In the case of Martinez (195 U. S. 469) the Supreme Court declined to permit an amendment to the petition after the expiration of the statutory period bringing in a new tribe of Indians, page 203. In Barrow et al. v. U. S. (30 Ct. Cls. 54), the court decided that "upon this question of limitation presented by the statute the court is of the opinion that no greater quantity (that is no greater number of horses, mules, etc.) can be the present subject of relief than the claimants specified when they originally filed their claim-the additional quantity is barred by the statute." To the same effect Schewson v. U. S. (31 Ct. Cls. 192, p. 204). This amendment, if allowed, goes to the subject matter of the claim and necessarily changes its identity. It is elementary that, notwithstanding jurisdiction as to the parties, the court must be invested with jurisdiction of the subject matter of the controversy, and the absence of power respecting the latter prevents the granting of relief in this case. The amendment sought to be made changes the cause of action and permits the claimant after the statutory period has run to recover property not theretofore claimed in his petition. Defendant's plea is sustained and the petition dismissed. Martin v. U. S. (46 Ct. Cls. 199). It was for the plaintiff to make such investigation as would warrant the beginning of the action against the proper tribes, or against the United States alone, avering that the particular tribe could not be identified (p. 476). The construction herein put upon the statute will give to the 3 years' limitation the effect of other statute of limitation and will, in our judgment, best effectuate the purpose of the act. This act is extremely liberal in permitting presenation of claims for Indian depredations. All limitations are swept away except the requirements as to the time of filing the petition. United States v. Martinez (195 U. S. 469, 49 L. 282). The following two paragraphs are taken from the brief of the above case and which sustain the principles upheld by the Court. It is not permissible to bring a new party defendant into court by an amendment after the statute of limitation has run in his favor. Miller v. McIntyre (6 Pet. 61; 8 L. 320). Sicard v. Davis (6 Pet. 125, 8 L. 340). The statutory provision which applies in this case is not identical with the ordinary statute of limitations, but in this report is stronger than such statutes, in as much as its prescription does merely apply to the right of action on the claim, but declares the demand barred, so that the court will interpose the statute as a bar of a suit whether or not it is pleaded by counsel for the defendants. Kendall v. U. S. (14 Ct. Cls. 122). A stranger seeks to intervene in a pending suit, captured property act, which was brought within the proper time. After the time has expired he cannot come in, as the time as to him has expired not being within the jurisdictional period. He may not do indirectly what he could not do directly. He did not walk into court by the open door while it was open, but now seeks to climb in on the shoulders of one who came in the right way. Hill Case (8 Ct. Cls. 361). Provisions, "at any time within 2 years after the suppression of the rebellion to prefer his claim to the proceeds thereof in the Court of Claims" is not a limitation but of jurisdiction. Statutes of limitation act upon existing causes of action, but it is this statute alone which confers the right, and the right can be exercised only in such manner, at such places, and within such time as the act prescribes. Whoever did not within the time prefer his claim to such proceeds, in effect declared he had no such claim. Whoever within the time preferred such claim, in effect declared it to be his whole claim. In either case he is concluded; in the former by his silence, in the latter by his express declaration. He can no more unsay the latter than he can undo the former. The right which he asserted within the prescribed time, when all the facts were fresh, and self interest would at least have led him not to diminish his claim, is the only right which the Government has agreed to allow to be asserted here; and it is much the right of the Government after the expiration of the time, to be protected against the increase of a claim which had not within the time been preferred at all. Kidd's Case (8 Ct. Cls. 259). Had the Indians of California been permitted to have their own attorneys or such assistants as they had engaged to develop their claims, it is believed that their whole claim would have been filed within the time limit, and much progress would have been made in taking and preserving testimony necessary to make proof of their claims. Some of this testimony is lost through the deaths of old Indians who knew the facts needed. III. When Congress provides specially in a certain case that the suit must be brought within a specified period and that the petition must be verified by the designated officer of the claimants, the requirements take the case out of the general provisions of law and must be strictly complied with. Eastern Band of Cherokee Indians v. the Cherokee Indians West and the United States (19 Ct. Cl. 35). The essential precedent steps to the jurisdiction of this court are, of course, not in issue. The filing and subsequent rejection of a refund claim, or failure of the Commisisoner to act thereon within 6 months, and suit thereafter within 2 years must be disclosed by the facts, for, as conceded by the parties, the statute of limitations in this court is jurisdictional. (Schewson v. United States (31 Ct. Cl. 192.) II. The ad dammun may be increased, but new items cannot be brought by amendment in this class of cases (p. 194). In order to give the court jurisdiction, the claim must have been wholly disallowed by the Interior Department; the suit must be commenced in 6 months after the passage of the act of March 2, 1895; and it must be the same case in