Now, then, my thought is that the thing for this committee to do is to have those claims presented right here to the committee. Let us see what the nature of those claims is. Then we can determine whether it is sufficient to pass them on to the Court of Claims. Mr. HAYDEN. Your thought is like mine, to make it a prima facie case. The CHAIRMAN. When we pass such a bill it simply sets a lot of lawyers at work digging out claims. I have seen a lot of that in six or seven years on this committee. I would like to see the nature of these claims, and if you can tell us what they are it will be as well as to have somebody else do so. Mr. GENSMAN. I think I can do that. The CHAIRMAN. I would like to ask the committee, first, what it thinks of that suggestion. Mr. ROACH. Let me see if I understand the suggestion. The CHAIRMAN. Let us. if we can, get a policy on these matters. Mr. ROACH. In other words, it is your view that if the Wichitas have a claim of, say, $50,000 against the Government, that this bill should merely authorize them, after we have investigated that claim. to present it to the Court of Claims. The CHAIRMAN. My first thought is to find out whether they had a $50,000 claim or any other claim that was good. Mr. ROACH. In other words, that the bill might authorize the Wichitas or affiliated tribes, if it is granted authority, to present a claim for $50,000, or whatever it was, to the Court of Claims, instead of this one authorizing that claim presented to the Court of Claims. The CHAIRMAN. That would be in addition to what I had in mind. First, I want to find out if they have a claim good enough to pass on to anybody. Mr. ROACH. First investigate if they have a meritorious claim of $50,000. The CHAIRMAN. And authorize an appropriation to pay it. Mr. HAYDEN. This claim comprises two or three elements-one for damages because they were moved out of Texas; another is for taking this land, and so on. As I understand Mr. Meritt, he said that the claim that they had to the leased district has been investigated by the department and adversely reported on once or twice. The CHAIRMAN. Three times. Mr. HAYDEN. It might be if we investigated it we would not think there was merit and not allow it to go to the Court of Claims. We might conclude that there were money damages sustained by the tribe in removing them from Texas to Oklahoma, and that question could be sent to the Court of Claims to be determined. The CHAIRMAN. Suppose we let Mr. Gensman make a statement of this claim, what it consists of, and the subdivisions of it. Mr. GENSMAN. I do not want to break into Mr. Meritt's statement. more valuable than mine. His time is The CHAIRMAN. Mr. Meritt will have time to come here as frequently as we desire to have him come until we complete the investigation. Mr. MERITT. I will be glad to stay until you have made your statement, Mr. Gens man. The CHAIRMAN. You may make your statement, Mr. Gensman, without regard to time. You do not have to hurry; take your own time. STATEMENT OF HON. L. M. GENSMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OKLAHOMA. Mr. GENSMAN. I did not expect to be called on this morning to go into detail with regard to the merits of the claim. I really am only fortified this morning with the law in the case. However, I do in a general way know something about the merits of the case. To begin with, as stated by Mr. Meritt, there is unquestionably merit in the claim of the Wichitas and affiliated hands. That is borne out by the opinion of the court in the case of the United States v. The Choctaw and Chickasaw Nations, found in 179 United States Reports, page 495. I recognize the fact that before this committee would pass on this bill you would want to at least know that the Wichitas and affiliated bands would be able to make a prima facie case before the Court of Claims. There is no question about that in the world. As stated by Mr. Meritt, there is merit in their claim and I will be able to give you that more in detail later on. The only reason that the merits of their claims were not gone into further and investigated by the Court of Claims and by the Supreme Court of the United States when it decided the Choctaw case was the fact, as is also stated by Mr. Meritt, that the legislation conferring jurisdiction upon the Court of Claims was not sufficiently broad to warrant the Court of Claims or the Supreme Court in passing upon the merits of the claims of the Wichitas and affiliated bands. While that statement has been made by the Assistant Commissioner, I want to read, so that the committee may be in full possession of all the facts or of the law in the case, the decision of the Supreme Court that I referred to: "On the 4th day of June, 1891, the United States and the Wichita and affiliated bands of Indians entered into an agreement whereby the Indians ceded to the United States a tract of land which is described in the opinion of the court in this case, and the United States agreed in consideration thereof that out of the territory so ceded there should be allotted to each member of the Wichita and affiliated bands of Indians in the Indian Territory, native and adopted, 160 acres of land in the manner and form described in the agreement. This agreement was ratified by the Indian appropriations act of March 2, 1895, which further conferred jurisdiction upon the Court of Claims, to hear and determine the claim of the Choctaws and the Chickasaws to a right, title, and interest in the lands so ceded, and to render judgment thereon, with a right to appeal to this court." Right there you will note the fact that there can be no question or the statement made that the Court of Claims or the United States Supreme Court had absolutely no jurisdiction whatever to