The New York Times, April 2, 1924.
DAUGHERTY IS NAMED IN TWO INQUIRIES; BLAMED FOR
The witness who told the story was Herbert M. Peck, a veteran of the World War. After the war for two years Mr. Peck, by appointment of President Wilson, was the United States Attorney for the Western District of Oklahoma.
The committee was told of the indictment of three of the Miller brothers and Victor Norton and John C. Newton, and the subsequent plea of guilty by George Miller, Norton, and Newton, who were fined $10,000 in the aggregate by Judge Cotterell, the Federal Judge for the district, who in imposing the fine made it clear, Mr. Peck declared, that he expected the Government, the guardian of the Indians, to institute civil action to recover the lands involved, the value of which was estimated at about $380,000.
That was two years ago, and to date, Mr. Peck asserted, no action has been taken to recover the property, which, he charged, had been fraudulently appropriated. He declared the case to be one of the most talked of in the history of Oklahoma, and described the Millers as the "dictators" of that part of Oklahoma in which the 101 Ranch is situated.
Says Deeds Were Made in Blank.
Even the notary before whom the blank deeds were witnessed, the witness testified, made his certification without date, leaving a blank space to be filled in when the Millers had received word from Washington that the Land Office had taken action to make possible the filing of the deeds. Mr. Peck made it plain that these transactions in blank did not involve any of the Government departments in Washington.
In the Spring of 1921, Mr. Peck testified, he was ready to proceed with the trial of the Millers and the co-defendants when he was notified by Attorney General Daugherty to postpone the case until the following Fall. In the meantime Mr. Daugherty called for his resignation, although Mr. Peck was continued in charge of the case until the Spring of 1922, when the plea of guilty was entered and the fines imposed with the understanding that the civil actions would follow.
Within the last ten days a representative of Mr. Daugherty arrived in Oklahoma, Mr. Peck said, and indicated that the department may have decided to intervene, by civil action, in behalf of the Indian claimants. In the meantime, the witness added, the Millers continued in the control of the land, which has greatly increased in value as the result of oil discoveries.
Wayne Wilson of New York, who J. Van Vechten Olcott, former Representative from New York, testified had told him that it would probably cost Mr. Olcott $30,000 to be appointed as a Federal Judge for the Southern District of New York, was another witness. Mr. Wilson denied ever having made such a statement to Mr. Olcott. A Mr. Newell, now dead, had suggested he said, that a campaign for the position might cost $10,000 or twice that sum.
Mr. Wilson admitted saying something about the "campaign" costing Mr. Olcott $10,000, but declared he had urged him not to "put a penny" on the prospects.
Peck Tells of 101 Ranch Case.
From October, 1921, to Feb. 9, 1922, the witness was a Special Assistant United States Attorney, having been retained at the instance of Senator Harreld to prosecute the Government case against George L. Miller and others, or, as it was popularly known, the 101 Ranch case.
Senator WheelerJust tell us what that case was. A.The case known as the Miller Brothers case, was a case brought under Section 37 of the Penal Code, a conspiracy charge against George L. Miller and four other defendants, charging them with a conspiracy to impair, defeat, and defraud the Department of the Interior in its supervision and control and possession of the lands of the Otoe and Ponca Indians of the State of Oklahoma in this, that they prevailed on the Department of the Interior to issue patents in fee to incompetent Indians, deeds to which the Miller Brothers had theretofore obtained by fraud from the Indians. That, in a general way, is the charge against t hem.
Q.Now, how had they obtained them by fraud from the Indians? A.The case originated during the war, while I was in the army, by an alien enemy, who had been farmed out to the Miller Brothers, finding some undated deeds to allotted lands, to which patents in fee had not then been issued, in the safe of the Miller Brothers at Bliss, Oklahoma. This alien enemy found nineteen undated deeds, with acknowledgments, not dated, but signed by the Indians, to their allotments.
