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Mr. BALLINGER. Now, in line 22, page 4, strike out the word “or” and insert the word “and.”
The CHAIRMAN. There is no objection to that.
Mr. BALLINGER. Then in line 23, after the word “Chippewa” insert "which shall include all the Chippewa Indians residing on and belonging to said reservation.
All of the Indians residing on the Red Lake Reservation have participated in the distribution of the funds, thus far made, and therefore the jurisdictional act ought not to limit it to the Red Lake Band, but ought to include all of those Indians as party defendants.
Mr. MERITT. We have no objection to that amendment.
The CHAIRMAN. There is no objection to that. What is the next?
Mr. BALLINGER. Page 5, line 5, after the word “bands," insert the following:
The court shall also determine the ownership of any funds that may hereafter be derived from the sale and disposition of any of the property on the Red Lake Reservation, and all funds now in hand and that may hereafter accrue from the disposition of any such property on the Red Lake Reservation shall be held subject to the final determination of the case, and shall then be disbursed in strict conformity with the decree of said court.
The provision as it stands, commencing with line 19, on page 4, and running to line 5, page 5, deals only with the funds that have been received and disbursed, and this amendment will enable the court to determine the entire ownership of all the property on the reservation. I take it there is no objection to that.
Mr. MERITT. Mr. Henderson probably wants to make a statement there.
Mr. HENDERSON. Mr. Chairman, there is every objection to it from the standpoint of the Red Lake Indians, and when it comes to the time to present this subject generally we shall try to make that clear.
The CHAIRMAN. Now, you have said that several times—when it comes to the time when you will present this matter generally. When do you expect that time to come and where?
Mr. HENDERSON. I assume from the announcement made by the chairman at the beginning, that we would go through this bill taking it up at the respective points where amendments were being suggested by Mr. Ballinger, the general council, and that after that was done, the Red Lake Indians would have an opportunity to offer as a substitute for this whole scheme of legislation their request in regard to the matter, which will be radically different from what is presented in the present bill.
The CHAIRMAN. Will that be in the form of a brief or an oral statement ?
Mr. HENDERSON. That will be in the form of a draft of a proposed bill.
The CHAIRMAN. Will you have that ready to present at the close of this hearing ?
Mr. HENDERSON. No;, hardly at the close of this hearing, Mr. Chairman, but within 24 hours after the hearing is closed, I should say.
The CHAIRMAN. All right. I just wanted to know what you meant by that. Now you can go ahead. Is that all you have to say to-day on this amendment ?
Mr. HENDERSON. That is all I care to say now.
The CHAIRMAN. Then there is no objection on the part of the bureau ?
Mr. MERITT. Yes, sir: we object to that amendment, but we thought inasmuch as it affected the Red Lake Indians, Mr. Henderson should have the opportunity to state their objections.
The CHAIRMAN. Will his objection be your objection?
Mr. HENDERSON. May I say one word there that will probably be a key to the situation? The Red Lake Indians are unalterably opposed to the general council, as it is known here now before this committee, having control of the legislation or any legislation that may be granted to the Red Lake Indians, or the Chippewas, at this session of Congress.
The CHAIRMAN. Don't you mean that they are opposed to having the present council administer any legislation that may be enacted?
Mr. HENDERSON. They are opposed to going into court under conditions where they would not have an equal standing with any other bands or any bands of Chippewas in the State. They will ask this committee to give a jurisdictional bill—to allow a jurisdictional bil to be reported out favorably that will put them in a position where they can be the fighters, or the claimants in any claim that they may have, and they have claims not only against the United States but against the other bands of Chippewa Indians in the State. Th do not want to have to appear in the Court of Claims as a defendant or defendants, necessarily, but they want to go there themselves if they see fit to do so, as claimants in the case.
Mr. MERITT. And the Indian Bureau wants to place the Red Lake Indians in the same position as any other band of Chippewa Indians, and we are favorable to the proposition suggested by Mr. Henderson.
Mr. BALLINGER. Mr. Chairman, if this matter is going to go to the Court of Claims, the court by its decree ought to clean up the entire question. It ought not to go there by piecemeal, and the provision as agreed to by the department merely put up a part of it to the court to decide, and withholds all the property that remains undisposed of, together with the proceeds or timber that has been sold under this present contract that is in the Treasury of the United States. Now that all ought to go to the court, and the court ought to decide the ownership of all of it; if not, it is useless to send a part of it to the court to decide.