determine the merits of the Wichita and affiliated bands. Mr. HAYDEN. Let me interrupt you there to ask, did the court find that the Choctaws and Chickasaws had any interest in this land? Mr. GENSMAN. No, sir. Mr. HAYDEN. No interest whatsoever? Mr. GENSMAN. No, sir. And upon that one thing we maintain that in view of the fact that the Supreme Court of the United States failed to award to the Choctaws and the Chickasaws the amount asked for in their petition, that as a matter of fact was necessarily based upon aboriginal ownership and could be based upon nothing else; that in view of the fact that the Supreme Court of the United States failed to award the Choctaws and Chickasaws in the face of the fact that the Court of Claims found in their favor, that undoubtedly somebody is entitled to compensation for this land on the ground of original ownership-aboriginal ownership and we claim that the decision of the Supreme Court on that question makes the case of the Wichita and affiliated bands, which is based upon aboriginal ownership, far stronger than it was prior to the time that the Supreme Court and the Court of Claims decided the rights of the Choctaws and Chickasaws. Mr. HAYDEN. All that the Supreme Court and the Court of Claims decided was that the Choctaws and Chickasaws had no interest in this land. Mr. GENSMAN. Yes. Mr. HAYDEN. They did not find who had interest. Mr. GENSMAN. And could not find who had because of the fact that the jurisdictional law failed to give them jurisdiction to go into the matter any further than to determine whether or not the Choctaws and Chickasaws had any right to the land on the ground of aboriginal ownership, or otherwise, or upon any other ground, and the fact that the Supreme Court failed to find in favor of the Choctaws and Chickasaws, who, as a matter of fact, with the Wichitas and affiliated bands are undoubtedly the only people that could assert a claim on the ground of aboriginal ownership or otherwise, we felt that if they failed to award any amount to the Choctaws and Chickasaws that undoubtedly the award should have been made to the Wichitas and affiliated bands, but the Supreme Court says, not in those words-but really to a lawyer it expresses, I would not say chagrin, but disappointment--that they are not under the original act which confers jurisdiction upon the circuit court of appeals of the Supreme Court, that they are unable to determine the rights of the Wichitas and affiliated bands. The CHAIRMAN. Do you mean by that that if the Wichitas had been party to that action that they could have decided in favor of the Wichitas? Mr. GENSMAN. If the Wichitas and affiliated bands had been party to this proceeding and as such party the right had been conferred upon the Court of Claims and the Supreme Court of the United States to determine their rights to the land, they probably would have been awarded the land in this decision here, but the act provides, as stated in the syllabus here, the act of 1891-which further conferred jurisdiction upon Court of Claims, to hear and determine the claim of the Choctaws and the Chickasaws to a right, title, and interest"-and in view of the fact that the legislation failed to confer rights upon the court to determine the rights of these other bands or anybody else except Choctaws and Chickasaws the court could not The CHAIRMAN (interposing). I can not quite see why or how you assume under that same decision that the courts would have decided in favor of the Wichitas, had they been a party to it. Mr. GENSMAN. I am glad to answer that question. Here [indicating] is a strip of land, for instance. Say that this is a strip of land. It is notorious in Oklahoma, and has been so for years and years and years, that nobody could assert claim to that land except the Wichitas and affiliated bands, because they had been there for years and years and years. All of the old historians say that for a long time back, away before the Civil War, the Wichitas were found upon that land. The Choctaws leave off here, but they are really, if I may be permitted to say so, probably better educated and much more experienced in court and they assert claims over here that carry them clear across to here, where the Wichitas have always been. In this little brief that has been filed here, you will find a picture that was made by the Indians long prior to the war, made by the Wichitas, and if you will go out to that country to-day, you would find practically upon the same spot, not exactly the same spot, but in close proximity to that particular place, the same kind of houses built by the Wichita Indians, and I have seen these myself on numerous occasions, the same that you find in that picture, undoubtedly made back in the early 1820's. So as a matter of fact that picture does prove that they were one of the first settlers of the land, if not the first. I have not had the opportunity to go into this as I did not expect to be called upon this morning. Mr. HAYDEN. Tell us, just briefly and in a general way, aside from the claims to the leased district, what other claim Have they? Mr. GENSMAN. To be candid with you, so far as I know at this time from my investigation of the matter, and I admit it is a very difficult matter to go into the merits of any of the Indian claims, my idea of it is this, that the Wichitas and affiliated bands, if they are paid for their right as aboriginal owners to this land, that that is practically all they have coming. I do not want to say that by way of disparaging their claim for damages from having been moved out there. As a matter of fact, all the old reports on that country made to the War Department and the Indian Department show the fact that the Wichitas were moved over there and moved