Suing an Indian Agent

( – promoted by navajo)

The United States has always been very good about promising things to Indians, particularly during the Treaty Era of the 1800s. When it comes to making good on these promises, particularly when they might cost money, it is a different matter. Traditionally, when Congress wants to cut the budget, one of the first places they look is at the appropriations for Indian services.

In order to cut down on the expense of paying for Indian delegations who were visiting Washington, D.C., Congress in 1868 did not provide the Bureau of Indian Affairs with general funds which had traditionally been used for financing unauthorized Indian delegations to the capital. Consequently, the Commissioner of Indian Affairs told the Indian agents:

“You will, therefore, take such steps to prevent any Indian coming here, as may be necessary to accomplish the object.”

The order to stop Indian delegations from visiting Washington, D.C. arrived at the Sauk and Fox Reservation in Kansas just as an unauthorized delegation led by James Keokuk was preparing to leave the reservation to visit the Capital. The Indian agent, mindful of the memo from the Commissioner of Indian Affairs to stop such delegations, summoned the Indians to his office and told them that they could not leave the reservation. James Keokuk told the agent:

“We will go where we please, when we please, independent of the Commissioner or anybody else.”

The Indians then left the reservation against the orders of the Indian agent. The agent then wired his supervisor for instructions and was informed to stop the delegation. The Indians at this time are at the train station and refuse to turn bank. The agent responded by filing a complaint with the U.S. marshal who then arrested them. The Indians spent the night in jail and were released the following morning with a writ of habeas corpus.

The Indians were tried in a district court in Topeka and the judge found that the prohibition against travel could not be enforced as there was no law restricting Indian travel. The Indians, however, did not let the matter drop: they filed suit against the Indian agent, the marshal, and the jailer, charging them with false arrest and suing them for damages.  

In their suit, the Indians asked for $40,000 in damages. Eventually, the cases against everyone except for the Indian agent-Albert Wiley-were dismissed. Wiley was convicted of false imprisonment and ordered to pay $1,900 in damages and court costs.

Wiley appealed and the case-Wiley v. Keokuk-made its way through the legal system. In 1870, the Supreme Court of Kansas reaffirmed the original verdict. The Court found that the Commissioner of Indian Affairs had overstepped his authority in having Indians restricted to the reservation. The attorney for James Keokuk argued that this case

“involves a great constitutional question: an exercise in arbitrary power; a violation of our magna charta; an attempt to destroy liberty of all the domestic dependent nations, with who we are connected by treaty stipulations.”

He went on to say that the basic issue

“involves the question whether the orders of an inferior executive officer can have the force of law, makes slaves of free men because their skin is red, and order their imprisonment should they dare to disobey his orders.”

Bureau of Indian Affairs

The Kansas Supreme Court awarded James Keokuk $1,700 in damages and Wiley had to pay an additional $686 in legal fees and court costs. The Bureau of Indian Affairs paid Wiley’s bills from its contingency funds.

While Indians who attempted to leave their reservations continued to be cajoled, threatened, and denounced by Indian agents, their supervisors, and the Commissioner of Indian Affairs, there was never again an attempt to jail an Indian delegation to prevent it from going to Washington, D.C.

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