be denied. This course would obviate the necessity of an examination in the field. But should it be held that the claim of the State to the swamp lands is valid, it is urgently recommended that the lists be not approved until an examination has been made in the field to determine what lands are actually swamp, and that the claim of the State be denied to all lands not shown to be swamp by such examination; and in the event of an examination in the field, that the Indians be represented by an inspector of the department or a special agent of this office.

I further recommend that the Commissioner of the General Land Office be instructed to suspend action on these lists until the rights of the Indians shall have been finally determined.

Very respectfully,

C. V. LARRABEE, Acting Commissioner.

JULY 22, 1907.

In accordance with your recommendations, the Commissioner of the General Land Office is hereby directed to suspend action on all swamp land selections in the Chippewa Indian reservations of Minnesota until the rights of the Indians shall have been finally determined.

GEORGE W. WOODRUFF,
Acting Secretary.

Mr. MERITT. I did not make notes of the various things stated by Mr. Ballinger that he has submitted, but throughout his hearing he was emphasizing the importance of his work in connection with this matter, and on the other hand discrediting the work of the Indian Bureau. If there is anything that has not been properly done in the Chippewa country we would be glad to have Mr. Ballinger bring it to our attention, and will be glad to correct anything that is not proper. We realize that the administration of Indian affairs in the Chippewa country is exceedingly difficult because of the differences among the

Indians themselves, the two factions fighting each other and sometimes both factions fighting the Indian Bureau because they can not get exactly what they want, but I believe that we are administering the affairs of the Chippewa Indians as well as they can be administered under the difficulties under which we are operating.

Mr. HAYDEN. What about the bonds he spoke of, the Liberty bonds? Mr. MERITT. Because of the legislation that had been passed by Congress, some of the Indians in the Chippewa country have been released from Government control under the acts of 1906 and 1907, known as the Clapp amendments. Those acts released all adult mixed-blood Indians on the White Earth Reservation. We were attempting to conserve the funds of certain of those Indians and invest them in Liberty bonds. While I do not remember the details of this matter, Mr. Ballinger did bring to the attention of the office some red tape in connection with the cashing of the bonds of certain of the Chippewa Indians, and it was, if I remember correctly, straightened out, but we are doing in the Chippewa country now exactly what we are doing all over the country, permitting the Indians to sell their bonds when they need the money, and there is an emergency for it. We are encouraging the Indians to hold their bonds as long as they can, but where there is an emergency we permit them to sell their bonds and receive the cash.

Mr. BURTNESS. What about the proceedings taken with reference to the rights of Indian children born away from the reservation or away from their allotments, to which Mr. Ballinger referred?

Mr. MERITT. Mr. Ballinger took a position on that, which was sustained by. the solicitor.

Mr. BURTNESS. Had a contrary position been taken by the bureau prior to Mr. Ballinger?

Mr. MERITT. We had been following the previous decision of the department on that subject.

Mr. BURTNESS. Was it through Mr. Ballinger's activities really that that decision was changed?

Mr. MERITT. I think it was through the activities of Mr. Ballinger that the matter was brought to the attention of the office, and we submitted the question to the solicitor, and the solicitor sustained the position of Mr. Ballinger.

Mr. HAYDEN. The effect of that change was that a number of the mixedblood Indians had moved into town and away from the reservation and their children were born away from there, but their children were given a share in the tribal estate, which, under the previous ruling of the department, would have gone to the full-blood Indians remaining on the reservation and to their children?

Mr. MERITT. Yes, sir.

Mr. HAYDEN. So that the condition of that thing was that it was a fight between the mixed bloods and the full bloods.

Mr. ROACH. I would like to clear up and get full information on the $75,000 which he claims to have saved as the result of his individual efforts on those bonds. His other allegations are rather general in character, some of them quite important, but in this particular matter of the bonds he claims that it was through his individual efforts that $75,000 was saved to the tribe. I want to inquire whether or not at the time Mr. Ballinger took this up with the department whether the department was engaged in trying to work out some plan by which those payments could be made and the bonds cashed?

