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The CHAIRMAN. Proceed with your argument, Mr. Graves.
Mr. GRAVES. Now in this bill-I have read some of it, but, of course, I am not a lawyer nor do I pretend that my interpretation of any act is the correct interpretation. This bill, especially the first features of it, as introduced by Ellsworth and Knutson, is a well-studied bill by certain interests. That is the best I can say for that.
The CHAIRMAN. Do you mean “by certain interests,” or “for certain interests ?”
Mr. GRAVES. By certain interests. Whoever is the author of that bill wants to take the government of the Minnesota Chippewas away from the Indians, really, and administer it themselves.
Mr. RHODES. Then would you say those provisions were drawn in the interests of the Indians or against the interests of the Indians ?
Mr. GRAVES. Against the interests of the Indians, because the Indian Bureau is trying to educate those Indians there under the act of 1889, which is absolutely correct. These Indians here, where I am from, are not able to properly clothe nor feed their children, and therefore, at this time, the day boarding school is the school for the Indian children to-day, and the Indian Bureau knows that.
Mr. RHODES. Who is in the majority, those who want these lands allotted or those who are opposed to allotments ?
Mr. GRAVES. On the Red Lake Reservation ?
Mr. RHODES. I do not want to interrupt the proceedings. Go a head.
Mr. GRAVES. Since we left this council, and the authors of these bills, gentlemen of the committee, if these bills are going to be passed we want to be left entirely out--that is, as far as the Red Lake diminished reservation is concerned. We don't claim anything more to what was ceded, and that the Red Lake Indians ceded and that that was to go for the common interest of the Minnesota Chippewas. Out of approximately 3,200,000 acres on the Red Lake Reservation at that time there was two and a half millions of that ceded to be turned into cash for the benefit of all the Minnesota Chippewas. The other Indians approximately had 1,400,000 acres out of that, that were allotted out of that, which left them approxi mately - 700,000 acres to 2,500,000 acres of the Red Lake Indians700,000 acres by the other Indians and about 2,500,000 acres by the Red Lake Indians.
Mr. KELLY. Right there, Mr. Graves, the act of 1889 applied to all the different tribes the same, did it not?
Mr. GRAVES. The act of 1889 was drafted right here in Washington.
Mr. KELLY. And for the purpose of dealing with the entire Chippewa question ?
Mr. GRAVES. For that purpose, because the strongest argument was some years back it was a common territory for all of the Chippewa nations, but the act of 1864 defined the Red Lake Reservation, and you can't take-no matter how much argument you might put on what happened a thousand years ago, that act of 1864 is law and is binding on the Red Lake Indians as well as the Government.
Mr. KELLY. The act of 1889 was after that time, of course.
Mr. KELLY. Here is the point I want to get at: The act of 1889 applied to all the tribes, and it absolutely compelled allotment of White Earth and the other reservation, and the Government went ahead and allotted arbitrarily the Indians. Now didn't that apply also to the Red Lakers and shouldn't they have been allotted at the same time as the other Indians on the other reservations ?
Mr. GRAVES. Well, that is exactly it, if you do not know what happened there at Red Lake in making the agreement with those Indians.
Mr. KELLY. The agreement can't overthrow the law.
Mr. GRAVES. Well, now, of course if we want to get down to that you might as well say the Red Lake Indians never consented to that treaty.
Mr. HERNANDEZ. But as a matter of fact they did.
Mr. GRAVES. The Red Lake Indians wanted to put in something there that they wanted. They were not going to accept the face of the act itself.
Mr. HERNANDEZ. But they did ratify and indorse the act.
Mr. GRAVES. They did, after the promise that they would own that diminished reservation exclusively.
Mr. RHODES. Mr. Kelly, does that act of 1889 make its provisions in any subject to ratification of the tribe?
Mr. KELLY. It does to this extent: It provides that the allotments shall be made on all the other reservations after an agreement has been entered into by two-thirds of the adult males, but the Red Lake Indians must be obliged to accept the allotment by a vote of twothirds of the Chippewas, which shows that Congress clearly understood there might be some objection up there, was willing for the sake of justice to take it out of the hands of the Red Lakers and put it in the hands of the Chippewas; so two-thirds of all the Chippewas covered the Red Lakes.
Mr. RHODES. Your views of the matter and construction of that statute-are you certain that the act is conclusive as to the intention of Congress to allot these lands to the Red Lake Indians ?.
