CALIFORNIA INDIANS JURISDICTIONAL ACT MONDAY, MAY 6, 1935 UNITED STATES SENATE, Washington, D. C. The committee met, pursuant to call, at 10:30 a. m., in room 424-A Senate Office Building, Senator Elmer Thomas (chairman) presiding. Present: Senators Thomas (chairman), Frazier, and Donahey. Also present: Hon. John Collier, Commissioner of Indian Affairs; S. M. Dodd, Chief Finance Officer, Indian Service; Hon. Marion Butler and John S. Meaney, Washington, D. C., representing Mission Indians; Frederick G. Collett and A. K. Shipe, representing California Indians, Inc. The CHAIRMAN. The committee will be in order. The first bill to be called up will be Senate no. 1793, 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. L. 602). Without objection, copy of the bill will be inserted at this point: [S. 1793, 74th Cong., 1st sess.] 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. L. 602) Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That an Act of Congress 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" (Public Law Numbered 423, Seventieth Congress, first session), approved May 18, 1928, be, and is hereby, amended by striking out section 2 and section 3, and inserting in lieu thereof the following: "SEC. 2. 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 and for the loss of the use of the same, may be submitted to the United States Court of Claims by the Attorney General of the State of California acting for and on behalf of 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 lands to which they had title rising from occupancy and use, without just compensation therefor, is sufficient ground for equitable 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, to hear, consider, and determine all such claims submitted to them and the said courts shall settle the equitable rights therein and 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 pre 1 sented to any other tribunal, including the commission created by the Act of March 3, 1851 (9 Stat. L. 631): Provided, That the value of such lands of which the Indians of California have been deprived shall be determined, as near as may be, considering the price of lands as classified under the public and mineral land laws of the United States: Provided, however, That the minimum value shall be fixed at $1.25 per acre and that the courts shall render just compensation for the value of such lands and for loss of the use of the same: And provided further, That the courts shall consider and determine, as near as may be, the value of the personal property, rights, services, facilities and improvements set out and described in the aforesaid eighteen unratified treaties and include just compensation for the value and loss of the benefit of the same in any decree rendered hereunder. 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 pleased by way of set-off; but no such payment or appropriation shall be treated as a set-off unless it shall appear that the same was received by said Indians or that such expenditure was actually beneficial to said Indians. "SEC. 3. That the Indians of California or any group thereof that come within the purview of section 1 of said Act shall have the right to be represented by an attorney or attorneys of their own selection under contract or contracts approved by the Secretary of the Interior, and upon final determination of such suit the Court of Claims shall have jurisdiction and is hereby directed to fix and determine a reasonable fee for such attorney or attorneys, the aggregate amount of such fees not to exceed 10 per centum of the amount recovered, based upon actual services rendered, and in addition thereto all necessary and proper expenses incurred in the preparation and prosecution of the suit and such fees and expenses shall be paid by the Secretary of the Treasury out of any decree rendered when appropriation therefor is made by Congress and the balance of such judgment or decree shall be placed in the Treasury as provided in section 6 of the Enabling Act. That the sum of $15,000 be, and the same is hereby, authorized to be appropriated, out of any moneys in the Treasury not otherwise appropriated, to be used by the attorney or attorneys of said Indians for the taking of testimony for use in the Court of Claims in the pending cause numbered K-344 entitled "The Indians of California against The United States", the same to be expended on vouchers to be approved by the Secretary of the Interior, and the same shall be reimbursable from any decree rendered hereunder. "The time for the receipt of applications for enrollment of said Indians of California, as provided for in the original Enabling Act, is hereby continued and extended to include one year from date of approval of this amendment, and within three months thereafter the Secretary of the Interior shall have the right to alter and revise the roll, at the expiration of which time the said roll shall be closed for all purposes, and thereafter no additional names shall be added thereto. "The time for filing amendments to the petition is hereby continued and extended to any time prior to entry of judgment." Hon. ELMER THOMAS, Chairman Committee