Discussions of Habeas Corpus in the Annual Reports of the Commissioner of Indian Affairs (1845-1905)

Choctaw Agency, October 1, 1844, William Armstrong, Acting Superintendent, Western Territory, to T. Hartley Crawford, Commissioner of Indian Affairs.¹

Another subject of importance in frontier affairs is suggested by an occurrence which, though reported at the time, I will again bring to your notice.

Some time in August or September, 1843, Jacob West, a white man, and an American citizen by birth, was accused of participating in the murder of a Cherokee in the Cherokee country. He was arrested by the authorities of the tribe, tried, found guilty, and condemned to die. Application was made to the United States district court at Little Rock, to remove the case from the Cherokee tribunals by writ of habeas corpus. The judge decided that West, by marrying an Indian, and living in the Indian country, had, for all legal purposes, become one of the tribe. The application was refused, and West was hung.

It is highly important that the officers and agents of the Indian department should understand this matter distinctly in all its bearings.

In the first place, are all other tribes to exercise the same jurisdiction? Are the Osages to be suffered to scalp any white man married among them, whenever, according to their peculiar customs, he may have incurred that penalty? If they are not, where is the line to be drawn? If an American, by marriage and residence among the Cherokees, becomes for all legal purposes an Indian, it is difficult to conceive why the same consequences should not result from marrying and residing among any other tribe.

Again: what are the precise circumstances which denote the change of national character? Surely, marriage and residence are not alone sufficient; for it often happens that mechanics, traders, and others, in the Indian country, temporarily under the authority of the Government, take Indian wives. it will hardly be pretended that they lose their birthright as Americans in consequence. Is it the admission to full privileges of citizenship? A white man is never thus admitted. He can in no tribe, under no circumstances, be a chief. He can never participate regularly in the councils of the nation. he is always regarded as an intruder, looked upon with jealousy and distrust, and is liable to expulsion whenever the whims and caprices of the nation may suggest it. The indelible mark by which nature has distinguished the two races is not plainer nor more unchangeable than the political difference which exists between the Indians and whites domiciliated among them.

Supposing the question of citizenship to be determined, if the white man has really, "for all legal purposes, become one of the tribe," he will of course claim the benefits of his position. He will insist that he is not amenable to our courts for injuries done to the persons or property of other Indians; cannot be removed from the Indian country, unless his adopted countrymen request it; requires no license to trade, and no passport, if a foreigner; and, in short, is entitled to all the distinctions in favor of Indians expressed or implied in the laws of the land.

It is not intended by any means to cavil at the decision of the Arkansas court; but if that decision be correct, enough has been said, I trust, to show the necessity of defining with greater precision the rights of white men in the Indian country.

Council Bluff's Agency, October 1, 1851, John E. Barrow, Indian Agent, to D. D. Mitchell, Superintendent of Indian Affairs.²

The near proximity of these Indians [Oto, Missouria, Omaha, Pawnee] to the whites, and their constant communication, render it difficult for them to live in peace; while, on the other hand, it is highly injurious to the welfare of the Indians themselves.

Bad white men, who reside on the banks of the river for that purpose, keep up a continued traffic in whiskey with them; and, from this cause alone, many depredations are committed upon the property of innocent men. So great is the influence of the whiskey seller over an Indian, that it is but seldom that any depredations are committed upon them, their neighbors at all times being the sufferers.

I succeeded some days since in arresting three men who have been engaged in this nefarious traffic for some time. They were bold enough to carry their "stock in trade" into the very midst of the Oto village, and there dealt it out "in sums to suit purchasers." The arrest of these men, although I fear their just punishment will not be awarded to them, will prove an example which not only themselves, but others, will profit by. The habeas corpus act stands out in too bold relief for men of this character to be brought to justice, particularly in new countries, where the law is so ignorantly, and some times so faithlessly, administered.

Northern District of California, December 31, 1861, George M. Hanson, Superintending Agent Indian Affairs, Northern District of California, to William P. Dole, Commissioner of Indian Affairs.³

In the month of October last I apprehended three kidnappers, about fourteen miles from the city of Marysville, who had nine Indian children, from three to ten years of age, which they had taken from Eel river, in Humboldt county. One of the three was discharged on a writ of habeas corpus, upon the testimony of the other two, who stated that "he was not interested in the matter of taking the children;" after his discharge the two made an effort to get clear by introducing the third one as a witness, who testified that "it was an act of charity on the part of the two to hunt up the children and then provide homes for them, because their parents had been killed, and the children would have perished with hunger." My counsel inquired "how he knew their parents had been killed?" "because," said he, "I killed some of them myself." Suffice it to say, I found good homes for the children, who are now doing well, and their kidnappers each were placed under five hundred dollars bond to appear and answer.