"The scheme was to get these deeds by some pretense or other from the Indians, and then to have the Indians apply to the department for patent in fee," Mr. Peck continued. "When the patents in fee were issued the deeds that were then in the possession of the defendants would be dated and placed of record. After the information had come from Washington, from the Interior Department, that the patents in fee had been issued to these particular tracts of land, then the Miller Brothers would have the deeds placed of record, giving the record title to that particular allotment in George L. Miller, and then, when the patents in fee would come down to the Ponca Agency, Ponca, Oklahoma, the defendants would get that patent in fee, and with the Indian have that placed of record in the State records."
Senator JonesWhat do you mean by alien enemy, the custodian or a German? A.I mean a German who was "farmed out" to the Miller Brothers during the war.
Senator WheelerWhat do you mean by "farmed out?" A.I mean that instead of sending an alien enemy during the war to some detention camp, in some instances the department sent them to men who would employ them and report, weekly or monthly, upon their activities.
Q.Was he the one that made the reports about the frauds? A.Yes, he was the alien enemy that found these undated deeds.
Q.He was a better American than the American he was farmed out to. A.Yes; as a matter of fact, he was a real patriot.
Q.Who did he report these frauds to? A.To the United States Marshal.
Q.And the United States Marshal reported them to the Attorney General's office in Washington? A.yes, sir.
Relates Beginning of Prosecution.
Q.Now, how did they get these Indians to sign these blank deeds, these deeds in blank, to the lands before they got their patents?
A.The Indians would trade at a store run by the Miller Brothers on the ranch, called the ranch store, and become indebted to the Miller Brothers for provisions, sometimes for automobiles and sometimes on notes at the bank that the Miller Brothers would endorse for them, and then the Miller Brothers would have them sign a paper that the Indians in instances thought was a contract or in other instances a mortgage.
Q.Now, do you know when the Miller Brothers found out when the patents to the land were issued? A.Yes. They had an attorney employed in Washington who would wire them just as soon as the Secretary of the Interior had issued the patent in fee here.
Q.And you know who that was? A.Mr. Kepler.
Q.When was the case first brought to the Department of Justice in Oklahoma, the United States Attorney's office? A.I received my first communication from Mr. Frank Nebeker, then head of the Public Lands Division of the Department of Justice, Sept. 3 [?8], 1920. He sent me the complete files in the case with the reports of the investigators, directing me to give it my personal and undivided attention, giving first attention to the criminal aspects of the case rather than the civil. I immediately started out and made an investigation, independently of the investigators, by going to Ponca City and interviewing a number of witnesses. A Grand Jury was called on the 30th day of September.
"I then presented the matter to the Grand Jury, and brought down about seventy-five witnesses from Ponca and the Otoe Agency," Mr. Peck continued, "both whites and Indians, and that Grand Jury indicted five men, the three Miller brothers and two of their head men in their office."
Q.After that what became of the case?
A.That was in September, 1920. In December [can't read dates], Mr. R. C. Bell, special assistant to the Attorney General, was assigned to me to assist me in the trial of the case. The case then was set for trial.
Q.Did he come from the Department?
A.Yes, sir, he came from the Department. He was assigned by Attorney General Palmer. He came to Oklahoma City and spent a month out among the Indians making an independent investigation of his own as to the merits of this case, to familiarize himself with it so that he could be of some real assistance in the trial. The case was set for trial on the docket which began in May, 1921, at Guthrie, Oklahoma.
Q.May, 1921? A.Yes.
Q.That was shortly after Mr. Daugherty came into office. A.Yes. During the intervening time, this case had gone through the usual routine of motions to quash and bills of particulars and demurrers, and finally the preliminary issues had been settled, and the case set down ready for trial, and it was then set for the Guthrie term in 1921.
Q.And you were handling it with Mr. Bell? A.I was handling it with Mr. Bell. I was then United States Attorney. Mr. Bell was special assistant to the Attorney General. This was in the early Spring of 1921.
Daugherty Had Case Delayed.
Mr. Peck declared that this was the only letter he ever received from the Attorney General regarding the continuance of a criminal case. The letter, he said, was on the personal stationery of the Attorney General.
