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===== page 2 =====

and the
TRAGEDY ¢ WHITE EARTH
KEN PETERSON interpreted the law favorably to ber, particularly white pine (a source
Euro-Americans, and, most signifi- for regular income) in the east; and
- 1905 MOST OF THE 750,000 cant, members of Congress looking in the middle, substantial woodlands
acres of White Earth Reserva- out for non-Indian economic con- of pine and hardwoods amidst lakes
tion in northwestern Minnesota cerns. Tying together these interests and streams, a good environment for
belonged to members of the Min- and helpers was one indispensable hunting, fishing, and wild-rice har-
nesota Chippewa Tribe, either as individual: Minneapolis attorney vesting. Despite promises and federal
individual allotments or as property Ransom J. Powell. Though his chief incentives to relocate, fewer than 35
held in trust for the tribe by the fed- clients were timber companies, at percent of the Ojibwe ever moved to
eral government. Over the next five one time or another Powell either White Earth from their homes near
years, in what historian William W. represented or worked closely with lakes such as Mille Lacs, Leech, Cass,
Folwell called the “Tragedy of White all who had a hand in dismantling and Winnibigoshish.”
Earth,” most of that land was lost to White Earth Reservation. In 1867 when the treaty was
non-Indians. White Earth was established by made, Congress favored vesting
A variety of Euro-American an 1867 treaty between the Ojibwe tribes with authority over reserva-
interests were responsible for this and Congress, with the idea that all tions. During the next few decades,
wholesale transfer of property: tim- Minnesota Ojibwe, except members however, non-Indian reform groups
ber companies wanting to log the of the Red Lake band, would live came to believe that destroying tribal
reservation’s pinelands, farmers de- there. The area was a square—36 authority and encouraging private
siring a share of the rich Red River miles on each side—comprising 36 ownership of reservation lands would
Valley soil, speculators understand- townships and 1,296 square miles in secure a better future for Indians,
ing the property’s real value, and Becker, Clearwater, and Mahnomen whose very survival depended upon
banks wishing to expand their busi- counties. The land was physically their “Americanization.” While these
ness, At different times, these parties varied with good soil for farming in “friends of the Indian” supplied the
were assisted by sympathetic Indian the western townships; plentiful tim- intellectual rationale, much of the
agency staff, federal judges who, in
the fashion of the era, consistently
Ken Peterson, Minnesota's commissioner of labor and industry, began his career as
a legal services lawyer on the Leech Lake Reservation. For eight years as a deputy
FACING: Horse-drauwn wagon in a forest attorney general, he coordinated the State of Minnesota’s legal relations with tribal
of Norway pine, Elbow Lake, White Earth governments.
Reservation, April 1901
Fall 2012 89
521


===== page 3 =====

At one time or another Powell either represented
or a in
worked closely with all who had hand
dismantling White Earth Reservation.
political muscle behind the allotment today for the light his work throws schooling in several southern Minne-
movement came from the pressures upon the making of Indian policy in sota towns, he went on to attend and
of land-hungry settlers and other the early 1900s and the methods he graduate from Hamline University.®
economic interests.’ used in representing his clients.° Next, Powell engaged in several
The reformers’ ideas became businesses. For two years he was
national policy in 1887 when Con- superintendent of the Mankato Gas
gress approved the Dawes Act, which ANSOM POWELL was born in Light Company and later supervised
called for allotting parcels of land to 1865 in Pine Island, Minnesota, the city’s first electric plant. In 1890
individual Indians and then selling the third of five children of promi- he opened the plumbing firm of Wil-
the remainder of the reservation to nent circuit-riding Methodist lard and Powell in Duluth, supplying
white settlers and companies. This minister John Walker Powell and his heating and plumbing systems to
policy paved the way for the eventual wife, Rhoda Powell. After public commercial buildings. Powell mar-
loss of Ojibwe property on White
Earth.*
Though this loss has been well
described and analyzed, Powell’s role
in the debacle has not. One reason
may be that he was not a political
leader assembling a coalition, a
businessman building an empire, or
an intellectual melding words into
enduring precepts. Instead, Powell
was a practical lawyer, representing
clients with whatever tools he could:
unique legal theories, thorough in-
vestigations, intelligence gathered
by his agents, hard work, and, most
important, relationships. In what
lute conflict of interest, he even got
today would be considered an abso- OJIBWE
|
himself named head of the federal RESERVATION
panel that decided which White LAND ;
Earth tribal members the govern-
ment would protect from his own
clients and other land purchasers.
When Powell is judged by his accom-
plishments on behalf of his clients,
he succeeded fabulously. Beyond the
central role he played in dismantling
Indian ownership of White Earth
Reservation, Powell is also of interest
90 Minnesota History
522


