Mr. MERITT. As I stated before, we do not have any definite practice on that. It depends upon the case in hand.

Mr. RHODES. Very well. When do you think the court, or the department, either, as the case may be, would be best prepared to determine just compensation, before the service is rendered or after the service is rendered?

Mr. MERITT. After the service is rendered. But we would want the forms of the law complied with.

The CHAIRMAN. As I understand it, whatever fee you agree upon, it is subject to final review in court?

Mr. MERITT. Not always; but in this case the Secretary of the Interior, the Commissioner of Indian Affairs, and the Court of Claims would probably cooperate in determining what would be a reasonable and just compensation.

Mr. KELLY. How could you cooperate with the Court of Claims if Mr. Ballinger brings in a contract into which he has entered with the Indians before any services are rendered at all, and you must approve it?

Mr. MERITT. We could have the terms of the contract so and so. Mr. KELLY. That is, on a percentage basis?

Mr. MERITT. On a percentage basis. Not to exceed a certain percentage.

Mr. KELLY. Then you would approve it before any services were rendered at all?

Mr. MERITT. Yes, sir. They attempt to do the same thing right here in this legislation.

The CHAIRMAN. Now, gentlemen, the time for recess has arrived. We can not finish this matter to-day, and we have another matter to take up to-morrow. Now, I would like to ask Mr. Meritt how long do you think it will take to finish that Crow proposition?

Mr. MERITT. I think we will be able to finish that in an hour.

The CHAIRMAN. Then if the parties to this matter are here, they can step right in and we will try to finish both of them to-morrow, and we will now recess until 10.30 to-morrow morning.

(Whereupon, at 1.05 o'clock p. m., the committee recessed until 10.30 o'clock a. m., Friday, March 19, 1920.)

COMMITTEE ON INDIAN AFFAIRS,
HOUSE OF REPRESENTATIVES,
March 19, 1920.

The committee this day met, Hon. Homer P. Snyder (chairman), presiding.

The CHAIRMAN. We will continue with the Chippewa hearing that was adjourned last evening. Proceed, Mr. Ballinger.

STATEMENT OF MR. WEBSTER BALLINGER-Resumed.

Mr. BALLINGER. I want to ask the advice of the committee whether at this point I might insert in the record an extract from a decision that I think will answer Mr. Kelly's question propounded to me yesterday.

The CHAIRMAN. Before you do that I would like to have the clerk point out where we stopped yesterday on this matter.

Mr. MERITT. Page 4 of the jurisdictional bill.

Mr. BALLINGER. Mr. Chairman, the question was asked in connection with the amendment proposed by the general council in line 19, page 2, of the jurisdictional bill, and a question also propounded by the chairman was whether or not the word "gratuity" as it appears on that page would enable the court to render judgment against the Indians for every dollar that had been appropriated and expended in connection with the tribe from its beginning. I cite now the case of the United States v. Sisseton and Wahpeton Indians, reported in 208 U. S., commencing at page 561. The first jurisdictional act was passed March 3, 1901, and authorized the court to state an account and to submit its findings to Congress. In the stating of the account this provision was contained in the jurisdictional act:

Stating in connection therewith what credits should be charged against the said gratuities on account of the lands, appropriations, payments, gratuities or other provisions as herein before stated.

A suit under that jurisdictional act was brought in the Court of Claims. During the progress of that case it became apparent that under the word "gratuities" as used in the jurisdictional act the court would make a finding charging the Indians with every dollar appropriated by Congress in connection with the tribe. The attorneys for the Indians at that stage came back to Congress and secured a new jurisdictional act under date of June 21, 1906, reiterating the same language and with this addition, "which are properly chargeable against said unpaid annuities."

The attorneys believed that that language would afford them relief against the court charging the Indians up with all gratuity appropriations.

When the case came before the court under the new jurisdictional act, the contention of the Indians was as stated in the decision, which I will read from page 564. The court said:

The Indians contend that only sums specially charged by Congress against annuities come into the account while the United States goes to the opposite extreme. We agree with the Court of Claims that the contention of the Indians, at least, must be rejected for the reasons stated by it that if it was correct Congress did not need the help of the court. The figures were patent.

So that if this bill should stand as the department asks that it stand every dollar appropriated by Congress from the inception of the Government's dealings with the Chippewas for the support of the agents and agency employees would be charged against any judgment the Indians might obtain against the Government, Mr. Chairman, which would be manifestly unfair. Every dollar that Congress in any act declares should be chargeable or that the Indians understood when they used the money was to be reimbursed or was chargeable against them ought to be charged and not another dollar.

