Similar disputes surfaced in other parts of the reserve. In May 1901 the local sheriff evicted twenty-five families from land held by a white settler, marched them to the nearest highway, and burned their houses. The following month, another elder, GoGee, reported that a white settler named William Wallace had suddenly appeared at his home, claiming land on which he had been living for forty years. “I relied wholly upon promises made by the commission . . . of 1889,” he declared. He asked the Indian Office “to render me such assistance as may secure from confiscation of my houses and other property. . . .” On June 7 a white businessman and notary public in nearby Vineland, Minnesota, forwarded a statement “the chiefs of the Mille Lacs Band” had asked him to record for them. They insisted that they were being “forced off ” land they had occupied for fifty years. They also claimed that settlers had invaded the tribal burying ground that had been specifically set aside in the 1898 resolution.
These reports soon reached the Indian Rights Association in Philadelphia, and the group filed its own protests with the Indian Office. In October 1901 the IRA distributed a pamphlet to its national membership list, The Urgent Case of the Mille Lacs Indians. The association’s report opened with the assertion that “probably no tribe of Indians in the United States has suffered to a greater extent by reason of unfulfilled promises and agreements on the part of the United States. . . .”35 No longer an obscure case of bureaucratic confusion, the band’s predicament was now being described publicly as an example of “unfulfilled promises.” The chiefs had found at least one sympathetic forum.
Samuel Brosius, the Indian Rights Association’s Washington lobbyist, wrote the Indian Office again in November, demanding that the commissioner come to the Indians’ assistance. Brosius suggested that he consider temporarily suspending its prohibition against tribes hiring private lawyers to represent them. “Either the government is . . . duty bound to protect these wards of the Nation by bringing an action to dispossess the intruders,” Brosius wrote, “or to allow the Indians authority to employ counsel to prosecute proceedings on their own account. . . . Justice calls for immediate action.” Brosius pointed out that in light of Meegeesee’s victory over Olof Johnson the previous year, it might be possible to ensure that every Indian with an improved homestead could be granted an allotment at Mille Lacs.36
The Indian Office rejected both of Brosius’s alternatives. Instead of intervening to protect the band’s land titles or encouraging a challenge to the local squatters in court, Commissioner Jones decided to take up Gus Beaulieu’s idea of offering the chiefs cash in exchange for their promise to move to White Earth. The administration endorsed Senator Nelson’s bill based on Beaulieu’s idea and approved new language in the resolution that had been inserted at the urging of the Mille Lacs chiefs. It stipulated that Indians who had “leased or purchased” land on the reserve “shall not be required to remove. . . .” Thanks to the tribe’s leaders, the House bill also declared that no money would be disbursed until “the Indians shall, by proper council proceedings,” have accepted the measure and “declared the manner in which they wish the money disbursed.” Sympathetic legislators also amended the bill to raise the proposed payment from twenty-five to forty thousand dollars.37 When approved in May 1902, the bill seemed a fitting reward for the band’s long campaign to remain at Mille Lacs.