"The case was directed by the Attorney General to go over until the Fall term of court," Mr. Peck said. "Then I had written Mr. Bell at Denver to come down to Oklahoma City, that the case was going to be tried in May, at the May term at Guthrie, and shortly after I got the letter from the Attorney General to continue it, I got a letter from Mr. Bell saying that the reason he could not come was because he was in receipt of a letter from the Attorney General directing himtelling himthat his services were no longer needed, and that his commission would expire as Special Assistant Attorney General on May 15, inasmuch as there would be no activity in the Miller Brothers case for several months."
Q.So that Mr. Bell, who had been appointed specially to assist in the trial of the case, his services were discontinued by the department sometime about May 15? A.Yes.
Q.And the case had in the meantime been continued over by the Attorney General until the Fall term of court? A.Yes.
Q.Now, what took place later? A.Mr. Traylor, the head investigator, was let out of the Department of the Interior in June, 1921, following Mr. Bell in May.
Mr. Peck said that, on Sept. 27, 1921, he received a letter from Attorney General Daugherty requesting his resignation as United States Attorney. Mr. Peck replied that he had hoped to complete the Miller case before his term ended, and the Attorney General answered that he did not think the case of the Government would be prejudiced if he resigned, whereupon Mr. Peck resigned. The complete correspondence, the witness said, is on file in the Department of Justice.
Subsequently, Mr. Peck testified, he received a telegram from Assistant Attorney General Rush Holland asking him to accept employment as special Government counsel in the case. His retention was due in large part to the insistence of Senator Harreld.
"Senator Harreld is not of my political faith," the witness added. "Yet I have very high regard for him. He certainly took a proper view of this, what he considered in Oklahoma, a very important criminal and civil case. Perhaps the most important that came up during my tenure of office as United States Attorney, affecting the Indians of Oklahoma.
Q.And you went ahead and had the case set for trial? A.Yes, I had the case set for the January term, 1922, at Oklahoma City.
Q.Then what, if anything, took place?
A.The case was set specifically for Feb. 15, during that term at Oklahoma City. And in the early part of February, the attorneys for the Miller Brothers came to Oklahoma City. They called me up one morning and told me they wanted me to meet with them and the Federal judge in his chambers; that they were contemplating a plea of guilty.
"I went up there," Mr. Peck said, "and they made the statement that in the event that the case could be disposed of with a fine, that a plea of guilty could be had. They told me that my Indian investigators in the Department of the Interior would be willing for such a disposition of the case, feeling that the civil suits would settle the criminal case. I told them and told the Judge in their presence, that I would never agree to anything but a penitentiary sentence in the case, because I felt the case was of such importance that it demanded a penitentiary sentence. That broke up the conference."
Q.How much had they, in a general way, defrauded the Indians out of?
A.The amount of land was approximately 10,000 acres.
Q.And approximately, what was the value of that land per acre, if you know?
A.The value for agricultural purposes we at that time had estimated was about $50 per acre.
Tells of Daugherty's Attitude.
"The next morning after this conference I had wired to the Attorney General the fact that the Miller Brothers had agreed to plead guilty in the event that the case was dismissed as to Zack and Joe Miller, and told him that the investigators for the Department of the Interior were willing to let the case be disposed of by fine, and asked him for his instructions," the witness said. "He wired back to me, "You are authorized to dismiss the case as to Joe and Zack Miller."
"And I may say here, there was no real objection on the part of the Department of Justice, or my own part, to doing that, because none of the land had been deeded to them. The land had been deeded to George Miller and Victor Norton and John C. Newton. The Attorney General wired to me to let George L. Miller and John C. Newton and Victor Norton plead guilty. But you are to make no recommendation in the case."
Q.What have you to say as to whether that was an unusual procedure for the Attorney General, to wire you not to make any recommendation to the court?
A.It was the first time in my experience I had received such instructions.
Q.You started to say something about a telephone message.
A.Yes, from the attorneys from the defendants. They said they had decided to plead guilty, even in the face of my statement that I would not be satisfied with anything less than a penitentiary sentence.
When court reconvened the next morning, Mr. Peck said, he read the Daugherty telegram in open court. The Court remarked, the witness said, "That is a very unusual telegram," whereupon Mr. Peck added, "I know it, and that is the reason I am reading it to the Court."
