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The Ponca Case

 Native American Nations | A Century of Dishonor                    

 

Extract from Treaty with the Ponca, giving them Dakota Lands

"Article II. In consideration of the cession or release of that portion of the reservation above described by the Ponca tribe of Indians to the Government of the United States, the Government of the United States, by way of rewarding them for their constant fidelity to the Government thereof, and with a view of returning to the said tribe of Ponca Indians their old burying-grounds and cornfields, hereby cede and relinquish to the tribe of Ponca Indians the following described fractional townships, to wit, township thirty-one (31), north range, seven (7) west; also fractional township thirty-two (32), north ranges, six (6), seven (7)eight (8), nine (9), and ten (10) west; also fractional township thirty-three (33), north ranges, seven (7) and eight (8) west; and also all that portion of township thirty-three (33), north ranges, nine (9) and ten (10) west, lying south of Ponca Creek; and also all the islands in the Niobrara or Running Water River lying in front of lands or townships above ceded by the United States to the Ponca tribe of Indians."

A correspondence, which was held with the Secretary of the Interior in the winter of 1879, in regard to the Ponca, is so excellent an illustration of the methods and policy of the Interior Department that it is worthwhile to give it at length here.

First Letter.
Mrs. Jackson to Secretary Schurz.
New York, Friday, Jan. 9th, 1880. To the Secretary of the Interior:

Dear Sir,
I have received from a Boston lady a letter, which has so important a bearing on the interests of the Ponca that I take the liberty of asking you to read and reply to the following extracts. I send them to you with the writer's permission:

"In Boston most of those who are likely to give most largely and feel most strongly for the Indians have confidence in Secretary Schurz. They think that so far he has shown himself their friend, and they feel unprepared to help any plan with regard to the Indians, which he opposes. The greatest service which could be rendered to the Indian cause at present would be given, therefore, by some one sufficiently interested to obtain an answer who would write to Secretary Schurz, and request him, on the part of the Indians, either to aid them by publicly and cordially endorsing this effort of the Ponca to secure their legal rights in the courts, or else to give Ins reasons against tins attempt, in so clear a form that one could understand them. If there are good reasons, there can be no ground for keeping them secret, and the public has a right to know them. If not, no man can call himself a friend of the Indians who throws cold water on the present interest of the public in this matter.

"Secretary Schurz has already stated that it was not worth while to sue for the Ponca lands, as the Ponca are better off where they now are; but Secretary Schurz cannot deny that it is worth ten times $10,000 to prove that if the Government seizes land given to the Indians forever by solemn compact, the latter can by the courts recover it. Secretary Schurz has also said that a bill to give the Indians land in severalty is already before Congress. If he wishes that bill to pass he must know that it is only by help of the people that the ignorance, apathy, and greed which are accountable for the shameful record of the past can be over come; and that, whatever his sentiments toward these particular Ponca, he cannot afford to throw aside the interest they have excited.

"For a hundred years the Indians have been the victims of fraud and oppression on the part of the Government. Will anything put an end to it but to give the Indians the legal right to protect themselves? Promises and plans will not do it, for who can assure their performance? Secretary Schurz's position is a strange one, and the public are waiting and watching to see what it means. Is it possible that he is satisfied to have 250,000 human beings, with valuable possessions (however uncivilized), held as absolute slaves, with no rights, and at the mercy of a government like ours, whose constant changes, to say the least, render most improbable the wise, equitable, and humane treatment he recommends in his report-and when the distance of the Indian from the personal interests of all but those States which have a personal interest in possessing his lands makes the assistance of Congress in such treatment still more unlikely? I cannot but believe that he has allowed himself to be driven into an opposition he does not really feel; and that he will yet have the magnanimity to forget any criticism on his own acts, and take the lead with those who would try to give the Indians a permanent defense against the vicissitudes of party and the greed of men.

"I will not forget to add that if the three thousand and odd hundreds of dollars needed to complete the ten thousand required to pay the costs of the Ponca suits cannot be raised in the great city of New York, I will myself guarantee to raise it in Boston in twenty-four hours if Secretary Schurz will openly endorse the plan."

The matter stands, therefore, in this shape: If you can say that you approve of the Ponca bringing the suits they wish to bring for the recovery of their lands, all the money for which they ask can be placed in their hands immediately. The writer of the above letter assured me that she would herself give the entire sum if there were any difficulty in raising it. If you do not approve of the Ponca bringing these suits, or making an effort to bring them, are you willing to give the reasons of your disapproval? It would be a great satisfaction to those Boston friends of yours whose action in this matter turns solely on your decision, if these reasons could be stated in clear and explicit form.

Yours respectfully,
HELEN JACKSON

Secretary Schurz to Mrs. Jackson
Department of the Interior, Office of the Secretary, Jan. 17th, 1880.

