time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence not within the issues made by the pleadings is offered at a hearing held by a Commissioner or an Examiner, upon objection such evidence shall be rejected; whereupon the party may make an offer of proof. Upon motion to amend the pleading the Commission shall after notice to the adverse party allow the pleading to be amended to conform to the offered evidence and shall do so freely when the presentation of the merits of the claim or defense will be subserved thereby and the objecting party fails to satisfy the Commission that the amendment of the pleading and the admission of such evidence would prejudice it in maintaining its claim or defense. The Commission may grant a continuance to enable the objecting party to meet such evidence.

(c) Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.

§ 503.14 Depositions pending action— (a) When depositions may be taken. Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. After service of the petition the deposition may be taken without leave of the Commission, except that leave, granted with or without notice, must be obtained if notice of the taking is served by the petitioner within 20 days after service of the petition. The attendance of witnesses may be compelled by the use of subpoena as provided in § 503.24 (a) (1), Depositions shall be taken only in accordance with the rules in this part.

and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.

(c) Examination and cross-examination. Examination and cross-examination of deponents may proceed as permitted at the hearings under the provisions of § 503.23.

(d) Use of depositions. At a hearing before the Commission, a Commissioner or Examiner or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

(2) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the Commission, Commissioner or Examiner finds: (i), that the witness is dead; or (ii) that the witness is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or (iii), that the witness is unable to attend or testify because of age, sickness, infirmity or imprisonment; or (iv), that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (v), upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open hearing, to allow the deposition to be used.

(3) If only a part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

(e) Objections to admissibility. Subject to the provisions of § 503.19 (c), objection may be made at the hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evi

dence if the witness were then present and testifying.

(f) Effect of taking or using depositions. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition. At the hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.

§ 503.15 Depositions to perpetuate testimony. Depositions taken under the provisions of section 13 (a) of the act creating the Commission shall be taken pursuant to the notices provided for in this part, which shall be given to the Attorney General of the United States, and if a petition has been filed, to the attorney of record for the petitioner, of which the aged or invalid Indians whose depositions are to be taken are members, provided that the Commission may, if it deems it necessary, authorize the taking of such depositions on shorter notice than that provided for in this part. Depositions of such aged or invalid Indians may be used in any case in which the same may be material.

§ 503.16 Persons before whom depositions may be taken-(a) Within the United States. Within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the Commission. A person so appointed has power to administer oaths and take testimony.

(b) Disqualification for interest. No deposition shall be taken before a person who is directly or indirectly interested in the outcome of the claim.

§ 503.17 Depositions upon oral examination—(a) Notice of examination; time and place. A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description suffi

cient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the Commission may for cause shown enlarge or shorten the time.

(b) Witnesses by other party. When depositions are taken on notice, as provided in this part, if both parties are present or represented at the time and place specified in the notice, either party may, after the examination of the witnesses summoned under the notice, be entitled to summon and examine other witnesses; but in such case one day's notice shall be given to the adverse party or its attorney there present, unless such notice is waived.

(c) Record of examinations; oath; objections. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically and transcribed unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officer, who shall propound them to the witness and record the answers verbatim.

(d) Interpreter. If a witness is in need of an interpreter the interpreter shall be sworn to well and truly translate all questions asked and answers given.

(e) Submission to witness; changes; signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness. If the witness refuses to sign the deposition, the officer shall sign it and state on the record the fact of the refusal to sign together with the reason, if any, given

therefor; and the deposition may then be used as fully as though signed, unless on a motion to suppress under § 503.19 (d) the Commission holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

(f) Certification and filing by officer; copies; notice of filing. (1) The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert name of witness)" and shall promptly file it with the Commission or send it by registered mail to the Clerk thereof for filing.

(2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.

(3) The party taking the deposition shall give prompt notice of its filing to all other parties.

§ 503.18 Depositions of witnesses upon written interrogatories—(a) Serving interrogatories; notice. A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within 10 days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within 5 days thereafter, the latter may serve redirect interrogatories upon a party who has served cross-interrogatories. Within 3 days after being served with redirect interrogatories, a party may serve recross interrogatories upon the party proposing to take the deposition.

(b) Officer to take responses and prepare record, A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by § 503.17 (c), (d) and (e) to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him.

(c) Notice of filing. When the deposition is filled, the party taking it shall promptly give notice thereof to all other parties.

§ 503.19 Effect of errors and irregularities in depositions-(a) As to notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.

(b) As to disqualification of officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

(c) As to taking of deposition. (1) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

(2) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.

(3) Objections to the form of written interrogatories submitted under § 503.18 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other interrogatories and within 3 days after service of the last interrogatories authorized. Answers to interrogatories to which objection is made shall be deferred until the objections are determined.

(d) As to completion and return of deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under §§ 503.17 and 503.18 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

§ 503.20 Calls on departments or agencies of the Government. (a) A call will be made on any department or agency of the Government on motion of any party upon the approval of the Commission.

(b) The motion shall show with particularity what is sought to be proved by the papers or information desired, and how or in what respect they are relevant and material to the issues of the case.

(c) Motions for calls upon any department or agency of the Government shall be filled in the Clerk's office. If no objection is filed with the Clerk within 10 days after the motion has been served on the Attorney General, the motion will be presented to and acted upon by the Chief Commissioner or a Commissioner acting in his stead, as in the case of other motions.

(d) The Attorney General may offer in evidence duly certified information and papers from any department or agency of the Government without calling for the same under the provisions of paragraph (a) of this section.