The fact is, kidnapping Indians has become quite a business of profit, and I have no doubt is at the foundation of the so-called Indian wars. To counteract this unholy traffic in human blood and souls, I have appointed a number of special agents in the country through which the kidnappers pass when carrying the Indians to market in the settlements, with instructions to watch for them, and thus, I think, that a temporary check has been put to their commerce.

I shall make an effort this winter, in a memorial to the State legislature, to have the law repealed authorizing the indenturing of Indians, under cover of which all this trouble exists.

Santa Fé, New Mexico, May 28, 1863, W. F. Arny, Secretary, New Mexico, to William P. Dole, Commissioner of Indian Affairs.⁴

I had a conversation with Colonel [James L.] Collins, and told him "the governor could not do anything in the premises, unless legal testimony was presented to the proper authorities and they refused to act upon it; that I had an interview with 'Hosta,' the Pueblo Indian, governor of Jamez, who came to see me upon this subject, and he informed me that the troubles in the case as a difficulty to find the testimony and identify the guilty parties." I told Colonel Collins that I thought it was the duty of the superintendent of Indian affairs, or the Indian agents, to look for the captive children, and by a writ of habeas corpus to obtain them and return them to their tribe. While doing this I supposed that sufficient information would be obtained to ascertain who were the murderers alluded to, and that as the government furnished transportation and means for this purpose to him and his agents, and as nothing is furnished to the executive, it was clearly his duty and that of his agents to look in person into this matter, and after the identification of the guilty parties, if they could not be arrested without, the executive would then interfere. Superintendent Collins differed with me, and thought the executive should act at once. Since the return of Governor Connelly he concurs with me in the view I took of this matter. If I possessed the transportation, although I differed with Colonel Collins, I would have gone in person and looked after this matter, as I am satisfied that a few such cases will render, the friendly Indians so dissatisfied that they will become hostile; and if so, no white man will be able to live in safety on his ranch in New Mexico.

Olympia, Washington Territory, August, 1868, T. J. McKenney, Superintendent of Indian Affairs, Washington Territory, to N. G. Taylor, Commissioner of Indian Affairs.⁵

The attention of the Commissioner is furthermore respectfully called to the necessity of some law for the punishment of crimes committed by the Indians against one another. The courts of this Territory refuse all cognizance of crime among Indians which in no way affects the rights of white men. If an Indian murders another Indian, according to the uniform ruling of the court, we have no means of punishing him in any legal manner, and the common practice has been to refer the case to the tribe for settlement; then the offender usually gets off by paying the relations of the murdered party the forfeit of a horse, or a few blankets. Without some means to impress upon the Indians higher ideas of the sacredness of life, and deeper terror to him who violates it, we can have little hope in the work of civilization to which we are appointed. I have a case now pending exactly in point. An Indian chief deliberately shot his female slave because she had said that she was now free and intended to leave him. This Indian woman was of more than ordinary intelligence, was well instructed in the arts of housekeeping, the making of garments, &c., was young and fair in appearance, and guilty of no crime but a desire and purpose to be free from a savage master. If the courts would take such cases in hand and inflict summary punishment the effect could not fail to be salutary. I had the party above named arrested and confined in the county jail, but learning that he would be released by habeas corpus, and preferring that the Indians should not know that he could, by any process, be taken from under my control, I ordered him released, after instructing him that the case was not ended, but that he was liable to arrest upon the same charge at a future time.

Tucson, Arizona Territory, October 25, 1871, R. A. Wilbur, Special Agent for Papago Indians, to Lieutenant Royal E. Whitman, Camp Grant, Arizona Territory.⁶

At the suggestion of Hon. Vincent Colyer, I proceeded on my return from Camp Grant, to place on foot an investigation for the purpose of ascertaining the whereabouts of as many as possible of the captives taken at the massacre of Apache Indians near your post on the 30th of April last.

In my report to the department for the quarter ending September 30, 1871, transmitted through Superintendent H. Bendell, Arizona City, I stated that I have discovered the residence of five of these captives, had made application to have them turned over to me to be returned to their proper homes and families, and been refused; and that I should immediately take legal measures to obtain possession.

