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Articles on Wisconsin legal history
Law and Wisconsin's Indians
Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612
White settlers began moving to Wisconsin in large numbers in the 1820s, and it soon became clear that one way or another the Indian tribes inhabiting Wisconsin -- the Sauk and Fox, the Menominees, the Chippewas, the Winnebagoes (now known as the Ho-Chunk Nation) and the Potawatomis -- would have to give up their lands to the whites.
Indians and whites had fundamentally different views of property. The great Sauk chief Black Hawk explained:
My reason teaches me that land cannot be sold. The Great Spirit gave it to his children to live upon, and cultivate, as far as is necessary for their subsistence; and so long as they occupy and cultivate it, they have the right to the soil. Nothing can be sold.
To whites, this view was inconceivable: private property ownership was "the grand conservative principle of the social state." Even whites who were sympathetic to the Indians, such as Chief Justice John Marshall of the U.S. Supreme Court, agreed that "to leave [Indian tribes] in possession of their country was to leave the country a wilderness." To them, such a choice was simply unthinkable.
The federal government did not ride completely roughshod over the tribes in taking land but tried to treat the tribes fairly within the limits of white laws. Congress, the federal courts and James Doty, Wisconsin's first territorial judge, made a real effort to develop a legal system which could be used to manage the withdrawal of the tribes in an orderly manner, minimize violence and protect whites and Indians from each other.
They did this in three main ways. First, the U.S. Supreme Court decided that legally, Indian tribes had to be treated as independent nations. Only the federal government could negotiate with them for land: settlers could not grab land privately. The tribes were entitled to occupy their land as long as they wanted, and the federal government could only get the land by negotiating treaties with them. The pressures of white settlement forced many tribes to make treaties on unfavorable terms but the treaty system imposed some order on the process and gave the Indians some real, if modest, benefits.
In addition, Congress passed a series of laws between 1790 and 1834 giving Indians some legal protection against white settlers and traders. Indians who were victims of robbery and other crimes by whites could seek relief directly from American courts. If whites who were found guilty of robbery did not repay the Indians, the government would do it instead.
Congress also made extensive efforts to prevent white traders from taking advantage of Indians. This was a difficult task in Wisconsin. Federal officials found it difficult to get Wisconsin juries to convict traders. Daniel La Roy, an early federal attorney, complained: "Almost the whole community on the frontiers is under the influence [of the traders] and very many of them Guilty of the same violations of the Laws."
Judge Doty was unusually knowledgeable about Wisconsin Indians' way of life and sympathetic to their difficulties in coping with the ways of the whites. Among his other accomplishments he compiled the first dictionary of the Sioux language. Early in his career Doty defended Ke-taw-kah, a Chippewa accused of murdering a white man. Doty argued that because the killing had taken place on Chippewa lands international law applied and the case should not be tried in an American court. Doty lost his case, but after he became a judge he threw out many jury verdicts against Indians because he was convinced that Indian defendants had simply followed the long-standing customs of their tribe.
Displacement of Wisconsin's tribes by white settlement may not have been just but it was inevitable. Congress and Doty helped make the process less violent than it would otherwise have been, and their efforts to help the tribes adjust to the new order of things were sincere if not always successful.
Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.