National Congress of American Indians WASHINGTON BULLETIN

FEBRUARY, 1949

McCARRAN BILL FORCES Osages Lose Claims Case SALE OF INDIAN LANDS The Indian Claims Commission has handed down its Senator McCarren of Nevada has again introduced his fourth decision—and the fourth decision against the Indians. perennial bill (S. 17 in the present Congress) to force the Two members of the Commission signed the decision dis- Pyramid Lake Paiute Indians to sell their lands ‘at a fraction missing the claim of the Osage Indians to repayment for ot their present value. The Indians consider the bill part money obtained by the United States governemnt from the of a scheme to rob them of land which the Courts have de- sale of Osage lands, and used for the education of Indians clared belongs to them and which they desperately need to other than Osages. Chairman Witt disagreed with the help eke out a decent living. They believe the passage of majority of the Commission in all important phases of the the bill would be travestly upon American standards of case and filed a strongly worded dissenting opinion. political decency. The case concerned the Osage Civilization Fund. This In 1859 the Pyramid Lake Reservation was set aside Fund, in the amount of $776,931.58, was collected by the for the Paiutes. Shortly thereafter several families of white government from the sale of Osage lands under a treaty settlers moved onto Indian land despite protests of civil and which provided that the fund should “be used, under the military authorities. It was not until 1916 that suits were direction of the Secretary of the Interior, for the education brought by the United States Government to eject these and civilization of Indian tribes residing within the limits white squatters. The Court decided in favor of the Indians of the United States.” Of this sum, only $189.55 was spent but in 1917 a bill was introduced to permit the white tres- for the education of the Osage Indians. passers to obtain title to the land. However, certain of the The case is almost a text-book of how the Commission trespassers refused to either move off the land or to legalize intends to interpret the Indian Claims Act, and how it in- (Continued on Page 2) tends to treat the facts presented to it. The following im- portant decisions are contained in it: 1. The Commission will consider a matter which has been considered by the Court of Claims if the Court of PALM SPRINGS INDIAN LANDS ALLOTTED Claims disposed of the case on jurisdictional grounds and not on the merits of the case. (In the Cherokee cases, pre- The valuable Palm Springs, California, lands belonging viously decided, the Commission held that if the Court of to the Agua Caliente Band of Indians is at last being par- Claims considered the merits of the case, the Commission celed out in individual allotments after long litigation. It would not consider it.) is estimated that the land is worth some $8,625,000 owing 2. Relief which may be granted under the Indian Claims to the establishment of the City of Palm Springs, a plush Commission Act is limited to that which can be settled by a resort center, on the Indian site. Seventy-one Indians plus judgment. the heirs of four dead Indians will share in the allotment. 3. The duty to protect Indian property owned by the An act of Congress January 12, 1891, amended March 2, government and the Indians is not that of an ordinary guar- 1917, provided for allotment. The Indians vigorously op- dian. The government has this sort of ditty only where there posed allotment in 1920 when it was then undertaken. Again as in actual trust imposed, such as in handling trust funds. in 1927 an allotment schedule was submitted for Indian The government is not obliged to protect the property of consent but was never approved. In 1936 a suit was brought the Indians from the wrong doing of others. (Chairman to compel issuance of patents to individuals of the Agua Witt said that the government owes a “very high degree Caliente Band which the government, then opposing issuance of fiduciary duty” to the Indians.) of patents, won. In 1941 another case (Arenas vs. U. S.) 4. The first ground of récovery, based upon the Fifth was instituted, and was carried to the Supreme Court of Amendment to the Constitution of the United States con- the United States which sent the case back to the District cerns only a clear taking of land by the government. If the Court for retrial. The Circuit Court of Appeals for the 9th land was ceded under treaty, the Commission says this Circuit, upon appeal, held that Lee Arenas was entitled to ground does. not apply even if there was fraud and duress a trust patent. Persuant to this ruling the Secretary of the in obtaining the treaty. Interior is now issuing patents. 5. Under the second ground of recovery, based upon the Each of the allotments made so far include a 2 acre type of claim that could be made against the government if town site lot, 5 acres of irrigated land and 50 acres of dry it were a private individual, the Commission held that you land, totaling 47 acre plots worth an estimated $85,000. cannot treat a treaty as if it were an ordinary contract. All of the 2-acre lots are in the main business district of Under this provision, you cannot test the good faith of the eae Springs and many of the 5-acre plots are inside the city (Continued on Page 2) imits. BRUCE APPOINTED N.C.A.I. N.C.A.l. SOUTHWEST CONFERENCE LEGISLATIVE DIRECTOR

