Chippewa Indians themselves may have recognition on the commission, which, in my judgment

Mr. HASTINGS. I am in hearty sympathy with the Indians having recognition on the commission.

The CHAIRMAN. Proceed.

Mr. BALLINGER. Now, Mr. Chairman, you have heard a great deal about the great land frauds in Minnesota, and probably when this bill comes up there will be some reference made thereto upon the floor. Now, I want to say a few words with reference to that situation. In 1906, by the act of June 21, 1906, 34 Stats., 325, at page 353, there was inserted a provision which I want to read:

That all restrictions as to sale, incumbrance, or taxation for allotments within the White Earth Reservation in the State of Minnesota, now or hereafter held by adult mixed-blood Indians, are hereby removed, and the trust deeds heretofore or hereafter executed by the department for such allotments are hereby declared to pass the title in fee simple, or such mixed-bloods upon application shall be entitled to receive a patent in fee simple for such allotments; and as to full bloods, said restrictions shall be removed when the Secretary of the Interior is satisfied that said adult full-blood Indians are competent to handle their own affairs, and in such case the Secretary of the Interior shall issue to such Indian allottee a patent in fee simple upon application.

Observe that that law automatically removes the restrictions upon all mixed blood adults. The department, that is, the Indian Bureau, disclaims authorship of that provision, and claims that that was inserted by Congress, that is, in Congress. At any rate, Mr. Chairman, the Indian Bureau was apprised of the legislation. It was inserted as an amendment in the Senate, and the Indian Bureau at least ought to have known the consequence that would follow that legislation, for the Senators and Congressmen are not supposed to be thoroughly familiar with the condition of rolls in the possession of the Indian Bureau. At that time, Mr. Chairman, there was no roll in existence showing the mixed bloods and the full bloods. In the preparation of rolls under the agreement of 1889 they were enrolled merely as members of the tribe and membership did not depend upon the quantum of blood; so that when that law was passed the only way a purchaser of land could ascertain whether or not a man was a full blood or mixed blood was from his physical appearance the general repute in which he was held and from the evidence the man offered to the purchaser. The Indians appeal to the white men in that country to buy their lands, gave them affidavits of themselves and members of their families that they were in fact mixed bloods, and they had been so recognized in that country as mixed bloods for years. White men bought the title, believing it to be good.

There was considerable of that land sold for less than its actual value, but at that time, remember, there was a large area of land in that country that was open to purchase, and land then was cheap as compared with the present time. After these sales had been made, and the Indians had sold their lands, representatives of the department went out into that country and claimed, first, that the words "mixed blood" meant only persons of less than half blood, and then, second, that many Indians who signed these affidavits were in fact full bloods. I will say to the chairman of the committee that the best information I can obtain is that there is not a full-blood Indian in the State of Minnesota. They have been mixed up with the white citizens in that country-French traders, and other white people-for more than 100 years, so that there is not a full-blood Indian in the

State of Minnesota to-day. The result was that innumerable suits were filed in the name of the United States throwing a cloud upon the title of practically every Indian allotment in that country, frightening purchasers away. Those suits were not brought to trial. By the act of June 30, 1913 (38 Stats., 88), provision was made for the appointment of a commission to take up the cases in the courts and to classify those Indians and make a roll showing the mixed bloods and the full bloods. That commission has now about finished its work. The result is that through the instrumentality of that commission men have been compelled to come in and make settlements with the Government upon the basis of the present valuation, in many instances, of the land, and then after the settlement was made the Indian has been listed as a mixed blood.

The court never had jurisdiction of the case of a mixed blood, and yet through the instrumentality of the Government agents the purchasers of that land, having made a valid purchase in the first instance as the seller is now classified as a mixed blood, has been held up and compelled to come in and make further payment. There are only comparatively few listed as full bloods. I think on the entire White Earth Reservation, where about 7,000 Indians were alloted, that your roll will contain less than 600 names of full bloods, and yet settlements have been obtained from a far greater number. The Government boasts of the fact that it has made a recovery for the Indians of some million, or a million and a half of dollars. In most instances the recovery was improper, but if it was proper those suits have cost the Indians in that country five times the amount of the recovery by the depreciation of everything that touched Indian land or pertained to it because, no one would buy it, and to-day people are afraid of Indian titles in that country. Now, that is, Mr. Chairman, the story of the great land frauds. If rolls had been made before that law became operative, classifying the Indians into full and mixed blood status, and those rolls had been made conclusive, no fraud could have occurred. We would never have heard of them. This bill that you have before you takes this precaution, and in addition to the rolls it provides that the acknowledgment of a deed from an Indian shall be before a court of record and not before a mere notary public or some irresponsible individual. I want to say to you that the bill as presented here represents the most careful thought of the members of the General Council of the Chippewa Indians. They stand equal to the white people of Minnesota. There are men on that General Council who, as business men, as practical men, as lawyers, rank among the best in Minnesota, and whose intregrity is universally acknowledged. Now, provision is made also in the bill for completion of the allotments to the Indians. The commission created under the act of 1889 ceased to function in 1901. It got into a row with the then Secretary Hitchcock and he tried to abolish them. He at least put them out of commission, and the result was that by the act of June 22, 1902 (32 Stats., 400, at p. 404, sec. 5), the work of completing the allotments was turned over to the department, but there never has been any authority conferred upon the department, although such authority has been exercised, to enroll or add the name of a single person to those rolls. Some of them have been added and the general council think properly added, but they are illegally on there because there was no authority vested in

