IN THE DISTRICT COURT OF THE UNITED STATES IN AND FOR THE NORTHERN DISTRICT OF IOWA
Lelah-Puc-Ka-Chee, and )
Ta-Ta-Pi-Cha, Plaintiffs )
VS
W, G, Malin and G,N,)
Nellis Defendants
Brief and Argument of Petitioners
In the case of the United States vs Imoda 4 MONT-Page 38 It is held that the relation of the United States to the Indians (Tribal) is that of Guardian and ward, The United States ( PER DEFT Malin) and the Sac and Fox Tribal Indians ( BOTH ADULTS AND Minors) being the wards, Therefore how can a state court have jurisdiction or power to create Malin guardian by letters&& over some of the children of this same tribe, when he already had a power of the same kind and nature from the Federal Government over this entire Tribe,
It has always been the policy of our Federal Government in dealing with and educating the Indians to proceed by teaty and consent of the Tribes and also the consent of the parents of the children of such Tribe togather with acts of congress in aid thereof and not in conflict therewith, U,S, VS IMODA,4MONT- 38 above, In this case the policy of the U,S, Government is clearly stated,True, the purpose is to civilize and educate them but General Government does not assume to force upon them (the Indians) an education. The fundamental idea is that whatever is done must be by their consent; Even where a Tribe as a Tribe agrees by treaty to send the children of such tribe to school, yet the Government is powerless to enforce attendance. See same case above, Now couple the policy of the U,S, Government as clearly stated in this Imoda case with the acts of the Supliment of the U,S, Revised Statutes VOL-2 NO,s i to 5 1892 to 1895 Pages 248 &428 as to how consent of Parent or next to kin must be made also Statutes of 1878 page 363 sec- 2071 And we have both the policy and the law that must be followed by the Federal government and the U,S, President including his rural agents the defendants herein.
My Esteemed Friend Mr McMillun made the startling assertion that the United States Government Agent and Superintendent (DEFENDANTS HEREIN) had almost unlimited powers over these Indians, but when he shall have carefully examined powers over these Indians, but when he shall have carefully examined the above authorities he will then begin to realize how far local prejudice is likely to carry one really well meaning, when not guarded and protected by a well-read- better legal judgment.
Local and political prejudice caused letters of guardianship to be issued out of the Tama District Court of Iowa to Defendant Malin Over the Petitioner, Lelah-Puc-Ka-Chee, and without law or reason in support thereof, The Indians owe no allegiance to the States and receive no protection from them and therefore jurisdiction over them has ever been and must remain with and in the Federal Government.
United States VS KAGMA 118 U,S, page 375. The want of State court jurisdiction arrises more the fact, that Indians are wards of the Nation than in the territory.
United States VS Campbell. 55N,W, Rep- 553 same in 53 Minn 354. United States VS Bridleman 7Saw,y 243. Ex Parte Cross 3o, N,W, Rep, page 428 same in 20 Neb- page 417. Another good case on this same subject of want of State jurisdiction is found in 43 N,W Rep 602to 606 same case in 76 Mich- 498. being KOBOGUM VS Jackson Iron Co, Indians owe no allegiance to the States and on account of local prejudice the power of the general Government is necessary for their protection On this subject the following are good cases, U,S, Vs KAGAMA 118 U,S 375 & 119 U,S, page 1 5 Dill U,S, 453.
MARRIAGES OF TRIBAL INDIANS BY THEIR TRIBAL LAWS AND USAGES ARE LEGAL AND BINDING IN OUR STATE AND FEDERAL COURTS
44N,W Rep 254 same in 42 Minn 361 Decided in 1890 Earl vs Godley
KAGAMA VS Jackson Iron CO, 43 N,W Rep 602 to 606 same in 76 Mich 498
The above cases not only hold that Tribal Indian marriages are valid but also hold that Tribal Indians are not subject to State Courts and that Tribal Indians were placed beyond our jurisdiction by the U,S Constitution and that we have no more right to control their domestic relations, usages and laws than those of India or Turkey. In this connection I call attention to the last clause of part 9 of Chap- 188 on page 428 of Vol- 2 (no,s 1 to 5 passed in 1895 in supplement to U,S, Revised Statutes. Which reads, "And it shall be unlawful for an Indean agent or other employee of the Government to induce or seek to induce, by withholiding rations or by other improper means, the parents or next of kin of any Indian to consent to the removal of any Indian Child beyond the limits off the reservation. Your Honor will reccollect this Toledo School is of the Reservation, Now the sole purpose for which the above act was passed, was, to put a stop to agents and Superintendents of the General Government overleaping the law and policy of the General Government in their unlawful attempts to enforce compulsory education. In deidance of all the above authorities and well defined laws, these defendants, Fresh from the Rural districts, have out-striped any thing yet on record in the books (So far as petitioner,s atty is able to find in all the numerous cases read) in the way of a vigerous enforcement of compulsory Indian education, with a numerous police force they have gathered in the boys and girls, and now have commenced the novel work of forcibly gathering in the married Squaws. (That too while their husbands are still living and hanging to them) Then comes in support of this before unheard of conduct, The novel argument of the District attorney " That if the this agent and Superintendent are not allowed to thus go on in using such force and compulsion in getting these Indians into this school, The Government may as well close its doors and tear it down. Such argument, if it can be called such, sounds more like information borrowed from the numerous decisions and recorded policies of the Federal Government concerning its powers and jurisdictions over these T Tribal Indians. In a defferent form expressed the District attorney
