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how much they are entitled to receive. The bill provides for paying for the lands $1.25 per acre, and it would be easy to compute the amount that would be due, as there is very little question as to the acreage involved. There would seem to be no necessity for action by the Court of Claims, and much expense and delay would be avoided by a direct appropriation. Inasmuch as the amount that might be recovered, should the jurisdictional act be enacted, would probably amount to several millions of dollars, it is suggested that the attorneys' fees to be paid should not only be limited as provided by the bill but that some amount should be stated specifically as a maximum fee. Sincerely,
E. O. FINNEY, Acting Secretary. Mr. Raker. I just want to call the attention of the committee to the bill in as few words as I can. This bill authorizes any tribes or bands of Indians who'may have claims against the United States to submit them to the Court of Claims. They must do so in one suit. That suit must be a joint suit and must be commenced within two years after the law becomes operative. If there are any others than those who have commenced the suit whom the court believes should be made parties to it, the court shall order them in, so that there will be but one action pending to adjudicate this entire matter. The limitation is two years within which these parties may submit their claims to the Court of Claims. The bill provides that the court shall settle their rights, both legal and equitable, which shall be based upon the fair value of the land that was claimed by the Indians under some 18 treaties entered into by the United States and these tribes of Indians, which treaties were not ratified and which treaties lay in the secret archives of the Government, so that nobody knew what was done until some five years ago. The bill further provides that the court shall not allow more than $1.25 an acre for the land which they claimed and can show belonged to them; that the statute of limitations shall not be a bar to their claims and shall not be used as an estoppel.
I want particularly to call the committee's attention to this, that “the United States shall be allowed credit for all sums heretofore paid or expended for the benefit of said tribes or any band thereof, including gratuities." I trust that the committee will strike this out of the bill when it is reported. That is a condition which has not been carried in any of the bills which have passed that I can find by going over them. The purpose is to adjudicate their rights, and if the court finds they have a right to the land the amount allowed can not exceed $1.25 an acre, and the personal property that should have been given to the Indians at that time figuring its value and deducting therefrom the amount of the appropriations which have been made for their benefit, as well as the gratuities. That the court shall settle and determine all of the matters in this one suit; that any documents and papers on file in any of the departments may be used as evidence in this case, in addition to other matters. The final section relates to attorney fees. The section provides that any of the parties may employ attorneys and that the court shall fix a reasonable attorney fee, which shall not be more than 10 per cent of the amount found due. We are not captious about that particular question. Some of the bills lately have fixed not exceeding 10 per cent and not exceeding a certain amount fixed in the bill.
Mr. ROACH. Is that fee entirely contingent upon recovery?
Mr. RAKER. It is absolutely contingent, and the employment of attorneys must be approved by the Secretary of the Interior. I think that is a fair statement of what the bill authorizes...
The CHAIRMAN. Mr. Raker, you recall that on or about March 23, 1920, this committee made a careful investigation of this matter and held hearings which are printed. I hold a copy of them in my hand. What is there in the way of testimony, new in nature, which would lead this committee into any greater light with regard to the matter than is contained in this hearing?
Mr. RAKER. I am glad you called that to my attention, because I intend to follow that right down with my statement and make it very short. I think that practically all of the facts are fully, clearly, and succintly stated in that hearing.
The CHAIRMAN, As I remember, without reading the hearing again, this claim is based upon 18 treaties which were executed with the Indians but never ratified by the Senate?
Mr. RAKER. Yes, sir; The Indians held possession of large tracts of land and they gave up all but about 5,000,000 acres; this was set out in these treaties. Then the Government took all the lands from the Indians later. Failed to ratify the treaties; the Indians are waiting.
The CHAIRMAN. And what you are attempting to do in this hearing-and attempted it back on March 23, 1920—is to have a practical ratification of those treaties. Is not that correct?
Mr. RAKER. I think I might stateitin this way: It is a question in my mind whether or not the treaties, not having been disposed of in a way, might be disposed of now, notwithstanding the length of time that has elapsed, but that is not our contention. The contention i tshat the Indians in good faith entered into these treaties with the Government, through its duly authorized agents. The Government was to do certain things and the Indians were to do certain things; the Indians carried out literally all of their part of the contract, but the Government fai ed to carry out its part in any particular.
