event of failure of crops or any other unforeseen misfortune. (H. Doc. No. 247, Fiftyfirst Cong., 1st sess., p. 88.) This explanation given by the commissioners, representing the United States; the Indians accepted and acted upon and the explanation, therefore, controls the construction to be placed upon the proviso and is binding upon the United States. (Minnesota v. Hitchcock, 185 U. S., pp. 395-6; U. S. v. Mille Lac Band of Chippewa Indians, 229 U. S. at pp. 509-10.) That the United States did not consider that any of the trust funds of the Indians could be used for agency purposes is evidenced by the fact that regular annual appropriations were made for 20 years after the agreement of 1889 was signed for the pay of the agent and agency employees out of the Public Treasury, as will appear from an examination of the following acts: Act approved August 19, 1890 (26 Stat., 336, 337, 339, 351). Act approved May 27, 1902 (32 Stat., 245-246). In 1900 lump-sum appropriations were made in lieu of specific appropriations for the separate reservations throughout the country, but each bill down to the one of March 3, 1909, contained specific appropriations for the pay of the agents or superintendents among the Chippewas out of the public funds. Every appropriation bill enacted from August, 1890 (26 Stat., 336, 351), down to and including the year 1909 contained the following item varying only in the amount appropriated: "To enable the Secretary of the Interior to carry out an act entitled 'An act for the relief and civilization of the Chippewa Indians in the State of Minnesota, and for other purposes,' approved January 14, 1889, as follows: For the purpose of erection of houses for Indians and saw and flour mills; agricultural implements, stock and seeds, breaking and fencing land; for payment of expenses of delegation of Chippewa Indians to visit the White Earth Reservation; for the erection and maintenance of day and industrial schools; and for subsistence and pay of employees, $100,000; and for surveys, appraisals, removals, and allotments, $100,000; in all, $200,000, of which amount $7,500, or so much thereof as may be necessary, may be used for the employment of additional clerical force in the office of the surveyor-general of Minnesota, on account of such surveys: Provided, That the amounts shall be reimbursed to the United States from the proceeds of sales of land ceded by the Chippewa Indians under the act of January 14, 1889. And the Secretary of the Interior shall make a full and detailed report of his doings hereunder to the first session of the Fifty-second Congress." Under these appropriations not a dollar of this money could be used lawfully for the pay of agents or agency employees, yet a substantial proportion of it was, in defiance of law, used by the Indian Bureau in addition to the regular appropriation for agency employees and only a part of it used for the purposes for which it was appropriated. In 1910 the United States was reimbursed from the trust fund for all moneys appropriated from the Public Treasury and made reimbursable, and in the act of March 3, 1911 (36 Stat., 1058 at 1065), appeared for the first time this provision: That the Secretary of the Interior is hereby authorized to withdraw from the Treasury of the United States, at his discretion, the sum of $165,000, or so much thereof as may be necessary, of the principal sum on deposit to the credit of the Chippewa Indians of the State of Minnesota, arising under section 7 of the act of January 14, 1889, entitled "An act for the relief and civilization of the Chippewa Indians in the State of Minnesota," and to use the same for the purpose of promoting civilization and self-support among the said Indians in manner and for purposes provided for in said act. Only an insignificant amount of this appropriation of $165,000 went to the Indians, less than $8,000 being expended that year for their benefit, the remaining $157,000 being used for agency and kindred expenses. From 1911 to the present day the annual appropriations, ranging as high as $185,000, have been used for similar purposes. Agencies have been maintained at Fond du Lac, Grand Portage, Leech Lake, and Nett Lake, in violation of law and the trust funds of these Indians, amounting to hundreds of thousands of dollars used in the maintenance of these agencies. Reservations have been maintained at each of the above-named places in violation of law, and the expenses of maintaining the reservations have been paid from the trust funds. When the Chippewa Indians have sought to obtain the opinion of the law officers of the Government as to the validity of these appropriations and expenditures, both the department and Indian Bureau have refused to permit the matter to be referred to the judicial officers for an opinion as will appear from the correspondence heretofore included in the record. Now, Mr. Chairman, I may add also that the right of the Government to use these funds is also one of the questions that the General Council asked the department to refer to its legal officer for an opinion, at least for the guidance of the department in making requests for appropriations, and the department refused even to submit. that question to its own legal officer. In my judgment the reason for their refusal to submit the question was that it was so plain that they would of necessity have received an opinion to the effect that the funds could not properly be used. That request was made, Mr. Chairman, immediately following the submission of another question