Mr. KELLY. There can be no doubt whatever that Congress intended to allot those lands and required this commission to allot them before any lands could be sold.
Mr. RHODES. And as a matter of fact the department has not allotted them?
Mr. KELLY. It has not carried out the act.
Mr. RHODES. Now that is your view of the matter. I would like to ask Mr. Meritt at this juncture if the reason the department has not allotted these lands was due to-well, I will say to what was the failure of the department to allot these lands due! I ask that in order to define the issue right here, without rambling on around over a whole lot of foreign territory.
Mr. MERITT. I thought we had already made perfectly clear the reasons why we have not made allotments on the Red Lake Reservation, and those reasons are concisely as follows: The Red Lake Indians themselves do not want allotments.
The CHAIRMAN. But, Mr. Meritt, this statement from this witness is the first time that the statement has been brought out in this testimony.
Mr. MERITT. No, sir; I made that statement in my own testimony.
The CHAIRMAN. I do not remember having heard anyone say that it was on account of the Red Lake Indians not wanting allotments.
Mr. MERITT. The Red Lake Indians have protested against allotments, and the records of our office will so show.
Mr. RHODES. We accept that, Mr. Meritt, as being true. Was the reason of their protest the moving cause which was responsible for the department's not making the allotment, or did it have anything to do with your failure to allot ?
Mr. MERITT. That was one of the moving causes.
Mr. RHODES. Do you recognize that the law gives them the option to accept or reject the treaty? I mean the act ?
Mr. MERITT. The law leaves it within the discretion of the Secretary of the Interior when those allotments shall be made. The law does not say that the allotments shall be made within a certain period.
Mr. RHODES. Then you do not agree with the statement that Mr. Kelly has made, that it was conclusive and binding, and the time was fixed ?
Mr. MERITT. I do not, and I stated further in my testimony that the other reasons why we have not made allotments, besides the objections of the Indians on the Red Lake Reservation, are these: That it is absolutely impossible at this time under present conditions to allot lands on the Red Lake Reservation and divide the property equitably, for the reason that part of that land is covered by timber of very great value; part of the land is now swamp land and needs to be drained, and before we can make equitable and just allotments on that reservation it will be necessary to sell the timber and use part of the proceeds from the sale of the timber in draining the lands, and that can be done at a cost of less than $3 an acre, according to the reports of the War Department.
Mr. KELLY. I think it is only fair to say, in view of that statement that the answer of Mr. Meritt's boiled down means that the Indian Bureau understands that it knows better how to deal with these Indians than Congress does and that when Congress lays down a definite policy, the Indian Bureau claims the right to change that policy, if it believes in its wisdom that the policy is not conducive to the best interests of the Indians.
Mr. RHODES. Now let us see-there should be no argument between any member of the committee and Mr. Meritt or the gentleman speaking—is the language of that act so indefinite and so uncertain that it can not be seen what the intention of Congress is ?
Mr. KELLY. It is not.
My understanding is that it is very definite. The CHAIRMAN. We have the act here, and let us read that section which deals with that question of allotments.
Mr. MERITT. The law is found in section 3 of the act of January 14, 1889.
Mr. KELLY. In section 1—now let me read definitely the distinction made between the Red Lake Indians and these other reservations. The act provides for the appointment of a commission whose duty it shall be as soon as practicable after their appointment to negotiate with all the different bands or tribes of Chippewa Indians in the State of Minnesota for the complete cession and relinquishment in
writing of all their title and interest in' and to all the reservation of said Indians in the State of Minnesota, except the White Earth and Red Lake Reservations, and to all and so much of these two reservations as in the judgment of said commission is not required to make and fill the allotments required by this act and existing acts.
It is clear and clean. Now it goes no further and says that after the Red Lake Reservation:
This agreement, if made and assented to by two-thirds of the male adults over 18 years of age, of the band or tribe of Indians occupying and belonging to such reservation, and as to the Red Lake Reservation, the cession and relinquishment shall be deemed sufficient, if made and assented to in like manner by two-thirds of the male adults of all the Chippewa Indians in Minnesota.
That is the only distinction made in the act between Red Lake and the other reservations.
The CHAIRMAN. Now let us consider, then, for just a moment: I understand the witness to say that they never did by two-thirds or any other number ratify that agreement, and therefore
Mr. KELLY (interposing). No; they did ratify it.