These treaties are an evidence of the just claim of the Indians and the land was ten times, maybe twenty times, larger in area than is provided for in the treaties, namely, the treaty calling for the cession of the territory of which (alifornia was a part--which was received from Mexico, provided that all valid claims existing at the time of the treaty—that is, at the time of the cession of territcry from old Mexico to the United States-should be recognized; that all claims to lands should be validated by the United States; that is, the claims of all those having a possessory right or a claim to land actually occupied by them. That right was maintained by the whites; legislation was enacted, suits were brought, and the cases of white men were determined, but the cases of Indians holding like possessory rights were set aside, and the Indians were shoved off of their possessions in the mad rush for gold in ('alifornia in those early days, so that the Indians never had their rights adjusted, which should have been done, and they would have maintained their right in court to the possession of their lands had they gone in and had it adjudicated in those days. The Congress provided in the same act that a commission should be appointed and report on the Indian claims. No action taken on the report of the commission that we can find.
The CHAIRMAN. Right there, Mr. Raker, if you please. You know, of course, what the Secretary's statement is with regard to this matter and in it he makes this observation:
“The treaties submitted in 1852 were considered by the Senate when that body had full information, not only from the commissioners who negotiated the treaties but another commission that was appointed by the President for the express purpose of making an investigation and a report on the condition of the (alifornia Indians, and the report of said commission was probably submitted contemporaneously with the 18 treaties, and the Senate not only rejected the treaties but did so by a unanimous vote.” Mr. SANDERS. When were those hearings held? The CHAIRMAN. On this bill? Mr. SANDERS. Yes.
The CHAIRMAN. March 23, 1920. But the hearing I refer to was a hearing held at the office of the Secretary of the Interior recently during which he made this statement. Mr. Roach. It was not on this particular bill, was it? The CHAIRMAN. Well, yes; it was on this particular bill. Mr. Roach. It could not have been on this particular bill because it was only introduced in April.
The CHAIRMAN.' That is very true.
The CHAIRMAN. The California delegation waited upon the Secretary of the Interior and had a hearing on this particular bill.
Mr. Roach. That is the hearing to which you refer and which you now hold in your hand, is it?
The CHAIRMAN. No. That hearing was not printed, but this is the letter to which I am referring and which was sent to me after that hearing in his office and in which he makes this statement.
Mr. RAKER. And that is a question as to whether or not the Indians have a legal right. We think the department has been unable, at least so we have been advised, to find out what was presented to the Senate. In other words, nothing can be found, save and except the treaties themselves, which were in a secret archive for over 50 years. Where is the report of the commission and where is there any evidence of any action therein? We find none. But notwithstanding all of this the Indians lost all.
The CHAIRMAN. What I wanted to get your opinion on was this: How can we, at this late day, proceed to discuss this matter with the same light and knowledge that the people had who were considering the matter at that time, when a unanimous vote was had rejecting all of these treaties?
Mr. RAKER. Well, Mr. Chairman, we can not discuss the facts with the same degree of assurance that we could were we now discussing and presenting the treaties away back in 1852, but we do have--and that is what we rely on—the treaties as a basis; we do have the fact from the department itself that the Indians have not been compensated; we do have the fact that the Indians obeyed and complied with their part of
this contract; we do have the further fact that the Indians under the law were entitled to these lands when this territory was ceded to the United States by Old Mexico, and the fact that when California went into the Union she agreed she would abide by, sanction, and recognize these claims. Now, the only question involved here is on the legal proposition. What would the court determine? We ask that the statute of limitations be not applied to this case, which is simply permitting and authorizing a man to take his case to the Court of Claims where, he believes under the law and the existing facts applied to that law, he has a case that the court would adjudicate in his favor; that is, if he has a prima facie case. That is what the committee ought to determine. If he has a prima facie case, then it ought to be submitted to a court for the purpose of determination. If the court finds against him, he will have had his day in court, and that would apply to all of these Indians.
Mr. ROACH. Is it the purpose of vour bill to determine the rights of these Indians other than their rights in the land? Does it apply to any other rights which they may have under the treaties?
Mr. RAKER. None other except in the land. You understand, of course, the land is gone.
Mr. Roach. I understand.
Mr. RAKER. But if they have a valid claim to the land by virtue of possession under the Mexican law, then, in that case, the Government is depriving them of that right and the Government ought to be willing to permit these people to present their cases to the Court of Claims.
Mr. Roach. What I am trying to find out is whether they are attempting, or you are attempting, in this bill to assert any rights which the Indians might claim under the treaties, other than the interest which they claim to have had in the land? Mr. RAKER. And the personal property which should have gone to them. Mr. Roach. That is what I am getting at. Is personal property involved? Mr. RAKER. Yes; and so much land, about 5,000,000 acres of land.
