"That all moneys expended heretofore or hereafter (for irrigation, construction, and maintenance and some other uses) shall be made reimbursable where the Indians have adequate funds to repay the Government, such reimbursements to be made under such rules and regulations as the Secretary of the Interior may prescribe." (Act of August 1, 1914, 38 Stat. L. 583.) Since 1914 substantially all of the appropriations for irrigation work on Indian lands, allotted lands included, have been reimbursable. In addition, other improvements, including bridges and public highways, have been paid for with appropriations made reimbursable sometimes against allotted land. Thus, far from being "discharged at the end of the trust period free of all charge or encumbrance whatsoever," as provided in the allotment acts, the Indian allotments are burdened during their trust period with charges sometimes as great, or almost as great, as the present value of the land. Has the imposition of these liens, under the circumstances, been constitutional? The question has never been passed on by the higher courts, but the collection of the liens has proceeded in all those cases where Indian allotted land, burdened with a lien, has been sold. The Government is reimbursed, and the reimbursement is taken out of the sales price of the land. The Indian, not the purchaser of the allotment, pays the reimbursable lien. A problem related to this one of reimbursable liens is that of the nontaxation of Indian allotted land in trust-the allotted land which is rented to whites. I merely refer to this as a subject calling for further investigation. II The second aspect of the allotment situation appears to be of greater urgency. Under the act of June 25, 1910, it is practically, though not technically, mandatory that Indian alloted land be sold on the death of the allottee. Even in the absence of statutory direction, such sale would be difficult to avoid under the conditions created by the allotment acts. The indefinite partitioning of allotments is not practicable; the Indian heir who may desire to remain on his allotment and cultivate it rarely would be able to buy out those heirs who might desire a liquidation of the heirship estate. The consequences are mathematically certain; the allotted Indians of the second generation largely become landless. By the time the third generation has arrived, substantially all of the allotted Indian land will have passed into white ownership. What this means is appreciated when it is noted that the Indian allotted land constitutes more than one-half of the whole area of Indian country and much more than half of the surface value of Indian country, and when it is further noted that more than two-thirds of the Indians are now allotted. The completion of the process of alienation of heirship lands has been delayed through the absence of purchasers, but this delay is only a momentary and accidental brake slightly retarding the downhill process. If a reservation whose allotment is comparatively recent be taken as an example, it can be pointed out that on the Blackfeet Reservation in Montana one-third of the allotted area, or 410,000 acres, is now in the class of heirship land, of which all, save about 57,000 acres, is at least theoretically on the market. The 57,000 acres immediately above referred to have passed out from Government trust, having been fee patented to Indians or whites. The rate of increase of heirship lands is, of course, greater with each year. I make the very tentative suggestion that part, at least, of the loss of Indian heirship land to the Indians might be averted if there were some means provided whereby the allotted land could revert to the tribal estate, becoming subject to reallotment as conditions might prescribe. However, it would appear that farreaching changes in the system of allotment would be necessary to accomplish these results. It has been suggested that Indian tribes might be permitted and assisted to form themselves into corporate bodies and that allotments might be turned back into the tribal estate in exchange for shares of stock. Such a method, it would seem, might be practicable for those reservations possessed of large tribal assets, such as timber, oil, minerals, or water power. Alleviation might be secured through a policy of granting reimbursable loans to those inheritors of allotted land who may desire to continue as cultivators, or to become cultivators, on the original allotment. These loans would enable the allottees to buy out the other heirs. The difficulty of such a plan, aside from the question of appropriations, lies in the condition stated at the beginning of this letter, namely, the guarantee in trust patents against imposition of liens during the trust period. Could the United States become the holder of mortgages on fee-patented land? It may be worth while to point out that the administration of allotments under trust and of heirship allotted lands has immensely complicated the task of Indian guardianship and increased its cost. And of perhaps greater significance, the weight and drag of the reimbursable obligations and the practical impossibility of the inheritance of the Indian's improved allotment by his offspring, together with the flow of a small income from leased allotted lands and the expectation of cash receipts from the ultimate sale of the allotted land, have