The CHAIRMAN. I understand him to say that they did not; that they advised the commission immediately that they would have nothing to do with it.
Mr. GRAVES. No; they signed the proviso.
Mr. GRAVES. They thought they were not ratifying that act; they thought the commission had authority to promise them they would hold that diminished reservation for their exclusive benefit.
Mr. MERITT. They ratified the act, Mr. Chairman, with the understanding that the Red Lake Reservation was to belong to the Red Lake Indians as promised at that time, as shown by the testimony and the records.
Mr. RHODES. Is there anything in the records to show this reservation you speak of?
Mr. MERITT. Yes, sir.
Mr. RHODES. Does the department recognize that as a legal and binding obligation ?
Mr. MERITT. We do. Congress has entered into a solemn agreement that the Red Lake Reservation shall belong to the Red Lake Indians exclusively. It has also enacted legislation which clearly shows that it was the intention of Congress that the Red Lake Reservation should belong to the Red Lake Indians. Some people seem very particular about certain agreements made with Indians and not so particular about other agreements made with Indians. Now, we contend that Congress has clearly recognized the Red Lake Reservation as belonging to all of the Red Lake Indians, and that none of that reservation belongs to any other Indians.
Mr. RHODES. But that doesn't hardly go to the question of this allotment and the disposition of the lands by allotment, does it? I don't think it is disputed but that it is their property, but it is more a question as to whether the lands should be held for the tribe as a whole, unallotted, or whether it should be allotted.
The CHAIRMAN. Now, what I started in to clear up was- I am satisfied I have gotten that. Now here is this agreement
Mr. KELLY (interposing). Section 3 goes on to provide about this allotment:
That as soon as a census has been taken and the cession and relinquishment has been obtained, approved, and ratified as specified in section 1, all of said Chippewa Indians in the State of Minnesota, except those on the Red Lake Reservation, shall, under direction of the said commissioners, be removed to and take up their residence on the White Earth Reservation, and thereafter, as soon as practical, shall, under the direction of said commissioners, be allotted lands in severalty to the Red Lake Indians on Red Lake Reservation, and to all the other of said Indians on White Earth Reservation in conformity with the act of February 8, 1887, entitled “An act for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the territories over the Indians, and for other purposes.
Now, one part of that act was carried out; all the other Indians were arbitrarily allotted; the Red Lake Indians were not allotted and have not been allotted to this day.
Mr. MERITT. And you will notice, Mr. Chairman and gentlemen of the committee, that the law specifically says “ As soon as practicable." It is absolutely impracticable to allot the Red Lake Reservation at this time and divide up the property equitably. The law is perfectly clear on that point.
Mr. KELLY. It says: “As soon as practicable”-as soon as practicable after the commission appointed to make the investigation.
Mr. MERITT. It is absolutely impracticable to allot that reservation at this time, and it will be im vracticable to allot the reservation until the timber on the reservation is sold, and until the wet lands are drained. We are now in the process of doing that very thing, of selling the timber, and a bill is before Congress to drain the lands. As soon as we sell the timber and drain the lands we will allot the reservation and not before, unless we have specific authority from Congress directing that it be done, and I do not believe that Congress will give that specific direction with the correct information before it as to the conditions existing on that reservation.
Mr. KELLY. Well, is it contemplated that 31 years after an act is passed, that that is included in the words "as soon as practicable?”
Mr. MERITT. That leaves it to the discretion of the Secretary of the Interior when it is practicable and the Secretary of the Interior, exercising that discretion, has not yet recognized that it was practicable to allot that reservation, and it will not be practicable until the timber is sold and the lands are drained.
Mr. KELLY. That is the point exactly. The Indian bureau does not think it practicable and it may not be for 50 years yet.
Mr. MERITT. We think it will be practicable as soon as the timber is sold and the lands are drained, and it will not be practicable until that time.
Mr. RHODES. Is that the last act of Congress providing for the allotment of the Red Lake lands?
Mr. MERITT. No, sir; there is a rovision in the act of 1904.
Mr. MERITT. No, sir; that is dis -retionary, the same as the act of 1889.
Mr. RHODES. In what way does the act of 1904 conflict with the act that Mr. Kelly has cited ?
Mr. MERITT. The act of 1904 does not conflict with the act of 1889 so far as the allotments are concerned, but it does specifically recog