Since then I have been informed by the United States district attorney that you are the proper person to proceed in this matter. That these Indians having been under your control, you are the proper officer to make application for writ of habeas corpus and take possession of these children as your wards. I therefore hasten to give you all the information in my possession up to the present time. There are eight of the captives now in possession of parties residing in and near Tucson, as follows: At the "Mission of San Xavier Del Bue," nine miles from Tucson, Jesus Mendosa has one girl ten years old, shot through arm and lightly wounded in side. Nicolas Martinez has one captive; José Lucas has one captive. In Tucson, Arizona Territory, the following: Leopoldo Corilo has one captive; Manuel Martinez has one captive; Francisco Romero has two captives. I am also informed that Manuel Duran, Apache guide, sold one captive, a girl aged six years. I will try and ascertain where this child is, and inform you at once. Should you desire, I shall take great pleasure in furnishing you with the necessary form of procedure and any other assistance in my power.

I would suggest that immediate action be take in this matter, as the indictment for murder found by the late United States grand jury against a portion of their citizens has brought the people o this to such a pitch of excitement that any unnecessary delay would result in the disappearance of all trace of the identity of these captives, if not in their death.

Spotted Tail Agency, Nebraska, August 10, 1876, E. A. Howard, Indian Agent, to Commissioner of Indian Affairs.⁷

A case of murder occurred here on the night of December 26, 1875. A white man, while asleep in a house, was shot by some person through the window from the outside. I arrested a white man, believed to be the murderer, and at my request he was confined in the guardhouse at Post Sheridan. An examination was held before A. I. Feay, United States commissioner for the district of Nebraska, who was also post-trader. The evidence was so strong against the accused that he was detained under arrest, and the sheriff of Holt County, Nebraska, notified to send for him, but no reply having been received the prisoner was released from arrest on the 27th of March, 1876, by the post-commander, who declined to send him to Sidney, Nebr., and I re-arrested the man and sent him there, placing him in charge of the sheriff to await trial by the proper State authorities. He was released from there on a writ of habeas corpus, and is now at large, I hear, at some place on the Missouri River.

This murder was the result of a drunken spree, and the liquor drank was, as the accused states, bought of the post-trader at Camp Sheridan. This man and others of my employees have been at times boisterously and threateningly drunk on liquor which they state they bought at the post. Here we have an example of a deliberate murder and no way of punish[ing] the offender. And when I appealed to the commanding officer of Post Sheridan to limit the sales of liquors there, he replied by a copy of circular, dated "Fort Laramie, February 19, 1876. The lieutenant-colonel commanding having been advised by competent legal authority that the reservations at Camp Robinson and Sheridan, Nebraska, are not 'Indian country,' therefore recommends that no further arrests be made of civilians upon the sole ground of introducing liquors within these aforesaid limits."

Appropriations Act of March 3, 1883, for the fiscal year ending June 30, 1884.⁸

That one thousand dollars is hereby appropriated to pay the expenses of presenting the question of jurisdiction to the United States Supreme Court, by habeas corpus proceedings, in the case of the United States against an Indian called Crow Dog, convicted in the first judicial district court of the Territory of Dakota for the crime of murder, in the killing of another Indian called Spotted Tail, including costs of transcript, printing the same, printing briefs, and counsel fees for said defendant.

Office of Indian Affairs, Washington, D.C., October 15, 1884, H. Price, Commissioner of Indian Affairs, to Secretary of the Interior.⁹

A law is badly wanted for the punishment of crimes and offenses amongst Indians themselves. In my last annual report I referred to this subject at considerable length, and pointed out the embarrassment occasioned this Department by reason of the excepting clause in the United States Statutes (section 2146), which remits to tribal usages and customs the punishment of crimes and offenses committed between the Indians themselves. Outside the five civilized tribes in the Indian Territory, who have their own legislatures, courts, and judicial machinery, and amongst whom life and property are as secure as they are in the States, the Indian is not amenable to any law for injuries committed on one of his own race in the Indian country. The result is that the most brutal and unprovoked murders are committed, and the murderer goes "unwhipt of justice."

A notable instance of this is the case of "Crow Dog," who killed the celebrated Chief "Spotted Tail" on the Sioux reservation, and who was tried and convicted before the first district court of Dakota, sitting as a United States court, which held that under the peculiar provisions of the treaty of 1868 and the agreement of 1877, with the Sioux Indians, it had jurisdiction of the offense, notwithstanding the general provision in the statutes. Upon petition for writ of habeas corpus and certiorari, the United States Supreme Court held that the statutory exception was not repealed by the provisions of the treaties, and that the first district court of Dakota was without jurisdiction to find or try the indictment against the prisoner; that the conviction and sentence were void, and that his imprisonment was illegal. The consequence is that Crow Dog is at large upon the reservation unpunished.