Mr. MERITT. We have been cashing bonds all over the country for the benefit of the Indians, but I think Mr. Ballinger was helpful in that matter.

Mr. ROACH. I have no doubt that he was, but what I am trying to get clear in my mind is whether it was wholly as a result of his efforts that this cashing of bonds occurred or whether the department had it in mind and was working on a general plan by which they could make payments which had been ordered? Mr. MERITT. I want to give Mr. Ballinger due credit for bringing the matter to the attention of the office. I think that ultimately the matter would have been worked out satisfactorily to the Indians and that the same policy that we are now pursuing on other reservations would have been pursued in the Chippewa country.

Mr. SWANK. Did any Congressman from that section of the country ever take up that bond question with you?

Mr. MERITT. I do not recall any Congressman taking the matter up. There might have been some correspondence.

Mr. BURTNESS. Just one general question, Mr. Meritt. In dealing with Mr. Ballinger after he had assumed to represent the General Council of the Chippewa Indians did you deal with him any differently than you would have dealt with an attorney who had received an approved contract?

Mr. MERITT. We always dealt with Mr. Ballinger, with the understanding that we did not recognize him as the tribal attorney of the Chippewa Indians, but we did deal with Mr. Ballinger the same as we would any other attorney who would come in the Indian Office representing an individual or group of individuals.

Mr. BURTNESS. Was the only difference in dealing with Mr. Ballinger simply the fact that he was not recognized as an approved tribal attorney?

The CHAIRMAN. As a legal representative?

Mr. BURTNESS. As a legal representative.

Mr. MERITT. Yes, sir.

The CHAIRMAN. The point is we want to determine a general policy with regard to these matters. If a man does a service that benefits the people he does it for, he is entitled to consideration whether done morally or legally, and we want to determine that matter now.

We will recess until 10.30 o'clock Monday morning.

(Thereupon, at 12.30 o'clock p. m., the committee took a recess until 10.30 o'clock a. m. Monday, January 16, 1922.)

COMMITTEE ON INDIAN AFFAIRS,
HOUSE OF REPRESENTATIVES,
Monday, January 16, 1922.

The committee met at 10.30 o'clock a. m., Hon. Homer P. Snyder, chairman, The CHAIRMAN. The committee will come to order. We are opening a meeting which was recessed until this morning for further investigation of H. R. 6872. Mr. Meritt was making a statement. He will proceed.

STATEMENT OF MR. E. B. MERITT-Continued.

Mr. MERITT. Mr. Chairman, Mr. Ballinger referred to his work in connection with the tribal roll of the Chippewa Indians. As I understand it, Mr. Ballinger's contract with the Chippewa council began in 1918. The decision in connection with these tribal rolls occurred in 1911 or 1912, or six years before Mr. Ballinger's contract with the council.

The Indian Bureau took the position that those rolls should not be disturbed. I have a very distinct recollection of this matter, because at that time I was the chief law officer of the Indian Bureau, and that was my recommendation to the Commissioner of Indian Affairs.

I might say that the other faction in the Chippewa country is bitterly opposed to these Indians remaining on the roll, and I have incurred the enmity of the alleged representative of that other faction because of the position I took on that question at that time.

I reached that conclusion as a matter of law and justice to these Indians. It would have been a futile matter to have attempted to have taken those 89 Indians off the roll at that late date, after they had been on the roll for nearly 25 years, and, besides, the Clapp amendment had been enacted in the meantime, which removed the restrictions on most of those Indians, and as a result of that legislation 90 per cent of the Indians who had their restrictions removed by the Clapp amendments of 1906 and 1907 have since disposed of their lands. Besides, it is my understanding that the contracts in connection with this controversy were with individual Indians and another attorney represented a large number of those 89 Indians. Mr. Henderson, I believe, was the other attorney. Mr. BALLINGER. Mr. Meritt, I so said.

