CALIFORNIA INDIANS JURISDICTIONAL ACT

MONDAY, MAY 13, 1935

UNITED STATES SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, D. C.

The committee met, pursuant to call, at 10:30 a. m., in room 424, Senate Office Building, Senator Elmer Thomas (chairman) presiding. Present: Senators Thomas (chairman) and Frazier.

Also present: Hon. John Collier, Commissioner of Indian Affairs; Mr. S. M. Dodd, Chief Finance Officer, Indian Service; Hon. Marion Butler, Washington, D. C., representing Mission Indians; and Mr. A. K. Shipe, representing California Indians, Inc.

The CHAIRMAN. The committee will now resume; taking up the California bill, S. 1793, to see if we can make some further progress with it. Mr. Commissioner Collier, what was the result of the conference agreed to at our last meeting; what were the results of such conference?

Mr. COLLIER. Mr. Chairman, we had a conference, and did not arrive at any complete agreement, unless the attorneys have had further thoughts since our conference. I have here language from which I am not clear whether the attorneys are or not agreed; it was submitted to me by Mr. Butler.

Mr. BUTLER. I want to state for the information of the committee that the language submitted to the Commissioner at said conference has the unanimous approval of all the attorneys here and the Indians whom they represent; and further, that we are all opposed to some of the substitute amendments offered by the Commissioner because they would beat the bill. We should no longer give these Indians stones when they are asking for bread which they sorely need and richly deserve.

Mr. COLLIER. It seems to me that the better way would be to state two possbile grounds of action by the committee, and then let the committee decide or use its judgment as to what to do. The disagreement, or lack of agreement, if there be one, seems to have to do with my not being willing to agree to cut down the proposed award in as extreme a way as some of the attorneys are prepared to do. They want, of course, all the award they can get, but they are inclined to think they will have to take a greater reduction in order to get anything. My view is that the proposed reduction is so great as not to constitute a settlement, and one which I am certain would not be considered by the Indians as being a settlement, and I am certain that if it were made, they would come back to Congress for something more. I would like to see the Congress pass on that question as to what is the expedient thing to do.

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Now, I would be glad to state my views and then let the attorneys state their position in the matter.

Mr. BUTLER. Would you state yours, Mr. Commissioner?

Mr. COLLIER. It would seem to me Mr. Chairman, that the thing to do is indicated by simply an agreed restatement of the historical records. The California Indians were in possession of substantially the area of the State, less certain Spanish grants, at the time of American occupancy. They were not only in possession, but that possession was entirely definite and established, and they occupied this area much more densely then, for example, any of the Plains Indians ever occupied their areas. The Indian population was more dense than the population of any portion of the eastern seaboard.

At an early date after American sovereignty, the Government entered into negotiations with a portion of the California tribes. We do not know, numerically, whether it was half or less than half; it was only a part, and proposed treaties were made with those tribes, treaties guaranteeing areas of land totaling around 8,000,000 acres and making certain other undertakings to these tribes, the parties to the 18 unratified treaties.

Now, no negotiations were entered into with the other Indians at all. The 18 treaties, so-called, were never ratified; nothing ever evenuated from them, until in 1928, Congress authorized a suit, a suit which would rest upon these 18 treaties, which would obtain $1.25 an acre for every acre within the areas of the unratified treaties, and, in addition, the Indians could make claims for anything else in those treaties that had not been fulfilled, promises of goods and services; in other words, Congress retroactively validated those treaties for purposes of a jurisdictional suit and making claim against the Government.

One may say, then, that the undertakings entered into between the Government and this portion of the California Indians was now being fulfilled through the payment of money damages that will come out of this pending suit.

Now, the other Indians who were not negotiated with, who entered into no arrangement, the Government just went in and took all they had, took it by force, and took it in the most ruthless possible way; they were actually murdered; they were slaughtered; they were enslaved and worked to death; they were treated like predatory animals. In other words, while we took their lands, they were not compensated; they were shot; they were poisoned; they were enslaved; so it was not merely a taking of land as in the case of many other tribes, in violation of treaty rights. It was a taking of the lands by force of arms and a slaughtering of the people at the same time.

