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Sidney Claymore 217

Lloyd LeBeau . . ... 224

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136

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ACQUISITION OF LANDS FOR OAHE

RESERVATION AND INDIAN REHABILITATION

THURSDAY, MAY 20, 1954

United States Senate,

House of Representatives,

Subcommittee of the Committee on

Interior and Insular Affairs of the
United States Senate;
Subcommittee of the Committee on
Interior and Insular i-fairs of the
House of Representatives,

Washington, Do C.

The subcommittees met at 10:00 a, m., pursuant to recess,

in room 224, Senate Office Building, Honorable E. Y. Berry

presiding.

Present: Senator Watkins, Representatives Berry and

Shuford,

Also Present: Senator Case

Albert A. Grorud, member of the professional staff of the

Senate Committee on Interior and Insular Affairs.

Representative Berry. The committee will come to order.

When we recessed yesterday, Mr. Lewis Sigler was testify-

ing.
 137

STATEMENTS OF LEWIS A. SIGLER, PROGRAM COUNSEL,

BUREAU OF INDIAN AFFAIRS - (RESUMED) - AND
WALTER U. FUHRIMAN, DIRECTOR, MISSOURI RIVER
BASIN INVESTIGATIONS PROJECTS, BUREAU OF
INDIAN AFFA1HS.

Mr. Sigler. Mr. Chairman, my name is Lewis A. Sigler,

Program Counsel of the Bureau of Indian Affairs. I have with

me this morning Mr. Homer Jenkins, Chief of the Coordinating

Staff, and Mr. Walter U. Fuhriman, Director of the Missouri

River Basin Investigation Staff.

Do you wish me to proceed with the statement 1 was making

yesterday, Mr. Chairman?

Representative Berry. If you will, please.

Mr. Sigler. I find that I failed to mention three points

on the question of tribal ratification, when 1 took it up yester-

day. Thd was the first point 1 mentioned, which is whether the

tribe should ratify this agreement oy a three fourths majority

of all adults, or whether it should ratify by a simple majority

of all adults. I don't intend to go through that whole state-

ment, but 1 failed to point out that under the Tribal Consti-

tution, which is the basic document of the tribe at the present

time, all powers that are not specifically enumerated in that

Constitution are reserved to the membership of the tribe, and

those powers may be exercised by amending the Constitution or

by-laws. And 1 pointed out that that amendment is by a majority

vote. 1 mention that to indicate that in my judgment whatever

effect the treaty provision may have, the tribal constitution

 138

now provides that any power not specifically enumerated in

that Constitution will be exercised by the tribal membership

in the form of a constitutional amendment adopted by majority

vote.

1 should also like to point out that in so far as the claims

of the tribe are concerned, it is obviously not the intention

of the Department to do anything that would interfere with

those claims.

1 suggest that if there is any doubt about the effect of

majority ratification of this bill upon those pending claims,

it would be an adequate safeguard to write into the bill a

central sentence to the effect that nothing in the agreement

P will have any bearing one way or the other upon the tribal

claims that are now pending.

Finally, I should like to point out that the provision

of the bill in its present form,which was introduced by the

tribe, is itself inconsistent with the treaty provision

that is cited. The bill provides for a ratificationby three-

fourths of the adults. The treaty provision that is cited

provides for consent by three fourths of the males.

Now, three fourths of the adults is not the same thing

as three fourths of the males,and it would be possible under

the bill as written for the agreement to be ratified without

three fourths of the adult males.

I mention that merely to show that if the treaty provision

 139

has any significance at all, the present bill would notbe

consistent with it.

When I stopped yesterday, I was talking about Section 4

of the bill, which would require the United States to replace

all services and facilities now provided to the Cheyenne River

Indians, in the same quantity and in the same quality as those

that are now existing.

The Department's recommendation is that such a provision

is premature at the present time, because thelndians will not

be removed from the area for several years yet, and during those

several years their needs may very well change.

Judging from the recent history, the needs of the Indians

are changing rapidly, and the services and facilities available

to them today may not be the things they need eight years from

now. So that the Department's recommendation is that the

principle of providing Indian services and facilities be

affirmed, but that the nature of those facilities and services

be deferred until the occasion arises.

Representative Berry. May 1 interrupt there? Do you

think, though, that a reasonably agreeable amount should be

determined at this time to cover this?

Mr. Sigler. Mr. Berry, 1 pointed out that as 1 analyzed

the bill, this subject is separate and distinct from the compen-

sation that is payable to the Indians as damages for the taking

of their land and the removal of the Indians to another area.

 140

I think that Congress should set a figure on the damages,

but what I am talking about now is the continuing Federal

responsibility for providing services to Indians, and I sug-

gest that that function is not properly subject to a fixed

figure. Because Congress fixes that figure from year.to year

in the appropriations, and the amount of money that is to be

spent by the Federal government merely,under its program of

administering indian affairs, is something that is budgeted

and debated year by year.

I want to repeat, however, that A don't intend to indicate

in any way that this recommendation suggests a cessation

or curtailment of the services below the needs of the Indians.

1 merely suggest that it is too early now to determine what

those needs are.

That is all I have to say on the substance of Section IV.

1 should liketD point out, however, the last clause of Sec-

tion IV, beginning at line 17:

". .. the requests of said Tribal Council in respect to

all matters" -

and that means continuing Federal services --

"shall be complied with except when compliance is impossible,"

That is a statement which, if enacted by Congress, would

give the tribe the final say, the final decision, on what kind

of Federal services and to what extent Federal services are

to be provided. It is an unusual provision in that respect.

 141

My next comment relates to Section V, which deals with

the general subject of rehabilitating all members of the tribe,

not just the members who are living in the area that is affect-

ed bythis taking. Section V would name a specific sum of

money, in excess of $12 million, which would be appropriated

for the general purpose of rehabilitating all members of the

tribe. That phrase "rehabilitation" is coupled with a refer-

ence to relocating the members of the tribe who are residing

in the taking area.

Yesterday 1 suggested that the subject of relocation and

resettlement of the Indians in the taking area is a subject

that e have thought of as a proper part of indirect damages.

1 was pointing out yesterday that the subject of compen-

sation to the Indians, I think, properly should include both

their direct and indirect damages. That is the Department's

recommendation.

The indirect damages, in our judgment, include the cost

of relocating and reestablishing the Indians in some other

location. For that reason, 1 suggest that it would be unwise

to confuse or combine the subject of rehabilitation of all

members of the tribe and the relocationoof the members of the tribe

who must be moved because of this taking. The latter subject,

relocation of the Indians who are affected by this taking,

shouldin my judgment, be a part of the negotiations on cost

or damages to the Indians.

 7

142

With that explanation, the Department's recommendation

is that the subject of general rehabilitation of the tribe,

separate and distinct from this matter of relocation, is a

subject that is not properly in this bill. It should be

treated in separate legislation, based upon a detailed survey

of needs and a detailed justification of needs. But that is

the subject of rehabilitation, over and above any relocation

that may be included in indirect damages.

Senator Watkins. Because the land is in trust for the

Indians, it is necessary to have this money paid to them for

the lands taken? Isthat covered in this bill?

Mr. Sigler. Yes, the earlier section of the bill provides

for the payment to the Indians of a sum of money in compensa-

tion for the lands taken and in compensation for the indirect

damages sustained by the Indians by reason of that taking.

Senator Watkins. Do you depart from the ordinary rule

in the condemnation or taking cases that the reasonable fair

market value at the time and place of the taking of the property

is the measure?

Mr. Sigler. Yes. The hearings yesterday developed the

fact that Congress, in Public Law 870 of the 81st Congress,

established the principle, or rather directed the Department

of the Army, and the Department of the Interior to negotiate

with the Indians, on two subjects. One is the ordinary

commercial value of the land under the normal rules of law,

 143

when land is taken by the Government, and the second subject

was to negotiate with them for a sum of money that would

compensate them for the cost of relocating them and re-

establishing them in some other area. That direction of Congress

has been followed. Although the parties have not agreed upon

a sum of money, they have negotiated on those two bases. And

this bill follows that same direction. It includes a section

which would provide a sum of money for direct damages, and by

that I mean the normal taking costs.

Senator Watkins. The same as you would apply in an ordi-

nary condemnation suit?

Mr. Sigler. Yes. And a separate sum of money for the

indirect damages.

Now, that is in an earlier section.

The point I am speaking to no is a third subject, which

is general rehabilitation.

Senator Watkins. This is the one you say ought to be in a

separate bill?

Mr. Sigler. The Department's recommendation is that that

subject be in a separate bill, based upon a justification of the

needs of thelndians.

Senator Watkins. I think 1 got the background on the picture.

Proceed.

Mr.Sigler. The next comment relates to Section VI, which

deals with subsurface rights.

 144

The bill would provide for the retention of the Indians

of all subsurface rights i" the lands taken by the Government,

but the rights would be retained in a trust status, just as

they are today. The Department's recommendation is that those

subsurface rights should not be retained in a trust status.

The Department has no objection to the creation of a

private trust, if that is what the Indians wish, but the

recommendation is that the management and responsibility for

the subsurface rights not be retained in a trust status.

Now, therarew two reasons for that recommendation. One

is that we want to avoid a further heirship problem, which I

think this committee is fully aware of. If the Indians are to

retain the subsurface rights -- and we are in perfect agreement

that they should; they wish to retain them, and as 1 understand

it, the Department of the Army is agreeable that they may

retain those subsurface rights -- we want to do it in a way that

will not perpetuate the heirship problem that we have been

struggling with for years. We feel that if those subsurface

rights are retained and placed in a private trust, perhaps by

following the formula what was adopted by the Senate when it

passed the recent Utah termination bill, that formula would

adequately protect the Indians without imposing the continuing

burden oa the Federal government.

A second subject I would like to mention isthat we do not

think the termination of a Federal trust would impose any

10

145

undue burden on the Indians, because of the taxation problem.

Normally, subsurface rights, subsurface values, are not taxed,

under State law, until their value is ascertained, until there

is some development of the subsurface rights.

Senator Watkins. Until you know that you really have some-

thing of extraordinary value there?

Mr. Sigler. Yes. So that until that time occurs, there

will be no problem of taxation which might cause the lands

to be sold for delinquent taxes because of lack of money to

pay the taxes. Inasmuch as normally the tax will not be levied

until there is some demonstrated value there, at that time

there will be income from the land that would be available for

the payment of those taxes.

Senator Watkins. You have treaty with these Indians?

Mr. Sigler. Yes.

Senator Watkins. Does it contain any provision whatsoever

that would make it difficult to turn the subsurface rights

over to a trustee?

Mr. Sigler. 1 have not reviewed the treaty in detail,

Senator Watkins. I think it would not. This is in the category

of a normal Government taking. if this legislation were not

passed, Congress could condemn the land; and there is no doubt

about the power of Congress to take the entire fee, and I

think it would be equally clear that Congress could leave with

the Indians any part of the fee it wants.

11

146

Furthermore, you'll recall that the Solicitor of the

Department of the Interior recently expressed his opinion, which

is in the files of the committee, that there is no doubt at

all about the power of the Federal government, by legislation,

to terminate ths Federal trust. Whether that termination

subjects the land to taxation is a separate issue, but the

power to terminate the trust is,in our judgment, not question-

able.

The next comment relates to Section XI, which deals with

what 1 call the purchase of "lieu" lands

The bill provides that any of the Indians who are removed

from the area because their land is taken will have the privi-

lege of purchasing other lands in lieu of those taken by the

Government, and the title to thos6 lands purchased would be

taken by the United States in trust for the Indians.

The Department's recommendation is that no trust be taken

with respect to those lieu land, but that a restricted

fee by the Indians be taken, restricted only for the life of

the present owner. After the death of that owner, the restric-

tion would terminate. That restricted fee would be taken if

the lands purchased in lieu of the present ands are located

on or near the reservation.

The second part of the recommendation is that if the lands

are not on or near the reservation, if they are located in some

distant place, some town arcity, anywhere else, title should

I
 147

be taken in fee, just a straight fee. That is in line with

the Department's long standing policy of not taking title to

acquired lands in fee if they are distant from the present

Indian reservations. At the present time if an Indian with

trust land wishes to sell his land and go to Chicago and buy a

home, he may, if he is a competent Indian, but he may not buy

the home in Chicago with a trust title in the United States.

That is the same policy--

Senator Watkins. -- that has been in effect for years?

Mr. Sigler. Yes, That is the reason for the Department's

recommendation in this case, that any acquisition of L~eu

lands in areas removed from the reservation be acquired in fee

by the Indians.

Senator Watkins. May 1 ask you a question at this point?

Do they have additional lands that will not be taken for the

purchase of this project, nearby?

Mr. Sigler. Yes, Senator Watkins. There is a large part

of the reservation that will not be taken. However, the lands

that will be taken are the more valuable lands, and the lands

that many of the Indians use for residence purposes.

Representative Berry. If the gentleman will yield there,

the principal reason for that, Senator, is that as to these

lands back behind, if you will notic this map, there is

practically no one living here, because there is no water.

It is what iscalled Pierre shale, which, in our language, is

 148

just heavy gumbo. It is the stuff they talk about, that "if

you stick to it when it is dry, it will stick to youwhen it is

wet." So, to all intents and purposes, it is not too livable

back there unless you have water by construction dams,

Senator Watkins. Would this help out, having this reservoir

close by?

Mr. Sigler. No, the reservation itself gets no benefit from

the reservoir.

Senator Watkins They don't get any water out of it at all?

Mr. Sigler. No water at all.

Senator Watkins. Are they going to maintain shore rights?

Mr. Sigler. They want to maintain shore rights, yes.

Senator Watkins. How long a reservoir will this be?

Mr. Sigler. It will be 250 miles long, an average of a

little over 2 miles wide.

Senator Watkins. Is it going to be used for irrigation?

Representative Berry, Only if they pump it up over the

divide-east into the during area.

Senator Watkins. None is planned at present for the project?

Mr. Sigler. Well, there is a plan to pump it over into the

Jim River and use it over there. But the more the investigation

that is made, the less feasible 4t seems to be.

Senator Watkins. Is it being built for power purposes and

flood control?

Mr. Sigler. Flood control, navigation, and power, yes.

 149
Senator Watkins. What recreation?

Mr. Sigler. Navigation below Sioux City.

Senator Watkins.Oh, deep enough water in the river so

that you can float a boat down below?

Mr. Sigler. Yes, if you have a boat.

Senator Watkins. That is a new one,

Mr. Sigler. Mr. Chairman, 1 think it might be helpful for

Senator Watkins to know that yesterday we were discussing at

some length the fact that under the proposed plans there will

be a buffer strip of land between the retained reservation

lands and the line of the reservoir, so that the Indian lands

will not come right down to the water.

Senator Watkins. Will the water be used for municipal

purposes only, from this reservoir?

Mr. Sigle . I think not, but 1 am not familiar with the

details.

Senator Watkins. That is all. It was just background.

That -s all.

Representative Berry, Actually it is just a part of the

big Missouri program. It is one of six dams that tie into Fort

Peck, Garrison, Oahe, Fort Randall, and Gavin's Point, five

at the present time that are under construction; and there will

be one below this dam in South Dakota.

Senator Watkins. What river is it on?

Representative Berry. On-the Missouri.

 150

Mr. Sigler. Here, Senator, is a good picture of it.

My next point relates to Section XV,.

That section would permit Indians who presently own fee

patents of land within the taking area to acquire what I have

called lieu lands, other lands in lieu of their fee patented

lands outside the area, even outside the reservation, and to

acquire them in trust. The Department's recommendation is

that Indians who presently have fee patents should not be

authorized to acquire additional land in a trust status. The

additional land acquired by them should be acquired in a fee

status, as their present lands are now.

Senator Watkins. Do you have any considerable amount of

acreage in fee patent in that area?

Mr. Fuhriman It is relatively small. 1 don't have the

exact figures.

Mr. Ducheneaux. A very small acreage, fee patent land.

Mr. Sigler. The Department's recommendation is based

entirely on a matter of principle, that an Indian who has been

declared competent, who has received a fee patent to this land,

is a competent Indian, and if he wants to buy additional land

somewhere else there is no reason why he should take it in trust.

Senator Watkins. -1 will agree with you on that.

MrSigler. Section XV would permit owners of undivided

interest in land, that is, the so called heirship land owners,

to consolidate their heirship interests, and to acquire lieu

 151

lands under this sae controversial section XI.That would

mean

acquire trust lands anywhere in the United States without

regard to how remote those lands are from the reservation.

Our reservation is that the scope of the section should

be restricted to the owners of heirship lands within the taking

area, and their privileges to acquire lieu lands should be

modified in accordance with your recommendation for changing

Section Xi generally. That is, it ought to provide for a

restricted fee for the life time of the owner if the land is

in the reservation or near the reservation, and it should

provide for an unrestricted fee if it is anywhere else.

That is all the Department has to suggest with respect

to the specific provisions of the bill.

The Department's report points out that some of the

sections that 1 have not mentioned are primarily the concern

of the Department of the Army,and others are primarily the

concern of this committee and Congress, because they involve

basic policy issues.

One remark I would like to make, however, is to the

effect that the bill contains no provision regarding the dis-

bursement of whatever sum of money Congress decides to appro-

priate for the taking of these lands. And I think it is clear

from the discussion that has gone before that the sum of money

will include not only the sum necessary to reestablish the

indians on other lands; the disbursement of that money will

 152

permit no particular problem; but it will include, if present

figures are used at least an equal sum of mony over and above

what is needed for that, which will be general tribal funds

damages for injuries sstained by the tribe, but that money will

not necessarily be needed for relocation purposes.

This bill does not treat with how that money should be

used or spent,

Senator Watkins. Do you think there should be such a

provision?

Mr. Sigler. No, Senator, I am not suggesting that we write

any provision into the bill now. But I want to make it clear

that that isthe state. It will leave that money subject to

future direction of the Congress,

Senator Watkins. At the same time we consider rehabilita-

tion, we might then consider what provision we should make with

respect to that item.

Mr. Sigler. Yes.

Now, I indicated yesterday that I was skipping over the moj

important point of the bill, and that is the amount of money

that is to be paid to the Indians. I pointed out that the bill

provides a sum of money for direct damages and a second sum

of money for indirect damages; and indirect damages are broken

down in our thinking into three parts. The cost of relocating

and reestablishing the Indians in some other place --

Senator Watkins. Does that include the buying of the new

 153

lands, the cost of the new lands?

Mr. Sigler. It includes it, but the Indians will use the

money they get in compensation for their taking lands. They

will use that money for that purpose.

Senator Watkins. That is what I was going to say. If we

are going to buy the lands and give them fair market value at

the time of the taking plus any severance damages that may come

into the picture, then it would seem that actually the money

for the buying of the new lands ought to come from the money

they receive for the lands taken.

Mr. Sigler, I think there will be no dispute about that,

Senator. The intention is to pay the Indians the fair value

of the lands taken and then to supplement that sum with what-

ever sum is necessary in order to relocate them and reestablish

them in comparable surroundings.

SenAtor Watkins. Well, what items would youconsider as

a proper damage there for the relocation? The purchase of the

land itself is not to be considered, unless you have to get an

entirely different type of land?

Mr. Sigler. That is correct. I am going to ask Mr. Fuhri-

man to go into the details of how those figures might be

considered, but I wanted to give the general categories and

then ask for permission for him to develop those ideas. Because

that is a question of how much money the Indians should be paid

and what they need it for. And I am suggesting now that the
!
 154
indirect damages include that as one element, if Congress

wishes to appropriate money for that purpose. And the Depart-

ment recommends that it do.

The second element is the value to the Indian of timber,

wildlife, and wildlife products, over and above their normal

commercial value. The Indians in this reservation rely quite

heavily upon gathering fruits, berries, nuts, and wildlife for

their meat supply.

Senator Watkins. Is it an area where they have a forest?

Is this tree-covered?

Mr. Sigler. It is not a forest, as I understand it, but there

is cover along the river, and that is the area that will be

flooded. And tberemoval of the cover will force the game away,

and the Indians on the upper lands will not have access to what

they now have,

Senator Watkins. What game is there up there?

RepresentativeDerry. Deer, antelope, and, as set out here,

rabbits, pheasants and all sorts of wild game.

Senator Watkins. What is the elevation?

Representative Berry. 1620 is the mean elevation of the

water, according to this report.

Senator Watkins. It is rather low, isn't it?

Mr. Kimbel (J . . Kimbel, Special Counsel, Office of the

Chief of Engineers). The pool elevation.That is not the eleva-

tion of these lands. The water will be raised to a maximum of

I
 155

1620.

Mr. Sigler. I am suggesting that is an element of damage-

that is over and above the damage that will result from the

mere taking of their land, Because the Indians are living in

an economy that is different from the economy of the non-Indians.

They will be forced to buy meat if they can't go oUtand shoot it.

That type of cost is the second type of indirect cost that

we are suggesting the Congress consider.

The third breakdown is a catch-all. We have simply

labeled it "All Other Intangible Values to the Indians."

That is the break down, direct and indirect, with indirect

broken into three parts.

Mr. Berry referred several times yesterday to the report

of the Investigations Staff No. 138. He has a copy of that

report. Copies have been made available to both the Indians and

the Corps of Engineers, and although it is not a report that the

Department has submitted as a firm recommendation, it has been

made available for whatevervalue the facts in it may have.

It represents the results of considerable study on the part

of our staff, and I think the facts in it will at least indicate

one possible way in which this subject of compensation might

be handled. It is not the only way, but it is one approach that

the Congress might well consider.

Now, with that statement, if the committee wishes to hear

more details about the way in which the appraisals were made by
 156

the Bureau, the appraisals of the land, and the way in which

the indirect damages were computed, Mr. Fuhrimar is available

to give you any help he can.

Senator WatkinSo In the first place, what is the acreage

taken?

Mr. Fuhriman. 104,420 is the figure we have. The Army's

figures are a little different from that, I understand from

yesterday's testimony.

Senator Watkins. And that would be 100,000 acres.

Mr. Fuhriman. Yes.

Senator Watkins. What is the over-all sum for the taking

of the land?