The CHAIRMAN. What about the personal property? What does that consist of, or what does that mean?
Mr. RAKER. Well, it consisted of so many cows, so many horses, so many stallions, so many blankets, so many sewing machines, farm implements, and everything that would equip a community of Indians.
Mr. Roach. In other words, your bill is intended to permit them to assert all of the rights which they claim under these several treaties? Mr. RAKER. Yes, sir.
Mr. Roach. I doubt whether the language of your bill is broad enough to permit that sort of a suit to be brought.
Mr. RAKER. The land is not to be paid for on the basis of the present value, and we have provided in this bill a maximum amount to be paid for the land, namely, $1.25 an acre. If it is not broad enough, then we want it amended so as to include all claims to be settled in one suit.
Mr. Roach. The question of their interest in the land might be easy of determination by the court, but I doubt whether their other interests could be determined.
Mr. RAKER. Well, it would be easy to determine it in this way: It is named in numbers, so many cattle, 500 head of cows, so many head of horses, so many plows, and so on, and you can get evidence which will show the fair value of that property at that time.
The CHAIRMAN. How can you get such evidence now, nearly 60 years afterwards? Mr. RAKER. Well, Mr. Chairman, I spent many months going over California, and sometimes in Nevada and southern Oregon, assisting taking testimony; it was testimony on behalf of the Govenrment and on behalf of claimants whose property was destroyed by Indians, and we were able to get many of the old settlers, and the testimony is available. That is only a matter of proof in regard to it. Now, let me go on
The CHAIRMAN (interposing). Of course, none of these Indians are living now? Mr. RAKER. No; but their descendents are living. The CHAIRMAN. Just their descendents? Mr. RAKER. Yes. Mr. SANDERS. When was that testimony taken? Mr. RAKER. We took some in about 1886, some in 1889, and along there; it ran for about 10 years on all of these Indian depredation cases. There must have been about 400 or 500 of them. The chairman has called your attention to the report of the department on this bill and
Mr. Roach (intreposing). What section of your bill would authorize a suit for the recovery of this personal property?
Mr. RAKER. “That all claims of whatsoever nature which any tribes or bands of Indians of California may have against the United States may be submitted to the Court of Claims." Mr. Roach. Just read a little further, lines 6 and 7:
“For determination of the amount, if any, due said tribes or bands from the United States for lands formerly occupied and claimed by them in the said State, which lands are alleged to ahve been taken from them without compensation."
Now, that is the character of their suit; it is for land. Mr. SANDERS. And not for personal property? Mr. Roach. No. Mr. RAKER. We all thought this covered it in all its features. Mr. Roach. That is what I wanted to get clearly, whether your bill was intended to cover anything but land.
Mr. RAKER. Your suggestion is possibly a wise one, and the other language, “personal property,” ought to be included; it should include lands and personal property and I thank you for that suggestion.
Mr. COLLETT. Were not the various articles that were to have been delivered to the Indians considered in payment for the land that they were giving up?
Mr. RAKER. All of them; it is specified in the treaty and therefore I have used that language. The report made to this committee-and' I now want to go on to thatunder date of June 17, 1921, is not necessarily an adverse one and it is not necessarily favorable. I do not know what you would really call it; it is not opposing nor does it favor the suit, but it talks of an appropriation. That has gone in the record, and therefore I will pass that over.
To the end that the committee may have some further information on the matter during the Sixty-sixth Congress--and I ask that this go in the record so as to keep it clear-H. R. 12788, authorizing any tribes or bands of Indians of California to submit claims to the Court of Claims, was unanimously reported by this committee, Report No. 840. Now, Mr. Chairman, I ask that this go in the record so that
The CHAIRMAN (interposing). What do you desire to go in?
Mr. BURTNESS. The bill is identical, is it not, so that we will be printing the same bill that is printed in this hearing?
Mr. Raker. It is identical.
Mr. Raker. Yes, sir. I want the Members of the House to know that fact, because when I read the following report-I am going to leave nothing out-from the Secretary of the Interior you will readily see why I ask that we make a full record for the committee as well as for the Members of the House.
Mr. BURTNESS. I have no objection to the report of the committee going in, because that would be an argument for this bill, but I object to the same bill being printed in duplicate.