Office of Indian School Superintendent, Washington, D.C., November 1, 1885, John H. Oberly, Indian School Superintendent, to L. Q. C. Lamar, Secretary of the Interior.¹⁰

The usefulness of the Sitka school has been injured by an unfortunate controversy between the officers of the government of Alaska and Rev. Sheldon Jackson, at present United States Agent of Education in Alaska. . . .

Entering into details, Dr. Jackson makes charges of the most serious character against the United States district attorney and the judge of the United States court. By habeas corpus proceedings children were taken out of the school, and girls were thus, according to the testimony of Dr. Jackson, delivered over to lives of shame. These charges have been denied with emphasis by the men against whom they were made, and they, on their part, charge that Dr. Jackson's zeal, being untempered with discretion, created all the trouble and greatly injured the cause he so much desired to promote.

Sitka, Alaska, July 1, 1885, Sheldon Jackson, General Agent of Education in Alaska, to Commissioner of Indian Affairs.¹¹

The culmination of these difficulties occurred in March last. Upon the 11th of that month the United States monthly mail steamer arrived, bringing an Indian woman of questionable character, who claimed possession of one of the girls in the school. The girl is a half-breed, about fourteen years of age, and an orphan. She is a good English scholar and quite attractive in her personal appearance. The woman claimed to be a relative (I believe a cousin). She had no papers of guardianship or any proof to support her claim; nor was she the guardian of the girl even according to Indian customs. The officers of the school very properly refused to let the child go. The woman then, at the instigation and with the assistance of some evil-disposed white men, took out a writ of habeas corpus. A special term of court was held at 8 o'clock in the evening. The officers of the school were refused a hearing, and the girl, who had cried all afternoon for fear that she would be taken away, was given into the custody of the woman. Thus a girl in process of training by the United States Government toward a virtuous and useful womanhood was by a United States court remanded back into barbarism and given over to a woman who took her down to Victoria, British Columbia, probably to be forced into a life of sin.

Last winter an Indian sorcerer and his wife brought their daughter, about twelve years of age, and placed her in the school for five years. A short time afterwards, having an opportunity of selling her to some visiting Indians, they came and asked to take her out of the school. This was refused by the superintendent. They then offered to send her brother in her place. The superintendent replied that he would take the boy if they wished, but would retain the girl. They then offered him $10 in money if he would let the girl go. Failing to procure her, they hired two Indians to steal her. These men were concealed in the woods near by a week before they were discovered and captured. While these events were transpiring the first girl had been taken from the school on a writ of habeas corpus. Encouraged by this, the same white men, as in the first case, assisted the sorcerer in securing a writ, and the girl was produced in court. Upon this occasion the Judge ruled—

(1) That the verbal contract of the Indian parents in placing their child in school was not binding.

(2) That as a white man cannot make a contract with an Indian, a written contract would be illegal; and

(3) That if the officers of the school attempted to restrain the children from running away or leaving whenever they wished, they would be liable to fine and imprisonment.

These decisions may have been very good law, but they were certainly very destructive to the best interests of the schools in Alaska, to the native population, and to the community at large. These decisions left the officers powerless to maintain discipline. If a child failed in his lessons, quarreled with his schoolmates, neglected his work, or transgressed the rules of the school, and any attempt was made to correct him, in a fit of anger or sulkiness he could leave the school. The court had thrown the doors wide open, and evil-disposed men took special pains to inform the natives and encourage them to removed their children from the school.

Office of Indian Affairs, Washington, D.C., September 28, 1886, J. D. C. Atkins, Commissioner of Indian Affairs, to Secretary of the Interior.¹²

The principles laid down in the case of "Standing Bear" (5th Dill., 453) should not, in my opinion, be applied to a people utterly ignorant and devoid of reason, and mere dependents for existence upon the bounty of the Government. These roving bands are the wards of the Government, and are entirely incompetent to comprehend their situation, and it is the duty of the Government to take such action as may be for their best interest, without applying to them the technical principles upon which the writ of habeas corpus is based.

Union Indian Agency, Muscogee, Indian Territory, September 20, 1886, Robert L. Owen, Indian Agent, to Commissioner of Indian Affairs.¹³

The United States citizens who marry Creeks do not change their status, but must keep up their permits under Creek law as other United States citizens. United States citizens who marry Cherokees acquire the rights of Cherokees, but remain subject to Federal court. When they marry Choctaws or Chickasaws they acquire all the rights of Choctaws or Chickasaws, and the Indian court has exclusive jurisdiction, and may hang. A habeas corpus to the Federal court would not liberate in such a case.

