Poge 4
KLAMATH TRIBUNE
JUNE 1961
merely a formality. Then, on
June 8, the government attorneys
announced that Assistant At
torney General Clark was "on
the fence" as far as approval of
the settlement was concerned.
At this point the attorneys for
the Trihc protested vigorously
that this was a complete surprise
and a direct contradiction of
representations previously made
to them and to the Indian Claims
Commission. The validity of the
protest was not questioned by the
government attorneys, who
stated the earlier representations
had been "unfortunate" and that
their "apologies" were in order,
but that Assistant Attorney Gcn
cral Clark simply had not made
up his mind whether to approve
the settlement. The government
attorneys then requested one
more week, as a final period in
which the Assistant Attorney
General could consider the mat
ter. This was granted until June
16, 1961. On June 14, the govern
ment attorney called to report
that the proposed settlement was
being rejected, ami that a formal
letter would follow immediately.
Such a letter was received for
the Assistant Attorney General
on June 16, 1961. A copy of that
letter is attached to this report.
The letter of the Assistant At
torney General states that "this
settlement is not in the best in
terest of the United States in the
present posture of the case." He
then gives what amounts to two
reasons for his conclusion; in the
first place, he makes reference
to "the legal defenses to the
claim which have not been fully
or satisfactorily determined . . '
The only legal defense which has
been relied upon by the govern
ment in this case has been an
dieted defense based upon
Article II of the Agreement of
June 17, 1901, whereby the Klam
ath Tribe ceded to the United
States the area which had been
erroneously excluded from the
reservation. The exact language
of the tribe's agreement to ac
cept that amount for the land,
which is the language supposedly
relied upon by the government
as a "legal defense", is as follows:
"ARTICLE II. In consideration
of the land ceded, relinquished,
and conveyed bv Article I of this
agreement. Ami in full of nil
claims nnd demands of said Klam
ath and other Indians Arising or
growing out of the erroneous sur
vey of the outboundaries of their
reservation in eighteen hundred
and seventy - one, the United
States stipulates an agrees to pav
. . . (537,007,20)'
This "legal defense" was earlier
raised bv the attorneys for the
government by a special motion.
This motion was argued and de
cided by the Indian Claims Com
mission in March, 1960. At that
time the Commission decided that
the above quoted language was
not a defense to the claim, in
view of the broad jurisdiction
granted by the Indian Claims
Commission Act, giving the Com
mission authority to go behind
such cessions or "releases" in
order to determine whether the
amount paid by the United States
was "unconscionable'
When the Klamath Tribe sued
in the Court of Claims under the
special jurisdictional Act of Mav
26, 1920, (41 Stat. 623) it sued for
additional compensation for the
621,824 acres erroneously exclud
ed, the same as the suit now in
100-A. At that time the govern
ment raised the same legal de
fense to the claim it raises now.
And the Court of Claims agreed,
at that time, that if the special
jurisdictional act was not broad
enough to allow the court to "go
behind" the supposed "release" in
Article II of the Agreement of
1901, then the Court had no jur
isdiction to decide the claim.
Here is the language of the
Court's opinion when it decided
the case in 1937:
"It is clear the claims falling
under the first classification, viz,
the alleged inadequacy of the
compensation paid to (the Tribe)
for the cession of 621,824 acres of
their land erroneously excluded
from their reservation by early
survevs ... is without the jur
isdiction of the court unless the
effect of the agreement of June
17, 1901, has been waived by the
jurisdictional act . . . (the Tribe)
contends that the jurisdictional
act waives the (effect) of the
agreement of 1901, approved bv
Congress June 21, 1906."
The Court examined the Jur
isdictional Act very closely, and
decided that it had not waived
the effect of the Agreement of
1!H)1. Here is what the Court said:
"(The Tribe's) claim for ad
ditional compensation for the
621,824 acres of land ceded to the
defendant on the ground that the
payment therefore was iuadc
does not come within the juris
dictional act, the agreement of
1901 ami the release executed
theerundcr having accomplished a
complete settlement of all claims
of (the Tribe) arising out of that
transaction."
When this tame defense was
raised by the government in the
present case, the tribal claims at
torneys argued that the language
of the Indian Claims Commission
Act is broad enough to waive the
effect of the 1901 agreement as a
release. The language of the
Indian Claims Commission Act is:
"... the Commission shall hear
and determine the following
claims against the United States
on behalf of any Indian tribe,
band, or any other identifiable
group of American Indians . . .
(3) claims which would result if
the treaties, contracts, and agree
ments between the claimant and
the United States were revised on
the ground of . . . unconscionable
consideration . . ."
The claim in No. 100-A is that
the Agreement of 1901, should be
"revised" because the considera
tion of $537,007,20 was "uncon
scionable" when compared to the
fair market value of the land
ceded, as of 1901 (when Congress
approved the Agreement).
Following' argument of the
government's special motion rais
ing this defense in No. 100-A, by
attorneys on both sides of the
case, the Commission decided
against the government, holding
that the Commission has jurisdic
tion under the Indian Claims
Commission Act to hear and de
cide the claim for additional com
pensation notwithstanding the
language of Article II of the
Agreement of 1901. The tribes'
attorneys believe this decision
was correct, and that there is no
reasonable basis to think it would
be upset on appeal. Hut apparent
ly the government's lawyers hope
otherwise.
As stated above, Assistant At
torney General Clark gave two
reasons for rejecting the settle
ment. The first dealt with "legal
defenses." The second was, as
his letter stated, "my review of
our evidence on valuation leads
to the conclusion that this offer
is higher than a reasonable com
promise and not justified in view
of the very extensive evidence of
value." This statement is self
explanatory. Obviously the gov
ernment has an appraisal which is
much lower than the proposed
settlement.
This full report is intended to
give the members of the Klamath
Tribe as much information as the
delegates or tribal attorneys have
as to the reasons why the pro
posed settlement was rejected by
the Assistant Attorney General,
to the extent that those reasons
are known to us.
The claim in No. 100-A will
now go forward in the Indian
Claims Commission as though no
settlement was ever attempted.
No compromise or concession has
been made by the tribe or its
attorneys, in any respect whatso
ever. There has been a loss of
almost a year because of the un
successful settlement negotia
tions (the case was set for trial
as early as July 1960, in Portland,
Oregon), and if the government
intends to appeal its so-called
"legal defense" the tribal at
torneys estimate that no less than
two to four years will be neces
sary before the case can be con
cluded. They estimate at least one
to two years more in the Indian
Claims Commission and another
year, at least, for an appeal to
the Court of Claims, following
the decision of the Commission.
Then, after decision by the Court
of Claims, there is always the
possibility of a request that the
Supreme Court of the United
States hear the case.
The Indian Claims Commission
has already been consulted, since
the rejection of the proposed set
tlement, with regard to setting
the case down for hearing on the
merits of the case, at the earliest
possible time. When further in
formation is available as to fu
ture proceedings in the case, it
will be furnished by the attorneys
to the members of the tribe.
The Tribal delegates and at
torneys express their deep ap
preciation to all tribal members
who attended the meetings of
May 10, and May 15, 1961 and to
the officials of the Portland Area
Office, the Department of Inter
ior particularly to the Office
of the Solicitor who cooperated
so well with the tribe and its at
torneys in connection with the
proposed settlement.
n V. ".Jt A J
.., 2J 'V
3)
J
Frank Hall pint badf on Cub Stm Riddl.