SENATE

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71ST CONGRESS 2d Session

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REPORT No. 685

TO AMEND THE DISTRICT OF COLUMBIA CODE SO AS TO PERMIT UNITED STATES MARSHAL OF THE DISTRICT OF COLUMBIA TO CHARGE THE FEES NOW AUTHORIZED FOR SERVICE OF CERTAIN PROCESS FOR EACH RETURN OF SUCH PROCESS

MAY 19, 1930.-Ordered to be printed

Mr. WATERMAN, from the Committee on the Judiciary, submitted the following

REPORT

[To accompany H. R. 5268]

The Committee on the Judiciary, having had under consideration the bill (H. R. 5268) to amend the District of Columbia Code so as to permit United States marshal of the District of Columbia to charge the fees now authorized for service of certain process for each return of such process, reports the same to the Senate and recommends that the bill do pass without amendment.

The need for this legislation is set out in the following excerpt from the House report on this measure:

This bill was favorably reported by the Judiciary Committee in the Seventieth Congress and passed the House on January 16, 1928. The bill was recommended for enactment by Attorney General John G. Sargent in the Seventieth Congress, and has been again recommended by the Department of Justice. The bill will bring the practice in the District of Columbia in harmony with the practice that prevails in the United States courts.

The general practice is for United States marshals to charge against deposits by litigants the actual expenses incurred as an incident to all unsuccessful efforts to serve process. The difficulty in the District of Columbia arises out of a construction given to section 1112 of the Code of the District of Columbia which is similar to section 829 of the Revised Statutes which applies to the Federal courts contrary to the construction which the Federal courts have given to section 829. The municipal court holds that under section 1112 the fee of $1 can be charged only when service is made. This results not only in requiring the marshal and his deputies to expend a considerable amount of time and money in unsuccessful efforts to serve process but in a considerable amount of bookkeeping due to the necessity of having to draw hundreds of refund checks for small amounts each quarter. The bill in no way increases the compensation of the marshal, as he is paid a salary and the fees are covered into the Federal Treasury.

In accordance with the rule there follows a copy of that act showing the language omitted in brackets and the new language in italics:

2

TO AMEND THE DISTRICT OF COLUMBIA CODE

"SEC. 1112. MARSHAL'S FEES.-For [the servie of] each return on any warrant, attachment, summons, capias, or other writ (except execution, venire, or a summons or subpoena for a witness), whether or not service has been made, $1 for each person [on whom service may be made]: Provided, however, That for the [service of] return on any citation, summons, notice, or rule issued by the probate court the fee shall be 50 cents for each person [on whom service may be made]."

Mr. STEIWER, from the Committee on Indian Affairs, submitted the

following

REPORT

[To accompany S. 2895]

The Committee on Indian Affairs, to whom was referred the bill (S. 2895) authorizing the bands or tribes of Indians known and designated as the Middle Oregon or Warm Springs Tribe of Indians of Öregon, or either of them, to submit their claims to the Court of Claims, having considered the same, report favorably thereon with a recommendation that the bill do pass with the following amendment: On page 2, line 14, strike out all after the word "Oregon" and on page 3 strike out all lines 1 to 10, inclusive.

This bill has the recommendation of the Secretary of the Interior, as set forth in the following letter, which is appended hereto and made a part of this report:

Hon. LYNN J. FRAZIER,

Department OF THE INTERIOR,

Washington, March 22, 1930.

United States Senate.

Chairman Committee on Indian Affairs,

MY DEAR MR. CHAIRMAN: With further reference to your request of January 8 for a report on S. 2895, which would authorize certain bands or tribes of Indians in Oregon to submit their claims to the Court of Claims, there is transmitted herewith a memorandum from the Commissioner of Indian Affairs. After a review of the proposed measure, I agree with Commissioner Rhoads.

Very truly yours,

Memorandum for the Secretary.

RAY LYMAN WILBUR, Secretary.

DEPARTMENT OF THE INTERIOR,
OFFICE OF INDIAN AFFAIRS,
Washington, February 6, 1930.

Reference is made herein to S. 2895, Seventy-first Congress, second session, and to letter of January 8, 1930, from Hon. Lynn J. Frazier, chairman of the Senate Committee on Indian Affairs, requesting your views on the bill mentioned. The purpose of the bill is to confer jurisdiction on the Court of Claims to adjudi

cate the claims against the Government of the Middle Oregon or Warm Springs Tribe of Indians of Oregon.

These Indians are asserting a claim for compensation for land lying to the northwest and south of the present boundaries of the Warm Springs Indian Reservation established by treaty of June 25, 1855 (12 Stat. L. 963), which they claim was erroneously excluded from the reservation by survey. They are also asserting a claim for compensation for hunting, fishing, grazing, and berrying rights under the above treaty of 1855, which rights were later surrendered by the treaty of November 15, 1865 (14 Stat. L. 751).