Mr. Sigler. Senator Watkins, that is in dispute. To re-

capitulate, there will be three figures that will be paid for

the taking. The original Corps of Engineers figure, based upon

an official appraisal under Public Law 870, was around

$1,600,000. The MRBl, the Indian Bureau figure, originally was

two million and a few thousand. The Tribal request was two

million-six, or was originally. In the Corps of Engineers, the

Army figure was increased to two million. The Indian figure

came down to two million-five. And te Department's recommenda-

tion is right in between those, and Mr. Fuhriman will tell you

how he got that figure. That is the direct damage, the value

of the land and the improvements. In addition to that, the bill

contemplates some figure for indirect damages, and the figure

 157

named in the bill is about three times that figure.

Senator Watkins. Perhaps my arithmetic is wrong. The

figure named in the bill is six million plus.

Mr. Sigler. For the entire direct and indirect damages?

Senator Watkins. No, for the indirect damages, which, when

added to the direct, would make a figure of nine million-plus.

You have 12 million here for rehabilitation.

Mr. Sigler. The rehabilitation figure of 12 million is on

top of that.

Senator Watkins, I should indicate that this bill is in

the identical form of the proposed agreement that was negotiated

but never concluded. It was proposed by the Tribe. This is the

tribal proposed contract. It was the one they failed to reach

an agreement on.

Senator Watkins. Was it just the matter of dollars and cents

that they had in dispute?

Mr. Sigler. No. The negotiations came to astop when they

failed to reach an agreement on the first dollar figure; that is,

the direct damage, the two or two and a half million figure.

When the Indians and the Army failed to agree on that figure,

all negotiations stopped. And the Indians indicated that they

did not wish to consider the other provisions of the agreement

and wish to submit it to the Congress. Their proposed agreement

has been embodied in this bill that you are considering today.

Senator Watkins. How many Indians are involved?

 158

Mr. Fuhriman. We figure there are about two hundred

families involved in the taking area and environs. That

includes a few in addition to that 153, plus a few people around

the edge.

Senator Watkins. Two hundred Indian families. About how

many Indians?

Mr. Fuhriman. About five times that.

Mr. Sigler. That is in the taking area. The tribal member-

ship is much larger than that,

Mr. Ducheneaux. It is 4300 on the members, enrolled members.

Senator Watkins. Do all members living on the reservation

participate in some phase of this proposed damage?

Mr. Sigler. The answer is "yes." They will.

Senator Watkins I thought those that have lands-not actual-

ly on the river bottom will probably claim some compensation by

reason of taking the hunting grounds along the river.

Mr.Sigler. The present owners are individual owners or

allottees, and also the ribe has some tribal land, so that the

entire tribal membership will benefit from any figure paid for

tribal lands.

In addition to that, some of the indirect damages proposed

will be for the benefit of the entire tribe; that is, the less

of hunting grounds and so forth.

Senator Watkins. Then how many Indians in the tribe? I want

to find out how many people, if 1 can.

 159

Mr. Sigler. The tribal delegate said around 4300.

Senator Watkins. What do theycall this tribe?

Mr. Sigler. The Cheyenne River Sioux Indians. This is

one part of the original large Sioux Tribe,

Senator Watkins. 1 am sorry I didn't do some preliminary

study on this, but I just didn't have time. I have been meeting

to many places and doing too many things and didn't get a chance

to study this in advance.

Representative Berry. Here are some figures on the fee

patent land we were asking about a whele ago. Thereare eight

tracts, embracing approximately three thousand acres.

Senator Watkins. That is all the fee patent land you have?

Mr. Kimbel. That is all that is in the taking area.

Representative Berry, What we were talking about was in

the taking area.

Senator Watkins, And do you have any severance of the

allotted land, any part of the allotted land that will not be

taken?

Mr. Sigler. Severance damage,

Senator Watkins. That would result in severance damage.

If you have a tract of 600 acres that Jsallotted land and

you cut it in two and only take 300, there might be some sever-

ance?

Mr. Sigler. Senator Watkins, there will be such severances,

and the figures that Mr, Fuhriman gave have included that element.

I
 160

However, the way in which the Bureau approached that problem

is different from the way in which the tribe approached it,

and the results are different.

Senator Watkins. There are three ways, the Army way, the

Bureau way, and the Indian way, in this?

Mr. Sigler, Yes,

Senator Wackins, 1 thought that would be true.

Mr. Sigler. I think it would behelpful if Mr. Fuhriman

could review for you the way in which the appraisal figure of

the Department was derived and the way in which we have prepared

as best we can figures relating to indirect damages, so that

you will know precisely what it is we are talking about

Senator Watkins I have had some experience, not in taking

indian lands, but in taking lands from the ordinary American

people, the while people. It is quite different. There are no

indirect damages, and, of course, no rehabilitation money

either for them. We just take it, and they have to go out and

buy it somewhere else if they can find it somewhere else.

Mr. Sigler. That is true. In the case of the Indian commu-

nity, the recommendation the Department has made, however, is

that the Indians, these Indians, are normally not in the same

status as the non-Indian in the community.

Senator Watkins. I am not criticizing your program or any-

thing. 1 am just indicating the difference, We took many

farms and had to practically move a town, and we paid them what
 161

the property was worth at the ordinary sale, fair market value,

paid them for their improvements, and where they had severance,

we paid them for that.

Mr. Sigler. Yes.

Senator Watkins. But it would be far less than on the

theory on which you are proceeding, because on the theory you

are proceeding on here you are goingto give them indirect

damages as well. That is not ordinarily allowed in the case of

the white people, unless it enters in as an element of the cash

market value of the property at the time and place of the taking.

Mr. Sigler. I should indicate, Senator, that the Army repre-

sentatives yesterday testified about a recent statutory provi-

sion that permits the Army to pay up to 25 per cent of the

value of the land, or in addition to the value of the land, to

go toward the cost of the moving and so on, so that the idea

of some compensation in addition to the market value of the

land is now recognized in connection with the Army acquisitions.

And this proposal that you are considering now would involve

the same principle, but more money.

Senator Watkins, I see.

Mr. Sigler. The suggested cost is more than 25 per cent of

the appraised value of the land.

Senator Watkins. My experience with an ordinary appraisal

is that it is 25 to 50 per cent above the normal market value

at the time and place of the taking, so by the time you get
 162

through, you have nearly a hundred per cent increase. That

is the experience we have, In order to get satisfactory settle-

ment, the appraisal was placed way over and above the actual

value of the property, the cash market value.

Mr. Sigler. The appraisals are one of the items in dispute

between the three parties right now.

Senator Watkins. I haven't anything further to ask, Mr.

Chairman.

Representative Berry. Do you want Mr, Fuhriman to proceed?

Mr. Sigler. 1 think it would be helpful for him to indicate

how these appraised values were arrived at.

Representative Berry. If you will, Mr, Fuhriman.

Mr Fuhriman, Judge Kimbel indicated yesterday somewhat

in detail how the so called Hart appraisal was arrived at, and

I don't think I need to or should reiterate what he has said.

1 might state that as far as the Bureau of Indian Affairs were

concerned, we participated in order that Mr. Hart, the

commercial appraiser, would have additional information to what

was available at the time. A soil survey was made, a standard

SCS capability soil survey.

Then, as indicated, there is quite a little timber in the

area, and so, in order to have measure of how much it was,

the Bureau of Indian Affairs and the Army jointly made a timber

cruise, a standard timber cruise, 20 per cent, commercial timber.

Senator Watkins. What kind of trees?

 163

Mr. Fuhriman. It is cottonwood, ash, oak, juniper, and

so forth.

Senator Watkins. Has it grown to sawmill size?

Mr. Fuhriman. Yes, there is some sawmill timber in it.

We can give you the breakdown on that, if desired,

And we did take the breakdown in figuring out our appraisal.

Senator Watkins. That is all on the river bottoms?

Mr. Fuhriman. That is all on the river bottoms. That is

right.

So that those two, the timber cruise and the soil survey,

were available to Mro Hart when he made his survey.

Before Mr. Hart appraisal was presented to the

Bureau of Indian Affairs and the Indians, the Bureau of Indian

Affairs thought that in order to be in a position to make a

check of the adequacy of the Hart appraisal, they should

make a spot check, So their appraisers went out in the taking

area and took a sample of twenty tracts of land and made an

independent appraisal of those tracts, using the soil survey

which had previously been made and the timber cruise which had

been made.

Then, after the Hart appraisal was submitted to the

tribe, the representatives of the Bureau of Indian Affairs looked

it over, and we thought that there was some deficiencies in it,

In the course of negotiations subsequently, the tribe indicated

that they were not satisfied with the appraisal.

 164

In order to try and iron out the differences, the Review

Committee, which was discussed yesterday, was appointed. That

reviewing committee consisted of representatives from the Corps

of Engineers, from the Bureau of Indian Affairs, and from the

Tribal Council.

Now,one of the things in dispute was the classification

of the land. The people who had made the soil survey and the

appraisers of the Indian Bureau felt that Mr. Hart hadn't

made adequate use or made proper interpretation of the soil

survey in arriving at a land classification. So that this

review committee was charged with the responsibility of seeing

if they could come up with a land classification which would be

agreeable.

There was also in dispute the value of a considerable

number of buildings, which specific members of the tribe had

indicated they thought were improperly valued. The committee

was authorized to look at those and to see if they could arrive

at a reappraised value.

They were instructed to look over the itsua of severance

and to mark down the percentage of the land that was taken as

compared to the percentage that was left, but were not authorized

to place a severance value on that.

As a result of the reviewing committee's work, 1 believe

full agreement was reached as to the classification of the lands.

Practically full agreement was reached regarding the value of

 165

the improvements. The value of land, as such, was not discussed

by the committee.

We instructed the appraisers who participated in that

review that as they went out over these various tracts in dispute

they were to make notations for their own us as to what the

appraised value should be.

After the reviewing committee made its information avail-

able, then the Bureau of Indian Affairs, taking all of that

information into consideration, arrived at what they felt was

a proper fair market value for the various classes and grades

of land which had been established by the reviewing committee.

The appraisal which the Indian Service has in its report,

the $2,053,117, was arrived at by applying that standard value

per acre of the various classes -- there were about fifteen

classes and subclasses -- to the acreage, and then adding up

the result.

So that, as to the appraisal of the Indian Bureau, we

did have people that went out and examined each individual

tract so far as the soil survey was concerned. Our appraisers

did not examine each individual tract from an appraisal point

of view. They examined ample tracts in the first spot check

they made of the appraisal, and then they examined additional

ones with the reviewing committee. So that we feel that they

were in a good position to state what the fair market value

of these various classes were that they had seen on the ground,
 166

so that our average value that was used in arriving at the total,

we feel, was well supported.

On this appraisal: As you recall from yesterday's discus-

sion, it was indicated in Public Law 760 that it should take

into consideration improvements, severance damages, standing

timber, mineral rights, and the uses to which the lands are

reasonably adapted,

On most points, this appraisal of the Indian Service

did not take into account mineral values or gas and oil.

Senator Watkins. You didn't have any evidence?

Mr. Fuhriman. We had no evidence there, so the appraisal

here is entirely without the consideration of the value of

mineral rights.

Senator Watkins. Let me ask this question now. Has there

been any discovery of oil or gas in that area or adjacent to it?

Mr, Fuhriman. As I understand it, there has been no actual

discovery, but there is activity in buying up options in the

area.

Senator Watkins. Getting leases?

Mr, Fuhriman, Getting leases.

Representative Berry. Activities nearby.

Mr. Fuhriman, Yes, actual activities nearby.

Representative Berry, There are three wells in Harding

County which is a hundred miles from this area.

Senator Watkins. Producingwells?

 167

Representative Berry. They think they will be. The last

one is the best.

Senator Watkinso I was just curious to know if it is in

that same area where you are making the discoveries.

Representative Berry. The whole thing is being considered

in the Willison Basin, and they have drilled three wells in

Harding County where they have struck oil. They have drilled

a number of wells, two or three on the reservation, where they

have had pretty good showings, but they haven't anything produc-

ing as yet. There are two or three,

They are paying a dollar and a quarter royalty on a lot

of these lands, which indicates that they are a little open.

Senator Watkins. That is for the lease itself, the dollar

and a quarter?

Representative Berry, Yes,

Mr. Fuhriman. One of the reasons, in addition to the fact

that there wasn't much information available as to gas and

mineral rights, was the fact that the negotiations indicated

that there would be reservation there, and that thereforewould

not be a proper thing to be taken into consideration in the fee

to be given. Then the law states that we were to take into

consideration severance damages. In this appraisal, we have

taken into consideration severance damages on the allotted land

only; that is, the land in the hands of individuals, either

assignments or allotments. It does not include any severance

 168

damage on tribal property, which in this case is a little more

than half of the land in the taking area.

Senator Watkins. What was the reason why you didn't take

into consideration severance damage onthe tribal property?

Mr. Fuhriman It was generally considered that the tribal

tracts were in large bodies, and it was thought that the tribal

severance, that element, could be better handled as part of the

indirect damages.

Senator Watkins. 1 suspected that is what you had in mind,

and that would appear to be a reasonable assumption.

Mr. Fuhr-man. And these severance damages -- the way our

appraisers arrived at them was the ordinary damages which

arise because of a particular piece of property being cut and

severed. It did not take into consideration the point which is

perhaps very important here, that for the reservation as a whole,

you have about 90 percent of the timber land and a good deal of

the best watering places and meadows, taken. So that the sever-

ance here amounts to only about 40 per cent of the total value

and is the ordinary severance as arrived at in the ordinary

condemnation.

Senator Watkins. Is this land along the river under

cultivation?

Mr. Fuhriman. A small amount is under cultivation. Most

of it is grasing land. A considerable portion of it is meadow

which is cut for hay.

 169

Now, we aldo didn't include in our appraisal the value of

a hospital at the Cheyenne River agency, in which the tribe, I

think, has an interest.

Senator Watkins. By reason of money they put in from their

tribal funds, or by reason of the fact that it has been built

for them by the United States?

Mr. Fuhriman. I understand they put in some tribal funds.

Mr Sigler. Just to clear that up, may 1 indicate,

Senator, that the value of the land is included in the appraisal.

The improvements on the land, the hospital,which is partially

built with tribal funds and partially with Federal funds, is

not included. That is a subject of continuing Federal services

which is in the category I was discussing earlier, that we will

defer until a later date, to know whether we are going to continue

or not continue.

Senator Watkins. 1 see. You might just as well have it now

as any other time, ia order to know what the fact is.

Mr.Fuhriman. We also did not include in this tract a

so called irrigation potential, which, in the tribal evaluation

probably stems from this latter part, where they were to take

into account the uses to which the lands are reasonablyadapted.

We did take into account the purpose to which the lands are

reasonably adapted under the present economic development in

the area.

Now, as to the irrigation, while there are potentials there,

 170

that was years ahead, and as yet it hasn't entered into the

general economy of the area. So that we did take into consider-

ation the use to which the lands in the taking were reasonably

adapted at the present time. And we weae able to do that because

of the soil survey, which indicated those lands which were

arable and those lands which were non-arable,

Senator Watkinso Was some of it this gumbo that you were

talking about?

Mr. Fuhriman. The gumbo we were talking about is largely

in the uplands. These are in the recently filled area. These

bottom lands are the recent alluvial lands that have been

laid down by the river, and i do not have the characteristics

which Mr. Berry mentioned as being characteristic of the river,

the residual part of the reservation.

Senator Watkins.. Is irrigation required to produce crops?

Mr. Fuhriman. The rainfall is sufficient in the area to

produce what you call dry land wheat and things of that sort,

Senator Watkins. Will it produce hay without irrigation?

Mr. Fuhriman. Yes, those meadows will produce hay,

Senator Watkins. Is there any irrigation at all there now?

Mr. Fuhriman. There is very,iry little. I think there are

one or two sprinkler irrigations in place, and then there is

something down at the agency farm.

Senator Watkins, Nothing to amount to anything?

Mr. Fuhriman. Nothing of any consequence,

 171

Senator Watkins, Irrigation, 1 may say, is a very expens-

ive operation. Even after you have your water supply secured,

yourcanals built, your laterals and distributing system,

sprinkler system, or what not, it is a heavy cost to operate

them. So that sometimes to have irrigable lands is not any

great advantage, if you have lands that you can take care of

otherwise and cultivate without irrigation,

Mr. Fuhriman, Now, there is one element we haven't

included in here, which the tribe has put in. We put no value

for the river bed, In the acreage there is something like 600

acres, as 1 recall,termed river bedo We appraised that at

zero value.

Senator Watkins. Let me ask you about the stream. Is it

a muddy stream at this time?

Mr. Fuhriman, Yes, Missouri River.

Senator Watkins, In other words, like the Colorado, it

belches forth red mud? I understand this is black mud. We have

red mud in some parts of the Upper Colorado it is not a very

beautiful stream to look at, actually; either one of these

streams.

Mr. Fuhriman. That is right.

I think another point to look at here is that the appraisal

the Indian Bureau made was based on general land prices as of

November 1951, As you know, prices are changing, and we froze

prices at that level. Our appraisers evaluated the sales that had
 172

been made prior to that time in terms of what the prices were

then, and increased then.

Senator Watkins, Have they been going up, or down, out there

since?

Mr. Fubriman. They have been going both ways. The

official figure that the Bureau put here of $2,234,934 was

arrived at by taking into account a rise in value of lands iu

South Dakota which had occurred between November 1951 and a

year later, when the negotiations were held here in Washington,

In July of 1952, which was the last period for which we had

data available at the time of the November conference in 952,

prices had gone up about 4 per cent from the time our appraisal

was made. So that in arriving at this $2,234,934, we added

on to the appraised value 4 per cent. Then we added another

roughly 5 per cent, or $100,000, as a fund to take care of the

fact that in arriving at the appraisal we had used only standard

rates. For instance, we had used for the upland grazing area

of 3 G land, $16,00, it is recognized that some land is a

little better than average, and some is a little less. And it was

felt that if settlement were made on this basis, some Indians

could come in and justly say that their particular land was

a little better than the average on which this standard price

was set. And it was impossible for the reviewing committee

to make sure that all buildings which they had picked up in

the reviewing committee, or quite a lot of buildings had been

 173

omitted, but it was impossible to know whether even in the

reviewing committee they were able to gather all of them.

So, to take care of those contingencies, the Bureau thought

that they could justify adding another hundred thousand dollars.

So that this figure of $2,234,000 which the Bureau recommends

was arrived at in that way, the 1951 appraisal plus 4 per cent

increase in value because of the rise in prices that occurred

until that point, plus the $100,000 to take care of deficiencies

in appraisal of various sorts,

Senator Watkins. In making that appraisal, 1 assume the

Indian Bureau was taking it from the standpoint of being the

trustee for the Indians?

Mr. Fuhriman. We were taking it as near as we possibly

could from what we thought the fair market value was.

Senator Watkins, You wanted to protect them in at least

getting the fair market value?

Mr. Fuhriman. Yes, we wanted them to get the fair market

value and we did as conscientious a job as we could to arrive at

the fair market value for the lands.

SSenator Watkinso Whom did you employ to make the appraisal?

Mr. Fuhriman, The people who made the appraisal were

Mr. Ernie Salley, who has been with the Bureau of Indian

Affairs for about twenty-six years and most of the time has been

engaged in land work. He has appraised thousands of acres.

He did a lot of work in the Wind River Basin in that purchase

1
 174

program for Indian lands. You will remember that some years

back funds were made available to purchase lands from the

whites to block up Indian units in the Wind River. He made a

lot of appraisals there, and he has made a lot of appraisals

down in the southwest on this so called submarginal purchase

program, which the United States engaged in. He worked for

several years in purchasing those submarginal lands, all

throughout the midwestern area.

Senator WatkinSo What does this average per acre?

Mr. Fuhriman. This averages per acre on the Cheyenne River

$15.23. That is without buildings. $15.23,

Senator Watkins. Do the Indians have considerable number

of buildings on the property?

Mr. Fuhriman, I can give you the figure. They have some

considerable buildings, and the appraised value of the improve-

ments was $132,485. That was the figure that we arrived at

for improvements. And severance damage was only $38,570.

Senator Watkins. That is on the allotted lands?

Mr, Fuhriman, That ison the allotted lands.

Senator Watkins. All the bottom lands will be covered by

the reservoir?

Mr. Fuhriman. Yes, all the bottom lands along the river.

Representative Berry. I think you should, for the record,

if you will pardon me for interrupting, give the Senator just a

little better picture of what this bottom land is.

 175

Mr. Fuhriman. Well, this bottom land is land where the

river, when it gets high, has overdooded and built up from

sediment deposited; it is by far the best land on the reser-

vation,

Representative Berry. By far the best land in the north-

west, is it not?

Mr. Fuhririn. Well, I would at least say on the reser-

vation.

Representative Berry. Well, that land at Yankton -- the

Federal Land Bank figured that to be as good land as they had

in the United States, and it is exactly the same stuff, only a

little farther down.

Mr. Fuhriman. That is right. We could put it this way.

The recent alluvial land in the river basins is the best land

we have, and that is what this is.

Senator Watkins, How about flood control? Do you have

floods run over this land on occasion?

Mr. Fuhriman. Some of it was flooded in the flood of '52.

These people could tell you better how much. That didn't parti-

cularly damage it for the use the Indians are having now, which

is to cut hay for grazing.

Senator Watkins. is it rather narrow now through the

reservation?

Mr. Fuhriman. 1 think that map we showed you wold probably

give you the best indication of it. The Indian reservation extends
 176

out to the middle of the river.

Representative Berry. It averages a little better than

two miles, I think, Senator.

Senator Watkins. That is a rather narrow river, then. How

much higher is the land on the upland side?

Mr. Ducheneaux. It goes all the way up to 1500 feet.

Senator Watkins Is there any mountain land in this reser-

vation?

Representative Berry. No, it is all prairie.

Senator Watkins. And as I understand it, the upland is

mostly of shale and not of use?

Representative Berry, It is what is called Pierre clay

or gumbo, but it is very productive if it has sufficient water.

The grass out there last year, for instance, -- there was nothing

like it any place. Youcould cut a ton and a half of wild hay

to the acre.

Senator Watkins. In the upland country?

Representative Berry. On the upland, yes. There were

thousands of tons of hay. But there is no water; only dams.

Senator Watkins. You mean they catch flood waters and hold

it back in the gullies and so forth?