to the solicitor, in which the solicitor had reversed the Indian Bureau, The Indian Bureau had issued orders to strike the names of a large number of minor Chippewa children from the tribal rolls, on the ground that those children had been born or were residing off of the Indian reservation or off the allotted lands of their parents. Their names were stricken from the rolls, and orders were issued to return any funds that had been segregated to their credit in the Treasury of the United States. The General Council instructed me to take that matter up and, if necessary, to go to the courts with it. I asked the department to refer the matter to the solicitor of the department, which was done, and the solicitor rendered a very carefully prepared opinion, in which he deals with th nature of this trust, and directed the restoration to the rolls of those minor children. Mr. HASTINGS. Will the department follow the opinion of the solicitor? Mr. BALLINGER. Yes, sir. Mr. HASTINGS. Then you have no complaint on that? Mr. BALLINGER. Not at all. I merely referred to that as the probable reason why my subsequent request to have the question referred to the solicitor was denied. In my judgment the previous reversal of the Indian Bureau by the solicitor was one of the reasons why it was denied. Now, Mr. Chairman, the question has been raised here with reference to the power of Congress to dissolve this trust, to terminate this trust, and to divide these funds in advance of the 50-year period provided for in section 7 of the agreement of 1889. That is a matter, when I first looked into it, caused me some annoyance, but after a careful consideration of it, I do not think there is any question about the power of Congress with the assent of the Indians to dissolve this trust at this time. This bill before you, if enacted into law, will dissolve this trust before the expiration of the 50-year period. Section 7 of the act of 1889, as agreed to by the Indians, provides for the sale and disposition of all the ceded property, and the deposit of the proceeds in the Treasury of the United States to the credit of the Chippewa Indians of Minnesota. The fund was to bear interest at the rate of 5 per cent per annum, and was to be held as a trust fund for a period of 50 years after all the property had been sold and all ́ the allotments made. The question has been raised as to the power of Congress to dissolve the trust before the expiration of the time specified. Ordinarily such a trust could not be changed, altered, or modified by either the creator, the trustee, the cestui que trust, or the court, except with the consent of all the beneficiaries. But this rule does not apply in a case in which unforeseen conditions have arisen which prevent the execution of the trust as the creators intended it should be executed. Such is the case here. Both the Government and the Indians contemplated the sale and disposition of the property and the completion of the allotments in a few years after the agreement of 1889 was entered into. Then the trust peroid of 50 years commenced to run. Thirty-one years have now passed, and the allottments have not been completed, nor has the property been sold. The trust period of 50 years has not yet commenced to run. The trustee in, violation of the terms of the trust, has diverted the property to other and different uses than was provided for by the trust. This must now be recovered by resort to the courts, and when recovered must be sold. If it should now be attempted to execute the trust in accordance with its terms, the fund would be paid to other and different generations that those in the minds of the Government and the Indians when the agreement of 1889 was entered into. The Indians are fast scattering throughout the United States and the world. It is impracticable to continue the trust for a period of 50 years after the allotments are completed, and the property is all sold. To do so would be to deprive the indians who would have taken the property had the trust been administered in accordance with its plain terms of their property and would pass the property on to succeeding generations. Public policy has decreed the dissolution of these tribal governments and the winding up of the estates. The present expense of administering this trust is prohibitive. If the costly administration of the past should continue, there would be no fund to divide in 50 years. Under such circumstances it is legal, just, and proper to all parties concerned to take such steps as will effectuate as nearly as possible the intention of the parties to the agreement of 1889. (Sears v. Choate, 146 Mass., 395.) This can be done by the consent of the United States and the Indians to the distribution of the funds among the present generation. Only 19 years would remain, if the trust had been administered as it should have been. To defer distribution for 60 or 75 years more would be to deprive the very persons for whose benefit the trust was created of its fruits and benefits. Therefore, as the mistakes that have been made can never be righted, the nearest that can be done is to approximate the intention of the creators of the trust. This was recognized by Congress in the act of May 18, 1916, which directed the distribution of one-fourth of the principal fund and which was distributed. This act on the part of the Federal Government may have created a liability, because the consent of the Indians was never obtained. By now obtaining their consent to the distribution of the funds no liability