As was the case on other reservations in the allotment era, the federal agent assigned to the Omaha agency wielded enormous power in the administration of both tribal and individually assigned land. Outsiders wishing to lease trust property typically approached the local agent, regardless of which tribal member had been assigned to the land in question. Sloan had long criticized this practice, charging that agents, who were political appointees, were easily corrupted or susceptible to pressure from powerful local business interests. One Indian Office inspector confirmed this view when he reported in 1894 that “for several years . . . land companies and real estate brokers have by the connivance of the agent leased the most valuable portion” of both the Omaha and neighboring Winnebago agencies “for nominal sums.”30
The occasion for this unusually candid comment was the arrival, in 1893, of a new agent, the cavalry officer William A. Beck. Initially assigned to the agency on a temporary basis, Captain Beck quickly learned that the Flournoy Livestock and Real Estate Company, headed by the Pender businessman William Peebles, had privately leased fifty thousand acres of allotted land that it was subletting to local settlers who were unaware that the practice was illegal. Beck was not opposed to leasing, but he sniffed the odor of collusion and insisted that all lease agreements between tribal members and outsiders be registered openly at the agency, as the law required. Acting on the eve of the fall harvest, the new agent ordered all unauthorized leaseholders to immediately vacate their farms. His actions triggered a three-year struggle that was fought out in federal courtrooms and the back corridors of the Indian Office.
In 1895, as his legal tussle with Flournoy was working its way to the Supreme Court, Agent Beck recruited Thomas Sloan to serve as the agency’s leasing clerk. Beck hoped this educated young Omaha would oversee the public registration of the reservation’s leases as required by law. Inspector James McLaughlin, the career official who fifteen years later tried to persuade Meegeesee and his fellow Mille Lacs Ojibwes to abandon their homeland, reported on Sloan’s appointment. The young lawyer “gave up a lucrative practice in the town of Pender, 23 miles from the agency, to accept his present position,” the inspector noted. McLaughlin added, “He is a young man of excellent morals . . . [whose] services are invaluable to the agency at the present time.”31 Sloan labored to formalize the reservation’s leasing system, while Peebles and his political supporters in Pender charged him with corruption and fraud.32
The courts ultimately vindicated Beck’s actions and rejected Flournoy’s argument that by becoming citizens, the Omahas had surrendered the protection of the Indian Office. Judge Oliver Shiras, who had earlier ruled in favor of Sloan’s application for an Omaha allotment, noted that tribal members “have the right to vote and to hold office” but that this status did “not necessarily show that the government of the United States no longer owes them any duty of protection in regard to the reservation lands, and no longer possesses any power of control over them as a tribe.”33 Despite their victory, Beck and Sloan had little time to celebrate. With the arrival of a new administration in Washington in March 1897, the Omaha agent was replaced by someone who, one observer reported, had been recommended for the job by “[Nebraska] Senator Thurston and others.”34
Thomas Sloan’s encounters with Alice Fletcher and the Flournoy Livestock and Real Estate Company persuaded him that Native people should seek the shelter of the law and the protection of the courts rather than rely on politically vulnerable officials at the Indian Office. While continuing to assert that federal protections were not canceled by the acquisition of citizenship, in the first decade of the new century he took up a series of cases in which he called on the courts to defend the rights of Indian citizens against the arbitrary authority of the federal bureaucracy. He represented clients who challenged the tax-exempt status of Indian-owned bank accounts, defended men accused of violating federal prohibitions against “introducing liquor into Indian country,” and questioned the power of the Indian Office’s reservation police force to arrest individuals without filing formal charges against them. In each instance the young attorney questioned the Indian Office’s power to assert its authority over Indian citizens. He came to believe that the unchecked power of federal officials, despite their often benevolent intent, diminished the citizenship rights of Indian citizens and led inevitably to corruption and exploitation.
Sloan’s local reputation grew along with his legal practice. He was elected county surveyor and justice of the peace, and these offices further established his reputation and helped his business grow. In 1909 Samuel Brosius, the Washington agent of the Indian Rights Association, referred to Sloan as “one of the brightest lawyers in [the] state.”35
Sloan was also drawn into the county’s business affairs. Because it had been organized to encompass the tax-exempt trust lands of the Omaha reservation, Thurston County, like many other similarly situated counties in the West, had a tax base too small to support public services for its non-Indian residents. As the county sought sources of revenue, the Indian Office warned that the Indians’ trust land, the crops they produced, and the material assistance the government provided (such as farm implements and houses) could not be taxed. The courts agreed. The Supreme Court ruled in 1903, for example, that “Congress expected that the lands . . . allotted [on the Omaha reserve] would be improved and cultivated . . . that object would be defeated if the improvements could be assessed and sold for taxes.”36
The court’s bar on local taxation had seemed reasonable in the 1880s, when Alice Fletcher promised that allotment would trigger a rapid transition to individual landholding. Then, tax exemptions could be justified as a temporary protection for struggling Indian farmers. But as resistance to farming became more widespread, and abuses such as the Flournoy company’s long-term leasing schemes placed the Indians’ tax-exempt land under the control of cattlemen, what Richard Pratt had called the “fallacy” of allotment became obvious. The tax exemptions appeared now to be simply a loophole that both Indians and whites were happy to exploit for their own profit. Sloan’s opposition to tax exemptions for Indian allotments seems to contradict his support for Native interests, but he viewed this protection like every other instance of federal intervention, as ultimately limiting the individual rights and freedoms of American Indians. Tax exemptions attracted large cattle interests that leased trust homesteads under the supervision of the Indian Office, leaving the allotments’ owners perpetually indigent and on the sidelines. As a consequence, Omaha poverty would grow and the Indian Office would continue to oppress its incompetent wards. While he was certainly aware of the hardship local taxes would impose on allottees, Sloan argued that the only solution to agency corruption was for Indians to sever their ties to Washington.