Now, it would seem to me that if Congress were going to act on an issue of straight justice, here is a chance, and that we ought to allow Congress to pass on this question of whether these Indians in this way so outraged and defrauded shall be allowed to make a recovery measured by the lands they lost.

Now, I am perfectly prepared to say that the recovery shall be limited to $1.25 per acre, because there is a long tradition of limiting the value of land in that way. That is a convenient figure that we have had for litigants, and I am perfectly willing that there should be that limit, rather than allow recovery on the basis of oil values, and gold values, that such a basis shall not be included; but it does seem to me that they

ought to be allowed to assert their right to at least the land value of $1.25 per acre for the land that was taken from them in this ruthless way. It seems to me that when the thing is put up to Congress in that way, it is easier to appeal to the head and to the heart of Congress. True, the Budget Bureau is opposed to it, but it presumably will be opposed to any of these proposals.

Now, I do not want to misdescribe the alternative proposition. The alternative proposal is that there shall be enacted a formula which would say that we should take the number of tribes or bands which were engaged in the unratified treaties, and divide the total award to be hereafter obtained by the number of these tribes or bands, and thus find out how much there is for each of the tribes or bands. Then we should count all the tribes or bands in the State and you would have that unit of, say, $100,000, and applying it to the number of tribes. or bands would have the effect of perhaps doubling the gross award. That formula simply deals with tribes or bands, without any reference to how many Indians there were in any given tribe or band. My objection is that beginning with the 1928 act, we have done something artificial; we have always recognized that this 1928 act is no genuine settlement. I do not think anybody has ever said that that 1928 act was an adequate settlement.

Now it is proposed to attempt a complete settlement by building upon that arbitrary and artificial formula of the 1928 act by this application of a methematical formula, and the Indians do not get much. In place of an award of 30 or 40 million, they would get a net award of 12, 15, or 17 million, and in my judgment it will be just as hard to pass the smaller sum as to pass the larger sum, and when you get the smaller sum you have not made a settlement. When you get the bigger thing you have something that should be taken as an honest settlement.

Mr. SHIPE. I think the Commissioner has made a very fair, comprehensive, and as far as I can see, accurate statement of the situation. The only difficulty that we have with it, with these suggestions, is the difficulty of getting it through Congress. If this committee can get it through the Congress, it would be entirely satisfactory to us, of course.

As I understand it, it would mean an award of probably around 40 millions. The other proposition would mean an award of probably, net award of probably 13 to 15 millions. There is no doubt in my mind, after studying this, but what the Indians of California are entitled to a great deal more than even the 40 million. There is no question about that, that it would be far short of a just or fair compensation for what has been taken away from them, but I do think that it is a matter that should be left to this committee to decide those two questions; that is, whether the amendments that are proposed or were proposed the other day, or whether we should adopt the suggested amendment now.

Mr. COLLIER. If I might add this one other thought for possible bearing upon the thing, the question of whether an award of $40,000,000 would be more than the Indians need. That practical question would be raised, Is that much money too much money to accomplish the economic rehabilitation of the 20-odd thousand Indians, 22 or 23 thousand? These Indians are now mostly in a very poor condition. Many of them have nothing in the world; they are landless.

The CHAIRMAN. Well, 40 millions would only give them $2,000 a piece.

Mr. COLLIER. They are landless, many of them. A certain other number of them have been put on land that is of no material use; the water cannot be developed; the growing season is too short to raise anything; mountain tops, lava beds. Certainly, I do not like to describe what we have done; it is incredible.

Others have land which is susceptible of development, but it depends on water, and the money for that water development is not now available. The housing conditions among these Indians are as poor as they are among any Indians. As you know, there has been no extension of credit to these Indians. So that I think one could easily say that $30,000,000 would not be an extravagant amount to use in an effort to put these Indians in a condition of self-support. I do not think it is an extravagant amount and when one compares it to other pending judgments, it does not appear as a large judgment. The Sioux tribes, relatively much better off than the California tribes and in very much better condition as to lands, are suing for many hundreds of millions, $700,000,000, under the Black Hill case, and they may make a recovery much larger than this outside figure that has been mentioned for the California Indians.

Senator FRAZIER. Well, does the 22 or 23 thousand include Indians that are descendents of the California Indians, but who do not live in the State of California.