Union Indian Agency, Muscogee, Indian Territory, September 1, 1887, Robert L. Owen, Indian Agent, to the Commissioner of Indian Affairs.¹⁴

There are 43 men of the Indian police force of this agency; 1 captain, 2 lieutenants, and 40 sergeants and privates. They are distributed throughout the agency in the more thickly settled neighborhoods, and are selected of men of courage and good standing in their own vicinity. An equal division of the territory to be protected would give about 712 square miles to each officer. They co-operate with both Indian officers and United States deputy marshals and State officials, hunting refugees from justice, and make many needed arrests of persons who but for this force, with general authority, would escape.

In my last annual report I called attention to a serious defect in the law relative to the protection of these men, to wit, that they were subject to deadly assault and to murder, and the United States gave them no protection, the trial of their murderers being left to the Indian courts, and the Indian courts being quite unreliable to convict in such cases. I cited a case where the captain of the force was shot on the streets of this town by some young Cherokees, who were arrested for shooting at deputy marshals, and who are said to have explained they thought they were "only shooting at Indian police." Three months after this report two young Cherokee half-breeds murdered Captain Sixkiller, December 24, 1886, while unarmed, in the main street of Muscogee. They have never been tried. One of the parties was captured and placed by the United States officers into the hands of the Creek officers, but though they pledged themselves to his safe-keeping and a fair trial, he was loosely guarded, and at last permitted to escape by gross negligence.

After the murder of Sixkiller, who had been a most gallant and valuable officer, Congress amended the law as follows, to wit:

That immediately upon and after the passage of this act any Indians committing against the person of any Indian policeman appointed under the laws of the United States, or any Indian United States deputy marshal while lawfully engaged in the execution of any United States process or lawfully engaged in any other duty imposed upon such policeman or marshal by the laws of the United States, of the following crimes, namely, murder, manslaughter, or assault with intent to kill, within the Indian Territory, shall be subject to the laws of the United States relating to such crimes, and shall be tried by the district court of the United States exercising criminal jurisdiction where said offense was committed, and shall be subject to the same penalties as are all other persons charged with the commission of said crimes, respectively, and the said courts are hereby given jurisdiction in all such cases.

The law should go further, and give that court jurisdiction when the attack grows out of the performance of the duty by consequent malice, and provide further that in any charge of deadly assault or murder against the police or Indian a fair trail should be guaranteed by the United States. It occurs to me a habeas corpus on the ground of denial of constitutional right of "a fair trial" would suffice.

Office of Indian Affairs, Washington, D.C., October 1, 1889, T. J. Morgan, Commissioner of Indian Affairs, to the Secretary of the Interior.¹⁵

Since the Supreme Court rendered this decision [U.S. v. Kagama] several Indians have been tried by the United States courts and convicted of murder and other crimes named, committed upon an Indian reservation within a Territory, the courts holding that, were the crimes committed by a white man on an Indian reservation situated within the limits of a Territory, the United States court and not the Territorial courts would have jurisdiction over the offense, and that since the act provides that an Indian committing within a Territory and on an Indian reservation any of the crimes named in section 9 "shall be tried therefor in the same courts, and in the same manner, and shall be subject to the same penalties as are other persons charged with the commission of said crimes," the United States court has jurisdiction over these crimes committed by one Indian against the person or property of another Indian on an Indian reservation within a Territory.

Gon-shay-ee, an Apache Indian in Arizona, who, in accordance with that construction of the law, was tried in the United States court for the Territory, and condemned to death for the crime of murder, petitioned the Supreme Court of the United States for a writ of habeas corpus, alleging that the court which tried him had not at the time the trial took place, and in the mode in which it was pursued, any jurisdiction of the case against him. In acting upon this petition the court held that "The act of March 3, 1885 (23 Stats., 385), section 9, was enacted to transfer to Territorial courts established by the United States the jurisdiction to try the crimes described in it (including the crime of murder), under Territorial law, when sitting as, and exercising the functions of, a Territorial court; and not when sitting as, or exercising the functions of, a Territorial court; and not when sitting as, or exercising the functions of, a circuit or district court of the United States under Revised Statutes, section 1910." (130 U.S.R., 343; to like import, see Captain Jack, petitioner, ibid., 353).

Act of March 1, 1889, 25 Stat. 783 (1889), establishing a United States court in the Indian Territory.¹⁶

Sec. 16. That the judge of the court herein established shall have the same authority to issue writs of habeas corpus, injunctions, mandamus, and other remedial process, as exists in the circuit court of the United States.

