hereby declared that the taking and the loss to those Indians who were not parties to the said unratified treaties of their said lands without compensation therefor, and the failure of the United States to protect their interest in said lands is sufficient ground for equitable relief, 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 unratitfied 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, the 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 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. 4. 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. 5. 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 enrollment of Indians residing in the State of California on June 1, 1852, and their descendants living on May 18, 1928, and other 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 18, 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."

SEC. 6. 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 Revised Statutes 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 may 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. The CHAIRMAN. This bill was sent to the Department of the Interior, as is customary, and a reply has been received, as follows [reading]: MARCH 24, 1939.

Hon. ELMER THOMAS,

Chairman, Committee on Indian Affairs, United States Senate.

MY DEAR MR. CHAIRMAN: Reference is again made to your request for a report on S. 1402, designed to amend the act of May 18, 1928 (45 Stat. 602), authorizing the attorney general of the State of California to file suit in the Court of Claims against the United States on behalf of the Indians of that State.

The act of May 18, 1928, was intended to solve a problem which arose in 1851-52 with the failure of the United States Government properly to protect the rights and interests of certain of its Indian wards. The failure of this act satisfactorily to solve the problem can only be understood in the light of its historical background and circumstances which have arisen since its passage. The essentials of the record are here set forth as a basis for judgment by the present Congress and to explain the controlling facts which were recognized in the act of May 18, 1928.

1. HISTORICAL

Under the Spanish law, the aboriginal occupancy of the California Indians did not constitute title to the land. Certain royal grants of title were made to the Pueblo Tribes of New Mexico by the Spanish Sovereign. No such grants were made to the California Indians, who numbered 200,000 or more. These Indians, peaceful and pastoral by nature, comprised something more than 300 bands and tribes, and occupied practically the entire State of California, aggregating about 100,000,000 acres. Some 34,000 of these Indians are known to have been christianized by the Spanish padres and dwelt on lands whose title was vested by grant in the mission orders, but not in the Indians themselves.

In 1834, under the Mexican regime, the California missions were secularized and their lands expropriated. The first major extermination of California Indians then took place. A few of the Indians who had come from the San Joaquin Valley returned there. In southern California those who were able to return to the mountains saved themselves from extinction, but the great body of the mission Indians undoubtedly perished where they had lived.

California Indians thus had no legal or equitable title to the land recognized in the white man's law when brought under the jurisdiction of the United States by the treaty of Guadalupe Hidalgo on February 2, 1848. This treaty laid a foundation upon which title in the Indians might have been built, but was not. The treaty stated:

"The sacredness of this obligation shall never be lost sight of by the said Government when providing for the removal of the Indians from any portion of the said territory or for it being settled by the citizens of the United States, but, on the contrary, special care shall then be taken not to place its Indian occupants under the necessity of seeking new homes by committing those invasions which the United States have solemnly obligated themselves to restrain."

Little, if any, pretense of compliance with this solemn treaty obligation was ever indulged in. On March 3, 1851, Congress created a Private Land Claims Commission for California. Section 16 of the act creating this Commission provided: "That it shall be the duty of the commissioners herein provided for to ascertain and report to the Secretary of the Interior the tenure by which the mission lands are held, and those held by civilized Indians, and those who are engaged in agriculture or labor of any kind, and also those which are occupied and cultivated by Pueblos or Rancheros Indians."

The Commission went to California, but no Indians presented those claims which might have been found valid. The United States, as guardian of the Indians, did nothing to present claims in their behalf. The Commission itself took no initiative in carrying out its instructions under the above-quoted section of the law. Hence no Indian claims became vested; the statute of limitations operated, and the possibility of securing a legal or equitable title through the fact of occupancy when reinforced by the language of the treaty and of the Land Claims Commission Act was extinguished forever.

Simultaneously, in 1851, the Government sent another Commission to California for the purpose of negotiating treaties with the California Indians. This Commission actually negotiated and entered into 18 treaties with about 120 of the 300 or more bands and tribes of California Indians. In consideration of the signatory Indians relinquishing all right and claim to the lands previously occupied by them, the Government promised to set aside approximately 8,800,000 acres in California as reservations. In addition, the Government promised to furnish various goods and services of a value probably exceeding $1,500,000 with which the Indians might be set up and educated in the white man's way of living.

