The CHAIRMAN. But still you are not asking for anything which does not already exist in the law. Mr. BALLINGER. Oh, yes, Mr. Chairman; we are asking that the agreement of 1889 be carried out. The CHAIRMAN. But that refers only to a law that does exist. Mr. BALLINGER. But subsequently Congress has attempted by laws to repeal and change and modify the agreement of 1889, without the consent of the Indians and to their injury, and as a result has tied up the Red Lake Reservation so that very few allotments, if any, can be made on that reservation. The CHAIRMAN. Well, even then it would seem to me if further legislation were brought about, it would simply tangle the matter still more. So long as the fundamental law with reference to the distribution of that property is in existence it seems to me that the whole question is one simply of the enforcement of that law and that that would not be a matter for further legislation. Mr. ELSTON. You contend that since 1889 Congress by different legislation has altered and changed the act of 1889? Mr. BALLINGER. Yes, sir. Mr. ELSTON. And what you want us to do is to provide that the original treaty of 1854 and agreement of 1889 shall be carried out as Congress intended and that all those other acts passed subsequently shall be repealed. Mr. BALLINGER. Yes, sir. Mr. KELLY. Well, do you want us to repeal those acts or to exercise the judicial function of regarding them as being void by reason of the fact that the Indians did not agree to them; and then by legislation to change a treaty that was entered into? Mr. BALLINGER. Let me make that plain. I do not want to be talking here for two days and then find out that there is nothing we can do. The laws that have been passed up to the present time and subsequent to 1889 have all been laws designed and intended to prevent allotments being made to these Indians. Now what we are asking is this, that some law be passed here now that will provide for immediate allotments to those Indians residing on that reservation and that the reservation be opened up and disposed of in accordance with the agreement of 1889. The CHAIRMAN. Now, do we understand it is your contention that all these acts previous to the one in which you are now interested made no provisions for allotments? Mr. BALLINGER. There were provisions made in all these previous treaties and agreements. The CHAIRMAN. But that there have been no allotments made? Mr. BALLINGER. That there have been no allotments made on the Red Lake Reservation. The CHAIRMAN. Did the law not provide that there should be allotments? Mr. BALLINGER. Yes, sir. The CHAIRMAN. And were not large pieces of land set aside for allotments? Mr. BALLINGER. Yes, sir. The CHAIRMAN. Why were not the allotments made? Mr. BALLINGER. It was claimed that the Indians did not want to take their allotments. The CHAIRMAN. How do you expect we are going to now create a law which would not do any more than the laws already existing. As I understand it, by the legislation you are now asking, you are simply asking that we do again what Congress has already done. Mr. BALLINGER. In the law of May 18, 1916, for instance, Congress undertook to completely change the agreement of 1889, and also by the law passed in 1904, they completely changed the provisions of the act of 1889 with reference to allotments and the disposition of that property. Now it is necessary that some legislation be passed that will enable those Indians to get their allotments at this time; otherwise they will sit back in their present condition with a closed reservation of practically a half million acres of land upon which no taxes can be imposed no school nor drainage facilities or anything of that sort. The CHAIRMAN. I want to ask you one further question. As I stated in the opening of this hearing, a few weeks ago you left this committee with the understanding that all the parties involved in this matter would try to get together, and that you believed an arrangement could be made between those parties and the bureau that would be an approximate agreement. Now, how near have you come to that agreement? Mr. BALLINGER. Well, we have come, I should say, about two-thirds of the way. The CHAIRMAN. Well, now, is the other bill in such a condition that it can be agreed upon, or is it in about the same position that the League of Nations seems to be in to-day? Mr. BALLINGER. I am afraid that it is in about the same position as the League of Nations. Mr. DALLINGER. I would like to ask this question: Assuming that we do pass this bill reenacting the treaty of 1854 and the act of 1889, and repeal all subsequent legislation that is in any way an interference with that, what guarantee are we going to have that the Indian Bureau will pay any more attention to it than they have, according to your contention, to the acts of 1854 and 1889? Mr. BALLINGER. can only say this, that this General Council that the Chippewas have has been functioning since 1916, and since 1916 there have been great reforms brought about in that country, largely through the aid of you gentlemen here. They have been able to furnish you information and you gentlemen have put into execution by reductions in appropriations large reforms, and