A

CON T NTS3
STATEMENT OF: PAME
Ralph H. Case 3
James Curry 22
G. Warren Spaulding 32
 H.R. 6030

A Bill to amend the Act authorizing the

negotiation and ratification of certain
contracts with certain Indians of the Sioux
Tribe in order to extend the time for
negotiation and approval of such contracts.

House Committee on Interior and

Insular Affairs
Subcommittee on Indian Affairs
1324, New House office Building
Thursday, January 17, 1952

The Subcommittee met, pursuant to notice, at 10:00

o'clock a.m., Hon. Toby Morris (Chairman) Presiding.

Present: Messrs. Morris, Murdock, McMullen, D'Ewart,

Poulson, Harrison, and Mrs. Bosone,

Mr. Murdock. Tho Subcommittee on Indian Affairs of the

House Interior and Insular Affairs Committee is meeting for

the distribution of two bills. Judge Morris is usually so

very prompt that I hope no one but the reporter will tell him

that we opened the session at 10 after 10, He asked me to

be here to open the meeting in his stead at 10 o'clock, as

he had some important business in one of the departments.

He thought he might be back by 10:)0, or as soon thereafter

as he could take care of the other important matters.

We have two measures that were scheduled to come before

the subcommittee this morning, both by our colleague, Congress-

 2

Mr. Berry indicates that he would prefer that we take

up H.R. 6030 first. Accordingly, we will turn our attention

to H.R. O630, a bill to amend the Act authorizing the negotia-

certain
tion and ratification of certain contracts with

Indians of the Sioux Tribe in order to extend the time for

negotiation and approval of such contracts.

(The Bill referred to is as follows:)

 Mr. Murdock. Congressman Berry, we would like to hear

from you in support of the bill, or concerning the bill.

Mr. Berry. Thank you, Mr. Chairman, and members of the

committee.
This is a bill to extend the time given under Public Low

870 passed by the 81st Congress, whe.;ein the Army Engineers

in the Indian Department were authorized and instructed to

negotiate for the lands which wil.. be covered by the water

under the oahe Dam which is being, constructed on the Missouri

River. It affects both the Chey:enne and Standing Rock Indian

Reservation, both of which lay adjacent to the Missouri River,

and to explain this bill, and the purposes of the bill, I

would like to call upon attorney Ralph H. Case, a prominent

Washington attorney who has represented the Sioux people

out there for many years.

Mr. Case.

Mr. Murdock. Mr. Case has appeared before the committee

numerous times, and we are glad to welcome him again.

Mr. Case. Thank you very much, Mr. Chairman. I am

very glad indeed to be here.

STATEMENT OF RALPH H. CASE

Mr. Case. 4May I outline, not at length, but outline to

the committee the necessity that has arisen for this change

in the final date for the filing of the contract under

Public Law~ 70.

 In the early fall, the Tribal Council being here in Sep-

tember, the Tribal Council of the Cheyenne River Sioux In-

dians, we agreed to meet with Interior, and the Chief of

Engineers, or his representative in Washington on the 7th

of this month.

The Division Engineer,throgahis representative, thought

and wrote that it would be better to meet at the agency,

or some point in the Basin area. We replied reciting our

reasons for meeting in Washington, and the matter stood on

that basis until December 21, when I received a telegram

from Brigadier General Shingler, Division Engineer at umaha,

stating flatly that they felt the meeting should be held

Somewhere in the Basin area, with no place designated, but

that they would not be here in Washington on January 7.

However, we were under way at that time, and after

a telephone call to the Chairman it was decided that the

delegation, which is the official negotiating committee

for the making of this contract, should come on to Washing-

ton. They were prepared, they had made their studies. They

had their records, and their records complete had already

ush been shipped when I got through to Mlr.Ducheneaux by telephone,

o which was the 2rd of December.

So the delegates arrived here--pardon me, let me use

the word "negotiators." The negotiators finally arrived

here on December 30, and we nmt for --:,

* a^ on Cne second
 5
day of January, and we found that we had a blockade, an impasse.

We have a directive in Public Law 870 for the Chief of En-

gineers or his representative, the Secretary of the Interior
or his representative, and the Tribal Council, or its desig-

nated representatives, the three parties are directed by

this statute to meet and confer.

Now, the statute does not designate the place, does

not designate the time, and here we have the three parties

in disagreement.

Well, sir, that presented to me a condition that could

not be tolerated. Three reasonable parties are directed

by the Congress to meet, and they should agree, so through

the very kindly aid of Senator Case and Congressman Berry,

and also with the interested aid of the Commission of Indian

Affairs, we decided to meet in a room designated in the Inter-

ior Building, and Mr.Ducheneaasent a telegram which I wrote,

some 250 words, 1 guess, to General Pick asking him to send

a representative. It was all now and strange to the Washing-

ton office, Chief of Engineers. It all had been handled in

the field.

Arrangements were then made for a representative, and

we met at the designated point. The General's representative,

a Mr. Bickford met with us. I explained the situation,

and stated to him the same thing I have stated to the committee

members, that three reoaon-blc poope must not allow on impasse

 6
like that to defeat the purposes of a congressional directive.

He went back and reported to General Pick, and General

Pick said "Come over and see me on Friday, the following

Friday, the llth day of January." We did.

We explained to the General that we had all our records

here, that we had spent a lot of time, consecutive time,

going over the appraisal which had been made in accordance

with the statute--pardon me, that had been made under the

directive contained in the statute. It was not made in

accordance with the statute for certain omissions appear,

and we stated to the General that there were omissions, there

was failure to apply certain elements of value, and that

there were errors in the appraisal.

The moment the word "errors" appeared in our statement

to the General, he stopped right there and said, "Just a

moment, do you mean to tell me there are errors in this

appraisal, what kind of errors?"

