WICHITA AND AFFILIATED BANDS. COMMITTEE ON INDIAN AFFAIRS, HOUSE OF REPRESENTATIVES, Washington, Monday, January 9, 1922. The committee this day met, Hon. Homer P. Snyder (chairman) presiding. The CHAIRMAN. The committee will come to order. The principal business this morning is to take up and investigate further the report of the subcommittee on H. R. 6044; also the committee desires to get some information from the bureau and has asked Mr. Meritt to come here this morning to discuss somewhat the so-called 'Gensman bill," which is the principal business before the meeting, now that we have gotten through with our regular order. I will read first the report of the subcommittee, which is as follows: 66 REPORT OF SUBCOMMITTEE RE H. R. 6044. To Hon. H. P. SNYDER, and to the members of said committee. SIRS: We the undersigned subcommittee, to whom was referred H. R. 6044, introduced by Representative Gensman, have carefully examined the provisions of said bill and now report thereon as follows: The bill authorizes that all claims whatsoever which the Wichita and affiliated bands of Indians in Oklahoma may have against the Government may be submitted to the Court of Claims, regardless of lapse of time, and confers authority on said court to try, hear, and determine said claims and settle all rights therein, both legal and equitable, which the parties may have, with the right of appeal to either of the parties to the Supreme Court of the United States. After careful consideration of the principle involved in said bill by your commitee, it is the opinion of your subcommittee that it is only equitable and right that the authority conferred by said bill should be granted and your subcommittee respectfully recommend that the bill be favorably acted upon by the committee as a whole. Respectfully submitted. Ross A. COLLINS, Subcommittee. The committee did not think that that report was sufficiently clear to go before the House on a bill of this magnitude, and, therefore we, by motion, added to the subcommittee Mr. Hayden and myself. We are here this morning for the purpose of giving it further discussion so that we can ascertain, for the benefit of all the members of the committee, the details of this claim and its ramifications. I am going to ask Mr. Meritt, as he has some knowledge of the situation out there, to make a statement with regard to the possibilities of claims which can be presented under that bill, and, to some extent, the magnitude of them, and what safeguards are necessary to be thrown around the bill as it is drawn for the purpose of protecting the Indian and the Government as well. If Mr. Meritt will go ahead in his own way and give us information, that will now be in order. 3 STATEMENT OF MR. EDGAR B. MERITT, ASSISTANT COMMISSIONER OF INDIAN AFFAIRS. Mr. MERITT. Mr. Chairman and gentlemen of the committee, the Interior Department has considered this bill and under date of June 1, 1921, submitted a report to the chairman of this committee. For the information of the committee, I will read that report, as follows: Hon. HOMER P. SNYDER, DEPARTMENT OF THE INTERIOR, Chairman Committee on Indian Affairs, House of Representatives. MY DEAR MR. SNYDER: Receipt is acknowledged of your letter of May 17, 1921, inclosing a copy of H. R. 6044, Sixty-seventh Congress, first session, entitled "A bill authorizing the Wichita and affiliated bands of Indians in Oklahoma to submit claims to the Court of Claims," with request that I submit a report thereon. The said bill confers jurisdiction on the Court of Claims to hear and determine all claims of whatsoever nature which the Wichita and affiliated bands of Indians in Okahoma may have against the United States under any treaties, agreements, or laws of Congress, or for the misappropriation of any of the funds of said tribes or bands, or for the failure of the United States to pay said tribes or bands any moneys or other property due. You are informed that the Wichita and affiliated bands of Indians claim compensation, "based upon aboriginal title," to the lands in what is known as the "leased district," which lie between the meridians 98 and 100 west longitude, and between the channel of the Red River and the main channel of the Canadian River; also that portion of land east of the leased district," which lies west of the cross timbers. They also make claim to damages caused by the removal of the Indians in Texas, which has been estimated at about $75,000; also loss of property sustained by reason of troops being withdrawn from Fort Cobb, leaving the Indians without protection, causing them to remove far to the north, resulting in much loss of property, etc. As to their claims for damages, mentioned in the two latter clauses, it may be said that this department has no knowledge concerning them, and that they are stated in such broad and general terms as to make an investigation of their merits extremely difficult if not entirely impossible. The matter of compensation for the lands known as the leased district, has been before this department for many years, and adverse reports thereon have been made to the proper committees in Congress in 1909, 1911, 1914, and again in 1917. Article VI of the agreement of June 4, 1891 (known as the Jerome agreement), ratified and confirmed by the act of March 2, 1895 (28 Stat. L., 895, 896), provides: "It is further agreed that there shall be reserved to said Indians the right to prefer against the United States any and every claim that they may believe they have the right to prefer, save and except any claim to the tract of country described in the first article of this agreement.' Should