(e) All information and papers furnished by any department or agency of the Government in response to a call or offered in evidence by the Attorney General shall be subject to objection by either party; but as to duly certified copies furnished on call or offered by the Attorney General, neither party will be required to produce the originals of such papers or prove their execution.

(a)

§ 503.21 Documentary evidence. At any hearing held under the rules in this part, any official letter, paper, document, map or record in the possession of any officer or department or court of the United States, or committee of Congress (or a certified copy thereof), may be used in evidence insofar as the same is relevant or material.

(b) Original depositions or original transcripts of other testimony of record (or certified copies of either) in any suit or proceeding in any court of the United States to which an Indian or Indian tribe or group was a party may be used in evidence insofar as relevant and material.

(c) Objections to the competency, relevancy and materiality of any evidence hereunder shall be made at the time it is offered in evidence.

§ 503.22 Hearings-(a) Motions. (1) With each motion there shall be filled and served a separate paper stating the specific points of law and authorities to support the motion. Such statement. shall be additional to a statement of grounds in the motion itself, and shall be entered on the docket but shall not be a part of the record. A statement of opposing points and authorities shall be similarly filled, noted and served within 10 days or such further time as the Commission may grant or the parties agree upon. If not filed within the prescribed time, the Commission may treat the motion as conceded. If so filed, the motion shall be treated as submitted unless the Commission directs or either party requests an oral hearing.

(2) Nonappearance of parties. If at the time set for hearing there be no appearance for the moving party, the Commission may treat the motion as submitted or waived, or continue or strike it from the motion calendar. If there be no appearance for the opposing side, it may be treated as submitted or conceded.

(b) Assignment of case. When a claim is at issue, the same shall be assigned for hearing by the Commission. Any claim may be retained for hearing by the Commission or assigned for hearing to a Commissioner or an Examiner. When retained by the Commission to determine the facts, the rules applicable to hearings by a Commissioner or an Examiner shall be applicable.

(c) Authority of Commissioner or Examiner. When a claim has been assigned to a Commissioner or to an Examiner for hearing, such Commissioner or Examiner shall act in the name of the Commission and all lawful and proper orders made and directions given by such Commissioner or Examiner shall have the same force and effect as though made by the Commission; but any party feeling himself aggrieved at any order made or direction given may have such order or direction reviewed by the Commission by motion to review filed within a reasonable time thereafter, or by objections to the findings of fact filed by said Commissioner or Examiner.

(d) Evidence. The Commission, the Commissioner or the Examiner shall rule on the competency, materiality and relevancy of all evidence offered.

(e) Pre-trial procedure; formulating issues. In any proceeding the Commission may in its discretion direct the attorneys for the parties to appear before it or a Commissioner designated for that purpose for a conference to consider:

(1) The simplification of the issues; (2) The necessity or desirability of amendments to the pleadings;

(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(4) The limitation of the number of expert witnesses;

(5) Such other matters as may aid in the disposition of the action.

If the proceeding has been assigned to a Commissioner or Examiner he shall be present. The Commissioner shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.

(f) On merits. (1) In every case, unless otherwise ordered, the hearing before the Commission, a Commissioner or an Examiner in the first instance shall be limited to the issue of fact and law relating to the right of the plaintiff to recover.

(2) The burden of going forward with its proof shall be on the petitioner and the defendant shall not be required to produce any evidence until the petitioner has closed its proof. When hearings are being held in any place other than the District of Columbia, the defendant, may, if it so desires, take the testimony of any witness available at the time and place. If the hearing at any other place than the District of Columbia is on the part of the defendant, the petitioner may, at the same time and place, produce evidence in rebuttal of any evidence theretofore or then being produced.

(3) When the Commissioner or the Examiner has reason to believe that there are other material witnesses and evidence which have not been procured by either party, he may, after reasonable notice to the parties, summon and exam

ine such witnesses and procure such evidence and consider the same in connection with the proof submitted by the parties. When the Commissioner or the Examiner has reason to believe that the case is being unnecessarily delayed by the failure of either or both parties to produce witnesses, he may fix a reasonable time in which said party delaying the same must close the testimony.

(g) Swearing witnesses. Witnesses shall be sworn or affirmed by the Commissioner or Examiner. When testimony is taken orally before a Commissioner or Examiner at a hearing, it shall not be necessary for the witness to sign the same.

(h) Date and place. When a claim has been assigned for hearing, the Commission, the Commissioner or the Examiner shall notify the interested parties to produce before it or him witnesses or evidence within such reasonable time and at such place as it or he may designate.

(i) Reporter. At all hearings, whether before the Commission, a Commissioner or an Examiner, the testimony shall be taken by a disinterested reporter named by the Commission, a Commissioner or an Examiner, as the case may be, who shall take the testimony and transcribe the same. The reporter shall be sworn by a member of the Commission or an Examiner to well and truly take down and transcribe the questions propounded to and the answers given by the witnesses, and to do all other things required of him by the Commission, a Commissioner or an Examiner. A reporter who is in the regular employ of the Commission shall take the oath required by section 4 of the act creating the Commission and the oath prescribed in this paragraph and need not thereafter take the latter oath, but reporters selected for a particular case must be sworn as herein provided in this paragraph.

§ 503.23 Evidence—(a) Form and admissibility. In all hearings, the testimony of witnesses shall be taken orally in open court, unless otherwise provided by the rules in this part. All evidence shall be admitted which is admissible under the statutes of the United States or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence at common law. In any case, the statute or rule which favors the reception of the evidence