can arise and the fund will be distributed at approximately the time the parties to the agreement creating the trust intended. Mr. HASTINGS. Has anybody taken a contrary view? Did the Indians? Mr. BALLINGER. No, sir. Mr. HASTINGS. Does the department? Mr. BALLINGER. No, sir. Mr. CARTER. That question of the power of Congress to do it has not been raised at all. The CHAIRMAN. It has been brought out here in the investigation between the parties at issue that the department and the various members of the Chippewas of Minnesota agreed to about 75 per cent of the matters involved-I think it was said to be about two-thirds. Of course, they are dealing not only with the things involved in the dispute, but are discussing to some extent the things which have been agreed upon. It may be a good plan, Mr. Ballinger, as you go along further when you come to an undisputed point just to say that you are merely giving us information in regard to it, but that the matter is undisputed. Mr. CARTER. The question, Mr. Chairman, of the power of Congress to deal with the agreement has never been disputed, but that point has never been raised at all. The only point raised was the moral obligation of Congress to carry out the agreement with the Indians, and the fact that those who succeed, who will be born hereafter, who are living at the end of this 50-year period, might, and perhaps will, come in with a claim against the Government for their pro rata share of this property, and upon that showing would have very good grounds at least to send it to the Court of Claims. The CHAIRMAN. But as I understand this proposition as it exists to-day, the 50-year period has never commenced, because no part of the agreement has been put into effect, and until things occur the 50-year period does not begin to run, and if it goes on as it has been there will never be an end to the 50-year period. Mr. BALLINGER. There will never be a commencement of the 50-year period until all the property is sold and the allotments are made. The CHAIRMAN. That agreement has been in existence 31 years. Mr. DALLINGER. Mr. Chairman, Mr. Ballinger said he thought he ought to get through to-day. The CHAIRMAN. Yes. Mr. DALLINGER. Now, then, I hope before he concludes, for the sake of clearness, that he will take up this bill, this committee print, and just point out the things in contention between himself and the bureau. The CHAIRMAN. I think that is a very good idea, but I do not want to limit Mr. Ballinger. Mr. DALLINGER. Yes, I would rather that he would have more time to do that, too. The CHAIRMAN. Yes, so that he can give us all the information that he has in the matter, and if he can not finish to-day I want to give him more time. Mr. DALLINGER. Yes, I should think so, too, but my point is that I should like to have him give that information before he finishes. The CHAIRMAN. But there is so much of it that he will necessarily have to be very concise with it or he will not get through this week. Mr. BALLINGER. I hope I will, Mr. Chairman. There is a difference between the general council and the department with reference to the manner in which these funds can be divided. The position of the general council is that that can not be legally done without the consent of the Indians. The position of the department is that it is within the plenary power of Congress to divide the fund as it sees fit, and to do with it as it sees fit. That is one of the fundamental differences between the department and the Indians. It arose out of this fact, that for a series of years the Indian Bureau has been transmitting proposed legislation to Congress, taking the very vitals out of the trust created by the act of 1889, and has succeeded in obtaining the enactment of a part of that legislation. Now, the department does not want to concede that the Indians should be consulted and shall have the right to say whether the agreement of 1889 shall or shall not be carried into effect. That is the real reason for the difference between the Indians and the department. Upon that point I again refer to the decision of the Supreme Court of the United States in the case of Minnesota against Hitchcock, reported in One hundred and eighty-fifth United States Reports. That decision was rendered two years prior to the decision in the case of Lone Wolf against Hitchcock, to which reference has been made, and in that decision the Supreme Court of the United States lays down clearly and concisely the nature of this trust and points out that the terms fastened upon the trust property by the agreement of 1889 can not be changed to the detriment of the Indians. Following that comes the decision in the Mille Lac case reported in Two hundred and twenty-ninth United States Reports. In that decision the distinction between this trust estate and the estate dealt with in the Lone Wolf case is clearly pointed out. I am going to take the time of the committee just for a moment to call your attention to it, because I feel certain that the particular nature of this trust estate has not been inquired into. Mr. HASTINGS. I may agree with you as to Congress not having the moral right, and the Government not having the moral right, but I want to say that I have read nearly all the decisions of the Supreme Court of the United States on Indian questions, and I believe that they hold, as was held in the Lone Wolf case, decided in the One hundred and eighty-seventh United States Reports, that the Congress of the United States has the legal right to administer this trust 173731-20-8 |