We stated to him that there were errors in the descrip-

tion of the land. He stopped us right there and asked how

many. one of the gentlemen who will appear before you

la ,er on, perhaps on another bill, Mr. Sidney Claymore,

Land Clerk in the agency office, and has been for years,

knows his descriptions thoroughly, and Mr. Claymore responded

about a hundred.

There are eight pa:es of .Io,, . .

 7
appraisal.

General Pick then said, "Now, under no circumstances

will any representative of mine go into a conference based

upon an erroneous appraisal. The first thing you have got

to do is to correct the errors in that appraisal.

"Well, General, that will take time, and we have but

from now until the 31st day of March in which to complete

this contract, a tremendously important contract to these

people, and very important to the United States.

"Well, meet at omaha now.

"Well, we can't do that, because in order to meet at

omaha we have to go back to the agency, call a Tribal Council

meeting and get authority to go to omaha. other than that, we

are off our beat. We have no business in Omaha."

So we then worked out, sitting right there in this

same one conference, we worked out a plan which the General

and the Indians agreed to, and this is the result, if I may

hand it to you, Mr. Chairman, a photostatic copy of the result.

That is a definite agreement as to when we shall meet, whore

we shall meet, and what we shall talk about, and it is signed

by Lt. General Lewis A. Pick,

It is received and accepted by Mr. Ducheneaux for the

Tribal Council, and is concurred in by the Assistant Secretary

of the Interior, in Charge of Indian Affairs.

Now, that one little document, I am sure, shows to the

 8
committee the necessity of extending the time during which

we will negotiate, and during which we will do these things

the General required, and the things that we want, and we

will not lose any material amount of time.

Mrs. Bosone. Mr. Chairman.

Mr. Murdock. Mrs. Bosone.

Mrs. Bosone. Why were there all those errors?

Mr. Case. The appraisal was made by Hart Associates

of Denver, Colorado. I thank you very much for bringing

this point up. I overlooked one very important element

here. The appraisal contract we never saw. We had no advice,

nor wore we informed as to who the appraisers were. We had

no opportunity to give them our side of what an appraisal

should be, and we had no one working with the appraisers

on the appraisal, we, the Indians.

However, the contract for the appraisal was made a year

ago October, just a month or so after the statute was passed.

They could not get into the field--this is a field job, an

appraisal of that kind. It means going on to the land.

Last winter was about as bad as this one, and they could not

get on to the land until April, and then they had to go on

the upper stretches and come back and pick up the lower

stretches.

We got the appraisal on the 15th day of November, thirteen

and a half months after the statute. ,,0 ,, ,

" -J_ VI --- r. +
 9

half months before the deadline in the statute, and yet we

went to work and we prepared all of these criticisms, which

are so extensive that the General says he will not consider

it.

We have to--I am sorry, we have to disclaim any respon-

sibility for the errors that are in there, because we never

saw the thing until the 15th day of November. All of this

work, the eight pages of errors listed--there may be more,

undoubtedly there are more.

 10

mark iIr. lurdock. You say these are errors of description?

Ir. Case. Part of them are errors in description. Part

of them are errors in the application of the directive in

the statute to give weight to severance dama es, whereas

by a severance from the water supply, your property is

damaged, even though it is not in the taking area .by seve-

rance where a part of your property is taken and the rest

of it is practically worthless, the amount of damage caused

by such severance is supposed to be taken into consideration.

Timber was supposed to be taken into consideration. We

criticized the appraisal on that, and we intend, when we

jet together, as the letter indicates on April 15, to jo

into all of these matters.

i.ow, we have already corrected all we have noted of

the errors in the appraisal description. We have no autho-

rity to make a difference in any of the amounts. We simply

note no severance damnac, no timber damage, or a small

lump sum.
On the timber, we have nade a complete survey of all
the standing timber in the taking area, and have it hero
with us.

Lr. i;urdock. I can see how errors of judgment in the

appraisals would be possible, from your viewpoint, or from

any interested party's viewpoint. I can hardly see how

errors in description -- didn't thov hi, -r,^-n hF,~r

 11

m2 them?

Mr. Case. Yes, they had the same records from which

we corrected the descriptions which they specifically put

* down in their report.

Let's take a look at the first one. I do not want to

put this in the record, because it is too long, and we will

probably have more errors to speal: about.

l:r. D'Ewart. Who entered into this contract?

Lr. Case. The cScretary of the Interior, and the

chief of en incers.

Mr. D'Eawart. Have they paid for it?

Mr. Case. That I do not know.

iMr. D'Ewart. How much is this erroneous appraisal

joinj to cost?

MIlr. Case. ir, I do not know. We have never been

consulted as to who they were joinj to be, how much they

were goinj to get for it, and yet Jeneral Pick picked that

very question up.

Ir. D'Ewart. The 3ccretary of the Interior, and the

Chief of Army Engincors signed the contract with this firu

to nakc this appraisal?

SL:r. Case. Yes, sir, that is my understanding.

;r. D'Lwart. iir. Chairman, I su jest wI find out who

was responsible for these errors, and whether the Federal

Government is paying for it.

-L -4-, -
m3 Mr. Murdock. I note that our Chairman, lMr. Morris,

has just entered, and I will now turn the gavel over to

him.

Judge Morris, Congressman i3erry preferred that we take

up the youngest bill first, II. R. 6030.

Mr. Morris. All right,

I observe that Conjressman D'Ewart just asked a ques-

tion.

Mr. D'Ewart. I asced that the Comitte maIe inquiry

of the Secretary of the Interior, and the Chief of Army

i.njineers as to who entered into a contract for the ap-

praisal of the taking area under the Oahe Dam, how much

is to be paid, why the errors were made in the appraisal,

and who is responsible for those errors.

Mr. McIJullcn. May I make a suggestion?