The pleas of guilty were entered, and Judge Cotterell fined George Miller $7,500, Victor Norton $1,250, and John C. Newton $1,250. In imposing the fines Judge Cotterell suggested the prompt bringing of civil suits to recover for the Indians the lands involved in the transaction.
Mr. Peck thereupon wrote to Mr. Daugherty asking if he wanted him to begin the civil actions, and the Attorney General replied, Mr. Peck testified, that he was not ready to produce civil actions, and, in the event he did decide to do so, it would be handled without Mr. Peck's assistance.
"Since that time have any civil suits been brought in Oklahoma for the purpose of recovering those approximately 10,000 acres of Indian lands which were fraudulently taken away from them and which the defendant Miller brothers admitted by their plea of guilty in open court they had fraudulently taken from these Indians?" Senator Wheeler asked.
"No, sir," Mr. Peck replied.
Q.Do these Miller people still hold those lands? A.Yes, sir.
Q.And are they using them? A.Yes, sir.
Q.By the way, let me ask you this. Has oil been struck on those lands since that time?
A.Yes; on two different places on those landson that ranch.
Q.I want to ask you one general question. I take it from what you say of the Judge that you have no reason to think that he acted on any different basis than that he thought that was sufficient punishment?
A.I am sure that was the only reason.
Senator Wheeler asked Mr. Peck if he knew whether H. E. Todd of Columbus, Ohio, a former law partner of Mr. Daugherty, had been brought into the case. Mr. Peck said he did not have any information of his own knowledge as to that.
"Oh, let him go on with his hearsay testimony. He has plenty of it," was the sarcastic interruption of Senator Moses.
"I have some regard for my reputation as a lawyer, and I prefer not to give hearsay testimony," Mr. Peck quickly replied, as he faced Mr. Moses.
"Senator Moses," Senator Ashurst suggested, addressing Mr. Peck, "is not a lawyer. He is ambidextrous and polylingual, but he is not a lawyer."
"Have you any knowledge," Senator Jones asked, "as to why these civil suits have not been commenced?"
"No, sir, I have not," Mr. Peck replied.
Mr. Peck said he had received a letter from the Department of Justice, asking for a complete history, together with his recommendations, of the Miller case. The letter was dated June 28, 1921.
The writer of the letter, the witness declared, had said: "I am thoroughly convinced that the defendants and each of them, are guilty of the charges preferred against them in this indictment," and "I am further convinced that the case should be brought to trial at the earliest possible setting of the criminal docket."
"My investigation of this case has convinced me," the letter continued, "that the settlement of a large majority of the people of Kay County and Noble County, Oklahoma, is that the Miller Brothers have been able for years to escape prosecution for their illegal and fraudulent acts because of financial and political influence and that, while they feel a hesitancy in openly expressing their convictions at this time because of the almost despotic power of the defendants in that locality, yet they do not hesitate to tell me that the good citizens of that part of the State demand a vigorous and immediate prosecution of this case."
Mr. Peck is Cross-Examined.
"In the indictment it was charged from 1913 to 1920. They had had that ranch there for perhaps twice that length of time," Mr. Peck replied.
Q.Upon whom did they exercise that despotic political power from 1913 to 1920?
A.Largely on the agents over the tribe.
Q.Appointed by the Secretary of the Interior?
A.Yes. Appointed by the Secretary of the Interior.
Q.Who was the Secretary of the Interior during that period?
A.I don't know during the entire period.
"Most of those Indian agents, let me say, if he wants to make a political issue of italmost all of those Indian agents during the Wilson Administration were hold-overs from the former Administration," Senator Wheeler said.
At this point ex-Senator Chamberlain began the cross-examination on behalf of Mr. Daugherty.
Senator Chamberlain inquired if Mr. Peck had any information indicating that the Department of Justice was ready to press the civil cases to regain the lands for the Indians.
