The evasive and inconclusive character of these replies of the Secretary provoked much comment, and gave rise to a very widespread and natural impression that he was for some reason or other averse to the restoration to the Ponca of their old homes. The letters were reviewed by one of the editors of the New York Times in a paper so admirable that the letters ought not to be printed without it.
Civil Rights in Acres
(From the New York Times, February 21st, 1880.)
"As most of the readers of the Times already know, friends of the Ponca Indians are endeavoring to have the tribe restored to their old reservation in Dakota. Or, more strictly speaking, it is proposed that their reservation shall be restored to them. The lands occupied by the Ponca were ceded to them by the United States by solemn treaty. By a cruel and wicked blunder, which no man has attempted to explain, those lands were ceded to- the Sioux. But
the Sioux did not want the lands, and they have never occupied them unto this day. To this robbery of the tribe was added the destruction of their houses, movable property, and farms. A citizen of the United States would have redress in the courts for such an outrage as this. An Indian has no legal status. He is merely a live and particularly troublesome animal, in the eye of the law. But, while the Ponca were trying to get back on their lands, they
were arrested by order of the Secretary of the Interior, on the charge of running away from the agency to which they had been sent by the Government when their lands were taken from them. It is not necessary to add words to intensify this accumulation of criminal folly and wrong. Certain citizens of Nebraska, hearing of the injustice, which was being perpetrated on the Ponca, raised funds, and had the chiefs brought before United States District Judge
Dundy on a writ of habeas corpus, to inquire why they were thus restrained of their liberty. Judge Dundy decided that an Indian was a person' within the meaning of the Habeas Corpus Act, and that these persons were unlawfully held in duress.
"It was thought that the United States would appeal from this dictum, but no appeal was taken, much to the disappointment of the friends of the Indians, as it was hoped that a decision could be reached to show whether the Indian was or was not so far clothed with the privilege of a citizen that he could have a standing in the courts of law. Accordingly, the public-spirited and philanthropic persons who had espoused the cause of the Ponca resolved to
make up a case, which, carried to the United States Supreme Court, should determine once and forever this moot point. To this end money has been raised by subscription, by special gift, and by contributions taken at public meetings in various parts of the country. A lady residing in Boston, moved by the pitiful condition of the Indians, who tried to struggle toward civilization, offered to supply all the money which was lacking toward the expenses of
the suit, provided Secretary Schurz would give some public assurances that he favored this manner of determining the case, or would give his reasons against this attempt. The lady's proposition was sent to Mrs. Helen Hunt Jackson, whose disinterested and efficient labors in behalf of the deeply wronged Ponca had already attracted attention. Mrs. Jackson forwarded to Secretary Schurz the whole statement. Thereupon an interesting correspondence ensued.
This correspondence has been printed in the Boston papers, presumably by direction of Secretary Schurz.
"In reply to the request to say whether he approves of the movement to carry the Ponca case to the Supreme Court, in order that the tribe may recover their old reservation, the Secretary says that this would be useless, as the courts have repeatedly decided that an Indian tribe cannot sue the United States. Unfortunately, Mr. Schurz does not cite these cases, but we must take it for granted that he knows what he is talking about. He adds that he has
taken the advice of lawyers, who coincide with him in this opinion. As a suit cannot be brought at all, according to the Secretary and his legal advisers, it would be idle to collect money for this purpose; and the Secretary suggests that, if the disinterested friends of the Indians had consulted lawyers before they began their work, they would be of his opinion as to the futility of the attempt. This, of course, leaves the impression that the
Secretary withholds his approval of the movement to secure legal rights for the Ponca, though he does not say so in express terms. His reason for not approving the attempt is that it will do no good. his solution to the Indian problem, as it is vaguely called, is to settle the Indians in severalty, breaking up their tribal organization, and giving to each individual his lands in fee-simple. This, the Secretary thinks, will enable them to hold their
lands by the same title as that by which white men hold theirs, and, 'as a matter of course, they will have the same standing in the courts' as white men. It is to be regretted that the Secretary did not pause here long enough to show how the giving to an Indian of 160 acres of land can clothe him with civil rights which he does not now possess, and which the Secretary thinks that the courts cannot give him. For this reason, however, Mr. Schurz is
greatly in favor of legislation providing for the settlement of the Indians in severalty, various bills to accomplish which, he says, are in preparation. As for the money raised already, the Secretary suggests that since, in his opinion, it would be misspent in obtaining judicial decision, it might be used in the education of Indian children.
"Replying to this, Mrs. Jackson asks if the Secretary would be in favor of the Ponca recovering their lands by process of law, provided that could be done. To this direct and very important, inquiry we regret to notice that the Secretary finds himself unable to reply, although, in a letter immediately following this, he does say that if an Indian tribe could maintain an action at law in the courts to assert its rights, he would no more object to it
than he would to a white man's doing the same thing. As to the suggestion that the money collected for the expenses of legal proceedings be used for educational purposes, Mrs. Jackson asks the Secretary how it would be possible to take money given for one specific purpose and use it for another and wholly different purpose. Mr. Schurz rejoins that the consent of the donors may first be obtained; but he forgets that it would be impossible to canvass the
country to ascertain the wishes of thousands of unknown givers to this fund. Referring to the intimation that the friends of the Indians had not taken legal counsel in this matter, and that the Secretary had, Mrs. Jackson observes that they did take such counsel, and that an omission to do so would have been indeed foolish.