in behalf of these defendants, and in defense of their illegal acts and
doing and in his attempt to justify the same claims in behalf of the F
Federal Government almost unlimitted power in the United States and its
Agents over these Indians Or in orther words the district attorney
claims these defendant-agents of the Federal Government have the unlimited
power to do what the Federal Government
cannot itself do and what the Federal-constitution forbids it doing, Such is by no means the law on the contrary the well defined law and policy of the Federal Government is to civilize and educate these Tribal Indians only by and through two fixed rules and conditions. - FIRST Just as fast and rapidly as such Tribal Indians by promise, treaty or consent will send their children into these Government Schools and permit them to so remain. SECOND Providing further that the parents or next of kin of such Tribal Indian children, Individually give their consent to send the them into these schools and so long as they permit them to remain in such schools In other words the Indians on their part both as a Tribe and as Individual parents must first contract promise and agree and consent, then and not until then have these defendants any power to act or do. When such parental consent and promises are yielded by the Indians and so long as such Indians are willing to keep them in effect and their children accordingly in these Government Schools then and not until then it is made the duty of the Government Indian agents and Superintendents of the Government School to see that such agreements and consent and willingness
see other side of this sheet
Instructions to agents && in the annual report of WA James Commissioner of Indian affairs for 1898 page 7 gives the defendants no protection, whatever, in taking Indian children from their parents back to this school because it is off their reservation at Taledo Iowa
Acts of General A- of Iowa 1896 chapter 110 gave to the Federal Government (accepting on its part) Jurisdiction over these Tribal lands and nothing more, The State of Iowa never had Jurisdiction over these Tribal Indians or the Individual members of said Tribe which has always been and is still in the Federal Government
are promptly carried out. That is they shall promptly place such children in the Government Boarding Schools and carefully provide for them suitable boarding, lodging clothing, books and teachers,&,&,
But the law is that just as soon as these refuse to keep their children in these Schools or just as soon as the parent withdraws consent just so soon, the General Government looses the power to compel the children of such Indians to return and remain in such Schools, and the defendants herein, servants of the General Government can have no greatre powers, I am quite anxious to see the distric attorney,s brief in support of and to sustain his idea or argument" That the defendants have almost unlimited power, that is to seize by force and hold and educate and in short do that which the General Government itself cannot do. The facts in this case are that the conduct of the defendants toward these Indians and force and compulsion used in getting and holding them in this Indian School. In which they are encouraged, crowded, madly farward by an ungovernable local prejudice is not only illegal in itself, but is also seriously retarding rather than aiding the policy of the General Government in following the way and the only way opened to even attempt to educate and civilize the Indians.
The General Government does not and never has asserted any authority over the Indians Except as founded upon their consent, U,S, VS Imoda 4Mont- 38
WA James Comissioner report of 1898 Grages[?] 175&180
All of the cases and statutes above cited fully support the three principal complaints therein made, and further fully show the policy of the Federal Government has ever been consistent and in harmony therewith, and furthermore no instructions have ever been sent to any Indian agent or U,S, Indian School Superintendent but what have been carefully drawn and given in harmony therewith.
There are several cases reported wherein Indian Agents and U,S, Indian School-Superintendents, neglecting to read these laws and instructions, they have ignored and disregarded the objections of Tribal Indians to send their Tribal children as well as the refusal of the parents or next of kin thereof to give their consent to send such children to these Government School and have attempted by proceedings in courts such as Habeas-Corpus proceedings to get possession of such children thereunder and compel their attendance in this legal and the only proper way to try and test same and have failed in the courts.
But these defendants, failing perhaps to read these laws and above Statutes and their instructions as they first should have done, and perhapse encouraged and flattered by an unreliable and dangerous local prejudice, have rashly pushed out into the field of imaginary powers vested in them much further than any thing yet recorded in the law-books and much further than the Federal Government, itself, has ever ventured.
That is these defendants have for months had gathered around them a gang of scrub-Indian-Police created by themselves, for the express purpose of forcibly taking holding and confining a small minority of these Indian children in this Toledo Indian school against the determined will and consent of such Indians and their patents and next of kin, aided at times by threats of imprisoning those parents for simply hanging on to their children while being torne from them, and at other times revolvers have been drawn to aid and intimidate such parents into an involintary consent. And when in some cases parents have fled with their children from their reservation to avoid capture these same Scrub-police have followed captured and forcibly locked them in this School.
JW Lamb atty for Petitioners
No 83
In The Matter
Lelah-Puc-Ka-Chee
et al
vs
WG Malin
& G.W. Nellis
Brief of Petitioners
Dec 8th 1899
A J VanDuzee
By J. O. Stewart
