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COMMITTEE ON INDIAN AFFAIRS,
Monday, March 15, 1920. The committee met at 10.30 o'clock a. m., Hon. Homer P. Snyder (chairman), presiding.
The CHAIRMAN. Gentlemen, a quorum of the subcommittee being present, we will resume the hearings, and before starting with the witnesses I desire to see if we can find out at this time how many more there are who desire to testify with regard to this matter.
Mr. MERITT. Mr. Chairman, there are two Red Lake Indians here who would like to testify, and I think probably three other Indians from the Chippewa country, Mr. Caswell, Mr. Walters, and Mr. Broker from the White Earth Reservation. I do not know whether this old Indian here (indicating Wah-bee-zha-shee from Leech Lake) wants to say anything or not.
The CHAIRMAN. I am very anxious to close the debate on the hearings to-day, and then I desire to put in one day on the bill itself, with alĩ the extraneous matter cut out, and I would like to try to fix now, if we can, the time that these gentlemen desire to discuss this matter, and the witness that we finished with on Friday afternoon will undoubtedly desire to go ahead this morning, if he is here, and if you will just step over here now we will just see how much time you desire in the matter. I am making this statement, not with the view of cutting off anybody who has any information to give us, but it seems to me that as we have other pressing matters following this matter we have given about all the time we can at this time if we take to-day and to-morrow. How much time will you require ?
Mr. CASWELL. It depends on what the committee wants to find out. The CHAIRMAN. It depends on what you want to tell us. I doubt whether a question of the enrollment, or legality of these men who are here will have much weight in the matter, since that is all of such a distant date that it would seem to me that we ought to deal with the matters that will assist us in coming to a conclusion, with a view of closing up the matter.
Mr. MERITT. I agree with you that we ought not to take much time on that matter, because it has been settled by the department in a decision.
The CHAIRMAN. So if you will go ahead, say, for 15 minutes more, and just give us the salient points of your argument.
Mr. RHODES. Does he want the rolls opened up again?
The CHAIRMAN. He has made the charge here that certain recognized men on the council have no right to be on the roll at all.
Mr. RHODES. Then he wants the names stricken off ?
The CHAIRMAN. No, he does not ask us to do that. That would be a complicaton of the matter; but since that matter has been settled by a determination of the department it seems to me that it is beyond us to do anything with it.
Mr. RHODES. In other words, what you suggest, Mr. Witness, seems to be more in the nature of a general complaint, without stating positively what you want to do. Now, if you think there are names on the roll that you think should be stricken off, say so.
The CHAIRMAN. And file a list of such names.
Mr. RHODES. If there are names that you think ought to go on the rolls, say so, but simply to make a general complaint without being definite and certain as to the nature of the complaint, would not do you any good, neither would it help the committee very much. I am saying this to help you.
The CHAIRMAN. And if he desires to, when he completes his remarks, he can put into the record the names of such men as he thinks, according to his judgment, are illegally on the roll.
Mr. MERITT. May I place in the record the decision in this matter!
DEPARTMENT OF THE INTERIOR,
Washington, January 29, 1916. Complaint having been made on the part of certain alleged full-blood Indians of the White Earth Reservation that there were names on the rolls of that band not properly there, notices were sent to 86 persons, thus indicated as being improperly enrolled, under date of November 25, 1911, signed by the Commissioner of Indian Affairs and approved by the First Assistant Secretary of the Interior. These notices recited the allegation that the parties were unlawfully upon the list of Minnesota Chippewa Indians, not being originally members of any Minnesota tribe or band by
irth, and not having become so by proper or legal adoption. The parties addressed were required to show cause why their names should not be stricken from the rolls, their allotments canceled, and the amounts which they had received in the way of annuities and other payments, returned to the tribe. Such notices further advised them that they had been suspended from all of such lists and from participating in any payments, annuities, or other benefits.
Answers were made to these notices, in some instances in person, and, in others, by attorneys; all denying the charge, and some, if not all, denying the jurisdiction in the department to strike from the rolls any name placed thereon by the commission, acting under the act of January 14, 1889 (25 Stat., 642). After these answers came in a representative of the department was sent to the reservation to make an investigation. He required a formal complaint to be made, over the signature of full-blood members of the tribe. This was subsequently done; such complaint being verified, and containing substantially the charges made in the notice of November 25, 1911, though with considerable elaboration. Copies of the complaint were served upon the 86 persons to whom notices had formerly been sent, who filed answers denying the charges, and again asserting lack of jurisdiction in the Secretary of the Interior. Subsequently, voluminous testimony was taken by the investigator.