Office of Indian Affairs, Washington, D.C., September 5, 1890, T. J. Morgan, Commissioner of Indian Affairs, to the Secretary of the Interior.¹⁷

It was subsequently decided, in the case of ex parte Reynolds (5 Dillons Circuit Court Reports), which was upon a writ of habeas corpus applied for by Reynolds who had been committed for a murder in the Indian country, that whether an individual of partial Indian descent is independent of jurisdiction of our courts as an Indian or is amenable to it as a subject of the national or State government, is to be determined (if the question depends on race, not on residence) not upon the quantum of Indian blood, but upon the condition of his father, under the rule of the civil law partus sequiter patrem, which governs in this class of cases. The court quotes in this case from Vattel, in his Law of Nations, page 102, as follows: "By the law of nature alone children follow the condition of their fathers and enter into all their rights;" and adds that this law of nature, so far as it has become a part of the common law, in the absence of any positive enactment on the subject, must be the rule in the case before it.

Nearly all questions which might arise, under the principles to be deduced from the above opinion and decision, as to the loss of tribal rights by residing away from the tribe and assuming United States citizenship, are set at rest by the general allotment act approved February 8, 1887 (24 Stats., 388). Section 4 of that act authorizes allotments upon the public domain to Indians not residing upon a reservation or for whose tribe no reservation has been provided; and section 6 declares that every Indian to whom allotment shall have been so made who has voluntarily taken up his residence separate and apart from any tribe in the United States and adopted the habits of civilized life, is a citizen of the United States and entitled to all rights, etc., as such citizen, without in any manner impairing or otherwise affecting his right to tribal or other property.

But the question still remains, where the point as to residence is not involved, as to the extent to which the principles laid down in the case of Reynolds should be applied to the applications for tribal relations of persons of mixed blood. Should the rule that nationality of citizenship follows the father's condition be construed to determine property rights in Indian tribes, or should it be confined only to questions of citizenship and nationality to which it in term applies?

The Indians living in tribal relations have been declared by the courts to be "distinct political communities" and "domestic dependent nations;" also to be "under the pupilage of the Government." The peculiarity of their status, as thus defined, appears still more anomalous when we consider the fact that each Indian is entitled to and will obtain his individual estate by division of the tribal property, and is thus virtually in the attitude of a tenant, in common with his brethren of the domain of his tribe. The political status and nationality of the Indian tribes is thus interwoven with the property rights of the Indians individually.

Another consideration of importance in the matter is the helpless and dependent condition of the tribes and the resulting necessity for the Government, in adjusting their rights and interests, to pursue a liberal policy, without reference to technical rules.

After careful consideration of the question, I incline to the opinion that the rule laid down in the Reynolds case should not be held conclusive as against the application of mixed bloods for tribal benefits where the claimants in other respects clearly prove their rights thereto.

Act of May 2, 1890, 26 Stat. 81 (1889), enlarging the jurisdiction of the United States court in the Indian Territory.¹⁸

Sec. 9. That the judicial power of said Territory shall be vested in a supreme court, district courts, probate courts, and justices o the peace. . . . The said supreme and district courts of said Territory, and the respective judges thereof, shall and may grant writs of mandamus and habeas corpus in all cases authorized by law; and the first six days of every term of said courts, or so much thereof as shall be necessary, shall be appropriated to the trial of causes arising under the said Constitution and laws; and writs of error and appeals in all such cases shall be made to the supreme court of said Territory, as in other cases.

Office of Indian Affairs, Washington, D.C., August 27, 1892, T. J. Morgan, Commissioner of Indian Affairs, to the Secretary of the Interior.¹⁹

In New Mexico there is a large body of Pueblo Indians with hundreds of children of school age growing up in ignorance and heathenism. The two Government schools at Santa Fé and Albuquerque are now thoroughly established, fairly well equipped, and are doing very satisfactory work. It has been found, however, almost impossible to secure the attendance of Pueblo children, as there has been a persistent, systematic effort to prevent the people from patronizing these schools, and recently some of the patrons have been induced by misrepresentations to appeal to the courts to have their children removed from Albuquerque by a writ of habeas corpus. Both of these schools had been established by act of Congress prior to my entrance upon my duties, so that my work has been limited to their completion and successful administration. I have used all proper incentives and have spared no labor to bring their advantages to the attention of the Pueblo Indians and the people of New Mexico, and have striven most earnestly to fill them with Pueblo children. I have been thwarted in this, however, and have been forced, most reluctantly, to fill the schools with children drawn from Arizona and elsewhere instead of from the New Mexico Pueblos.