"About a week before I left Oklahoma CityI arrived here last ThursdayEdwin S. Booth, who was Solicitor of the Interior Department under Mr. Fall," Mr. Peck answered, "came to Oklahoma City and remained there for a few hours one afternoon and called me at my office and I was out. The next day he wrote me a letter from Tulsa, telling me he had been sent to Oklahoma, by the Attorney General to file civil suit in the Miller Brothers cases, and asked for a conference with me, inasmuch as I was thoroughly familiar with them."
Q.What date was this?
A.About ten days ago. He signs himself as Special Assistant to the Attorney General.
Q.The suit has not been barred by the statute of limitations?
A.No, it will never be barred. It is a suit in which the Government is plaintiff. These Indians came up to see me after I went out and told me that Miller Brothers had told them they would settle the thing for $10,000, and I told them it would be very unfair to do it, because the Government was going to bring these suits and I felt they would be in a far better position to bring them, and I declined to take any of the cases.
Senator Chamberlain asked if the Miller Brothers are Democrats. Mr. Peck replied that two of them are Democrats and one of them a Republican. George Miller, who was fined $7,500, is one of the Democratic members of the family.
"The Indian gave up his land and received in return the blessed privilege of paying a very high price for goods charged up against him," said Senator Moses.
"Yes, sir," Mr. Peck answered, "and in the application for patent fee the department requires that some real purpose be set out as to why the land shall go out of the title of the Government to the Indian. The purpose was to provide for the Indian who desired to cultivate some other land he owned, and needed to sell this particular tract for the purpose of buying agricultural implements, horses, etc., and equipping, perhaps, an eight that he had left for the purpose of agriculture. When a poor Indian got rid of this land he did not have anything with which to buy agricultural implements. The consideration had passed beforehand."
At the conclusion of Mr. Peck's examination Senator Ashurst, who had been busy with pencil and pad, announced that the value of the land mentioned in the Miller indictment was $380,000, and not $250,000, as previously estimated.
Wilson Answers Olcott's Testimony.
"Mr. Olcott told us," Senator Brookhart said, "that you told him he might be appointed if he advanced $10,000 when nominated and $25,000 when confirmed. What have you to say about that."
"I never made any such statement," was the emphatic answer of the witness.
Mr. Wilson said he did mention money, but not in the way Mr. Olcott testified. Neither did he ever say anything, the witness declared, to justify the conclusion that he was investigating Mr. Olcott for the Department of Justice. He said he had seen Michael Blake, one of the Republican district leaders, in Mr. Olcott's behalf, but money, he asserted, was not mentioned in the course of the conversation.
The witness declared he also had seen a Mr. Newell, now dead, whose father was a founder of the National Republican Club. Mr. Newell, he asserted, told him that it would take an aggressive campaign to put Mr. Olcott on the bench, and it might cost $10,000, or even twice that much.
"Mr. Newell said that we would probably have to get thousands of endorsements and all that," the witness declared.
"Newell told you it might be an expensive matter?" Senator Wheeler asked.
"Yes, it might be an expensive campaign." I replied, "I don't see why," Mr. Wilson answered.
Q.He told you it might be an expensive campaign to put Mr. Olcott on the Federal bench in New York? A.Yes; in substance that is true.
Q.Then you told Mr. Olcott about that? A.I told Mr. Olcott about that.
Q.And you told him it would take $10,000 now, and if he was confirmed by the Senate it would take $20,000 more? A.I never made any such remark. If anybody ever did that it must have been somebody else.
Q.What did you say to him about $20,000?
A.I said that Mr. NewellI don't remember whether I mentioned his name or not, but I probably didI said this: A Mr. Newell did say, "Mr. Wilson, before you start on a thing of that kind you know there is a certain Congressman now that is making a determined campaign."
Q.Did that Congressman get the appointment? A.He did not.
Q.Who was the Congressman? A.I think it was Congressman Siegel, or something like that.
Mr. Wilson said that he told Mr. Olcott that he should not "put up a penny" for the job. He added he did not think it would be proper for Mr. Olcott to put up cash or anything else.
"I did not think," he added, "that Mr. Olcott should put his hand in his pocket. I said I was told it might become an expensive campaign and somebody will have to pay the expenses. I never said he should put up one red cent. I don't know where he gets all this from."