It was decided to submit the matter to the Court of Claims and, with the acquiescence of all the parties interested, this was done by department letter of February 28, 1915, reference being made to section 148 of the judiciary act of March 3, 1911 (36 Stat., 1037, 1137), as affording authority for such action. The court was advised that the record was submitted for findings as to the matters of fact and your opinion as to matters of law, together with your conclusion thereon, for the use and benefit of this department in the premises. The court held, in substance, that it had no jurisdiction to render advisory opinions in such matters. The request was thereupon amended, and the court rendered final decision under date of December 21, 1914, wherein, after discussing at some length the question of jurisdiction, concluded that it had no jurisdiction of said claim or matter, and returned the record to the department.
Elaborate briefs have been filed before the department, discussing the jurisdiction of the Secretary, as well as the merits of the matter. Oral arguments have also been heard. The question of jurisdiction has been presented and insisted upon at various stages of the proceedings, and must be considered and determined, before any consideration need be given the merits.
It is not necessary to cite the various treaties and their provisions to which the Chippewa Indians were parties, entered into from 1785 down to 1867. For the present, at least, it will be only necessary to consider the act of January 14, 1889. That act. provided, in section 1, for a commission, to be appointed by the President, to negotiate with the different bands or tribes of Chippewa Indians of Minnesota, for the cession and relinquishment, in writing, of their title and interest in and to all the reservations. of said Indians in that State, except the White Earth and Red Lake Reservations, and all of these two reservations not required to make and fill allotments provided for by that and other existing acts.
A roll was to be made by said commission-the provisions therefor reading:
"And for the purpose of ascertaining whether the proper number of Indians yield and give their assent as aforesaid, and for the purpose of making the allotments a payments hereinafter mentioned, the said commissioners shall, while engaged in. securing such cession and relinquishment as aforesaid and before completing the same, make an accurate census of each tribe or band, classifying them into male and female adults, and male and female minors; and the minors into those who are orphans and those who are not orphans, giving the exact number of each class, and making such census in duplicate lists, one of which shall be filed with the Secretary of the Interior, and the other with the official head of the band of tribe; and the acceptance and approval of such cession and relinquishment by the President of the United States shall, be deemed full and ample proof of the assent of the Indians, and shall operate as á complete extinguishment of the Indian title without any other or further act or ceremony whatsoever for the purposes and upon the terms in this act provided.”
Section 3 of the said act provided that as soon as the census should be taken and the cession obtained and approved, as specified in section 1, all of said Indians, except those on Red Lake Reservation, should be removed to the White Earth Reservation, and be allotted lands in severalty.
This was to be done under the direction of said commissioners. Section 4 provided for the survey and classification of the lands into pine lands and agricultural lands. It is not necessary now to notice the provisions of the other sections of said act.
The commission provided for was duly appointed and proceeded with the work confided to them. A report of their work is to be found in House Executive Document No. 247, Fifty-First Congress, First Session. Agreements were secured from each tribe or band, which were approved by the President March 4, 1890. Census rolls of the several tribes were compiled, upon which appear the names of all the 86 persons then living, and the names of the ancestors of those not then in being. The report of the commission shows also that the Indians had part in the making of the rolls; and were given full opportunity to object to any name thereon.
The work of removing the Indians to White Earth Reservation and of making allotments to them was proceeded with, but not yet completed when, in the act of June 10, 1896 (29 Stat., 321,326), it was provided that the duties imposed upon the three commissioners should, from and after that time, be performed by the commissioner, to be designated by the Secretary of the Interior. The act of June 27, 1902 (32 Stat., 400), amended sections 4, 5, and 7 of the act of 1889, but did not change section 1 of the said earlier act, except as provided in section 5 of the act of 1902, which reads:
"That the Secretary of the Interior shall proceed as speedily as practicable to complete the allotments to the Indians, which allotments shall be completed before opening the agricultural lands to settlement.”
The act of April 28, 1904 (33 Stat., 539), authorized the President to allot to each Chippewa Indian "now legally residing upon the White Earth Reservation,” 160 acres of land, with the proviso that where any allotment of less than 160 acres had theretofore been made, the allottee should be allowed to take an additional allotment which, together with the land to be allotted, should not exceed 160 acres.