on Indian Affairs, United States Senate. APRIL 23, 1935. MY DEAR MR. CHAIRMAN: Further reference is made to your letter of February 12, requesting a report on S. 1793. The bill S. 1793 would amend the act of May 18, 1928 (45 Stat. L., 602). The act of May 18, 1928, was enacted by Congress for the object of securing for the California Indians a definite but strictly limited recovery. The present bill can best be evaluated through a summary of the historical record. Prior to white occupancy, California was one of the more densely populated areas in the territory which later became the United States. The Indians numbered not fewer than 150,000, and possibly they numbered as many as 250,000. The possessory rights of the more than 200 California Indian tribes and bands were disturbed to some extent, but not in the greater area of the State, by the Spanish and Mexican sovereignties. Prior to the cession of California to the United States, in 1848, land grants to the number of more than 500 were made, which grants were confirmed under the California Private Land Claims Act of March 3, 1851 (9 Stat. L., 631). The total area of these private grants cannot be stated without a lengthy research, but it may safely be estimated that they would not include an area of more than 5 percent of the present area of California, the total area being 99,617,080 acres. These grants largely were located on or near the coast from the Mexican line northward to the northern boundary of what is now Sonoma County. All of the remaining area of California, at the time of the signature of the treaty of Guadelupe Hidalgo, was in the exclusive occupancy of the Indians. This Occupancy was an entirely definite fact and status. The Indians did not roam at large over the vast area. Each of the more than two hundred tribes and bands occupied, to the exclusion of the other tribes and bands, a well-defined area, the boundaries of which were understood and respected by neighboring tribes. Extensive research by ethnologists has produced the data for an aboriginal map of the entire area, with the Indian tribal or national boundaries set down. When American sovereignty was begun, the Indians in California numbered not fewer than 110,000. They were dispossessed with complete ruthlessness, and for several decades their condition was not much more respected than that of predatory wild animals, although the Indians of California had never been predatory. Through starvation and through actual massacre, the population of the Indians in California was cut down from the minimum figures of 110,000 in 1850 to a maximum figure of 20,000 in 1880. The world's anals contain few comparable instances of swift depopulation-practically, of racial massacre-at the hands of a conquering race. About 3 years after the treaty of Guadelupe Hidalgo, treaties were negotiated with a large number of California tribes and bands, and these treaties set aside proposed reservations totaling about eight million acres in area. The treaties were not ratified by the Senate and they were never made effective; the Indians were never assembled within the proposed boundaries, nor were those inside the proposed boundaries freed from molestation by whites. In and out of the proposed boundaries, the Indians were hunted creatures, and their lands were taken without compensation. There remain, of the large aboriginal population, about 5,000 pureblood Indians and an additional 17,000, approximately, of persons of some degree of California Indian blood. These surviving Indians are found in many parts of California, and their condition in some regions closely approximates that of their white neighbors, while in other regions thay are as yet sequestrated upon small and barren reservations. The proposed bill, while offered as an amendment to the act of May 18, 1928, in fact would practically supersede that act. The proposed act would definitely recognize that the loss by the Indians of those lands "to which they had title arising from occupancy and use without just compensation therefor is sufficient ground for equitable relief"; and the bill would direct that for all such lands lost, the Indians should be paid a minimum of $1.25 per acre or a maximum which would represent the actual value of the lands at the time lost, as classified under the public and mineral land laws of the United States." Additional compensation is decreed, equaling the value of certain services and goods which were promised in the unratified treaties, but this factor is negligible in the total result. I am advised that the land classification operations of the geological survey for California have not yet been completed. Classification, to date, has been as follows: The total area for which occupancy probably could be demonstrated and for whose loss an award probably could be made would be not less than 90 million acres. As stated above, aboriginal occupancy, continued into the period of American sovereignty, probably can be demonstrated for all of the State of California except that portion covered by the land grants made prior to the American sovereignty. The bill limits the set-off claims which the government