MLr. Molrris. Yes, sir.

well
Mr. cllullon. It would be/to ascertain, would it not,

whether the Federal Jovernment would have to spend addi-

tional money to have these corrections made, or whether

the appraisers will do it under tho original contract price.

IMr. Morris. I think the question is very pertinent,

and both the suggestion of Concrossman Mchlullen will be

followed through. Uc will observe that request.

Mr. Case. That is outside of our territory.

ir. Morris. Yes. I undtntrr-- ,-

 13

Mr. Case. We had no intention of doing other than

calling the appraisers in on April 15, next, speaking on
the bill to extend the time in which the contract between
the United States and the Indian tribe, Cheyenne River-

Sioux, is to be made under Public Law 870. That statute

runs out the 31st of March. That is our deadline.

Mr. Mcullcn. This year, Mr. Witness?

MIr. Case. Oh, yes.

Mr. Morris. Now, is there any objection on your part,

or anyone that you Inow of, to extending them that time?

ir. Case. i;one whatsoever. In fact we have laid on

the desk an agreement reached on the llth day of January,

between the Indian tribe and Jeneral Pick, the Chief of

Engineers, and Mr. Doty, the Assistant Secretary of the

Interior on Indian affairs.

In other words, the three parties to the contract now

have agreed on when they shall meet, where they shall meet,

and what they shall talk about. That was omitted from the

statute, probably copies have been written into the statute,

but now we have reached an agreement. We had an absolute

impasse here,because the enginccrs in Qaha refused to

cc into Washington to negotiate with us. laow, Gencral

Pick explains that also. He said, '"'hy, certainly Shinglor

could not coae in here. Ie had no orders to come in here.

If Shinjler should show up here I would ask him immediately,

 m5 'What are you doing here?'"

The hesitation there permits you to insert the term

* the General used.

Mr. Murdock. I understand, then, from the testimony

thus far that the expiration date is March 31?

Mr. Case. That is right.

Mr. Murdock. That you did not have sufficient time

even if there had boon no errors in the estimates, you did

not have sufficient time, and General Pick has stated that

with errors found in the appraisals those errors must be

corrected. Now, that would take scome time.

Ir. Case. Yes, it will.

IMr. Murdock. -So that is an additional reason why

some legislation ought to be passed giving more time.

ir. Case. Yes, and in agreeing to that letter as

proposed by General Pick, both the Engineers and the Secre-

tary of the Interior ajree to do things after the date of

expiration, so there is their guarantee that the Committee

reports this bill out without any further reference to the

department. I submit to the Chairman that where you have

that acreemont before you, which is composed of the three

Parties directed to noeotiato, and whore they have now had

an impasse, and the time is running out, and they have

agroed to do things beyond the expiration d to of the

statute, that obviously both oarti -, thO E ,.j . an!

m6 the Interior, have committed themselves to the enactment
of this legislation. Otherwise, the letter and the statute

would expire.
1Mr. Murdock. The letter to which he refers, Mr. Chair-

man, is in your hand. It has. not been read to the Cam-

mittee. I think it ought to be made a part of the record.

Mr. Morris. Yes, I will read that at this time and

make it a part of the record.

This is a letter here by General Pick, Chief of Engi-

ncors, to Ir. Frank Ducheneaux, Chairman, Committee of

Cheyenne Rivcr--Sioux Tribal Council, Care of ;Ir. Ralph II.

Case, Attorney, 309 I;ational Press Duildin , Washington,

SD. C.:

"Dear Ir. Ducheneaux:

"Confirming the discussion with you and the members

of your Council this morning, in connection with carry-

in out the provisions of Public Law I:o. 870, dated

September 30, 1950, I am agreeable to the following:

"a. The date of Tuesday, April 19, 1952, as

suZjested by you for a meeting at the Cheyenne Agency,

in South Dakota, to be attended by your representa-

atives, by representatives of the Department of the

Interior, and my representatives, for the purpose of

rcsolvin factual matters conccrning appraisal of

lands, and discussing other subjects as may be

I. l
 16

m7 required prior to contract negotiations;

"b. Formal contract negotiations to be held in
Washington, D. C., and to start not later than 15
September 1952.

"Sincerely yours,

"/s/ Lewis A. Pick,

"Lieutenant Jeneral,

"Chief of Engineers

"Received and agreed to: 12 January 1952 by

"/s/ Frank Duchoneaux, For

"Cheyenne River Sioux Tribal Council

"I concur: /s/ Dale Z. Doty,

"Assistant Secrotary of the Interior."

I would like for this to be filed and became a part

of the record.

Mr. Berry. Mr. Chairman, may I ask one more question?

IMr. Morris. Yes, sir.

Mr. Berry. Isn't it a fact, too, ir. Case, that the

status contemplates the agreement between these three

parties, the execution of a contract covering the agreement

between the three parties, and the approval of the Congress

prior to Mlarch 31, 1952?

hr. Case. Yes, sir, that is correct.

1r. Derry. And it is not -oinS to bo possible under

any circumstances to ct that acrocmont reached, the contract

 17

drafted and presented to the Congross prior to that time,

but if it wore extended an additional nine months, there

would be ample time to do that?

Mr. Case. That is also a complete and correct state-

ment of the situation.

Mr. D'Ewart. Does this extension of time apply to

the date of approval of the contract?

Mr. Case. Submission to Congress.

IMr. D'Ewart. Will you reach complete agreement for

that date?

Mr. Case. Yes, sir, and sign it. I am sure the

Committee will remember the sinin of the contract in

. relation to the Fort Dorthold lands signed the 20th of

.ay 1940. That is a complete contract with Lieutenant

general R. A. Whecler.

Mr. D'Ewart. It took two or three years to do that

job, not nine months.

Mr. Case. Yes, it did.

Mr. D'Ewart. You are sure you can complete this?