Representative Berry. That is right.

Senator Watkins, But you don't need water for irrigation

purposes. You can grow grain or a hay crop on that same

country, can't you?

 177

Representative Berry. If you have the rain, yes.-We have

about sixteen inches on the average.

Senator Watkins. That is hardly enough ordinarily,

.Representative Berry. That is right. We are scared every

spring.

Mr. Fuhriman. I think that pretty well explains the basis

for our apprival here. And I might point out that the appraisal

of 2,053,000 is very near what the Army's best offer was of

$2 million. And these adjustments to come up to the present

figure which the Bureau is recommending have been explained

to you.

Representative Verry. Is your recommendation $2,234,000?

Mr. Sigler. $2,234,000.

Senator Watkins. You will submit for the record a summary

of the appraisals for the Army and for the Indian Bureau and

for the Indians, so that we will have a comparison?

Mr, Sigler, Senator Watkins, our report indicates those

figures.

Senator Watkins. Oh, you have all three in your report?

Mr. Sigler. Yes.

Senator Watkins. Just so it is in the record.

Mr. Sigler. The point Mr. Fuhriman has just made, though,

is that the Department of Interior appraisal of $2,053,000 is

substantially the same as the Army's final offer of $2 million

even, And the increase that is proposed in our official report

 178

is to $2,234,000-plus, and that is explained by this change

in index figures and the allowance for contingencies, I think

that all relates to the subject of the direct damage, the

appraisal figure, and the other figures Mr0 Fuhriman will

explain to you go to the indirect,

Representative Berry. Before we leave the direct, there

was inserted in the records yesterday a new angle known as

flowage easement, If i understand the Army correctly, on this

theory they will buy, take fee title to, the land up as far

as the mean average of the reservoir, which is about where the

water will get once in five years, as i understood it, the mean

average, From there on they will not take fee title,but only

a flowage easement,

Have you made a study to know what difference that would

make in the value or the cost of taking this land?

Mr. Fuhriman, No, we have not. Our appraisal here is based

on an assumption of fee title to everything exQept minerals,

Representative Berry. How ong has this flowage easement

thing been in the military?

Mr. Sigler, I think Mr. Jenkins can answer that question

better.

Mr. Jenkins, The project itself, Mr. erry, was promul-

gated about January, I believe,

Mr. Kiabel. January or February.

Mr. Jenkins. Its application to the main stream reservoirs

 179

on the Missouri, however, was not called to our attention

specifically until some time in late February. At that time

we got in touch with the Corps of Engineers and suggested

to them that in view of the long negotiations that had been

in progress on this thing, so far as they applied to main

stream reservoirs in the InJian country of the Missouri, we

felt it would be wise to take another look at the policy as

it was reflected in these particular circumstances.

Just recently there has been an exchange of correspondence

between the Corps and the Department concerning specifically

the Oahe and Fort Randall Reservoirs, The Corps have advised

us that their District Engineer has been in the process of

making some detailed field studies of the possible effect of

1te application of this policy on these two takings, that is,

the taking for the Fort Randall Reservoir, which involves the

Crow Creek and Lower Brule, and that of Oahe, which involves

Cheyenne River Reservation and the Standing Rock suit. in

the letter that was received from the Corps just recently,

they indicated that the studies had developed certain figures

as related to Fort Randall, that is, to the Crow Creek and

Lower Brule, but that they had not yet completed their studies

or field determinations as they affected the Oahe.

We are not yet in position to speak, and 1 don't know

whether the office of the Chief of Engineers is, Judge Kimbel,

as to the results of the field studies on Oahe,

 180

Mr.Kimbel, Not in money figures. We can just give the

acreage reduction on the Cheyenne River Reservation -- 7,000

acres, and so on. There would be that much reductionin the

fee take.

Mr. Jenkins. For your information, Mr. Berry, I seriously

doubt that the Bureau would be in any position to give this

committee any advice or opinion one way or the other until

(sic) we have come into possession of the topo maps and the showing

of where these various lands would be drawn.

Representative Berry. 1 was wondering why you haven't

contacted the tribe in this regard. They knew nothing about

this until yesterday, did they?

Mr. Jenkins. They were informed by a letter, as quickly

as we could get Secretary Tudor to sign it, of the exchange

in correspondence.

Representative Berry, But you did not mail the letter out.

Is that correct?

Mr. Jenkins. There were letters sent to the chairman of

each of the four tribes involved within the past ten days, I

believe, sir. One copy was sent to Mr. Case, to the attorney

here.

Representative Berry. It was handed to him yesterday.

Mr, Case, I received it in the mail yesterday morning.

Senator Watkins. What you are talking about now is the land

that might be flooded at certain stages of the reservoir?

 181

Representative Berry. Yes, once in ten years or fifteen

years or something like that.

Senator Watkins. Then all the Army Engineers would attempt

to do is get flooding rights, flowage easement, While it is

flooding you don't have much of a current through this

reservoir, do you?

Representative Berry. No, practically none,

Senator Watkins. We had it in connecticnwith some of the

reservoirs in the other western states, where we had what they

call flooding easements. Up to a certain point, you can count

on the water in the average year being at that point, but from

there on you may have a year or two when it will be much higher,

But the land could be used probably seven years out of ten,

You could count on that, about seven years out of ten. That

would, of course, decrease the value of the land for culti-

vation to that extent, And in some of those cases, we took

what we called a flooding easement. That is what you have in

mind here?

Representative Berry. That is what we are talking about

here. Because, after all, these are flood control dams, so

that when you do have a flood you are going to have a terrific

increase in the size of the flooded area.

Senator Watkins. They should at least get flooding ease-

ments there. In many of the cases where we took a flooding

easement, the land owner had almost a hundred per cent of the
 182

use of his property, contingent upon an event that might

never happen or that might happen within a few years or might

happen over a series of years. He had to take that gamble,

/
and we paid him for that gamble.

Mr. Jenkins. The point I wanted to make, Senator, was

that the use of that land owner would be dependent upon the

elevation of his particular ground, and until we come into

possession of the field information we are not in the position

to evaluate.

Senator Watkins, If it was side-hill ground, of course it

probably wouldn't have very much value except for grazing.

Mr. Jenkins, That is correct. And our figures were based

entirely on full fee acquisition.

Senator Watkins. That is even including that area which

might be covered only a relatively short period of time out

of the ten years,

Mr. Kimbel, It might be helpful here to add this addition-

al point of information, that as to this addition of 7,000-

odd acres under this amount spoken of, 1 was told also that

that is based on a difference in the elevation of taking of

only from 1617 tc 1620. It is only a three foot differencein

elevation. In other words, the maximum pool of this dam is

at 1620. Under that new policy, we would take fee title up

to 1617.

Representative Berry. So, actually, it would not amount

 183

to too much on this dam.

Mr. Kimbbel, I think that is correct. That is why I

brought that out here,

Mr, Case. May 1, as attorney for the tribe, ask a ques-

tion?

I am Ralph H, Case, General Counsel, Cheyonne River

Sioux Tribe,

As you know, we, the negotiators representing the tribe,

and I, had no information in regard to this joint program.

Is that what you call it?

Mr. Jenki.ns. It is a joint policy statement, Mr, Case.

Mr. Case. Or joint ,policy statement. We have had many

references to the joint policy statement. We have not seen as

yet the joint policy statement. It must be, as it is between

the Chief of Engineers and the Secretary of Interior, in writing

somewhere, and signed, as the policy. Now, that is the document

we want to see. We claim our usual privilege, having been taken

by surprise by this development of yesterday. He want the

basic document underneath the subsequent correspondence. We

want to understand and have an opportunity to look it over.

We know this country. It is our country. We want an opportu-

nity to apply it to our own lands and see what the matter

will ultimately result in,

There were many things stated, and they are in the

record of yesterday, with regard to the joint policy. Yet no

 .84

one has come forward to say, "The joint policy of such and

such a date," and no one has furnished us with any copy thereof.

Mr. Sigler, Mr, Chairman, the joint policy statement that

is referred to has been published in the Federal Register

recently, I think. It is also a numbered publication of the

Secretary of the Interior, Mr. Case is very welcome to it.

As soon as we leave the meeting, I will see that he gets one.

I would like to suggest further, however, that this bill,

as your committee acts on it, may well determine whether the

fee is taken, or whether only a flowage easement is taken.

In its present form, the bill provides for the taking of a fee.

This proposal is not only new to Mr. Case, but it is new

to us. It is still in the discussion stages. There is no

firm opinion or conclusion on the part of either the Secretary

of the Interior or, 1 believe, on the part of the Corps of

Engineers, in regard to what will be recommended in this parti-

cular case. It is something that is still in the evolution

stages.

But I should be ery glad to give Mr. Case a copy of the

publication as soon as the meeting is over,

Mr. Case. Thank you very much. However, I will state,

Mr, Chairman, for the negotiating committee, representing the

tribe, that as far as we are concerned, we do not wish, in

connection with our pending legislation, on which we have spent

four years of study and negotiation and a vast amount of money,

 185

to have inchoate,incubating matter injected here and destroy

or delay the progress on the present bill. The proposition

made to us was that we want this title in fee within the tak-

ing land, The Indians said, "All right. We will negotiate

with you'"'

Now, this is a matter entirely outside of our record.

It is not part of our case. Our case depends on this bill and

this memorial, I will introduce the Memorial when it is my

turn to talk.

Senator Watkius. You are not in a court now. We have to

determine policy, and we will want the over-all picture, all

the possibilities,

You may have entered into agreements and all that sort

of thing, and we may honor them or may not honor them, After

all is said and done, the Army Engineers and the Indian Bureau

only have such authority as the Congress has given them, And

what we will have to do is take the over-all picture to see

what should be done in this matter.

Representative Berry. Of course, if the gentleman would

yield; it would make a difference what they do with the fee

title land, too.

Senator Watkins. Certainly, It is a big matter of policy

here. We do not want to be just bound by anything that you

folks down the line may have entered into. As a matter of

fact, your agreements could only be tentative. They cacdn t

I
 186

be hard and fast, unless you had been given the authority.

Representative Berry. And I don' t think that the Indians

want to go into a dbal of a flowage easement if the rest

of the dam is not in the same kind of a proposition, would they?

Senator Watkins. Have they taken a lot of white lands, too?

Representative Berry. About 175,000 acres.

Senator Watkins. And a hundred thousand Indian acres?

Representative Berry, One hundred fifty thousand.

Senator Watkins. Well, we will have to consider the over-

all policy. It is interesting to get that information, but I

would not want anyone to get the impression that we will be

bound by it. Usually people want to be bound by their agree-

ments.

Mr. Fuhriman. Policy is subject to change without notice.

Senator Watkins, It has taken 150 years on some of this

Indian policy, of course, to get it changed.

Mr. Case, All we want is information. We feel slighted

and neglected that we haven't been advised of this joint

policy, that does affect the Oahe taking line. And we are

competent to go ahead. We have made a bargain. We have offered

our bargain right here. We will take so much money for so

many acres of land, and give you the fee title,

Representative Berry. If it onlyinvolves 7,500 acres,

it actually doesn't make too much difference. It is a pretty

small potato, anyway.

 187

Mr. Case. Well, if the bill goes through, let's abide by

our present form, And that is a matter that can be adjusted

later on.

Representative Berry. Do you have anything else now that

you wanted to present?

You were getting into intangibles.

Mr. Fuhriman. If you would care to have them discussed,

yes,

Representative Berry, Proceed,

Mr. Fuhrimanu On the next category-- we called them in

our report, here, indirect damages -- we divided those indirect

damages, which are damages otherthan the value of the properties

taken, into three groups, One was the cost of reestablishing

the homes, the ranches, and the economy of the reservation,

The next group was the losses that they sustained because

of the destruction of timber, wildlife, and wild products.

And the thirdgroup were these potential and intangible

damages, or all other groups.

Now, we have a lot of detail regarding that in the report

which has been made available, I can say briefly that this first

group, cost of reestablishing homes, ranches, and economy, is

based pretty largely on the experience of the costs of doing

that type of thing in the Fort BertholdReservation, the

cost of moving various kinds of houses and buildings and the cost

of moving individuals.
 188

The other items arebased largely on the cost of re-esta-

blishing the farm families or the ranch families. There are

about a hundred families on the Sharon River Reservation,

who are now engaged in agriculture of some sort, very largely

ranching, who will have to move because of the taking, Most

of those are residing in the taking area. Very few are on the

frinches, And in estimating the cost of reestablishment, we

recognize that the taking of the valley lands, the major source

of the water and of the best meadows, and particularly of the

winter shelter which tae woodlands afford, would cause consider-

able readjustment in the livestock enterprises on the reserva-

tion.

6o that we have accounted for that in our cost of re-

establishing here in two ways. One was to reestablish these

100 ranches. As a basis for that, we took a small ranch of

about 2,500 acres, and figured out how much it would require

to build the stock ponds, to construct the extra fences that

would be needed under the new type of organization.

Senator Watkins. Wouldthat include moving them to some

other part of the reservation?

Mr. Fuhriman. Yes, that would be moving them from these

valleylands that would be flooded,

Senator Watkins. You are not figuring on taking them out

into white communities and relocating them there?

Mr. Fuhriman. No, for these hundred families, we figured

 189

that the hundred families that are in agriculture now

would be moved into some other part of the reservation.

Senator Watkins. Not moved off?

Mr. Fuhriman, Not moved off.

Senator Watkins, Are these people good farmers, good

ranchers?

Mr. Fuhriman. Well, they are like white people, Some of

thew.are more competent than others.

Senator Watkins. Well, on the average, do the best of them

average up with the best white farmers, ranchers?

Mr, Fuhriman. In terms of the resources which they

operate, they are in the very small category, sothat their income

is relatively low,

Senator Watkins. They are not operating on a large scale,

then?

Mr. Fuhriman. The average of these hundred would be

down to a relatively small status. I don't know whether an

average could be given on that by anyone here or not, There

would be an average of about 120 cows, I woad suppose.

Senator Watkins. As their guardian, if they are not making

a living where they are, perhaps we ought not to place them on

another farm. If they can't make it, maybe we ought to look

for something else for them.

Mr. Fuhriman. We haven't gone into this in terms of what

is the best thing to do,

 190

Senator Watkins. It all depends onwhat you are going to

do. I can see where we begin to get into two fields, the

rehabilitation plus the relocation commencing to mesh. If they

are not succeeding, and they canvt compete and make a living

on the type of agriculture they have there, that ought to be

examined pretty closely to see where we are going to take them.

Mr. Sigler, May I suggest the proposal does not necessari-

ly suggest that we relocate them in this way but what it would

cost to restore them to thb condition in which they now are,

Senator'Watkins, And if they are failing now, we put them

in the same position?

Mr, Sigler. It doesn't mean we put them in the same

condition, It means that is the measure of their damage. But

if the rehabilitation program is approved as a separate thing,

we mnght very well plan something different.

Senator Watkins. Then the aiocation money ought to go into

that rehabilitaticl program and have your rehabilitation program

measured accordingly.

Mr. Sigler. Yes, but what Mr. Fuhriman is explaining is

the measure of the damage. And the damage is measured by putting

the man in the same position he now is. It may not be a good

position. But it is where he is now, so we restore him to that

position, and that is the measure of the damage. If you want

to improve his condition, provide something better, that is

something over and above.

 191

Mr. Fuhriman. We might put that in in another way.

If we look at the land, the resources, as was pointed out,

they are losing their winter shelter, their livestock shelter,

their major source of water, their sources of feed to some

extent. Now, we figures that per acre of land that is going

to be affected by this, to provide that shelter -- you can't

plant trees, so you have to tbe lumber and build some sheds.

So we figures for a livestock operator with about 70 head

of cattle on 2,500 acres, for the shelter, the development of

water, which has to be largely surface water, and for the

extra fences to take care of the new type ofoperation, it would

cost about $1.58 per acre. And thse 100 farms -- of course,

that would amount to 250,000 acres.

As I had indicated here previously, a good deal of the

land that is taken is tribal land, and a good deal of the

land which is left on the reservation is tribal land, and we

haven't put in the appraised value of the land any severance

damages to tribes. So, in order to figure what it would cost

to restore the tribal land to as productive a stage as it is

feasible to do, by water ponds and other developments, we

figured, based partly on this $1.58 per acre for the small

farms,that it would take about $1.25 per acre for the tribal

lands which would be affected. And we looked at the map which

you have here, and how far back the various livestock units

extend, all along the taking area, which runs about up into here,
 192

and we made an estimate of how much tribal land would be

affected, and that was something like a little better than

400,000. So that in essence we feel that there wou be from

700,000 acres of land which would be damaged adversely in

terms of its useful livestock operations by the filling of the

reservoir.

This table lists also the cost of acquiring land, We assumed-.

and I think experience in other places will bear this out --

that where you have as many as a hundred farmers who are

being displaced in this area when the reservoir is flooded,

their competition for lands which will be available will tend

to somewhat increase the price of lands temporarily, by reason

of the increased competition, the increased demand, Sothat

we figured it would probably cost them about 15 per cent more

to buy back land of equivalent productivity to what they sold.

Representative Berry, If you would yield at this point

just for this one feature, I do want the Senator to have the

benefit of Mr. Ducheneaux' thinking on this.

This is Frank Ducheneaux, the Chairman of the Tribal

Council, who has been working on this thing for four years

very intensively, and I want him to explain out of order, here,

their thinking in arriving at the grazing permit revenue laws.

If you will, Frank.

.' *1

193

STATEMENT OF FRANK DUCHENEAU4,CHAIRMAN,

TRIBAL COUNCIL, CHEYENNE RIVER SIOUX
TRIBE OF INDIANS,

Mr. Ducheneaux. Mr. Chairman, Public Law 870 directed

toe Army and the Indian Office to take into consideration

severance damages to Indian land, and the Indian Department

and the Army Engineers failed to take that into consideration.

Referring to the item in Section II there, amounting to

$6,871,000 -- $4,014,000 of that is direct damages a,

loss of annual revenue to the tribe. We call it *razing

revenue losses, in our Memorial,

Prior to 1947, the Diamond A Cattle Company had units

203 and 206 for a good many years.

Senator Watkins, That is an independent group tha leased

the land from you folks?

Mr. Ducheneaux. They had leased the land, yes. They had

it for approximately thirty-five years. They got to the point

where they felt they had a vested right in -Aat land there and

could lease it at their own terms.

The Tribal Council set the rin:sm rite for advertisement

on those units at $5.41,

Senator Watkins. per acre?

Mr. .Ducheneaux. per head, per unit.

Senator Watkins.How many animals to an acre?

Mr. Ducheneaux. It is thirty acres per animal basis now.

Senator Watkins. If you paid $5.30 per head for cattle,

 194

you are getting that much, then, from thirty acres?

Mr. Ducheneaux. That is right, Senator. The Diamond A

Cattle Company would not pay that amount.

We negotiated with a farm management company, a company

from Chicago, Illinois, and they came in there and paid the

$5.41 and took over units 203 and 206.

Cattle prices began to rise, and they had that lease for

a th : -- yu- r ij At the end of the peiod, while cattle

prices were onthe upgrade, here, we z isd the mbni:: rate

to $6.60 per head, and the farm management comply refused to

'd ~n the land, giving as their reason insufficient funds, no

access to shelter and winter feed,

Along this river, here,there is timber -- along the

Cheyenne and Missouri River.

Senator Watkins. Does it have any timber?

Mr, Ducheneaux. Yes, it does. And back up in here, you

haven't any water except reservoirs that we have built up in

there. And ;e cattle in these big units depend upon this

shelter down in here during the winter,

Senator Watkins. Is this thewinter or summer rains?

Mr. Ducheneauxo It is winter and summer-rains as set up

then, but they do 'regulate the winter and summer -Pta by

fencing it, by fencing up here in the summer and then moving

down here in the winter,

That was the reason given by the Chicago outfit for not
 195 - 198

bidding on that land, because they didn't have enough winter

frontage, We can furnish the evidence here.

So we thought that we should have $6.60 a head, and the

acreage was so large that it took a big outfit to handle it,

So then we broke it down into seven units, so that smaller

outfits could handle it, And we advertised it more widely,

We did a bigger amount of advertising on it,

The bids, after theycame in, averaged $7 52 per head,

above the $6.60.

Senator Watkins, Did you have to give them winter frontage,

too,

Mr. Ducheneaux. Yes. We had to move the cattle operators

back here, so as to let the cattle down into the river, so

that they could get access to the river and get to the timber,

Those are the four things we did. We broke them from large

units down into seven units, to make it of interest to smaller

outfits, Then we moved back the Indian operators here. We

extended the permit period from a three year period to a five

year period, And we gave bigger publicity.

In doing that, we averaged $7 52, because they got river

bottom laud.

Senator Watkins. And you were able to lease it at that

value?

Mr. Ducheneaux. For that much

Senator Watkins. Do those leases still have time to go?

 199

Mr. Ducheneaux. Yes, a year to go yet.

Senator Watkins. And what is the constructionschedule

on the reservoir? Will it interfere with the leases you have

already made?

Mr. Ducheneaux, Yes, it will.That is one of the points

we have set out in our Memorial, Senator. Do you have one of

those Memorials there?

RepresentativeBerry. I should say for your benefit,

Senator, that the dam is not contemplated to be completed until

1960 or 1961,

Senator Watkins, It would not interfere with any fiave year

lease, then.

Representat.~e Berry. Not presently,

Senator Watkins. That is what I was trying to find out,

In the construction period, in other words, would the land be

taken away from you?

Representative Berry. That won't affect that lease. But

the leases in the future is what the tribe is thinking about,

and the fact that theywill not have any winter range or winter

protection to offer, which will affect the leasing of those

entire areas up there, and others besides those.

Mr. Ducheneaux, So taking this asan example, Senator,

it is going to damage the whole reservation. That is,we are

going to have a revenue loss there.

In order to arrive at the fair value Jr that damage, we

 200

based our figures on the following formula: that there is,

in the whole reservation there of Indian land, 1,614,682 acres.

We will lose approximately 104,420 acres by this taking.

There will remain, after the taking, 1,510,622 acres

ip Indian ownership on the reservation. The usefulness of

tio thirdsof that acreage, or 1,006,838 acres, is now dependent

on these river bottoms for their use,

Mr, Case. In winter?