In 1905, when Thurston County imposed a tax on the bank accounts of all its residents, local officials attempted to collect the tariff from Omaha Indians who had sold allotments left to them by deceased relatives. A 1902 statute had allowed for the sale of this trust property on the open market (provided the Indian Office approved) but had stipulated that any proceeds must be deposited in individual restricted accounts for the benefit of the Indian heirs. The Indian Office quickly challenged the county’s new tax, arguing that even though the sale of these allotments conveyed a fee simple title to the land’s new citizen-owners, the proceeds enjoyed the same trust status as the original allotment and could not be taxed. When the case reached federal district court in Omaha, Thomas Sloan argued the case for Thurston County.
It is likely that Thurston County had been inspired to impose its new tax by a recent U.S. Supreme Court decision that had offered an expansive definition of Indian citizenship rights. In re Heff had reached the courts when Albert Heff, a white man arrested for selling liquor to allotted citizen Indians in Kansas, filed a habeas corpus appeal charging that the Indian Office should have no authority to regulate the behavior of a racially defined group of American citizens. The governm
ent had responded with the unsubstantiated assertion that while they were citizens, Indians required special protection because they were not people “of full competence.” The 1905 High Court would not accept this vague and explicitly racist argument. Writing for the majority, Justice David Brewer asked: “Can it be that because one has Indian, and only Indian blood in his veins, he is to be forever one of a special class. . . ?”37
When he appeared for Thurston County in its tax case, Thomas Sloan presented an argument intended to align himself with the justices who had ruled in Heff. He asked the district court to place a limit on the exercise of federal authority over Indian citizens residing on reservations. The alternative, he argued, was endless authoritarian control. In Thurston County, he argued that once the sale of an allotment had taken place and land had passed out of trust status, government supervision should end. The dollars generated by the sale became the property of the citizens who inherited them. Sloan was persuasive. In September 1905 Judge William H. Munger declared that “the mere fact” that the secretary of the interior had the authority to approve the sale of inherited trust land “does not vest in the United States a trust ownership of the income derived from it.” Munger rejected the government’s suggestion that the Indians’ bank accounts should be considered the equivalent of perpetual trust allotments. That analogy, the court declared, “has no bearing upon the present case as Congress has given the Indian the unlimited ownership . . . of the proceeds of the sale. . . .”38
Sloan’s victory in the Thurston County tax case came at a pivotal moment in the history of Indian allotment and of Indian policy generally. Over the previous two decades allotting agents like Alice Fletcher had fanned out across the United States, implementing the new allotment policy with groups as diverse as the Ojibwes at White Earth, Minnesota, the Nez Perces of Idaho, and the Cherokees in Indian Territory. The policy had spread so quickly and so extensively that many of its original boosters—Carlisle’s Captain Pratt, the leaders of the Indian Rights Association, and even the allotment law’s principal sponsor, the former Massachusetts senator Henry Dawes—had expressed uneasiness about the Indians’ ability to adjust to the economic pressures they now faced as owners of commercial farms, even farms that were tax exempt.
Their unease became more pronounced in the wake of a highly publicized 1903 Supreme Court decision that had upheld Congress’s authority to impose the allotment process unilaterally on tribes, even when its actions were barred by treaties. Lone Wolf v. Hitchcock had upheld the congressionally mandated allotment of the Kiowa Comanche reserve in Indian Territory despite the fact that its action took place over the tribe’s objections and in violation of a ratified treaty. “The Supreme Court has virtually given Congress full power to take Indian lands,” one prominent critic wrote in the aftermath of the Lone Wolf decision, adding darkly: “[A]ttempts will undoubtedly be made in all parts of the West to get possession of desirable Indian reservations.”39
As the division of reservation lands accelerated in the first years of the new century, a growing number of reformers and policy makers concluded that earlier predictions that allotment alone would transform tribal peoples into prosperous farmers had been wrong. It now appeared that allotment could become a source of Indian poverty rather than its cure. But none of the policy’s critics could agree on a politically practical response to this gloomy predicament. If the growing numbers of allotted Indians were failing to prosper, it would seem logical to conclude that the allotment law had been a mistake and should be repealed. Indians should be allowed to return to some form of tribal life, and reservations should perhaps be developed as corporate entities. Despite this logic, the support allotment enjoyed among non-Indians, particularly among major agricultural interests and potential settlers, made it unlikely that the program could be reversed.