Mr. Case. We certainly will do it. It can be done,

and we do not want -- Jeneral Pick particularly did not

Swish the extension to Jo beyond the calendar year 1952.

Mr. D'Ewart. Mr. Chairman, I would like to make a

short statement.

This, to me, is the wrong procedure, entirely, in

 m9 18

negotiating with Indians for the taking of land because of

the construction of a reservoir, or a power plant. These

negotiations should be instituted and completed before

construction of the project is started. Now, we had this

.... same trouble in the case of the Fort Berthold, and we

had to pass two Acts, at least, to extend time. Here we

have it here, and we are acting now after construction of

the dam has started.

.. The same thing is staring us in the face on the Crow

Indian Reservation. We tried to get negotiations completed

there, but this is the wrong procedure. These negotiations

should be started and completed before construction is

undertaken, and I think the Committee is being imposed

upon when we proceed after the ground has been taken, not

before.

Mr. lorris. Do you want to comment on that, imr. Case?

Mr. Case. Yes, if I may.

Congressman D'Ewart, the taking has not occurred. The

taking depends upon the signing of the contract. When the

contract is signed, that is the date of taking.

Mr. D'Dwart. Nevertheless, Mr. Case, when they go on

* that reservation and start construction, they are in

trespass unless they have the permission of the Indian

Tribal Council, and the permission of the Secretary of the

Interior.
mrll 19
Mr. Case. Well, Congressman, in both cases, at

Berthold and Garrison Dam, and Cheyenne River and Oahe

Dam, the dams are not on the reservation, and the immediate
work is
area for the preliminary/ outside either one of the reser-

vations. This is not a condition that we have created.

It is something that has been forced upon us, and we are

still the unwilling parties to this contract. We do not

want any part of our Missouri River bottomlands taken, but

the Oahe project was authorized by the Act of December 22,

1944, and under that Act appropriations have been made,

and preliminary work, and the necessary access roads, rail-

roads, the necessary resident towns have been built, and

only when this matter is forced upon us, either we insist

upon a closed deal, or the Army simply goes in and attempts

to condemn our land.

Mr. DEwarto But my point is there should have been

a provision in that appropriation bill that not one dollar

would be spent on the construction of that dam until

settlement had first been reached with the Indians. Now,

we are proposing to do the same thing in central Arizona,

and I have objected to that also.

Mr. Morris. You do not necessarily register objec-

tion to this extension of time?

Mr. D'Ewarto Oh, no. I simply object to the pro-

cedure. I am not objecting to this bill.

m12 20

I do think it might be helpful if the Commnttee would

consider if a transcript of the meetings that are held pur-
suant to this bill is made available to the Committee --
Mr. Case. We will be very glad to do that. We will
be delighted to furnish the Committee with a transcript.
Mr. Morris. All right.
Now, are there any other questions from members of the
Committee?
Mr. McMullen. I would like to ask one question.
Could you briefly tell us, Mr. Case, what would be the

situation if this bill were not approved, not passed?

Mr. Case. Well --

Mr. McMullen. Briefly.

Mr. Case. The present Act, Public Law 870, requires
this work to be done within 18 months, and 13-1/2 months
were used up by the appraisers, and we have used up another

month.
Mr. McMullen. What would be the situation if we did
not approve this?

Mr. Case. If we do not present a contract to the

Congress, the law itself is dead, because we have failed

to comply with the law.
Mr. McMullen. Have they started construction of the

dam?

Mr. Case, Oh, yes, all the preliminary work. As I

 m1 21

mentioned, the access roads, the resident village, and all

the shops and stores and everything of that kind, schools

are all under construction.

Mr. McMullen. If we do not pass the extension, all

of that would be absolutely worthless.

Mr. Berry. Wouldn't the result be that the Army

Engineers would go in under condemnation instead of agree-

ment with the landowners, the Indians, and the Government --

they would condemn that property, probably under condemna-

ti.on proceedings. Would that not be the procedure?

Mr. Case. Well, sir, that would bring on a lot more

talk and a very definite battle, because we do not believe

That the United States can file suit against itself, and

the United States is the Trustee for this Indian property,

and holds It In trust.

Mr. D'Ewart. The Congress can authorize condemnation.

Mr. Case. It can, and against that we have no remedy,

but as the statute stands we would resist the condemnation

action by the Engineers Corps, and they do not want to do

it.

If we get this contract finished, gentlemen, and

finally, the Engineers get rid of condemnation or purchase

of 105,000 acres of land; In other words, they get rid of

half of their land problem for the reservoir right-of-way,

and they are delighted to get it done here. It will cost

 22

immeasurably more if it has to zo through condemnation.

Mr. McMullen. Thank you, Mr. Case.

Mr. Morris. Are there any other questions?

Mr. Berry. I would like to call next Attorney James

Curry, who also works representing Standing Rock, because

the Standing Rock Reservation is also involved in this bill.

Mr. Morris. All right, Mr. Curry.

XXXXX STATIICUT OF JAMES CURRY.

IIr. Curry. Thank you, hr. Derry.

I want to say that I did not know about this hearing

until a few minutes ago, so that I am not fully prepared

to testify. However, I suppose that that delay in notify-

ing me is more or less immaterial, because I am sure that

the Standing Rock Indians are 1,000 per cent in favor of

the provisions of this bill.

I would like, though, to give, in addition to the

reasons that Attorney Case has given, some additional

reasons why this bill should be adopted, and reasons for

the delay.

At Standing Rock, we have held one 2-day mooting with

the Engineers. As Congressman D'"wart has sucgested here,

* we did make a full transcript. I may have already sent

Congressman D'Ewart a copy, I an not sure. If not, I will

make that transcript available to each member of the Com-

mittee immediately, and T think n e ,-r , 0. . ..

qr
 m15 23
of the negotiations will indicate the depth of the jprobloms

that are involved in the negotiations.