Mr, Ducheneaux. Yes, 80 per cent of the bottom land

that this area is depending on is going to be flooded. And

80 per cent of the 1,006,838 is 806,471 acres, which will be

affected by that taking. That will be actual damage to that

amount of acres

I think Mr. Fuhriman, in his report which you have before

you there, says it will affect 446,770 acres. In our figures

it will affect 805,471 acres,

Now, the average value of those lands back up in here

amounts to $17.80.

Senator Watkins. You mem the value per acre?

Mr. Ducheneaix. Per acre. That is the value that we

have placed on those lands.

Senator Watkins. Could they be sold for in that neighbor-

hood?

Mr. Ducheneaux. Yes, they have been sold for more than

that, but we have averaged that inthis area,

 201

Representative Berry. That is the upland?

Mr, Ducheneaux, That is the upland.

you
Now, to go back to our leases, to show/the revenue loss:

We were only able to get $5,.41 per acre, becausethey didn't have

the bottom lands available there, and refused to bid, And

when we moved those cattle operators back and gave them the

feed and shelter in the bottoms there, we wereable to bring the

average up to $7.52 per head, which was a gain of 39 per cent,

Senator Watkins, How many head of cattle will they run

on that lease, the two blocks, 203 and 206?

Mr. DuchenQaux, 1 haven't got that figure, About u500

head,

Senator Watkins. That, of course, is all tribal land,

That goes into the tribal assets.

Mr, Ducheneaux, Yes, The biggestpart of it in that

country, Senator, is all private land We have about 42 Indians

living in that area.

By that taking, Senator, we will sustain a loss ofabout

28 per cent, if we have got to go back to the $5,41 per animal

use, which we will have to do.

Senator Watkins. You may have to go lower than that, It

will depend on the price of cattle,

Ar. Ducheneaux. Yes, maybe as high as 30 or 35 per cent,

Senator Watkins. I know, but with the up and down of the

market on cattle, you are not likely to have cattle as high as

 202

you had during the Korean war boom, so that you can't count

on those figures being standard. They may go down. But the

percentage might be the same, based on a different price

level. In other words, you say there is a damage of 2d per

cent no matter what the price of your rental may be, the

rent that you may get. It would at least be on a margin of

28 per cent.

Mr. Ducheneaux. It affects the land, it is a loss in

revenue, but still it affects the land.

Senator Watkins. The price of cattle out there now is

down considerably from what it was. And, of course, if you were

to take a new lease now you might have to take a lower rental.

Mr. Ducheneaux At the moment, Senator, we are getting

$10 per head.

Senator Watkins. You mean you are making new leases now?

Mr. Ducheneaux. They are in effect now.

Senator Watkins. Even with the lower prices of cattle?

Mr. Ducheneaux, With the lower prices of cattle, yes. If

it happened with the $5 lease there, we would be getting $10

per head in that area now.

Senator Watkins.That is because you had some extra heavy

rainfall in that area, haven't you? I understood from the

Congressman that you had an extra heavy crop of hay and grass

grow up there.

MrDucheneaux, It is one of the best hay areas in the

 203

whole United States, Senator.

Senator WatkinSo Well, is that true, year after year?

Mr. Ducheneaux. Year after year. I have the present

lessee there, Mr. Earl Peterson, who has an article in the

Dakota Farmer of April 18th,1953, and 1 am not going to read

it, because I haven't got time, but he states in there that

he has traveled from Canada to New Mexico and criss crossed

the United States, and the best grass is there in this area

right here.

Senator Watkins. What I can't understand is that when

cattle prices are going down you can jump it from 7-something

up to ten dollars per head, unless you had an unusual year

there, and for a temporary period they would be willing to pay

that amount; particularly in a drought area, if there is drought

all around it,

I have to leave, I have a downtown appointment.

Mr. Ducheneaux. Before you go, I would like to give you

this one figure. In order to arrive at that damage, 805,471

times the $17,80 peracre,it amounts to $14,337,384; and our

loss is 28 per cent, so we took 28 per cent of the fourteen

million, which makas the damage in here of loss that we will

sustain by this taking, of $4,014,467.

Representative Berry. In other words, the point he is

trying to make is that actually there is a severance damage

in this instance becauseof the fact that the rest of the

 204

reservation or part of the rest of the reservationis dependent

on the bottom lands.

Mr. Case. Frank, you might mention your article in the

Dakota Farmer.

Mr. Ducheneaux. I would like to introduce here as part

of the record a letter dated October 30,1952, which is under

the signature of Noralf Nesset, Superintendent, Cheyenne

River Indian Agency, and which is certified by Ro No Gashwiler,

Range Management Assistant, there, which sets up the average

price per cow unit of $7.52.

Representative Berry. Without objection, it will be

received.

(The letter referred to is as follows:)

 205

Mr. Ducheneaux, And 1 also want to introduce the

article.

Representative Berry. Let's just take this page. it is

page 28 of the April 18,1953 issue, and it will be made a

part of the file.

Mr, Ducheneaux. I also want to have go into the record,

Mr. Chairman, "TVA Land Acquisition Experience Applied to Dams

in the Missouri Basin," and that has been compiled b, the

South Dakota State College, which points out that the counties

and the states have been reimbursed for their revenue losses.

And thatis what we are askin in these severance damages here.

And we think that if the states and counties are paid for their

loss of revenue, we should be paid for our loss of revenue.

Representative Berry. Of the tribe, that is, on the same

basis as a municipal corporation?

Mr. Ducheneaux. And you will find that on page 39, I

believe.

Mrs. Ducheneaux. That is tax revenue losses.

RepresentativeBerry. It will be received and made a part

cf the file.

Mr. Ducheneaux. I want to thank you.

Representative Berry. Thank you.

-We willstand in recess until 2:30.

(Whereupon, at 12:10 p.m., a recess was taken until

2:30 p.m.,this same day.)

 206

AFTERNOON SESSION

The hearing was resumed at 2:30 p.m.

Representative Berry. The committee will come to order.

At this point in the record, I would ask unanimous consent

to insert the typedstatement of Frank Ducheneaux covering the

matter that he just testified on, which is a little more

complete than his testimony.

(The statement referred to is as follows:)

 207

Representative Berry. Mr. Sigler will continue.

Mr. Sigler. Mr. Chairman, I would like to make just

one statement at this time, before the rest of the testimony

proceeds, and the purpose for which I make it is to be sure

there is no misunderstanding on this subject of severance

damages.

Mr. Ducheneaux has just explained how the tribe figured

the loss of grazing revenue because of the severance and

taking of the lands along the river, The Bureau's appraisals

do not include any figure that is labeled a severance damage,

but it does take account of the fact by providing some money

for the improvement of the lands that are retained by the

Indians, so that those lands are improved to the point that

they are roughly comparable to the condition that existed

before the river lands were severed. That is, by building stock

ponds, shelters, and so forth, the intentionis to so improve

tu lands that are retained by the tribe that they will at

least more nearly approach the condition that existed before

the severance,

Now, I hasten to qualify that those figures will not

result in a complete restoration, or will not be a complete

substitute. But the Bureau figures do include some money

that would go not to pay damages for severance but to improve

the lands that are retained, so that there will not be as

much damage as there would otherwise have been.

 208

Representative Berry. Now, for the record, would you put

those figures in, Mr. Sigler, at this point?

What page are you looking at now?

Mr. Sigler. That is the chart on page 25.

The figures for the most part, Mr. Chairman, are contained

in the table on page 25 of the MRVI report No. 33, in items

No. 20, which is $100,000, 21, which is $230,000, 22, which

i. $130,000, 23, which is $200,000, and 25, which is$495,962.

Let me correct that.

Thb page number is page 25 in thatexhibit.

So to repeat, I am not trying to minimize at all as to

the matter of grazing revenue Mr. Ducheneaux testified about,

but I want to make it clear thatthe Bureau figures take a

different approach. Ratherthan paying severance damages, they

have some money that would restore the lads at least in part

to the conditionthat prevailed.

Representative Berry. Let us understand each other.

Actually, this is not the loss of rental revenue that Mr.

Ducheneaux was talking about. This is what they term as sever-

ance damage, is it not, in their figures? The loss of revenue

is in addition to this. Now, this is.what is figured to put

liese people in thesame position back up on the hill that they

are down in the valley?

Mr. Sigler. My comment is that if the Indians are re-

stored up on the hill to the same condition that existed before-

 209

hand, they will have the water and the shelter that they

had beforehand, and therefore there will be no loss.

Now, those are relative terms. I don't mean to say, "No

loss," but there will be less loss; so that the partial

restoration of the Indians to the same conditionthat existed

before the taking means there is no loss.

Representative Berry. But that does not include loss of

revenue to the tribe by virtue of not being able to rent their

lands, their tribal lands?

Mr. Sigler. In my judgment it does,because the loss of

revenue the tribe has been talking about is occasioned by

the lack of water. If you provide the water, a substitute

water, then there is no lack of water, and the tribe presumably

could rent the land at something near the same price they are

talking about, I emphasize again that I am talking in general

terms. I don't purport to state that the restoration would be

complete and that the tribe would have exactly the same return.

But the Bureau figures include some element in lieu of sever-

ance damage. That was the only point I wanted to be sure there

was no misunderstanding about.

Representative Berry. I thank you, Mr. Sigler, for

bringing n this explanation. I think probably when Mr. Ducheneaux

getson, he will have a very capable rebuttal.

Mr. Sigler. He may have very many other points that We

haven"t thought about.

 210

Mr. Jax, Mr. Chairman, while we are there, could we

point this up by reviewing the figure which the tribal witness

placed in the record before the recess as to the value of that

loss of rental? Their figure was what?

Mr.Sigler. Four million dollars,

Mr. Jax. My own computation of this comes out somewhere

in the neighborhood of $1,160,000. There is an area of dif-

ference even in that computation.

Mr. Sigler. Correct.

Representative Berry. I think, though, that this would

come in more as a severance damage than it would as a loss of

the leasing value on these lands. Because primarily these

areas that they are talking about are a2eas that are not going

to be too accessible, or too livable, anyway, for rental pur-

poses.

The Chair will introduce R-lph H. Case, who needs no

introduction to any committee in Congress, attorney for the

Cheyenne Tribe. And, Mr. Case, you can introduce your witnesses.

STATEMENT OF RALPH H. CASE, ATTORNEY,

1889 NATIONAL PRESS i UILDING, WASHINGTON,
D. C. , TRIBAL COUNCIL.

Mr. Case. Thank you, Mr. Chairman.

Will all of you gentlemen move up?

Representative Berry. At this point in the record, without

objection, the statement of Senator Karl Mundt will be received

for the record.

(The statement referred to is as follows:)
 211

STATEMENT BY KARL E. MUNDTo UoS.S,

JOINT SENATE-HOUSE INDIAN AFFAIRS SUBCOMMITTEE

Senator Mundt. My Chairman, I appreciate this opportunity

to submit a brief statement on behalf of the legislation

(S. 695 and H. R. 2233) which is now pending before this joint

subcommittee.

I have supplied to the Senate members of this subcommittee

copies of the Memorial to the 83rd Congress in regard to S,

695 and H. R. 2233 which has been prepared by the Negotiating

Committee of the Cheyenne River Sioux Tribal Council.,I am

sure the House members of this joint subcommittee have been

similarly supplied.

In the few remarks which I will make, I do not intend

to attempt a point-by point justification of the items

contained in the Tribal Negotaitors' evaluation of damages

resulting from the Oahe taking or the Negotiators' estimate

of appropriations necessary for the rehabilitation and re-

establishment of all members of the Tribe under section five

of the Oahe bills.

The Memorial you now have before you discusses in con-

siderable detail the damages which will result from the taking

of Indian lands for the reservoir and the various items which

will be necessary for the rehabilitation of the Cheyenne River

Sioux. In addition, the Negotiating Committee will discuss

with the joint subcommittee in further detail the background

 212

formation and data which the subcommittee will necessarily

ave to evaluate in its efforts to arrive at a just settlement.

I just want to say that the members of the Negotiating

ommittee are outstanding Indian leaders of the Cheyenne

riverr Sioux. I know each of them well, and I have the

highest respect not only for their individual and collective

Integrity but their judgment and their knowledge of the

physical properties and social problems of their people.

Knowing every nook and cranny of the reservation as they

do I feel it is not surprising that their appraisal of losses,

immediate and future, resulting from the inundation of

104,420 acres of Indian land differs from that made by the

other teams of appraisers. It should be remembered that

representatives of the Corps of Engineers and the Department

of Interior are not so intimately familiar with the reservation

lands and properties as are the tribal negotiators.

The good bottom lands along the Missouri River and

tributary streams which will be forever lost to the Tribe are

a key to the productive usefulness of much of the lands which

will remain with the Cheyenne Sioux. Cattle raising is the

largest single source of income for these people and the

real estate losses alone will make necessary major economic

shifts and readjustments.

These losses coupled with the loss of timber and other

resources which have been available to the Cheyenne River

 213

Sioux have been carefully computed by the negotiators for the

Tribe. I believe the subcommittee will be favorably impressed

by the depth and scope of the Memorial; its accompanying

documents and the testimony of these Indian leaders. I also

believe the appraisal of the negotiating committee is fair

and just and that their only wish is for a just settlement

of the losses which will be forthcoming as a result of the

Oahe taking.

I know the subcommittee will give serious consideration

to the recommendations for a rehabilitation program. It

seems to me we are presented with a golden opportunity at

this time to provide the wherewithal to put the Cheyenne

Sioux on the road toward achieving the type of economic

stability and prosperity necessary for them to in the long run

become independent of the Federal government. The dreams

of these people are no different from those of other citizens;

a chance to maintain at least minimum health standards, adequate

facilities to educate their children and the opportunity to

enjoy a decent and rewarding scale of living,

With the Oahe taking requiring many social and economic

readjustments for the Cheyenne River Sioux I believe this

is the most propitious time for the Congress to approve a

program for the final and ultimate rehabilitation of these

people.

I hope the subcommittee will approve the bills now

 214

pending before it in materially the same form they were

introduced.
ea

fols 215
al
Representative Berry. Now, will you proceed, Mr. Case?

Mr. Case. Ralph H. Case, W-shington, D. C., General

Counsel for the Cheyenne River Sioux Tribe.

Mr. Chairman, te first presentation I wish to make is

that of the Memorial. And let it show in the record that this

Memorial was presented to the Congress at this day and date and

time.

"Iewish further to present tothe committee the Rejoinder

of theCheyenne River Sioux Tlibe to the report of the Engineer

Corps, signed by the Secretary of the Army, to the report on

this bill made by the Department of the Army.

This morning I presented to the Chairman a copy of that

rejoinder, and we wish to file it and to make reference to it

in the hearing from now forward,

(The docttent referrd to is as follows:)

e
*
 216-A

Attention of the committee is called to Article XII of

the Treaty of April 29th, 1868. I am not reading in these

citations, because they are all set out in the memorial, and

I think it quite unnecessary to report them.

That treaty is the basic treaty conferring permanent rights

on the Sioux Tribe to what is roughly the western half of the

present Stateof South Dakota, and one reservation on the

east side of the Missouri River.

Article XII provides that no cession of any portion of

that land shall be of any validity unless the cession is

ratified in writing by three quarters of the adult males of the

tribe. That is a very definite and positive statement.

However, the question of how the Act shall be ratified

does not rest on that alone.

I now make reference to a report made to the Congress under

date of January 29th,1953. This is the report submitted by

the negotiating committee, now present, as to what was done,

what the negotiations were, who carried them on, what was

accomplished, and what was not accomplished,

Let me add that that is Senate Document 11, 83rd Congress,

FirstSession.

As the very first portion of this report, we printed in

full Public Law 870 of the Act of September 30,1950, Public

Law 870, 81st Congress. There will be several references

to that report, and I desire to file these as part of the

 216-B

record, and we will be glad to furnish sufficient copies to

go to the committee.

The first reference I want to make is in regard to the

ratification of the final act and reads: "No such contract

shall take effect until it shall have been ratified by Act

of Congress and ratified in writing by three quarters of the

adult members of the two respective tribes, designated in

Section 1 hereof,, separately. And the ratification"

has to be within nine months of the date of the Act.

It would seem that we now proceed not only under treaty

but under a definite statute which prescribes the method of

ratification.

I have discussed thismatter with the gentleme' who have

appeared before the Interior Department, and they point out

that this Act of Congress can readily be amended, or it canbe

that the number requisite to ratifythis particular Act is

different from what is provided in Public Law 870. That I

recognize is very true. However, we have no repeals by impli-

cation. If the committees decide that a mere majority is

sufficient, and it goes into that Act, then the United States

is taking the responsibility of accepting a title that does not

conform to the statute, nor does it conform to the traty.

This isn't of vast interest to us, except for one thing.

These people have been embattled for many years over the

application of the treaty of 1868 to their needs, their claims,

 216-C

and to their progress and education. We have had litigation

since 1923. Some of it is still pending. The most important

claim of them all is the Black Hills claim. It is still in the

courts. We have at all times held firm to our adherence to

the Treaty of April 29th, 1868.

We do not wish to be put in the position that we have

consented to or in any way condoned the violation of that

treaty. We wish the committee to have due regard to our

protest; and in further defense of the three quarters majority,

let me say that if the Act, the final Act, here, is acceptable

at all, if it is a good, fair, and decent settlement, with

these people, we will have no moretrouble getting 75 per cent

than we wald getting 50 per cent. We will get you 75 per cent

and more, in writing.

I think by all means the treaty and this Act should be

observed, and that the ratification should be Jnwriting, signed

by the individual Indian who consents to the Act of Congress.

Representative Shuford. Could I interrupt right there?

Do you take the position that unless it was ratified by

75 per cent, there would probably be an estoppel so far as your

claims are concerned?

Mr. Cast, No.

Representative Shuford. Is that why you insist upon the

75 per cent?

Mr. Case. No, sir. I do not think we would be confronted

 216-D

with the theory of estoppel. We would be confronted with

the fact that we gave way and consented to a provision that is

in violation of the Treaty of '68.

Representative Shuford. But your request now in referenc e

to the 75 per cent is toprotect your rights in the litigation

that you presently have with the Government; is my understand-

ing correct?

Mr. Ctse. No, sir. My present litigation with the

Government would not be affected in any way if the Congress

saw fit to take a piece of land, and in doing so took a

defective title.

Representative Shuford. But if the Congress said they had

to have the 75 per cent to ratify, would that affect your

position?

Mr. Case. As to other claims?

Representative Shuford. As to other claims.

Mr. Case. Not at all, sir.

Representative Shuford. I just wanted to get your positi on

on that.

Mr. Case. Thetwo points of our position on which we stand

is that, first, by the terms of that treaty and by the terms

of this Act, there must be three quarters signing the accept-

ance of any cession of the land. The second is that we am trying

to be honest and forthright with the United States Government,

and we do notwish to have the United States Government take

 216-E

over the burden of a defective or a deficient transfer.

Representative Shuford. It might leave the suit pending

still, if the 75 per cent is not acquired?

Mr. Case. If 75 per cent is not acquired and received,

then I have no dout that at some future time somebody will be

disgruntled with thewhole affair.

Representative Shuford. And say it didn't comply with the

treaty and therefore the tribe still has a claim against the

Federal government?

Mr. Case. Yes. "Therefore anysuch treaty shall notbe

of any validity or force against the Indians unless signed by

three fourths."

Representative Shuford. And it is your position that it

should be done that way, but it has not been in the past, and

some of these claims that you have againt the Federal government

now, or that the tribe has, haveco.e about just by the failure

of the three fourths agreement. Is that not correct?

Mr.-Case. That has beenone of the grounds.

Representative Shuford. And that is why you are bringing

it out in this particular bill?

Mr. Case. We are bringing it out just for that purpose,

that we want the United States to know that we cbnot wish

them to go in here and accept something less than a straight

fee simple title. We think we owe it to the United States, as

citizens, to tell you that. And if, after that warning, you
 216-F

gentlemen produce that majority to ratify, I think I can

assure you and I think I would be carried out in that by the

present negotiating committee, that it will be our purpose

to get 75 per cent anyway.

Representative Shuford. And even include the females?

Mr. Case. I commented on that in my statement here.

Representative Shuford. That you intended to bring in

the women folks this tine also?

Mr. Case. This is strictly in accordance with the

nineteenth amendment to the Constitution of the United States.

Where our ladies are entitled to vote, they are put on the

same level, as far as voting is concerned, as the male citizens,

and the nineteenth amendment is the amendment that barred

any discrimination on account of sex.

Mr. Grorud. It is a fact that the Act of Congress super-

sedes the treaty provisions?

Mr. Case. The Congress has the power, if it sees fit.

Mr. Grorud. I am asking you if an Act of Congress does not

supersede the treaty provisions.

Mr. Cise, Any treaty p; visions, r. Grorud. It does.

The Congress has the power.to set aside a treaty.

Mr, Grorud. In this case, you adopted the Wheeler Howard

Act?

Mr. Case, We did.

Mr. Grorud. That superseded the treaty provisions,the

 216-G

three fourths vote, didn't it?

e
Mr. Case. Not specifically.

Mr. Grorud. The constitutional provision provides for

a majority, ad you have been using that right along. And

now you come badc and rely on the treaty.

Mr. Case. A majority in relation to tribal affairs.

But the majority provided for by acticnof the tribal council

is somethingquite different.

Now, the treaty itself isn't mentioned in the Wheeler

Howard Act.

Mr. Grorud. They accepted it.

Mr. C'se. They did. They accepted the Act. And it is

for the Congress. There isn't any doubt abat that. So that

if the Congress decides in its wisdom that 50 per cent is

enough, then we shall, in order to protect our own country,

go out there and seek to get three quarters ofthe people signed

and deliver them over.

I have taken too much time on that little minor matter.

My second item, afterwhich I am through for a few minutes,

is the negotiations under Public Law 870.

Having filed here with the committee Senate Document 11,

which was presented to the Senate by Senator Case on January

29th, 1953, therein is the entire history of those negotiations,

the partial agreements reached, and the basic reason for the

failure of the conference. And if the committee desires it, we

10

216-H

can furnish separately photostat of the final letter furnished

us by the Corps of Engineers at the final conference of, I think,

November 24, 1952.