Mr. HENDERSON. May I say in response to Mr. Ballinger's suggestion that it will be the desire of the Red Lake Indians in any bill that is passed to have entire reciprocity. They will ask that any set-offs that there may be against claims that they are offering, either on the part of the United States or the other bands of Chippewa Indians shall be tried in the same suit. That probably would be done in any event under the rules of the court, but they are very willing to have that provision expressly set forth in the act that may be passed.
Mr. BALLINGER. Mr. Chairman, the next amendment is in line 13, page 5, strike out the word “or” and insert the word “and.”
Mr. MERITT. We have no objection to that amendment.
Mr. BALLINGER. In line 20, page 5, strike out the words "for the purpose of making" and insert in lieu thereof, “and shall furnish such.” The Indian Office agreed to that previously.
Mr. MERITT. We have no objection ot that amendment.
Mr. BALLINGER. In line 21, after the word, "thereof," insert the words "free of cost."
Mr. MERITT. We have no objection to that, with the previous understanding that the request shall be reasonable.
The CHAIRMAN. Who is going to pass upon the question of reasonableness?
Mr. BALLINGER. The court would if there was a controversy. The CHAIRMAN. That is a very elastic word—"reasonableness."
Mr. MERITT. Mr. Chairman, before we leave that page I want to correct the statement that Mr. Ballinger made a few moments ago, that if the court made an unreasonable award, Congress would still have control of the matter; that it would be necessary for them to come back and get an appropriation from Congress. Now I wish to invite your attention to the language contained on page 4, lines 12 to 18, inclusive, which reads as follows:
The fees and expenses decreed by the court to the attorney or attorneys of record shall be paid out of any sum or sums recovered in such suit or suits; and the proceeds of all amounts recovered, after the payment of fees, charges, and expenses, shall be deposited in the Treasury of the United States in the principal fund of the Chippewa Indians of Minnesota.
Mr. BALLINGER. There would have to be appropriation made first of the money.
Mr. MERITT. Under that language, Mr. Chairman, it would not be necessary to make an appropriation by Congress; the money would be transferred from the public funds of the Treasury of the United States to the account of the Chippewa Indians.
Mr. Elston. Well, but that account of the Chippewa Indians would have to be drawn upon by a legislative appropriation. It would be under control, I suppose, to that extent.
The CHAIRMAN. Well, there is a controversy here.
The CHAIRMAN. Just a moment~I want to see if Mr. Meritt is through with his statement.
Mr. MERITT. That is my statement.
Mr. BALLINGER. Mr. Chairman, every judgment of the Court of Claims, unless it is expressly written into the legislation otherwise, has to come to Congress for an appropriation, and they are usually carried in the sundry civil or the deficiency appropriation bills.
Mr. MERITT. That is true generally, but I think this language is so worded that it could be done without further legislation by Congress.
Mr. Elston. There is no difference between you, so that both sides are perfectly willing for that language to be so explicit that there is no controversy whatsoever that a subsequent appropriation will have to be made. So that can be passed.
The CHAIRMAN. I am very glad you brought that out, Mr. Meritt, because that shows there is no controversy there.
Mr. BALLINGER. Now, on page 6, Mr. Chairman, I want to read several amendments together-commencing on page 5, line 24, with the word "provided,” the draft of the bill provides :
Provided, That the Red Lake Band, if it shall elect so to do at a general council of the band, may employ counsel, under existing law, to represent it, and the court may determine the fee or compensation to be paid such counsel, which shall not exceed $5,000, in addition to the expenses incurred, in the event the Red Lake Band is unsuccessful in its defense; and in the event the Red Lake Band is successful in its defense, such fee, including costs and expenses, shall not exceed 10 per cent of the amount claimed by the complainant bands, payment to be made from any funds standing to the credit of the band at the time of the filing of the petition in such suit.
Now what does that do? First I want to call your attention to the preceding provision which authorizes the Attorney General of the United States to appear and defend for that band. This provision authorizes the band, if it sees fit, to supplement the Attorney General's representation before the courts. The provision there on page 6 provides that, win or lose, the attorney representing the Red Lake Band shall receive $5,000 and his expenses, and that shall come out of the funds now standing to the credit of the Red Lake Band. If the court holds that those funds belong to all the Chippewas of Minnesota, then you would have this paradoxical situation of the plaintiff who has brought a suit for the recovery of his property prevailing in the court and recovering his property and the being compelled to pay the attorney for the defendant, and the Chippewa Indians of Minnesota do not think that is a fair proposition. The bill gives their attorney no compensation, either for expenses or for counsel fees, unless he prevails; if he prevails he gets compensation; if he fails he gets nothing. Now, in order to overcome that situation the general council suggests these amendments:
Page 6, line 8, after the word "made" insert the words “if the Indians residing on and belonging to the Red Lake Reservation are successful."
