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for in this act have been made, and which interest and permanent fund shall be expended for the benefit of said Indians in manner following: One-half of said interest shall, during the said period of 50 years, except in the cases hereinafter otherwise provided, be annually paid in cash in equal shares to the heads of families and guardians of orphan minors for their use; and one-fourth of said interest shall, during the same pericq and with the like exception, be annually paid in cash in equal shares er capita to all other classes of said Indians; and the remaining one-fourth of said interest shall, during the said period of 50 years, under the direction of the Secretary of the Interior, be devoted exclusively to the establishment and maintenance of a system of free schools among said Indians, in their midst and for their benefit; and at the expiration of the said 50 years, the said permanent fund shall be divided and paid to all of said Chippewa Indians, and their issue then living, in cash, in equal shares: Prov’d d, That Congress may, in its discretion, from time to time, during the said period of £0 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 cent thereof. The United States shall, for the benefit of said Indians, advance to the m as such interest as aforesaid the sum of $90,000 annually, counting from the time when the removal and allotments provided for in this act shall have been made, until such time as said permanent fund, exclusive of the deductions hereinbefore provided for, shall equal or exceed the sum of $3,000,000, less any actual interest that may in the meantime accrue from accumulations of said permanent fund; the payments of such interest to be made yearly in advance, and, in the discretion of the Secretary of the Interior, may, as to three-fourths thereof, during the first five years be expended in procuring live stock, teams, farming in plements, and seed for such of the Indians, to the extent of their shares, as are fit and desire to engage in farming, but as to the rest, in cash; and whenever said permanent fund shall exceed the sum of $3,000,000 the United States shall be fully reimbursed out of such excess, for all the advances of interest made as herein contemplated and other expenses hereunder.” Mr. Ba'lirger endeavors to make it appear that because we have complied with the provisions of the laws enacted by Congress in making the cash interest payments to the Indians, in educating the Chippewa Indian children, and doing the other things required by Congress that large amounts of money have been squandered. . I furnished to the committee a list of all the Indian Bureau employees in the Chippewa country, together with the salaries paid out of Chippewa funds. The attention of the committee is invited to the very low salaries paid to these employees and the comparatively small amount of money being used for salaries. We have furnished to Congress each year a o showing exactly the status of the Chippewa funds, the amounts expended, and for what purposes. The department has heretofore accounted for every dollar of funds that has been expended in the Chippewa country, and these reports are submitted to Congress annually at the beginning of the sessions of Congress. I have also it serted in the hearings the report we submitted to Congress at the beginning of the last session of Congress, showing the expenditures of Chippewa funds during the last fiscal year and the purposes for which said funds were expended, and your attention is invited to the same, which is found in House Document 384, Sixtysixth Congress, second session. 9. Attention is invited to my statement before the committee showing the number Cf day and boarding schools maintained among the Chippewa Indians, the attendance and the per capita cost. It is believed that it will be agreed by all fair-minded people that this statement shows that the schools are being administered along economical lines. We deny the statement that there are any agencies being maintained in the Chippewa country contrary to law. Attention is invited to the fact that the agencies have been reduced in number in recent years, also that the Government schools are being closed as rapidly as school facilities can be found for the Chippewa Indians in the public schools in the State of Minne ota. 10. The Indian Bureau endeavored to be very fair and liberal with the Indians repre-ented by Mr. Ballinger as is shown by the drafts of legislation submitted to Congress by the department relating to administrative affairs among the Chippewa Indians and also the proposed legislation authorizing the Chippewa Indians to go to the Court of Claims. We have agreed before the committee on practically 90 per cent of the legislation proposed, but the Indian Bureau would be opposed to any Chippewa legislation whatever, if all the proposed amendments of Mr. Ballinger should be incorporated in the hill. I pointed out to the committee the danger of a number of the amendments proposed by Mr. Ballinger and have stated in the record the objections of the Indian Bureau to those amendments. The Indian Bureau is in favor of the legislation submitted to the Hou e Indian Committee by the department including the minor amendments agreed to before the House Indian Committee at the recent hearing on Chippewa matters.