Representative Berry. Would you like to have it made part

of the record?

Mr. Case. I would like to lve it made part of the record.

Representative Berry. Without objection, the statement

dated November 24,1952 will be made part of the record.

(The document referred to is as follows:)

 1 216-1

Mr. Case. I feel it quite unnecessary, with thatin the

hands the committee, for me to elaborate on or go over

again the history of those negotiations.They were closed,

for the simple reason that we could not agree as to the

first item in the entire matter under negotiation, and that

was the price of the land. And there the negotiations stopped.

Mr.Chairman, referring to the final stage of the negotia-

tions of November 1952, on the final day, which is the date

of the letter from the Office of the Chief of Engineers just

introduced, as we were sitting in conference in the Secretary's

hearing room, the hearing room ofthe Secretary of Interior,

the Interior Department was represented there, and this sheet

shows what was handed to me en tiat date by the representative

of the Secretary of Interior and is at thattime the breakdown

of the figure of $2,234,574, which appears in the departmental

report.

At th foot of this list, after the figures just quoted,

is the suggestion "rounded to $2,250,000,"

We ask that that be made part of this record.

Representative Berry. It will be received and,without

objection, made a part of the record.

(The document referred to is as follows:)

12
216-J

Mr. Case. Mr. Chairman, in preparation for this hear-

ing, the Tribal Council and your orator got together and

dividedup the burden of making this presentation. We have

here with us thosewho have worked continuously on the

negotiation committee for more than two years, men who are

ife long residents of the area and men who know tb9 land. All

of them are amond the class which Senator Watkins referred

to this morning in speaking of Mr. Ducheneaux. All of them are

a high grade, intelligent class of people, something which is

not general throughout the entire tribe, Mr. S dney Claymore,

Mr. Lloyd LeBeau, and Mr Edward Claymore, are-in that order

sitting at my right, and it is their duty and their obliga-

tion now to speak in regard to Section 2 of the bill, the land

improvements, timber, and severance, how they made the survey

how they evaluated the different elements, and how they came

to their conclusion
13

217

STATEMENT OF SIDNEY CLAYMORE,

NEGOTIATOR, CHEYENNE RIVER
SIOLX INDIAN TRIBE.

Mr. Sidney Claymore. My name is Sidney Claymore,

Negotiator, Cheyenne River Sioux Tribe,

During the fall of 1951, we received copies of the so

called Hart appraisal. Upon receipt of these appraisals, the

Chairman turned them over to me to check the appraisals as to

description, severance, and timber.

These appraisals were made according to segment number

and tract number.

I took each tract individually, and, on the first tract,

number 3106, I found that the appraisal had been made on a

tract of land which took three fourths of it, but it showed no

severance as to the remaining one fourth.

Then on Tract 919, it showed meadow land, ninety acres,

at $20. $1800 is shown on the schedule evaluation, and

$1900 on the appraisal, a discrepancy of a hundred dollars.

I am just taking these here and there, not to list all of

them. This contains eight pages, by the way.

Then, as to tract 971, it says the improvement value

was $500. It had been omitted from the schedule of valuation,

Thea we go over to the backpart, and this says "Segment

K Tract No. X 621, The grassland is appraised at a

thousand dollars, and was listed on the schedule valuation at

$100.
14
218

These are some of the numerous errors that were made

in the original Hart appraisal.

Upon my first trip to Washington, at which time we wanted

to get the year's extension on Public Law 870, we bad a meeting

with General Pick over at Stony Point. At that time, we pre-

sented this schedule to him, and he reviewed it, and he said,

"If there are that many errors, we should not use it." He

says, "You should go back and have a meeting on the reserva-

tion to correct these errors."

So then we returned to the reservation, and in May 1952,

we had such a meeting, at which time the negotiators for the

Corps of Engineers, the Secretary of Interior, and the Tribal

negotiators agreed that two:members from each would be

apppinted to review the corrections, and at that time they

classified the various kinds of land. In numerous cases I under-

stand that the Army Engineers seid that the severance rights

for thee individual allotments and assigned lands had been

taken into consideration in the appraised value, but no such

mention was ever made, that they were taken into consideration.

Representative Berry. You mean in the Hart appraisal it-

selt?

Mr. Sidney Claymore. In the Hart appraisal, yes. They

also in some cases listed timber and put it down at $50. But

there is nothing in the appraisal that showed how they came by

this figure, even though they had the timber cruise of Mr.
 219

Lamont from the MRBI, And in numerous cases their appraisals

showed there was timber, they didn't even given it any

consideration in the amount.

Representative Berry. Mr. Claymore, might I interrupt

there? I think you told me that the appraisers spent about

six weeks out there altogether, but that three weeks the

weather was such that they couldn't work, so that actually

they didn't spend more than about three weeks on this entire

appraisal.

Mro Sidney Claymore'. That is right. That was in the

latter part ofMay and part of June.

Representative Berryo And that covers 100,000 acres.

Mr. Sidney Claymore. That includes 100,000 acres. They

came in there, andduring that time there was a rainy spell,

at
They had their group that started the upper end of the Cheyenne

River and worked east. And it rained, And the gumbo was

such that sometimes they couldn't even get a jeep out on the

field. It rained about three weeks of the six weeks they

were there. And I question the correctness of that appraisal,

because in that country the land is poorly marked, You don't

have a steel stake at every corner section or every section

corner. You go down along the river and get that corner,

and then you work out. I had been down there checking over

some land three miles away from the river, and we practically

had to chain it to find it, it is that poorly marked.

 220

I can't see how those appraisers can go down there in

three weeks and appraise that amount of land.

Representative Berry. That was corrected later, was it

not? I mean altered?

Mr. Sidney Claymore. In some instances, yes.

or.
Case. May I interject?

The basic Hart appraisal has been referred to by the

Secretary of the Interior in h.s report, nd I would like to

read it into the record, so that it will appear more prominent-

ly than 4t does being set out in the typed report of the

Secretary of the Interior.

Referring to the Hart appraisal, this is a quotation

from the report of the Secretary of the Interior:

"A third appraisal of the same properties made by

Gerald T. Hart and Associates of Denver, Colorado,

initially fixed a value of $1,605,410 in November 1951,

This figure was later revised upward by Mr. Hart to a

value of $1,725,530.55 j correct the obvious discrepan--

ciea revealed in review by the negotiating parties.

The revised Hart appraisal figure is believed to be lower

than the fair market value of :he properties involved, for

upward price trends in the aret subsequent to the time of

actual appraisal are not adequcaely reflected and there

appear to be discrepancies in tie evaluation of improve-

ments and in the cl:%ssification if the land of individual

 221

tracts."

Mr. Chairman, that is a complete full-out repudiation

of the Hart appraisal, in our opinion.

Representative Berry. I would just underline the words

"to correct the obvious discrepancies,"

Mr. Case. If the reporter will be so good as to underline

as the Chairan requests.

MroSidney Claymore. Mr. Fuhriman was asked this morning

the average per acre on the Cheyenne River. He said $15.32.

That is for the land alone. It so figures that on 1,614,000

acres, it is approximately $15.51, :including improvements

and timber, on these allotments. He stated that just covered

the land without improvements.

And we heard yesterday the counsel for the Corps of Army

Engineers that there was $19,300,000 set aside for the purchase

of land. The land contains 342,000 acres, which would amount

to about $54 an acre. If that acreage is correct, we would

have about one third of the entire acreage, which would approxi-

mately be $6 million. Then to come back and say that we

offer a fair iarrket value, and offer us one ninth of the

$19 million -- we would like to ask a few questions as to why

that was done. We were beating ourselves in the appraisal,

I believe, asking for only $2,614,000. We should have asked

for 600,000,which would be fair for the amount that they

asked for, for the purchase of this land,

 222

Representative Berry. For the purpose of the record,

the Chair would like to state that I have known Sidney

Claymore, the witness, for I guess thirty years. A good

share of that time, he served as lease clerk on the Standing

Rock Reservation, And it was not only my thought but common

knowledge that he was probably the most efficient lease clerk

that was ever on the Standing Rock Reservation. He knew every

owner of every piece of land, and he knew who was leasing it,

and he had all of that in his head. If you called him in

at any time of the day, he could tell you who the land belonged

to and who it was being leased to.

And, as a matter of fact, I would like to ask you this,

Mr. Claymore: As lease clerk, did you have the handling of

the appraisal and sales of many, many pieces of land?

Mr. Sidney Claymore. I did.

Representative Berry. Do you think that after being

lease clerk for -- how long?

Mr. Sidney Claymore. Twenty five years.

Representative Berry. And since then for four or five

years you have been doing about the same work on the Cheyenne

Reservation?

Mr. Sidney Claymore. That is right.

Representative Berry. In the Land Division?

Mr. Sidney Claymore. In the Grazing Department.

Representative Berry. And would you say that from thirty

 223

years of experience, $15 an acre was a very reasonable price?

Mr, Sidney Claymore. In my estimation, it is too reason-

able.

Representative Berry. Are there any other questions?

Representative Shuford. You referred to $15 an acre.

Does that mean simply the bare land, or the land, improvements,

and everything that is on the land?

Mr. Sidney Claymore. That takes in the timber, the improve-

ments, and everything.

Representative Shuford, That is all.

Representative Berry. Including that which is tilled, that

which is farmed, that which is into alfalfa, and pasture, and

everything?

Mr. Sidney Claymore. Yes, sir,

Representative 6huford. And grazing land?

SMr. Sidney Claymore. Yes.

Representative Berry. In addition to the fact that this

is practically all first bottom land, which is the richest land

in the country.

Are there any other questions?

Does that conclude your statement, Mr. Claymore?

Mr. Sidney Claymore, That does.

 224

Representative Berry. Mr. LeBeau?

STATEMENT OF LLOYD LeBEAU, MEMBER,

NEGOTIATING COMMITTEE, CHEYENNE RIVER
SIOUX INDIAN TRIBE,

Mr. LeBeau, My name is Lloyd LeBeau, enrolled member

of the Cheyenne River Sioux, and appointed to the Tribal

Negotiating Committee by the Tribal Council.

I think in the testimony yesterday during the morning,

it was pointed out that a reexamination of the appraisal was

made by a reviewing committee which was appointed to make

such examination. I happened to be on the reviewing committee

representing the tribe as one of the members. We started work

on this reexamination in June of 1952. During the reexamina-

tion of the original appraisal, we took into consideration the

land classification, the acreages, the descriptions.of land,

the improvements, and severance damages on individual tracts,

The classification that we went according to was made by

the MRBI staff. The timber cruise made by the MRBI we had

agreed on. We had agreed on the classification and the timber

cruise.

As we made these examinations, each member of the committee

t I before us appraisal forms that were mimeographed by our

tribal clerk, so that as we made the examination, each member

of the committee had before themthe forms on which to enter

their information.

As Mr. Fuhriman told you this morning, during that re-

 225

examination, there were some improvements that had been left

out of the original appraisal and some disagreements on other

matters and land matters that came up. The whole committee

made physical inspections of these tracts of land, and we made

physical inspection of all the improvements, the buildings,

outbuidings, and so forth, that had been missed in the original

appraisal. And while we were visiting these places, we also

made notes as to whether there were fences on this property,

what condition these fences were in, and it was the tribal

negotiators' feeling that the Hart appraisal had not taken

into consideration the fences on this property or the stock

water t reservoirs.

We inspected the stock water reservoirs in the area.

From time to time we worked in the tribal office on plat books,

maps, and with information that we had in the tribal files,

information that we had ourselves, We would work two or three

days on that, and then we would go out and make a physical

inspection of a number of buildings- and tractsof land, and

come back and work some more on these maps.

Along with the improvements that had been missed, there

were some owners who had complained to the tribal negotiators

that they were not satisfied with the trival value on houses.

These houses were looked at. We tried to make some adjust-

ments so that the owner would be satisfied. We had many of

our people come to the tribal office. We were there all the
 226

time, we of the tribal negotiating committee. We had these

people coming in day after day. As they went about their

business, the oners would drop in and say they wanted to see

their appraisal. We showed them the original appraisal,

showed them what we had done,and tried to explain it to them,

as to what the appraisal was. The biggest share of these

people who dropped in were satisfied. Although we did have

a few complaints, when this examination was made, we notified

the rest of the committee, and in our field trips attempted

to look at this property and come to somesort of an agreement.

When this work was completed, on the reviewing committee,

we had our information on these appraisal forms. There were

two members from the Corps of Engineers and the MRBI. I think

one of each was a professional appraiser. We worked with

these people for almost a month, steady,

So we had information on these forms as we went along.

When the work was completed, we made these field inspections

and decided on the value of the improvements that had been

missed. We were instructed to do that. We did so,

Then the tribal negotiators decided that we should make

up our own appraisal. As we had all the information on these

forms already, we decided, at a meeting of the negotiators,

to do this.

So then we began to gather information regarding land

sales in the area. We did not take into consideration private

 227

land sales in the county east of the river.

I think Mr. Berry yesterday pointed out in his talk that

there is no established marker on the reservation itself,

because of the fact that we are not allowed to sell this type

ofland, although there have been some advertised land sales

of allotments.

We have evidence here as to sales of advertised lands

on the reservation, andwe have copy of an abstract of the

1951 school land sales declared by the Commissioner of Public

Lands of the State of South Dakota, The average price paid

for state school lands in Dewey County in 1921 was $27.67.

I think that the school land sales that are being made

later, in the last few years, show that the best schoollands

have been taken up years ago. These school lands are raw

lands.

Representative Berry. There are no improvements on any

of them, are there?

Mr. LeBeau. No. They are what is left.

I might say also that the sate school sales have, as a

policy, not to accept anything under $10 per acre. That shows

an average of $27.67. We think it is comparable with our

lands, as it is about the same type of land.

We placed a value on this land, accepting the classifica-

tion that the MRBI people set out in forms, and we have them

with us, setting up the different classes of land, different

 228

rates of land, And we applied monetary values to each of these

classes and grades of land, using that as our guide.

We had other information regardig timber sales. We used

the MRBI cruise. We accepted it and it so states in the

memorial that was presented here.

On page 7 of that memorial are our calculations based

on the timber cruise as to the value of the timber.

According to the timber cruise, it shows that as to the

present stand of timber, within the taking area, there is

3,067,400 board feet. That is stumpage. And we placed a value

of $11 per thousand on that. There are in addition 43,663

cords of cottonwood at a value of $5.50 per cord; and ash

post, elm posts, boxelder, juniper, cottonwood, oak, valued

from twelve and a half cents up to thirty cents.

We have here a tribal voucher signed by the Tribal

Chairman and the Treasurer on some lumber that we had bought,

Mr.Case. -This is offered to show the prevailing price

of cottonwood lumber in that area, and that particular voucher

shows the current price but reduced in view of the fact that

it was an Indian tribe. There is a differential there of

ten dollars.

Representative Berry. Without objection, it will be

received and made a part of the file.

 229

Mr. Case. As to sale of school lands, we submit the

following showing the price that section 1636 in this area

sold for, which was sold by the state School Commission of

South Dakota.

Representative Berry. Without objection, that portion

referring to Dewey County, of the record of Bernard Linn,

Commissioner, Department of School and Public Lands, of the

State of South Dakota, will be made part of the record.

(The document referred to is as follows:)

 230

Mr, Case. Mr, LeBeau also referred to special sales

in the area,

Mr. LeBeau, are these on or off the reservation?

Mr. LeBeau, They are within the reservation boundaries.

Mr. Case, All of these sales are within the reservation,

and these sales indicate the average price per acre of $20.56

for these four individual sales.

We would like to present that as a part of the record.

Representative Berry. Of allotted land?

Mr. Case, Yes.

Representative Berry. Without objection, the list of sales

of allotted land on the reservation will be made a part of the

record.

(The document referred to is as follows:)

 231

Mr. LeBeau. Along with that we have salesof firewood

I
-there on the reservation. The only mark that we have there is

sales of fire wood, around these different communities,

especially at the Cheyenne agency itself, where a cord of

fire wood is selling for $21 year after year. And on page

19 of our memorial, where we quote part of the MRBI report

No. 117, at the bottom of the page, we compute the value of

timber resources, which is about the same as fire wood is

selling for on the reservation, Posts are selling for more

than the value we placed on them. The fished product is

selling for considerably more on the reservation.

We have our Indian people on the reservation the biggest

majority of whom live in log constructed houses and have

their corrals, stock corrals, sheds, all constructed from

native timber. It is a use value, there, that the Indian

makes of his timber year after year. We have the timber

there. It can be gotten any time that a person wants it.

It doesn't cost much to get in there. If we don't own a

piece of land, we can go to the tribal council and get a

permit to get this timber. So we have a supply there, and we

can get it rny time.

Representative Berry. What percentage of the timber on

the reservation will be completely lost?

Mr. LeBeau. About 80 per cent.

Representative Berry. What is left will be backup the

 232

Cheyenne River?

Mr. LeBeau. The western part of the reservation, the

northwestern part, and the southwestern part.

Mr.Case. That is up the Cheyenne River, above water

line, and on the Moro River and on the Missouri River.

Mr. LeBeau. Yes, and up the Memo River especially

there is thin timber. I think you have been up along that

area. It isn't as thick as it is in the Missouri and Cheyenne

River bottoms.

Representative Shuford, It has been suggested here, Mr.

Chairman, that $15 an acre would be a fair and reasonable price

for all of this laud that is to be taken. If I am incorrect,

please correct me on ito

Now, you are speaking of the use of the timber and

various values of the cord wood that you would have and various

values of timber. What would you say would be thevalue of the

land to be taken, including-all timber, timber rights, fire

wood? -- any right except, I believe, mining, which I think

is exempted here. But all rights, that you have in that

piece of property, so that you could be completely compensated

for the land taken? What would be your estimate as to the

value per acre; taking into consideration where the land is

situated, the type o land, grazing or nongrazing, pasture or

nonpasture, hay land, or whatever kind it is. What would be

your value?
 233

Mr. LeBeau. According to our estimation of the appraisal --

Representative Shuford, You say "our." Who do you mean?

Mr. Lefeau. The tribal negotiators, The average price

per acre, including land, improvements, timber, and severance,

would be $25.40 per acre.

Mr. Ducheneaux, That means individual severance, not

tribal severance.

Mr. LeBeau. Yes.

Representative Shuford. Now, what do you include in

severance? Is that inconvenience in having to move?

Mr.LeBeau. No, sir. It doesn't happen on all tracts.

It happens on tracts where by the taking of the parcel will

leave a remainder. The taking line would run through a tract

of land, taking part of it and leaving the remainder, which

would be of no value to the owner. It is too small, and in

an unworkable shape.

Representative Shuford. You mean it would leave a portion

of the land that still belongs to that owner that he couldn't

find any use for at all and the Army doesn't want it?

Mr, LeBeau. That is right.

Representative Berry. Where you would have 120 acres, 100

acres would be taken and 20 would be left

Representative Shuford. That woid still be tribal property,

wouldn't it?

Mr. LeBeau. No, it would be according to where that would

 234

happen, in a piece of tribal land or on an allotment.

Representative Shuford. And you would compensate the man

for the land that he still has left?

Mr. LeBeau. For the fact that it has been cut in two,

Representative Shuford. But he still has his land, and

you compensate him for that under your estimated

Mr. LeBeau.Right

Representative Shufordo And your price, then, is $25.40?

Mr, LeBeani. Correct,

Representative Shuford, Now, then, Mr. Chairman, I hate

to ask these questions, but I want to get some information

in my own mind.

Those tracts of land that will be left -- will that

fund that he is being paid for go into the tribal fund, or

does the individual owner of the land, the allottee, get that

money?

Mr. LeBeau, In the case of allotments and assignments,

it will be placed to the credit of the allottee,

Representative Shuford, It will go into tribal funds.

Mr. LeBeau, Yes.

Representative Shuford. I notice in your memorial, you

asked for, in addition to this $25.40 per acre, a great deal

more, and alno the bill specifies for a great deal more money

to be paid to this tribe for the taking of the lands.

I don't know how you designated that. But have you

 235

figured what that amounts to per acre? It is around twelve

and a half million dollars. Have you figured that per acre, -

too?

MrLeBeau, Mr. Case stated a while ago that we are trying

to justify our bill section by section as we go along, and

our job right now is tDtry and justify our appraisal,

Representative Shuford You will get to that later, then.

But you fix the value of the land, the timber, all improvements,

at $25A40 an acre,

Mr. LeBeau, Correct.

Representative Shuford. That is average,

Mr. Case. May I supplement Mr. LeBeau's testimony?

Representative Berry. Mr. Case.

Mro Case. Please refer to page 27 of the memorial, where

the figure of S2,614,778,95 is broken down into the following

elements: land. That is the bare land in May of 1940.

Improvements, less the tribal hospital, and that is actually

the money of the tribe in there, at $326,073,05. Improvements,

$326,073. Stumpage value, that is,standing timber,$308,178,33.

Severance damages to individual owners, $40,303.

I wish to refer particularly to the stumpage value, be-

cause it puts the finger on the principal difference between

the Interior Department's recommendation, gross dollars, and

our recommendation, gross dollars. Those 'figures are

$2,234,000 by Interior, $2,614,000 by the tribe.

 236

In the report of the Department of the Interior, at the

bottom of the page--

Representative Shuford, Just a minute, May I ask this

question. Does that include your stumpage here and this

$25.40 an acre?

Mr. Case. Yes.

Representative Shuford, Your figure of $25,40 an acre comes

out to $2,614,778,95?

MroCase. Yes, sir,

Representative Shuford. That is your basis for that.

All right.

Mr. Case. I would like to call attention to that matter

of atumpage value, because it accounts for the principal dif-

ference between the Interior Departmentgs figure and the

9
negotiators figure as to timber.

Reading from the Secretary's report: "The stumpage value

in the latter appraisal for the timber in the taking area is

believed to be $226,690 i excess of the market value."