The boundary claims of these Indians have been under consideration since the survey of the north boundary in 1871 by T. B. Handley. The Indians claimed that the line run by Handley was far out of the way and that a large area of land had been thrown out of the reservation by reason of the erroneous location of the line. The matter of the alleged erroneous location of the boundary has been investigated a number of times and at the solicitation of the Indians a later survey was made by John A. McQuinn. The line run by McQuinn does not appear to follow the exact calls of the treaty but it is more nearly in accord with the treaty reservation than that run by Handley. The Indians believed that the proposed method of settlement was not equitable and did not fully compensate them for their losses and they declined to accept the proposition of the Government. The Indians have always contended, however, that the McQuinn line followed very closely the calls of the treaty of 1855 and that it should not be disturbed. However, notwithstanding the claims of the Indians as to the true location of the northern boundary of the reservation, Congress recognized the line run by T. B. Handley as being the true reservation line by act of June 6, 1894 (28 Stat. L. 86). As a result, a large area of land was eliminated from the reservation as established by the treaty and later surveyed by McQuinn. The Indians have never admitted that the Handley survey defined the true northern boundary of the reservation.

The western boundary of the reservation is also in dispute. Handley did not attempt to locate the western boundary of the reservation, but from the wording of the cession by these Indians in the treaty of 1855 and the reservation retained by them it appears that the true western boundary follows the summit of the Cascade Range. McQuinn ran a line for the western boundary of the reservation which fixes such boundary as a straight line beginning on the north on the summit of the Cascade Range and running in a southerly direction directly to the summit of what is now known as Mount Jefferson. At various places along the course of this line it crosses the summit of the Cascades leaving a part of the reservation on the west of the Cascade Mountains, while some of the lands east thereof were disposed of as public lands. The western boundary was later established by what is known as the Campbell survey which extended the Handley survey from the point where he ended. At this point Campbell ran the line due west to the summit of the Cascade Mountains and from there directly to the summit of Mount Jefferson. The Indians claim that the reservation boundry should follow the summit of the Cascade Range in accordance with the provision of the above treaty.

The appropriation act of March 2, 1917 (39 Stat. L. 969) for current and contingent expenses of the Bureau of Indian Affairs, and for other purposes contains the following provision:

"That $5,000 of the above amount shall be used for an investigation and report on the merits of the claim of the Indians of the Warm Springs Reservation, in Oregon, to additional land arising from alleged erroneous surveys of the north and west boundaries of their reservation as defined in the treaty concluded June twenty-fifth, eighteen hundred fifty-five (Twelfth Statutes at Large, page nine hundred sixty-three), and the Secretary of the Interior is hereby authorized to make such surveys as may be necessary to complete such investigation and report."

In pursuance thereof United States Surveyor Fred Mensch was authorized to make investigation of the disputed boundaries. His investigation commenced October 28, 1917, and was completed April 16, 1918. On October 5, 1920, the Secretary of the Interior addressed a communication to the President of the Senate proposing a compromise settlement of the boundary dispute, which was as follows:

"In view of the above I recommend enactment of legislation authorizing this department to reestablish the north and west boundaries of the reservation as herein suggested, and that the amount of $54,880 be appropriated for the loss of 7,736 acres as estimated by the Mensch report in townships 5 and 6 south, range 11 east."

In this letter the Secretary recommended that the Handley line be adhered to from the beginning point on the east to his thirty-eighth angle point, and that it also be retained through township 6 south, range 11 east, "in spite of its erroneous location." The Secreatry suggested that a report be received from the Secretary of Agriculture in regard to the matter for the reason that part of the lands excluded by erroneous survey were included in a national forest.

There is also a dispute in regard to the southern boundary which was brought about primarily because of an indefinite knowledge of the geography of the region through which the line was to run at the time of the negotiation of the treaty of June 25, 1855.

For more detailed history of the controversy, reference may be had to Senate Executive Document No. 60, Forty-ninth Congress, second session; Senate Executive Document No. 67, Fifty-first Congress, first session; and House Executive Document No. 69, Fifty-second Congress, first session.

The claims for hunting, fishing, and berrying in ceded territory have been referred to heretofore. The bill provides for the submission of this claim along with the boundary claim. There appears to be no reason why the hunting, fishing, and other rights should not be heard and determined along with others, but the bill, as drawn, is so worded as to permit of such adjudication notwithstanding the provision of the subsequent treaty of November 15, 1865, and is, in effect, an abrogation of certain provisions of the 1865 treaty.

Should legislation of this nature be enacted the Indians probably will make claim to approximately $665,000, which includes the value of the fishing rights above mentioned.

Concerning the fishing and other rights mentioned in the bill, should the Indians desire to have their claims, therefor, adjudicated by the Court of Claims, including the hunting and fishing rights for the period prior to November 15, 1865, no objection will be made thereto. Further, the bill contains certain explanatory statements on pages 2 and 3 thereof which could very properly be eliminated. Therefore, S. 2895 should be amended by striking out all the remainder of page 2 of the bill after the semicolon following the word "Oregon" in line 14, and also all lines 1 to 10, inclusive, page 3.

With this modification it is recommended that Senate 2895 receive favorable consideration. C. J. RHOADS, Commissioner.