Mr. MERITT. Mr. Chairman, I think it is unnecessary to go into this matter. I stated to the committee that we would have no objection to the item going in the bill.

Mr. KELLY. Let me have that information. I made a direct statement to Mr. Mann on the floor and it may be possible it is just what I wanted on it. The statement was that without the words "includ ing gratuities in this act or bill the Court of Claims would consider gratuities anyhow. I have quoted the decision. Does that cover it?

Mr. BALLINGER. I think it would.

The CHAIRMAN. I think that is as far as you can go.

Mr. KELLY. I think that would cover it and there is no question there.

The CHAIRMAN. What is the next item? If Congress can make an amendment on that, that is the important thing in there.

Mr. BALLINGER. That is one of the important things, but the matter under consideration is a most important one. The amendment that was under consideration is on page 4, lines 8 and 9, strike out the words "under contract or contracts made and approved as provided by existing law," jurisdictional bill, H. R. 12972. The general council asks that the words be inserted "by their general council" so that it would read:

That upon the final determination of such suit or suits the Court of Claims shall fix and determine such fees as it shall deem iair and reasonable for the service rendered and money expended in the prosecutio of such suit or suits to be paid the attorney or attroneys employed therein by their general council.

The insistence of the Indian Bureau that the words "Under contract or contracts made and approved as provided by existing law" be retained would require the approval of the contract under sections 2101 to 2107 of the Revised Statutes. As this same question arises in connection with two or three sections of the bill I am going to ask the indulgence of the committee for a few moments, so that I may make the position of the general council clear as far as I can. This section of the Revised Statutes, section 2101, was a part of the act enacted April 10, 1869; section 2102 was a part of the act enacted May 15, 1870; section 2103 was a part of the act enacted March 3, 1871; section 2105 was a part of the act enacted March 3, 1871, and likewise section 2107.

Now, Mr. Chairman, at that time the department held the funds of the Indians under its control. It could make contracts with an attorney or other person and without authorization of Congress pay the contract money out of the tribal funds. Those sections were designed and intended to deal with a situation that existed then and which has no existence to-day. For instance, contracts made now for the payment of money, tribal money, must come to Congress and the money be appropriated by Congress, so that there is that safeguard now which did not exist at that time. Had it existed at that time these sections would probably not have been rendered necessary for the protection of the Indians, and the only object and purpose of those sections was to first see that some competent tribunal could first determine that an attorney was necessary, and, second, to see that the compensation was fair and just.

In the present case the only object of the department in asking the approval of this contract, the only object which it can possibly have, is to control the employment of the attorney; that is, to name the attorney, because under the provision as the department itself proposes, the court is to fix the fee, not the department. Therefore the only function the department could exercise under this provision with the language included as the department asks is that they can. control the attorney to be employed.

Mr. MERITT. I deny that statement absolutely. Mr. Chairman, in order that the committee may have some exact information about

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these laws and their applicability at this time, I will not take the time to read them, but I will place them in the record.

The CHAIRMAN. You might just give us a general idea by reading a small part of the section which refers to it.

Mr. MERITT. Section 2103 of the Revised Statutes reads as follows [reading]:

SEC. 2103. No agreement shall be made by any person with any tribe of Indians, or individual Indians not citizens of the United States, for the payment or delivery of any money or other thing of value, in present or in prospective, or for the granting or procuring any privilege to him, or any other person in consideration of services for said Indians relative to their lands, or to any claims growing out of, or in reference to, annuities, installments, or other moneys, claims, demands, or thing, under laws or treaties with the United States, or official acts of any officers thereof, or in any way connected with or due from the United States, unless such contract or agreement be executed and approved as follows:

First. Such agreement shall be in writing and a duplicate of it delivered to each party.

Second. It shall be executed before a judge of a court of record and bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs indorsed upon it. Third. It shall contain the names of all parties in interest, their residence and occupation; and if made with a tribe, by their tribal authorities, the scope of authority and the reason for exercising that authority, shall be given specifically.

Fourth. It shall state the time when and place where made, the particular purpose for which made, the special thing or things to be done under it, and, if for the collection of money, the basis of the claim, the course from which it is to be collected, the disposition to be made of it when collected, the amount or rate per cent of the fee in all cases; and if any contingent matter or condition constitutes a part of the contract or agreement is shall be specifically set forth.

