The Writings of Carl Schurz/To Mrs. Helen Jackson, January 17th, 1880

Department of the Interior,
Jan. 17, 1880.

I should certainly have answered your letter of the 9th instant more promptly had I not been somewhat over burdened 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 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 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 under stand 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.

  1. “H. H.”
  2. This and the other letters are printed in the appendix to Mrs. Jackson's Century of Dishonor.