o 11. The attention of the committee is invited to the brief filed by Peter Graves, delegate of the Red Lake Band, and Daniel B. Henderson, attorney for the Red Lake Indians, which sets out in detail the views of the Red Lake Indians. 12. The Indian Bureau is in favor of winding up the affairs of the Chippewas Indian at the earlie t possible date. We have endeavored repeatedly to get legislation that would authorize a per capita distribution of the funds now in the Treasury to the credit of the Chippewa Indians, but this legislation has been heretofore opposed by the members of the General Council, represented by Attorney Ballinger, and by the efforts of the General Council the Chippewa Indians were excluded from legislation recently passed by Congress authorizing the closing of the rolls and distribution of the tribal funds. In this connection, attention is invited to section 28 of the appropriation act cf May 25, 1918 (39 Stat. 592) and section 1 of the Indian appropriation act of June 30, 1919 (41 Stat. 9). Any delay, therefore, in the distribution of these funds must hereafter ret with the general council of the Chippewa Indians and Attorney Ballinger. The Indian Bureau is in favor of the distribution of there funds immediately and the winding up of the affairs generally, of the Chippewa Indians, as quickly as it can possibly be done, with due regard to the rights of all the Indians. The CHAIRMAN. Now, Mr. Meritt, you may proceed. Mr. McDoNALD. Could I ask Mr. Ballinger just one question 2 The CHAIRMAN. If Mr. Meritt is willing. Mr. MERITT. If the question is short 2 Mr. McDoNALD. Is it not a fact, Mr. Ballinger, that as to the treaty of 1854 which separated the Wisconsin Indians, and the treaty of 1855, which ceded the large area you referred to, not a single Red Lake or Pembina Indian signed those treaties : r. BALLINGER. The Red Lakes in 1854 were part of the Chippewas of the Mississippi and in 1855 were a part of the Chippewas of the Mississippi, and so when it was signed by the Chippewas of the Mississippi it included the Red Lakes. The CHAIRMAN. Now that is sufficient answer. Mr. McDoNALD. I would like to ask him if it is not a fact that in the 1854 treaty it was signed by the La Pointe Band, which is Wisconsin, the Mississippi Band, giving their names, and not a single Red |ak Indian or representative is there found 2 Is not that true Mr. BALLINGER. The Red Lake Band was not in existence at that time. These Red Lake Indians derived their name from the color of the waters of Red Lake which is red. Mr. MERITT. Mr. Chairman, Mr. Ballinger, the attorney for the Chippewa council, has with great eloquence said that he hated subterfuge. Mr. Ballinger did not point out that he made certain statements to this committee trying to make it appear that we were continuing schools top there and paying salaries in schools when in fact he knew that those schools were not actually in session and were not actually in existence, and he attempted to base his action and his remarks to this committee on an error that appeared in the report of the Commissioner of Indian Asfairs. These statistics in the report of the Commissioner of Indian Affairs are prepared in the Indian Bureau by a clerk and we do not have time to go over those statistics with the greatest of care, and sometimes an error creeps into those statistics, and Mr. Ballinger took advantage of a misstatement in those statistics and tried to make it appear that we are paying out money to employees in a school where an Indian school did not exist. I am quite sure that Mr. Ballinger knew at the time he made that statement that that condition was not true.
Mr. Ballinger also tried to make it appear that I made a misstatement in regard to the citizenship of Indians where they leave reservations. If there was any subterfuge made in regard to that matter it was by Mr. Ballinger and not by me, and I want to quote the law on the subject in this record, so that nobody can question it. The law is found in the act of February 8, 1887, 24 statutes, page 390, and reads as follows:
And every Indian born within the territorial limits of the United States, to whom allotment shall have been made under the provisions of this act or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up within the said limits his residence separate and apart from any tribe of Indians therein and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States, without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property.
This legislation has been subsequently amended and is found in the act of May 8, 1906, 34 statutes, page 182, but the language is almost exactly the language as found in the law that I have just quoted. The act of May 8, 1906, on this subject reads:
Every Indian born within the territorial limits of the United States, to whom allotments shall have been made and who has received a patent in fee simple under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up within said limits his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not by birth or otherwise a member of any tribe of Indians within the territorial limits of the United States, without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property.
I submit, Mr. Chairman, that legislation is exactly in line with the statement that I made to this committee.
Mr. KELLY. Will you pardon an interruption there? The specific point made was that the Indian Bureau's policy is to keep children of Indians who leave the reservation out of all distribution of the property of the tribe. Is that the policy of the bureau ?
Mr. MERITT. We are following the decisions of the court on that subject. My statement was that this Indian did not lose his property right. Peter Graves's son did not lose his property right by leaving the reservation, and that statement is absolutely correct and is confirmed by the legislation that I have quoted here. But if Peter Graves's son should marry a white girl in Duluth and they should raise a family there, the children of that marriage would not be entitled to participate in the land and property of the Red Lake Indians. We have in support of that decision the Oaks case, and the man who rendered that decision is Judge Vandevanter, now on the bench of the Supreme Court of the United States, and who was formerly the solicitor of the Interior Department. In order that the committee may have accurate information on this subject I will ask that that decision be incorporated at this time. It is found in 107 Federal Reporter, 305.