But as had been true in the past, appearances were deceiving. When the “proper council proceedings” called for in the bill took place at Mille Lacs the following August, the Ojibwes gathered there were confronted by Inspector James McLaughlin, an imposing former blacksmith who was the Indian Office’s chief enforcer. With a style that Andrew Jackson would have admired, McLaughlin was a blunt and aggressive negotiator who had the habit of lecturing and bullying tribal leaders until they agreed to his proposals. (He had first made a name for himself twelve years earlier at the Standing Rock agency in North Dakota, when he ordered the predawn arrest of Sitting Bull, a decision that triggered the chief’s bloody death at the hands of tribal policemen.) At Mille Lacs, McLaughlin, who, like other Indian Office administrators, affected the title of major when dealing with Indians, came quickly to the point. “You have no claim to the lands upon this reservation,” he told the assembly in their first session. Following the administrative line first articulated by Secretary Noble, he rejected the pledge contained in the 1863 treaty and dismissed the 1889 Nelson Act’s promise that Indians gaining title to land at Mille Lacs need not leave for White Earth. “You will be protected,” McLaughlin said of those who chose to remain, “but if any of you have such rights they are very few. There is no reason why you people should drift around this country and work for other people all the time.” Echoing the sunny rhetoric of other Indian Office officials, he promised his audience that at White Earth, “[Y]ou can live happily and be independent in a very few years.”38
The band’s leaders were prepared for McLaughlin’s pitch. Back in his community after his spring lobbying trip to Washington, Wahweyaycumig innocently pressed the government’s representative to read and explain the 1902 statute’s provision recognizing the rights of those who had acquired land on the reservation. The Mille Lacs headman recounted again the story of Henry Rice’s public pledge in 1889. “I asked him to call the creator to witness that he was speaking the truth,” Wahweyaycumig recalled. “I have not realized any of the promises that were made to me, neither do I recognize this act that you have read to me today as the one that was presented and ratified at the time Mr. Rice was here to treat with us.” McLaughlin tried clumsily to steer the discussion back to removal but to no avail. As the gap between the speakers grew more apparent, GoGee, who had complained to the Indian Office a year earlier about squatters invading his home, voiced a question that must have occurred to many in this embattled group: “What is the reason why the white men wish my removal from these parts so much?”39 McLaughlin had no answer.
After three days the council was deadlocked. Major McLaughlin insisted on removal; tribal leaders insisted on some acknowledgment of Henry Rice’s 1889 pledge. Suddenly, as the sun began to set over the proceedings, Wahweyaycumig suggested something new. Since Congress had authorized forty thousand dollars to compensate tribal members for losses suffered at the hands of squatters, he observed, Mr. McLaughlin could demonstrate the government’s good faith by surveying those damages and authorizing an immediate payment to the tribe. After the money was “placed in our hands,” the chief suggested, “we will confer with you further. . . .” The government man was tempted. Why not? The money could be paid here, McLaughlin suggested, “provided you promise that you will remove after said payment.” As if on cue, another chief, who had previously been silent, spoke up. Aindusogeeshig suggested that ten thousand of the forty-thousand-dollar payment authorized by Congress should be set aside for the purchase of land at Mille Lacs for those who wished to stay. He proposed using money appropriated for removal to buy land in the territory from which the government wished them removed! Not given to humor or irony, McLaughlin suddenly realized that he had been outmaneuvered. He instantly retreated. Setting aside money for land purchases, he assured the chief gruffly, “is something we cannot do under the appropriation act.” The Mille Lacs leaders disagreed. After all, Wahweyaycumig and Meegeesee had lobbied on behalf of the bill and knew its language intimately. Aware that the new statute granted the chiefs the right to declare “the manner in which they wish the money disbursed,” Aindusogeeshig matched McLaughlin’s bluntness with his own. Referring to the conditions his chiefs had managed to insert into the most recent legislation, the chief declared, “These conditions as stated are the conditions upon which we are willing to accept the proposition.”40
Gus Beaulieu, who had also participated in drafting the legislation in Washington, suddenly broke his silence and repeated the tribe’s position. Five tracts of land at Mille Lacs were available, he noted, and they could be purchased with tribal funds. Following this purchase, anyone