On April 5, 6, and 7th, a Southwest Indian Conference Louis R. Bruce, Jr., has been appointed by the Executive is being held in Phoenix, Arizona by the National Congress Council as Legislative Director for the National Congress of American Indians, Southwest region, and sponsored by the of American Indians. Under this appointment Mr. Bruce Friends Service Committee and the Fellowship of Recon- will assume responsibility for all correspondence of NCAI ciliation. Indians from Arizona, New Mexico, Utah, and with members and with Indian Tribes relative to legislation; Colorado will be in attendance. Robert L. Bennett, Regional and will also be directly responsible for NCAI contacts with Secretary of NCAI, has been active in setting up the Con- Congress. ference and in making it a possibility. Mr. Bruce is an Indian of Mohawk and Sioux stock. He The Governor of Arizona is scheduled to give the address is a graduate of the University of Syracuse. He is currently of welcome. Will Roger, Jr., will give the address at the employed by the Dairy Cooperative Association with offices banquet which will close the conference sessions. The Con- in New York City. He has had wide experience in Public ference will be mainly given over to discussion of such Indian Relations, and in work with rural organizations such as 4-H problems as health, education, law and order, employment, Clubs, Farm Bureau Soil Conservation, Rural Policy Com- economics, and Indian veterans’ needs. Tribes participating mittee, Grange, and many other civil activities. He has a in the panel discussions are: deep interest in Indian work, and is taking on these res- Arizona: San Carlos Apache, Whiteriver Apache, Hopi, ponsibilities for N.C.A.I. and the program for Indians which Hualapai, Mohave, Navajo, Papago, Pima, Yavapai, Yuma. our organization is sponsoring. Colorado: Ute Mountain and Southern Ute. Letters relative to legislative problems should still be New Mexico: Jicarilla Apache, Mescalero Apache, Navajo sent to the Legislative Committee Member nearest you or to and Pueblo. the address of your Washington Office (1426 35th St., N. W., Utah: Uintah, Whiteriver and Uncompahgre Bands of Washington 7, D. C.) and your secretary will see that these Ute Indians. are brought to Mr. Bruce’s attention. OSAGES LOSE CLAIMS CASE (Continued from Page 1) PUBLISHED BY government in making the treaty or the adequacy of the NATIONAL CONGRESS OF AMERICAN INDIANS consideration. 6. Under the third ground of recovery allowing the Com- Mrs. Ruth M. Bronson, Editor and Secretary mission to “go behind” the words of a treaty and give relief on claims resulting from revision of the treaty on grounds 1426 35th Street, N. W., Washington 7, D. C. of fraud, duress, mistake, ete., the Commission held that it Mailed without charge to Indians contributing three can grant such relief only by apply ing equitable principles, dollars or more to the work of the NCAI, and to any and that if the case does not fall within the rules laid down Non-Indian contributing five dollars or more. by courts of equity, it cannot grant relief. Following this rule, they held that they could not grant relief where the consideration given for the land was inadequate if it was

not “unconscionable.” 7. Under the fourth ground of recovery, based upon a INDIAN OFFICE ASKS INDIAN ADVICE! taking of land by the government, the Commission held that it is operative only where there has been no payment for On January 31st Acting Commissioner Zimmerman sent lands on compensation agreed to by the claimant...... a circular to all Indian Tribal Councils asking ther opinion 8. Under the fifth ground of recovery, based upon “fair on. whether any Indian employed by the Office of Indian and honorable dealings’ the Commission held that this Affairs should be allowed to serve as a representative of a ground can be applied only if none of the other four grounds tribe. This, it seems to us, marks a new departure in the are applicable. Chairman Witt said that the liability of administration of Indian Affairs. Decisions in matters of the government to any party should be determined by the policy affecting Indians have too often been made by Bureau application of any one or more of the five clauses, and cited officials sitting in some distant office, on a basis of what he the action of the Court of Claims in applying the “fair and thinks Indians ought to think or what ought to be good for honorable dealings” yardstick to cases where other grounds Indians without reference to how the Indians themselves existed, to prove his point. feel about it. In our opinion Mr. Zimmerman is to be The Commission