back, and, as a matter of fact, the Wichitas were the only Indians that stayed by the Government in the war. I will not say the only ones, but one of the few tribes-I notice Miss Robertson turns to question-but one of the few tribes that stayed by the Government during the war. Most of them were southern sympathizers, especially the Indians of the South. The CHAIRMAN. You are speaking now of the Civil War? Mr. GENSMAN. Yes. They were located out West on what is known as Anadarko, or in that vicinity. The Government promised them-I say the Government, but officers of the Army, people that could really speak on behalf of the Governmentthat if they would stay by the United States the United States would stay by them. There was a branch of troops, I think, at Fort Cobb-where Fort Cobb is now located— and those troops were left there when there was really no occasion for them much, other than to fulfill the contract that the Indians had with the Government that the Government would stand by the Indians if the Indians would stand by them. But all of a sudden, due to the red tape which permeates the various departments, and without taking consideration of the promises made by somebody else, somebody in authority ordered those troops away from there, and immediately the Indians who were southern sympathizers came in there, finding those Indians without protection, and knowing these Indians had been there for years and years and years and were probably the most civilized Indians in that part of the country, and came nearer being white men and following the white man's way than any other nation in the country, finding them there ran them away, took their houses, and they really had wooden houses, real homes, real corn fields, real tobacco fields-I believe they had raised a lot of stuff there-they ran them out of the country. Mr. HAYDEN. At the least they had at that time on that claim the committee would have to determine based upon the value of the property taken at the time it was taken? Mr. GENSMAN. Yes. Mr. HAYDEN. Would that same rule follow with respect to this land? Are you seeking to have the court of Claims allow those Indians the value of the land at the present time or the value of the land at the time it was taken? Mr. GENSMAN. Nothing like the present time. They do not claim anything like that. Mr. HAYDEN. You are perfectly willing to limit this bill to the value of the land at the time Mr. GENSMAN (interposing). At the time dispossessed, The CHAIRMAN. Less whatever gratuity and expense the Government has been put to up to the present time in their behalf. Mr. ROACH. That would depend on the nature of the petition filed in court. If we passed this bill they could sue for anyhting they want to. The CHAIRMAN. We propose to have all these restrictions in the bill before it goes out of here. Mr. SWANK. What could it amount to? Have you any idea? Mr. GENSMAN. I will be candid with you. Mr. SWANK. Of course, that should not keep the bill from passing if it is meritorious, regardless of the amount. Mr. GENSMAN. I will be candid with you. You have been a judge in a court. You know every time a plaintiff files a petition he files for four or five times as much as he expects to get, which is exorbitant, and when it winds up gets one-third of the amount, possibly. I would not be surprised if they come in here and file a bill for a lot of money. I have much confidence in the Court of Claims and the Supreme Court and it has got to pass both of them before it becomes a final judgment. I know that so far as this committee is concerned, I will say this to you, that the Wichitas and affiliated bands, after they have ended this litigation, will not get any more than they are entitled to under the circumstances. Mr. SWANK. What is the maximum amount or area of the land in acres? Mr. HAYDEN. The value of Government land at $1.25 an acre would make it about $2,000,000, based on the value if the Government sold the land to settlers. Mr. GENSMAN. Of that 1,000,000 acres, probably the claim of the Kiowas and Comanches and Apaches to some of this other land has been determined. There will be a lot of it that probably has judgment entered with regard thereto that is absolutely final, but the Court of Claims will keep that down to what the Wichitas could have occupied as the aboriginal owners. They could have occupied 500 miles in this direction by virtue of the houses, but could not extend but 200 or 300 miles up north. It would be just such part of the territory as they really occupied. We do not mean to say that they would each be confined to 160 acres, but in those days a man, Indian, or anyone else, could not make a living on 160 acres. It would cover a great deal of territory. Miss ROBERTSON. Is this land within the limits of that whcih came in under the Choctaw-Chickasaw treaties of 1866? Mr. MERITT. I think not. You will find on page 500 of the Supreme Court decisions, volume 179, a map showing the area and location of the lands in controversy. Miss ROBERTSON. It was not in the land that was deeded to the Choctaws and Chickasaws when they sold theirs? Mr. MERITT. No. Mr. HAYDEN. For the purpose of the record, it seems to me that Mr. Meritt should append to his remarks the various reports that have been made, adverse or otherwise, by the department on this legislation, as it has been submitted from time to time, so that when we get these printed hearings we may have all the things that have been expressed on the one question and the different phases of it. I would suggest in that connection that the text of this brief that they have submitted might be added and printed so that we would have it all under one cover. The CHAIRMAN. If there is no objection that will be permitted. (The brief