For one thing, it will show what Congressman D'Ewart

pointed out, that by enacting this legislation, authorizing

the Oahe Dam, without first negotiating with the Indians,

Congress has permitted, has made it possible for the ad-

ministrative officials in charge to put the Indians more

or less under the gun. The transcript of that negotiation,

for instance, will show that the attempt was made to con-

vince the Indians not only that they were practically sure

of losing their land, but that the Government was already

authorized to proceed to take their land if they did not

( acree.

I think they were straightened out on that matter,

because I advised them that there is nothing in the Act,

actually, to authorize the taking of this land. As

Congressman D'Ewart says, if they step upon that land

without the consent of the Indians, they are trespassers,

and if they flood that land without the consent of the

Indians, they are trespassers, but the Indians would never

have known that if they had not been advised of it by me,

Sand the Jovernment officials gave them quite a contrary

impression.

In other words, they gave them the impression that

their land was goin, to be taken regardless, they wore

nl6 24

ready to take it, and it was just a question of how much

money in their kindness and good fcelinc towards the
Indians they were willing to ;ive them.

I do not think so. I think the Congress intended that

this should be an open negotiation, that either party could

say no, and that the Indians are in a position to say no,
and that if they say no, the Government is going to have

to come back to Congress to get authorization to do some-

thing else, if they get it.

As I say, the Indians would not have been advised of

this if it had been left to the administrative officers of

the Government to advise them of the fact that they were

on an equal negotiating basis. Furthermore, they would not

have been advised of it, they were not advised of it, and

they did not have complete legal advice because of the

fact that the contract with their attorney was held up in

the Indian Bureau for a period of -- as I say, I do not

have my papers, I am not sure how long, but it was about

nine months. They were unable to get that contract approved

until they spend in the neighborhood of $3,000 for a dele-

gation to come into Washington and bring pressure to the

Indian Bureau through publicity, and through their repre-

sentatives in Congress to get it approved.

After that we went out and held these negotiations

which lasted for two days.

 m17 2?

After tha, the representatives of the Jovernment,

namely the Dureau of Indian Affairs, and the Corps of

Engineers, promised certain information to the Indians

* which has not yet been received. Because it was not

received early in December, we decided that it was no use

trying to insist any further on that information, and de-

cided to hold another meeting.

Mr. Morris. Let me ask you this, Ir. Curry.

I can see the force of the suggestion made by Congress-

man D'Ewart, and I think that definitely is a better ap-

proach. I agree with him that there ought to be negotia-

tions ahead of time, but assuming those negotiations should

a break down and they could never come to agreement, what

would be your position as to what the procedure should be

then?

ir. Curry. Well, as attorney for the Indians, I would

have to resist the taking of the land, Mr. Congressman.

Mr. Morris. I do. not want to say what my position

would be, but you understand that a Government, State or

Government is a sovereignty, and of course have the right

of eminent domain against non-Indians. Now the question

aarises just how far we would go in stymieing any Jovern-

ment from exercising the right of eminent domain against

anyone. All non-Indians are subject to the right of

eminent domain, and if any non-Indian owns land, and if

m18 26

the Government wants to take it for highway purposes, for

flood control purposes, or for any other purpose, of course

they will take it from that non-Indian, so the question is

-- and I am not prepared at this time, that is the thing

that has bothered me for smne time -- as to just what our

procedure should be in regard to that. Should we permit

anyone, any group to be immune from the right of eminent

domain?

MIr. Curry. Congressman, I would not say you would go

so far as to do that. I have advised the Indians that the

Government of the United States is the most powerful

Government on earth, they can do as they please.

Mr. Morris. That is pretty broad. They cannot do

everything. We are limited by the Constitution.

Mr. Curry. I think there are other limitations too,

Congressman. They may be constitutional, or they may be

moral, but they are certainly shrined in the principles on

which the Government is founded, and one of those prin-

ciples makes the distinction between whites and Indians

with respect to the taking of property with or without

compensation.

-White people, you know, -ot their property from Uncle

Sam, everyone of them, but Indians had that property be-

fore Uncle Sam ;ot here. Therefore when the west was

settled, pursuant to what wn. con --- - --

4 ,-
 ml9 27

principles, the Northwest Ordinance provided that the

property of Indians should never be taken from them, ex-

cepting with their consent or in just wars.

1ow, if the Congress of the United States decides to

take this property from the Indians, I would say that it

would require a reason sufficient to justify a war. If

the Indians are so unreasonable that the Congress con-

siders itself justified almost to the extent of making

war on them, then perhaps they should take their land

without their consent. Otherwise not. Now, that would

be the point that I would make to Congress.

0
 28

HLi Mr. Morris. I realize this is a serious question,

but after all we are getting into a matter rather ancillary

Sto the main point, and we can take those things up later.

I will cay, being Chairman of this committee, I am sure I

speak the sentiment of all the other members, that the

Indians being human people as a rule we want to be, and I

know I want to be very solicitous of their welfare, but

we do have to formulate some policies here in regard to

this very important matter. However, our time is somewhat

limited, and I think we had better get back to the propo-

sition of whether or not this time should be extended.

Mr. Curry. As an additional reason for extending the

time, I want to say that the Indians have run into other ob-

structions in trying to conduct these negotiations, such as

the fact that expenses for their attorney, which have been

approved by the Indians, have not been paid because the

Indian Bureau takes up the accounts of the Indians and pre-

vents their being paid.

Now, one solution of this is the solution that is pro-

posed in this bill, to extend the time for negotiating. Of

course, another solution might be to get the Indian Office

I off the back of the Indians so that they can conduct this

negotiation on a proper basis, with proper representation on

both sides.

