bonds because of the limited assessable property and the limited rate in levying for taxes and bonds would not raise sufficient money (and if taxes and bonds could raise sufficient funds the annual charges thereof would be so very high that people would be driven from the town), our assessable property being limited to the personal property and the small area of the town site that is patented (the land sold on installment payments, by the Government, and the unsold Government land not being assessed for taxes); and

Whereas we assume that the well-established rules of law and fair dealing which are necessary in dealings between individuals or corporations should be the guiding policy of the Government in the promoting of this Government town site, to the end that any representations made in the booklets describing this project and this town should be faithfully carried out; and

Whereas on the 22d day of May, 1911, the directors of the Belle Fourche Valley Water Users' Association passed a resolution, copy of which is attached, favoring the proposition of one-half the proceeds from sale of town lots to go into local project fund, and one-half thereof to be spent for municipal improvements in Newell: Therefore be it

Resolved, By the trustees and officers of said town of Newell, S. Dak., that the Congress of the United States be petitioned to enact a law that the remaining unsold portion of the Government town site of Newell, S. Dak., be deeded to the incorporated town of Newell, S. Dak., and that the proceeds derived from the sale of such lands be invested in municipal improvements for said town under such restrictions as to Congress may seem just and proper.

Respectfully submitted.

INCORPORATED Town of Newell, S. Dak.

By JOHN ANDERSON, President.

CHAS L. MCWILLIAMS, Clerk.

A. E. WALKER, Treasurer.
L. D. ROSEBRO.

WILLIAM QUINN, Trustees.
H. PAULSON, Assessor.

W. C. HILLS, Justice of Peace.

O

CLAIMS AGAINST THE CHOCTAW AND CHICKASAW

NATIONS.

MAY 9, 1916.-Committed to the Committee of the Whole House and ordered to be

printed.

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

following

REPORT.

[To accompany H. R. 10555.]

The Committee on Indian Affairs, to whom was referred the bill H. R. 10555, being a bill referring certain claims against the Choctaw and Chickasaw Nations of Indians to the Court of Claims, having carefully considered the same, recommends that the bill be amended and as amended the bill do pass.

Amend the bill as follows:

Page 1, line 4, strike out the word "all" and insert in lieu thereof the words "the following."

Page 1, line 8, strike out entire line except the word "for."

Page 2, line 18, after the word "set-off," strike out the semicolon and insert the following: "against either the assignors or the assignee of said claim, all statutes of limitations against said set-offs or counterclaims being hereby waived."

Page 2, line 22, after the semicolon following the word "claims" insert the following: "Provided, That if any of such leases are found not to be underlaid with merchantable coal the same shall be canceled."

The bill as amended will read as follows:

A BILL Referring certain claims agains the Choctaw and Chickasaw Nations of Indians to the Cour: of Claims.

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, consider, and adjudicate the following claims of J. F. McMurray, as assignee of the firm of Mansfield, McMurray and Cornish, against the Choctaw and Chickasaw Nations of Indians, or either of them, for professional services rendered for said nations in the case of "The Choctaw and Chickasaw Nations versus The United States and the Chickasaw Freedmen," under Act of Congress approved July first, nineteen hundred and two, entitled "An act to ratify and confirm an agreement with the Choctaw and

Chickasaw Tribes of Indians, and for other purposes," and for expenses incurred under sections thirty-one, thirty-two, and thirty-three of the same act of Congress and for payment of two unpaid Chickasaw warrants issued by tribal authorities under act of legislature of the Chickasaw Nation approved by the governor of the Chickasaw Nation on September twentieth, eighteen hundred and ninety-nine, and afterwards by the President of the United States; and to render judgment therefor in such amount or amounts as may be found to be due thereon, together with interest from the date of such services or payments at the legal rate of interest prevailing at the time and place of such transactions; which judgment, if any, against said nations or either of them shall be paid by the Treasurer of the United States out of the funds of said nations as their interests may appear. Provided, That as to any such claims so sued upon the Choctaw and Chickasaw Nations, or either of them, shall be permitted to interpose all proper defenses by way of counterclaim or set-off against either the assignors or the assignee of said claim, all statutes of limitations against said set-offs or counterclaims being hereby waived: Provided further, That any amount found to be owing by the said J. F. McMurray to the said Choctaw and Chickasaw Nations upon coalmining leases held by him may be offset against any judgment that may be rendered in his favor upon such claims: Provided, That if any of such leases are found not to be underlaid with merchantable coal the same shall be canceled; and notice of filing of such suits by the said J. F. McMurray shall be served upon the principal chief of the Choctaw Nation and the governor of the Chickasaw Nation, and said nations shall be represented therein by attorneys for said nations, respectively, and by the Attorney General of the United States: Provided, That the Secretary of the Interior is hereby authorized to adjust, by mutual agreement with the interested parties herein, under the terms of this act and within thirty days after its approval by the President of the United States, all of the matters covered by the above provisions, and should such agreement be made by the Secretary of the Interior he is hereby authorized and directed to make requisition upon the Treasurer of the United States for the payment of the same out of any funds of the Choctaw and Chickasaw Indians as their interests may appear, and the Treasurer shall pay the same: And provided further, That no suit shall be instituted in the courts under this act until the expiration of thirty days after its approval by the President.