through the Indian Bureau. Of course, if laws mean nothing, if agreements mean nothing, then we are all uselessly idling away our time. But we take it that at this stage of the case during this era that the laws of Congress do mean something and that they will in the future be enforced. Mr. RHODES. It is very necessary to my understanding of this matter to know why the department has not made these allotments provided for in the act of 1889-whether it was upon the request of the Indians, or whether it was due to subsequent legislation of Congress, amending or repealing. I think we could clear up this situation and come to a better understanding if Mr. Meritt would just state there The CHAIRMAN. I am in sympathy with the suggestion, but Mr. Ballinger has only partially finished his argument, and I think the committee would like to hear his version, his argument. He can give us what he believes to be the reason why the bureau has not made the allotments. Thereafter his arguments can be rebutted. Mr. KELLY. That is what I would like to have from Mr. Ballinger. I am sure he is very well acquainted with what he believes to be their reason for that. The CHAIRMAN. Yes; what I am trying to do now is to get right down to the issue itself. Mr. KELLY. You are referring to their ostensible reason for blocking you. Now, just give us that. Mr. BALLINGER. Gentlemen of the committee, I have been trying to lay the basis of the claim of title. I want to make that as clear as I can. The CHAIRMAN. I think we have that cleared up all right. Mr. BALLINGER. Now, then, with your permission, I shall endeavor to elucidate each and every one of these questions. I may be going too much into detail, but my clients are very much interested in this, and they are very desirous that you might know exactly the facts as they understand them. The CHAIRMAN. I would like to have you understand, too, that this committee is very much interested in this whole matter and desires as quickly as possible, but with due consideration, to get right down to the main issues involved here. If you will get right down to the bill itself and tell us what you want and what we can do, that is what we would like. Mr. COLE. I would like to ask the gentleman why it was that these allotments were not made. Was it because of failure on the part of the department, or was it due to subsequent legislation? Mr. BALLINGER. It was due to both. It was due in part to the nonaction of the department, and it was due in part to the subsequent legislation of Congress. The CHAIRMAN. Brought about by whom? Mr. BALLINGER. Brought about by the department, recommended by the department, and transmitted here. THE CHAIRMAN. In other words, it is your contention that the department thought Congress made a mistake in passing the acts of 1904 and 1916. Mr. BALLINGER. Yes, sir. Now, gentlemen, with your permission I am going to jump over a little bit on my notes. I would state that the agreement of 1889 has never been carried out in any respect as the agreement itself provides. Not a single provision of it has ever been carried out. Now, I want to state in that connection that in the case of Minnesota v. Hitchcock, 185 U. S. 395, 229 U. S. 509, the Supreme Court of the United States held that by that agreement a trust was created that was binding alike upon the United States and the Indians. In that case, and the latter case, the Mille Lake case, 229 U. S., Congress had by two resolutions undertaken to dispose of a part of this property in a different way from than was provided for in the agreement of 1889, and the court held that this was in violation of the agreement and gave judgment against the United States for about $800,000. Now, section 3 of the act of 1889 provided that allotments should be made to the Indians under the general allotment act of 1887. Section 2 of the general allotment act of 1887 provided that if any Indian failed to take his allotment within four years the Secretary was to make an arbitrary allotment to the Indian. So that under the agreement of 1889 there was no excuse for the department failing to make allotments to the Red Lakes. It is claimed by the department and has been claimed by the department that the Red Lake Indians. do not now and never have desired allotments. Mr. Chairman, I have here a large bundle of letters from the department to the Indians who asked for allotments. This letter, similar to all the others, is dated March 10, 1908. The CHAIRMAN. Just read it. DEPARTMENT OF THE INTERIOR, Subject: Application for allotment. CHARLES CHABAYEA, Red Lake, Minn. MY FRIEND: The office is in receipt of your letter of February 17, 1908, making application for an allotment of the S. of the SE. and lots 3 and 4 of section 12, T. 150, R. 35, Red Lake Indian Reservation, for your son, David Chabayea, and for the N. of the NW. and N. of the NE. of section 33, T. 153, R. 33, for yourself, under the provisions of the act of February 20, 1904 (33 Stat. L., 46). Your applications have been filed and when the question of giving the Indians of the Red Lake Reservation allotments in severalty shall have been determined will be given consideration. Very respectfully, The other letters are identically the