Dear Madam,
I should certainly have answered your letter of the 9th instant more promptly had I not been somewhat overburdened with official business during the past week. I hope you will kindly pardon the involuntary delay.
As I understand the matter, money is being collected for the purpose of engaging counsel to appear for the Ponca in the courts of the United States, partly to represent them in the case of an appeal from Judge Dundy's habeas corpus decision, and partly to procure a decision for the recovery of their old reservation on the Missouri River. I believe that the collection of money for these purposes is useless. An appeal from Judge Dundy's habeas corpus decision can proceed only from the Government, not from the Ponca, for the simple reason that the decision was in favor of the latter. An appeal was, indeed, entered by the United States District-attorney at Omaha immediately after the decision had been announced. Some time ago his brief was submitted to me. On examining it, I concluded at once to advise the attorney general of my opinion that it should be dropped, as I could not approve the principles upon which the argument was based. The attorney general consented to instruct the district attorney accordingly, and thus Judge Dundy's decision stands without further question on the part of the Government. Had an appeal been prosecuted, and had Judge Dundy's decision been sustained by the court above, the general principles involved in it would simply have been affirmed without any other practical effect than that already obtained. This matter is therefore ended.

As to the right of the Ponca to their old reservation on the Missouri, the Supreme Court has repeatedly decided that an Indian tribe cannot sue the United States or a State in the federal courts. The decisions are clear and uniform on this point. Among lawyers with whom I discussed this matter, I have not found a single one who entertained a different view; but I did find among them serious doubts as to whether a decision, even if the Ponca could bring suits, would be in their favor, considering the facts in the case. But, inasmuch as such a suit cannot be brought at all, this is not the question. It is evidently idle to collect money and to fee attorneys for the purpose of doing a thing which cannot be done. Had the disinterested friends of the Indians who are engaged in this work first consulted lawyers on the question of possibility, they would no doubt have come to the same conclusion.

The study I have given to the Indian question in its various aspects, past and present, has produced in my mind the firm conviction that the only certain way to secure the Indians in their possessions, and to prevent them from becoming forever a race of homeless paupers and vagabonds, is to transform their tribal title into individual title, inalienable for a certain period; in other words, to settle them in severalty, and give them by patent an individual fee-simple in their lands. Then they will hold their lands by the same title by which white men hold theirs, and they will, as a matter of course, have the same standing in the courts, and the same legal protection of their property. As long as they hold large tracts in the shape of reservations, only small parts of which they can make useful to themselves and to others, the whole being held by the tribe in common, their tenure will always be insecure. It will grow more and more so as our population increases, and the quantity of available land diminishes. We may call this an ugly and deplorable fact, but it is a fact for all that. Long experience shows that the protests of good people in the name of justice and humanity have availed but very little against this tendency, and it is useless to disguise and unwise to overlook it, if we mean to do a real service to the Indians.

For this reason I attach much more importance to the passage of legislation providing for the settlement of the Indians in severalty, and giving them individual title in fee-simple, the residue of their lands not occupied by them to be disposed of for their benefit, than to all the efforts, however well intended, to procure judicial decisions which, as I have shown, cannot be had. I am glad to say that the conversations I have had with senators and representatives in Congress on the policy of settling the Indians in severalty have greatly encouraged my hope of the success of the "severalty bill" during the present session.

I need not repeat here what I said in a letter to Mr. Edward Atkinson, which you may possibly have seen some time ago in the Boston papers, about the necessity of educating Indian children. You undoubtedly understand that as well as I do, and I hope you will concur in my recommendation that the money collected for taking the Ponca case into the courts, which is impossible of accomplishment, and as much more as can be added, be devoted to the support and enlargement of our Indian schools, such as those at Hampton and Carlisle. Thus a movement which undoubtedly has the hearty sympathy of many good men and women, but which at present seems in danger of being wasted on the unattainable, may be directed into a practical channel, and confer a real and lasting benefit on the Indian race.
Very respectfully yours,
C. SCHURZ.

Mrs. Jackson's Second Letter
Brevoort House, New York, Thursday, Jan. 22d, 1880.

Hon. Carl Schurz:
Dear Sir,
Your letter of the 17th instant is at hand. If I understand this letter correctly, the position which you take is as follows: That there is in your opinion, and in. the opinion of bringing before whom you have consulted on the subject, no way of before the courts the suits for the prosecution of which money has been and is being contributed by the friends of the Ponca; that the reason you do not approve of this movement is that "it is evidently idle to collect money and to fee attorneys for the purpose of doing a thing which cannot be done." This is the sole reason which I understand you to give for discountenancing the collection of money for these suits. Am I correct in this? And are we to infer that it is on this ground and no other that you oppose the collection of money for this purpose? Are we to understand that you would be in favor of the Ponca recovering their lands by process of law, provided it were practicable?