These 18 treaties were signed by President Fillmore and transmitted to the Senate with a recommendation for ratification on June 1, 1852. By this time, however, California had been admitted to the Union and the gold rush was in full swing. The California Legislature appraised the proposed reservation areas at "not less than $100,000,000" and gave written instructions to its Senators to do everything possible to defeat ratification of the 18 treaties. For reasons largely political, the Senate unanimously refused to ratify the 18 treaties and ordered them placed under a ban of secrecy, which remained in force for over 50 years. Therefore, no legal or equitable title came into being through these proposed treaties.

For want of funds with which to continue its work, the treaty-making Commission ceased its labors. Consequently, no treaties whatsoever were negotiated or executed with the remaining tribes and bands of California Indians, although it was originally intended by Congress that the Commission should enter into treaties with all the Indians in California. Morally and for all practical purposes, therefore, the nontreaty Indians stand on the same basis as those in whose behalf the unratified treaties were negotiated, in that neither the treaty nor the nontreaty Indians have ever been compensated for the fertile areas of which they were deprived.

Between 1850 and 1880, a ruthless extermination of the California Indian population took place on a scale unequaled anywhere else in the country. Dr. C. Hart Merriam, of the Smithsonian Institution, the acknowledged authority on California Indian history, stated to the House Committee on Indian Affairs on April 28, 1922 (p. 207):

"In 6 years, during the height of the gold rush, they apparently exterminated at least 50,000 Indians. They destroyed their villages and homes, killed off hundreds if not thousands of the men, and enslaved the women and children. "They (the Indians) were regarded as enemies by the gold seekers. It is a matter of history and common knowledge in California that the miners in most of the camps wanted the Indian women and took them; that if the

husbands and brothers objected they killed them and, in many cases, they took the women to their camps, burned down the villages and burned all the food supplies, acorns, dried salmon, and eels that were put up for the next winter's provisions.

On the Klamath and Salmon Rivers the giant miners' hose nozzles were aimed at Indian villages, dumping houses down into the canyons below."

In the years that followed the gold rush there occurred a more gradual but none the less implacable uprooting and extermination of those Indians who had survived masacre. This period was described by C. E. Kelsey, special agent for the California Indians, in a report dated March 21, 1906, which is contained in the House hearings of March 23, 1920, page 123, dealing with the first jurisdictional bill for the California Indians (H. R. 12788):

"At first the Indians occupied pretty fair land and had unusually neat little gardens and orchards, especially of peach trees. These tidy little places would attract the attention of some frontiermen, who would then file on the place and summarily kick the Indian out. Several hundred of these cases have been reported. One man still in middle life has been evicted seven times in this manner. It is not strange that the northern California Indians have ceased to have gardens, when any appearance of thrift is warrant for their ejection from the premises. Indeed, most of them at the present time are living on land, where, for lack of water or worthlessness of the soil, gardens are impossible. Most of the Indians have now been crowded out of anything like good soil and are found in waste places not having value enough to attract anyone else."

Allotments by the Government of land on the public domain did little to alleviate the situation. Special Agent Kelsey found that over 300 allotments were absolutely desert, being sagebrush plains without water or the hope of water. Six hundred more allotments were located in the Sierra Nevada Mountains, where the land inclined up to an angle of 45° or more and the snow, frequently falling 30 to 40 feet deep, lay from October to June.

The Indian population of more than 110,000 still surviving at the beginning of American sovereignty was reduced to less than 20,000 before 1880. At the present time, California Indians of all degrees of blood number approximately 25,000. The Government now holds in trust for the California Indians about 568,000 acres, much of it of poor and unsatisfactory quality. There has never been any adequate assistance in matters of credit, agricultural organization, or habilitation. It must be admitted that the expenditures of Federal funds across 50 years of time have left the great majority of these Indians in a state of acute poverty.

2. THE JURISDICTIONAL ACT OF MAY 18, 1928 (45 STAT. 602)

Beginning in 1920, jurisdictional bills were introduced almost yearly in Congress for the purpose of providing a measure of compensation to the California Indians for the losses and suffering inflicted upon them, as the direct result of the failure of the Federal Government to make adequate provision for them. The original bill proposed that the Indians be authorized to sue the United States in the Court of Claims for the reasonable value of the lands, goods, and services promised them in the 18 unratified treaties. This bill simply permitted the Indians to sue on whatever legal or equitable ground might be found by the court to exist. The difficulty was that no such legal or equitable ground existed for the reasons already stated. This was recognized by the Department of the Interior in 1922 in reporting on a similar bill. It was pointed out that there seemed to be no necessity for any action by the Court of Claims, and that much expense and delay would be avoided by a direct appropriation. In other words, any settlement to be made would have to be a settlement based upon a right of recovery or of compensation newly created by the Congress as an act of grace.