===== page 4 =====

ried Abbie Davis of Mankato in 1891.
They had a son and daughter.’
In 1899, at the age of 34, Powell
received his law degree from the
University of Minnesota and began
a legal practice in Mankato. After a
few years there, he joined Minne-
apolis lawyer A. Y. Merrill in a firm
representing a number of lumber
companies, both inside and outside
of Minnesota. He remained with the
same firm throughout his legal career
except for 1904-05, when he man-
aged a mining company in Nome,
Alaska, on behalf of several clients.
According to a memorial deliv-
ered to the Hennepin County Bar
Association after his death, Powell
was a many-sided man. He was an Ojibwe men lining up for land allotments, White Earth Indian Agency, about 1890.
accomplished pianist and composer Agent Simon T. Michelet, later accused by congressional investigators of “fraudulent
whose work was played in Twin Cit- partiality” in assigning allotments, sits at center.
ies churches. He was also a poet and,
in his later years, under a nom de new, large mills had been built in acquired great areas of these town-
plume, wrote a delightful children’s nearby Cass Lake and Bemidji.* Both ships at below-market prices.°
book about a mischievous penguin. American-born and immigrant farm- The next significant step was in
Of Powell’s representation of lumber ers coveted the rich soil of the reser- 1902, when Congress opened the
firms, the memorial states: vation: tens of thousands of acres reservation to Euro-Americans for
that were off limits to them. By 1902 the first time by allowing heirs to al-
He enjoyed nothing more than railroad lines ran near the reserva- lotments to sell them to non-Indians
living in lumber camps where, tion’s northern and southern bound- with the approval of the Interior
from day to day, he could see and aries and along its western edge. Department. Initially, only a few
come to understand the methods In measures over 15 years, Con- non-Indians owned agricultural
of operation and business hazards gress, led by its Minnesota members, property on the reservation. But
and difficulties of those whom he stripped away many of the original White Earth’s approximately 500
represented in the courts. This protections for White Earth. The million feet of white and Norway
combination of practical and the- first step was in 1889 when the Nel- pine was very attractive to timber
oretical knowledge made him a son Act, sponsored by Minnesota companies which, as one of Min-
difficult and respected opponent. congressman (later senator) Knute nesota’s preeminent industries, had
Nelson, implemented the Dawes Act access to the state’s political leaders.
in Minnesota by providing 80-acre Those leaders responded. In 1904
T= PRESSURE to open White allotments of primarily farmland to a two-part congressional process
Earth to non-Indians resulted at every adult Ojibwe. The reservation’s opened White Earth for logging.’°
least in part from economic changes timberlands, however, remained The key to this process would be le-
that by 1900 had come to northern held in trust for tribal members. gally differentiating, in the parlance
Minnesota. The lumber industry had The Nelson Act also took away four of the times, full bloods (those of .
—
moved north from the St. Croix River of the reservation’s 36 townships. total Ojibwe ancestry) from so-called
valley in search of more pine. By Foreshadowing what was to come, mixed bloods.
1900 three out of four of the world’s the same timber companies that later While many White Earth families
largest mills were in Minnesota, and logged most of the reservation’s pine had few Euro-American ancestors,
Fall 2012 91
523


===== page 5 =====

others were the products of gen- would pinelands be owned in com- and threatened to sue. Of Shevlin,
erations of intermarriage. Over the mon for tribal members’ benefit. the Indian office's logging superin-
centuries, some mixed-blood people Instead, individual Ojibwe owned tendent, Joseph Farr, in 1905 wrote,
had played intermediary roles be- these tracts.” “He has been connected to a large
tween Euro-Americans and more Timber companies still had one extent with every timber scandal on
traditional, subsistence-oriented In- major obstacle, though: the Office reservations in Minnesota since I
dians, serving as merchants, traders, of Indian Affairs. After issuing the can recall.”
and surveyors. Other mixed bloods timber allotments, the Indian of- Powell never had to file his
lived lives of tradition. To the Ojibwe, fice in the fall of 1905 attempted to threatened suit. Instead, Shevlin, a
the differences had more to do with maximize profits for White Earth former Republican Party national
culture and lifestyle than with blood members by packaging all for-sale committeeman for Minnesota, went
quantum. For example, White Earth timber as one unit and selling it at to work on his congressional con-
allottee Nee geshig wrote to Powell, auction. Wisconsin lumberman Fred tacts. He persuaded Senator Clapp,
“I don’t know or remember any of Herrick had the highest valid bid, a Republican, to intercede with the
my grandparents, whether they had yielding the Indians $600,000 more executive branch to have the public
any whites’ blood. They were Indians than his nearest competitor." sale set aside. Clapp succeeded, aided
and lived like it.”" Some government by a serendipitous telegram from
officials, however, mistakenly as- five White Earth chiefs, complaining
sumed that, since some mixed-blood T THIS POINT, POWELL made of low prices, followed by a meeting
people succeeded in entrepreneurial his first appearance in White with President Theodore Roosevelt,
activities like farming and business, Earth's history, representing Her- Interior Secretary Ethan Hitchcock,
all were sophisticated in the ways of rick’s two closest competitors: and Indian Affairs Commissioner
non-Indian society. Minnesota-based Lyman Lumber Francis Leupp.”
This assumption that having and Nichols-Chisholm, both con- The state's timber barons, of
some European ancestry led to a trolled by Minneapolis businessman course, did not want to pay any more
better understanding of the market Thomas L. Shevlin. Making ques- than necessary for White Earth pine.
economy underlaid the congres- tionable assertions, Powell claimed Nor did they want to risk losing out
sional actions toward White Earth that both companies had higher bids on another single-block sale. They
that followed. The first step was wanted to obtain timber directly
taken by one of Minnesota's U.S. from individual Indians, away from
senators, Moses E. Clapp, a former federal protection. Gus Beaulieu,
timber-industry attorney. He suc- mixed-blood editor of the Tomahawk
cessfully attached a provision (the newspaper at White Earth (and, later,
Clapp Rider of 1904) to the Senate's a timber-company agent), agreed. He
Indian appropriations bill, grant-
ing allottees the ability to sell any
timber that happened to be on their
mostly agricultural land. A few days
later, northwestern Minnesota's U.S.
congressman, Halvor Steenerson,
successfully sponsored a bill provid-
ing 80-acre allotments of pinelands
to White Earth members in addi-
tion to the mostly agricultural land
they had already received. No longer
Gus Beaulieu, Tomahawk editor, and the
building shared by the newspaper and a
land office, both photos about 1910
92 Minnesota History