Incidentally, in behfl3f nf
r+. ,- . - P en,
* -^
**-- - _ *t.-)u aent,
 29

10 I vent to point out, in line vith Congressmen D'Ewart's

suggestion that the Crow Creek Indians are now in a similar

situation. The Crow Creek Indians in South Dakota are

in the path of the Fort Randall Dam. Legislation is being

proposed to the Congress for the taking of their property,

or for the purchase of their property. They have been asked

to give their opinion on the legislation. A little over a

year ago, they retained two attorneys, one from Fort Pierre,

6outh Dakota, and the other is myself, to advise them in

connection with that legislation. The Indian Bureau is

still calling on them for tieir legal opinion about this

legislation, but more than a year later the contract has not

* been approved.

Now, I think that the Crow Creek Indians likewise are

being put under the gun in a way similar to what Mr. D'Ewart

described, and what I have described in connection with the

Standing Rock Indians. The contract was for a period of

one year, but the Indian Bureau held up approval for more than

a year, and now they come back and say there is no use of ap-

proving it because the contract, though it never was in effect,

has expired.

I mentioned the second meeting that we intended to hold

for these negotiations in December, and I wanted to say

that we all went out there, the engineers and the Indian

Bureau people, and I, and that we could not got the Indians
 50

11 in because of the severe snowstorms. I do not think we

can continue those negotiations until the weather is a little

more certain, but I have a feeling that the negotiations

can be completed in the period provided by this legislation

if there are no further obstructions from the Indian Bureau.

That is all I have to say, Mr. Chairman.

Mr. Murdock. Are there any questions you wish to ask

Mr. Curry, gentlemen?

We thank you, gentlemojn, both of you, for your testimony.

This is not quite pertinent, but I would like to ente ~

it into the record with the hope of extending it later; in

other words, my colleagues extending my remarks.

Throughout the west there are many great Indian reserva-

tions large in area, and containing dam sites and reservoir

sites and the like which this committee must consider.

Congressman D'Ewart a moment ago made mention of a proposed

dam in my state, as illustrating what he had in mind, and

I know from many conversations with Congressman D'Ewart

how he feels about that matter, this dam is actually on

an Indian reservation, which might make it a little differ-

ent from the dam in the bill under consideration.

SThe point I want to make is this: I want to give due

consideration to the Indians, they are wards of the govern-

ment, and their trustee ought to act accordingly, even if

that trustee is 3 sovereign. But as n matter of nlic

 r= .'~X~,,t~rff'dt.
4-
- -

31

12 policy, as a matter of national benefits, you see our dilemma.

If it is within the power of an Indian tribe to stymie

a great construction, that is bad, too.

Now, Mr. D'Evart, I have been getting frequent communice-

tions from the Hualaprilndians saying we are for this thing.

sometimes I think they outdo even the Congressmen in zeal,

they are so much afraid that lack of enthusiasm and approval

of a dam on their reservation might kill the dam that they want

to go on record, and write me frequently about it, they and

their counsel.

That particular tribe of Indians take a different view.

They are for the building of this dam, and they ore not ask-

0 ing that the matter be held up and settled definitely by

contract in advance, as Congressman D'Ewart thinks would be

the right man, but it is different, I take it, with your

Indians, Mr. Berry. I just say that for the record.

Mr. D'Evart. Mr. Chairman, I remember meeting a year ago

with the Hualapai Indians in your district, and I think

we suggested at that time that they try to immediately negotiate,

or at least I suggested that they try immediately to reach a

satisfactory arrangement before the construction was under

way. However, I will agree with you that they seemed to

think they would be in a better position to negotiate after

construction started.

Mr. Berry. We have the opinion of the Army and the

 -'

32

13 Indians. Not, I would like to have G. Warren Spaulding

of the Indian Deportment give the reaction so far as the

Department is concerned with regard to the extension of

time.

Mr. Morris. All right, Mr. Spaulding.

STATEMENT uF G. WARREN SPAULDING

Mr. Spaulding. Mr. Chairman, and members of the

committee, I should like to take this occasion to say that

we quite agree with what has been said here with reference

to the necessity of extending the time allowed under Public

Law 870.

As a mettercf fact, this whole proposition imposed

upon the Indians, the Interior Department, and the Corps

of Engineers has -been quite a big proposition. It involves

a great deal of work. We were allowed 18 months for the

preparation of the contract, all the negotiations attendant

therewith, making the appraisals, and that, in itself, is

a tremendous job because of the number of the appraisals,

the number of the tracts.

Mr. Murdock. Pardon me, Mr. Chairman. The witness

did not fully identify himself.

SMr. Spaulding. I am sorry, sir. My name is G. Warren

Spaulding. I am Director of the Program Division, Bureau

of Indian Affairs.

Mr. Morris. Dirontor n .---.

- - "* * - -V L. AL.
 33

11 Mr. Speulding. That is correct.

There were, on the Cheyenne River, about 626 different

tracts involving more than 100,000 acres; on the Standing

Rock there were something more than 2600 tracts involving

about 63,759 acres.

There were some 300 or more families involved on both

reservations. There were about 80 miles of graded and graveled

road on the Cheyenne River Reservation, about 45 miles on the

Standing Rock Reservation, and plans had to be completed for

the development of a new network of roads to replace those

roads and to serve relocated populations on both reserve-

tions.

SThere were 11 cemeteries involved. There were social

and economic studies to be made on both reservations, and

studies of relocation sites, health and education studies, and

a good many others.

It has been a short period of time, we thoroughly agree,

and it would be well to allow an additional period of time for

the accomplishment of all of this work.

Mr. Morris. Do you think this period of time requested

in the bill is a reasonable time?

a Mr. Spaulding. I believe, sir, it is reasonable, and

I believe that the work can be accomplished if an additional

seven months is allowed.

