Mr. FIELD. It looks as if it was taking it away from the rich ones and giving it to the poor.

The CHAIRMAN. How long do you desire?

Mr. MERILLAT. I think one week after we can see the printed record in consideration of the importance of this case, and the conflicting matters of fact that are involved in several cases, because.each branch of these 37 of course stand upon their own facts. There may

be certain common opinions of the Department running through several of them, but certainly as to quite a few of these 37 the ground of the Department's action is wholly distinct from its ground as to probably almost a majority of the applicants.

Senator CURTIS. It seems to me that in view of the fact that the Department admits that these people are of Osage blood-as the record shows it is admitted-many of them anyhow, and as the question is largely a legal one, as is contended by the attorneys of the Osages, that they ought to be able to make their reply inside of a week. Mr. HEMPHILL. I want to say that while there are 37 people here, there are some of them who belong to the same family.

The CHAIRMAN. Would a week from to-day be satisfactory to you gentlemen?

Mr. MERILLAT. Yes, sir.

The CHAIRMAN. I think you will be able to see the record tomorrow or next day, and the committee will now adjourn to meet one week from to-day, Wednesday, May 6, 1908, at 1.30 o'clock p. m.

OPENING OF THE OSAGES' ROLLS.

COMMITTEE ON INDIAN AFFAIRS,

UNITED STATES SENATE, Washington, D. C., May 6, 1908.

The committee met pursuant to adjournment at 1.30 o'clock p. m. Present: Senators Clapp (chairman), Sutherland, Curtis, Stone, and Paynter. Also, Charles H. Merillat, Charles J. Kappler, Ret Millard, J. B. Trumbly, and Wilson Kirk, representing the Osage Nation, and Messrs. Leahy, Miles, Henaphill, Belt, and Hamblin, representing the applicants.

The CHAIRMAN. Gentlemen, I may say in this matter with regard to the opening of the rolls, that, without prejudging it at all, there is a vast difference between the Senate granting the rights and refusing rights, and while a man might be willing to send this matter to the Court of Claims he might not be willing to reject these applications. So the idea has occurred to me to make that suggestion. While the committee, I may say, has never considered the matter, I am rather inclined to think that it would probably be favorable to pursuing that course. Do you incline to that idea?

Senator SUTHERLAND. Yes; I do not see what objection there could be to that.

Mr. LEAHEY. With reference to the court, our idea was that if it went to the court it should go to the circuit court, whose jurisdiction is where the tribe is, and where the evidence could probably be found. Senator SUTHERLAND. That would be a matter of detail. The question, primarily, is whether or not it should be sent to the court at all. What objection would you have to that, Messrs. Merillat and Kappler? Mr. MERILLAT. Our position is that the agreement between the Osages and the United States contemplated a trial of all persons whose cases were contested; that trial was had, and these applicants lost. The Osage agreement, when it came to Congress, gave the Osages the right to contest the cases of any person who had been enrolled through fraud. Now, after that agreement was sent here, and after it had been introduced and toward the close of its consideration, the persons who were representing certain of these applicants-the Osage Nation not being represented here-foreclosed the opening up of the rolls on account of fraud by getting inserted a proviso that they could only be opened up for newly discovered evidence. When the matter came before the Osage Alloting Commission, that Commission found that certain evidence that was offered was newly discovered evidence, and opened it up, and with that evidence, which they thought they had the right to consider, which showed fraud, they decided against a large number of those persons.

Then the Commissioner of Indian Affairs affirmed that decision, finding that their enrollment had been procured by fraud and that they had no Osage blood. When, however, it came before the Secretary of

45

the Interior he reversed the finding of the officer who had the witnesses before him. You know the Supreme Court opinions ordinarily are that the finding of an auditor or a referee or a master will not be disturbed on a question of fact, the person who personally takes the testimony being the best judge. But, notwithstanding those two adverse decisions, when it came before the Secretary of the Interior he held that he was so bound and so limited by the act to wind up affairs of the Osages that he could not take into consideration at all a large part of such testimony, and said that, eliminating everything that should be eliminated, under a strict construction of what was newly discovered evidence, there was not sufficient to show fraud by clear and convincing proof, and therefore he reversed the two findings below those of the Osage enrolling and allotting commission and the Commissioner of Indian Affairs.

Now, if the matter goes to the court on any person's right, the Osage Nation certainly should have the right, as is ordinarily given to every person, to impeach a finding for fraud. If the matter should go to the court we think that what should happen would be that there should be a complete determination with respect to those persons as to whom the Osages lost on this rather technical ground, as I see it, that they must rely to remove from the rolls for fraud solely on newly discovered evidence, as well as those cases which they won. The attorneys for the applicants want to retry all those cases that they have twice lost, but not to retry any case that they have won and cases that they have won purely by excluding evidence of fraud.

Senator SUTHERLAND. It is not a question of what the attorneys want, or the rights of the attorneys, but it is a question of the rights of these parties. Why should these people be denied the right to go into court and litigate their claim because somebody else may have been improperly or fraudulently put upon the rolls?

Mr. MERILLAT. They are claiming their rights through these same people who were put upon the rolls through fraud.

Senator SUTHERLAND. I do not quite understand that. How do you mean?

The CHAIRMAN. I suppose he means where a man is enrolled and a child is claiming the right because his parent has been enrolled; is that it?

Mr. MERILLAT. That is it in part. For example, the Osage council

Senator SUTHERLAND. I understand what you mean; it is that the judgment of the Secretary of the Interior that these parties who were enrolled and entitled to enrollment would not prevent the court, in the case of these 37 people, from inquiring into their rightfulness to be enrolled. Is that it?