same. The CHAIRMAN. What period of time do those letters cover? Mr. RHODES. What I would like to know is whether between this letter dated 1908, March 10, 1908, which is 19 years after the act of 1889 was passed, there was any intervening legislation by Congress changing or amending in any way the act of 1889. Mr. BALLINGER. Yes, sir. Mr. RHODES. I mean prior to the writing of this letter in 1908. Mr. BALLINGER. Yes, sir; here is where the real trouble started. The white population in that section desired a part of this land embraced in the diminished Red Lake Reservation. You remember that the commission reserved nearly 700,000 acres so that the 1,103 Indians residing on the Red Lake Reservation might select as their allotments the best land out of this 700,000 acres. When the allotments were selected, under the agreement of 1889, the residue of the land and the timber thereon was to be sold and the proceeds placed in the Treasury to the credit of all the Chippewa Indians in Minnesota, of which the Indians residing on the Red Lake Reservation constituted only an integral part. In 1902, in response to the demands of the white people, the department sent a representative to the Red Lake Reservation to make an agreement with the Red Lake Band for the cession of a part of the 700,000 acres. The Red Lake Band was not the exclusive owner of the land it was desired to open. The land belonged to all the Chippewa Indians in Minnesota. If it was desired to open this land to entry, under the agreement of 1889, all that was necessary was to make the allotments to the Red Lake Indians and the remaining land automatically became subject to homestead entry. The land the white people desired consisted of 256,000 acres on the west and southwest part of the reservation. This was the best land for allotment purposes within the 700,000 acres reserved. It was contiguous to towns and to the developed section of the State. By taking their allotments on this land, the Indians would have been afforded easy access to markets and would have received good agricultural land, land equal to any farming land in the State of Minnesota. The whites desired this land for themselves, and the department fell for their proposition. The representative of the department went to the Red Lake Reservation in 1902 and negotiated an agreement with the Red Lake Band for the cession to the United States of 256,152 acres. The agreement as negotiated provided that the United States should pay $1,000,000 for the land; that $250,000 of this amount should be distributed immediately among the members of the Red Lake Band, to the exclusion of all the other Chippewas, and that the remaining $750,000 should be paid exclusively to the members of the Red Lake Band in 15 annual installments of $50,000 each. It also provided that the title to the remaining lands on the Red Lake Reservation should be exclusively in the Red Lake Band. The scheme was a vicious one. It first proposed to take the property of all the Chippewas in Minnesota and confer it upon the Red Lake Band exclusively, and, second, it proposed to take the land that was principally valuable for allotment purposes away from the Indians and turn it over to the white people. It was a plain bribe to the Red Lake Indians to violate their agreement entered into in 1889 with the United States and the other Chippewa Indians. The Red Lake Indians readily assented to the proposition, and thereafter, and for the first time, so far as any official record goes, asserted claim to the ownership of all the property on the diminished Red Lake Reservation. That agreement as negotiated appears in 33 Statutes at Large, pages 46, 47. That agreement as negotiated by the department was transmitted to Congress and by Congress amended, the principal amendments being with reference to the payment for the land ceded. As amended, it was put on as a rider to the Indian appropriation bill approved March 3, 1903, the place where nearly all vicious legislation is sought and obtained,. and became a part of that act, as will appear by reference to 32 Statutes at Large, pages 1909-1910. The provision as adopted, however, provided that this provision must be accepted by the Indians before it became operative. It was submitted to the Indians and by them rejected. Not satisfied with this, the department again transmitted the matter to Congress and it was enacted into law by the act of February 20, 1904, 33 Statutes at Large, pages 48, 49 and 50, in modified form. The provisions of the original agreement, however, under which the Red Lake Indians were to receive the entire proceeds derived from the land sold and were to thereafter hold the Red Lake Reservation as their exclusive property, remained intact. By this act on the part of the department a claim, valid in every respect for from two to five million dollars has arisen against the Red Lake Band and the United States, a good portion of which the United States must ultimately pay. The CHAIRMAN. Just a moment. What do you say about this act of February 20, 1904, in which an agreement was entered into, of which article 4 reads as follows: "It is further agreed that said Indians belonging to said Red Lake Reservation in Minnesota |