This Land Was Our Land

In my last post I discussed some of the underutilized resources available for tracing Native American ancestry, and mentioned the long, sad history of the Federal Government’s mismanagement of the small amounts of our lands that we have been allowed to keep—sort of. Today I’m going to go into that history in more detail, focusing on the records that exist which can help us learn more about our Indian ancestors. It’s a search that is likely to make you angry once you get into it, but I feel we owe it to those ancestors to learn and pass on the information that still exists and attempt to get a degree of justice for them and for us.

Once the Feds hornswoggled our ancestors into ceding our best lands, they had to face up to the fact that the Indians simply refused to evaporate. Just as bad, the Indians kept moving around as they always had done, to cope with the abundance or scarcity of game, fish, and wild plant foods, and/or to visit relatives. The government therefore set aside large tracts of lands which were not known to contain anything of value, such as valuable minerals or good, rich, deep topsoil. Those tracts became the reservations.

Indians—being illiterate but not stupid—resisted the idea of being confined to small tracts of land devoid of reasonable natural resources to sustain their people. Many had been hornswoggled into signing treaties whose written terms were not the terms that had been negotiated orally. Sometimes Indian resistance was dealt with by massacre, as at Wounded Knee. Others were “removed” if their presence became inconvenient—in other words, when someone else wanted their lands. (That’s how the sacred Black Hills got carved away from the Lakota when gold was discovered there.) Sometimes the Indians were removed by force, as with the Cherokee Trail of Tears in 1838 or the Navajo Long Walk of 1864. And sometimes they were removed by outright chicanery.

In order to "persuade" the Lake Superior Chippewa to move west of the Mississippi River, an executive order was issued by President Zachary Taylor in 1850: the site of the annuity payment was changed from La Pointe (on Madeline Island), Wisconsin, to Sandy Lake in Minnesota. This was in itself a violation of numerous treaties, as was the moving of the payment date from summer to late October. By that time, with more and more of their resources becoming more and more restricted, the Ojibwe were now dependent on that annuity for survival, so they felt they had no choice but to go to Sandy Lake.

The journey was an arduous one, and when the Ojibwe got there, it was several weeks before a government agent arrived, and he immediately informed them that the annuity (consisting of money and vital supplies, including food) had not yet been sent. A small portion of the annuity finally arrived in early December, by which time the Ojibwe were starving, freezing, and dying from dysentery or measles at a rate which admirably suited the government interests. The survivors, weakened by starvation and the freezing cold, were forced to return home with only a fraction of what they had been promised by treaty. Many died on the way, or shortly afterwards.

I grew up in Minnesota, and I can testify that Minnesota winters are very, very cold, and that walking through deep snow on foot is arduous. At least 400 Ojibwe men died at Sandy Lake or on the return home, and of course there were many additional casualties at home over the fall and winter among the women, children, and old men who had not made the journey. In other words, so far as the President was concerned, the affair was a rousing success, and the stubborn Ojibwe would now surely be forced to resettle west of the Mississippi.

In 1852, however, there was another President in office, and the 93-year-old Chief Buffalo of La Pointe led a delegation to Washington, DC, to persuade him to rescind Taylor’s order to remove the Chippewa from the lands which had been guaranteed to them by numerous treaties. And to their everlasting credit, large numbers of whites who lived along the travel route became highly indignant about the shabby treatment the Ojibwe had received from the federal government and signed petitions demanding that the removal order be cancelled.

Once in Washington, however, the commissioner of Indian Affairs was outraged that the group had dared to come without official permission and ordered them to go home. Fortunately, the Ojibwe encountered some members of the Whig party, who arranged for an audience with President Millard Fillmore (a Whig). Fillmore received Chief Buffalo and the others with respect and listened carefully to what the Indians had to say. Two days later, he rescinded the removal order, and the 1854 Treaty set up reservations in the home territories of the Ojibwe bands.

Eventually most of the recalcitrant tribes west of the Mississippi were forced onto reservations, although most fought heroically as long as they could against “removal.” Small tribes and bands who remained adamant simply ceased to be “Federally recognized” and left to their own devices to survive in the white man’s world.