Mr. MERILLAT. It would not, provided he sent the matter to the court, and provided that Congress acted, and assuming now that Congress could act for the present without reference to the tribe; there is perhaps a decided question there in view of the way in which they have their title to the lands.

Senator SUTHERLAND. But what I mean is the judgment of the Secretary of the Interior with reference to the claim of the father, for example, of one of those applicants would not be res judicata upon the question of the right of the child to be enrolled. There would

not be any such gravity in the case as to preclude the court from inquiring into the rightfulness of the judgment.

Mr. MERILLAT. No; but here is the situation: Suppose upon a review of the whole case it be found, for example, that certain persons were not entitled to be upon the Osage rolls--that is, on a view of the whole evidence or of all of the case before it, and yet because the Osage council that was in power about 1889 to 1892 had been induced, as two of the bodies found, by bribery and fraud to put upon the rolls certain persons who are kin to those who are now seeking it, it was held that the Secretary could not go in and exclude them, because he had to throw out a great deal of evidence, and because it was not newly discovered evidence, and therefore he would have to permit those persons on the rolls to remain while excluding those not on the rolls and as to which latter the law permitted all the facts to be proved.

Now, if the matter is to be tried we think that the whole case should be opened and the Osage Nation not foreclosed from showing that certain persons had no Osage blood, and that they got the right that they had by fraud. The Secretary, purely upon this technical proposition that he must rely upon newly discovered evidence and not on documents on file, deprived the Osages of the right of removing those persons from the rolls.

Now, the situation is exactly this, that those persons who got their rights in this manner had two trials just the same as those who did not get on. With respect to those who got on, the finding of the Secretary of the Interior was that it was a Scotch verdict-probably guilty but not proven by sufficient evidence to knock them off..

Senator SUTHERLAND. Then your position is that if the right of appeal is given, it ought to be given to the Osage Nation as well as to these individuals?

Mr. MERILLAT. To both parties.

Senator CURTIS. Then you would want to open up the whole question?

Mr. MERILLAT. We would want to open up the whole question with respect to those persons who, under the act of 1906, had their rights passed upon, because under the terms of the agreement between the Osages and the United States, that agreement contemplated a trial before the allotting commission and the Secretary of the Interior of the rights of all persons who claimed to be entitled to Osage enrollment, including those who had gotten on by fraud and any who had been denied.

Senator CURTIS. It did not go as far as that?

Mr. MERILLAT. That was the agreement, as shown in the print of the bill as it was first introduced. Subsequently, and after that bill had been introduced and had been reported by the House, at the last moment there were inserted the words that they could not dispute those cases for fraud except upon newly discovered evidence. Now those words barred the door to the Osages.

Senator CURTIS. Do you say that that was put in on the floor of the House?

Mr. MERILLAT. I do not say that they were put in on the floor of the House; I can not say that it was done on the floor, but we say it was not in the bill drafted by the Osages and introduced in the House or in the bill as reported to the House.

Senator CURTIS. Are you sure about that?

Mr. MERILLAT. I have the print here.

Senator SUTHERLAND. But it is in the act?

Mr. MERILLAT. It is in the act. Now, those words were inserted by these gentlemen, or some of them, representing the present applicants or they suggested them rather, and as passed the Senate and the House, put in these words without considering, as we think, the full effect of what those words would mean. The Osages had no representative here to explain what would be the result. Secretary Hitchcock denied them an attorney. They could not be represented and the Secretary was not representing them.

Senator CURTIS. My recollection is that those words were inserted upon the recommendation of the Secretary of the Interior, because I was chairman of the subcommittee that had charge of that bill, and my recollection is that the Secretary of the Interior and the Commissioner of Indian Affairs both recommended that those words be put in, because they had already tried the cases and said it would be unfair to open it up unless there was newly discovered evidence.

Mr. MERILLAT. The legislation was construed to mean that when the Osages did discover newly discovered evidence and open up a case, the Secretary could not consider in reaching his decision the old evidence; for example, the testimony of persons who had testified before; they excluded all that, and by this system, as the report of the Secretary of the Interior shows, of the exclusion of a large part of the testimony that showed fraud, the Secretary was compelled by the limitations placed by the act, as amended, on him to find that there was not sufficient evidence to fairly overcome the presumptions of innocence and presence on the rolls, and therefore reversed the finding of the Commissioner of Indian Affairs and the alloting commission that found that lack of Osage blood and fraud had been proved. The whole question turned, as the decision shows, upon how strictly you were going to construe the words "newly discovered evidence," and the Department felt constrained to construe them as strictly as the strictest court would construe them.

Senator SUTHERLAND. Let me ask you one or two questions for my own information When did the Secretary complete this enrollment under the act; do you know about when it was?

Senator CURTIS. The roll has just been completed within a week or two?

Mr. MERILLAT. No; the rolls were supposed to have been completed about a year ago.

Mr. KAPPLER. July 1, 1907; they were closed then, under the act of June 28, 1906.

Senator SUTHERLAND. And these people who are included in this joint resolution were at that time denied enrollment, about a year ago? Mr. MERILLAT. They were denied the right of enrollment.

Senator SUTHERLAND. I just wanted to get the fact. Now, one other question. The act under which the Secretary made the enrollment provided in express terms that no right of appeal should be allowed either party?

Mr. MERILLAT. Yes, sir.

Senator SUTHERLAND. Under the general law, if it had not been for the special provision of this act, both parties would have had the right of appeal?