tried for their crime and convicted and part of them hanged and the remainder imprisoned. The guilty Indians have nearly all paid the penalty of their crimes. If there are any still living, the Government has established or can establish their guilt. At any rate, the burden should be on the Government to show who are guilty and still living, if there be any.

The bill provides that the Department of the Interior shall make up a roll of those who are now living and residing in the United States who are entitled to share in these annuities, leaving off the names of any Indians who took part in the outbreak.

The sweeping act of forfeiture passed by Congress soon after the outbreak has deprived not only the friendly Indians who survived the difficulties of that period of the moneys due for their land during the remainder of their lives, but has visited the sins of the few hostile Indians upon helpless women and upon unborn children. If the Government should adhere to this act of confiscation, it would be the only instance of the kind in our history. Therefore, it seems to your committee that the ends of justice would be accomplished by the passage of the proposed bill.

The bill provides that payment of the amount found to be due by the court shall be made per capita to those Indians now living, except those whose guilt can be shown.

The Department of the Interior has, however, always contended that these Indians have forfeited their rights to the restoration of these annuities by becoming parties to the treaty of April 29, 1868, and further contends that if they did not surrender and forfeit their claims or rights by the terms of such agreement, that then they should be charged up with all payments in money or clothing, provisions, etc., made under that treaty.

Your committee, after a careful investigation of this treaty and the conditions under which and the purpose for which it was made, can not concur in the view taken by the department. The department cites article 10 of said treaty, which reads as follows:

In lieu of all sums of money or other annuities provided to be paid to the Indians herein named, under any treaty or treaties heretofore made, the United States agrees to deliver, etc.

naming the clothing, money, supplies, and provisions which the Government agreed to furnish the Indians.

The department also points to article 17, which reads as follows:

It is hereby expressly understood and agreed by and between the respective parties to this treaty that the execution of this treaty and its ratification by the United States Senate shall have the effect and shall be construed as abrogating and annulling all treaties and agreements heretofore entered into between the respective parties hereto, so far as such treaties and agreements obligate the United States to furnish and provide money, clothing, or other articles of property to such Indians and bands of Indians as become parties to this treaty, but no further.

Your committee can not understand how the provisions of these two articles can be held to be an abrogation of the rights of the Indians to annuities which were at that time forfeited, and therefore can not have been in the minds of the parties. Besides, a reading of the whole treaty shows that the Government sought the Indians to make this treaty for a governmental purpose. The things that the Indians were to do are expressly stated, and stated to be done in consideration for payments to be annually made.

The facts about that treaty are briefly as follows:

The Indians occupying the territory north of the proposed line of the Union Pacific Railway and on the western frontier had been rounded up by the Army and at Fort Laramie; these bands being the Brule, Ogallala, Minicongou, Yanktonai, Unkpapa, Blackfeet, Cuthead, Two Kettles' Band, Sioux, and the Arapahos, were gathered into meet Lieut. Gen. William T. Sherman, Gen. William S. Harney, Gen. Alfred H. Terry, Gen. C. C. Augur, of the United States Army, and four civilian commissioners appointed by the President. The council was dominated by the Army.

Nearly all of these various bands, parties to the treaty, except the Santee Sioux of Nebraska, were more or less hostile. The seven Santees who signed the treaty were a part of the small band of Santee Sioux Indians which had been gathered up and moved by the Government to Niobrara, Nebr., after the release of the remnant of the Indians that had been confined at Davenport, Iowa.

These Indians were wholly indigent, broken-spirited, and without hope in the world. They were completely subjugated and were wholly under the care and the influence of the United States at Niobrara. If they had signed this treaty in the understanding that they were surrendering their rights to the restoration to their children of the forfeited annuities, they would have so signed without the shadow of authority. They did not represent the great mass of Santee Sioux Indians who still remained in Minnesota and Dakota. They were in that deplorable condition in which individuals, and sometimes weak nations, execute any agreement that is presented to them by the power holding them under subjugation. They were perfectly willing, unquestionably, to accede to the terms of peace proposed by the United States, and doubtless they extended whatever influence they possessed, as heartily as was in their power, to bring to a peaceful disposition the more hostile part of the Sioux Indians, such as Two Kettles' Band, the Unkpapas, and others of a hostile disposition who had been depredating upon the line of the proposed Union Pacific Railway and upon the line of travel over the "California trail" up the La Platte River.

Affidavits have been made by two of those who claim that they signed the treaty to the effect that no council of their band was held to authorize them or anyone else to enter into a treaty with the United States.

