The above language shows that at the time of making the 1866 treaties with the Five Civilized Tribes and other western Indians, the purpose of the Government was to acquire portions of their lands for Indian occupancy only.

Congress construed article 3 of the 1866 treaty of the Choctaws and Chickasaws when it had under consideration the act appropriating money to pay the Choctaws and Chickasaws for the Cheyenne and Arapahoe Reservation. In that act it said that the Cheyenne and Arapahoe lands had been ceded in trust to the Government by article 3 of that treaty, the pertinent part of the act being:

And the sum of $2,991,450 be, and the same is hereby, appropriated out of any money in the Treasury not otherwise appropriated, to pay the Choctaw and Chickasaw Nations of Indians for all the right, title, interest, and claim which said nations of Indians may have in and to certain lands now occupied by the Cheyenne and Arapahoe Indians under Executive order; said lands lying south of the Canadian River, and now occupied by the said Cheyenne and Arapahoe Indians, said lands have been ceded in trust by article 3 of the treaty between the United States and said Choctaw and Chickasaw Nations of Indians, which was concluded April 28, 1866, and proclaimed on the 10th day of August, the same year, and whereof there remains, after deducting allotments as provided by said agreement, a residue ascertained by survey to contain 2,393,160 acres * * * (Sec. 15, Indian appropriation act, approved March 3, 1891, 26 Stat. L. 989, 1025, ch. 543.)

In paying the Choctaws and Chickasaws for the Cheyenne and Arapahoe Reservation the Government thereby admitted that the lands in that reservation were a part of the leased district domain and belonged to the Choctaws and Chickasaws. The status of the lands referred to in this bill is identically the same as that of the lands in the Cheyenne and Arapahoe Reservation. If the Government was liable to the Choctaws and Chickasaws for those lands, it is equally liable to them for the remainder of the leased district lands.

It should be remembered that at the time of the passage of the act authorizing payment for the Cheyenne and Arapahoe Reservation. only 25 years had passed since the 1866 treaty. Members of Congress were then undoubtedly familiar with the understanding of the Choctaws and Chickasaws and the Government toward the 1866 treaty, namely, that the leased district lands had been ceded in trust. After passage of the act for payment for the Cheyenne and Arapahoe Reservation, President Harrison, on February 18, 1892, sent a special message to Congress advising against payment of the appropriation. His message was referred to the Committees on Indian Affairs of the Senate and House. The Senate Indian Committee, on April 11, 1892, submitted its report, the following being an excerpt therefrom:

Your committee thinks that if an attempt shall be made to convert the trust estate of the United States into an absolute estate, without compensation to the Choctaws and Chickasaws for their interest in said lands, and to transfer the lands to citizens of the United States, the Choctaws and Chickasaws will have the right to regard such action on the part of the United States as a forfeiture of the trust estate now held by the United States therein, and to assert the right of the Choctaws and Chickasaws to resume the full ownership and actual possession of said lands, and also to resort to such measures as shall be proper to test the validity of any transfers of said lands to white men made or attempted by the executive department of the Government. Your committee, therefore, recommends the adoption of the following resolution of the Senate:

Resolved, That for reasons set forth in the report of the Committee on Indian Affairs upon the President's message of February 18, 1892, upon the appropriation of March 3, 1891, for payment to the Choctaw and Chickasaw Nations for their interest in the Cheyenne and Arapahoe Reservation, in the Indian Territory,

submitted with this resolution, that it is the opinion of the Senate that there is no sufficient reason for interference in the due execution of the law referred to. (S. Rept. 552, 52d Cong., 1st sess.)

The House Indian Committee also made substantially the same report and recommended adoption of the same resolution. So strongly convinced was the Congress of the equity of the claim that it disregarded the recommendation of the President and by solemn resolution, after extended debate, adhered to its former act and directed payment for those lands to the Choctaws and Chickasaws, thereby on two separate occasions giving legislative approval of the trust character of the leased district lands.

WICHITA AND AFFILIATED BANDS TREATY

While the Congress had under consideration the treaty with the Wichita and affiliated bands of Indians to allot portions of their lands and to open the remainder to public entry, the Choctaws and Chickasaws asked compensation for those lands, because they were part of the leased district. Congress referred their claim to the Court of Claims, authorizing them to sue the Government for their interest in such lands. March 21, 1899, that court decided in favor of the Choctaws and Chickasaws. (Choctaws et al. v. U. S., 34 Ct. Cls. 17.) Paragraphs 24 and 49 of the syllabus of the opinion are as follows:

XXIV. Although the language of article 3 of the treaty of 1866 transferred the legal title of the leased district to the United States, the situation and statements of the parties, the extent and value of the grant, the consideration, the benefits conferred, and the beneficiaries designated may be considered in determining whether the cession was attended with an underlying trust.

XLIX. The cession in the treaty of 1866 was not intended to divest the Choctaws and Chickasaws of all their interest in the leased district, but was intended to enlarge the scope of the ninth article of the treaty of 1855 by authorizing the settlement of certain Indians who were excluded by that article. Hence a trust must be implied in their favor under the terms of the grant.

The Court of Claims held in substance that the United States held the leased district lands in trust for Indian occupation only, and that when the lands were abandoned for that purpose they should be held in trust by the Government for the Choctaws and Chickasaws, or if sold, the proceeds belonged to the tribes. (U. S. v. Choctaw Nation, 179 U. S. 494, 501, 502.) The Supreme Court, on December 10, 1900, reversed the Court of Claims, dismissing the petition of the Choctaws and Chickasaws. It held that:

It is thus clear that the Court of Claims was without authority to determine the rights of parties upon the ground of mere justice or fairness, much less under the guise of interpretation, to depart from the plain import of the words of the treaty. Its duty was to ascertain the intent of the parties according to the established rules for the interpretation of treaties. Those rules, it is true, permit the relations between Indians and the United States to be taken into consideration. But if the words used in the treaty of 1866, reasonably interpreted, import beyond question an absolute, unconditional cession of the lands in question to the United States free from any trust, then the court can not amend the treaty or refuse to carry out the intent of the parties, as gathered from the words used, merely because one party to it held the relation of an inferior and was politically dependent upon the other, or because in the judgment of the court the Indians may have been overreached. (Ib. 535.)

It further held that the cession of the leased district lands by article 3 of the 1866 treaty was absolute and not in trust, and that by the word "cede" in that treaty the Choctaws and Chickasaws conveyed

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.

Hon. LYNN J. FRAZIER,

Chairman Committee on Indian Affairs,

DEPARTMENT OF THE INTERIOR,

Washington, May 2, 1930.

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 ownership, 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 Chickasaw 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. Ó. 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 and 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