to the Government all their right, title, and interest in the leased district lands. (Ib. 494, 536.) However, the court suggested that if the treaty of 1866 did an injustice to the Choctaws and Chickasaws the remedy was with the Congress and not with the courts. The language of the court on this particular point is as follows:

If the treaty of 1866, according to its tenor and obvious import, did injustice to the Choctaws and Chickasaws, the remedy is with the political department of the Government. As there is no ground to contend in this case that the treaty if interpreted according to the views of the Government, was one beyond the power of the parties to make, it is clear that even if the United States did not deal generously with the Choctaws and Chickasaws in respect of the lands in dispute, and we do not mean to say that there is any ground whatever for so contending, the wrong done must be repaired by Congress and can not be remedied by the courts without usurping authority that does not belong to them. (Ib. 535).

Again, on page 538, the court said:

We may repeat, that if wrong was done to the Indians by the treaty of 1866, interpreted as we have indicated, and we are not to be understood as expressing the opinion that they were not under all the circumstances fairly dealt with, the wrong can be repaired by that branch of the Government having full power over the subject.

Accordingly, the purpose of the present bill is to follow the remedy suggested by the Supreme Court, and as a preliminary step, the bill would authorize the Court of Claims to investigate and advise the Congress whether or not the tribes are entitled to additional compensation for the remainder of the leased district lands.

REPORT OF THE BUREAU OF THE BUDGET

As stated, the Bureau of the Budget held that the expenditures contemplated by the proposed legislation would not be in accord with the financial program of the President. If the court under this bill should find that the tribes have not been sufficiently paid for the leased district lands, it is authorized to report what additional compensation would be adequate. When that report reaches Congress, it would then become necessary for it to consider whether or not it would appropriate out of the Federal Treasury the money ascertained by the court to be due, if the court should make such a finding. The holding of the Bureau of the Budget that the passage of this bill would be contrary to the economic program of the President would be to prevent the tribes from availing themselves of the remedy repeatedly suggested by the Supreme Court. It should always be possible for any just claim against the Government to be considered and for the claimants to have an opportunity to present their claims to Congress. In this case the claimants are only pursuing the course indicated by the Supreme Court. The defeat of the claim by the refusal of the Bureau of the Budget to permit it to be presented to Congress on its merit is clothing that bureau with power not contemplated when the Budget system was inaugurated.

FINDINGS

Your committee finds that the Choctaw and Chickasaw Tribes understood the cession of the leased district under the treaty of 1866, to be a cession in trust for the settlement of other Indians thereon; that the executive branch of the Government so understood and treated it without question until about 1891; that Congress recog

nized the trust character of the cession until 1891, when it made an appropriation to pay the Choctaws and Chickasaws for the Cheyenne and Arapahoe portion of said lands; that the $300,000 consideration mentioned in the 1866 treaty was not a consideration for the cession of the leased district, but was for granting the freedmen land and citizenship; that when the leased district lands ceased to be used for Indian occupancy the trust therein terminated and the lands reverted to the Choctaws and Chickasaws; and that when the Government disposed of them to white settlers it was acting as trustee for the Choctaws and Chickasaws, who were and are entitled to the amount for which the lands were sold, less the lands allotted to wild Indians, and less the cost of sale.

RECOMMENDATION

Since the bill follows the mode of redress available to the Choctaw and Chickasaw Indians as pointed out by the Supreme Court, we recommend its passage.

Copies of the report of the Secretary of the Interior and the memorandum of the Commissioner of Indian Affairs are appended hereto and made a part of this report.

DEPARTMENT OF THE INTERIOR,

Washington, May 2, 1930. Hon. LYNN J. FRAZIER, Chairman Committee on Indian A fairs,

United States Senate. My DEAR MR. CHAIRMAN: Further reference is made to your request for report on S. 3165, which would confer jurisdiction upon the Court of Claims to hear, consider, and report upon a claim of the Choctaw and Chickasaw Tribes in Oklahoma for compensation covering the remainder of the leased district lands.

There is inclosed herewith memorandum prepared by the Commissioner of Indian Affairs setting forth the facts in connection with this claim. The matter has been considered by the Bureau of the Budget and we have been advised that the expenditures contemplated by the proposed legislation would not be in accord with the financial program of the President. Very truly yours,

Ray LYMAN WILBUR, Secretary.

DEPARTMENT OF THE INTERIOR,

OFFICE OF INDIAN AFFAIRS,

Washington, April 11, 1930. Memorandum for the Secretary.