In the first paragraph of the indicated treaty of 1868 the parties agreed that war should forever cease, and recites as follows: "The Government of the United States desires peace, and its honor is hereby pledged to keep it;" "the Indians desire peace, and they now pledge their honor to maintain it;" so that peace was the object of the signatory parties.

Article 11 of that treaty sets out seven specific services which the Indians were required to render the Government continuously. Briefly stated, they were that the Indians should withdraw "all opposition to the construction of the railroads now being built on the plains"; that they not only would not attack any white persons or wagon trains or coaches, or capture any cattle or mules belonging to the United States or to white people, but that they should protect the white people and their property and the property of the United States in every way within their power; they also agreed to withdraw all

opposition to the military posts or roads established and to be established by the Government in the northwest, and further specifically agreed to help the Government to capture and punish any Indians who attacked white people or Government agents or committed depredations on their property, and to police the frontier.

In short, the Government sought these Indians on the frontier to enter into a treaty for a specific governmental purpose; that is, peace and the protection of the frontier. The Indians agreed to perform this service and the Government agreed to pay them annually certain sums of money, food, clothing, etc., in consideration for their services. Any time that the Indians stopped performing these services payments to them would stop. Therefore the payment made to these ten bands of Indians was the annual recognition of the fact that the Indians had carried out their part of the agreement in good faith.

It is evident, therefore, that the agreement of 1868 was sought by the Government in the interest of civilization and for purposes of the Government, and that the Indians performed the services required, and that the payments made to them were the consideration for such services as stated in the treaty.

This shows clearly that the provisions of articles 10 and 17 of that treaty, which provided that the payments to be made under it should be in lieu of all payments heretofore granted to these Indians under treaty stipulation, can not and should not be a bar to the recovery by these Indians of their annuities which were forfeited in 1863. It is clear that the contracting parties, if the treaty, as between the Government and this band of Sioux Indians, can be called a contract, did not have in mind at the time the forfeited annuities of the Sioux the same having been abrogated by act of Congress in 1863.

In this connection it should be noted that the Government, in making certain payments to the small band of Santee Sioux at Niobrara, Nebr., under the terms of the agreement of 1868, did not make any payments to the larger part of these Santee Sioux who were in Minnesota, the Dakotas, and Montana, and were not upon the reservation at Niobrara.

The Senate Committee on Indian Affairs has given this matter thorough consideration and has always taken the same position that we take.

Attention is invited to Senate Report No. 5689 (59th Cong., 2d sess., pp. 76-79), setting forth the reasons of the Senate committee why no payment made under the treaty of 1868 should be charged against the forfeited annuities which it is now proposed to restore.

Attention is also called to Senate Report No. 2561 (59th Cong., 1st sess., p. 80), in which the Senate committee states why the unpaid annuities of all of the Sioux Indians should be restored.

A similar bill to the one we now recommend has passed the other branch of Congress four or five times.

FEBRUARY 2, 1912.

Hon. JOHN H. STEPHENS,

Chairman Committee on Indian Affairs, House of Representatives.

SIR: I have the honor to acknowledge the receipt of your letter of January 15, 1912, inclosing, with request for report thereon, a copy of H. R. 17600 (practically the same as 21887), for the restoration of annuities to the Medawakanton and Wahpakoota (Santee) Sioux Indians, declared forfeited by the act of February 16, 1863.

The purpose of this bill is to confer jurisdiction upon the Court of Claims to hear, determine, and render final judgment in the matter of the claim of the Medawakanton and Wahpakoota Sioux Indians for annuities due them under treaty stipulations, which were forfeited by act of Congress approved February 16, 1863 (12 Stat. L., 652), and the bill is, in substance, similar to H. R. 17859, Sixty-first Congress, second session, on which the department made report to the Congress under ate of February 28,

In its said report the department suggested certain amendments to H. R. 17859, and as the bill now under consideration appears to have been prepared in accordance with said suggestions, the department sees no objection to its passage.

For the information of your committee there is inclosed herewith a copy of departmental report of February 23, 1910, above mentioned. The bill (H. R. 17600) is returned herewith.

Respectfully,

Hon. ROBERT J. GAMBLE,

SAMUEL ADAMS, First Assistant Secretary.

Chairman Committee on Indian Affairs, United States Senate.

MARCH 21, 1912.

SIR: The department is in receipt by reference with request for a report thereon of a copy of S. 5241 entitled "A bill for the relief of the Medawakanton and Wahpakoota Bands of Indians, otherwise known as the Santee Sioux Indians, and for other purposes."

