Sidebilder
PDF
ePub

CALIFORNIA INDIANS JURISDICTIONAL ACT

TUESDAY, AUGUST 10, 1937

HOUSE OF REPRESENTATIVES,
COMMITTEE ON INDIAN AFFAIRS,

Washington, D. C.

The committee met, pursuant to notice, at 10 a. m., for consideration of S. 1651, Hon. Will Rogers (chairman) presiding.

The CHAIRMAN. The committee will be in order. This meeting is called today for a hearing on Senate 1651. If there is no objection I would like to have a copy of the bill appear in the record at this point, and immediately following the bill a letter received from the Secretary of the Interior relative to this measure.

Without objection the matter referred to will appear in the record at this point.

(The bill and the letter referred to are as follows:)

[S. 1651, 75th Cong., 1st sess.]

AN ACT To amend the Act entitled "An Act authorizing the attorney general of the State of California to bring suit in the Court of Claims on behalf of the Indians of California", approved May 18, 1928 (45 Stat. 602).

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Act of May 18, 1928 (45 Stat. 602), entitled "An Act authorizing the attorney general of the State of California to bring suit in the Court of Claims on behalf of the Indians of California", as amended by the Act of April 29, 1930 (46 Stat. 259), be, and the same is hereby, amended as follows:

SEC. 2. That section 1 of the Act of May 18, 1928 (45 Stat. 602), be amended to read as follows:

"SECTION 1. That for the purposes of this Act the Indians of California shall be defined to be all Indians who were residing in the State of California on June 1, 1852, and their descendants living on May 18, 1928, and others born thereafter and living on date of entry of judgment of the Court of Claims herein, and all Indians who are now on the Census Roll of the Indians of California as authorized by the Act of May 18, 1928 (45 Stat. 602), as amended, and who may be enrolled in addition thereto under the provisions of this Act." SEC. 3. That sections 2 and 3 of the Act of May 18, 1928 (45 Stat. 602), be amended to read as follows:

"SEC. 2. That all claims of whatsoever nature the Indians of California as defined in section 1 of this Act may have against the United States by reason of lands taken from them in the State of California by the United States without just compensation or for the failure or refusal of the United States to protect their interests in lands in said State, may be submitted to the United States Court of Claims by the attorney general of the State of California acting with associate attorneys selected by said Indians, and it is hereby declared that the loss to the said Indians on account of their failure to secure the lands and compensation provided for in the eighteen unratified treaties entered into with certain bands of said Indians in 1851 and 1852, and the loss to such Indians who were not parties to said unratified treaties of their said lands without just compensation therefor, is sufficient ground for relief, and jurisdiction is hereby conferred upon the said court, with the right of either party to appeal to the Supreme Court of the United States, anything in the Judicial Code of the United States to the contrary notwithstanding,

to hear, consider, and determine all such claims submitted to them, and the said courts shall decree just compensation therefor, notwithstanding the lapse of time or statutes of limitation or the fact that the same claim or claims have or have not been presented to any other tribunal, including the commission created by the Act of March 3, 1851 (9 Stat. L. 631), and the court shall determine, as near as may be, the acreage of the lands described in said unratified treaties and shall compute the value of said acreage at $1.25 per acre and shall render judgment for just compensation for the taking of said lands, and shall determine, as near as may be, the just value of the personal property, rights, services, facilities, and improvements set out, described, and proposed in the aforesaid eighteen unratified treaties and award just compensation therefor in any decree rendered hereunder, and it is hereby declared that it was the purpose of the Congress that the Commission appointed to negotiate treaties with the Indians of California should negotiate the same kind of treaties with all of said Indians and it is the purpose of this Act to treat those Indians not parties to said unratified treaties the same as if similar treaties had been negotiated with them, and the court shall consider that such unnegotiated treaties, if negotiated, would have commuted the claim of occupancy of those Indians, not parties to the unratified treaties, into reduced acreages and into pledged goods and services in the same ratios as that which the court shall find to have been promised in the said unratified treaties. To this end and under this declared policy of the Congress, the court shall find and determine as near as may be on the evidence submitted and such finding and determination shall be final and conclusive upon the parties, the number of bands who were parties to the eighteen unratified treaties and the number of bands with whom no treaties were negotiated, and in lieu of more definite and conclusive evidence the court is hereby instructed to receive and accept official documents, maps, and records, including reports, records, and maps in the possession of the Smithsonian Institution, and depositions of experts, as sufficient proof. And the court shall find that each band of those Indians not parties to said unratified treaties is entitled to compensation for the wrong done and loss inflicted limited to the average amount allowed each band of those Indians who were parties to said unratified treaties and shall render judgment therefor. The court in finding the number of bands shall consider a village or rancheria as a band.