Office of Indian Affairs, Washington, D.C., August 15, 1892, T. J. Morgan, Commissioner of Indian Affairs, to P. L. Chappelle, Coadjutor Bishop of Santa Fé, Santa Fé, New Mexico.²⁰

Now as to the grave matter of the removal of pupils from the Government school at Albuquerque on a writ of habeas corpus, you say:

I did not instigate the legal proceedings to which you refer, but before I left Santa Fé I learned that some Indians of Isleta intended to sue for writs of habeas corpus, as Mr. Creager was, so they said, detaining illegally their children against their will. If such be the case, I can not see any wrong done in instituting such proceedings or in the court granting the writ.

From this appears, first, that you knew of the proposed effort to remove the children from the school by process of law; and second, that the action meets with your fullest approval.

Now, I do not think it necessary at this time to do anything more than to state very clearly that matter as it presents itself to my mind.

(1) It is well known that the Pueblo Indians of New Mexico have been declared by the courts of the Territory to be citizens of the United States, and, although this office holds that they are not strictly such, the question is still an unsettled one, and it is possible that if the matter was carried into the courts it might be determined that the United States is not authorized to compel the attendance of their children at school. Whatever their political status is, however, they are Indians and are greatly in need of the kind of training that shall fit them to compete with the white civilization by which they are surrounded; and the necessity for this training increases year by year. They are not likely to get this training from the public schools of New Mexico, which are as yet in their infancy, because of their lack of knowledge of the English language and their want of appreciation of the value of education, the public prejudice against them, and the poverty of the Territory. For these reasons, therefore, it is very desirable that they should have the advantages of the education provided for them by the Government.

Now if they are citizens and claim exemption from Government control because they are citizens, and refuse to allow their children to be sent to the Government schools for this reason and withdraw them on the ground that they alone will determine whether they will send them to school or not, then of course it would seem to follow that they have no claims whatever upon the Government for the education of their children. In other words, if they refuse to accept of the great boon of education freely and generously offered to them by the Government and deny that the Government has any control over them on the ground that they are citizens, then of course they are estopped from demanding of the Government that it shall pay the expense of the education of their children when they send them to private or contract schools.

(2) The law expressly authorizes compulsory attendance, but I have not been willing to attempt to enforce that law with reference to the Pueblo Indians, because I felt that it was, on the whole, preferable that it should be largely a matter of choice with them.

(3) The Government has established two large schools, one at Albuquerque and one at Santa Fé, for the special benefit of the Pueblo Indians. When I came into the office I found both of these schools already authorized and one in successful operation. My work, therefore, has been to more thoroughly equip them and to see to it that the Indians had all the benefit that could be derived from them. The Government is thus offering gratuitously the inestimable advantages of these training schools to the Pueblo Indians, hoping thereby to prepare them for that citizenship the practical duties of which will no doubt speedily devolve upon them. It is every way desirable that they should be encouraged to avail themselves of the privileges offered by these two schools.

(4) Both these schools have met with very serious opposition in their endeavors to procure pupils from the pueblos. This opposition has been both direct and indirect, and has come very largely from the priests in the pueblos, and especially from the head of the Catholic school at Santa Fé. This school, under your special direction, draws its support mainly, if not entirely, from the Treasury of the United States.

(5) In previous correspondence I have urged upon Archbishop Salpointe the considerations that there are more pupils in need of an education among the Pueblo Indians than can possibly be accommodated at both the Government schools and the contract schools, and have asked that the opposition of the Government schools on the part of the priests might cease and that there may be harmonious cooperation between the contract schools under your direction, and all those interested in Catholic instruction and the Government schools.

I have insisted that it was not proper for you, representing the Catholic Church, to expect that the Government would contribute largely from the public Treasury to the support of distinctly Catholic schools while those connected with them were actively engaged in the effort to interfere with the work of the Government schools.

(6) It not transpires that the priest at Isleta called his people together, made most serious charges, which I believe to be false, against the school at Albuquerque, and not only advised them to remove their children but threatened them that if they did not do it he would visit upon them his direst ecclesiastical penalties. Influenced by his directions, they accepted the proffered services of Mr. Marron, a Catholic attorney, and appealed to the court to restore them their children. I did not care to contest the matter in the courts, and allowed them to be taken.

This action, under the circumstances, I feel was not only entirely unwarranted, but, if allowed to stand, will necessarily work great damage to the Pueblo Indians. It will not necessarily injure the school at Albuquerque, because it will be a comparatively easy matter to fill that school full to its utmost capacity with children drawn from the Pimas and elsewhere. It will, however, work to the great disadvantage of the Pueblo Indians by taking from them the training that they could receive at this well-conducted Government institution.