You say, also, that you hope I will "concur" in your "recommendation that the motley collected for taking the Ponca case into the courts shall be devoted to the support and enlargement of our Indian schools." May I ask how it would be, in your opinion, possible to take money given by thousands of people for one specific purpose and use it for another different purpose? You say, " Had the friends of the Indians who are engaged in this work first consulted lawyers on the question of possibility, they would, no doubt have come to the same conclusion." Had the friends of the Indians engaged in this work, and initiated this movement without having consulted lawyers, it would have been indeed foolish. But this was not the case. Lawyers of skill and standing were found ready to undertake the case; and the matter stands therefore today precisely as it stood when I wrote to you on the 17th instant. All the money which is thought to be needed for carrying the Ponca case before the courts can be raised in twenty-four hours in Boston, if you can say that you approve of the suits being brought. If your only objection to the movement is the one objection which you have stated, namely, that it would be futile, can you not say that, if lawyers of standing are ready to undertake the case, you would be glad to see the attempt made in the courts, and the question settled? If it is, as you think, a futile effort, it will be shown to be so. If it is, as the friends and lawyers of the Ponca think, a practicable thing, a great wrong will be righted.

You say that "to settle them (the Indians) in severally, and give them by patent an individual fee-simple in their lands," will enable them to "hold their lands by the same title by which white men hold theirs," and that "then they will, as a matter of course, have the same standing in the courts and the same legal protection of their property." May I ask you if any bill has been brought before Congress, which is so worded as to secure these ends? My only apology for troubling you again is my deep interest in the Indians, and in the Ponca case especially.
Yours truly,
HELEN JACKSON.

Reply of Secretary Schurz to The Second Letter
Washington, D. C., Jan. 26th, 1880.
Dear Madam,
In reply to your letter of the 22d instant, I beg leave to say that if an Indian tribe could maintain an action in the courts of the United States to assert its rights, I should object to it just as little as I would object to the exercise of the same privilege on the part of white men. What I do object to is the collection of money from philanthropic and public-spirited persons, ostensibly for the benefit of the Indians, but in fact for the benefit of attorneys and others who are to be paid for again testing a question which has been tested more than once, and has been decided by the Supreme Court so clearly and comprehensively that further testing seems utterly futile. You say that there are lawyers of skill and standing ready to undertake the case. Of course there are such. You can find lawyers of skill and standing to undertake for a good fee any case, however hopeless: that is their business. But I am by no means of your opinion that, whether it be futile or not, the experiment should be tried once more, and for this purpose the collection of money should be further encouraged. It cannot be said in this case that if the attempt will not help it will not hurt.

There seems to be now a genuine and active interest in the Indian question springing up. 'Many sincere friends of the Indian are willing to spend time and money for the promotion of their welfare. Such a movement can do great good if wisely guided in the direction of attainable objects; but if it be so conducted that it can result only in putting money into the pockets of private individuals, without any benefit to the Indians, the collapse will be as hurtful as it seems to be inevitable It will not only be apt to end a movement which, if well directed, might have become very useful, but it will also deter the sincere friends of the Indians who contributed their means in the hope of accomplishing something from further efforts of that kind, so that we may find it very difficult, for a long time at least, to engage this active sympathy again. Confidence once abused does not revive very quickly. This is my view of the case. Yon ask me '' how it would be possible to take money given by thousands of people for one specific purpose, and use it for another and different purpose," meaning the support of Indian schools. It would, in my opinion, be far better to lay the matter in its true aspect frankly before the contributors, and to ask them for their consent to the change of purpose, than to throw away the money for a purpose which cannot be accomplished. In reply to your inquiry whether any bill has been brought before Congress providing for the settlement of the Indians in severalty, and for conferring upon the individual title in fee-simple to the lands allotted to them, I am glad to say that several bills of this kind have been introduced in both the Senate and the House, and are now before the respective committees on Indian affairs for consideration. If such a bill passes, of which there is great hope, the Indian, having a fee title by patent to the piece of land which he individually, not as a member of a tribe, holds as his own, will stand in the eye of the law just like any other owner of property in his individual right, and, as a matter of course, will have the same standing in court. This will do more in securing the Indian in the practical enjoyment of his property than anything else I can think of, and it has long been my endeavor to bring about just this result. I trust we shall obtain the desired legislation during the present session of Congress.

Very respectfully yours,
C. SCHURZ

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A Century of Dishonor, By Helen Hunt Jackson, New York, Harper & Brothers, Franklin Square, 1885

A Century of Dishonor

 

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