"It will be observed that the Secretary's objection to the attempt to secure civil rights is its futility; and, in answer to Mrs. Jackson's statement that the friends of the Indians have sought the opinions of lawyers in this case, he replies that one can find lawyers of skill and standing to undertake, for a good fee, any case, however hopeless.' To those who might think that this is unjustly severe on the legal profession, it should be said that Mr
Schurz has been by profession a lawyer, and should know what he is talking about. And we must presume that Mr. Schurz's profound knowledge of the law, which is fortified by the opinions of eminent legal men, induces him to consider the whole case closed in advance of its submission to the courts. It would be interesting, however, to know if the Secretary's lawyers of skill and standing are less easily influenced by the prospect of a good fee' than the
lawyers of skill and standing consulted by the friends of the Ponca. The exceedingly able opinion of Secretary Schurz, we find, is that it is useless to give the Indian a standing in the courts through judicial decisions, as he can readily secure this by accepting from the Government of the United States a deed of 160 acres of land."
Condition of the Ponca in the summer of 1880
Standing Bear and his party, after their release by the decision of Judge Bundy, settled on an island in the Niobrara River, which was a part of their old reservation, and had fortunately been overlooked when the United States Government took forcible possession of the rest of their land and presented it to the Sioux. Here they were joined by other fugitives of their tribe till the number reached about one hundred and thirty. A committee which had been organized
in Omaha for their relief supplied them with fanning implements, and they went industriously to work. This committee published in July, 18S0, a report containing the following paragraphs:
"We consider the treatment of the Ponca Indians as one of the most heart-sickening chapters in our national record of Indian wrongs, and we are determined to spare no effort to restore to them their stolen homes and rights, and to relieve the American people of the stigma of this terrible wrong.
"The Senate of the United States during the past winter appointed a select committee' to ascertain and report the circumstances of the removal of the Ponca Indians from their reservation, and whether the said Indians. are not entitled to be restored thereto.' This Senate Committee devoted a long time to a thorough and patient investigation of this whole Ponca case, and reported that the Ponca had been 'forced, without authority of law, from their homes to the
Indian Territory,' and reported also a bill for their restoration to their former reservation, and recommending 'that $50,000 be appropriated for the purpose of taking the Ponca back, and restoring their now dilapidated homes.'
"This able report of the United States Senate says that in dealing with one of the most peaceable and orderly and well-disposed of all the tribes of Indians, the Government has violated in the most flagrant manner their rights of property, and disregarded their appeals to the honor and justice of the United States, and the dictates of humanity.'"
The report also says that "the committee can find no language sufficiently strong to condemn the whole proceeding, and trace to it all the troubles which have come upon the Ponca, and the hardships and sufferings which have followed them since they were taken from their old reservation and placed in their present position in the Indian Territory."
The Omaha Ponca Relief Committee need no better vindication of their action in behalf" of this distressed and outraged people than these strong and weighty words of a committee of United States Senators, composed of representative men of both political parties.
The Omaha Committee consisted of Bishop Clarkson, of Nebraska, chairman; Rev. A. F. Sherrill, Rev. W. I. Harsha, Leavitt Burnham, W. M. Yates, and P. L. Perine.
At the request of this committee, Mr. T. H. Tibbles in June went to the Indian Territory to visit the Ponca (of whom only about 400 were left alive). He was authorized "to assure them of the interest and efforts of humane people all over the country in their behalf, and to notify them that the Omaha Committee were ready to assist them in any practical way to return to their old homes, from which they had been unjustly and inhumanly ejected."
Mr. Tibbles succeeded in visiting the Ponca, although the Government agent interfered with him in many ways, and finally arrested him by authority of an order from Washington to arrest any member of the Omaha Committee who came upon the reservation. He was insulted by the agent, taken by force out of the reservation, and threatened with much more severe treatment if he ever returned.
This high-handed outrage on a free citizen of the United States aroused indignation throughout the country. The comments of the Press on the occurrence showed that people were at last waking up to a sense of the tyrannical injustice of the Indian Department. The New York; Tribune said, editorially:
"The Indian Department may as well understand at once that the Ponca case has passed out of their control. It is a matter of simple justice, which the people are determined to see righted. No petty Indian agent has the legal right to imprison, maltreat, and threaten the life of any citizen totally guiltless of offence beyond that of working to give these serfs of the Government the standing of human beings. It is the Government of this great Republic, where all
men are free and equal, that holds these Ponca prisoners on a tract where to remain is death. They are innocent of any crime except that they have been robbed of their land, and that they ask to bring suit, as a black man or convict could do, in the courts for its recovery."