The CHAIRMAN. Just a moment. Whatever is said, I want it in the record. Mr. MERITT. Mr. Ballinger referred to the frauds in connection with timber matters in the Chippewa country. I wish to call the attention of the committee to the fact that these alleged frauds occurred 25 years ago, and Mr. Ballinger had nothing whatever to do with that matter, and full and detailed reports have been made to Congress in connection with timber frauds, and attention is invited to Senate document 70, Fifty-fifth Congress, third session, transmitted to Con

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gress with a letter of the Secretary of the Interior, dated January 21, 1899. There may be other correspondence in connection with the matter not contained in this document.

Therefore, Mr. Ballinger had nothing whatever to do with those timber frauds at that time, and I can say with confidence that there have been no timber frauds in the Chippewa country in recent years, and we are conducting their affairs without the suspicion of fraud.

The CHAIRMAN. Does that clear up the matter in your mind, Mr. Leatherwood?

Mr. LEATHERWOOD. I will not interrupt now. I have some questions I want to ask later.

Mr. MERITT. Mr. Ballinger also referred to the fact that the Chippewa Indians were not able to obtain any information in regard to their affairs. I wish to invite the attention of the committee to the fact that we are required by law to submit to Congress annually a report showing the expenditure of every dollar of Chippewa funds used for administrative expenses, or for school purposes, or for any other purpose; and you will note that when the question of funds used to pay the expenses of Mr. Ballinger as attorney for the Chippewa Council was referred to by Mr. Hayden, Mr. Ballinger replied that this matter was brought to the attention of Congress in these printed reports that we submitted to Congress. We submit to Congress a statement showing the expenditure of every dollar of the funds of the Chippewa Indians, and I might say there is no tribe in the United States that has had more publicity or where a more thorough accounting is furnished to Congress than the Chippewa Tribe.

During the hearings last year before the committees of Congress this same statement was made-that we were not furnishing information to Congress regarding Chippewa funds; and you will find that that proposition was refuted at that time, and we placed in the record statements which we had furnished to Congress. Those statements are found on pages 296 to 315 of the hearings on the 1922 Indian appropriation bill. So that is a misleading statement to say to this committee that the Chippewa Indians are not able to get an accounting of their funds. We are required by law to make that accounting to the Congress of the United States annually, and we have been making that statement to Congress long before Mr. Ballinger was ever connected with Chippewa Indian affairs.

Mr. Ballinger referred to a decision in regard to minor Indians that he obtained from the department and stated that he had saved the Indians an enormous amount of money. I wish to call the attention of the committee to the fact that there was no saving of money in this decision. It was simply a decision by the solicitor of the Interior Department holding that a certain class of Indians were entitled to participate in the distribution of the funds of the Chippewa Indians. The decision of the department prior to that time followed what is known as the Oaks decision-107 Federal, 305-rendered by one of the circuit judges of the United States who was a former solicitor of the Interior Department and who is now on the Supreme Court bench. We were following what we thought was the correct interpretation of the Oaks decision, and I might say that it is the opinion of a number of the lawyers of the Interior Department to-day that the decision of the solicitor was not in accordance with the Oaks decision. In fact, the solicitor in the decision referred to the Oaks case and said that it in substance was not exactly in line with the Oaks case.

In order that the committee might have full information on this matter, I will place in the record at this point the decision of the solicitor in connection with this matter, and also the decision of the court in the Oaks case, so that the two may appear in the record.

SOLICITOR'S OPINION.

DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SOLICITOR, Washington, February 17, 1919.

DEAR MR. SECRETARY: Questions having arisen as to the rights of certain children born to persons whose names appear on the tribal rolls of the Chippewa Indians of Minnesota to share in the interest accruing upon the fund arising under the act of January 14, 1889 (25 Stat., 642), the matter has been referred to me" for an opinion on the legal points involved."