The California Indian jurisdiction bill which finally became law on May 18, 1928 (45 Stat. 602), set up a wholly artificial mechanism for recovery by the Indians through the medium of a Court of Claims suit. It created, de novo, as an act of grace by Congress, a right to a severely limited recovery. The recovery was to be $1.25 per acre for the total area of about 8,800,000 acres which had been promised as reservations to the Indians signing the 18 unratified treaties. In addition, the Court of Claims was practically directed to award the Indians the reasonable value of the goods and services also promised in the unratified treaties. The act permitted the Government to claim as

offsets against such gross recovery the total amount of specific appropriations made for the benefit of the California Indians since 1852 and no more. It was reported to Congress by the Interior Department that such set-offs (as of 1928) would not exceed $4,199,793.93.

One feature of this act is to be borne in mind. While it purported to provide a settlement with all California Indians, it limited recovery to the settlement which was proposed in 1852 to be made with less than one-half the Indians in that State. In other words, it would compensate all the Indians for their combined losses and suffering on the basis of the compensation promised to less than half their number. This was wholly illogical, for the nontreaty Indians suffered losses identical and wholly commensurate with those suffered by the treaty Indians. The nonnegotiation of treaties with the nontreaty Indians was a circumstance wholly beyond their control.

Suit was duly instituted in the Court of Claims under this Jurisdictional Act of 1928. The set-off or counterclaim clause of the act made obligatory a prolonged examination of fiscal records back to 1848 by the General Accounting Office. This examination was not completed until 1934. The report of the General Accounting Office, when finally completed, listed as proposed setoffs a total of $12,174,231.41. Additional special appropriations of approximately $3,257,434 have accrued from 1928 to date. These two totals, if allowed by the court, would more than offset the gross recovery intended by Congress and made possible by the act of 1928. In this contingency, the Indians would get less than nothing. The presumption is that substantial amounts of the total would not be allowed, inasmuch as they were expenditures for the boarding-school care of Indians from other parts of the country. Each year since 1934 bills have been introduced in Congress to procure modification of the existing act with a view to (a) inject private attorneys into the conduct of the suit, and (b) increase the basis of recovery. In 1936 the Seventy-fourth Congress passed a bill which was vetoed by the President on the ground that its formula for recovery was extremely indefinite and might possibly result in the establishment of a dangerous legal precedent.

In the first session of the Seventy-fifth Congress, the Senate passed S. 1651, but after substantial modification by the House Indian Affairs Committee, this bill died without reaching a vote in the House.

3. THE TWO BILLS NOW PENDING IN CONGRESS-H. R. 3765 AND S. 1402

Two bills have been referred to me for report. They both contain identical provisions by way of a formula for increasing the amount of recovery, which is satisfactory to the Office of Indian Affairs. In addition, H. R. 3765 contains a provision specifically outlawing any payment of interest on the principal recovery, which seems desirable. S. 1402, on the other hand, contains detailed provisions for payment out of the ultimate recovery of fees for services alleged to have been rendered by attorneys and others, and for the injection of privately employed attorneys into the conduct of the case. These latter provisions are in harsh conflict with what has been my consistent attitude toward this particular case. For the reasons set forth hereinafter, I cannot recommend their enactment.

4. THE PROPOSED FORMULA FOR INCREASED RECOVERY

Both S. 1402 and H. R. 3765 would operate to increase the gross recovery possible, in a simple and logical manner. The wording of the important clauses of these bills is identical. They simply declare that it was the intention of the Government in 1852 to execute treaties with all California Indians on the same basis as it negotiated the 18 treaties actually executed but never ratified. The Court of Claims, in rendering the judgment authorized by the existing law, is authorized to proceed as though treaties, in fact, had been executed with all California Indians. The court is directed to find that each band of the nontreaty Indians is entitled to compensation for their losses, limited to the average amount to be allowed each band of the treaty Indians and to find judgment therefor.

The treaty promises, in terms of the average per band or tribe, thus are made the measure of compensation to be granted on the basis of the total number of bands and tribes found to have actually existed in 1852. This is a much more logical formula than that contained in the existing act, as it takes into account the fact that the failure of the Commissioners to negotiate addi