Mr. Morris. All right. Hove you completed your statement,

 N.'k

15 Mr. paulding?
; Mr. Spaulding. I would like to say one other thing
* to correct a statement made by attorney Curry, to the ex-

tent that the Standing Rock people had asked for informa-
tion which had not been furnished. I sat in on the confer-

ence to which he referred. The request was made that a

social-economic study be made of the Standing Rock Reserva-
tion, and that study has been completed some time during

the month of December. I feel sure that the report has

been delivered, and it is quite likely that Mr. Curry has not
known that the report has been completed.
Mr. Morris. Did you want to make a statement, Mr.
Curry, in that connection?

Mvr,. McMullen. I would like to ask the witness one

question.
Do you know of any government official who has either
misled these Indians or tricked them in any way about this
piece of legislation?

Mr. Spaulding. I am sure I know of no such person.

Mr. Morris.. Mr. Curry, did you want to make a statement

on that point?

SMr. Curry. To the point made by Mr. Spauling, I have

received the social-economic survey, and part of the appraisal.

I do not think either is complete, but that is not important.

There was other information w% n vtov , .. , .

ife-j 611OW"

. * - --- - - . -. - --
 35

16 by the transcript, and it was not delivered. I do not

want to make a great issue out of that, either. I think

they should supply the information that was requested.

As to the question raised by Congressman McMullen, I

would like to supply a copy of the transcript and an analysis

to show what I meant when I said that the Indians were given

a false impression, or would have been given a false im-

pression if they did not have legal advice.

Mr. McMullen. I understood you to say some government

officials had misled the Indians.

Mr. Curry. I am not sure I used exactly that language,

but I suppose it might be translated in that way. It is not

Stood inaccurate a statement of what I said.

Mr. Morris. Go ahead, Mr. Spauldxig.

Mr. Spaulding. I would like to make a few remarks about

the errors that were discovered in the appraisal. I think

there is no question but what some errors were discovered.

I think through the fault of persons whom I could not name,

the appraisal was transmitted to the Cheyen River Tribe

before it was properly checked, and it was intended that that

appraisal be checked by both the Corps of Engineers and the

SBureau of Indian Affairs personally before it was released.

Now, how it got released, I do not know. The appraisal

was made by Gerald T. Hart Associates of Denver, Colorado.

They are an appraisal firm of considerable reputation. They

 36

17 were engaged by agreement between the Corps of Engineers

and the Bureau of Indian Affairs because of the fact

that the Corps did not have sufficient appraisers of

their own to do the work, and neither did the Bureau.

By agreement, the Corps, I believe, entered into a con-

tract with Mr. Hart to make these appraisals. The considera-

tion on the part of the Bureau of Indian Affairs was that it

would make certain other studies, and would bring all the

records into agreement and in such condition that ,it would

facilitate the work of the appraisal firm.

My recollection is that the cost of the appraisal was

something in the neighborhood, Mr. D'Ewart, of $50,000.

Now, I want to say, too, that the Indian people of the

Cheyenne River, and the negotiating committee are not the only

folks who discovered almost immediately that there were errors

in the appraisal. The appraisals were checked by our people,

and promptly the work of making the corrections was instituted

by the contractor.

Mr. D'I art. May I ask if these corrections should not

have been made by the contracting firm before they submitted

their findings?

Mr. Spaulding. They should have been corrected, that

is very true, and it is one of these human mistakes that was

made by someone, presumably in the Corps of Engineers' office,

in sending out the ,

-t-nnn. th
-- L6 ii
nad the final olcey
 '-"^

37

18 of either the Oorpe or the Bureau of Indian Affairs. We are

arry that that happened, and we feel that in the normal

course of events those corrections would have been caught.

Now, it is quite obvious that dealing with the Indian land

situation.that are. highly fractionated especially on the

Standing Rock Reservation that people who are not thoroughly

familiar with the records might make a few errors. Hence,

we expected to check those very thoroughly with Bureau per-

sonnel who through years of experience of that kind of re-

cord and so on would be able to spot any of those errors.

I do feel that the understanding of the Itirship situation

on the part of our own people is quite complete, and that they

are in a position to check those things, and that when the

appraisal is finally completed and corrected it will be a

good appraisal, one that we can stand on, and depend on at

least insofar as descriptions, and that sort of thing.

I think we will always have arguments as to the criteria upon

which appraisals are made.

Mr. Morris. Congressman Harrison.

Mr. Harrison. This firm which you said made the appraisal--

Mr. Spaulding. Gerald T. Hart.

Mr. Harrison. Have they worked for your department

before?

Mr. Spaulding. Not to my knowledge.

Mr. Ianson. Do you inow under wh.at circumstances they

were chosen for this particular work?

Mr. Spaulding. Yes, sir, I sat in on the conferences

with the Corps of Engineer paple.

Mr. Harrison. There was no firm or individual in the

location of this property who was competent to do this work,

you had to go to Colorado to supply somebody; is that

right?

Mr. Spaulding. I personally knew of no firm in the immed-

iate area.

Mr. Harrison. Was there any investigation made to

see if there was one?

Mr. Spauldingo I believe there was, sir.

Mr. Harrison. What extra cost, if you know, has been

placed upon the government, your department and the govern-

mnt, because of this faulty report?

Mr. Spaulding. None that was not anticipated. We an-

ticipated that we would check that report before it was re-

leased.
Mr, Harrison. In other words, when these reports come

in, you anticpate that they will have a lot of errors in

them; is that right?

lMr. Spaulding. Not necessarily, but to be absolutely

sure, we would certainly want to check them.

Mr. Harrison. Do you have any regular ratio or per-

centage of errors thnt c ,nr - ....

....-" -gur'sG that you
 59

20 count on?
Mr. Speulding. Sir, this is the first one that I have

ever had anything to do with, and I really could not say.

Mr. Harrison. Has this firm made any effort up to the

present time to correct these errors?

Mr. Spaulding. Oh, yes, indeed. They were immediately

willing, and worked with our people and the Corps of En-

gineers.