(The decision referred to follows:)
OAKES ET AL. V. UNITED STATES.
(Circuit Court of Appeals, Eighth Circu't. August 2, 1909. No. 2797.] 1. Indians (sec. 13)—Right to share in tribal property: Originally the test of the right of individual Indians to share in tribal lands and other tribal property was existing membership in the tribe; but this rule has been so broadened by act March 3, 1875, c. 131, sec. 15, 18 Stat. 420 (U. S. Comp. St. 1901, p. 1419), and act February 8, 1887, c. 119, sec. 24 Stat. 390, and other acts, as to place individual Indians who have.abandoned tribal relations, once existing, and have adopted the customs, habits, and manners of civilized life, upon the same footing in respect of this right as though they had maintained their tribal relations.
[Ed. Note.- For other cases, see Indians, Dec. Dig., sec. 13.]
2. Indians (sec. 13)-Act January 14, 1889, relating to Chippewas in Minnesota-. Interpretation: Act January 14, 1889, c. 24, 25 Stat. 642, relating to the cession of part of the Chippewa Reservations in Minnesota and to the allotment in severalty of the remainder, does not expressly or by necessary implication displace the saving provisions of the acts of 1875 and 1887, above named, whereby individual Indians who have abandoned tribal relations, once existing, and have adopted the customs, habits, and manners of civilized life, are accorded the same right to share in tribal property as though they had maintained their tribal relations; nor does it render those provisions less applicable to the Chippewas in Minnesota than to other Indians. [Ed. Note. For other cases, see Indians, Dec. Dig., sec. 13.)
3. Indians (sec. 13)-Act June 7, 1897, relating to rights of children of mixed blood: Act June 7, 1897, c. 3, 30 Stat. 62, relating to the rights of children of a white man and an Indian woman, in tribal property, does not embrace the children of a mother who was living at the time of its passage and was not then recognized by the tribe as one of its members.
[Ed. Note.--For other cases, see Indians, Dec: Dig. sec. 13.) 4. Suit to enforce right to allotment-Parties--Quære: Whether in a suit against the United States under act Feh. 6, 1901, c. 217, 31 Stat. 760, to enforce a right to an allotment of specified land, which has been allotted to another Indian, a decree displacing or annulling the existing allotment lawfully can be rendered, without making the allottee a party and giving him an opportunity to defend.
(Syllabus by the Court.) Appeal from the Circuit Court of the United States for the District of Minnesota. Harvey S. Clapp (C. B. Miller, on the brief), for appellants. Charles C. Houpt, U. S. Atty. Before Sanborn and Van Devanter, ('ircuit Judges, and Amidon, District Judge.
Van Devanter, circuit judge. By their suit commenced and prosecuted under act Feb. 6, 1901, c. 217, 31 Stat. 760, the appellants asserted that they were entitled to have allotted to them in severalty, under act January 14, 1889, c. 24, 25 Stat. 642, certain specified lands in the Whire Earth Indian Reservation in Minnesota, that their applications for such allotments had been unlawfully denied by the officers charged with the allotment of the lands in that reservation, and therefore that they were entitled to a decree recognizing and enforcing their rights to such allotments. Upon the final hearing the Circuit Court, being of opinion that none of the appellants came within the terms of the act of 1889, entered a decree dismissing the bill, and an appeal has brought the case here. The facts established by the proofs are as follows:
The appellants are descendants of Margaret Beaulieu, a full-blood Mississippi Chippewa, who was enrolled and recognized during all her life as a member of that tribe and was living upon the tribal reservation at White Earth at the time of her death in 1877. Jane B. Oakes, one of the appellants, is a daughter of Margaret Beaulieu, was by birth a member of the same tribe, and was enrolled and recognized as such from the time of her birth until 1849. In 1829, while she was attending a mission school, she married a Mr. Oakes, a white man, and they lived at a trading post in the Chippewa country until 1849. In that year they moved to Fort Ripley, on the Mississippi, and the next year to St. Paul, where Mr. Oakes engaged in the banking business until the time of his death in 1879. Jane B. Jones, another of the appellants, is a duaghter Mrs. Oakes, was born in the Chippewa country in 1841, and was enrolled and recognized as a member of the Mississippi (hippewa Tribe until 1849, when her parents took her to Fort Ripley and then to St. Paul. She grew to womanhood in the latter place and has been married twice, each time to a white man. Jane Andrews and Cornelia Van Etten Bent, the remaining appellants, are daughters of Mrs. Jones by her first husband. They were born and reared in St. Paul, never were enrolled or recognized as members of the tribe, and are married to white men. After the Oakes family moved to St. Paul, Mrs Oakes and Mrs. Jones abandoned their former tribal relations, adopted the customs, habits, and manners of civilized life,
and ceased to be recognized as members of the tribe. Sometimes they exchanged visits' with members of the tribe; but these visits did not occur often and were confined to relatives. The appellants were all residents of St. Paul when the act of 1889 was passed, and shortly thereafter they asserted that they were entitled to allotments thereunder
. In 1894 the names of Mrs. Oakes and Mrs. Jones were placed upon a supplemental census of White Earth Mississippi (hippewas by the chairman of the commission charged with making a census and allotments under the act of 1889, and the next year their names were dropped from the census; but the circumstances in which these acts were done are not disclosed. In 1905, before applying for allotments of specific lands, Mrs. Oakes and Mrs. Jones removed to and took up their residence upon the White Earth Reservation. Whether or not Mrs. Andrews and Mrs. Bent did likewise may be left undetermined, because, if they did, it would not help them, as will be seen presently.