I hardly expect, in view of the spirit in which your letter seems to have been written, that you will accept of the suggestion which I am bout to make and yet I offer it in all sincerity and earnestness: It is that those children who have been removed from the school at Albuquerque be at once returned to the school, and I respectfully request you to use your authority to see that it shall be done at once.

Ponca, Pawnee, Otoe, and Okland Agency, Oklahoma, August 20, 1892, D. J. M. Wood, Indian Agent, to the Commissioner of Indian Affairs.²¹

In February, 1892, the Pawnees commenced what is known as a "ghost dance," dancing in a circle, falling down in a trance, and after some hours they awake and profess to have seen their dead friends. About two-thirds of the tribe seemed at this time to be possessed of the idea of the second coming of Christ, to destroy all the whites and to bring back the buffalo and wild game.

On information being received I at once wrote to my clerk at Pawnee to put a stop to said dance, but the Indians seemed defiant and aggressive, and it seemed at this time that trouble might be anticipated. Knowing that all religious fanatics are persistent and determined, I at once went to Pawnee and visited the camp of the so-called prophet, Frank White, and after talking with him and ascertaining his views, I told him he was an impostor and I wanted him at once to leave the reservation never to return. The next morning about 200 Indians came to the agency and demanded a council. They were painted in high colors and seemed aggressive and defiant. After the arrival of an interpreter I opened the council in a two-hours' talk on the coming of Christ and the true Messiah and the false Messiah as professed by them, and I plainly told them that the dance could not be tolerated and would not be; that this Government would last and assert her power, and that they should be obedient to the law and be good Indians, return to their homes and cultivate their farms, and raise something to eat. After they had spoken professing loyalty to the Government and obedience to the law, they broke the council and returned to their homes. In about two weeks thereafter news again reached me of the renewal of the ghost dance. I procured the assistance of a deputy United States marshal, and he went to Pawnee and arrested the supposed prophet, Frank White, and took him to Guthrie, Okla., before a United States commissioner, and he was held over until district court for inciting Indians to an insurrection, and remanded to jail to await his trial before the district court. In about ten days I received a telegram that a writ of habeas corpus had been issued and the hearing was the next day. I at once went to Guthrie and was at the hearing when Judge Green, chief justice of Oklahoma, gave him a good strong talk, telling him of the danger of indulging in such things, and released him. He went back to the reservation, and there has not been a ghost dance since. And what might have been a Wounded Knee disaster resulted in the scheme dying out, and all is prosperous and serene at Pawnee, with Frank White earning the good will of the tribe and assisting in all directions the civilization of his people.

1. Annual Report of the Commissioner of Indian Affairs, 1844-1845, pp 159-160.
2. Annual Report of the Commissioner of Indian Affairs, 1851, pp 94-95.
3. Annual Report of the Commissioner of Indian Affairs, 1862, p 315.
4. Annual Report of the Commissioner of Indian Affairs, 1863, p 118.
5. Annual Report of the Commissioner of Indian Affairs, 1868, pp 89-90.
6. Annual Report of the Commissioner of Indian Affairs, 1871, p 88.
7. Annual Report of the Commissioner of Indian Affairs, 1876, p 35.
8. Annual Report of the Commissioner of Indian Affairs, 1883, p 190.
9. Annual Report of the Commissioner of Indian Affairs, 1884, p XIV.
10. Annual Report of the Commissioner of Indian Affairs, 1885, pp CXIX-CXX.
11. Annual Report of the Commissioner of Indian Affairs, 1885, p 262.
12. Annual Report of the Commissioner of Indian Affairs, 1886, p XLVII.
13. Annual Report of the Commissioner of Indian Affairs, 1886, pp 155-156.
14. Annual Report of the Commissioner of Indian Affairs, 1887, p 118.
15. Annual Report of the Commissioner of Indian Affairs, 1889, pp 25-26.
16. Annual Report of the Commissioner of Indian Affairs, 1889, p 444.
17. Annual Report of the Commissioner of Indian Affairs, 1890, pp LXXIV-LXXV.
18. Annual Report of the Commissioner of Indian Affairs, 1890, pp 374-375.
19. Annual Report of the Commissioner of Indian Affairs, 1892, pp 43-44.
20. Annual Report of the Commissioner of Indian Affairs, 1892, pp 165-166.
21. Annual Report of the Commissioner of Indian Affairs, 1892, p 396.