The following letter explains the matter fully:

DEPARTMENT OF THE INTERIOR,
Washington, March 30, 1916.

MY DEAR MR. STEPHENS: In further response to your letter of February 14, 1916, relating to H. R. 10555, entitled "A bill referring certain claims against the Choctaw and Chickasaw Nations of Indians to the Court of Claims, I will now report in full as to the various matters referred to in the proposed

measure.

The purpose of the bill is to authorize Mr. John F. McMurray to bring suit against the Choctaw and Chickasaw Nations on certain claims which Mr. McMurray is asserting against those tribes.

The first of the items referred to in the bill is that growing out of a suit instituted by the Choctaw and Chickasaw Nations against the United States and the Chickasaw freedmen under the act of Congress approved July 1, 1902 (32 Stat. L., 641). The nations were represented in that suit by the firm of Mansfield, McMurray & Cornish. of which Mr. J. F. McMurray, the claimant named in the bill, was a member. The fee claimed by the attorneys in that suit amounted to $27,500. The judgment of the Court of Claims in favor of the nations was affirmed by the Supreme Court of the United States February 23, 1904 (193 U. S., 115), the amount of such judgment to be determined by subsequent calculation when the number of Chickasaw freedmen should be finally ascertained. Appropriation was made in the sum of $606,936.08 to pay this judgment by the act of June 25, 1910 (36 Stat. L., 774, 807). The services in this matter were rendered under a contract executed and approved in conformity to sections 2103-2106 of the Revised Statutes. There is no serious contention that this fee has not been earned, but it has been asserted on the part of the Indian nations that there are counterclaims that the nations are entitled to assert against the firm that more than offset the amount of this fee. It is also contended on the part of the nations that inquiry should be permitted as to the validity of the alleged transfer by the firm to Mr. McMurray.

The second matter referred to in the bill is the claim for expenses incurred by the firm of Mansfield, McMurray & Cornish under sections 31, 32, and 33 of said act of July 1, 1902.

The amount of this claim is $25,544.07, not including interest, made of various sums said to have been expended during the period beginning in October, 1902, and

ending with December, 1904, by said firm in costs and expenses in connection with litigation before the Choctaw-Chickasaw citizenship court. Payment of proper expenses is authorized by a paragraph in section 33 of said act, reading as follows:

"All expenses necessary to the proper conduct, on behalf of the nations, of the suits and proceedings provided for in this and the two preceding sections shall be incurred under the direction of the executives of the two nations, and the Secretary of the Interior is hereby authorized, upon certificate of said executives, to pay such expenses as in his judgment are reasonable and necessary out of any of the joint funds of said nations in the Treasury of the United States."

It is insisted, on behalf of the nations, that many unjust charges were included by the said attorneys in making up the amount of this claim.

The third matter mentioned in the proposed measure is the claim based upon two Chickasaw tribal warrants, alleged to have been issued by the tribal authorities under an act of the legislature of the Chickasaw Nation, approved by the governor of that nation September 20, 1889. These warrants were in the amounts, respectively, of $5,589 and $5,000.

Summarizing, it appears that the total amount embraced in the three claims referred to above, not including interest, aggregates $63,633.07.

It will be observed that these claims are of long standing and, therefore, the item of interest, if allowed at the high rate prevailing at the time, will run up into a considerable amount. The legislation under which the claims arose makes no provision for payment of interest, pending administrative action. Therefore, the sum, if any, that may be allowed by way of interest will be in the nature of an equitable allowance, rather than a legal right. You are advised further, in this connection, that it is contended, on behalf of the Indians, that much of the delay is chargeable to Mr. McMurray and his associates.

I am of opinion that a forum should be afforded for the consideration and adjudication of the matters involved in the claims of Mr. McMurray, and that the nations should be permitted to interpose all objections they may have to these claims and all offsets and counterclaims. I am further of opinion that the Court of Claims is a tribunal to which the matter may very appropriately be referred.

The nations have a claim against Mr. McMurray in his personal capacity, which is in the shape of a judgment, rendered February 14, 1913, for $14,238, for certain royalties accruing under coal leases from the nations to McMurray up to October 19, 1919. There is also a further claim in this same matter for royalties accruing subsequently to October 19, 1910, which judgment and subsequent royalties with interest, it is asserted, amount to more than the fee of $27,500 claimed in the freedmen case. It is earnestly contended, in behalf of the nations, that they shall be allowed to offset this against any claim presented against them.

It is also insisted that the nations have a just claim against the firm of Mansfield, McMurray & Cornish for amounts heretofore improperly allowed as for expenses in connection with professional services. These amounts total about $180,000. It is contended that any legislation enacted for submitting this controversy to a court or other tribunal should provide expressly that the nations be allowed to offset the amounts thus alleged to have been improperly paid against any claims presented against them and to present a counterclaim for any surplus that may thus appear improperly paid.

