[Congressional Record Volume 142, Number 131 (Friday, September 20, 1996)]
[Senate]
[Pages S11092-S11093]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH:
  S. 2100. A bill to provide for the extension of certain authority for 
the Marshal of the Supreme Court and the Supreme Court Police; read the 
first time.


               Marshall of the Supreme Court Legislation

  Mr. HATCH. Mr. President, I am pleased to introduce legislation that 
is needed before the end of this legislative session. This simple bill 
would extend the authority of the Marshal of the Supreme Court and the 
Supreme Court Police to provide security to Justices, Court employees, 
and official visitors beyond the Court's buildings and grounds. The 
bill is straightforward and should not be controversial.
  The authority for the Marshal of the Supreme Court and the Supreme 
Court Police to provide security beyond Court grounds appears at 40 
U.S.C. 13n(a)(2), and was first established by Congress in 1982. 
Congress has periodically extended that authority, which is now slated 
to expire on December 29, 1996. See 40 U.S.C. 13n(c).
  In the past 14 years, there has not been an interruption of the 
Supreme Court Police's authority to provide such protection. Congress 
originally provided that the authority would terminate in December 
1985, and extensions have been provided ever since. In 1985, authority 
was extended through December 26, 1986; in 1986, it was extended 
through December 29, 1990; in 1990, it was extended through December 
29, 1993; and in 1993, it was extended through December 29, 1996.
  Chief Justice Rehnquist has written to me requesting that Congress 
extend this authority permanently. The Chief Justice correctly pointed 
out to me in his letter, ``As security concerns have not diminished, it 
is essential that the off-grounds authority of the Supreme Court Police 
be continued without interruption.'' The Supreme Court informs me that 
threats of violence against the Justices and the Court have increased 
since 1982, as has violence in the Washington metropolitan area. 
Accordingly, I support a permanent extension of this authority to 
provide for the safety of the Justices, court employees, and official 
visitors.
  Given the late date in the Congress, however, and the fact that we 
must pass an extension before December 29, 1996, I am introducing 
legislation that would provide for a 4-year extension, until December 
29, 2000. I encourage Congress at some point to extend the authority on 
a permanent basis, but I am suggesting a 4-year extension so that we 
can get this done on short order.
  I note for my colleagues that this provision is without significant 
cost, but provides great benefits to those on the highest court in the 
land and those working with them. According to the Supreme Court, from 
1993 through 1995, there were only 25 requests for Supreme Court Police 
protection beyond the Washington, DC metropolitan area, at a total cost 
of $2,997. I am also informed that off-grounds protection of the 
Justices within the DC area is provided without substantial additional 
cost, since it is part of the officers' regularly scheduled duties 
along with tasks on Court grounds.
  I encourage my colleagues to support this much-needed extension so 
that we can pass this bill before we adjourn.
      By Mr. HATFIELD:
  S. 2102. A bill to nullify the Supplemental Treaty Between the United 
States of America and the Confederated Tribes and Bands of Indians of 
Middle Oregon, concluded on November 15, 1865; read twice and ordered 
placed on the calendar.


                    TREATY NULLIFICATION LEGISLATION

  Mr. HATFIELD. Now, Mr. President, this is probably the last act of 
legislation that I will perform in my long tenure in the Senate. I want 
to offer today, and I am very hopeful that even though this is in the 
closing hours that this will rise above any other kind of 
considerations because it offers an opportunity for all of us to 
correct a historic wrong. One hundred and forty-one years ago, at the 
request of the U.S. Government, the Tribes of Middle Oregon gathered 
near The Dalles on the Columbia River to negotiate and sign a treaty 
that would forever change the lives of their people. On June 25, 1855, 
after many days of extended discussions and negotiations with Joel 
Palmer, Superintendent of Indian Affairs for the Oregon Territory, the 
treaty between the Tribes of Middle Oregon and the United States was 
signed. It was ratified by the U.S. Senate March 8, 1859 and has served 
since that time as the primary agreement between the Warm Springs 
Tribes and the U.S. Government.