Since the official idea of establishing reservations was to turn the Indians into self-supporting farmers, in 1887 the Feds got the bright idea of moving all Indians—hostile or not—onto reservations (preferably where natural resources were few), then, under the terms of the federal Dawes Act, dividing the reservations into 80-acre allotments which were doled out to the “official” tribal members, male and female, including small children. (In Minnesota, the 1889 Nelson Act required all Indians to move to White Earth, but so many Ojibwe took one horrified look at the place and went back to where they came from that the original reservations persist to this day and the Dawes Act allotment process continued.

Still, the Dawes Act would give a married couple 160 acres and 80 acres to each of the kids they had at the time. Sounds reasonable, yes?

No.

For a start, if an allotment had any valuable natural resource (including good timber or valuable minerals) or was in fact decent farmland, the Indian who got title would be hounded by whites looking to get that land away from the “worthless” Indian by purchase or by outright swindle. Second, any land that had not been allotted was likely to be declared “surplus” and sold off. (To this day, about 95% of the White Earth Reservation in Minnesota is owned by non-Indians.)

Equally bad, there was no allowance for the fact that Indians, like everyone else, have children. Even with a second round of allotments some 20 years or so after the first round, there were too few allotments to accommodate future generations. This was deliberate: the goal was to get the Indians into the cheap end of the labor pool and eventually to close the reservations once everyone had become completely “civilized”.

Here’s how it worked: suppose a newlywed couple were given adjacent 80-acre allotments, totaling 160 acres between them, and then proceeded to have 10 children, of whom 6 (or their offspring) survived long enough to inherit equal shares of their parents’ property. As adults, how were those 6 surviving children supposed to support themselves and their families by farming on only 26.7 acres each? They might grow enough food on their lots to feed themselves if the hunting, fishing, and wild plant foods were plentiful, or possibly grow enough fruit and/or vegetables to sell and thereby pay their other expenses. But the size of the parcels owned would diminish substantially with each subsequent generation, so that in a few generations a direct descendant of the original allottees might own only a few square feet of the original 160 acres.

Now, the government foresaw this problem (in fact, it counted on it), so the problem was solved by taking charge of the probates of the original allottees, then distributing to the heirs not a specific piece of land each but an undivided interest in the original allotted land. (Very few Indians made wills, but if they did, the wills were generally honored.) This meant that no heir could have exclusive title to a useful-size parcel unless he or she persuaded or paid the other heirs to cede their shares to that one heir.

Civil inheritance laws also played a major role in making sure that Indian heirs didn’t actually get control of their inheritance. Example: in Minnesota (where my grandparents lived), unless there was a valid will specifying otherwise, civil law gave 1/3 of the deceased’s property, including all land interests or shares of interest, to the surviving spouse, and divided the other 2/3 among the deceased’s surviving children or their heirs. If a child died young, her share would revert to the surviving parents if any, or to the parents’ heirs, including the dead child’s siblings or their heirs. With white families, the heirs would then determine the most fair way to divide up the property. Indians were presumed to be incompetent to do this, so each heir continued to hold an undivided interest, and the process is still ongoing to this day.

This still did not give any Indian heir an actual parcel of land to live on, much less farm. When you consider that there were many marriages between whites and Indians, and that widows and widowers often re-marry and, if young enough, have additional children, within a couple of generations a large percentage of the original allottee’s heir's might be persons with no Indian ancestry at all.

The technical term for all of this is fractionalization, and it meant that the government administered the allotment and its use without input from the actual owners. It might, for example, lease it out to a white cattle rancher as grazing land at the bargain rate of $1 an acre per year. It might have all the allotment’s timber cut down for use as railroad ties or building material for the white towns and cities. The income “should” have been divided among the land’s owners, but all too often it simply disappeared, either lost in the bureaucracy or downright stolen. Or the allotment might be simply ignored, producing no income at all while insuring that the dozens or hundreds of owners couldn’t even live on it. (At least my great-uncle Joseph’s allotment, which I discussed in an earlier post, did generate a distribution of timber income a few years ago.)

Believe it or not, there is an upside to all this for those of us who are researching Native American ancestors who lived on a reservation and/or had an allotment.

In my great-uncle’s case, the records as to the legal owners have at least been carefully kept and heirs occasionally receive updates. (The 1955 list of Great-Uncle Joseph's heirs provided me with an invaluable mass of information about the extended family when I first decided to research my family history.)