Mr. COLLIER. Yes, but there are not many of them.

Mr. BUTLER. You might state that we have agreed as to those, that the roll should be reopened.

Mr. COLLIER. I concede that the argument made by Mr. Butler was well taken and that those Indians who were living outside the State of California-they are not very numerous, not very many of them that would not alter the total figure to any great extent. Mr. SHIPE. The total number would be about 24,000.

Mr. COLLIER. Many of the nonresident ones are over in Nevada, where they are in the same position as their brothers across the line, so that I think that on the whole, the question of whether the amount of money is an excessive amount for purposes of rehabilitation could easily be answered that it is not excessive and I cannot imagine anybody arguing that it is an unjust charge against the Government. I cannot imagine anybody arguing that it is in any way excessive, and I think that you should give Congress a chance to pass on it.

From the point of view of the Budget, the Budget is opposed to any of these plans, anyhow; we know that, and I should think that the President would be more willing to sign a bill that was simply rested upon facts, uncontroverted facts, and obvious justice, than to sign a bill which would appear as an incomplete settlement, quite an artificial settlement that would not satisfy the Indians, would not be accepted. by the Indians as final; they would be coming back here, and they ought to come back, so my judgment is that there is a better chance to pass the bill with that broad simple language than another bill with this complex and novel artificial mathematical formula.

The CHAIRMAN. Well, as I understand, the theory upon which we are proceeding is that the Congress makes the policies that the administrative officers and the courts shall follow. Now, the ad

ministrative officers can interpret these provisions as they may consider proper, and if there is any legal question in the matter of interpretation, that matter goes to the court and the court is bound by the interpretation given by the Congress itself. So it is up to Congress to say within what limits can the court find a judgment against the Government of the United States, and that is the policy now. It could be possible for the policy-making branch to do exactly what it thinks should be done, but in doing that it might know in advance that it could not be gotten by the different branches of the Government. It we should lay down a policy and the courts should follow that policy and find a judgment against the Governinent in what might be termed an 'excessive sum when it came before the Government officials it would be said to be excessive and the appropriation would never get by. What we want to do here is to work out these problems in a practical way and get results, and in dealing with this matter we want to so act that these Indians can get some benefit, because they will never get anything until the Congress passes a bill and the court hears evidence and comes to a decision.

Mr. BUTLER. Mr. Chairman, if we were in court under an act which did not limit the jurisdiction of the courts then I would gladly accept the suggestion made by the Commissioner. Under the present act the court cannot do justice no matter what evidence we offer. The judgment will be so small that it will be adding insult to injury. But, if we go to the other extreme and offer amendments that will raise the cry of an enormous judgment, then it will not pass Congress. That is not the way to help these Indians-that's the way to do nothing. The thing that worries me is that it has been 85 years that they have gotten nothing, and I do not want to see them in the next 10 or 15 years, if I live that long, fighting to get relief and not getting any. Now, that is the practical thing.

Mr. COLLIER. Not wholly, because for the limited amount they are in the court already and they are going to get something; it will not be enough for their practical needs, and it will not be anything like a sufficient amount to satisfy the requirements of justice. But they are in court.

Now, what we are talking about is amending that statute so as to broaden the base of that recovery, and I am trying to urge that if we are going to change the existing act and alter the statute we should try to alter it so that what we get will be final and will satisfy the laws of justice. I have suggested, Senator, why in my judgment the $30,000,000 would not be an excesive amount to use for rehabilitating these twenty-odd thousand Indians who are so poor, whose housing is the poorest, who have no land, or if they have land it is land that they cannot use because they cannot get water, because there isn't the money to develop the water and so on; it is not an excessive amount; it is no more than we will spend on other tribes as the years go on, in rehabilitation.

Mr. BUTLER. Mr. Commissioner and Mr. Chairman, a bill has got to be logical or it will be attacked on the floor and defeated.

Now, up to date the only efforts toward relief of these Indians has been to authorize the court to consider the rights of the Indians under the 18 unratified treaties. This is the first proposal to date to consider the rights of the Indians that were not parties to those treaties. Well now, I have warned against this, that if we are going to use the un