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Mr. BALLINGER. I think that would be the effect, if there are such statutes. But, Mr. Rhodes, let me call your attention to the fact that these Indians never, at any time, could have gone into a court and asserted a claim against the United States. That can only be done when the sovereign gives the Indian the right by jurisdictional act to go in and bring his suit. That right has thus far been withheld from the Chippewas, and in view of that I think it would be fair
Mr. RHODES (interposing). To my mind it is clear there is an intention to repeal existing statutes of limitations.
Mr. BALLINGER. On both sides.
Mr. RHODES. If there is reason for it, it ought to be there, and if there is no reason for it, it ought not to be there.
The CHAIRMAN. I think the policy of the committee has been not to force the Indian to pay back moneys that have been gratuitously paid in the interest of the Indian without his knowledge or consent.
Mr. BALLINGER. That is a fair proposition, Mr. Chairman. That is all they ask.
The CHAIRMAN. We tried in the last appropriation bill and got all the figures together and endeavored to cancel something like $8,000,000 worth of items that had been spent in behalf of the Indians as gratuities, some of them under the guise of reimbursables, but we were unable to do it, due to the same thing that killed the bill on the floor the other day. So it might be possible in cases of this kind to set up against the Indian claims moneys that have heretofore been appropriated, either as gratuities or as gratuities under the guise of reimbursables.
Mr. KELLY. I think that amendment should be in, Mr. Chairman, by all means.
The CHAIRMAN. We will pass it for further consideration, but I think, since Mr. Ballinger says that the Supreme Court has held that to be the law if he will point out the law or the decisions of the court and send it to the chariman of the committee here we would be glad to have that information. We may have it here now.
Mr. BALLINGER. I shall be glad to do that.
Mr. BALLINGER. In conducting a case, Mr. Meritt, I always furnish my adversary with a copy of anything I leave with the court or committee.
In line 22, page 2, after the word "amendment,” insert the words “at any time during the progress of the suit.”
Mr. Chairman, I deem that important for this reason: That many of the records in connection with this controversy are buried in the department, and if during the progress of the suit new matters may come to the front, either in favor of the Government or in favor of the Indians, that ought to go before the court, we can amend our bill and put them in and get them before the court.
Mr. MERITT. We have no objection to that amendment. We also have no objection to the other amendment, Mr. Chairman, if the Supreme Court has rendered the decision that Mr. Ballinger states it has.
Mr. BALLINGER. On page 3, line 11, strike out the words "for the purpose of making” and insert in lieu thereof the words "and shall furnish such certified.”'
In line 11, after the word “thereof,” insert the words “free of cost.” So that lines 10, 11, and 12 will read, “shall give the attorney or attorneys of said tribe or bands thereof access to any letters, papers, documents, or public records and shall furnish such certified copies thereof free of cost as such attorney or attorneys may deem necessary.” Mr. Chairman, it is incumbent upon the attorney to pay all the costs of this litigation, and if in addition to the ordinary costs he has got to go up there and pay the department for each certification and copy, it would cost probably $25,000 in certifications. r. MERITT. We have no objection to that amendment with this understanding, that the attorneys will not burden the department unnecessarily by asking for papers that are not necessary in the litigation. The attorneys in this case could keep all the clerks of the department busy copying files, because our files are full of Chippewa papers. The CHAIRMAN. Who is going to determine the question ? Mr. BALLINGER. If an unreasonable request was submitted, the department would refuse it, and then we would have to go over to the court, and the court would say whether or not it was a reasonable or unreasonable request. Mr. MERITT. With that statement in the record we have no objection to the amendment. The CHAIRMAN. Now what have you next, Mr. Ballinger? Mr. BALLINGER. On page 3, renumber section 3 as section 12. On page 4, renumber section 4 as section 13. On page 4, lines 8 and 9, strike out the words “under contract or contracts made and approved, as provided by existing law,” and insert in lieu thereof the words “by their general council.” Now, Mr. Chairman, I want to call your attention to this, because this same question will arise in connection with three different provisions in the bill—I want the committee to know exactly what we are asking here—the section commences: That upon the final termination of such suit or suits, the Court of Claims shall fix and determine such fees as it shall deem fair and reasonable for the services rendered and moneys expended in the prosecution of such suit or suits, to be paid the attorney or attorneys employed therein by said tribe or band of Indians. Now, there the court has the exclusive power of saying what is just compensation, and that is fair because when the services have all been rendered before the court, the court is then in a better position than any other tribunal to say what is just compensation to the attorney. But the department wants this language included: “under contract or contracts made and approved as provided by existing law.” With that language it would be necessary for me, for instance, or the attorney representing these Indians, to first enter into a contract with the Indians providing a percentage of compensation; then to take that to the department without one article of work having been done, and the department, projecting its mind into the future, fixing the amount of the fee; then when we come back to the court, the court would necessarily consider what the department thought was fair in the first instance. That would all be taken into consideration by the court, and then it would allow the attorney his fee, but in no event could the department or anyone else go over 10 per cent.