Now, we haVe here with us now M. R Bo Ios cruise, and

it is the basis on which the negotiations made their computa-

tions. They fi.ed a slightly higher value on saw timber, a

slightly higher value , a matter of a few cents more, on other

grades of wood, cord wood, and on posts. That accounts for

the discrepancy, which the Secretary of the Interior says is

too high. However, we used their own cruise, and we feel that
 237

we can sustain the actual failures in dollrs for these

different rates of saw timber. Particularly it relates to the

proof that we have here that that which we know is 60 to 75

dollars per thousand for the cotton wood lumber, Times have

changed, Mr. Chairman. We used to build it for ten dollars a

thousand, wh n my father was building buildingat Sioux Agency,

Representative Berry. I would like to interrupt at this

point.

If Senator Case has a statement he would like to make, I

would like to ask him about that. And I do har a quorum call

over on the Senate floor, Possibly if it is all right to you,

Mr. Case, I would like to interject the statement of Mr. Case

of South Dakota at this time.

 d38

STATEMENT OF HONORABLE FRANCIS CASE,

A UNITED STATES SENATOR FROM THE
STATE OF SOUTH DAKOTA,

Senator Case. Mr. Chairman and members of the committee,

I appreciate the opportunity to interrupt here, because I think

I do have to go to the floor shortly, judging by the bells they

have been ringing.

The details of the presentation, of course, are being

well presented by the members of the Tribe and their attorney,

There are two points that I would like to make, on the basis

of the testimony I have heard and the reactions indicated

to the questions asked.

One is that I would like to say a little bit about the

treaty situation, As the next thing, I would like to say a

little bit bout this loss of values not shown just in land

prices.

First, with respect to the treaty right, I think we all

agree that the Congress has plenary power to legislate as it

wants to with respect to Indian tribes, irrespective of the

treaties that it may have entered into; that is, as far as

the law is concerned. But when a government is guardian, the

government must not take advantage of its power. When a

government is a party to a contract with an Indian tribe, it

ought to think twice before it takes advantage of that situa-

tion and of the plenary power of Congress in driving a sharp

 239

bargain with an Indian tribe,

We ought to be able to expect good faith and not merely

stand on a technical situation as to the power of Congress as

it has been recognized by the Supreme Court.

The Wheeler-Howard Act starts off by saying that here-

after no land of any Indian reservation created or set apart

by any treaty ith the Indians, act of Congress, executive

order, purchase, or otherwise shall be allotted, . to any

Indian."

Sectiao2 says: "The existing periods of trust placed

upon any Indian lands and any restriction on alienation are

hereby extended and continued until authorized and directed

by the Congress."

That is, Section 2 of the Wheeler-Howard Act says that

any restrictions on alienation thereof, that is, as to any

Indian lands, are hereby extended,

The treaty of 1868 certainly placed a restriction on the

alienation of Indian lands, that they should not be disposed

of, that there should be no cession of Indian lands unless

approved by three fourths of the tribe.

We can see that Congress can ignore that if it wishes to

That is, we can pass a new law. We can overthrow the treaty

if we want. But it woud seem to me to be the act of good

l
faith for the Congress not to take advantage of that technica .

power.
 240

The Wheeler-Howard Act also says that "nothing in this

act shall be construed to impaire or prejudice any claim of

any Indian tribe against the United States."

The question of the Congress suggested to me that possibly

there was a little confusion arising out of the fact that may

not have been brought to his attention, that the Sioux nation

represents several tribes, and the suits to which counsel

for this tribe refers, refer to an overall suit on behalf of the

several tribes that are members of the Sioux nation, and that

the action pending before the Indian Claims Commission, or

the Court of Claims, doesn't have to do particularly with

this tribe but has to do with their over-all claim for other

cessions, which they feel were made without due respect

to the three fourths provision in the treaty of 1868,

Representative Shuford. May I interrupt there, Senator?

I was simply getting information and was not reflecting

on anything in connection with this at all. I simply wanted

to get the information to see the position of the tribe as to

the three fourths. It struck me as a little unusual, and I

simply asked the question for that purpose.

Senator Case. It is unusual, But there is anotherangle

to it, and that is the psychology of the tribe back home. The

Pine Ridge Indians,for example, have never forgiven a few of

their leaders for having participated in a cession where three

fourths of the tribe did not consent. And these delegates

 241

can't come down here and assent to an arrangement whereby

they would agree to a cession of land that didn't provide for

carrying out the treaty. They would have no face at all

when they went back to their reservation. They have to

keep faith with their people.

Personally, I don ' t regard the matter of getting the

three fourth as a serious problem, provided the government

deals justly with theIndians,

I think that these people are representative of their

tribe, and that the members of the tribe have enough confidence

in them that if they come back to them with a settlement, which

appears to be reasonable and fair, I think they can get that,

and it wouldn ' t be any great bar, It would be a much greater

bar to the government's going ahead with its plans at the Oahe

Dam if some provision were incorporated in here which result-

ed in an adverse attitude and possible litigation.

If there were to be litigation from the courts on ohe

basis that the treaty had been violated under one pretext or

another, that could delay operations mLch more than the

getting of the three fourths of the signatures.

Mr. Chairiaan, despite your generosity, the bell rang

for a second roll call, and I would like to speak of this

later perhaps and now go over and vote.

Representative Berry. Thank you, Senator.

Had you concluded your statement, Mr. LeBeau, or did you

 242
have another point you wanted to make?

Mr. LeBeau. I have one more point regarding our

appraisal. In Mr, Hart's basic data report,he stated that

when he brought up the question of fenses and stock order

reservoirs,he stated that that had been reflected in the

per acre value that he placed on it, although his appraisal

report said nothing about the fences or stock reservoirs or

some wells,, We thought those things should be included, and

so we took them into consideration in making our appraisal.

There are a number of these stock water dams within the

taking area, and we placed a value of 14 cents per cubic yard

of dirt or irmterial that was used in theconstruction. That

was because of the fact that all the contractors operating

in and around the reservation area for the past few years

have been charging a minimum of 14 cents for constructing

reservoirs.

I think that completes my testimony, unless there are

any questions.

Mr. Case. Mr. Chairman, may I have one word to supple-

ment Mr. LeBeau's testimony?

Representative Berry. Mr. Case.

Mr. Case. Reference again has been made to the Hart

appraisal. And I note this on page 3 of the report of the

Secretary of the Interior c the pending bills. Quoting:

"The use of the Hart appraisal tract listings and

 243

ownerships, in lieu of a schedule to be submitted by

the tribe, is suggested in view of the official concur-

rence oZ the negotating parties when such listings in

detail were submitted in accordance with the provisions

of Section 3 of the Act of September 30, 1950 (64 Stat,

1093),"

Mr, Chairman, we understad and appreciate that where the

Government is going to O, K, or where Interior Department

is going to 0. K,, approve, and put into effect theownerships,

tract listings, and appraisals, by tract, the Government

naturally would prefer to have an official document made by

its own people, The MRBI ownerships and tract listings are

in agreement with the negotiating committee's ownership and

tract listings. Now, it isn't pride of place or pride of

accomplishment, and therefore we don't insist upon the tribal

tract listings and ownerships, but we will accept the MRBI

tract listings and ownerships., However, we do want an oppor-

tunity to chioc our final schedule with MRBI's final schedule.

Then tract listings and ownerships are regular in the pro-

cedure of the Department, from the Missouri River Basin

investigations.ataff, through the area office, to Washington,

for approval, That makes it an official record all the way

through.

So we are not quarreling if you choose to state the tract

listings andownerships as those appearing in theRBI. And

 244

we do say in our memorial that we will not object to MRBI

We just want the opportunity to check ours against theirs.

Representative Berry. I believe that yesterday, when

Mr. Sigler was on the stand,he corrected that part of the

record to say that it was the amended Hart report, which

complies with the MRBI. So that, actually, I don't think

there is any variance in the three positions.

Mr. LeBeau, Mr. Chairman, in regard to what Mr. Case

just said about the tract listings and ownerships, the tract

listings, I believe, will stay the same. The ownerships will

necessarily change with the deaths from time totime.

I think the ownerships will change in a few instances,

Representative Berry. They are bound to change. The

valuation is the principal thing.

Are there any other questions?

 245

STATEMENT OF EDWARD CLAYMORE, NEGV '7ATOR,

CHEYENNE RIVER SIOUX INDIAN TRIBE,

Mr. Edward Claymore. My name is Edward Claymore. I am

a member of the Cheyenne River Sioux Tribe, I am a member

of the Negotiating Committee.

I would just like to say I worked with Mr. LeBeau on

the committee, and I believe he has given an accurate state-

ment of everything we did. I believe he has given all the

evidence we have.

Representdive Berry. Thank you, Mr. Claymore.

Representative Shuford. May I just get one further

clearance? I believe, Mr, Case, you say that the real difference

is, on page 27, the stumpage value of $308,000. There is a

difference in the appraisals?

Mr. Case, That reference in the Interior Department

report is that we are too high on timber by $226,690, Now,

the difference between the offer by the tribal negotiators

and the offer herein contained by Interior is $380,000. Then

that accounts for all of the$226,000 of the difference between

the two Zigutres.

Now, we think that our timber appraisals, based as it is

on the MRBI cruise -- ;hat cruise, by the way, we woke going

to offer, Mr. Ducheneaux, We were about to offer the cruise

if the chairman wants it in the record.

Mro Ducheneaux. Yes.

 246

Mr. Cas) I do not believe the bulky cruise is a neces-

sary part of this record, of course.

Representative Shuford. Weight put it in the file, Mr.

Chairman, Usually those cruises are pretty voluminous.

Mr. Ducheneau. We will furnish you with a copy.

Representative Berry. The cruise will be furnished and

will be made a part of the file in this case,

Who is the next witness?

Mr. Case. The next witness for the tribe is Mr, Frank

Ducheneaux, in regard to the grazing permit revenue laws,

concerning which he testified in part this morning, you will

remember, at the request of Senator Watkins.

Mr. Ducheneaux then made a partial statement,

Mr. Ducheneaux, Mr. Chairman, I did a very poorjob

this morning, and I have asked for the chance to clear it up,

I didn't want the Senatore to get away from me, and I was

in a hurry.

But if the committee will look at the map here, you will

see these red lines that go down here along the river were

known as units 203 and 206. Those are approximately a little

over 200,000 acres of ant, in those two units. And within that

area down along the river, there live about 42 people. That

is one of the well known counties in the United States, known

as Armstrong County, an unorganized county. Since that time

it has been annexed to Dewey County.

 247

These units here depend for the leasing, and I am talking

about the leasing now, the revenue derived from the leases

on that land, on this river bottom for the shelter and winter

feed and water. When we lose these bottom lands here, then

we are going to lose the value of the lease value on those

lands.

Prior to 1947 the Diamond A Cattle Company had leased

or held leases on those lands .for a good many years. In 1947,

we had placed a minimum rate of $5.41 per animal unit for

grazing in those two units.

The Diamond A Cattle Company refused to pay that amount,

because they had it so long they thought they had a vested

right in tht lInd, and that we had to comply with their terms,

We finally negotiated with the Western Farm Management of

Chicago, coirrouly known on the reservation as "the Chicago

Outfit," and they took over those leases in there, for $5,41

per animal unit.

Because o the rise in cattle prices at the end of the

three year lease period when they held the lease there, we

raised the lease rental up to $6,60 per head, for grazing in

that area.

The Western Farm Management refused to bid on that tract

of land, giving as their reason insufficient river frontage

and lack of access to protection of winter feed afforded by

the river .bottoms. I havethat letter here and can place it

 248

in evidence,

The reason for that was that the Diamond A Cattle

Company owned this dark strip in here and blocked off up here.

We had tribal cattle cooperators along the river that had

been allocated tribal land in there, and the Diamond A owned

a few tracts of land in here, and by voting these tracts of

land down in here they could control that land back there,

because of there being no water in that area outside of

small reservoirs that only holdwvter for about six months

out of the year.

As I said before, the Western Farm Management, after the

three year period, refused to bid on this, because of insuf-

ficient winter frontage and winter feeding,

So we moved those cattle cooperators back. We said, "Here,

we will give you river frontage, but we want you to take your

land in back there, whatever you need to run your cattle, and

open it up so that these lessees can get down in there. Be-

cause the Western Farm Management refused to bid on that,

they lost their preference right to that land.

So we readvertised that land, and we broke it up into

seven units, which are those dark lines shown there. And

instead of a three year lease, we made it a five year lease,

and we gave it more publicity.

6 By doing that, we were able to lease that land not for

the six-sixty but for sevendllars fifty two cents per animal
 249

unit, average, clear across the units; which was a gain of

39 per cent over the $5.41 that we had before,

Now, when the Army takes 104,420 acres of that bottom

land and wipes out that whole bottom landthere and the winter

shelter and feed down in there, it is going to damage that

whole area back there, and we are going to have to go back to

the $5,41 or even less than that, a loss of between 28 and 30

per cent.

Today we are leasing land at $10 a head per animal unit,

year round. e would have been getting that same amount

on those two units there, except on account of the five year

lease that wongt be up until this next November 30th coming,

So there will be even a greater loss than that when we have

to go back.

Representative Shuford, Where will you get your water?

After you take this river frontage, that is,

Mr. Ducheneaux, There will not be any water. The only

way we can replace that water is construction of these small

water dams in there.

Senator Case. Mr. Chairman, could I ask a question there?

Isn't it a fact, Frank, that your dams freeze over in the

winter, so that they are not useful for operation in the winter?

Mr.Ducheneaux. That is correct, and many of them go dry.

Representative Shuford. If that is the case, how are you

going to be able to lease them at all for grazing, even'at the

 250

five dollars?
Mr. Ducheneaux, We will probably be able to get some

grazing in there.

Senator Case. That is the whole point, It reduces the

value of their land for grazing purposes,

Mr. Ducheneaux. Before the Army has taken that 104,000

acres, we have on the reservation 1,614,000 acres of land,

That is what the ,tribe actually owns, But after the taking

of that 104,000, it will leave us on the reservation

l,510,000acres in Indian ownership within the reservation bound-

aries.

Now, the usefulness of two thirds of that :acreage, or

1,006,838 acres, is now depending upon the primary bottoms

of the main tributary streams. The Cheyenne River runs up

here, as you can see, and the Moro up there,

Eighty per cent of the primary bottoms on which the

acreage is given as dependent will be inundated, and therefore

80 per cent of that acreage or 805,871 acres, will be deprived

of winter shelter and feed. After we have lost 80 per cent

of ourbottoms, then it will affect, on all of the reservation,

805,000 acres.

This relative amount of this additional loss can be

measured by the small grazing fees which permittees will pay

for the land having no access to the river bottoms. Our experi-

ence in units 203 and 206 has been demonstrated, and as I

 251

pointed out before we will sustain a loss of 28 per cent.

Now, in our statement on page 9 of our memorial, we

state in there that the value in dollars of such damage is

difficult to assess. We recognize, however, the necessity

of a reational approach to this problem, and we have according-

ly assembled certain facts on which we base our computations

of that damage,

In order to arrive at the dam's value there, we estimated

the price per acre of that land in there as $17,80, That

$17.80, times 806,471, the land that is affected, amounts

to a total of $14,337,384.

Now, by taking 28 per cent of that, we arrive at the damage

to that land, or $4,014,467,

That is included in the item on page 3 of the bill,

in the $6,871,467 that is designated as "over-all tribal

severance damages"; but actually it is a loss of grazing,

permit revenue that we will sustain,

I hope I have cleared that,

Mr. Jax. Mr. Chairman, may I ask some questions here?

Representative Berry. Mr. Jax.

Mr. Jax. You stted at the times that tracts 203 and

206 were first refused by the Chicago Outfit, it was on the

basis that you lacked sLfficient frontage on the river. I

think you testified this morning that part of that was due to the

lack of sufficient water and part to lack of sufficient winter

 252

shelter.

Mr. Ducheneaux. Winter feed,

Mr. Jax. AInd winter feed.

Now, as I take your figures, you make no allowance for

the fact that the reservoir will increase the shore line which

will be available to the contiguous tracts, and I was wonder-

ing if youcan break down this loss so as to place some esti-

mate at least on the portion of the loss which is directly

connected to shelter, to water, and to winter feed. Because

as I read the bill, and as the Department witnesses have

testified, there is a good likelihood that you will have

accessibility to water.

There is further indication by the Bureau of their

intention, or maybe it is not their intention but at least

they have discussed before the committee the possibility,

of creating substitute shelter, not in the way of natural

contour shelter but structures to create shelter, so that

there is the remaining question of winter feed, which admitted-

ly can not be compensated.

And I was :wondering if we could break this down. Because

the figure of 12 million I don't think correctly represents

to the committee the loss that will result from the taking

of this bottom land.

Mr, Ducheneaux, That is $4,412,467, which is what we

have asked.
 253

Mr, Jax, Correct the figure; excuse me.

Mr. Ducheneaux. You say break it down into the loss of

water and the loss of winter feed and shelter? Is that what

you wanted, to break each item down?

Mr. Jax, If there could be given some estimate of the

proportion which each one of those bears to the over-all loss,

it would be helpful.

Mr. Ducheneaux, I don't think that we could do it, be-

cause it would vary with the lay of the land. It would be a

hard th:mng tr ldo.

Mr, Jax. But it must be conceded that the total loss is

not apportioned to any one of those factors.

Mr. Ducheneaux. The main loss will be the loss of the

winter protection and the winter feed.

Now, in the 1949 and 250 period, when we had the big

storms out there, those people that lived in along these rivers

here, the ranchers down in there, only suffered a three per cent

loss, while these people back up in here on this ridge, that

runs down through here along the railroad, suffered a 15 per

cent loss. And this is a haven f.r their stock, not only the

Indian stock, but the white people that live up in here. When

the storm hits up in there, the cattle come down into these

bottoms, and we not only save our own cattle but we save the

other people'a cattle in there. And that is where our loss is

going tocome in,

 254

Now, that is the direct damage,

A good illustration of that would be one of your hotels

here. If you were to flood the bottom floor of that thing, the

rest of it is just as good as it was before, But there is the

damage.

Well, the same thing applies to that piece of land there,

And it is a continuing loss. It is a loss forever.

Representative Berry. Might I interject just one thought

in connection with this other?

During the year 1934, when we were in a terrifically dry

cycle, there was no grass, Ranchers wintered their cattle with oil

cake and nothing but these willows for roughage. The ranchers

that were along this river bottom, all the way from Bismarck

clear down to Yankton used these willows for roughage and

fed cake to their cattle, and got their cattle through the

rg Lols. winter that way.

 255

S. *Interior Mr. Ducheneaux. Mr. Chairman, in 1936, during that

Kelleyrg fls drought, I had about 12 head of cattle. I had just got married
All'oca b-l
and was trying to get started. You couldn't get feed anywhere.

A man by the name of Tom Carter came down there and said to me,

"If you are going to save those cattle, just go down there and

chop down a cottonwood tree and let it fall. Those cattle

need that."

So I didn't believe that they would. But I dropped the

tree and drove my cattle around there, and finally one of them

reached up and ate the tops of those cottonwoods down as big

as your finger. They got used to doing that, and I w/.eld

throw my axe on my shoulder, and here were the cattle waiting

for me to come down, and I had to drive them a-y, tbause

when the tree fell it would kill them.

So those are valuable bottom lands that we are losing

there.

Senator Case. Mr. Chairman, I iondsr if I could resume,

since the point I had in mind was exact*V. the point you have

been touching on here, and it will take just a few minutes.

Representative Berry. Su'rey.

Senator Case. I would likt to step over to the map.

The whole point that is at issue here, and it seems to

me it is going to be the point that will be difficult for

Congress to understand, unless we do get it clear, is the

point that is here involved. The ordinary conception is that

 256

when you determine what the price of land is per acre, that

gives you a price that is a safe guide for the damages in-

volved. But when you have determined a per acre price for

land of an individual tract, it does not tell the story in

such a situation as this.

Now, the map that I have here is a map from the Sloan

Repor T o not .
~: you can see it too well. This is

the Missouri River, which bissects SoAth Dakota. Tn: Cheyenne

River Tribe lie right in here. This is the Cheyenne River,

and here is the Moreau River.

The r ason why this /a le story they are trying to get

across appeals to me a great deal is because I happen to have

a ranch that is located on the Cheyenne Rtver abcut 50 mil;

west c~ the western ud of the Cheyenne River Reservation.

My ranch is located right in here (indicating). It represents

in min atuz exactly the problem that they are discussing here.

I had so~~ bottom land along the river here. We have

some breaks upland, higher up. During the grazing season we

run the cattle up here in the breaks, where they water with

dams, up on the upland. In the winter we bring them down and

put them down in the bottom where the cottonwoods are, and

where we put up hay, on the bottom.

That is the type of operation. It is in miniature the

operation that they have been describing here, where you cut

your hay in the bottoms, keep your cattle off the bottoms in
3 257

the summer while you are cutting your hay, run them up on the

upland, and water them there, and when the dams run dry bring

them down here to the river at a sort of a rapids, or we have

a well down there in the bottom where we can go down to gravel

underneath the flat bed and get water that way.

As for shelter, the average farmer in that part of the

country thinks in terms of a shed or something like that for

shelter. During a great deal of the time that I had the ranch

down there, we didn't use any shelter at all, any man-made

shelter. There came this bad winter of 1949, and we did con-

struct one. However, we find that the cattle seldom use it.

If a storm comes, they do not stay in the shed. They drift

with the storm into where they get some natural shelter. They

are probably better off if they do, because they get air.

Some of the ranchers who had sheds and had cattle in

that heavy storm found that the cattle smothered. The barn

doors drifted over, and the cattle smothered there. It got

too hot.

So the open shelter for cattle that are accustomed to it,

the type of cattle they have there, is better. The cattle do

better if they have at most merely a windbreak of some sort

that keeps the wind off, and have plenty of open air. But no

person could come to me and get me to put any kind of a price

on cutting that ranch in two and selling just the bottom land,

and leaving me with the breaks and the upland, because I would
 258

only have a part-year operation. I would be able to run some

cattle there and maybe graze them in the summer when I could

water them in dams. But I would not have any place to take

them in the winter. I would not have any feed, any place to

put up hay, or the natural shelter or water for winter.

I mention that just to show that that in miniature I

think is the problem they are trying to describe here. And

it is why when you come to me, supposing I were to sell off

maybe 160 acres, if I could sell 160-acres and the price were

enough, if it involved both bottom land and upland, I might

possibly sell it off, but the measure I would put on 160 acres

or an isolated tract somewhere is no measure of the value of

the whole as an economic unit.