  The 1855 treaty established a reservation--referred to as the Warm 
Springs Reservation--some 50 miles to the south of the Columbia River, 
on the Deschutes River. The 1855 treaty also provided that the members 
of the signatory tribes settle on the newly created reservation and 
cede the balance of their territory to the United States. In signing 
the 1855 treaty, the tribes insisted upon retaining their right to 
hunt, fish, graze, and gather roots and berries at their usual and 
accustomed stations and on unclaimed lands outside the reservation. 
These reserved treaty rights were essential for the Tribes' life and 
culture.
  While the tribes settled on the reservation soon after the treaty 
signing, they maintained their accustomed practice of traveling 
regularly to the Columbia River to harvest its magnificent runs of 
salmon. The continued presence of Indian people fishing along the 
Columbia, however, irritated the non-Indian settlers and prompted the 
then-Superintendent of Indian Affairs for Oregon, J.W. Perit 
Huntington, to pursue efforts to keep the Tribes away from the 
settlers.
  To that end, Superintendent Huntington drew up a supplemental treaty 
and, on November 15, 1865, convinced the tribes of the Warm Springs 
Reservation to sign it. This treaty, called the Treaty with the Middle 
Oregon Tribes of November 15, 1865, was ratified by the U.S. Senate on 
March 2, 1867. According to its terms, the treaty prohibits the Indians 
from leaving the Warm Springs Reservation without the written 
permission of the Government and relinquishes all of the off-
reservation rights so carefully negotiated by the tribes as part of the 
1855 treaty.
  The Indians of the Warm Springs Reservation have never complied with 
the 1865 treaty and the United States has never tried to enforce it. 
The historical record explains why this is so. The 1865 treaty was 
obtained by fraud--plain and simple. The Indians, who did not speak, 
read, or write English, were told by the Government agent that the 
treaty only required them to notify the Government agent when they left 
the reservation to fish on the Columbia. They were never told that the 
treaty abrogated their cherished right to fish at Celilo Falls and 
other traditional places outside the reservation. How do we know this? 
Historical documents. Historical documents, including subsequent U.S. 
Justice Department affidavits taken from Warm Springs Indians present 
at both the 1855 and 1865 treaty signings, show that the Indian 
signatories understood the agreement as providing a pass system 
identifying Indians leaving the reservation to exercise off-reservation 
rights. They understood this pass system as a means of distinguishing 
the friendly treaty tribes

[[Page S11093]]

from the hostile Indians who were raiding in the area. It was never 
understood or explained that the treaty relinquished all off-
reservation rights, or that Indians could not leave the reservation 
without the Superintendent's written consent.
  According to the affidavits, Huntington secured the signatures of 
members of the tribes during a stay on the reservation that lasted less 
than 24 hours. It is difficult to conceive that the tribes, in less 
than 1 day, would agree to imprison themselves on their reservation and 
relinquish the off-reservation rights that they exhaustively negotiated 
in 1855, cutting themselves off from their principle source of food. As 
the affidavit of Albert Kuck-up states:

       I am sure that the Indians would have positively refused to 
     sign any paper, for Huntington or anyone else, that would 
     have taken from them their fishing rights or fishery. Fish is 
     to us what bread is to the white man.

  Affidavits and other historic documents show that Huntington then 
departed for Klamath, OR, never to return. He even took with him the 
two wagons and teams he had promised to leave with the Indians of the 
Warm Springs Reservation.
  Almost immediately following the signing of the 1865 treaty, the 
Indians from the Warm Springs Reservation continued to travel to the 
Columbia River to fish from their historic fishing sites. Warm Springs 
Agency agent John Smith wrote in his June 26, 1867, report to 
Superintendent Huntington that ``as early as the 16th of May, 1866, the 
Indians began to visit the salmon fisheries in large numbers.'' Reports 
by Agent Smith in subsequent years further document continued fishing 
on a substantial scale, and in a July 1, 1869, letter from Agent Smith 
to Superintendent A.B. Meacham--who replaced Huntington on May 15, 
1869--Smith noted ``the Indians said they did not understand the terms 
of the [1865] treaty'', that ``they claim that it was not properly 
interpreted to them'', and that ``they were led to believe the right of 
taking fish, hunting game, etc., would still be given them because 
salmon was such an essential part of their subsistence.'' That same 
year, in a September 18, 1869 report regarding the Warm Springs 
Reservation to Superintendent Meacham, U.S. Army Captain W.M. Mitchell 
wrote,

       I also have to report, for the consideration of the proper 
     authorities, that the Indians unanimously disclaim any 
     knowledge whatever of having sold their right to the fishery 
     at The Dalles of the Columbia, as stated in the amended 
     treaty of 1865, and express a desire to have a small 
     delegation of their head men visit their Great White Father 
     in Washington, and to him present their cause of complaint.