Reference is made herein to S. 3165, entitled “A bill conferring jurisdiction upon the Court of Claims to hear, consider, and report upon a claim of the Choctaw and Chickasaw Indian Nations or Tribes for fair and just compensation for the remainder of the leased district lands," and to the request of Hon. Lynn J. Frazier, chairman of the Committee on Indian Affairs, United States Senate, for your opinion thereon for the benefit of the committee.

The purpose of S. 3165 is to authorize and direct the United States Court of Claims to hear and consider a claim of the Choctaw and Chckasaw Indian Nations or Tribes that they have never received fair and just compensation for the remainder of their "leased district lands acquired by the United States under the treaty of 1866" (14 Stat. L. 769), "and to report its findings to Congress, notwithstanding the lapse of time or the statutes of limitation and irrespective of any former adjudication upon title and ou nership, as to what amount, in fairness and justice, the United States should pay the Choctaws and Chickasaws for said lands, taking into consideration the circumstances and conditions under which they were acquired, the purposes for which they were used, and the final disposition thereof. The bill contains an admission to the effect that it appears "that said claim is well founded."

113747-S. Rept. 652, 71-2-2

The bill provides for the employment of attorneys to represent said Indian nations in the prosecution of the above-mentioned claim, the attorneys' contracts to be executed by the principal chief of the Choctaw Nation and the governor of the Chickasaw Nation, respectively, and to be approved by the Commissioner of Indian Affairs and the Secretary of the Interior, and that the attorneys so employed may be assisted by the regular tribal attorneys employed under existing law under the direction of the Secretary of the Interior.

The bill further provides that the Court of Claims shall include in its report to Congress a finding as to what compensation should be paid the attorneys so employed, other than the regular tribal attorneys employed under existing law, and that such compensation shall not exceed 5 per cent of any amount which may be received by the Choctaw and Chickasaw Nations or Tribes in payment of such claim. The bill also authorizes the expenditure from the Choctaw and Chickasaw tribal funds of the sum of not exceeding $5,000 to be paid in the discretion of the Secretary of the Interior for the reimbursement of said attorneys for all proper and necessary expenses incurred by them in the investigation of records and in the preparation, institution, and prosecution of the tribal claim, the attorneys' accounts for such expenses to be subject to approval by the Secretary of the Interior, and provided that any sum allowed and paid said special attorneys for expenses shall be reimbursable to the credit of the Choctaw and Chickasaw Indian Nations or Tribes out of any sum of money that may be paid to said attorneys for legal services rendered in connection with said tribal claim.

The Choctaw and Chiekasaw claim to compensation for certain lands included in what is known as the leased district and the matters involved appear to have been fully discussed at hearings on May 27 and 28, 1924, before the Committee on Indian Affairs, House of Representatives (68th Cong., 1st sess.), on H. R. 9017 (68th Cong.), relating to the subject, In connection therewith, reference is herein made to the brief filed by Mr. E. O. Clark, then Choctaw tribal attorney (p. 42 et seq., of the printed copy of said hearings).

In the matter of the claim of the Choctaw aud Chickasaw Nations, reference is also made herein to the recent brief submitted by Mr. G. G. McVay, Chickasaw tribal attorney, and received in the Indian Office on January 21, 1930. Mr. McVay has informally advised the Indian Office that he has furnished Hon. Lynn J. Frazier, chairman of the Senate Committee on Indian Affairs, and Hon. Scott Leavitt, chairman of the House Committee on Indian Affairs, with copies of his above-mentioned brief in support of the Choctaw and Chickasaw claim.

Under article 2 of the treaty of September 27, 1830, of the United States with the Choctaw Nation (7 Stat. L. 333), the United States granted to the Choctaw Nation a tract of country in what is now Oklahoma. In consideration thereof and of the other provisions of the treaty, the Choctaw Nation ceded to the United States the entire country it then owned and possessed east of the Mississippi River. (Article 3 of said treaty of 1830.)

Under the provisions of an agreement of January 17, 1837, by and between the Choctaw Nation and the Chickasaw Nation, approved by the United States Senate on February 25, 1837, and by the President on March 24, 1837 (11 Stat. L. 573), the Chickasaw Nation acquired, by purchase, an interest in the Choctaw country in what is now Oklahoma.

By article 9 of the treaty of June 22, 1855, of the United States with the Choctaw Nation (11 Stat. L. 611-613), the Choctaws quitclaimed and relinquished to the United States all their right, title, and interest in and to any and all lands west of the one hundredth degree of west longitude; and the Choctaws and Chickasaws leased to the United States "all that portion of their common territory west of the ninety-eighth degree of west longitude" for the “permanent settlement,” by the United States, of the Wichita and other Indians thereon.