The White Earth Reservation was set apart as a tribal reservation for the use and occupancy of the Mississippi (hippewas under the treaty of March 19, 1867 (16 Stat. 719), and was being allotted in severalty under the act of. 1889 when the appellants applied for allotments therein and when this suit was commenced. That act is enti. tled “An act for the relief and civilization of the Chippewa Indians in the State of Minnesota,” and provides for obtaining a cession and relinquishment by “all the different bands or tribes of ('hippewa Indians in the State of Minnesota," of all their tribal reservations in that State, excepting so much of the Red Lake Reservation and of the White Earth Reservation as shall be deemed necessary to make and fill the allotments required by this and existing acts.” It further provides: That the cession and relinquishment shall be deemed sufficient as to each reservation, other than the Red Lake Reservation, if made and assented to in writing by a designated portion of “the band or tribe of Indians occupying and belonging to "such reservation, and shall be sufficient as to the Red Lake Reservation if made and assented to in like manner by a like portion of all the Chippewa Indians in Minnesota”: that, for the purpose of determining whether the requisite number of Indians participate in the cession and relinquishment and of making the allotments and payments mentioned in the act, an accurate census of each tribe or band” shall be made; that as soon as the census shall be taken, and the cession and relinquishment shall be obtained and be approved by the President. “all of said Chippewa Indians in the State of Minnesota, except those on the Red Lake Reservation, shall
be removed to and take up their residence on the White Earth Reservation," and thereupon allotments in severalty shall be made to the Red Lake Indians from the unceded part of the Red Lake Reservation and to "all the other of said Indians," from the lands in the unceded part of the White Earth Reservation, such allotments to be made "in conformity with” the general allotment act of February 8, 1887 (24 Stat. 388, c. 119); that any of said Indians " residing on" any of said ceded reservations may, in his discretion, take his allotment on such reservation; and that all money accruing from the disposal of the ceded lands, after deducting expenses, shall be placed in the Treasury of the United States to the credit of all the Chippewa Indians in Minnesota” and be used for their benefit or paid out to them in the manner and at the times stated in the act. The cession and relinquishment so provided for were obtained in the manner prescribed and were approved by the President March 4, 1890. House Ex. Doc. No. 247 (1st sess. 51st Cong.).
Originally, the test of the right of individual Indians to share in tribal lands, like the Chippewa Reservations in Minnesota, was existing membership in the tribe, and this was true of all tribal property. The question therefore arises: Is there any provision of law which broadens this original rule in a manner which is helpful to the appellants or any of them? If not, their effort to obtain allotments from tribal lands. must fail, because it is a necessary conclusion from the facts before recited that Mrs Oakes and Mrs. Jones, although once members of the Mississippi Chippewa Tribe long since ceased to be such, and that Mrs. Andrews and Mrs. Bent, although pos. sessing some Mississippi Chippewa blood, never were members of the tribe; and, if there be such a provision of law, it must be found elsewhere than in the act of 1889. for that ac: does not in itself alter the original rule in a manner which is helpful to any of the appellants, but contains provisions which, in the absence of some provision of law to the contrary, probably would require that the allotments mentioned therein be confined to tribal Indians.
For many years the treaties and legislation relating to the Indians proceeded largely upon the theory that the welfare of both the Indians and the whites required that the former be kept in tribal communities separated from the latter, and, while that policy prevailed, effect was given to the original rule respecting the right to share in tribal property; but Congress later adopted the policy of encouraging individual Indians to abandon their tribal relations and to adopt the customs, habits, and manners of civilized life, and, as an incident to this change in policy, statutes were enacted