the Secretary to put them there. This bill will validate those enrollments and relieve the Government of the United States of any possible claim that might arise therefrom.

Now, Mr. Chairman, for 31 years the funds of those Indians have been appropriated by Congress, and the general council has taken the position, at least since 1916, that Congress ought not to have appropriated the funds, their trust funds, to defray the Indian Bureau expenses in Minnesota. In the first place, Mr. Chairman, in 1889, when this agreement was entered into and for years theretofore the Government had maintained two agencies, one agency and a subagency, in that country-the agency at White Earth Reservation, and the subagency at Red Lake Reservation. The cost of support and civilization, including pay of Government employees prior to 1889, when these Indians were supposed to be uncivilized, was less than $29,000 per annum, including the school funds, and all was paid for out of the Public Treasury. Every dollar that went to an Indian agent and for the agency employees in that country prior to 1889 came out of the Public Treasury of the United States.

The CHAIRMAN. Before that period what source of income did the Minnesota Chippewa Indians have?

Mr. BALLINGER.. Up to 1889 a great many of them were farmers, just as they are now, and they worked in logging camps and in various mills and on farms around throughout that country.

The CHAIRMAN. Just as they are doing now.

Mr. BALLINGER. Just as they are doing now, and they themselves at that time were independent and self-supporting, the great majority of them. Now, Mr. Chairman, if it had been the intention of Congress or of the Government to have imposed upon the tribe the cost of maintaining their agents it should have so provided in the act of 1889. These agents were in fact not maintained for the benefit of the Indians. The agency system was built up years ago, back in the early days, for the protection of the whites, and it was forced upon the Indians. No Indian tribe ever asked for an Indian agent. It was forced upon them by the Government for the Government's protection and to keep the Indian in quietude was going to say in subjugation. Therefore, Mr. Chairman, if it had been the intention of either the Government or the Indians when the agreement of 1889 was signed that their trust funds were to be used in paying the salaries of the United States employees in that country, express provision must have been written into the agreement. That is the universal rule of construction. Now, what happened? The United States never set up a claim until 1910 or 1911 that these funds could be used for such a purpose. The appropriations theretofore were for specific purposes the appropriations theretofore out of their trust. funds or made reimbursable out of their trust funds, were specific, namely, for the work of administration of the estate. Yet, Mr. Chairman, prior to 1910 and 1911 the funds were used by the Indian Bureau and the department for these agency expenses. The money was diverted from the purposes for which it was appropriated and used for these agency expenses.

The CHAIRMAN. Thirty-one years ago, this time that you are referring to, did the Minnesota Chippewas have a correlated fund at that time? Did they have any treasury fund of their own, in their own possession or in the possession of the Government?

Mr. BALLINGER. No, sir; they did not; but if it had been the intention of Congress to pay the agency expenses out of their funds they would have appropriated it that way in the first instance and made it reimbursable.

The CHAIRMAN. But we must not get away from the fact that these Indians had no administration; and during this Indian Bureau's administration, whether it was good or bad, they have accumulated a fund.

Mr. BALLINGER. Yes, sir; but remember that fund began to accumulate in 1896, and between 1896 and 1911 Congress never touched it for that purpose. Then there was no authorization from Congress, and yet the funds were diverted from the purpose for which they were appropriated. Now, Mr. Chairman, the claim is made that you can use, take those funds and use them under this provision appearing in section 7 of the act of January 14, 1889, as ratified by the Indians:

"Provided, That Congress may in its discretion from time to time, during the said period of fifty years, appropriate, for the purpose of promoting civilization and self-support among the said Indians, a portion of said principal sum, not exceeding 5 per centum thereof."

Now, remember that in the first portion of section 7 it was expressly provided that all of the money shall be paid to the Indians, and this was the exception. Now, when the agreement was submitted to the Indians they asked what that meant, and this is what the commissioners told them: "That this fund was to be encroached upon only in the event of failure of crops or any other unforseen misfortune.' I quote from H. Doc. No. 247, Fifty-first Congress, first session, page 88. Now, Mr. Chairman, on the very face of that proviso it is plain that neither the Government nor the Indians intended that this should be a continuous annual performance, for it says that Congress may in its discretion from time to time use it. If it contemplated annual incursions upon the funds it would have been so stated, but the language itself excludes that construction.