"Any payment which may have been made by the United States or moneys heretofore expended for the benefit of the Indians of California made under specific appropriations for the support, education, health, and civilization of Indians of California, including purchases of land, shall not be pleaded as an estoppel but may be pleaded by way of set-off against the total amount found due the treaty and nontreaty Indians. The court is hereby authorized and directed to hear, determine, and fix reasonable fees for the attorneys, and the compensation for other persons, for services rendered which the court may determine to have merit and value for the benefit of the Indians of California since approval of the Enabling Act of May 18, 1928, on a quantum meruit basis for such services, less any amount that the court upon evidence submitted may find to have been received on account of such services, such fees and compensation not to exceed 5 per centum of the amount recovered, and the court shall find and fix, on the evidence presented, reasonable expenses incurred in the performance of such services, and shall deduct from such finding any amount which the court finds has been paid as expenses for such services, and the difference shall be the amount finally fixed as reasonable expenses, and such fees and compensation and expenses shall be paid by the Secretary of the Treasury out of the appropriation made by Congress in the payment of any decree rendered and the balance of such appropriation shall be placed in the Treasury of the United States to the credit of the Indians of California and shall draw interest at the rate of 4 per centum per annum and shall be thereafter subject to appropriation by Congress for the benefit of the Indians."

"SEC. 3. That the Act of May 18, 1928 (45 Stat. 602), be amended by striking from section 6 thereof the following words: 'and no part of said judgment shall be paid out in per capita payments to said Indians.'"

SEC. 4. That section 7 of the Act of May 18, 1928 (45 Stat. 602), as amended by the Act of April 29, 1930 (46 Stat. 259), is further amended by adding the following proviso: "Provided further, That the Secretary of the Interior is hereby authorized and directed to allow one year from the date of entry of judgment of the Court of Claims in which to receive applications for enroll

ment of Indians residing in the State of California on June 1, 1852, and their descendants living on May 18, 1928, and others born thereafter and living on the date of judgment, not now on the Census Roll of the Indians of California under the Act of May 8, 1928 (45 Stat. 602), as amended and the Secretary of the Interior shall have six months thereafter to approve such supplemental roll, at the expiration of which time the roll shall be forever closed and thereafter no additional names shall be added thereto.

"The right to present the claims hereunder to the Court of Claims either by original petition or amendment to the petition now pending in the court is extended to any time prior to the entry of judgment,'

[ocr errors]

SEC. 5. That the Act of May 18, 1928 (45 Stat. 602), be amended by adding a new section as follows:

"SEC. 8. The claims of the Indians of California may be submitted to the United States Court of Claims by the attorney general of the State of California acting with associate attorneys selected by said Indians and notwithstanding any provision in the Act of May 18, 1928, or in the Judicial Code of the United States to the contrary, any five hundred or more of said Indians, who are eighteen years of age or over, enrolled as Indians of California under existing law, may within ninety days after the approval of this Act serve notice upon and file with the Secretary of the Interior a statement signed by them stating that they have retained an attorney or attorneys therein named, and the said Secretary shall within thirty days after the receipt of each of said statements certify to the Court of Claims the number of Indians signing each of said statements who are qualified to sign as herein provided, and immediately thereupon such attorney or attorneys thereby become associate attorney or attorneys with the attorney of record, provided there shall be only one attorney selected for each five hundred qualified signers, and shall have the duties, responsibilities, and authority usually vested in associate attorneys to the end that the said Indians may have their claims hereunder adjudicated with the advantage of their selected attorney or attorneys and the Court of Claims is hereby instructed to recognize such attorney or attorneys so selected as associate attorney or attorneys of record and shall order that notices of all proceedings in said suit thereafter be sent to all such associate attorneys, and the attorney general of California shall continue as principal attorney of record. The Court of Claims is authorized and directed to fix and determine a reasonable fee for such attorney or attorneys on a quantum meruit basis for services rendered and the total amount paid for all services whether to attorneys or other persons acting for the Indians of California since the date of the Enabling Act of May 18, 1928, shall not exceed 5 per centum of the judgment rendered hereunder, and shall determine and fix necessary and proper expenses, including compensation for experts and other persons, incurred in the preparation and prosecution of the suit and such fees and expenses as determined by the court, shall be paid by the Secretary of the Treasury out of the appropriation made by Congress in payment of any judgment rendered."

Passed the Senate July 22 (calendar day, August 6), 1937.
Attest:

[blocks in formation]

MY DEAR MR. CHAIRMAN: Reference is made to your verbal request of August 6 for a supplemental report upon S. 1651, passed by the Senate August 6, a bill to amend the act entitled "An act authorizing the attorney general of the State of California to bring suit in the Court of Claims on behalf of the Indians of California", approved May 18, 1928 (45 Stat. 602).

On April 28, 1937, I supplied to the House and the Senate Committees on Indian Affairs a report upon two bills, S. 1651 and S. 1779. In that report, which disapproved S. 1651 in its entirety, I stated with some fullness of detail the considerations which, in my opinion, would justify an amendment to the California Indian Claims Act making possible or probable an increased net judgment to the California Indians.

In the same report I pointed out that the suit under the existing jurisdictional act, now pending in the Court of Claims, is being conducted for the Indians by the attorney general of California without fee, pursuant to the existing jurisdictional act and to a legislative act of the State of California, and I stated: "He (the attorney general of California) has proceeded, as I believe the record fully proves, with due diligence." I pointed out that the language of S. 1651, importing additional attorneys into the conduct of the impending suit, was undesirable.

S. 1651, as passed by the Senate, goes far beyond my general recommendation in the matter of increasing the probable net award to the Indians. Recovery under the existing act will be in an amount somewhat more than or somewhat less than $7,000,000 the principal factor of uncertainty being the total of the set-offs which the Court of Claims may allow to the Government. Under S. 1651, as passed by the Senate, the recovery, except for the special feature mentioned below, would be somewhat more than or somewhat less than $18,000,000, the factor of uncertainty being again the total of the set-offs which might be allowed to the Government-a total which would be identical under the existing act and the amending bill. But in addition, there have been placed in S. 1651, in a series of apparently controlling contexts, the words "just compensation." These words, in the contexts as used, probably would have the effect of directing the Court of Claims, under the decision of the Supreme Court in the case of the Shoshone Tribe of Indians v. United States (299 U. S. 476), to award interest at 5 percent from the year 1852. The total of interest might be in excess of $78,000,000, bringing the total judgment to $96,000,000. So huge a recovery obviously is not to be recommended.

S. 1651, as passed by the Senate, conflicts in a direct way with my earlier report by allowing any group of 500 or more Indians to introduce attorneys of record into the case, and by allowing payment to such attorneys in an amount up to 5 percent of the judgment.

The fee which might be claimed by and allowed to such attorneys could total $900,000, if interest were not allowed by the court, or $4,800,000, if interest were allowed.

I call attention to the exceedingly simple and the all but automatic character of the procedures in the Court of Claims under the existing act, and equally under the amending bill. The existing act fixes a recovery at $1.25 an acre for a known acreage of about 8,800,000, and adds to this total the value of goods and services promised under certain treaties which were never ratified. It limits the Government's counterclaims to special appropriations for the benefit of California Indians. S. 1651 would approximately double the gross award, by directing that the court shall consider that the tribes or bands not signatories to the unratified treaties were entitled to as much consideration, tribe by tribe and band by band, as those which were signatories, and that the total of gross judgment for the California Indians shall be increased accordingly. The question of interest would be solely one of law. The limitation on the Government's counterclaims is preserved in the pending bill. The number of nonsignatory tribes approximately equaled the number of the signatory tribes. S. 1779 reduces the element of proof to "official documents, maps, and records, including reports, records, and maps in the possession of the Smithsonian Institution, and the depositions of experts."