This bill confers jurisdiction upon the Court of Claims to hear, determine, and render judgment upon the claim of the Medawakanton and Wahpakoota Bands of Sioux Indians, otherwise known as the Santee Sioux Indians, for their interests in certain lands set apart as a reservation for them and other bands of Sioux Indians by the treaty of April 29, 1868 (15 Stat. L., 635), of which they were deprived by the act of March 2, 1889 (25 Stat. L., 888).

By the act of Congress approved February 16, 1863 (12 Stat., 652), all treaty obligations on the part of the Government to the Sioux of Minnesota were abrogated, including all annuities due said Indians under the treaties of 1837 and 1851.

By the act approved March 3, 1863 (12 Stat. L., 819), Congress, recognizing the need and destitute condition of the Indians, authorized the President to set apart a tract of unoccupied lands "outside of the limits of any State, sufficient in extent to enable him to assign to each member of said bands (who are willing to adopt the pursuit of agriculture) 80 acres of good agricultural lands, the same to be well adapted to agricultural purposes."

Under the provisions of this act the Crow Creek Reservation in South Dakota was selected, and during the year 1863 some 1,300 Sioux Indians of the Mississippi were removed thereto. After three years' trial, this reservation having been found not to be a tract of "good agricultural lands, well adapted to agricultural purposes," another tract was selected for them in Nebraska Territory, and was set aside for the Santee Sioux Indians by Executive order of February 27, 1866. The Indians removed to the Santee Reservation were those that had been located at the Crow Creek Reservation, consisting of the old men, women, and children of the Sioux, who surrendered to and were captured by the military in 1863, together with about 75 who had been pardoned by the President and sent there about a year and a half before; the Sioux Indian prisoners, about 200 in number, who had been confined at Davenport, Iowa, for about 3 years; and the Sioux in Minnesota, who were friendly to the United States during the outbreak of 1862 and were then in destitute circumstances in that State.

From the annual report of the Indian agent for the Santee Agency for the year 1866 it appears that the Santee Sioux are composed of Sissetons, Wahpetons, Mdewakantons, and Wahpakootas. The bands which were provided for by the act of March 3, 1863, above mentioned, and the Indians on the reservation in Nebraska have since been known and designated as "Santee Sioux."

By the second article of the treaty of April 29, 1868, supra, to which treaty the Santees were a party, the Sioux relinquished all claims or rights in and to any portion of the United States or Territories except such as were embraced within the limits of the reservation described in that article, and existing reservations on the east bank of the Missouri River, and except certain homestead privileges conferred by the sixth article.

By section 16 of the act of March 2, 1889, supra, "all the title and interest of every name and nature secured therein to the different bands of the Sioux Nation by the said treaty of April 29, 1868," was confirmed to them. The title thus confirmed to these Indians, however, with respect to the lands set apart for them appears to have been

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that of use and occupancy only, as all treaty obligations on the part of the Government to the Sioux of Minnesota had been previously abrogated by the act of Congress approved February 16, 1863, above mentioned.

By section 7 of the act of March 2, 1889, provision was made that each member of the Santee Sioux Tribe of Indians "now occupying a reservation in the State of Nebraska, not having already taken allotments, shall be entitled to allotments upon said reservation in Nebraska." This section also provided that the Santee Sioux should be entitled to all other benefits under the act in the same manner and with the same conditions as if they were residents upon said Sioux Reservation receiving rations at one of the agencies named in the act. Provision was also made in said section that all allotments theretofore made to said Santee Sioux in Nebraska were ratified and confirmed. By section 17 of the act of 1889 the Santee Sioux, the Flandreau Sioux, and the Ponca Indians were specifically included in the benefits of the Sioux permanent fund provided in sections 7 and 13 of the act.

By section 8 of the act of Congress approved July 13, 1892 (27 Stat. L., 145), provision was made for the payment to the Santee Sioux Indians in the State of Nebraska who had not received allotments the value of such allotments in cash. And by the act approved June 21, 1906 (34 Stat. L., 325–356), authority was granted for the payment to the Santee Sioux in Nebraska of all their share of the principal permanent fund of the Sioux Nation created by the seventeenth section of the act of March 2, 1889.

From the foregoing history of the Santee Sioux Indians it does not appear that they have been deprived of any lands or other benefits to which they were entitled under the treaty of 1868, but on the contrary that they have been dealt with very generously by the Government.

However, as it appears that the said Indians believe that they have a claim against the Government by reason of the provisions of the act of 1889, supra, the department is not inclined to interpose any objection to the submission of the matter to the Court of Claims in order that it may receive final adjudication and settlement.

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Respectfully,

SAMUEL ADAMS, First Assistant Secretary.