Mr. Tibbles reported the condition of the Ponca in Indian Territory as "deplorable in the extreme. They live in constant dread and fear, and are as much imprisoned as if they were in a penitentiary." They seem " to have lost all hope, are brokenhearted and disconsolate. With one or two exceptions, they are making no effort to help themselves. Their so-called farms are miserable little patches, to which they pay very little attention. One of them said to me, 4If
the Government forces me to stay here, it can feed me. I had a good farm back at our old home, and if I was back there I would farm again; I have no heart to work here.' The one hundred and fifteen who are back on the old reservation have a much larger amount of land under cultivation than the whole four hundred who are in Indian Territory. They have kept their crops in good condition, and are full of energy and hope."
The Government Agency for the Ponca having been transferred to the Indian Territory, the annuities due the tribe were of course paid there, and that portion of the tribe which had fled back to Dakota received nothing.
Moreover, the Indian Bureau issued an order forbidding any Ponca who should leave the In-than Territory to take with him any kind of property whatsoever, under penalty of being arrested for stealing. As they could not take their families on the long, hard journey to Dakota without food or means of transportation, this order kept them imprisoned in Indian Territory as effectually as a military guard could have done.
The Government employees in charge of them reported, meanwhile, that they had "made up their minds to live and die where they are. There exists a feeling of contentment in the tribe that will make it very difficult for any one to induce them to leave their present home," says a general press dispatch, presumably dictated by the Indian Bureau, and sent throughout the country on July 15th.
It seems an insult to people's common-sense to suppose that this statement would be believed, close on the heels of the general order for the arrest of all fleeing Ponca who should dare to take with them out of the Indian Territory one dollar's worth of property. A very superfluous piece of legislation, surely, for a community so "contented" that it would be "difficult for any one to induce them to leave their homes."
The Legal Aspect of the Case
The chivalric and disinterested attorneys, who had had the charge of the Ponca case from the on set, were not to be intimidated by the threats nor outwitted by the expedients of the Indian Bureau. The ingenious devices practiced by the Department of the interior to hinder the getting service of summons upon the defendants in the suits necessary to recover the Ponca' lands, make by themselves a shameful chapter, which will some day be written out. But on the 13th
of July the attorneys were able to report to the Omaha Committee as follows:
Report of the Attorneys
Omaha, July 13th, 1880. To Omaha Ponca Indian Committee:
In response to the inquiry of one of your members as to the condition of the suits instituted by us to liberate Standing Bear and his associate from the custody of the military, and to recover possession of the Ponca reservation, we make the following statement:
On April 8th, 1879, was filed by us the petition in the case of United States ex rel. Ma-chu-nah-zha (Standing Bear) et al. vs. George Crook, a Brigadier-general of the Army of the United States and Commander of the Department of the Platte, in the U.S. District Court for the District of Nebraska, for a writ of habeas corpus for the release of Standing Bear and his companions. This cause was tried about the first of May 1879, and Standing Bear and his companions
were restored to their liberty. Thereupon the U. S. District-attorney took the case to the United States Circuit Court for this District by appeal, and about May 19th, upon hearing before Mr. Justice Miller, Associate Justice of the Supreme Court of the United States, was there continued, and on January 5th, 1880, the appeal was dismissed on the motion of the U. S. District-attorney.
On April 3d, 1880, was commenced by us the case of Ponca tribe of Indians vs. Makh-pi-ah-lu-ta, or Red Cloud, in his own behalf, and in behalf of the Sioux nation of Indians, in the U. S. Circuit Court for the District of Nebraska, and on May 18th, 1880, we commenced in the same court the case of Ponca tribe of Indians vs. Sioux nation of Indians. These cases were commenced, and are being prosecuted by us, to recover possession of and establish the title of the
Ponca tribe of Indians to so much of their old reservation as lies within the limits of Nebraska. Great delay was made necessary in the commencement of these cases, and the ones subsequently commenced in Dakota, of which we below make mention, owing to difficulties in getting service of summons upon the defendants. On May 22d, 1880, service of summons was had on the defendants in both cases, and some action will be taken therein at the next term of the court.
About the 20th of May, 1880, there were commenced in Dakota other suits in the name of the Ponca tribe of Indians, and against the Sioux nation of Indians, and against certain of their chiefs, to settle and establish the title of the Ponca tribe of Indians to so much of their old reservation as lies within the limits of Dakota. Service has been had in these cases, and the several suits mentioned will be prosecuted by us with all convenient speed.
We might add that we also have in charge the case of John Elk vs. Charles Wilkins, in the U. S. Circuit Court for this District, which is being prosecuted by us to determine the rights of Indians under the Fourteenth Amendment of the Constitution of the United States.
A. J. POPPLETON, JNO. L. WEBSTER.
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A Century of Dishonor,
By Helen Hunt Jackson, New York, Harper & Brothers, Franklin Square, 1885
A Century of Dishonor