Pressed to square the Indians’ status as individual landowners and citizens with the obvious fact of continuing Indian poverty, the Indian Office and its supporters turned to a familiar explanation: Indians were backward people, incapable of attaining civilization in a single step. Government lawyers had used that argument to defend its special liquor regulations in the Heff case, claiming that Albert Heff’s thirsty customers were not competent people, but their racial language had been explicitly rejected by the court. Undeterred, the Indian Office tried the identical tactic a year later, when it asked the court of appeals to reverse Thomas Sloan’s successful defense of Thurston County’s new tax on Indian bank accounts. This time it worked.
When the appeals court in U.S. v. Thurston County adopted the government’s characterization of the modern Omaha Indians as racially inferior, Thomas Sloan, sitting in his Pender law office, next to his telephone and typewriter, must have been tempted to look in a mirror or check his calendar. Had he been transported to the buffalo hunting camps of his ancestors? When describing Indians, the judges clearly had not considered the Christian boarding school graduate and successful lawyer who had just argued the case before them. They announced to Sloan and his colleagues that federal supervision of citizen Indians was justified because these individuals “are still members of their tribes and of an inferior and dependent race.” Restrictions on the Indians’ property were necessary, they added, “to protect them from want and despair and the superior race from the inevitable attacks which these evils produce. . . .” Reasoning on from this invented image, the court could find no limit for the authority of the Indian Office. It declared, “Every instrumentality lawfully employed by the United States to execute its constitutional laws and to exercise its lawful governmental authority is necessarily exempt from state taxation and interference.”40
Other courts and the entire federal bureaucracy quickly warmed to this racial theme. In the five years between the Supreme Court’s decision in Thurston County and the founding of the Society of American Indians in 1911, Thomas Sloan heard racial justifications for extending federal authority over Indians with increasing frequency. In 1907 he challenged his own arrest by Winnebago agency policemen carrying out the local agent’s order barring him from the reserve. The agent defended this preemptive action by charging that Sloan had been planning to engage in deceptive business activities. The Eighth Circuit Court of Appeals upheld the action on the grounds that despite their U.S. citizenship, the Winnebagos were “in a state of dependency and tutelage which entitles them to the care and protection of the federal government.” The question of the limits of the Indian Office’s protection was left open-ended. “When they shall be let out of that state,” the judges added, “is for Congress alone to determine.”41
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AT THE SAME TIME that Sloan was challenging his arrest by agency policemen, he was also engaged in a long-running defense of Simeon Hallowell, a fellow Omaha Indian who had been arrested in 1905 for “introducing liquor into the Indian country.” Like Sloan, Hallowell was an allotted member of the tribe, a U.S. citizen, and an active participant in Thurston County affairs. He had served as a local justice of the peace, an election official, a county assessor, and a member of the local school board. The arresting officers conceded that Hallowell was not a liquor dealer. He had transported the alcohol in question to his home “for the purpose of drinking and using the same himself” as well as providing it “to his friends or visitors.” Despite his upstanding profile, Hallowell was convicted of violating federal liquor regulations in federal district court. When Sloan appealed the case to the Eighth Circuit in St. Louis, the justices there were unable to reach a decision. They wrote that Hallowell did not fit the court’s image of the kind of Indian who should be regulated by rules drawn up in Washington, D.C. The appeals court suggested that the Supreme Court clarify the situation by resolving this legal issue. They asked, “Is [Hallowell] liable to indictment and punishment” under federal law? The Supreme Court refused to rule and ordered a rehearing of the case.42 Hallowell and Sloan returned to St. Louis for the reargument. In 1911, after Hallowell’s convictio
n had been upheld yet again, Sloan turned to the Supreme Court for a definitive ruling.
This time the justices were prepared. In the six years since Hallowell and Sloan had first approached it, the Supreme Court had decided three cases involving the rights of citizen Indians. Two of these, U.S. v. Sutton and U.S. v. Celestine, were decided a week apart in December 1909. In both of them the Court upheld the federal prosecutions of citizen allottees accused of crimes on allotted reservations. (The accused had challenged their arrests, claiming that as citizens they were under the jurisdiction of state, not federal, authorities.) “It cannot be said to be clear,” the Court declared in Celestine, “that Congress intended by the mere grant of citizenship to renounce entirely its jurisdiction over the individual members of this dependent race.”43
The Court gave the “mere grant of citizenship” an even clearer definition two years later in Marchie Tiger v. Western Investment Company, a case argued two weeks before Sloan’s second appearance before the justices on behalf of Hallowell. Marchie Tiger was a citizen allottee in Oklahoma who had asked the Court to cancel the deeds to two tracts of fee simple land she regretted having sold to non-Indians. The Justice Department lawyer arguing on Tiger’s behalf explained the reasoning behind the government’s extraordinary request that the Court set aside a private land sale involving adult citizens of the United States: “Minors and lunatics may be citizens and yet their property rights may be restricted,” the Justice Department’s Wade Ellis declared. “Full-blood Indians of the Five Tribes are, as a class, incompetent. . . . [They are] unable to speak the English language and incompetent to guard their interests from designing persons.” 44
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