Congress conclude that it was intended by Afticle VI, herein quoted, that the said Indians should have the privilege of submitting their claims to a court for adjudication, the bill should be amended so as to limit the maximum amount of the attorney fee to be paid not to exceed the sum of $25,000. It is accordingly recommended that the following language be inserted after the word cause, line 16, page 3: And provided further. That in no event shall such fees exceed the sum of $25,000." Sincerely, E. C. FINNEY, Acting Secretary. The CHAIRMAN. This land that they are now claiming, of course, has been taken up and some of it is occupied by towns, villages, and cities, is it not? Mr. MERITT. Yes, sir. The CHAIRMAN. What do you mean by aboriginal claim? Mr. MERITT. They claimed to be the original owners of the land. They occupied the territory. Mr. HAYDEN. In that regard are there any court decisions that hold that because a tribe of Indians occupied a certain scope of country that they had what we might now determine a fee simple title to it and were, therefore, entitled to compensation if anybody else took it? Mr. MERITT. I do not know of any decision by the courts to that effect. Mr. HAYDEN. How far do the courts go with respect to the nature of the title that a tribe of Indians had in the land which they occupy? Mr. MERITT. The courts hold that it was a possessory right. They did not have legal title to the land in the sense that they now have legal title to allotments. Mr. GENSMAN. Let me suggest, Mr. Hayden, that you will find that question discussed thoroughly in the United States Reports No. 179, in the case of the United States v. the Choctaw and Chickasaw Nations et al., page 495. Mr. HAYDEN. In that case the Indians claimed title to the land because granted to them under treaty from the United States. Mr. GENSMAN. I was not trying to interrupt; go ahead with him. Mr. HAYDEN. The United States in order to induce those Indians to move west of the Mississippi granted them a certain tract of land which they had owned through the Louisiana Purchase. Therefore their status differed in that the boundaries of their lands were described, and it was given to them by the United States. Miss ROBERTSON. Not given-sold to them. Mr. HAYDEN. Anyway, they acquired a title which the United States was competent to grant. In this case the Indian simply lived and roamed over, fished, and grew up on these little tracts of land and had what Mr. Meritt describes as a possessory right. Have you ever been able to find any court decision that described the nature of that title, and having defined it, announced any rule that could be laid down as to what compensation they should be entitled to, if taken from them? Mr. GENSMAN. There is no rule laid down as to what compensation might be given them because that would be a matter to be determined upon the character of the land and the value thereof, its proximity to minerals, and things of that kind. But the courts have always recognized what is known as aboriginal ownership, the term, as I understand it, meaning the original owner or the original possessor of the land, I should say, the original owner of the land, the Indians that first were found upon the land. Mr. HAYDEN. I would like to ask a question of Mr. Meritt in that regard. You have had a great deal to do with submitting reports on claims of that kind and ought to be familiar with what the law is. Do you know of any rule ever laid down by the Court of Claims, the Congress, or anybody else, that we should follow in considering the claims of Indians to ownership or possessory right in this land, and if taken away from them, how they should be compensated? Mr. MERITT. As far as I know there has been no general rule laid down either by the courts or by Congress. Mr. HAYDEN. Is there any decision in point that might be used as a precedent? Mr. MERITT. The only decision I have in mind is the Lone Wolf case, wherein it was held that Congress has authority to legislate regarding Indian property. Mr. HAYDEN. Of course Congress has authority to take money out of the Treasury and give it to Indians in its discretion. What I was trying to arrive at is, it seems to me there have been so many of these cases that there ought to be some general light on them. Has each individual case been treated upon its own merits? Mr. MERITT. Yes, sir. Mr. HAYDEN. Has there been any Supreme Court decision defining what the rights of those Indians were in the land that they may have hunted and fished and lived upon? Mr. MERITT. The Supreme Court in the case of the United States v. The Choctaw and Chickasaw Nations considered somewhat the claims of the Wichitas, but they were limited in the jurisdictional act to a certain item in the legislation, and the general claim of the Wichitas was not opened up in this decision, which I will read. Mr. ROACH. May I ask a question before you read that? If I heard you correctly, perhaps some in this claim that is contemplated by this bill have already been before the department and considered by the department and rejected? Mr. MERITT. The department has submitted adverse reports. Mr. ROACH. Probably they might come under the terms of this bill if it were enacted into law. Was that because there was no merit in the claims or because there was no law authorizing the department to act upon them? Mr. MERITT. Because the claim is a very old one and there is no basic law in regard to it and because the department realizes that practically every tribe in the country has alleged claims against the Government. Generally speaking, a large number of these claims