By article 10 of said treaty of 1855, it was provided that, “in consideration of the foregoing relinquishment and lease," the United States would pay to the Choctaws the sum of $600,000 and to the Chickasaws the sum of $200,000.

The Choctaw and Chickasaw country between the ninety-eighth and one hundredth degrees of west longitude, and leased by the above-mentioned treaty of 1855 to the United States, is that which came to be commonly known and described as the "leased district” and aggregated approximately 7,713,239 acres.

By article 3 of the treaty of April 28, 1866, of the United States with the Choctaw and Chickasaw Indian Nations (14 Stat. L. 769), the Choctaws and Chickasaws, in consideration of the sum of $300,000, ceded to the United States "the territory west of the 98° west longitude, known as the leased district." Said

article 3 further provided that the $300,000 should be invested and held by the United States, at an interest of not less than 5 per cent, in trust for the Choctaw and Chickasaw Nations until said Indian nations, by appropriate legislation, gave to all persons of African descent who were formerly slaves of the Choctaws and Chickasaws, and residing as of a certain date in said Indian nations, all the rights, privileges, and immunities, including the right of suffrage, of citizens of said nations, except in the annuities, moneys, and public domain of said nations respectively, and also provided for a 40-acre allotment of land to be made to each of said freedmen and their descendants. It was further provided that, if, within a limited time, the Choctaw and Chickasaw Nations adopted their freedmen as citizens of said nations and provided for them as indicated, then the $300,000, less a certain sum to be used in payment to such freedmen as might remove from the Choctaw and Chickasaw Nations, would be paid to said Choctaw and Chickasaw Nations in the proportion of three-fourths to the Choctaw Nation and one-fourth to the Chickasaw Nation. It was further provided, however, that, should the Choctaw and Chickasaw Nations fail, within a certain time, to give citizenship to the former freedmen and provide for their allotment of land, the $300,000 should cease to be held in trust for the Choctaw and Chickasaw Nations and should be held for the use and benefit of such freedmen as the United States should remove from said Choctaw and Chickasaw country, the United States agreeing to remove, within a certain limited time, all said freedmen as might be willing to remove from said Indian country.

The Choctaw and Chickasaw Nations contend that the $300,000 consideration was not for the cession of the leased district to the United States but was to be paid said Indian nations as a consideration for the granting of 40 acres of land and of citizenship to the freedmen. The Choctaw Nation granted to its freedmen citizenship rights and the right to 40-acre allotments of land. The Chickasaw Nation declined or failed to confer on its freedmen any citizenship or allotment rights.

In the matter of the payments to the Choctaw and Chickasaw Nations out of the $300,000 and interest, reference is herein made to the statement appearing in the opinion of January 9, 1899, of the United States Court of Claims in the case of the Choctaw and Chickasaw Nations v. the United States et al. (34 Ct. Cls. 17-117, 118).

A part of the leased district was granted by the Government to the Cheyenne and Arapahoe Indians and, by act of March 3, 1891 (26 Stat. L. 989-1025), an appropriation of $2,991,450 was made by Congress to pay the Choctaw and Chickasaw Nations for that part of the leased district granted to the Cheyenne and Arapahoe Indians, the area involved being approximately 2,488,893 acres. The Wichita and affiliated bands of Indians were settled upon another portion of the leased district. Relative thereto, reference is herein made to the act of March 2, 1885 (28 Stat. L. 876-895).

The Choctaw and Chickasaw Nations claim that, with the exception of the lands occupied by the Cheyenne and Arapahoe Indians, they have received no compensation for the cession of the leased district. Said portion of the leased district for which the Choctaw and Chickasaw Nations claim they have received no compensation contains approximately 5,224,346 acres.

The question of the title of the Choctaw and Chickasaw Nations to the leased district was raised under the act of March 2, 1895 (28 Stat. L. 895), which act conferred jurisdiction upon the United States Court of Claims to hear and determine the matter, subject to appeal to the Supreme Court of the United States. The Court of Claims, in its decision of January 9, 1899, in the case of the Choctaw and Chickasaw Nations v. the United States and the Wichita and affiliated bands of Indians (34 Ct. Cls. 17), found in favor of the Choctaw and Chickasaw Nations; but, upon appeal, the Supreme Court, in its decision of December 10, 1900 (179 U. S. 494), reversed the Court of Claims and held that, under the treaty of 1866 with the Choctaw and Chickasaw Nations, the United States acquired absolute title to the leased district. Under this decision of the Supreme Court, the Choctaw and Chickasaw Nations appear to be barred from any legal claim to further compensation for the land within the leased district.