Line 10, strike out the period after the word “suit,” and insert a comma and add the following: and of said Red Lake Indians are unsuccessful said $5,000 and expenses shall be paid out of the public treasury to be reimbursed out of any funds to which the individual members of said hand may be entitled before any further payments out of the tribal property shall be made to any of the members of said band.
That authorizes them to employ special counsel to supplement the Attorney General, if they so desire, and if they are unsuccessful then they must pay their attorney out of their own funds, which is a fair proposition. if they are successful, the general counsel has no interest in the proceeds, and they can do with it as they see fit.
The CHAIRMAN. Does any one wish to say anything in objection to that?
Mr. HENDERSON. I do not know that I have it clear in my mind yet.
Mr. BALLINGER. I will read it, if the committee desires, in exactly the language as amended.
The CHAIRMAN. Well, it is very simple, as far as my mind is concenrned. It is perfectly obvious what he means.
Mr. Elston. He does not want it paid out of the funds belonging to all the Chippewas rather than the other funds.
Mr. HENDERSON. I do not think the Red Lakes would make any such contention.
Mr. ELSTON. We understand the situation. There is no use going into it. The CHAIRMAN. What is the next suggested amendment?
Mr. BALLINGER. Line 17, page 6, after the word "the" insert the following: “General council of the Chippewa Indians of Minnesota to represent the," so that the language will read, commencing in line 13:
Upon the final determination of such suit the Court of Claims shall also determine the fee and allowances for expenses as it shall find reasonable and just to be paid the attorney or attorneys employed by the general council of the ('hippewa Indians of Minnesota to represent the complainant bands.
Mr. MERITT. Mr. Chairman, we offer the same objection to that amendment that we offered to the amendment on page 4, lines 8 and 9. The same principle is involved.
The CHAIRMAN. What is the next?
Mr. BALLINGER. Just one minute. Observe, Mr. Chairman, that as the language stands, probably a contract would have to be made with from 12 to 13 bands separately out there, and it would require their separate approval. The amendment that I offer puts that in the hands of one institution, so that you have a workable proposition.
Mr. MERITT, No; Mr. Chairman, that amendment would take out from under the jurisdiction of the Interior Department to approval of the contracts, because they propose to strike out under contract or contracts made and approved as provided by existing law."
Mr. BALLINGER. Mr. Chairman, in lines 17 and 18, we ask that the words commencing with the word “under,” in line 17, be stricken out; that is, these words, “under contract or contracts made and approved as provided by existing law.” I have already gone into that matter fully.
The CHAIRMAN. There is no discussion really about that.
Mr. BALLINGER. On page 7, line 5, after the parenthesis following the figures "642" insert the following: "or to which the Indian title had not been lawfully extinguished by cession." Let me read that so that the committee will fully understand it. Before I get to that, this section 6 ought to be changed to section 15.
The CHAIRMAN. Is there any objection to that?
Mr. BALLINGER. Commencing on line 24, page 6, the language will read, “That the Attorney General of the United States is hereby authorized and directed to institute a suit in the Supreme Court of the United States against the State of Minnesota for the value of all land and timber thereon, ceded to the United States in trust, under the provision of the act of January 14, 1889, or to which the Indian title had not been lawfully extinguished by cession.” Is there any objection to that, Mr. Meritt?
Mr. MERITT. Yes, sir; we object to that amendment on the ground that it would bring in all of the controverted questions regarding those various agreements and treaties. We want these claims based upon acts of Congress, and you remember that the acts of January 14, 1889, is the basic act, and inasmuch as this language would bring in á lot of controverted questions
The CHAIRMAN. It goes back of that date?
Mr. BALLINGER. Now, Mr. Chairman, in order to get this plain, the object of the general council is to clean up all their controversies with the Government. Under the treaty of 1855 a cession of land was made to the United States. The United States admittedly surveyed to a wrong point instead of following the boundary line stated in the