have been initiated by claims attorneys and the department has been exceedingly careful about making reports on those various claims bills. Commissioner Burke, who was formerly chairman of this committee, has taken a rather positive position on these claims bills. He thinks that there should be a prima facie case made out before favorable reports are submitted on the various jurisdictional bills. He has considered a number of these claims bills since he has been in the office of Indian Commissioner, but we have been exceedingly careful not to make favorable reports on these bills unless a prima facie case was first made out. In this case of the Wichitas there seems to be merit in the claims of these Indians and it appears to us that they should have their day in court, in view of this provision of the act of March 2, 1895, 28 Statutes, 896, which reads: "ART. 6. It is further agreed that there shall be reserved to said Indians the right to prefer against the United States any and every claim that they may believe they have the right to prefer, save and except any claim to the tract of country described in the first article of this agreement. Here Mr. ROACH. I would like to understand the view of the department on that. is a blanket proposition wherein it is proposed to throw all of these claims into the Court of Claims, there to present their claims. Is it the view of the department that this authority should be given or that, rather, they should present claims individually to Congress and each individual case be passed upon by this committee and by Congress rather than made under a blanket authority? Mr. MERITT. I was going to come to that in my statement. Mr. ROACH. Pardon me for interrupting. Mr. GENSMAN. Before you go on, I do not want the committee to understand that Mr. Roach, as I understand, means that each individual member of the tribes should present claims. Mr. MERITT. No; I understand. Mr. GENSMAN. But individual tribes. Mr. MERITT. I understand that. There are two wavs to handle these claims of Indian tribes. The first is by jurisdictional bills, which will submit the whole case to the Court of Claims, with the right of appeal to the Supreme Court. The other way, which Commissioner Burke has considered somewhat favorably, is for the Indian committees of Congress to investigate these claims separately, find out what is a reasonable, fair, and just amount that the Government owes the Indians, if it owes them anything, and have Congress make an appropriation, as a full settlement of the claims of that particular tribe against the Government. Mr. HAYDEN. That is, without going to the Court of Claims at all? Mr. MERITT. Without going to the Court of Claims. The CHAIRMAN. That is my idea of it exactly, and that is why I insisted upon having this further hearing so that we, as a committee, can determine ourselves what the nature of these claims is and what they are going to amount to, and whether they should go any further than this committee. We ought to determine right here whether there is merit enough in the case to hand it to the Court of Claims. Mr. MERITT. In speaking to Commissioner Burke this morning, he called to my attention a jurisdictional bill, which passed Congress, where claims attorneys asserted claims of $60,000,000 in the Court of Claims against the United States. Some of these Indian claims can be asserted in enormous amounts by professional claims attorneys. We want the Indians to get what is their just due, but at the same time the department feels that it should be exceedingly careful in making favorable reports on these jurisdictional bills because there could be asserted against the Government claims amounting to many millions of dollars in these Indian matters. In the past there has been more or less scandal in connection with the amounts of attorney fees in certain Indian claims. We recall that one set of attorneys got $750,000 attorney fees out of one case; another firm of attorneys got $250,000 fee in one case, and they got their fee in advance of the money being procured from Congress for the Indians. These jurisdictional claims bills are very important and should be handled very conservatively, according to the view of the present Commissioner of Indian Affairs. Mr. HAYDEN. In that regard I would like to know how many tribes are seeking authority to file similar suits to this tribe? Mr. MERITT. Probably 20 different tribes are alleging claims against the Govern ment. Mr. HAYDEN. Then, if we do what the tribes and their attorneys want us to do, we would report out a general bill saying that any tribe of Indians that thought it had any kind of claim against the United States could file a suit in the Court of Claims to ascertain the amount? Mr. GENSMAN. That is not the bill under consideration. There is no bill of that kind under consideration at this time. Mr. HAYDEN. It follows, though, that if one tribe of Indians was granted that authority, in fairness and justice we would have to grant it to other tribes. The CHAIRMAN. Here is the thought that occurs to me: Take the first portion of the first paragraph of this bill, “that all claims of whatsoever nature which the Wichita and affiliated bands of Indians in Oklahoma may have against the United States may be submitted to the Court of Claims for determination of the amount, if any, due said tribes or bands of Indians from the United States under any treaties," etc. 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. 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. His time is more valuable than mine. 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 |