And that is the problem of the tribe here, where they

have a tribal cattle operation, or where they lease a great

area of land to somebody like Diamond A or Western Farm Manage-

ment, who have several hundred or a thousand head of cattle,

and they want to be able to have the combined operation for

a year-round operation.

There is very little buying of steers in the spring and

just running them until fall. The year-round cattle operation

means having your cows and calves and your steers until they

get to the feeder stage. The Western Farm Management raises

feeders in this area and takes them down to Wisconsin or

Illinois for feeding operations.

 259

But that is the point I wanted to make, and I think

Frank has already made it here very well.

From my own personal experience in handling a miniature

operation, I know it is a very sound and valid point. I hope

that the committee will give due consideration to it.

Mr. Case. May I ask a question?

Representative Berry. Surely.

Mr. Case, Senator Case, what would be your estimate of

the cost per head on large numbers of cattle to provide con-

structive winter shelter?

Senator Case. Well, I do not know, but I do not think

that that area would be satisfactory for a range operation.

Mr. Case. In other words, it would make an unsatisfactory

substitute for the buyer. But there was a figure suggested

here by Mr. Fuhriman of the M.R.B.I., and as I recall it, Mr.

Fuhriman, you suggested a figure of cost per head to construct

winter shelter, to build it.

Mr. Fuhriman. A figure of cost per acre based upon a

2,500-acre formula, of $1.50 per acre.

Mr. Case. That would take care of approximately a hundred

head?

Mr. Fuhriman. Yes.

Mr. Case. We figure 30 acris per cow or per animal, and

for 2,500 acres of tract that would be reducing it to 25 acres

per head, and you could take care of a hundred head, about.
 260

Mr. Fuhriman. About 70 to 100 head.

Mr. Case. What would it cost to build a winter shelter

for 100 head?

Mr. Fuhriman. We figured not quite 100, but 75 to 80.

We figure $1,000.

Mr. Case. $1,000 will do it?

Mr. Fuhriman. Yes.

Mr. Case. Is it not a fact that those winter shelters

are subject to fire in the fall or early spring, and they

always are subject to blow-downs?

Mr. Fuhriman. Oh, they are subject to hazards; that is

true.

Senator Case. I think of course your price will vary

according to whether you are putting up a quonset hut or frame

or whatever you might use. At any event, they would have to be

replaced in time. Here you are dealing with a permanent asset.

I thank the committee very much.

Mr. Ducheneaux. Mr. Chairman, I have a letter from the

Western Farm Management, who leased that before they gave up

the lease, and if they could not get those river bottoms down

there in this area here by setting up six units, so that they

could run cattle there the year round -- it would cost $180,000.

Now, that is not our figure but the Western Farm Manage-

ment figure.

Representative Shuford. You mean that was shelter they

 261

were going to put up?

Mr. Ducheneaux. They said they could not afford to pay

that price we were asking, of $6.60 per animal unit, because

they didn't have that winter shelter down there, and if we

would let them have it at the old price they would construct

six units there at $180,000. And that would only last them

for five years. They would be out, again. There would have

to be that continuous upkeep.

Representative Shuford. That was the difference between

the $5.40 and the $6. Is that right?

Mr. Case. Cost of construction.

Representative Shuford. I mean, they would take it and

construct it at the old price of $5.40.

Mr. Ducheneaux. Yes.

Representative Shuford. But they would not pay the new

price of $6-soaething, and that would be about a dollar and

something difference.

Representative Berry. Did you want to put that letter

ia the record?

Mr. Ducheneaux. Yes. I will insert it.

Representative Barry. I would like to ask unanimous con-

sent to insert this letter from the Western Farm Management

Company in the record at this time, as evidence of the value of

natural winter shelter over constructed winter shelter.

(The letter referred to is as follows:)

 262

Representative Shuford. Mr. Chairman, I do not think

2 the statement is exactly correct. The difference in value be-

tween the natural winter shelter and the constructed winter

shelter? It is the difference in value between the natural

winter shelter and no winter shelter. Because this contem-

plates that there would be no shelter, and they are going to

build it.

Representative Berry. The cost of substituting the con-

structed winter shelter.

Representative Shuford. What it would cost them to con-

struct winter shelter. That is what it would be.

Representative Berry. That is right. Thank you.

Mr. Case. It is a little unusual for the counsel to

offer himself as a witness, but I think I can qualify as a

witness.

For that, I was born on the reservation from which these

people come, your present complainants, and I lived for the

first 30 years of my life at the town of Yankton, and most of

my free time was spent on the Missouri River bottoms. I have

seen every disaster that came in the early days to the Dakota

Territory, from the grasshoppers to the blizzard of 188. I

went through that myself.

As a boy aqd young man, I spent all of my free time, as

I said, on the Missouri River bottoms. And there is the only

source we had in the early days of the Territory, of fuel, for

11
 263

the simple reason that coal was so expensive that we could not

afford it. Of course, we paid a very low price for cordwood.

My father was a builder, and I know about cottonwood, and

I know about cottonwood lumber. I have been through the cow

country. Many, many times I have slept in the bunkhouses and

learned the problems of those people. I knew Zimmerman of the

Diamond A and have been his guest.

I have been the guest of the Matador outfit. And I think

I have learned something from being on the prairies and in the

Rosebud country as early as 1889.

I can state to you definitely that every word that these

people have said about the qualities and values of the bottom

lands - there isn't a word that isn't true. The only diffi-

culty is that they have made a conservative statement and real-

ly an understatement. Cattle will drift with the wind, That

is definite and positive.

On a northwest blow, your cattle will go down into the

breaks, and they will go clear down to the river if they can

get to it. If there is bottom land available, that is where

they go. They stay there all winter. They feed there all

winter, and they take care of themselves, and they come out

in very fine condition, much better than the average wintered

stock that come out of the Missouri River bottom lands, and

better than under any other winter conditions in the entire

cattle country.
10
264

The fact of the matter is that when you have a 60-mile

wind on the top of the bluffs, you can go down into the bottom

and you have got just a breeze. No one who hasn't been in

that country can appreciate the tremendous value, the vital

importance, of the bottom lands in conjunction with upland

grazing.

And I woul like to have that much of my young life in

the record. I can say that every single word is true. My

only difficulty with it is that my witnesses have made an

understatement rather than an overstatement.

Representative Berry. Thank you, Mr. Case.

Mr. LeBeau. Mr. Chairman, I would like to now refer to

Section 2 of the bill, concerning the loss of wildlife, wild

fruits and berries, and the loss of timber supply.

This morning, in the testimony given by the M.R.B.I.,

they testified to the fact that the Indians were losing such

values as wild fruit, wild game, berries, and an annual loss

of timber.

It is a custom among our Indian people and of other

Indians all over the country to utilize whatever they can for

a living, for subsistence. We utilize the wild game that we

have there. We utilize the wild fruits and berries and also

the timber.

I think I explained a while ago the general type of build-

ings used by the majority of Indians are constructed from native

11
265

timber- logs; also livestock corrals and stock shelters, posts,

sheds, are all constructed from these poles and logs harvested

from these various types of timber, native timber. Also, all

of the fuel used for heating and cooking purposes is derived

from native timber.

And because of the fact that the timber is there, we have

wild fruit and wild game and wild berries which we can utilize.

Our estimation of that is based on the M.R.B.I. report.

They stated that they are a fact-finding board furnishing facts

as much as possible, and in much of our evidence we relied on

their reports.

We had stated a part of their report in our Memorial. On

page 19 of the Memorial there is a quote on non-cash subsistence

values. There is explained there that native timber is their

principal source of fuel, corral poles, and house logs, and

also the value, the estimated value, of that timber, the use

value to the Indians.

It also explains that wild fruit and wild game use by

the Indians.

The figures shown on page 20 show the loss of wildlife

resources, which was taken from the report of the Fish and

Wildlife Service in Billings, Montana in January of 1951. The

value of this loss of wildlife resources was placed at $74,300

annually.

Because of the fact that we are losing these resources

12
266

forever, we have capitalized that sum at 4 per cent to arrive

at our value. And that value is a part of Section 2 of the

bill.

Representative Shuford. What does that amount to in

dollars and cents? You say it is included, but what is the

actual value that you placed on it?

Mr. LeBeau. That is included in the $6 million quote on

page 3 of the bill.

Mrs. Ducheneaux. On the back of the Memorial I think

there is a reference to that.

Mr. Case. On page 27.

Representative Shuford. $1,857,500.

Mr. LeBeau. Yes. The other two totals there on that

page are the loss of timber supply and the loss of wild fruit

and wild game.

I have taken that figure in the M.R.B.I. report and

capitalized on it. That is the way we arrived at the totals.

Representative Shuford. What does your wildlife consist of?

Mr. LeBeau. It consists of deer, beaver, rabbits,

pheasants, and other small game that we have there.

Representative Shuford. You do not think you lose it

completely, do you? Will they not move out from down below

and go up on to higher ground?

Mr. LeBeau. The type of wildlife that inhabits those

timbered bottoms could not live on the uplands.

13
267

Representative Shuford. The deer could not live on the

uplands?

Mr. LeBeau. No. There are antelope on the uplands. We

haven't considered them. This is a type of deer, though, that

I believe it has been proven by experience in the Fort Peck

Reservoir in Montana --

Representative Shuford. Is it a white-tailed deer?

Mr. LeBeau. Yes. -- that it could not survive on the

uplands without shelter.

Representative Shuford. Not the type of Virginia deer,

is it? A small deer, is it?

Mr. LeBeau. I wouldn't know what type of deer you have

in Virginia.

Representative Shuford. Now, as to the pheasant you

would lose, is that the ring-neck?

Mr. LeBeau. That is right.

Representative Shuford. They will move up into the up-

lands, will they not?

Mr. LeBeau, They will not survive on the uplands during

the winter. They have to have shelter. Because of the loss

of that shelter, they will not survive.

Representative Berry. There is very little farmland on

the upland there, and very little feed.

Mr. LeBeau. The only type of wild birds that survive

there are the native what we call prairie chickens, the grouse.
I
 14
268

They survive on the uplands.

Representative Shuford. I believe you speak about your

wild fruit. That is not too important, it seems. You do not

lay too much stress on that.

Mr. LeBeau. They do use it.

Representative Shuford. They do use it, but you do not

have too much of it there. What does that consist of?

Mr. LeBeau. That consists of plumbs, choke cherries,

currants, and sand cherries.

Representative Shuford. Blackberries?

Mr. LeBeau. No, we have no blackberries. Wild goose-

berries and grapes.

Representative Shuford. Are those fox grapes?

Mr. Case. No, they are the bunch type.

Representative Berry. Who is the next witness, now?

Mr. Ducheneaux. Mr. Case, on interest.

3 Mr. Case. Mr. Chairman, the bill as it is written and

introduced, page 3, line 7, of the bill --

Representative Shuford, And then you have it again on

page 5, I believe.

Mr. Case. On page 3 the bill authorizes the appropriation

of $9,386,000, "which shall be deposited to the credit of said

tribe in the Treasury of the United States, to draw interest

on the principal thereof at the rate of 5 percentum per annum

until expended."
15

269

The last great previous land cession made by the entire

Sioux Tribe is contained in the Act of March 2, 1889, 25 Stat.

1888. That Act was a contract passed the year before by the

Congress and submitted to these people for ratification. The

Sioux Indians took that act of the previous year as a contract,

and it was so submitted to them.

Three-quarters of the adult males of the Sioux Tribe

ratified that agreement in writing. More than three-quarters,

in fact. It was over 80 per cent of the adult males, that

ratified the Act of March 2, 1889. That Act was proclaimed as

in full force and effect on February 10, 1890, by the then

President, Benjamin Harrison,

That Act disposed of over nine million acres of land held

in trust by the United States for the purposes of sale. It

was intended to create a great fund out of that sale of land.

The Act itself provides for interest on the principal sum

so derived at 5 per cent per annum.

For that reason, we felt that we should at least submit

our request to the Congress in the form of legislation, with

an interest rate of 5 per cent. We are not oblivious of tho

fact that interest rates have gone down.

However, referring back to the only cession of land that

was ratified completely, in accordance with the Treaty of

1868, that Act did carry 5 per cent, and the Government ad-

vanced to the great Sioux fund the sum of $3 million, and some
16
270

portion of it is still in the Treasury of the United States

and still draws interest at 5 per cent. That is our back-

ground.

Now, we do recognize that interest rates have gone down.

And we have only this to say. Taking into consideration our

previous cession of land, we did ask interest at 5 per cent.

We fully recognize that it is the province of the Congress to

fix that rate. The Department of the Interior recommends 4

per cent.

We do not want to bargain or haggle. There is the request

by the tribe. Here is the recommendation by the Interior De-

partment. As to whether it should be 5 or 4, it is for you

gentlemen to decide.

Representative Berry. Thank you.

Now, are there any questions?

Representative Shuford. Does your statement apply also

to the interest on page 4, the bottom of 4 and the top of page

5, in Section V?

Mr. Case. The same statements.

Senator Case. Mr. Chairman, might I inquire whether

there has been testimony offered which would show the per-

centage ratio of cost between the request of the tribe here

for the amount of acreage involved, the relation to the total

cost of the dam, or the Oahe Reservoir Project, and also in

relation to the acre-feet of storage, as compared with the

17

271

percentage ratio established on other projects?

Mr. Case. Certainly the second question has not appeared

here in any form.

Senator Case. Mr. Chairman, I should like to ask per-

mission to submit a statement for the record, which will be in

the form of such information as I can get from the Corps of

Engineers and the Bureau of Reclamation for comparative costs

of reservoir land requirements in relation to the total cost

of the project and the acre-feet of storage.

And I shall make that inquiry on comparative dams in

Arizona, Oklahoma, Montana, and perhaps some other States. I

will try to get something that will be comparable.

My feeling is that even if you allowed everything that

the tribe here asks, you would find that the reservoir site

cost in terms of dollars for the number of acres involved is

a low percentage in relation to the average for the dams, and

in relation also to the acre-feet of storage accomplished.

Mr. Case. May I add some figures that are in the record

here in this hearing? It has been stated that the estimated

over-all cost of the Oahe Project is now or will be $300

million.

Senator Case. Mr. Chairman, that figure is not correct.

In the hearings before the Senate Committee on Appropriations

for the Civil Functions of the War Department, the figure was

placed at much in excess of that, and I would like permission

18
272

to submit that for the record. We took testimony on that

this spring.

Representative Berry. Without objection, the statement

will be received and made a part of the record at this point.

(The statement and information referred to are as

follows:)
19
273

Senator Case. I do not want what I have said to be a

reflection on the figure that you have given. Your figure may

have been correct for an earlier estimate.

Mr. Case. I was quoting from what was stated in the

hearings, here, yesterday. I realize that estimates grow and

grow and grow.

20

274

STATEMENT OF ALEX CHASING HAWK, MEMBER,

CHEYENNE RIVER SIOUX TRIBE AND CHEYENNE
RIVER SIOUX TRIBAL COUNCIL.

Mr. Chasing Hawk. My name is Alex Chasing Hawk, member

of the Cheyenne River Sioux Tribe and a member of the Cheyenne

River Sioux Tribal Council and a member of the negotiators on

the Oahe tracts.

My address is Howes, South Dakota.

Mr. Chairman and members of the committee, in this Senate

Bill 695, under Section III, which relates to the removal of

cemeteries and monuments, I don't think the committee will

have very much trouble with this section, because these people

are dead. I don't think there is going to be any trouble.

(Llghter.)

In our Memorial, it states that the tribal negotiators

object to this provision. The wording of Section III in the

Oahe bill should be retained.

And I still think that we should retain this. Public Law

870 was enacted, and later on a member of the M.R.B.I., whose

name was Mr. Carl Yerrington, came to the Tribal Council, and

he came out with a proposal that he wanted the Tribal Council

to designate a place-where all these burial places would be

removed. They talk about moving the cemetery to a place that

is 20 miles west of the Cheyenne agency.

Tentatively they talk about it. But the Tribal Council

decided that they should not act on it, because they have been
21

275

negotiating with the Army Engineers on this particular matter.

But Mr. Yerrington I think must be curious about it, and he

wants us to act on it so that they can go ahead and remove all

the cemeteries out there. So we decided not to do it.

Then, of course, we all know we are wards of the Govern-

ment, and naturally the Interior Department have it as their

responsibility to guide us and advise us what to do, and all

that. So we go by their report at this time, Report No. 120,

by M.R.B.I.

As to cemeteries within the taking area, there are six

distinct cemeteries, of which five will be inundated. As to

these cemeteries there are about 1,700 burials, Protestant,

Episcopal, and so on. There are five Catholic cemeteries

within the taking area, of which three will be flooded, and

the approximate number is 400 burials.

And we have one private burial ground containing three

burials within the taking area.

The next-of-kin have indicated that a redetermining of

these burials will not be required.

So I think the individuals should have a right to desig-

nate their own choice as to where the burials should be taken.

But we are operating-under the Wheeler-Howard Act, and we are

organirAd under the Act, and we have a Tribal Council. There

are 15 Councilmen, and our officers, Chairman, Secretary,

Treasurer, and Sergeant-at-Arms, and we generally manage our

 22
276

own local affairs, and beyond that we have to cooperate with

the Interior Department.

So, then, if such removal of cemeteries should take place,

it should go to the Tribal Council. Because I represent a

district. We have 13 organized districts in this Tribal

Council. I represent one district. And if one of my con-

stituents want that the burial should be removed, I live about

140 miles out of the Cheyenne agency, and if a burial should

be removed out there, I think the Corps of Engineers should

pay all the expenses and everything to satisfy the next-of-kin.

Then we have one monument, which is a memorial to the

Veterans of World War I, erected pursuant to an Act of Congress

of April 29, 1939. So that should be removed. That is what

we call a monument. And then there is a shrine called the

Madison Rock. There is quite a story to it in detail, but it

is a shrine, and that should be relocated.

And there is the relocation of a soldiers' memorial.

4 That should be relocated. And I don't think there is any

dispute, or I cangt see any dispute, on this item here, be-

cause naturally it would have to be removed.

I have the names of all of these people. Some of them

are unidentified. I don't know what can be done.

I think that is about all I can say, because it is

purely a matter that has got to be done. I thank you.

Mr. Case. Now we proceed on re-establishment of

23

277

facilities.

Mr. Ducheneaux. Mr. Chairman, the part that we have

here has to do with relocation of the Cheyenne agency.

Before I go into that part of it: In all our appropria-

tions that we have asked for under the bill, we have asked

that the hospital at the Cheyenne Agency, which belongs to

the Tribe, be rebuilt. And as evidence of the ownership of

that hospital, I want to introduce in evidence at this time

a letter signed by J. M. Cooper, Director of the Missouri

Basin Investigations, to Gerald T. Hart, in that regard, as

to the ownership of the hospital.

Representative Berry. Describing where the funds came

from?

Mr. Ducheneaux. Where the funds came from.

Representative Berry. Without objection, it will be

received and made a part of the record.

(The letter referred to is as follows:)

24
278

Mr. Ducheneaux. Mr. Hart was instructed to appraise that

hospital. It is a 40-bed hospital, fully equipped. Hart put

an appraisal of $110,000 on that hospital.

The negotiating committee put a value I believe of

$110,000 on the hospital, replacement value. Or that should

be $480,000; correction.

In order to get that value, we went over to Gettysburg,

South Dakota and asked Charles E. Harris, Secretary, Board of

Directors, Gettysburg Memorial Hospital, what it cost to con-

struct the new hospital there.

In his letter to me, which I offer in evidence here, it

states that for a 26-bed hospital, fully equipped, the cost

was $308,440. And in the relocation of the agency, we want

that hospital rebuilt, so we haven't asked for a value on that

hospital.

Representative Berry. Without objection, the letter from

Charles B. Harris will be made part of the record.

(The letter referred to is as follows:)

25

279

Mr. Ducheneaux. The hospital was needed on the reserva-

tion. Our people have no place else to go. Our people come

from a low-income group. I think that is pointed out in the

social and economic survey made by M.R.B.I. And if they lose

that hospital and have to go out to outside hospitals and have

to pay for their hospital services, our health problem will

become serious.

The Government has spent a good many millions of dollars

to get the Indians aware of the need for hospitalization in

this health problem. Just when our people had become aware of

the need for sanitation and health considerations, if that is

taken away from us, it will create a bad situation on our

reservation.

The relocation of the whole agency is needed there. We

depend on those services that the Government supplies there

at the Cheyenne Agency in health and educational facilities,

extension facilities, range management, and the land division

and road facilities. We have no other place to go for those.

I know it is the policy of an Indian office now and the

policy of Congress to turn those different divisions over to

the different State Departments. I can say that the Tribal

Council here has been against turning those facilities over

to the States, with their different departments, and our

Governor, Big Anderson, has gone along with us. He has made

the statement to Congress and in the meeting we attended, Mr.

27
280

and the county will not put any schools down there so that

our people can go to school. In fact, there are no roads down

into this area. We have got to have that boarding school,

because these people that live down here find that the nearest

public school is about 40 miles.

So we ha a to have that boarding school there for our

children.

As to what I said about health, the same thing applies

in education. If, the Indian people having gotten aware of

the need for the education of their children, the Government

is going to take those facilities away from us, we will not

advance any further than we ar aow for a good many years.

Representative Berry. Of course, there may be a misunder-

standing about what is meant about taking facilities away from

you. You understand that no one wants to take educational

facilities away from anybody, or hospital facilities away

from anybody. The point that you should make is the distance

from the Cheyenne agency to where another hospital is located.

How far is it to Pierre?

Mr. Ducheneaux. 70 miles.

Representative Berry, How far to Gettysburg?

Mr. Ducheneaux. 20 miles.

Representative Berry. How far to Mobridge?

Mr. Ducheneaux. From the agency?

Representative Berry. From the agency, yes.

26
281

Berry, that they would not take them over unless they could

be supplemented with funds.

We find as to the health problems that Congress now is

proposing to turn that over to the Public Welfare Department.

I believe even the white people donut approve of that depart-

ment. When it is turned over to them and we find ourselves

over there and have to compete with the other citizens for

services as to health, we feel we will not get those services.