The Supreme Court, referring to the treaty of 1855 and the lands relinquished and leased, stated that: “The consideration for the 'relinquishment and lease' was $800,000. It is immaterial to inquire as to the value placed by the Indians or by the United States upon the relinquishment and lease, respectively. The Indians accepted for both the aggregate amount named.”

The Supreme Court further stated that:

“After the treaty of 1855 it was not possible for the Choctaws to assert any claim to lands west of the one hundredth degree of west longitude, and as to the

lands between that and the ninety-eighth degree of west longitude, the United States held them under a permanent lease given in 1855, which practically divested the Choctaws of all interest in the territory constituting the leased district, except that they could settle in it if they so desired.”

As hereinbefore mentioned, the Choctaws and Chickasaws, by article 3 of the treaty of 1866, ceded the leased district to the United States in consideration of the sum of $300,000 and other provisions of said treaty. The Supreme Court, in its above-mentioned opinion, in referring to the treaty of 1866, stated that:

“It is to be taken as beyond dispute that when the parties entered upon the negotiations resulting in that treaty, neither overlooked the fact that the Choctaws, by the treaty of 1855, had forever quitclaimed any claim they had to territory west of the one hundredth degree of west longitude. Nor could either have forgotten that the United States had, by the same treaty, acquired the control of the leased district, without limit as to time, for the permanent settlement of certain Indians, excluding other Indians."

As hereinbefore stated, the Supreme Court held that, by the treaty of 1866, the United States acquired an absolute title to the leased district. The Supreme Court further stated:

“It is said in the present case that the interpretation of the treaty in accordance with the views of the United States would put the Government in the attitude of having acquired lands from the Indians at a price far below their real value. Even if this were true it would not authorize the court in determining the legal rights of the parties to proceed otherwise than according to the established principles of interpretation, and out of a supposed wrong to one party evolve a construction not consistent with the clear import of the words of the treaty. If the treaty of 1866, according to its tenor and obvious import, did injustice to the Choctaws and Chickasaws, the remedy is with the political department of the Government. As there is no ground to contend in this case that that treaty, if interpreted according to the views of the Government, was one beyond the power of the parties to make, it is clear that even if the Cnited States did not deal generously with the Choctaws and Chickasaws in respect of the lands in dispute, and we do not mean to say that there is any ground whatever for so contending, the wrong one must be repaired by Congress, and can not be remedied by the courts without usurping authority that does not belong to them." And again:

We may repeat, that if wrong was done to the Indians by the treaty of 1866, interpreted as we have indicated, and we are not to be understood as expressing the opinion that they were not under all the circumstances fairly dealt with, the wrong can be repaired by that branch of the Government having full power over the subject.”'

Referring to the above-mentioned payment to the Choctaw and Chickasaw Nations for the lands occupied by the Cheyenne and Arapahoe Indians, it appears that, by joint resolution of January 18, 1893 (27 Stat. L. 753), to correct an error in the amount appropriated for said payment, it was provided:

“ That neither the passage of the original act of appropriation to pay the Choctaw and Chickasaw Tribes of Indians for their interest in the lands of the Cheyenne and Arapahoe Reservation dated March :3, 1891, nor of this resolution, shall be held in any way to commit the Government to the payment of any further sum to the Choctaw and Chickasaw Indians for any alleged interest in the remainder of the lands situated in what is commonly known and called the leased district."

Relative to said subject, reference is made herein to the discussion thereof in the United States Senate on January 5, 1893 (Cong. Rec. of January 5, 1893, Pp. 329-330).

The act of March 2, 1895 (28 Stat. L. 876–898), under which the abovementioned suit of the Choctaw and Chickasaw Nations against the United States et al. was instituted, provided: "That nothing in this act shall be accepted or construed as a confession that the United States admit that the Choctaw and Chickasaw Nations have any claim to or interest in said lands or any part thereof."

For the leased district, the Choctaw and Chickasaw Nations have been paid, in the aggregate, approximately $4,091,450.

Jt is being claimed by the Choctaw and Chickasaw Nations that, aside from their lands upon which the Cheyenne and Arapahoe Indians were settled, they have never received fair and just compensation for the leased district acquired by the United States under the treaty of 1866. The portion of the leased district

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