who wished to could remain to receive an individual portion. Anyone who preferred White Earth could move there. In addition, Beaulieu explained, those who removed to White Earth but who wished later to return to Mille Lacs could do that as well. GoGee quickly affirmed Beaulieu’s statement. “These are our wishes,” he declared. The assembly quickly adjourned. One can only imagine the color spreading across Major McLaughlin’s face as the Indian leaders dispersed, leaving him alone at sunset beside Mille Lacs Lake.41
The next day McLaughlin accepted the council’s offer and embarked on a weeklong appraisal of damages. His deputy, the White Earth agent Simon Michelet, while noting that he could not promise that the ten thousand dollars set aside would be approved by his superiors, was encouraging: “If you have got money enough you can buy all the land around this lake. . . .” While Michelet and McLaughlin compiled the roster of damages, the tribal council convened separately to draw up a proposal for the distribution of the promised forty thousand dollars. When the government representatives returned on August 30 to meet again with the chiefs, Wahweyaycumig and his colleagues were ready with a formal contract, presumably drawn up with the assistance of Beaulieu and, perhaps, his Washington colleague Daniel Henderson. The document committed the tribe to leave Mille Lacs, provided the government accepted the tribe’s wishes regarding the disbursement of the $40,000 in compensation funds. Those wishes, spelled out in a second document presented at the meeting, included setting aside $10,000 for land purchases, distributing $18,500 to individual tribal members at Mille Lacs, and paying Beaulieu and Henderson $6,500 for services rendered on their behalf since 1898.42
After some hesitation the Indian Office approved the 1902 agreement. The compensation funds were distributed, but Beaulieu never purchased the land, as he had promised. (He claimed obstruction from local landowners; his critics charged that he had given in to pressure from local whites or that he had simply pocketed the money.) Faced with yet another defeat, many tribal members began moving to White Earth, even though several families acquired land on the new reservation and then sold it in order to buy property back at Mille Lacs. By 1904 sixty-nine people (mostly families with young children) had relocated to White Earth, raising the refugee population there to approximately five hundred. By 1911 the Mille Lacs “removals” numbered approximately one thousand, among them Wahweyaycumig, the Shobaushkung protégé who had been acting as spokesman for the group.
But 284 of Wahweyaycumig’s kinsmen, including Shobaushkung’s son Meegeesee, refused to leave their Mille Lacs homeland.43 This tiny group of families clung to small landholdings and clustered in shoreline villages around senior men like Meegeesee, GoGee, and Wadena, the son of Monzomaunay, one of the chiefs who had confronted Henry Rice in 1889. Many band members developed an itinerant pattern, moving back and forth between Mille Lacs and other Minnesota reservations.44 The community’s leaders had consistently defied the government’s removal orders, but neither their tenacity nor their inventiveness had succeeded in forcing the United States to fulfill Henry Rice’s pledge. It was in this atmosphere of struggle, eroding membership, and social fragmentation that the Mille Lacs Ojibwes turned to the courts.
AMERICAN INDIANS AND THE U.S. COURT OF CLAIMS
At the end of the nineteenth century there was no clear avenue open to tribes, like the Mille Lacs Ojibwes, who wished to air their grievances in American courts. For most of the nation’s history Indian leaders had aired their complaints against the United States at treaty councils. There U.S. officials compensated the tribes for past crimes while making a new round of promises regarding the future.45 When formal treaty making ended in 1871, tribes no longer had a ready means of resolving their complaints against the federal government.
American citizens with grievances against the federal government could take their petitions to the U.S. Court of Claims, established in 1855, but a congressional resolution passed in 1863 barred Indians from the tribunal.46 The only option for tribal leaders wishing to pursue claims against the federal government was to petition Congress for special jurisdictional legislation that would direct the court to hear their suits. Jurisdictional bills required a congressional sponsor, political allies who would argue on its behalf, and an administration willing to sign it into law once it was passed. Only then could litigation, itself an expensive and arduous process, begin. Because most decisions in the Court of Claims were later appealed to the U.S. Supreme Court, even a positive outcome of a case in its first hearing could be delayed for several years before an agreed-upon settlement figure could be authorized by Congress. All this legal activity would occur with the knowledge that the court would only make cash settlements. It had no power to return illegally taken land to plaintiffs.
Tribes exploring the use of the U.S. Court of Claims in the late nineteenth century battled the indifference of legislators and the hostility of an American public whose images of Native Americans had been shaped by lurid headlines that described Indian violence and rarely mentioned the government’s broken promises.