Fifth. It shall have a fixed limited time to run, which shall be distinctly stated. Sixth. The judge before whom such contract or agreement is executed shall certify officially the time when and place where such contract or agreement was executed and that it was in his presence and who are the interested parties thereto, as stated to him at the time; the parties present making the same; the source and extent of authority claimed at the time by the contracting parties to make the contract or agreement and whether made in person or by agent or attorney of either party or parties.

All contracts or agreements made in violation of this section shall be null and void, and all money or other thing of value paid to any person by any Indian or tribe, or anyone else, for or on his or their behalf, on account of such services, in excess of the amount approved by the commissioner and Secretary for such services, may be recovered by suit in the name of the United States in any court of the United States regardless of the amount in controversy; and one-half thereof shall be paid to the person suing for the same and the other half shall be paid into the Treasury for the use of the Indian or tribe by or for whom its was so paid.

SEC. 2104. No money shall be paid to any agent or attorney by an officer of the United States under any such contract or agreement, other than the fees due him for services rendered thereunder; but the moneys due the tribe, Indian, or Indians, as the case may be, shall be paid by the United States, through its own officers or agents, · to the party or parties entitled thereto; and no money or thing shall be paid to any person for services under such contract or agreement until such person shall have first filed with the Commissioner of Indian Affairs a sworn statement, showing each particular act of service under the contract, giving date and fact in detail, and the Secretary of the Interior and Commissioner of Indian Affairs shall determine therefrom whether, in their judgment, such contract or agreement has been complied with or fulfilled; if so, the same may be paid, and, if not, it shall be paid in proportion to the services rendered under the contract.

SEC. 2105. The person so receiving such money contrary to the provisions of the two preceding sections, and his aiders and abettors, shall, in addition to the forfeiture of such sum, be punishable by imprisonment for not less than six months and by a fine of not less than $1,000 *

* *

I think that is enough to read.

Now, Mr. Chairman, the statement that Mr. Ballinger made that Congress would control the amount of money that would be paid to the attorneys under that provision is also misleading. Congress would have absolutely nothing whatever to do with the fee that the

attorney under that wording would get. If this jurisdictional bill goes through, as Mr. Ballinger desires it to go through, and worded as Mr. Ballinger wants it worded, the Government of the United States might have to pay the Chippewa Indians anywhere from five to ten million dollars, and 10 per cent of the $10,000,000 judgment would be $1,000,000.

We want to avoid just such scandals in the future as we have attempted to avoid in the past, and these scandals have cropped out in connection with these attorney contracts every time Congress has failed to provide for legislation according to the existing law and every time they have placed in the legislation language along the lines that Mr. Ballinger is now suggesting.

Mr. KELLY. Do you contend that 10 per cent is an unfair proposition to pay in this kind of litigation?

Mr. MERITT. I would say that any attorney who receives a fee of $750,000, as they did receive under legislation by Congress a few years ago containing language similar to this, would receive excessive fees. Now, in order that the committee may appreciate what this language really means, I wish they might get out the congressional report, the report filed, I think, by the former chairman of this committee, Hon. Charles Burke, and also read his speeches on the floor of the House of Representatives showing what scandals have developed in the past because of the legislation along the lines that are proposed in this bill.

Mr. KELLY. As these scandals originated, was there a strict provision in the law that the Court of Claims or any other court should fix a certain percentage?

Mr. MERITT. Yes, sir.

Mr. KELLY. Ten per cent?

Mr. MERITT. Yes, sir. As I have stated before, this is a very important matter. There are certain attorneys who have gone out on various Indian reservations and used these mixed-blood Indians as tools and have gotten contracts that if they can get through Congress under the language contained in this bill will result in the attorneys getting fees amounting to millions of dollars.

Mr. KELLY. Would you consent to making the limitation 5 per cent instead of 10 per cent?

Mr. MERITT. I think the legislation should follow the usual language in these jurisdictional bills and be governed by the laws now on the statute books.

Mr. KELLY. My point is, that I would be very strong for the legislation that is on the books if there were not a better way of guarding the interests of the Indians. If Mr. Synder is a regularly appointed guardian of a child and is in certain litigation in which he names the attorney for the ward he would have a tremendously unfair advantage on this proposition. Now, we are in the same position. They claim that an injustice can be done and for that reason they insist upon naming the attorney.

Mr. MERITT. We do not intend to name the attorney. We do not propose to interfere with the Chippewa Indians naming the attorney. But when we approve a signed contract it will be so guarded that there will be no scandals in connection with it.

Mr. KELLY. That is my only point to see that they name their attorney.