determined that if the Osages had a heartily commended for this new approach, and it is hoped case, it would come under Section 3 and could not, therefore, that he and his officials do much more of the same thing. It come under section 5. They decided that the Osages had will be a slower method of procedure, for it will take time no claim under this section. In so doing, they disbelieved to get decisions of this nature, but the building of a policy the claim of the Indians that they never understood that the will be on more solid ground and we venture to predict the money was to be used for all of the Indians of the United progress of the Indian people will be much more rapid. And States. The Osages claimed that if the Indians who signed certainly this new method of seeking Indian opinion gives the treaty understood it at all, they presumed that “Indian back to the Indians some of the Democracy they, like other tribes residing within the limits of the United States” was a Americans, fought so hard to protect. means of leaving out the Osage Indians who had left the Of course the success of this form of management of country. A majority of the Commission decided that since Indian Affairs will depend on the cooperation and response there was no proof that the Indians-did not understand the of the Indian people themselves. It is hoped that all tribal terms of the treaty, it is clear that they did understand it. Councils will give full and careful response to the questions They make much of the fact that no discussions about the submitted in the circular of January 31st, with reference to clause relating to the civilization fund are recorded. Chair- Secretarial order No. 1912. The National Congress of Amer- man Witt points out that the provision was a very unusual ican Indians has long been following the practice of asking one—no other treaty provided that the proceeds of the lands for direction from the tribal Councils and other represen- of any tribe should be used for the benefit of others, that tative Indian groups, and we have had excellent cooperation. the Osages were, in fact, hostile to other tribes at the time, The Commissioner will find the same eagerness to co- making it extremely doubtful that they would have agreed operate, we are sure, when Indians are convinced their to such a gift and that the words “civilization fund” could opinions are asked in good faith. not be adequately translated into Osage. From these facts it would appear clear as Chairman Witt asserts, that the McCARRAN BILL FORCES SALE OF INDIAN LANDS lack of discussion of the provision proved misunderstanding, (Continued from Page 1) not understanding of the provision, but Chairman Witt was out-voted by the other members of the Commission. their possession of it. Again in 1988 the United States be- The Commission also determined that $300,000 for gan proceedings to oust the trespassers and the case was 865,930.31 acres of good farm land was not an “unconscion- carried to the United States Supreme Court. In 1944 the able” consideration. Chairman Witt also took issue with this Supreme Court, by refusing to grant certiorari made the finding. judgment final in favor of the Indians. It is hoped that this case will be appealed to the Court During these years Senator McCarran was trying to of Claims and that that Court will reverse the findings of push through a bill to give these trespassers still another the majority of the Commission. If the findings stand, many chance to get the land away from the Indians without their tribes will not be compensated for their claims. : consent. But a new generation of Indians, more conscious Many Indians are beginning to fear that the Claims of their rights as American citizens, began to resist his Commission in which they placed so much faith may become efforts. just another mockery. In September 1947, the National Congress of American Indians upon request of the Tribe, agreed to help in protect- ing these lands. The records of the Department of Justice CONGRESSIONAL COMMITTEES then showed that the judgment against the squatters had never been fully executed. They showed that on January HANDLING INDIAN AFFAIRS 31, 1944 “writs of assistance” were issued by the Clerk of the United States District Court. But there was no indi- Below are listed the Senate and House Committees for eation of said writs being served. the 81st Congress primarily concerned with Indian affairs. Records at Interior indicated that the delay was occa- Keep this issue of the Bulletin handy as a working sheet, sioned by requests of Senator McCarran. On April 4, 1944 for these are the men you should be writing to (besides, of he telephoned the Assistant Secretary of Interior from Reno course, your own’ Senators and Representatives) on import- and proposed that, if the writs of assistance were not served ant Indian legislation. he would introduce legislation to buy back for the Indians the SENATE COMMITTEE ON INTERIOR AND INSULAR lands they had lost under the 1924 law. The Senator never AFFAIRS did this but