referred to is as follows:) THE WICHITA NATION OF INDIANS, IN OKLAHOMA. A REVIEW OF THEIR RIGHTS IN BRIEF-FORM AS RECOGNIZED BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. Authorities consulted: Capt. Dodge's Expedition, in 1834 (Catlin's Picture); Marcy's Exploration of "Red River of Louisiana," 1852; Maj. Gen. Scott's deposition, Greer County Case; History of Oklahoma, by Thoburn and Holcomb; History of Oklahoma, by Wyatt and Rainey (1919); Document in Court of Claims, No. 19432; Document in Supreme Court of United States, Nos. 338, 339, October term (1899); map showing Quapaw Cession, 1818, by Lewis N. Hornbeck; Historical map, by W. R. Wynn, made April 14, 1883; Oklahoma Constitution, of 1907, Article I, section 3; Supreme Court Decisions (Indian Occupant Rights by Nations); Treaties with Wichitas, as Independent Nation (1835); Anadarko Treaty, article 6, reserving rights to prefer claims against the United States; test case. AMERICA THE HOME OF THE INDIANS. America the western continents-was peopled from a time whereof the memory of man knoweth not by a race of men and women whom the bold Columbus christened "Indians," as he believed that he had reached Indian Asia, when on October 12. 1492, he saw the natives along the shores of the newly discovered lands. And from the time of this voyage and discovery people from European countries began crossing the Atlantic Ocean, exploring and establishing trading posts and colonies in America. And the impetus thus acquired in the process of history making, America attracted some of the best countries of Europe, which resulted in their extending dominion over certain portions of the territory, and which created rivalry in a competitive sense among the governments, to the extent that wars were unavoidable, notwithstanding the fact that there had been made international laws that governed the rights of the discoverers. While the nations of the white race were very busy trying to establish their rights to the newly discovered continents, they had great respect for the people that they found in possession of this territory. INDIANS SHARED THEIR COUNTRY WITH OTHERS. The aboriginals shared their lands with the European people. Transfers of title were made by and between the white and Indian races from time to time. Among them is found that made in October, 1682, called the Penn treaty: "A treaty not sworn to and never broken." Penn allowed no land to be occupied until the title had been justly acquired from the Indians. HABITS AND CUSTOMS OF INDIANS-CAUSE OF TRANSFERS. By virtue of the early customs and habits of the American races (exceptions being found among some tribes, such as the Wichitas, Pelawares, Caddces, and others of the southwestern portions of the United States), which preferred hunting and f shing as their chief occupation, rather than to depend upon domestic labcr for a livelihccd and being nomadic by choice, they readily disposed of their lands east of the Mississippi River; and much of it west of that river had been purchased from the various tribes and nations by the beginning of the eighteenth century. THE INDIAN TERRITORY. The Indian Territory to become Oklahoma Territory later-comprised a remaining portion of lands originally granted to, or created for, the use of certain Indian tribes or nations, and constituted a district created by the act of Congress of May 28, 1830 (Stat., p. 411). The object of this act may be briefly stated: 1. To move all Indians east of the Mississippi River to Indian Territory. 2. To protect the rights of the Indians west of this river. 3. That in case any Indians desired to exchange abodes, same should be accomplished with Government guaranty; and, if desired, there would be patents made to them. 4. The idea being not to cause any tribe or nation of Indians to sacrifice their rights or titles, founded on prior occupancy. 5. Congress by this act was to make districts only out of territory as to which the Indian title had been extinguished. Oklahoma constitution specifies rights of the Indians.-Section 3 of article 1 of the Oklahoma State constitution reads: "The people inhabiting the State do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within its boundaries thereof and to all lands lying within said limits owned or held by any Indian tribe or nation; and that until the title to any such public lands shall have been extinguished by the United States, the same shall be and remain subject to the jurisdiction, disposal, and control of the United States." Some Supreme Court decisions sustaining the rights of American Indians to lands.— Extract from court decision regarding Louisiana purchase: "When the President (Jefferson) took possession of the Territory the fee simple title and right of sovereignty and jurisdiction became vested in the United States as the successor of the original discoverer, subject only to the Indian title and right of occupancy as universally acknowledged by all the departments of our Government throughout our history." Certainly France could not transfer title to lands that she had not acquired from the Indians; records of French and Spanish explorers, by virtue of which these countries made claims to portions of the American Continent, under the laws of discovery by European countries, exhil it the facts in numerous instances that the Indians were the original occupants of the lands claimed by said countries. Supreme Court decision (6 Pet., 515), in discussing the question of aboriginal title, the Chief Justice said: "It regulated the rights among European discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants or as occupants by virtue of a discovery made before the memory of man." If not to the Indians, then to whom did this last clause refer? |