law; that is, the same parties or their legal representatives, and as to the same subject matter. The claimant will not be permitted to change the character of the claim by an amendment as to new items, but the same rule will be applied to cases under this statute that the court applies in other cases, allowing values to be increased to correspond with the proof. WASHINGTON, July 2, 1935. Hon. VIC DONAHEY, United States Senate, Indian Affairs Committee, Washington, D. C. DEAR SIR: A year ago, in the city of San Francisco, on July 2, 1934, Senator Thomas said: "The Indians of California will never have had their day in court until they are represented by attorneys of their own selection." Knowing that Senator Thomas as a lawyer would have some good reason for that statement the authority for it was sought. The case of Powell v. Alabama (287 U. S. 45) presented the full reasons therefor. For the first time the Supreme Court of the United States laid down and decided the principles upon which the right to counsel is based. Referring to the basic principles vested in the people and contained in "due process", the Court says: "What, then, does a hearing include Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right." "If in any case, civil or criminal, a State or Federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense" (pp. 68–69). In an Indian case in the State of Oklahoma where an Indian litigant was denied full representation by her own counsel, and the court insisted upon her guardian and his counsel dominating the proceedings, such action was held to be a denial of a hearing, and the whole proceedings void. The United States District Court for the Northern District of Oklahoma so held, and the United States Circuit Court of Appeals for the Tenth Circuit affirmed the trial court. The foregoing case of Powell v. Alabama was the authority upon which the decisions stand. The case is that of Roberts v. Anderson (66 Fed. (2) 874). That provision of the Constitution set forth in the fifth amendment, and particularly the clause, "No person shall be deprived of life, liberty, or property without due process of law", is a basic right reserved to the people. It is vested in them, and since the Indians are citizens of the United States it is vested in them. It may be that when a contested case is developed and passed up to Supreme Court for determination, it will extend to the Indian the same consideration it has extended to the Negro. This may be a good Fourth of July time to consider and apply to the Indians fair, honest court rights. Following the reasons stated to you today that were advanced against the attorney general of California there was adopted a constitutional amendment which is as follows: "The attorney general shall receive the same salary as that now or hereafter prescribed by law for an associate justice of the Supreme Court, and he shall not engage in the private practice of law, nor be associated directly or indirectly with any attorney in private practice; and he shall devote his entire time to the service of the State." The attorney general has expressed the wish to be relieved of this case. He has expressed himself to Members of Congress, to the Commissioner of Indian Affairs that wish, and he has stated in reference the assertion that the Indians "were entitled to their own counsel. With this the attorney general of California has nothing to do, and has not questioned the right." The Indians believe the attorney general should have the right to resign from their case. In doing so he would be following the amended constitution of the State of California, and he could give his whole service to the said State. At the same time he would be granting to the Indians their constitutional rights and allowing them the rights of true American citizens. There is, however, much back of all this for which the attorney general is not to blame. A letter was filed today with the committee by Allen G. Harper about the attorneys for the Indians. He occupies the position which was held by Commissioner Collier, and he or his organization have a contract with the traders on the Navajo Reservations to get 10 percent of sales from them for certain goods which have amounted to as much in 1 year as $1,500,000. He has an attorney whom he wants to have charge of the Indians case, but he is a member of the American Indian Defense Association. An attorney has been threatened that he would get nowhere, and could no nothing and to get out of the way. This association already has representatives who are attorneys dominating Indian affairs in the Department, and if the said ssociation is to dominate affairs of Indians they will have nothing to say at all about attorneys or anything else that concerns them. The bill before the committee should be passed as it is for the good of the Indians. The Government is protected by it as well. Very respectfully, THOMAS L. SLOAN. CONGRESS OF THE UNITED STATES, J. W. HENDERSON, HOUSE OF REPRESENTATIVES, Washington, D. C. February 23, 1937. President, Indians of California, Inc. DEAR MR. HENDERSON: I take this occasion to say in reference to your representative here, Mr. F. G. Collett, that he has been one of the very influential men in reference to furthering any legislation to help the Indians anywhere. He has not made himself offensive and has never demanded anything. He has, however, always aimed to convince with a store of facts in any matter in which he has been interested. I have found him a very valuable help in Indian legislation and I have been able to relp upon him absolutely. No man could have done more, and as a Member of Congress I appreciate his presence here. Sincerely yours, USHER L. BURDICK. ? WOUNDED KNEE MASSACRE HEARINGS BEFORE THE SUBCOMMITTEE ON INDIAN AFFAIRS HOUSE OF REPRESENTATIVES SEVENTY-FIFTH CONGRESS THIRD SESSION ON H. R. 2535 10 LIQUIDATE THE LIABILITY OF THE UNITED STATES MARCH 7, AND MAY 12, 1938 UNITED STATES WASHINGTON: 1938 |