continued his efforts to take the balance of the land away from the Indians. Joseph C. O’Mahoney, Wyoming, Chairman In October 1947, the Justice Department, upon our in- James E. Murray, Montana sistence and that of the Office of Indian Affairs directed Sheridan Downey, California the District Attorney to see that the writs were served. Ernest W. McFarland, Arizona Then, to the surprise of all, it was discovered that the writs Clinton P. Anderson, New Mexico had been served in 1944. The Marshall had concealed this Bert H. Miller, Idaho fact and the Indians had never been advised of their right to Robert S. Kerr, Oklahoma take possession of their land. They have now been so ad- Hugh Butler, Nebraska vised. They are taking action to evict the trespassers and Eugene D. Millikin, Colorado make effective use of the land themselves. They will do Guy Cordon ,Oregon all they can to avoid losing this property. Zales N. Ecton, Montana The Pyramid Lake Paiutes need your help in preventing George W. Malone, Nevada Senate Bill 17 from passing Congress and thus preventing Arthur V. Watkins, Utah another gross miscarriage of justice. (No subcommittee appointed for Indian affairs) - HOUSE COMMITTEE ON PUBLIC LANDS any Indian reservation in the State of New York to taxation for State and local purposes. .. .” *Andrew L. Somers, New York, Chairman J. Hardin Peterson, Florida S. 368 (Butler, Nebraska). A bill to deprive Alaska *John R. Murdock, Arizona Native Communities of their lands without compensation and Clair Engle, California to terminate the power of the Secretary of the Interior, Monroe M. Redden, North Carolina granted under the Act of May 1, 1936, to reserve and protect *Toby Morris, Oklahoma Indian lands from encroachment by non-Indians. ‘This is Ken Regan, Texas the same bill as S. J. Res. 162 which Senator Butler tried so Lloyd M. Bentsen, Jr., Texas desperately to push through the 80th Congress in spite of *Compton I. White, Idaho unanimous opposition of church and civic groups as well as ~». *Walter S. Baring, Nevada the Indians themselves. The bill was the very last to be *Reva Beck Bosone, Utah considered by the 80th, Conress and was kept from passage Fred Marshall, Minnesota by the opposition of Congressmen Poulson and Rich. Senator Harry P. O’Neill, Pennsylvania Butler’s new attempt to take their lands away from Alaskan Wayne N. Aspinall, Colorado Indians—S. 363 —reintroduces the provisions wiping out existing legislation. * Also members of House Subcommittee on Indian Affairs. S. 576 (Watkins, Utah) A bill to authorize the sale of certain Indian lands situated in Duchesne and Randlett, Utah, and adjacent to Myton, Utah. Concerns the Ute tribe of the Unitah and Ouray Reservation in Utah. Full dis- BILLS BEFORE CONGRESS cretion is given tribe to choose its purchaser or to refuse to AFFECTING INDIANS sell is a provision of the bill. Approval of Secretary of the Interior for sale of land and use of funds is required. To BILLS BEFORE SENATE the Committee on Interior and Insular Affairs. S. 582 (Thomas, Utah) A bill to authorize the sale of S. 17 (McCarran, Nevada) This bill would force the certain Indian lands situated in Duchesne and Randlett, Utah, Pyramid Lake Piaute tribe to sell their most valuable land and in and adjacent to Myton, Utah. Same as H.R. 1753. To to white trespassers at a fraction of its present value. (See the Committee on Interior and Insular Affairs. story on front page of this issue, Bulletin). S. 183 (Butler, Nebraska) Authorizes an appropriation S. 598 (Taylor, Idaho) A bill to advance knowledge on of $250,000 Federal funds to build a public school attended the history and culture of the American Indian through the by Indian children. The bill is based on the theory that the acquisition and preservation of irreplaceable artifacts and Federal government is obligated to furnish educational facili- relics. $85,000 for museum at Spaulding, Idaho, to preserve ties used by Indians. Indian history of Idaho. Craft shop provided for. To the Committee on Interior and Insular Affairs. S. 186 (Butler, Nebraska) Practically the same bill as H.R. 1113 of the 80th Congress which was defeated in the S. 662 (Thomas, Oklahoma) A_ bill authorizing the Senate by friends of the Indians. Wyandotte tribe of Oklahoma to sell tribal cemetery—similar This is the same old phony emancipation bill with two to 5576 in effect. To the Committee on Interior and Insular new features guaranteed to destroy Indian tribes and tribal Affairs. property, and to get Indian land out of Indian ownership. S. 662 (Thomas, Oklahoma) Abill authorizing the Wyan- Section 3 forces the sale of inherited land upon the demand dotte tribe of Oklahoma to sell tribal cemetery—similar to of any heir who has been declared competent, regardless of 5576 in effect. To the Committee on Interior and Insular the wishes of the remaining Indian owners. Affairs. Section 4 provides that Indians who give up their tribal membership shall continue to share in the advantages of— S. 691. Same bill as H.R. 1921 (Murdock, Arizona) and