In other words, although the suit, a peculiarly simple one with an outcome largely fixed by the act itself, is now being conducted with no fee chargeable against the judgment, and is being conducted with efficiency and with as much expedition as the Government's own actions have permitted, it is now proposed by S. 1651 to allow the injection into the suit of attorneys who might number as many as 10, and who, although they could not render substantial services, would be allowed by the language of the bill to claim up to 5 percent of a very large award. If only a single group of 500 Indians should petition for representation by an attorney, the attorney could ask for 5 percent of the total judgment, at the expense of all of the 23,000 California Indians.

The injury to the Indians would not, I suggest, be limited to the necessity imposed on all of the Indians to make payment, if any group of 500 wanted it, in an amount of hundreds of thousands and even millions of dollars for service without substantial value. The orderly conduct of the jurisdictional suit would be imperiled and might be entirely upset.

In the light of the facts here set down, I cannot give approval to S. 1651 in the form as reported by the Senate Committee on Indian Affairs. My

previous report (Apr. 28, 1937) disapproved S. 1651 in the form as introduced in the House.

The Acting Director of the Bureau of the Budget has advised "that neither S. 1651 nor S. 1779 would be in accord with the program of the President, nor would S. 1779, in the form in which you recommend its enactment, be in accord therewith."

Sincerely yours,

CHARLES WEST, Acting Secretary of the Interior.

The CHAIRMAN. We have some representatives from the Attorney, General's office and one from the office of the Secretary of the Interior in addition to the Commissioner with us this morning. Because we have only a short time for our meeting this morning, we are going to be brief. The first witness will be Mr. Holtzoff of the Department of Justice.

STATEMENT OF ALEXANDER HOLTZOFF, SPECIAL REPRESENTATIVE OF THE ATTORNEY GENERAL

Mr. HOLTZOFF. Mr. Chairman, and gentlemen of the committee, Mr. Stormont of the Department of Justice, and myself have come here pursuant to the request of the chairman of this committee. In 1928 a jurisdictional bill was passed by the Congress to permit certain Indians of California to bring suit in the Court of Claims and the bill that is before the committee today seeks to amend that jurisdictional bill. The causes of action, or the alleged causes of action, arose out of certain transactions and acts that were carried out shortly after California became a part of the United States, around 1850. At that time there were a large number of small tribes and bands of Indians living in various portions of the State of California and many of them were driven from their homes and deprived of their lands by the settlers, many of whom came seeking gold. Thereafter Commissioners were appointed by the Government to negotiate treaties with some of these tribes in order to make good to them for the losses that they claimed to have sustained. Eighteen treaties were negotiated with approximately 90 different bands. These treaties were submitted to the Senate for ratification, and they were rejected by the Senate. I believe, if my recollection serves me right, that they were unanimously rejected.

Now, the Jurisdictional Act of 1928 permits these bands of Indians, who were parties to unratified and rejected treaties, to bring suit in the Court of Claims against the United States as if those treaties had been ratified, and the amount of recovery was to be what the plaintiffs would have been entitled to receive had the treaties been. ratified and carried into execution. Now, there are a large number of other tribes or bands of Indians in California who were not parties to any of these 18 treaties. We have no definite information as to the number of these nontreaty bands, if I may coin such a word, but we are informed by the Interior Department that they number about the same as the bands that had become parties to these treaties. In other words, about 90 bands more.

Now, the purpose of the present bill would be to enlarge the Jurisdictional Act of 1928 so as to permit these nontreaty bands or tribes to bring suit against the United States on the assumption that the Government would have made a treaty with them, and the assump

« ForrigeFortsett »