Senator BrookhartWhere is this Mr. Newell? A.Died about a year ago.
Q.And Mr. Blake? A.He is dead, too. They are both dead. So is Mr. Harding. He refers here to the President of the United States. He is dead. Go into the archives of the White House; go into the Department of Justice; I don't know a soul there. Why should I have anything to hide? He may have gone to some other people.
Q.Do you know "Bill" Orr? A.I do not. I never talked with "Bill" Orr or anybody else connected with the Department of Justice. I don't know him.
Q.I understand whatever may have been said or talked over between you and Mr. Olcott you declare positively that you did not appear there on behalf of the Department of Justice? A.Absolutely not.
Q.Or as representing them in any way, shape or form? A.No, sir, in no way, shape or form. I can't see where he gets it from.
Q.Or any suggestion from them or anybody that you knew connected with the Department of Justice? A.No, sir; the only time that I remember that the Department of Justice was mentioned was when I said that "You would naturally come under the investigation of the Department of Justice."
Q.You have said that you told Mr. Olcott, having in mind the figures Mr. Newell gave you, that the campaign might cost Mr. Olcott $10,000? You say you said that to Mr. Olcott?
A.Yes, I said that. Something like that, probably.
Q.Something like that, no doubt. Well, then, Mr. Olcott told the truth when he said hee as a witness that you had mentioned something like $10,000 as the requested amount, as the cost of the campaign?
A.Oh, but he didn't say it that way. This is what I don't like. He says here that $10,000 when his name goes to the Senate, and afterward $25,000. Now, where he get that from$35.000?
Senator WheelerHe got it from you.
A.Well, he never got any such thing from me, Senator, because I never could say such a thing. Where would it go to? In other words, does he mean that the Senators of the United States
Q.No, he did not mean that it went to the Senators of the United States. He meant that it went to you and the crowd of politicians.
A.No, I never would accept such a thing, never.
Q.Do you assert that you did mention a sum of $10,000 to Mr. Olcott? You do swear to that?
A.I say that I said that somebody said it might cost so much.
Q.Ten thousand dollars?
A.Yes, I said that. That it would cost, but not for corruption or something of that kind. Nobody ever mentioned such a thing.
Q.Who got the Judgeship up there?
A.I don't know. There were three or four appointed. I think Bondy, wasn't it? Bondy, yes. SomebodyI don't know.
Q.And who recommended his appointment?
A.I don't know. I never thought anything more about this matter. This was purely a matter of friendship between me and Mr. Olcott. I never thought anything about this.
Q.Now when you suggested that it would cost $10,000, did not that suggest to your mind that that was probably corruption?
A.No, I had in my mind that if you have to go out and get organizations and somebody has to go out and do all these things, that perhaps
Q.That they might have to pay these organizations?
A.No, but somebody would have to pay, even if it is a postage stamp, somebody has to put up something.
Q.And you thought they might have to put out $10,000 or $20,000 in postage stamps?
A.No, I didn't say that. I said I didn't believe any such thing was possible.
Q.Judge Olcott did not put up the $10,000 or the $20,000?
A.No, nobody ever spent a cent.
Senator WheelerAnd he did not get the appointment?
"Well, is it inferred that the men who did, put up the money?" Senator Wheeler asked.
After Mr. Wilson left the stand Senator Wheeler read into the record two letters, both of them addressed to Major A. M. Lochwitsky of 112 West Eleventh Street, New York. They related to a position in the Bureau of Investigation. One of them was signed "Jess W. Smith," and in it Mr. Smith informed Major Lochwitsky that there was no chance of his being appointed at that time.
The last witness was Emmett E. Doherty, an attorney employed in the War Frauds Division of the Department of Justice. Mr. Doherty was recently in Montana. Senator Brookhart wanted to know if he was sent there to investigate Senator Wheeler. Mr. Doherty replied that he was sent there to investigate charges involving the enforcement of prohibition. His report, he added, will prove that to be the case.
The committee adjourned until tomorrow morning.