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THE PONCA CASE.
Extract from Treaty with the Poncas, giving them Dakota Lands.
"Art. 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 Poncas, is so excellent an illustration of the methods and policy of the Interior Department that it is worth while to give it at length here.
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 Poncas 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:
6. 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 Poncas to secure their legal rights in the courts, or else to give his reasons against this 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 Poncas 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 overcome; and that, whatever his sentiments toward these particular Poncas, 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 any. thing 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 defence against the vicissitudes of party and the greed of
“ 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 Poncas 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 Poncas 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,
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 Poncas 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 Poncas, 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
On examining it, I concluded at once to advise the attorneygeneral 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 Poncas 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 Poncas 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. HELEN JACKSON, New York.
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 the lawyers whom you have consulted on the subject, no way of bringing before the courts the suits for the prosecution of which money has been and is being contributed by the friends of the Poncas; 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