Mr. Harrison. Have they made any actual effort, out-

side of expressing their willingness to correct these errors?

Mr. Spaulding. Yes, sir, they have. I think the cor-

rections are being made, or have been made.

0 Mr. Morris. Are there any other questions?

Mr, Berry. The only question is that I wanted to summar-

ize it. The Indian Department approved the passage of this

bill.

Mr. Spaulding. Yes, that is correct. We favor passage

of the proposed bill.

Mr. Berry. Thank you, Mr. Spaulding.

-Mr. Morris. Did you care to call any other witnesses?

Mr. Ducheneaux, did you want to make a statement in

Regard to the matter?

Mr. Ducheneaux. No, I care to moke no statement. I

think our attorney has stated our position, and I want to

thank the committee for giving us this time.

 -40

21 Mr. Morris. You understand it is the privilege, al-

ways, for us to give you a hearing when we possibly can.

i Mr. Berry called me just a few days ago, this legislation

was filed within the past few days. As a matter of fact, I

think the print did not come out until yesterday. I might

say to attorney Curry that that is one reason why perhaps

you had not had sooner notice. This was an emergency mat-

ter, and I set it down particularly to accommodate these

people, and there has been a request only just a few days

ago made with regard to the matter,

Mr. Curry. I am sure it was an accident, Judge Morris.

I did not mean to indicate fault on the part of anyone.

M.r Morris. There was no intentional fault on the part

of anyone.

Mr. Ducheneaux. We are in complete agreement.

Mr. Morris. You are in complete agreement with the

Department of Interior that this time should be extended.

Mr. Duchoneaux. That is right.

Mr. Murdock. Mr. Chairman, I move that the bill be

reported to the full committee.

Mr. Morris. All right.

Are there any amendments to be offered or suggested

by anyone?

Are you ready for the question?

Do I hear a second?
 41

22 Mrs. Bosone. Second.

Mr. Morris. It has been moved and seconded that the

bill be reported to the full committee.

The ayes have it, the motion prevails, and the bill is
reported favorably.

(Whereupon, at 11:15 o'clock a.m., the subcommittee

adjourned.)

.tv
*
..
Tartaro 42
bb
rui
HL
E6o30 AFTERNOO SESSION 2:30 P. M.
Mr. Morris. You ma: proceed.
e Mr. Curry. I Just received a long-distance telephone

call, Mr. Chairman, from Whitney Agard, Chairman of the Tribal

Council, in which he said that the Tribe .had decided in princi-

pie that they want a year's extension rather than nine months,

and on hearing from him I considered that that would probably be

wise. At least the committee ought to provide that the time

will expire after Congress comes into session again at the begin-

ning of the next session because if it expires on December 31,

and if by any chance they have not finished their deliberations,

Congress will not be here to give them an additional extension,

if that is the wise thing to do. They have asked me to draft a
resolution for that purpose. They will have a meeting next
week.
Mr. Morris. Not arguing with you at all, but why have they
waited until this late hour, even after we passed this bill out
of the committee, to make these suggestions?

Mr. Cury. It Just had not occurred to them. I got in

touch with them -- I mean they got in touch withme about the
same time about the same time that I got notice of this hearing.

As I said this morning, I did not get notice of it until about

the time it was beginning.

Mr. Morris. Itake it the people themselves, the Indians,

vA q h Ti" 'ITYbo Cn&oile'1. hbv bppn in toich.

=-
 43

Mr. Berry. No. You see, this is the bill thatwas intro-

duced the day before yesterday.

Mr. Morris. Yes, but the subject matter of the bill has

been under consideration for some time.

Mr. Berry. Really only the last few days because we got

together with General Pick, don't you see, and got theArmy to

get to an extension, and the Indian Department to agree, and the

Indians, so it is really only about three or four days old.

This was the first time that the Standing Rock people have had

a chance to be consulted on the provisions of the bill, and the

agreement between the Army Engineers and the Indian Department.

Mr. Morris. Here is the situation: It seems to me instead

of having rehearings, which we would have to have, and our time

is really pressing, we do not want to waste any time, that mater

might probably be better taken up in the full committee; when we

go into the full committee we can amend it in any way we want to.

If it appears that it should be a year instead of nine months we

of course could amend it.

Mr. Case. The original idea in the pending bill 6030,

which was merely an idea at that time, was my recommendation to

the Cheyenne River Tribe Council that the time should be

extended to within ten days after the 83d Congress meets.

General Pick said that he would be reluctant to agree to any

extension beyond the current calendar year. That is the lan-

guage I used this morning, and it is in the record. So

 personally we have no objection to having it a year, but we do
want a dead line because without a dead line neither the Indians

Snor the white folks, in general -- especially lawyers, ust do

not do what they ought to do.

Mr. Morris. I see.

Mr. Curry. The dead line is 0. K. except I do not want

Congress to lose control of the dead line, and they would it it

was December 31.

Mr. Morris. Of course you are opening up an entirely new

subject matter that I am sorry has arisen. I am sorry it has

arisen bec ause that may tend to cause a controversy, where up

to this time there has been none at all. Everybody has been in

Agreement. If it gets into a controversy, you know how those

matters go, it might not even pass this session. We might get

Into a scrap and it may not even become a law, and you may lose

the nine months, too. So that is the thing for you to think

about.

I suggest this, I suggest, Mr. Berry, you get in touch as

soon as you reasonably can with the different interested parties,

the Indians and the Bureau and the Interior Department and the

Army Engineers, and see if you can agree on something. Whatever

9 you agree on, as far as the time is concerned, the full committee

would agree with, I assume.

Mr. Curry. I assume we will have a few days to get our

statement in on this.
5
Mr. MrrAt . All ri.ht.
(At 2:;45 p. a, the otcommtt.i(cee adjourned.)