It is urged in support of the contention that the Secretary has no authority now to disturb the rolls made by said commission, or to eliminate therefrom any nam for reasons existing at the time of such enrollment, because the making of said roll was confided to that commission as a special tribunal. It is urged, on the other hand, that the Secretary has jurisdiction, because of his general authority over Indian matters.
Section 441 of the Revised Statutes confides to the Secretary of the Interior the supervision of public business relating to various subjects, among which are “The Indians” and “The public lands, including mines.” Section 463 provides that the Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, “have the management of all Indian affairs, and of all matters arising out of the Indian relations." The Secresary has jurisdiction over such matters in all cases where no other provision is made. The power of Congress to confide such supervision to other tribunals can not be questioned.
În reference to duties connected with the control and disposition of public lands, the Supreme Court laid down the rule in Catholic Bishop of Nesqually v. Gibbon (158 U. S., 155–167) in the following words:
“It may be laid down as a general rule that, in the absence of more specific provision to the contrary in respect to any particular grant of public land, its administration falls wholly and absolutely within the jurisdiction of the Commissioner of the General Land Office, under the supervision of the Secretary of the Interior. It is not necessary that with each grant there shall go a direction that its administration shall be under the authority of the Land Department. It falls there, unless there is express direction to the contrart.
The same words might well be used to define the authority of the Secretary of the Interior in respect to Indian matters. This is so well settled that it seems hardly necessary to cite authority in support of the proposition. It may be noted, however, that the subject was involved in West v. Hitchcock (205 U. S., 80). That case involved a question of membership in the Wichita and affiliated bands of Indians, in connection with making allotments, under the act of Congress approved March 2, 1895 (28 Stat., 876, 895–897), which act did not contain any specific direction as to the making of such rolls. The claimant there asserted membership by virtue of adoption. The court said:
“The right is conferred upon members of the bands, but the ascertainment of membership is left wholly at large. No criteria of adoption are stated. The Secretary must have authority to decide on membership in a denial case, and if he hasit in any case he has it in all.
After referring to sections 441 and 463 of the Revised Statutes, the court said: "The
power of Congress is not doubted. The Indians have been treated as wards of the Nation. Some such supervision was necessary and has been exercised. In the absence of special provisions, naturally, it would be exercised by the Indian Department.”.
All declarations that the Secretary of the Interior has authority are coupled with the saving clause that there be no special provision conferring jurisdiction upon some other tribunal.
The contention that the Secretary has now jurisdiction to eliminate names from the list made by the commissioners appointed under the act of 1889, must be upon the assumption that their appointment did not constitute them a special tribunal for making such rolls. It is significant, in this connection that the rolls were to be made-not only to determine whether the necessary two-thirds of the Indians had given assent to the agreement, but also for the purpose of making the allotments and estimates hereinafter mentioned.” It would be difficult to find language more. appropriate to specifically confer jurisdiction.
It is contended, however, that the approval given by the President in 1890 was confined to the written agreements secured by the commission from the Indians. That is true as to form. In fact, however, the census made and transmitted to the Interior Department by the commission, with its report, was accepted as correct by the President to the extent that he determined thereby that two-thirds of the male adults of all the Chippewa Indians in Minnesota had signed the agreement for the cession of the Red Lake Reservation and as to each other of the several reservations two-thirds of the male adults residing and belonging thereon had agreed to the cession.
It has been laid down as a universal principle that the acts of a tribunal given power of jurisdiction over a subject matter are binding and valid as to that matter, and that the decision made or act done is final, unless an appeal is provided for or other revision is prescribed by law. This is stated in United States v. Arredondo (6th Pet., 691,728, 729):
“It is a universal principle that where power or jurisdiction is delegated to any public officer or tribunal over a subject matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject matter, and individual rights will not be disturbed collaterally for anything done in the exercise of that discretion within the authority and power conferred. The only questions which can arise between an individual claiming a right under the acts done and the public, or any person denying its validity, are power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or officer, whether executive (1 Čranch, 170, 171), legislative (4 Wheat., 423; 2 Pet., 412; 4 Ibid., 563), judicial (11 Mass., 227; 11 S. & R., 429, adopted in 2 Pet. 167, 168), or special (20 Johns., 739, 740; 2 Dow P. C., 521, etc.), unless an appeal is provided for, or other revision, by some appellate or supervisory tribunal, is prescribed by law.”
There is nothing in the act of 1889, nor in any other act of Congress, providing for approval or supervision by the President or other officer or tribunal, or for appeal from the action, the commissioner acting as a special tribunal under section 1 of the said act of 1889.