The Choctaws were the first tribe to gain access to the Court of Claims. Their suit arose from damages suffered during the removal era. Interestingly, the tribe’s chief lobbyist during the 1870s was Peter Pitchlynn, James McDonald’s childhood friend, who had moved west with his kinsmen in 1831 and later served as a tribal chief. The Choctaw claim began in 1855, when the Choctaws and the United States signed a treaty that ordered the U.S. Senate to investigate the tribe’s demand for compensation for improved lands lost during removal.47 The case grew more complicated after the Civil War, as the tribe added new demands and groups of lawyers battled over their shares of the expected award.48 After treaty making ended, Chief Pitchlynn moved permanently to Washington to lobby on behalf of a jurisdictional bill that was finally approved in 1881, two weeks after Pitchlynn’s death. (Fittingly, the Choctaw leader was buried in Washington, D.C., in the same congressional cemetery where Chief Pushmataha, attended by James McDonald and other members of the Choctaw delegation, had been laid to rest in the fall of 1824.)
The Court of Claims issued its decision on the Choctaws’ suit in January 1886, and in 1888 Congress appropriated more than $2.8 million to resolve the dispute. The tribe’s victory quickly established a pathway other tribes proved eager to follow. In the forty-nine years following the passage of the Choctaws’ tribal jurisdictional act (1881–1930), dozens of tribes petitioned Congress for similar legislation. Thirty-five cases were permitted to proceed to the court.49 As the list of claims cases grew, the locations of tribes filing complaints spread gradually across the continent. The first ten Indian cases to be decided by the Court of Claims exclusively involved tribes that had been forced west to Indian Territory in the 1830s. The second ten cases, decided between 1895 and 1909, included two tribes from Minnesota and the Dakotas. By the time the court heard the third group of ten cases, only one involved an Indian Territory tribe (the Creeks), and none of them arose directly from the removal era. This third group (decided between 1910 and 1928) included cases originating in Colorado, Minnesota, the Dakotas, and Washington State.50
The growing list of tribes pursuing claims also revealed that Indian leaders were using the court to air general indictments of government incompetence and deception. In 1910, for example, the Otoe and Missouria tribe won approval for a jurisdictional act that directed the Court of Claims “to hear and determine all claims . . . of whatsoever nature which . . . said tribes of Indians may have or claim to have against the United States.”51 Similarly expansive claims were authorized for most of the tribes that were admitted to the Court of Claims over the next twenty years: the Omahas, the Pawnees, the Sisseton and Wahpeton Sioux, the Stockbridge of Wisconsin, the Creeks, the Yankton Sioux, and the Indians of Fort Berthold.52
The proliferation of complaints before the Court of Claims also triggered the growth of a small community of politically sophisticated Washington, D.C., lawyers who stood ready to be the Indians’ advocates.
In the early years of claims litigation, tribal attorneys were Washington claims agents, who specialized in winning financial settlements from the federal government. The lawyer who represented the Choctaws in 1881, for example, was Samuel Shellabarger, a former Ohio congressman, whose clients ranged from the Union Pacific Railroad to a group of unhappy stonecutters that complained about the pay they received for their work on the State, War, and Navy Building next door to the White House. The lawyers who represented tribal claims in the 1890s also included John J. Hemphill, a former congressman from South Carolina, and Marion Butler, North Carolina’s Populist senator from 1895 to 1901. Butler, who opened his Washington law practice after he left the Senate, frequently worked in tandem with Josiah M. Vale, another Washington claims specialist.
In the twentieth century several individuals began to specialize in Indian claims litigation. Prominent among them was Daniel Henderson, who had worked with Marion Butler and Josiah Vale before taking on cases by himself. At the turn of the century Henderson represented the Eastern Cherokees before Congress and the Indian Office and had become a confidant of Minnesota senator Moses Clapp, the chairman of the upper house’s Indian Affairs Committee. Henderson was also a frequent correspondent of Samuel Brosius, the Kansas attorney who had become the Indian Rights Association’s Washington representative. It is likely that Brosius’s correspondence with Nathan Richardson brought the Mille Lacs leaders and Gus Beaulieu to Henderson’s door. Henderson assisted Beaulieu in securing passage of the forty-thousand-dollar appropriation in 1902 (earning twenty-five hundred dollars for his services), and in the aftermath of McLaughlin’s failed attempt to resolve the conflicts on the reservation, he was no doubt interested in devising a new (and profitable) approach to resolving the tribe’s predicament.53
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