Mr. KELLY. Under this provision here would the department have the power to say anything concerning the attorney to be selected 2 Mr. BALLINGER. Yes, sir. That is the very object of the provision. The department—and it has done that before—could say to the general council of the Chippewa Indians, after it had selected and entered into a contract with an attorney: “No, we will not approve a contract with that attorney. You must select someone else.” I recall, Mr. Chairman and gentlemen of the committee, back under an administration of that department where a former member of the House of Representatives, one of the most distinguished lawyers from his section of the country, had a contract with the Cherokee Indians in Oklahoma, but because the Secretary of the Interior didn't personally like him, he rejected and turned down the contract, and a gentleman from the secretary's own home town obtained that employment. Now I want to say to you that I am making these observations irrespective of any personal interest. I do not know that I would personally care to undertake this litigation. It is going to be immense litigation and require an enormous amount of work, and I do not know whether I would undertake it. It would depend entirely upon the condition of my health and my other business affairs. But I say this in common fairness to my clients, that they Qught not to be put in the position where the department can select for them the attorney who is to prosecute a case against the department. Mr. MERITT. Mr. Chairmen and gentlemen of the committee, we went over this legislation very carefully with Mr. Ballinger, and we agreed on this provision in the bill. Now, after reaching that agreement Mr. Ballinger comes before the committee and suggests this change. This is an exceedingly important change in this proposed legislation which will establish a precedent that will be very dangerous indeed in connection with Indian claims against the Government. Under existing law sections 2103, 2104, 2105, and 2106, of the Revised Statutes prescribes the legal process by which attorneys may enter into contracts to represent Indian tribes before the courts. The experience of the department in handling Indian Affairs has demonstrated conclusively that that legislation now on the statute books is exceedingly wise. Congress has in the past made exceptions to that rule, as is proposed here in this bill. Mr. KELLY. Right there, Mr. Meritt, those sections in the statutes do not take into consideration at all that any court is going to fix the fee to be paid of less than 10 per cent of the amount recovered. Mr. MERITT. The statute requires certain legal formalities to be followed which are very necessary in order to protect the interests of the Indians and the Government. Mr. KELLY. Unless some court is also going to have something to say about it. Mr. MERITT. Just such an amendment as Mr. Ballinger has suggested here has in the past resulted in scandal. As I have pointed out to this committee in this hearing, in the Ute judgment case the attorneys recovered a fee of a quarter of a million dollars. In a certain Oklahoma case the attorneys recovered a fee of three-quarters of a million dollars, $750,000 attorney fees.
Mr. KELLY, Did any court have the power to review that and fix the fee?
Mr. MERITT. The fees in those cases were fixed by the same court that Mr. Ballinger now proposes shall fix the fee in this case.
Mr. Kelly. Did they have authority under the legislation to fix the fee?
Mr. MERITT. They did, and they did fix the fee.
I called the attention of the committee a few days ago to the fact that there were a large number of outstanding illegal contracts with Indian tribes, and if they can establish this precedent in this legislation it breaks down the jurisdiction of the Interior Department over these contracts and will result in great scandal in connection with Indian affairs.
Mr. KELLY. Let me ask just this for my own information. I want to get the facts of this matter.