The CHAIRMAN. I will say for the benefit of the committee that we have already had a hearing in which is embodied these 18 treaties. That hearing was held on March 23, 1920; it covered this same matter, and a favorable report was made on the bill by this committee, but since then additional information has come to the committee which causes the chairman, at least, to think that it is advisable to consider it again, but not with any idea of printing anything we have already printed by any means. Now, gentlemen, several of the members desire to attend meetings which are to be held in various offices for just a few moments; the chairman himself desires to go, and I suggest we recess for 15 minutes.
A recess was taken for 15 minutes, after which the hearing was resumed.) Mr. RAKER. Mr. Chairman, as I stated before, and I will make it a little more specific, I think I can successfully state that every possible inquiry has been made, but that no records can be found which show that any report made by the commission appointed by Congress, by the Commissioner of Indian Affairs, by the Secretary of the Interior, or any other officer who should or would have had charge of this matter ever went before the Senate or was used by the Senate. The records are blank, and all we now have are the plain treaties and nothing else.
I want to call the committee's attention to the further fact, so it will go into the record, that during the Sixty-sixth Congress Senator Phelan introduced Senate 3998, a bill authorizing any tribe or band of Indians of California to submit claims to the Court of Claims. This bill was reported back to the Senate, Senate Report 549, Congressional Record, page 6144; it passed the Senate unanimously. (Congressiona Record, pp. 7155 and 7156.) The bill is substantially this bill and the same bill which was reported out by the House, to which I have referred.
(The report referred to follows:)
[Senate Report No. 549, Sixty-sixth Congress, second session.) The Committee on Indian Affairs, to whom was referred the bill (S. 3998) authorizing any tribes or bands of Indians of California to submit claims to the Court of Claims, having considered the same, report favorably thereon with the recommendation that the bill do pass without amendment.
DEPARTMENT OF THE INTERIOR,
Washington, March 23, 1920. MY DEAR SENATOR: I have the honor to refer again to your letter of March 3, 1920, inclosing for report a copy of Senate bill 3998, authorizing any tribes or bands of Indians of California to submit claims to the Court of Claims.
The bill is similar to H. R. 12788, upon which favorable report was submitted to the chairman of the Committee on Indian Affairs, House of Representatives, under date of March 9, 1920. A copy of said report is inclosed. Cordially yours,
John BARTON PAYNE, Secretary. Hon. (HARLES CURTIS,
Chairman Committee on Indian Affairs, United States Senate.
DEPARTMENT OF THE INTERIOR,
Washington, March 9, 1920. MY DEAR MR. SNYDER: I am in receipt of your letter of February 28, 1920, referring for report a copy of H. R. 12788, authorizing any tribes or bands of Indians of California to submit claims to the Court of (laims.
The claim of these bands of tribes of Indians, as shown by the bill, is for compensation from the Government for lands formerly occupied and claimed by them in California, which lands are alleged to have been taken from them without payment and disposed of as public domain.
As these Indians believe they have a meritorious claim against the United States, and the said bill properly protects their interests and the interests of the Government as well, I recommend that it receive your favorable consideration. Cordially yours,
ALEXANDER T. VOGELSANG,
Acting Secretary. Hon. HOMER P. SNYDER,
Chairman Committee on Indian Affairs, House of Representatives. Mr. Raker. I want that report in the record for several reasons. First, showing that the then Secretary of the Interior, John Barton Payne, reported favorably on it, and also the Department of the Interior. That bill was then referred to the Committee on Indian Affairs of the House, Congressional Record, 8664; it was then taken up by the committee of the House and reported favorably on January 26, 1921, Report No. 1237. (Said report follows:)
[House Report No. 1237, Sixty-sixth Congress, third session.] The Committee on Indian Affairs, to whom was referred the bill (S. 3998) authorizing any tribes or bands of Indians of California to submit claims to the Court of Claims, having considered the same, recommend certain amendments thereto and as thus amended recommend that the bill do pass.
1. On page 2, line 3, after the word “equitable,” insert the following: “which shall be based upon the fair value of any such lands at the time the treaties were ratified by the several tribes or bands of Indians, not to exceed $1.25 per acre.”
2. On page 2, line 9, after the word “thereof” and before the period, insert a comma and the following words: "including gratuities."
3. On page 2, line 10, strike out the word “tribe” and insert the word “tribes'' and strike out the word “band” and insert the word “bands."
4. On page 2, line 11, strike out the word “may” and insert the word “shall," and on the same line strike out the words "separately or."
5. On page 2, line 12, strike out the word “five" and insert the word “two."