could plead to a total that would not exceed 5 million dollars, approximately. The bill leaves unaltered the provision of the act of May 18, 1928, which would require that the award be not distributed in per capita payments but be used as a capital fund for the economic upbuilding of the surviving Indians. There can be little argument concerning the fundamental merits of the case. The existing California jurisdictional act, promising a net award of seven or eight million dollars, is in effect a gratuitious, although indirect, settlement by Congress, and it does not pretend fully to compensate the Indians for their violated right of occupancy. It will be for Congress to determine what measure of compensation is due to the survivors of those more than 100,000 Indians who were done to death by actions and laches of the guardian Government between the years 1848 and 1880. Section 3 of the bill renews the attempt, made in the last session of Congress and made in another pending bill in the present session of Congress (S. 1218 and H. R. 4132), to eject from the conduct of the suit the Attorney General of California and to substitute an indefinite number of attorneys representing one or more of the numerous groups of California Indians. I have reported previously on this proposal as embodied in the other bills here referred to. The Indians of California are not an organized body, and no method has been advanced by which these more than 20,000 widely scattered Indians, on numerous reservations, can be represented by one attorney or group of attorneys. The Attorney General of California is now conducting the California Indian jurisdictional suits pursuant to the act of May 18, 1928. He has shown due diligence; and there is no conflict of interests, but on the contrary a unity of interests, between the State of California and its non-Indian citizens on the one hand, and the Indians of California on the other. No land-title would be clouded, and no question of the ownership of any property would be raised under the proposed act; hence it would be entirely to the advantage of the State of California and of its citizenry as a whole to procure the maximum of possible award. The presentation of the case under the pending bill, as under the now operative act, would necessarily be a presentation of records and not a presentation of the testimony of living witnesses. During the last fifteen years, large sums have been collected from the Indians of California to pay lawyers in connection with their claims. The solicitations and collections have gone forward unabated in spite of the action by Congress vesting the conduct of the California Indian jurisdictional suit in the Attorney General of California. Misrepresentations have been recklessly employed in persuading the California Indians to surrender their meager cash to these attorneys and to their nonlegal associates. Identical solicitations are now going forward, and identical exploiting organizations continue at work. In my opinion, to displace the Attorney General of California and to substitute a miscellany of adventuring private attorneys would gravely jeopardize the success of the litigation and would force the payment of large sums, not earned, to white men out of the judgment which Congress has intended for the Indians. This section further provides for reopening the roll of the California Indians to admit others at any time prior to date of judgment. The original act was amended to permit an additional 2 years in which applications for enrollment could be filed with the enrolling official. At that time we had an organization in California for the express purpose of determining the rights of California Indians to enrollment as authorized by the act of May 18, 1928. Wide publicity was given by the Government representatives in California to the provisions of the original act and to the amendment. Upon completion of the roll, the organization established for that purpose was disbanded and we have no way by which we could reopen the rolls and investigate other claims, of doubtful merit, except at new expense to the Federal Government. It is believed that the work of the enrollment officials was well performed, and no good purpose can be served by reopening the rolls now. If this legislation is to receive favorable action I would suggest several changes. The text appearing on page 5, in lines 12, 13, and 14, relating to time of filing amended petitions is unnecessary. Section 4 of the act of May 18, 1928, makes adequate provision for amending the petition, in the language reading, "Said petition shall be subject to amendment." This will permit filing of amendments to the original petition up to date of judgment. There is an erroneous statute citation in the title of the bill. The figures "43" should be changed to "45". The citation appearing on page 1, in lines 6 and 7, should be changed to read "45 Stat. L., 602". The Acting Director of the Bureau of the Budget advised by letter of April 5 "that the proposed legislation would be in conflict with the financial program of the President. Sincerely yours, (Signed) T. A. WALTERS, Acting Secretary of the Interior. |