Here is a case in which one contention is upheld by the Indian Bureau. Now, under the provision that the Secretary of the Interior has practically the power to select the attorneys, he is going to have both sides of the contention without the Indians being given their side of it.
Mr. MERITT. They make that argument, gentlemen of the committee, but that does not work out in practice. We are quite willing for the Chippewa Indians to select their own attorney, and we are quite willing that that attorney shall be Mr. Webster Ballinger, if agreeable to the Chippewa Indians and to Mr. Webster Ballinger, but we want that contract approved according to existing law, and so that those forms and regulations prescribed by law may be followed. No tribe of Indians in this country that needs an attorney will have any trouble in getting an attorney. For example, when it was clearly demonstrated that the Red Lake Indians needed an attorney to protect their interests, they had no trouble in getting an approved contract through the department under existing law, but the interests of the Red Lake Indians are protected in that contract, and the interests of the Government are protected.
Mr. KELLY. That is what I was going to ask, have there been cases in your knowledge where the department used its authority to refuse to allow Indians to employ the attorney of their choice?
Mr. MERITT. Since my connection with the department in an administrative position I know of no such case. It might have happened years ago, but a thing like that would not happen now.
The CHAIRMAN. I think you are overlooking the Osages, aren't you?
Mr. BALLINGER. Don't you know that Judge Springer came up with an approved contract, a contract made with the Cherokees, and that the then Secretary of the Interior refused to approve it and turned around and approved a contract with a gentleman from his home town?
Mr. MERITT. That was before my time, and I do not know anything about the case.
Now as to the Osage Indians, the department has taken the position that it is perfectly willing that the Osage Indians shall have an attorney, but there is a desperate factional fight among the Osage Indians. The mixed blood Osage Indians have attempted to name a man who is objectionable to the other faction, the full bloods. The mixed bloods selected an attorney who had fought against the inter
ests of the Indians in a tax suit in a case where the department had taken the other side and has recently won that case in the Supreme Court of the United States against the contentions of this attorney that the mixed bloods attempted to employ. The Osages will have no trouble at all in selecting an attorney if they will simply get together and select a reliable man. r. KELLY. And the Secretary will say who the reliable man is— whether he is reliable. Mr. MERITT. We will not attempt to dictate who that man shall be, but the department will take the position that an attorney should not be employed where there are certain valid and substantial reasons why he should not be so employed. Mr. KELLY. Personally, Mr. Chairman, I would rather see a limitation placed of 1 per cent under the Court of Claims than to give the power into the hands of the Secretary of the Interior to name the attorney. Mr. RHODEs. Mr. Meritt, does this same law which authorizes the department to approve the attorney's contract, also give you authority to fix the fee? Mr. MERITT. We can fix the fee, but in our Mr. RHODEs (interposing). You say you can or can not? Mr. MERITT. We can under the law fix the fee, but as a matter of fact we would work this fee proposition out so that the Court of Claims and the Secretary of the Interior would adjust the matter. Mr. RHODEs. I am speaking of existing law. Under existing law, does the department have the right to fix the attorney's fee? Mr. MERITT. We can fix the attorney's fees under existing law, or we can have an arrangement with the Court of Claims and reach an agreement. Mr. RHODEs. What are you doing? Are you exercising that authority yourselves, or are you exercising it jointly with the Court of Claims? Mr. MERITT. We sometimes exercise it jointly with the Court of Claims. We sometimes designate a certain salary that shall be paid the attorneys, or we sometimes designate the limit of the percentage that shall be paid, depending upon each individual case and the work to be performed. The CHAIRMAN. The usual practice is to consult with all the parties, even with the attorney himself? Mr. MERITT. Yes, sir. The CHAIRMAN. And you usually come to an agreement? Mr. MERITT. The attorney that would be employed here would have a say as to the terms of the contract when he entered into the COntract. Mr. BALLINGER. And you could say who the attorney would be. Mr. MERITT. I have stated that there would be no objection to your employment as attorney in this matter. Mr. RHODEs. One other question, Mr. Meritt. In the fixing of these contingent fees, do you undertake to fix that fee before the work is done, or is it fixed after the service is rendered? Mr. MERITT. We would in this case ** Mr. RHODES (interposing). No; I am talking about under existing law and practice.