operated to keep Indians in idleness, with all the consequences that idleness brings. I have become convinced that the difficulties and problems here stated are very close to the heart of the Indian situation and of the perplexities which beset the Indian Office. Constructive thinking is needed, and I make bold to suggest that the allotment act in its entirety, along with the system of reimbursable loans in its entirety, need legislative reconsideration. Should your committee decide to extend its investigation into the lines here indicated, with a view to possibly formulating amendments of law, the records and technical staff of the Indian Office may prove serviceable in the furnishing of data and in suggestions drawn from experience in this most complicated task of allotment administration. Any assistance your committee may render in working out a constructive policy in important matters of this kind would not only be greatly appreciated but it would also be of substantial benefit to the Indians themselves. UNITED STATES DEPARTMENT OF THE INTERIOR, OFFICE OF INDIAN AFFAIRS, MY DEAR SENATOR: We are confronted with the problem of what to do with indivisible tribal estates of the Indians. There are conditions with which it seems impossible to deal satisfactorily under existing law. I do not know what changes of the law should be considered, but I am writing this letter to call attention to the underlying facts. Indian wealth totaling hundreds of millions of dollarspossibly a billion dollars--is essentially indivisible. It includes such items as mineral and oil resources, power sites, timber wealth, the large bodies of grazing land, and even the farm lands of such tribes as the Hopis of Arizona and the Pueblos of New Mexico. At present and under existing law the Government, through the Interior Department, is charged with the direct and highly paternalistic administration of these properties, and unless existing law be changed it may well be that the Government 100 years from now will find itself still charged with this responsibility and still maintaining the paternalistic administration. The properties in question, in order to be conserved or sufficiently developed, ought in many cases to be treated as estates not capable of subdivision. It even seems possible that the only way to salvage some classes of Indian allotted land may prove to be by turning them back into the community estate. As I have stated, under existing law the Government may find itself administering these vast and varied properties to the end of time. And through all this time the Indians, so far as existing law is concerned, must remain in a state of dependency, being neither forced nor permitted to take on the business responsibilities of American life or to make use of the instrumentalities of modern business. It is true that under existing law the Interior Department can and does, in a more or less formal way, recognize Indian tribal councils. It might even be possible, through an elaboration of rules and regulations, to vest in such councils a considerable responsibility for the operation of their tribal properties. such action of the administrative kind would be revocable by any succeeding administration; it would not provide a firm basis for the development of responsibility on the part of the Indians; and it would not do away with the underlying condition, which is that the minutia of tribal affairs rest in the hands of the Department and Congress, and that the detailed responsibility rests with the Department and Congress. It is not a hopeful or practicable situation for building up the group self-help of the Indians." But As you undoubtedly know, Senator McNary, of Oregon, introduced a bill in the last Congress providing for the incorporation of the Klamath Indian Tribe (S. 5753, 70th Cong., 2d sess.). It is my understanding that this bill was introduced in order to provide a basis for further study and conference. I do not suggest that the problems raised in this letter can be wholly met through the method of tribal incorporation, but it would seem that a complete study should be given to the subject of passing over to the Indians themselves a collective responsibility for their tribal business and ultimately of terminating the present absolute responsibility of the Government for the management of these multitudinous properties. Your help and the help of your committee in working out this problem will be heartily appreciated. UNITED STATES DEPARTMENT OF THE INTERIOR, OFFICE OF INDIAN AFFAIRS, MY DEAR SENATOR: I am invoking your aid in a matter which perplexes us and the Indian Office and which I believe has often perplexed the Indian Committees of Congress as well. Every week the Office of the Commissioner of Indian Affairs seems to lead further back into a wilderness of past misadventures. I refer to that whole class of subject matter that is dealt with in Indian Court of Claims bills, but, in addition, to a large class of subject matter which I am informed cannot be dealt with in Court of Claims bills because no legal right assertable by the Indians in court is involved. You, far better than I, know the situation with respect to Indian Court of Claims bills. Under existing conditions, the Interior Department and the committees of Congress are compelled in some manner to prejudge these Indian claims, yet neither the Department nor the