such as financial prosperity—but not in tribal responsibility. H.R. 1926 (Patten, Arizona). S. 691 (McFarland, Arizona, S. 187 (Butler, Nebraska) Authorizes the Secretary of for himself, Hayden, Arizona; Chavez, New Mexico; and the Interior to negotiate with the New York Indians for the Anderson, New Mexico). A bill relating to the amount of termination of Federal treaty obligations toward them. Federal payments to the States under the Social Security Under the present bill no action can be taken without the Act with respect to State payments to Indian wards of the Indians’ consent. This bill is similar to S. 1686 Senator United States, of old age assistance, aid to dependent chil- Butler tried to get through the 80th Congress but to which dren, and aid to the blind. To the Committee on Finance. the New York Indians strenuously objected. The Indians This bill is a case of killing the Indians with kindness. feel the annual treaty payment is a symbol of the continued It provides for payment for Indians, 92% by Federal govern- good faith of the Federal government in protecting them ment instead of the 50-50 matching formular for all non- from further exploitation. Indian citizens. Indians have protested discrimination. S. 188 (Senator Butler, Nebraska) is the same bill as S. 170 (Chavez, New Mexico) Sam as H.R. 2294, intro- H.R. 1537. This bill is similar to H.R. 4725 of the 80th duced February 3 by Fernandez of New Mexico. Congress which many tribes vigorously opposed and which A bill to direct the Secretary of the Interior to issue was defeated. The bill would place Indian tribes and patent to Pueblo of Laguna for lands purchased for that reservations under State criminal jurisdiction whether or not Pueblo many years ago and used by them since without the Indians gave their consent. Such action would disrupt interruption. It is a measure of justic long overdue. the wholesome trend of Indian self-government. S. 188 and S. 726 (Butler, Nebraska) A bill to provide for disposi- H.R. 1537 contain all the objectionable provisions of H.R. tion of inherited interests in the estates of deceased Indian 4725 with the exception of a clause protecting Indian hunting allotees. This bill would give a fee patent to all competent and fishing rights. heirs and require partition of the allotment. If the parts are S. 192 (Butler, Nebraska) is a bill “to confer jurisdiction too many and too small for partition the bill would compel on the courts of the State of New York with respect to civil the Secretary of the Interior to put up for sale all inherited actions between Indians or to which Indians are parties.” Indian allotments. It is another scheme to get Indian land This bill was introduced last year but was opposed by out of Indian ownership in the quickest possible time. the New York Indians. This year’s version, however, has S. 806 (Hunt, Wyoming, for himself and O’Mahoney, the following language not contained in the bill to which the Wyoming). A bill authorizing the erection of a monument Indians objected: to Sacajawea, the Indian woman who led Lewis and Clark on their expedition to discover the West. Sacajawea is “Provided, that the governing body of any recognized said to be buried in Wyoming. tribe of Indians in the State of New York shall have the right to declare, by appropriate enactment within S. 851 (Magnuson, Washington) A bill to promote settle- one year from the date of this Act, those tribal laws ment and development of the public domain in the Terri- and customs which they desire to preserve, and which, tory of Alaska by facilitating the construction of necessary on approval by the Secretary of the Interior and on housing therein, and for other purposes. To the Committee publication in the Federal Register and publication by on Banking and Currency. the Secretary of State of New York upon certification by the Secretary of the Interior, shall govern in all civil BILLS BEFORE THE HOUSE cases involving reservation Indians when the subject matter of such tribal laws and customs is involved or H.R. 1408 (O’Konski, Wisconsin. Provides for adding at issue. Any such tribe may at any time amend or lands to the Bad River Band of the Lake Superior Chippewa modify its declaration of tribal customs and such amend- Indians, and the Lac Courte Oreilles Band of Lake Superior ments or modifications shall become operative and effec- Chippewa Indian reservation respectively. tive when the procedure outlined herein shall have been H.R. 1537 (D’Ewart, Montana) is H.R. 4725, the law and carried out. Provided further, that nothing herein con- order bill of the 80th Congress with the Fernandez amend- tained shall be construed as subjecting the lands within ment which exempts states in which the Indians do not vote.

a

It is similar to S. 188 but does not exempt the Indians from vation, Washington, and for other purposes. To the Com- hunting and fishing laws as does the Senate bill. See S. 188). mittee on Public Lands. H.R. 1549 (Lempke, North Dakota). A homestead bill H.R. 2610 (Andersen, Minnesota).