I’m talking about probates here, which can be the most fruitful documentation for any ancestor. The Indian Census records were made not only to keep a count of how many Indians had still not been civilized enough to move into cities to provide cheap labor, but also to keep track of who owned what land on a given reservation.

By the way, older probates were generally labelled “Inheritance Files” or “Heirship Files”. I may be prejudiced, but I suspect the term “probate” was not used because that would imply that the deceased was fully human. In fairness, I must add that the term in use these days is the same as for everyone else: probate.

Many of the probates of Indians who had allotment land interests have been at least partly preserved, along with references to the land records and often a great deal of genealogical material as to the parentage, siblings, and all lawful heirs of the deceased. Sometimes the files are quite large because there was a question as to whether a particular heir is in actual fact a rightful heir. From a genealogical point of view, these are the juiciest probates of all.

The National Archives in Washington, DC, has numerous probates of Indians of many tribes at least up into the early 1920s, held in the Central Classified Files under decimal system 350. Other, later ( mid-1920s onward) probates are held in the appropriate Regional Branches of the National Archives once they have been settled. Each probate has a unique file number.

If you have a file number from before about 1925 or so, you can contact the National Archives by e-mail or snail mail, and they can, for a reasonable fee, supply you with a copy of the probate. I can tell you from experience that the archivists in Washington DC and at the Regional Branches are generally very nice people and will help you as much as they can, but if you don’t have a file number, they won’t be able to find a specific probate for you.

They can, however, identify the boxes which hold probates for the specific band or tribe involved. Probates which have been settled are, by definition, public documents. If you go personally to the correct archive and provide identification like everyone else, you can request the boxes holding the probates for your band or tribe, look through the file boxes yourself, and make photocopies of the probate(s) you want. (Handle them carefully; old paper is fragile.)

Here’s the tricky part: while a probate could be settled within a year if there were no questions of fact involved, a settlement could take as much as 20+ years if there were complications or challenges as to the right of a particular person to inherit. (Great-Uncle Joseph's probate is still not finalized after 73 years, and the list of his heirs grows longer every year.) In other words, the year of death is irrelevant; the year that counts for locating a probate is the year the last document was added to the file—which may be years, even decades after the main issues were settled. Therefore, you can’t request a probate for your grandmother if all you have is information as to death date and tribe.

If a probate has not been settled yet, it “should” still be at the regional office of the Bureau of Indian Affairs that had jurisdiction for the deceased’s band or tribe, but you may not be able to get a look at it unless you are one of the heirs. Since the BIA gets re-organized every so often, a file that started out with one office may have been moved several times since the person’s death. However, a probate which has been finalized is by definition a public record and you should be able to access it through the agency that has it now—if you can find out which agency that is. I suggest contacting the one nearest to the tribe or band where your family member was enrolled.

Sounds daunting? There’s still hope. The BIA office in Minneapolis recently pointed me to another source for probate records. The Federal government keeps track not only of public land ownership but also allotted land on Indian reservations. The BIA referred me to the Land Titles and Records department of the Regional office in Aberdeen, South Dakota, which, they said, “should” have the probates of my great-grandmother (died 1938) and of my grandmother (died 1940).

Fortunately I already had those file numbers, because they were mentioned in Great-Uncle Joseph’s probate. I wrote to the Aberdeen office just before Thanksgiving (not expecting to hear from then until January because of the holidays). Two weeks ago I received from that office’s Land Titles and Records Section copies of the probates (which were printouts from microfilm)—and full of good information they were, too. The letter accompanying the copies told me that names and tribe or band affiliation, even with exact date of death, are not enough to find a probate, but if I can provide more information such as enrollment numbers, probate file numbers, or allotment numbers, they may be able to find the probates for my GG grandparents and for their other children.

Well, I know the death dates for some of those relatives but not the probate file numbers. However, I do have the White Earth allotment numbers for them, and I will be sending that information to the same Land Titles and Records section in January. With those probates I expect I will finally be able to sort out some mysterious relationships and possibly connect with living relatives in that line. I will post the results of that query when I receive them.

Uncle Sam may not have done right by our Indian ancestors, but at least he has left many of us a paper trail that may be a great help to us in discovering something about the lives they led, help us take the lines back another generation, and possibly connect with living cousins.