We hope the committee here and the Congress will take that into

consideration and leave our health facilities as they are now.

That applies to the others here, the other items I named,

health facilities, educational facilities, and extension fa-

cilities.

I would like to say a little bit on educational facilities.

Most of our people live down along the rivers here. We have

one Government ~a4sa located here at White Horse. They have

another one located here at Moreau River, which will be

flooded out. Then there is the agency boarding school here

(indicating). We have no facilities in here, but we get down

here to Cherry Creek, Bridger, Thunder Butte, Green Grass,

and Your Bears, and those are the places where our children

get their education.

Now, the county will not be able to furnish those ser-

vices that we get from the Government, because there are no

taxpayers down in this country, and it is all indian land,

28
282

Mr. Ducheneaux. It is 50 miles.

Representative Berry. Those are the closest hospitals,

the nearest hospitals, from that area, are they not?

Mr. Ducheneaux. Yes, outside of the agency hospital.

The only other point I want to make is that when our peo-

ple get sick down there, they have no transportation. It is

just a matter of getting on the telephone and calling up

there, and a car is sent out, because they can't get to the

hospital if they don't have those services from the Government.

Those are the things I want to point out. And at this

point I want to turn the other portion of the relocation of

the agency over to Mr. Little Cloud. Mr. Little Cloud, you

can go ahead.

STATEMENT OF JOHN LITTLE CLOUD

(AS INTERPRETED BY ALEX CHASING HAWK)

Mr. Little Cloud. (Through interpreter) Mr. Chairman

and members of the committee, I would like to say a few words

at this time. I am a member of the Cheyenne River Sioux Tribe

and a member of the Tribal Council, and I am 63 years old. I

think I am the last Indian who ever lived at the present time.

What I want to say here is that when this Oahe Dam was

first initiated and there was talk about it in the Tribal

Council, the Tribal Council decided to oppose the building of

a dam on the Missouri River. The Tribal Council took the

position that every effort should be made to stop it.

29 283

Therefore, a petition was drafted and was circulated

opposing the construction of the dam.

As time goes on, when the matter of Oahe Dam was in

progress, finally we went to Aberdeen and met with the Corps

of Engineers of the United States Army, and we discussed cer-

tain matters which would affect us if such a dam was built.

Then we talked about various things. This moving of the

agency was a subject that we took up there. And to my knowl-

edge, at that time the Army Engineers, the representative

from the Army Engineers, agreed to go along with us on what we

want, and I still contend that that should be carried on.

Afterward we had various meetings at various places, in-

cluding Washington, D. C., and we discussed the matter with

the Corps of Engineers, and at that time it seemed that every-

thing went along pretty fine. But now it seems like the Army

Engineers have disagreed with us as to certain matters.

I am particularly interested in the moving of the %gency,

because of the fact that we have about 40 per cent of our

Indians that are not capable to go out and handle their own

matters, and they had to depend on the agency.

We have a proposed rehabilitation program in line with

this Oahe deal, and if that is so, naturally our old Indians

will depend on the agency. That is what our people want, and

I hope that something can be accomplished at this time.

The moving of the agency should be based on the

 30
284- 285

rehabilitation we propose in our bill.

In connection with this relocation of the agency, Mr.

Ducheneaux has mentioned the major part of that subject, but I

wish to add a few words in regards to education. As for myself,

I am a full-blooded Indian, and I think that education should

be given thorough consideration. What I don't like is that in

our nearest town there are some Indians going to school among

the white people, and I know that our Indians were discrimi-

nated against, and if in education there is consolidation with

the public schools there will be some dispute, or something

might come up.

If we only could keep our own Indian school, I think our

children will have better advantages along the line of education.

5 The same thing applies as to our hospital. So we would

like to have our hospital, and if that can be considered it

will be appreciated.

I would like to add that in talking about this rehabili-

tation program that we propose in our bill, we have some

Indians who are very poor. It isn't their laziness, but they

just don't have the money to operate to make a living or in

order to become self-supporting. Therefore, if we have such

a program on the reservation, I am sure that we would set up

our families in a position where they can be self-sustaining.

Representative Berry. His testimony in chief is that he

thinks that the facilities should be re-established at a new

31

286

location. Is that correct?

Mr. Little Cloud. (Through interpreter) Yes.

The last remark I would like to make is that the senti-

ment of the people there is that they want the agency to be re-

located in the center of the reservation. I have talked the

matter over with the officials in my home town, and they report

that according to the survey there is a water shortage there,

but I was informed that they would develop water enough so that

they could furnish enough water for the agency if the agency is

located right in the center of the reservation.

The town is Eagle Butte. There is tribal land adjoining

the town of Eagle Butte, and the agency could be moved to that

tribal land.

That is all I want to say. I thank you all.

Representative Berry. Thank you.

Mr. Ducheneaux. Mr. Chairman, I would like to state for

the record that the Cheyenne River Sioux Tribal Council has

gone on record in asking for the relocation of the agency, that

it be at Eagle Butte, South Dakota, which is at the center of

the reservation, where it would be more accessible to all of

the people on the reservation. It has been, ever since the

construction of the agency, at the east end of the reservation,

and our people that are farthest away from the reservation,

which is 150 miles -- I should have said "agency" rather than

"reservation," the Cheyenne agency -- and those people have not

32
287

got the services that the people on the east end have got.

For that reason, they are further retarded in education and

other civil pursuits. That has shown up all along the M.R.B.I.

survey.

Mr. Case. Section IX of the bill, page 7, gives to the

members of the Indian tribe now residing on the reservation

"the right without charge to remain on and use the lands here-

by conveyed as said lands are now being used from and after the

effective date of this Act to the point in time where the gates

of Oahe Dam are to be closed for the impoundment of the water

of the Missouri River."

That is not objected to by Interior, nor is it objected

to by the Corps of Engineers, and it has been the practice on

other reservations, particularly Fort Berthold.

Now, Section X of the bill is much more important and

should have more detailed explanation than I can possibly give

it now. Section X is in regard to the right of access to the

shore line, and provides that after the gates of the dam are

closed and the waters impounded, the tribe and the members

shall have the right to graze stock on the land between the

level of the reservoir and the taking line described in Part

II thereof.

This has been a subject of more or less confusion, since

we learned about the division of the lands to be taken into

fee patent and flowage easement rights. The matter is not

33

288

entirely clear and should have further explanation, either as

to what the Corps of Engineers in the Department are going to

do, whether they should adopt a new policy or whether they

will ask the Congress to proceed with the enactment of this

bill.

Representative Berry. Would you yield at that point?

Mr. Case. Yes.

Representative Berry. My suggestion would be that either

it be in the bill or in the report that in the event fee title

is taken in the Government, which it will be, the tribe be

given the leasing, the authority to lease that area, the taking

area, for the benefit of the Army Engineers, if it is going to

be held by the court.

And I am not sure whether that should be an amendment to

the bill, or what. But I do think that the rights of the

property on the reservation can only be protected in the event

that the tribe has the leasing of that land, if the Corps of

Engineers intend to hold that land and use it for leasing

purposes.

Now, I don't know whether that should be an amendment to

the bill or whether it should be an understanding.

Mr. Case. It had better be an amendment to the bill,

because other than that, these understandings fade as time

goes on, and they are always the source of disputes. So I

believe that this perhaps will accomplish that purpose. That

I
 34
289

gives the right of access and the right to graze cattle on

that strip between the water level and the taking line. And

correspondingly, the same section relates to the right of free

access, including the right to hunt and fish on the shoreline

of the reservoir, subject, however, to regulations governing

the corresponding use by other citizens of the United States.

Now, the right to hunt and fish is a tribal right. It

is still preserved and is still holding. No white citizen of

South Dakota can go on this reservation and hunt unless he has

first obtained a license from the Tribal Council. Our right

to continue hunting and fishing is to us an extremely valid

and valuable right. It is an ancient right. It is all that

is left of our lives as they existed a hundred years ago.

Section XI is one that has been very much in dispute

here. It is for the purchase of land where the Indian holds

a trust patent and must surrender it, and he is credited with

a stated amount of dollars in the appraisal and in the sched-

ules. That amount of dollars placed to his credit he may -

direct the use of in buying other land, which Section XI pro-

vides, to which the United States shall take title and issue

to him an allotment title holding the land in trust exactly

similar to the present trust allotment patents.

Now, there is a dispute over that, which has been before

this committee for the last two days. As I recall it, the

Department of Interior recommends that the land be bought in

35 290

restricted fee to the Indian, the restrictions being the same

as are now imposed by the trust patent.

The Indians who own land in fee simple on the reservation

are, under Section XIV, permitted to sell their lands, or,

that is, take the money accredited to them for their lands.

They can either take down the money, or they can have land

bought for them in the name of the United States in trust

patent. The Indian Office opposes that vigorously, and we

say in our Memorial that we recognize the fact that Section

XIV is in direct conflict with the present policy of issuing

patents in fee or patents for a limited period in trust.

Under the Interior Department's program for Section XI,

we would get a trust patent, or a restricted patent, and that

would be good only for the life of the holder of that trust

patent. Thereafter, the fee would be in the estate of that

particular former allotted.

Now, we do not like at all the idea of injecting the fee

simple title at any time until and unless the Indian Reorgani-

zation Act of 1934 is amended and the Congress is itself termi-

nating the trust period on all lands held under allotment

patents.

We grant that the Congress could do it, but as Senator

Case said, it is a matter of good faith. And furthermore, we

say that we object to being singled out, because we are in this

hole here, that we are selected to have a fee patent handed off
 36
291

to us, when you are not doing the same thing with any of the

rest of the Sioux Tribes nor any of the other allotted tribes

throughout the United States. We all recognize the withdrawal

program, and we also recognize that ultimately it must come,

for the good of the Indians and the good of the United States

-- there must come in time a period when the Indian will hold

his land in fee, and he will pay taxes the same way as all the

rest of us do.

But why experiment with these Cheyenne River people, who

are being terrifically damaged by the Oahe Project? Why not

leave them in status quo, which you can only do if you give

them back a trust patent just as good as the old allotment

patent and in the same general terms? That should be done.

We want that, and we do not want to be the guinea pig

for the experiment made in shoving the American allotted

Indian of the Sioux Tribe out and on to the tax rolls, when

you aren't doing it in a general way.

6 Then we have Section XII, which is purely legislative,

and nobody has even commented on it. That provides that:

"No part of any expenditure made by the United States

under any or all of the provisions of this agreement and

the subsequent acts of ratification shall be charged as

an offset or counter claim against any tribal claim which

has arisen under any treaty, law, or executive order of

the United States prior to the effective date of taking

37
291-A

of said land as provided for in Section I hereof and the

payment of Sioux benefits as provided for in Section XVII

of the said Act of March 2, 1889 (25 Stat. 888), as

amended, shall be continued under the provision of Sec-

tion 14 of the Indian Reorganization Act of June 18,

1934 (48 Stat. 984), on the basis now in operation with-

out regard to the loss of tribal land within the taking

area under the provisions of this agreement."

That is virtually Section 15 of the Indian Reorganization Act,

either 14 or 15; I am a bit hazy on the exact number. But

that is the provision, continuation of the payment of Sioux

benefits.

And the next section to it either above or below in the

Indian Reorganization Act is maybe not word for word but in

substance exactly the same as Section XII. We want those

legislative provisions in there that nobody has objected to,

and we think they should be so included.

Section XII is the safeguard against claims such as the

Cheyenne River people now have. They have a claim pending

in the Indian Claims Commission, Docket No. 192, for 60 million

tons of lignite coal, where the land was classified as non-

coal - erroneously, we say -- and where that coal land was

sold off to homesteaders at the appraised price of agricultural

land when it was known to be lignite.

The Lower Brule Tribe has a claim for 30,000 acres of

38 292

land that was clipped off the south side of that reservation

by an erroneous survey. That is perhaps, you might say, not

reachable by this bill, but if you will please note Section

XII would run to Lower Brule as well as to Cheyenne River.

That claim has been denied by the Indian Claims Commission,

appealed to the L. S. Court of Claims, and reversed and re-

manded for further proceeding, which we are now taking.

Now, Section XIII is a very important section and needs

very little explanation. That is to say, it is the acts of

the United States, the act authorizing the great dams on the

Missouri River, the act authorizing the hundred dams on the

tributaries. It is the whole Missouri River development

program, that has caused the Cheyenne River people to go into

a vast deal of expense, many, many thousands of dollars.

I don't dare quote, because my amount would not be large

enough, I am sure. But it has been a heavy expense, a heavy

duty, and it still goes on.

The bill provides that on completion of the work and

the enactment into law and the ratification, then the Indians

shall bill the United States for their costs of this day's

work and all days preceding unto the bitter end. Both sides

of this date, we have spent and we will spend money. And

this section provides that we shall be reimbursed for those

expenditures caused solely by the public necessity of con-

trolling the Missouri River.

 293

As to Section XIV, I might as well admit that I think we

got over the border a bit on that one. It would permit a per-

son holding a patent in fee of former allotted land, one of

whom sits right next to me, the Chairman of this negotiating

committee, the Chairman of the Tribal Council, a successful

farmer and cattle raiser - it would permit men of his status

to get their lands back under a trust.

Now, we know that is against the policy of the Interior

Department. We say so in our Memorial. We don't disavow it

or ask you to strike it out, but if you read our memorial you

will see the fact that we recognize that this is against the

present policy. In fact, it is absolutely 180 degrees away

from the present policy.

Section XV is an attempt to help out the Interior Depart-

ment and help out the Indians at the same time. I don't mind

admitting that the help to the Interior Department is something

incidental. But we are anxious to get rid of, if we can, by

some plan, these fractional amounts that are a pest and a

nuisance. I have seen a man get a check for 75 cents for his

share of the rental of a vast area of land, and it must have

cost the Government $75 to have done all the bookkeeping and

all the correction of the rentals, and then split it up into

his tiny fractional interest.

And that is only one illustration. There are hundreds of

thousands of them now. And some of the fractional interests

 294

run up to one part in 7,848. It is a horrible situation and

never should have arisen, but it did, under the Act of June

25, 1910, the Indian Inheritance Act.

Mr. Jax. May I ask a question there?

Mr. Case. Yes, sir.

Mr. Jax. Would you favor such a provision as is being

proposed in the California termination bill, namely, to

authorize the Secretary, upon the request of any member of a

fractionated piece of land, to sell, partition, or satisfy

the problem within the discretion of the Secretary, rather

than require a majority of the owners to petition?

Mr. Case. We aren't asking for that.

Mr. Jax. No, but under the present regulations of the

Department of Interior, as I understand it, at the present

time, a majority of the owners must.

Mr. Case. A majority in interest?

Mr. Jax. Right.

Mr. Case. Yes.

Mr. Ducheneaux. Mr. Chairman?

We would not be in favor of that amendment to the bill,

for the reason that we have spent 20 years in consolidating

our reservation and trying to get it back into Indian owner-

ship so that we could better control it. And that would tend

to break up the very thing that we have done for 20 years.

Mr. Jax. Well, not if the option that was given to the
 295

tribe met the advertised or high bid in order to maintain the

solidity of your reservation. At the present time it is al-

most impossible to attack this fractionated heirship question

when you have to get a majority of the parties in interest to

consent to a sale, in order to solve the problem. You Just

physically cannot get the majority.

Mr. Ducheneaux. It is not a problem on the Cheyenne River,

because the Cheyenne River Sioux Tribal Council has done that

for themselves. Here is a consolidation here in Armstrong

County. We have a deal on now. These dark pieces are deeded

land. The red is allotments, and this yellow is tribal land,

and the green is exchange assignments, in this area.

Now, we have got a deal on with the Diamond A Cattle Com-

pany to trade out all these dark lands in there, which will

make that 100 per cent Indian-owned land, so that we can con-

trol it. We will not have this trespass problem, then, in that

area.

Now, if that provision was to go in there, and an individ-

ual, after we have worked for his benefit through the Tribal

Council, can come in there and say, "Well, now, here, I want

to get $50 out of this thing," and he just throws the thing

back into a checkerboard, the same thing we have been trying

to get away from for 25 years, and the Tribal Council now is

buying out those heirship interests -- we can solve our own

problem at Cheyenne Agency.

 296

Mr. Case. I think the Tribal Council should go in there,

but it may be that the way it is written is broad enough for

the Tribal Council. They are buying those fractionated inter-

ests wherever they can, and as far as their funds permit, and

it is very wholesome, because putting the land back in tribal

ownership means there won't be any further fractional lands,

unless something forces us to sell our tribal lands.

And lets not go into that. That is too fantastic.

We can get along under the language of Section 15, and

I think Interior was off base a bit when they objected to it.

That would be a help to us, and that widens your market. If

the holders of inherited lands or interests are involved, you

may find a man with a three-quarters interest in a quarter

section, and there may be a dozen others that hold the other

quarter.

This would permit him to buy them up. And if the land

is in the taking area, he then could use his increased inter-

est in a quarter section and transfer it over to the lieu

land that is to be purchased under this land by the United

7 States for the benefit of the allottee. How about that? Is

there any further question on it?

Mr. Jax. I just wanted to get your views on that.

Mr. Case. Yes, sir.

Now, as to Section XVI, that is the provision giving the

individual who objects the right, the absolute right, to

 297

complain, in which event a proceeding must be instituted, and

in the United States District Court for the District of South

Dakota. And we meet in the jurisdiction of that court to

hear and determine the case. Any objector who does not like

the appraisal and does not like the amount assigned to him

can simply object, and then he has the right to go into court,

but the Government must start the proceeding and pay the filing

costs, of course.

It would be in the nature of a qualified condemnation

proceeding.

Representative Berry. The amount that was set apart for

him, allocated for the payment of this land, would then come

out of the total amount of the settlement?

Mr. Case. It will go to the court. Lets say he found

that he was due $7,250. All right. When he objects and the

proceeding is started, the Tribal Council draws his check for

$7,250 and deposits it with the clerk. Then the proceeding

is had, and witnesses are there as to value.

And in the event that the judgment in that proceeding

is in excess of the amount, $7,250, then the United States

will pay the difference.

The committee might well take due note of the evidence

you stated yesterday in the hearing, and that is that the

condemnation proceedings are resulting in judgments on an

average 40 per cent higher than the appraisals. This would be

 298

an appraisal. $7,250 would be an appraisal. He doesn't like

it. He objects. The Department of the Army files the action

in accordance with that provision. The tribe deposits the

money in the hands of the clerk.

Trial is had. The amount of just compensation is deter-

mined. And the money is there to pay back to that Indian

$7,250, and if there is a shortage the United States pays it.

Representative Berry. While they are taking note of

that, though, they should also take note of the fact that the

appraisal is on a different basis than the appraisal that we

are making.

Mr. Case. I haven't any doubt but what the attorneys for

the Government will take full advantage of that statement.

Now, Section XVII is merely the authorization of the

appropriations stated in this bill. Please note that the in-

definite items for such matters as John Little Cloud has been

talking about, agency restoration, facility restoration, and

other items, in Sections III and IV of the bill -- appropria-

tions are not authorized. It is simply a pledge by the United

States to make them.

There is no authorization for any of those appropriations.

And they do not meet the justification that is necessary when

you ask for an authorization for appropriation.

And that, gentlemen, is all we have to say on that point,

and if you please, when we take up tomorrow morning at ten

 299

o'Olock the actual appropriations asked for, or authorization

for, under Section V, we will dispose of that in perhaps two

hours' time. And at that point I will reserve the balance of

my time for a statement of the conclusions I would like to

draw.

Mr. Ducheneaux. Mr. Chairman, I would like to clear up

one provision of Section XI. One of the Congressmen yesterday

said he would like to have a clear understanding of that provi-

sion. That is on page 9 in line 12. It says:

"Provided, That for the purposes of this section

only no prior Act of Congress or departmental regulation

shall be held to be a bar to the full operation of this

section, nor shall the Tribal Constitution, ordinance or

resolution thereunder be held to be a bar to the full

operation of this section, numbered XI."

Mrs. Ducheneaux. That was Mr. D' Ewart.

Mr. Ducheneaux. Was it Mr. D 9 Ewart?

First I would like to say that under our Constitution of

the Tribe, under Article IV, Powers of Self-Government, under

Section I, Subsection (c), it says:

"To approve or veto any sale or disposition or lease

or encumbrance of tribal land, interest in land, or other

tribal assets which say be authorized or executed by the

Secretary of the Interior, the Commissioner of Indian

Affairs, or any other official or agency of government;

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provided that no tribal lands shall ever be sold, en-

cumbered, or leased, for a period not to exceed five

years."

Now, this is a matter for the Tribal Council. But if,

taking an individual that is flooded out of this bottom, ac-

cording to the Constitution, if he wanted to go to the tribe

and say, "I would like to purchase enough land here to re-

habilitate myself," we couldn't do it, under our Constitution.

That provision was put in there to provide for that.

Representative Berry. For the sale to him of tribal

land in exchange for the land, or in exchange, so to speak,

for the land that he is giving up?

Mr. Ducheneaux. Yes. But that only applies to the dis-

placed persons. It doesn't apply to everyone. And that is

providing the Tribal Council approves. I don't know whether

that clears it up or not, but I know he asked for that.

Mr. Case. It is the customary saving clause. Because

we recognized that there might be technical objections raised

by the one Indian lawyer that we have in the country, or some

other lawyer, but if the Congress recognizes that, that supra-

venes the Constitution of the tribe, to say, "You can do it

under this statute."

Representative Berry. What kind of a title would the

tribe give? It would be issued by the Government for and in

behalf of the tribe.

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Mr. Case. It would say that sum of money allocated to

that Indian is out here in the schedule. All right. You get

$7,250 for the land. Then he refuses to take it. When he

does that and goes out and goes in before the courts, and

the courts decide how much money he is going to get, he gets

the money. He can do whatever he pleases with the money.

We are not going to buy any land for him, if he takes

himself out of our organization entirely and does not want to

go along with the people. That is his privilege. But if he

does accept that privilege under Section XI, he has to take

the consequences. And that would be a money judgment.

Representative Berry. The committee will stand adjourned

until ten o'clock tomorrow morning. We will meet right here.

(Whereupon, at 6:20 p.m., the subcommittee recessed, to

reconvene at 10:00 a.m., Friday, May 21, 1954.)