When this subject was under consideration during the last session of Congress it was contended by Mr. McMurray that these matters had been finally and definitely settled and should not now be reopened. Suit was begun against the firm of Mansfield, McMurray & Cornish in behalf of the Choctaw Nation to recover some amounts alleged to have been thus improperly paid. The amount there involved was $42,348.66. This suit was subsequently dismissed September 8, 1909, without prejudice. No suit was ever begun against the said firm by or on behalf of the Chickasaw Nation. It is claimed, in behalf of the Choctaw Nation, that not only were unauthorized expenses allowed but that all these expenses were illegally incurred, in that the tribal law authorizing such expenditures was never submitted to or approved by the President of the United States. The firm strongly contends that these acts of the tribal council were not of the character required to be submitted to the President. You are advised in this connection that various disbursements were made to said firm from funds of the Chickasaw Nation under similar acts passed by the legislature of that tribe. Under one of these acts, which was approved by the governor of the tribe October 26, 1900, but not approved by the President of the United States, they were paid the sum of $53,866.39.

In view of the fact that it is insisted by the tribal attorney for the Choctaw Nation that the matter of the suit instituted on behalf of that tribe, referred to above, has not been so dealt with as to foreclose further consideration of same, and that it contains

items which should never have been paid, this department does not feel justified in passing upon the merits of the contentions of Mr. McMurray, and therefore recommends that the court inay consider the question as to whether or not this matter should be opened up and the items therein considered at least as an offset to the claim against the tribes. Inasmuch, however, as Mr. McMurray is so insistent that the previous acts of this department and of the Department of Justice were of such a nature that the questions involved are res judicata, or should not in fair dealing be again inquired into, if the Congress upon investigation should so conclude, this department will interpose no objection.

I am advised that probably the statute of limitations has run as to many of the items going to make up the claims of the respective parties, and it has been suggested that it would work justice to all to authorize the court to consider the matter without reference to such statute.

I find there is some difference of opinion as to whether the bill which is the subject of this report contemplates the adjudication of only the specific claims mentioned above or of all claims asserted by Mr. McMurray against the Choctaws and Chickasaws. For this reason it may not be irrelevant in this connection to refer briefly to other claims of Mr. McMurray. I am advised that he has secured contracts from many individuals, members of said tribes, and possibly from the tribal authorities also for services to be rendered by him in connection with the disposal of the coal and asphalt and other surplus property of the tribes, and that he has also, possibly, a claim for services rendered or to be rendered in connection with the "leased district" claim. In view of these additional claims it is possible that a slight change in the language of the proposed measure would be advisable in order to make its application clear.

The bill contains the following proviso:

"Provided, That as to any such claims so sued upon the Choctaw and Chickasaw Nations, or either of them, shall be permitted to interpose all proper defenses by way of counterclaim or set-off: Provided further, That any amount found to be owing by the said J. F. McMurray to the said Choctaw and Chickasaw Nations upon coalmining leases held by him may be offset against any judgment that may be rendered in his favor upon such claims."

A careful reading of these provisos inclines me to opinion that the right of counterclaim or set-off would be limited to matters growing out the three claims specifically mentioned in the bill, particularly as it seems to have been deemed necessary by the author of the proposed measure to refer specifically to the claim of the nations based upon unpaid royalties which accrued under McMurray's coal-mining leases. I therefore suggest that if it is intended to give the tribes the right to interpose any and all claims that they may have against the firm of Mansfield, McMurray & Cornish, growing out of the several contracts with that firm, the language of the proviso should be appropriately modified.

It would also seem that if interest is to be allowed Mr. McMurray for any amount or amounts that may be found duẹ him it would also be appropriate to provide for the allowance of interest to the nations on account of any sums found to be due them by reason of any set-off, counterclaim, or other claim. It will be noted, as suggested in a previous connection, that the claims of Mr. McMurray originally accrued in favor of the firm of Mansfield, McMurray & Cornish and that his right thereto is now based upon a contract of assignment. It will also be noted that there has been no assignment to Mr. McMurray or acceptance by him of the liability of the firm of Mansfield, McMurray & Cornish growing out of the matters which will probably be put forward on behalf of the nations by way of counterclaims, set-off, or otherwise. This state of affairs would seem to leave Mr. McMurray a beneficiary of the alleged assignments without entailing upon him any responsibility in connection therewith, except, perhaps, to the extent of his personal interest in the firm assets. Under the circumstances, it seems to me that provision should be made in the bill making it clear that the nations shall be entitled to have their claims adjudicated against the firm as a whole and that any amount found to be due them shall be held a proper set-off against any judgment that may be rendered in favor of Mr. McMurray, at least to the extent of his interest in the firm assets; and, furthermore, that the assertion by the nations of any such amount by way of counterclaim or set-off should not preclude them from challenging the legal sufficiency of the alleged assignment to him.

The bill contains a further proviso to the effect that the Secretary of the Interior may adjust, by mutual agreement with the interested parties, within 30 days after the time when the bill shall have become a law, all the matters covered by this provision. You are advised that it would probably be a physical impossibility, in view of the many other matters requiring the attention of the Indian Office, for that bureau to take up and audit all of these claims within a period of 30 days. A proper investi