committees of Congress possess the necessary information for such prejudgment. When a claims suit is authorized by act of Congress, there ensues a litigation often prolonged, costly, and, from the Government's standpoint, highly burdensome, especially to the Office of the Comptroller General. Many scores of claims suits, not less legitimate than suits already brought, are still pending, under the consideration of the Department or of the committees of Congress, or soon to be brought under such consideration. Scores of tribes and thousands of Indians are to some extent living and breathing in the thought and hope of great results from suits in the Court of Claims. But the perplexities growing out of the past are, as I have suggested above, greater in number and variety than would be displayed by all possibly successful Court of Claims suits. There are, for example, the many items of reimbursable indebtedness-tribal indebtedness as well as the indebtedness on allotted lands. There are claims by Indians who never subsisted in treaty relations with the Government; in such status are most of the Indians of the far West and many of the southwest tribes. My thought on its positive side is as follows: Could not all of these matters be dealt with, and brought to a finality within a limited number of years, if a special Indian claims commission were created? This commission might and probably should be altogether independent of the Interior Department; its members might be named by the President, subject to confirmation by the Senate; it should be adequately budgeted. This claims commission might be given power to reach final settlementsessentially judicial power-in specified classes of cases where the Indian claim rested on a legal right assertable as such. But the commission should hear all causes, those that are human and moral as well as those that are legal and equitable; and its findings, submitted to Congress, could be the basis of settlement of a gratuitous kind which Congress might authorize. As an illustration of the possible functions of the commission, it occurs to me to mention the Mixed Claims Commission, the present duties and powers of the Pueblo lands board, and the creation of special courts of land claims that have been authorized by the act of Congress from time to time. I state the thought in a brief and doubtless in a crude way and I hope for an opportunity to get your counsel about it in conference. The mechanism which I suggest might not be practicable; but the conditions which I have referred to are indeed real, vexing, grievous to the Department at least, and in many cases they are matters of heartbreak to Indians and of hopes long postponed, often hopes never to be realized, which yet are operating to create dissension within tribes and to deter Indians from self-help. This further thought occurs to me: There can be no liquidation of the Government's guardianship over Indians until this inheritance of treaties and alleged broken treaties and governmental laches of the past is absorbed. The process, even with the most expeditious procedure, will require years. With procedure as at present, it might well require 100 years. Hence, any plan contemplating the gradual diminution and the ultimate and final termination of Indian tutelage must concern itself with this aspect of the situation. Any assistance your committee may render in working out a constructive policy in important matters of this kind would not only be greatly appreciated but it would also be of substantial benefit to the Indians themselves. UNITED STATES DEPARTMENT OF THE INTErior, OFFICE OF INDIAN AFFAIRS, MY DEAR SENATOR: One of the difficult situations connected with our Indian activities on which I seek the aid of your committee has to do with the irrigation work. Conditions vary, of course, on the different reservations or projects, yet certain fundamental underlying principles are common to practically all of them, which only adds to the perplexity that exists. This is due in no small measure to the multiplicity of legislation relating to such matters. Necessarily we must deal with this feature of the problem, and as some of this legislation is of a general nature, applicable to all projects, and others of a special nature dealing only with particular reservations, this leaves a situation confusing not only from an administrative but from a legal standpoint as well. It has also given rise in some instances to complaint from the Indians themselves, and also from white landowners under such projects purchasing lands from the Indians. Briefly it may be pointed out that during earlier times irrigation, in a small way at least, was started on a number of Indian reservations where conditions were favorable, largely as an industrial aid to the Indians, and in some instances for the purpose of affording temporary employment to the Indians at a daily living wage. Available appropriations and even tribal Indian funds were used in such work, which under the legislation then prevailing were not "reimbursable." In fact, no thought was had at that time of ever requiring reimbursement from the Indians of the funds so expended. Again, during those days no great degree of engineering skill was employed, and many of the systems and structures originally installed were of a more or less temporary nature. Subsequent legislation, however, particularly such