  Official U.S. Government reports in subsequent years continue to note 
the Warm Springs Reservation Indian's strong objection to the 1865 
treaty, their continued and uninterrupted reliance on their fisheries 
on the Columbia River, and the fraudulent nature of the 1865 treaty 
signing. In the annual report, dated August 15, 1884, Warm Springs 
Agent Alonzo Gesner finds:

     on record what purports to be a supplementary treaty . . . 
     which is beyond a doubt a forgery on the part of the 
     Government in so far as it relates to the Indians ever 
     relinquishing their right to the fisheries on the Columbia 
     River; and as a matter of justice to the Indians, as well as 
     to the Government, the matter should be made right and 
     satisfactory to the Indians as soon as possible. . . . All 
     the Indians say emphatically that when the treaty was read to 
     them no mention was made of their giving up the right to 
     fish. All that was said was that they were to agree not to 
     leave the reservation without getting passes, . . . The fact 
     is they were wilfully and wickedly deceived.

  In 1886, Warm Springs Agent Jason Wheeler reported to the 
Commissioner of the Indian Affairs in Washington, DC, regarding the 
1865 treaty that ``if ever a fraud was villainously perpetrated on any 
set of people, red or white, this was, in my opinion, certainly one of 
the most glaring.'' In 1887, Commissioner of Indian Affairs J.D.C. 
Atkins, in his annual report to the Secretary of the Interior, cited a 
recent War Department report by Gen. John Gibbons that:

     called attention to the oft-repeated, and I may say very 
     generally credited, story of fraud in the treaty of 1865, 
     whereby the Warm Springs Indians were, it is claimed, cheated 
     out of their fishery by the Huntington treaty. Salmon,

he wrote:

     is material and of grave importance to them. It is their 
     principal source of subsistence, and they never intended to 
     part with it, but were cheated and swindled out of it by a 
     cunning and unprincipled U.S. official. I would recommend 
     your early attention to the matter upon the convening of 
     Congress.

  Mr. President, those are the words of representatives of the American 
Government assessing this kind of a fraud perpetrated upon the Warm 
Spring Indians in the 1870's and 1880's.
  Mr. President, that report, along with the many others, along with 
appeals made by the tribes, apparently fell on deaf ears. But while the 
1865 treaty remains on the books, the United States has never enforced 
it and the Tribes of the Warm Springs Reservation have continued the 
uninterrupted exercise of their 1855 off-reservation fishing, hunting, 
gathering, and grazing rights. The 1865 treaty has been effectually 
rendered null, disregarded by the tribes and the United States as a 
fraud from virtually the time it was signed. It is doubtful that the 
1865 treaty has any legal validity. Moreover, in the intervening years, 
the Federal courts and the U.S. Congress have repeatedly recognized the 
Warm Springs Tribes' rights secured under the 1855 Treaty.

  Mr. President, the legislation I introduce today declares the 
fraudulent 1865 treaty to be null and void. At the request of the Warm 
Springs Tribes, my bill will at long last correct this historical 
travesty. I wish to note that, other than formally nullifying what for 
many years has been a nullity in practice, this legislation will not 
alter the recognized 1855 rights of the Confederated Tribes of the Warm 
Springs Reservation. This legislation is more of a housekeeping 
measure--albeit housekeeping that will help the honor of the United 
States and dignity of a long-wronged people.
  It is my understanding that both the chairman and ranking member of 
the Indian Affairs Committee are supportive of this proposal. The same 
is true for the administration. On that basis, I hope this matter can 
be addressed in an expeditious manner.
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