It is true, as stated in support of the jurisdiction of the Secretary of the Interior, that the work of the commission was not completed at the date Congress enacted the law of June 10, 1896 (29 Stat., 325), but that fact is not of significance, because that did not attempt to confer jurisdiction or authority upon the Secretary of the Interior. There were portions of the work yet to be completed, such as the allotment of lands and removal of Indians from other reservations to White Earth. Neither had the work been completed at the date of the act of June 27, 1902, which directed the Sec-'
retary to complete the allotments to the Indians. This act amended several sections of the act of 1889 in respect of making allotments, etc., but did not make any change in section 1, nor confer upon the Secretary of the Interior any authority in respect of the matters provided for in that section, among which was the making of the census. Nor did the act of April 28, 1904 (33 Stat., 539), purport to make any additional provision respecting the census. Neither the fact of the passage of these laws nor any provision contained in any one of them supports the contention of the protestants here. That it was not intended by these laws to affect in any manner the census which had been taken by the commission is further indicated by the provision in respect of this census that it should be made by the commissioners “while engaged in securing such cession and relinquishment as aforesaid before completing the same. In other words, the census was to be made before the commission should report the result of its work to the President.
The various decisions cited in support of the protest have been examined, but it is not necessary to comment upon them extensively. Considerable stress is laid upon the decision of the Circuit Court of Appeals in Woodbury v. The United States (170 Fed., 302), and in Oakes v. The United States (172 Fed., 305). These cases involved the right of individuals claiming allotments on the White Earth Reservation, but were brought under the act of February 6, 1901 (31 Stat., 760), specifically conferring jurisdiction upon the circuit courts of the United States over suits involving the right of any person of Indian blood claiming to be entitled to an allotment of land under any law of Congress. These decisions are, therefore, not important in. arriving at a conclusion as to the jurisdiction of the Secretary of the Interior in the matter now here. The decision by the department in the case of Minnie H. Sparks (36 L. D., 234), is also referred to. In that case the name of Minnie H. Sparks was placed upon the rolls by the Chippewa Commission, and she received annuities from the date of enrollment for a period of 10 years, when her name was dropped. By the decision referred to it was held that the dropping of her name because of nonresidence was unauthorized. This case, and the other referred to therein and quoted from (Sloan family), held that residence was a requisite to sustain the right to an allotment on the White Earth Reservation, but not to sustain a right to annuities.
In the case of Nellie Lydick (29 L. D. 408), it was held that the Secretary of the Interior had authority to add to these rolls made under the act of 1889 any name which should be there. This was asserted without discussion of the question, and I am not inclined to accept this decision as controlling the matter now under consideration.
The law in question was under consideration in Fairbanks v. United States (223 U. S. 215). It was there held that children born after 1889 to parents whose names were on the roll prepared by the commission were entitled to allotments of land on the White Earth Reservation. A fuller discussion of the matter, however, is found in the case of Laroque v. United States decided November 8, 1915. The question there involved was as to the right to have an allotment made in the name of an Indian who was enrolled in 1889, and who died before making application for allotment. It was contended that the census was to be accepted as finally determining who were to receive allotments. In the course of the discussion, the court said:
“While the act directed that a census be made for the purpose, among others of making the allotments' contemplated, we think this means nothing more than that the census should serve as a preliminary guide in ascertaining to whom allotments should be made. There was no direction that it be treated as controlling, or that allotments be made to all whose names appear therein or only to them. The work of allotment could not be undertaken at once. The cesssion was not to be effective until approved by the President. Many of the Indians were to be removed from the ceded reservations to the White Earth Reservation, and much other work was required to prepare the way. So, it must have been contemplated that many changes would occur in the membership of the several bands through deaths and births before the allotments could be made. In Fairbanks v. United States (223 U. S., 215), we held that children born into the bands after the census were entitled to allotments, although not listed in it, and we perceive no reason for giving the census any greater effect in this case than was given to it in that. No doubt it is to be accepted as an authorized listing of the members of the several bands who were living when it was made, but it has no bearing in cases like the present.”'
It is significant that the court noted the fact that the cessions were to be approved by the President, but did not intimate that anything in the act provided for approval of the census to make it authoritative. This decision is authority for the conclusion that the census made by that commission is to be accepted as affording an authoritative list of the names to be considered as members of the several tribes at the time it was made, and entitled to the benefits provided by said act of 1889. The jurisdiction