The CHAIRMAN. What is the interpretation of that language"from time to time?"

Mr. BALLINGER. The interpretation of it would be, that the Indians would be bound by the interpretation of this language, as given to the Indians and upon which interpretation they acted. That is the universal construction.

The CHAIRMAN. From time to time in one year, or from time to time in a period of years?

Mr. BALLINGER. Mr. Chairman, it would mean exactly what was within the minds of the parties, the intention of the parties.

The CHAIRMAN. Of course, the intention of the parties. That is what I am trying to get at.

Mr. BALLINGER. Precisely, it would mean what was within the minds of the parties, the intention of the parties. The object and purpose of that was to meet unforeseen contingencies that might arise. That was the object of it.

The CHAIRMAN. Then you maintain that all this money appropriated for the benefit of the Indians of their funds by Congress will eventually be put into a claim against the Government?

Mr. BALLINGER. Mr. Chairman, this bill puts it into a claim against the Government and refers the matter to the Court of Claims. When

you refer to this money that has been appropriated for the benefit of the Indians, the position of the general council is that while Congress intended that it should be for the benefit of the Indians it has never been used for their benefit. The Government employees in Minnesota. have received the real benefits. Upon this point, Mr. Chairman, 1 will ask that this typewritten statement be included in my remarks. The CHAIRMAN. It is so ordered.

(The said legal analysis follows:)

66

USE OF THE TRUST FUNDS FOR ALLEGED SUPPORT AND CIVILIZATION."

Since about the year 1895 the Indian Bureau has been using the trust funds of the Chippewa Indians of Minnesota in paying the salaries and expenses of maintaining its regular agency employees. This was done prior to 1911 without any vestige of authority of law, and since 1911 under color of congressional authorization

Prior to the act of January 14, 1889, the United States maintained an agency for the Chippewa Indians of Minnesota at White Earth, and a subagency at Red Lake. By reference to the Indian appropriation bill approved June 29, 1888 (25 Stat., 217) it will be observed that the following appropriations were made for the support of the agent and for the support and civilization of all the Chippewa Indians of Minnesota: At page 218. "For pay of 58 agents of Indian Affairs at the following-named agencies, at the rate respectively indicated: * * at the White Earth Agency, at $1,600.'

*

At page 230. "For support and civilization of Chippewas of Red Lake and Pembina Tribes of Chippewas, and for pay of employees, $10,000."

At page 230. "Support of Chippewas on White Earth Reservation: $10,000.'

*

* *

At page 220. "For the support of a school or schools upon said reservation, during the pleasure of the President, in accordance with third article of the treaty of March 19, 1867 (vol. 16, p. 720), $4,000."

This bill also carried numerous large lump-sum appropriations, of which the following, appearing at page 235, is a sample:

At page 235. "For support of Indian day and industrial schools, and for other educational purposes not hereinafter provided for, $685,000.

* * * "

Like appropriations had been carried in the Indian bills for years theretofore. It will be observed that in 1888 the United States paid out of the Public Treasury the salary of the agent at White Earth and appropriated $20,000 for the support and civilization of all the Chippewa Indians in Minnesota and the pay of all employees. In addition to this it appropriated under article 3 of the treaty of March 19, 1867, $4,000 for a school for the Indian children, and out of the lump-sum appropriations made for educational purposes an allotment of a few thousand dollars was made yearly for schools for the Chippewa children. The agency at White Earth, like other Indian agencies, was established not so much for the benefit of the Indians as for the protection of the white population, and was in pursuance of a governmental policy forced upon the Indians which the Government of the United States recognized as its policy and properly maintainable by the United States out of the Public Treasury.

The act of January 14, 1889, section 7, expressly provided that the proceeds derived from the sale and disposition of the ceded property should be placed in the Treasury of the United States to the credit of the Indians and should be paid to the Indians, principal and interest. That section contained this proviso:

"Provided, That Congress may, in its discretion, from time to time, during the said period of 50 years, appropriate, for the purpose of promoting civilization and selfsupport among the said Indians, a portion of said principal sum, not exceeding 5 per cent thereof."

It is plain from a consideration of section 7 that neither the United States nor the Indians had in contemplation the use of any of the trust funds in defraying any of the regular agency expenses. The proviso never contemplated a regular annual appropriation for it provides "that Congress may, in its discretion, from time to time, * appropriate, for the purpose of promoting civilization and self-support among said Indians, a portion of said principal sum.

*

*

The words "from time to time" negative the idea that the appropriations were to be continuous and annual. When the act of January 14, 1889, was submitted to the Indians for ratification before it could become a law, the commissioners, representing the United States, explained the above-quoted proviso to the Indians and stated to them that it meant only that Congress might encroach upon the principal fund in the