as that found in the act of August 1, 1914 (33 Stat. 583), directing that all funds theretofore or thereafter expended in such work should be reimbursed, came as a distinct surprise to most of the Indians. In particular instances or on particular reservations, such as the Flathead and Fort Peck, Mont., and possibly others, the legislation dealing with such matters carried a positive declaration to the effect that the irrigable lands allotted to the Indians should have a right to so much water as might be necessary for irrigation purposes "without cost to the Indians." Naturally under such conditions the Indians feel that the subsequent repudiation of such a declaration, even by legislation, does not come with very good grace on the part of the Government. In this connection it might also be pointed out that most of our Indian allottees within these irrigation projects hold trust patents declaring that at the expiration of the trust period the allottee or his heirs will then be given fee title, free from any lien, charge, or encumbrance of any nature whatsoever. The subsequent imposition of a lien, therefore, requiring repayment of irrigation charges may very properly raise some question about the validity of a lien so imposed. As to this your attention is invited to the case of United States v. Heinrich (12 Fed. 2d, 938). While this case dealt primarily with the liability of a white purchaser from the former Indian owner, yet some of the observations indulged in by the court raises a serious question as to the validity of these subsequently imposed liens, be the landowner Indian or white. Originally most of our Indian projects were purely Indian; that is, only Indians and Indian lands were involved. Gradually, due to death of the Indian allottees within such projects, the inherited lands were sold and a good deal of such land has now passed into white ownership, leaving, as we now find them, a good many so-called mixed people, partly Indian and partly white, insofar as ownership of the land is concerned. Also, in practically all of such projects, particularly the older ones, we find the problem of white lessees of valuable irrigable lands, and incidentally complaint from the State authorities in some instances as to the taxability, or rather nontaxability, by the State authorities of such holdings so occupied by white citizens and residents of the State. Due to a number of causes, such as excessive floods, destruction of works originally installed and rebuilt, in order to save the entire system from total loss, the per acre reimbursable cost on a number of these irrigation projects is now almost equal to or even greater than the value of the land itself, hence we now find ourselves practically in that unfavorable position of virtually holding a lien or mortgage against property in excess of the value of the property itself. As a result of an extensive field investigation, made only a few years ago, it was even suggested that three of these Indian irrigation projects, on which considerable sums have been expended, should be abandoned entirely. In view of the large investment made by the Government in such projects, and as the expenditures so made were primarily for the benefit of the Indians, we have not felt warranted in recommending that these projects be abandoned without further trial or giving them opportunity for further development. In any event, the matter is deemed of sufficient importance to justify direct action by Congress before any definite steps are taken looking to the abandonment of projects on which large sums appropriated by Congress have been expended. It has also been suggested that the operation of Indian irrigation works might be transferred to the Bureau of Reclamation in the Interior Department, which has a force equipped to handle them under a general irrigation policy in cooperation with the Bureau of Indian Affairs. These are but a few of the perplexities connected with this branch of our work as to which I am impressed with the real need of constructive aid and doubtless remedial legislation, in the formulation of which the cooperation and assistance of your committee is earnestly solicited. Very sincerely yours, Approved December 18, 1929. Hon. LYNN J. FRAZIER, C. J. RHOADS, Commissioner. RAY LYMAN WILBUR, Chairman Committee on Indian Affairs, United States Senate. Secretary. Mr. COLLIER. This is a memorandum sent to the Congress, to the committees of Congress. I would like to read certain parts of it, as follows: The second aspect of the allotment situation appears to be of greater urgency than an earlier one mentioned. Under the act of June 25, 1910, it is practically, though not technically, mandatory that Indian-allotted land be sold on the death of the allottee. Even in the absence of a statutory direction such sale would be difficult to avoid under the conditions created by the allotment acts. The indefinite partitioning of allotments is not practicable; the Indian heir who may desire to remain on his allotment and cultivate it rarely would be able to buy out those heirs who might desire a liquidation of the heirship estate. The consequences are mathematically certain; the allotted Indians of the second generation larely became landless. By the time the third generation has arrived, substantially all of the allotted Indian land will have passed into white ownership. 239202-40- -3 |