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

L

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 herein before 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 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 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:

66* * * 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.

It 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

for which further compensation is claimed aggregates approximately 5,224.346

acres.

It may be here stated that the Choctaw and Chickasaw Nations claim, in a suit instituted by them against the United States in the Court of Claims under the act of June 7, 1924 (43 Stat. L. 537), that, of the $300,000 consideration for the cession of the leased district (art. 3 of the treaty of 1866), the sum of $85,000 is still unpaid and due them. Under said act of June 7, 1924, the Chickasaw Nation has brought suit against the United States in the Court of Claims to compensation for that part of the leased district known as Greer County. These cases under the act of June 7, 1924, are pending in the Court of Claims.

As hereinbefore stated, the above-mentioned decision of December 10, 1900, of the Supreme Court in the case of the Choctaw and Chickasaw Nations v. the United States et al. (179 U. S. 494), bars said Indian nations from any legal claim to further compensation for the land within the leased district ceded to the United States by the treaty of 1866. As stated by the Supreme Court, if wrong was done the Indians by the treaty of 1866 and they were not fairly dealt with in the matter of the cession of the leased district, the wrong done or unfair dealing is a matter for reparation by Congress.

However, should Congress consider favorably this legislation, the portion of the leased district upon which the Cheyennes and Arapahoes were settled and for which the Choctaw and Chickasaw Nations were fully compensated as above indicated should not be included within the terms of the bill, and it is therefore suggested that section 1 of S. 3165 be modified to read as follows:

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Court of Claims is hereby authorized and directed to hear and consider the claims of the Choctaw and Chickasaw Indian Nations that they have never received fair and just compensation for the remainder of their 'leased district' land acquired by the United States under article 3 of the treaty of 1866 (14 Stats. L. p. 769), not including the Cheyenne and Arapahoe lands for which compensation was made to the Choctaw and Chickasaw Nations by the act of Congress approved March 3, 1891 (26 Stat. L., p. 989), and to report its findings to Congress notwithstanding the lapse of time or the statute of limitations and irrespective of any former adjudication upon title and ownership, as to whether the consideration paid or agreed to be paid for said remainder of said lands was fair and just, and if not, whether the United States should pay to the Choctaw and Chickasaw Nations additional compensation therefor, and if so, what amount should be so paid, taking into consideration the circumstances and conditions under which said lands were acquired, the purposes for which they were used, and the final disposition thereof."

C. J. RHOADS, Commissioner.

SENATE

71ST CONGRESS 2d Session

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REPORT No. 654

CONSTRUCTION OF MICHAUD DIVISION OF FORT HALL INDIAN IRRIGATION PROJECT

MAY 15, 1930-Ordered to be printed

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

following

REPORT

[To accompany S. 3938]

The Committee on Indian Affairs, to whom was referred the bill (S. 3938) authorizing the construction of the Michaud division of the Fort Hall Indian irrigation project, Idaho, an appropriation therefor, and the completion of the project, and for other purposes, having considered the same, report favorably thereon with a recommendation that the bill do pass with the following amendments: Page 3, line 9, after the figures "362,500" insert the words "or so much thereof as may be required".

Page 4, line 18, after the word "grazing" insert the words "or agricultural"; line 22, after the word "grazing" insert the words "or agricultural".

Page 5, line 1, after the word "grazing" insert the words "or agricultural".

The facts are set forth in the report of the House Committee on Indian Affairs (H. Rept. No. 1393, 71st Cong., 2d sess.) on an identical bill (H. R. 10880), a part of which is appended hereto and made a part of this report:

This measure, if enacted into law, will authorize the completion of the Fort Hall irrigation project in southeastern Idaho, which will aggregate 90,000 acres when completed-50,000 under the Fort Hall division, 10,000 under the Gibson division, and 30,000 under the proposed Michaud division. This land, most of which has been allotted to the Indians, is arid in character and only by irrigation can the land be successfully cultivated. There are 1,776 Indians on the Fort Hall Indian Reservation, and slightly over a thousand have been allotted lands in severalty, leaving approximately 700 Indians who have not yet received allotments.

Water was placed upon a portion of the land under the act of August 5, 1894. Under the act of June 21, 1906, $350,000 was appropriated to extend the irrigated section. Under the act of May 24, 1922, an appropriation of $760,000 was authorized to rehabilitate the irrigation works and provide for the irrigation of SR-71-2-VOL 2-31