===== page 6 =====

urged the government to “set aside promptly foreclosed. Historian general to appoint a special attorney
every restrictive rule which applies to Anton Treuer cites a case of a man to take the legal actions necessary to
... these allotments, and give those losing his allotment for failing to pay remedy the situation.”
Lmixed-blood allottees] the right to grocery bills. According to a 1909 Marsden Burch, from the Justice
use their own judgments.” Moreover, federal investigation, some deceased Department, was appointed. He
Commissioner Leupp generally tribal members were “actually resur- quickly assembled a staff and began
favored accelerating white control rected long enough to dispose of land collecting information. In the sum-
of reservation resources “for their which they had neglected to convey mer of 1910, Burch started filing suits
own
[Indians’] good.” during life.” Issuing and then fore- asserting that allotments had been
Minnesota's congressional del- closing on mortgages was an wrongfully obtained from both full
egation soon responded. Clapp, inexpensive way to obtain land; the bloods and minors. Eventually, the
chair of the Senate’s Indian Affairs cost for many of the foreclosed-upon government filed more than 2,000
Committee, inserted a provision into 80-acre allotments averaged less challenges to transactions involving
the 1906 appropriations bill remov- than $4 per acre for land that, in over 2,500 allotments and 142,000
ing the major remaining obstacle to some cases, was worth anywhere acres of land. Powell’s timber-
wide-scale logging. The Clapp Rider from $25 to $300 per acre.’ company clients had already logged
of 1906 lifted all restrictions on sales Federal agents, too, trafficked in most of the contested parcels”? In
of White Earth lands by mixed-blood reservation land. A recent survey by the short term, they wanted to log the
Ojibwe, excepting minors. Also, full White Earth Community College stu- remaining allotments, and in the long
bloods were allowed to sell their dents found that reservation agent term they wanted protection from
lands if the Interior Department Simon T. Michelet bought and sold the government's lawsuits. So Powell
judged them competent. The bill more than 100 parcels during this devised a set of strategies that elimi-
became law and within three years, time under the alias of C. M. Martin. nated many of the lawsuits, slowed
85 percent of White Earth’s land had Even Powell, who later represented progress on the remaining ones, and
passed into private hands at minimal Michelet on several transactions, ultimately ensured that most of his
cost to the purchasers.” was concerned that his client had clients’ purchases were protected for
The chief means for taking al- swindled a mixed-blood woman out a comparatively small cost.
lotments out of Ojibwe hands were of her property.”
mortgages, often issued to an al- After foreclosures, timber compa-
lottee by a mixed-blood agent for nies quickly acquired property with Oz STRATEGY was to protest
timber companies or developers. In white and Norway pine and immedi- the ability of the federal govern-
exchange for a mortgage with inter- ately began clearing it. By 1909 three ment to represent Ojibwe who had
est due in advance, Ojibwe typically companies—Nichols-Chisholm, Park lost their land. Presumably, Powell
were paid $275 in cash plus $25 for Rapids, and Wild Rice—possessed knew that the Indians would not be
“reserving” the mortgage until the most of the reservation’s merchant- able to afford their own lawyers and,
1906 Clapp Rider took effect. Lured able pine. Shevlin’s congressional and therefore, depended on federal rep-
by the promise of ready cash, many White House lobbying had paid off. resentation. In a 1909 exchange of
full-blood people signed affidavits Nichols-Chisholm, which he owned, letters with a Detroit Lakes banker,
claiming that they were mixed bloods wound up with more than half of Powell said he was considering the
in order to mortgage their allotments White Earth’s timber.”! idea that the federal government
without government oversight. By then, Powell represented each was barred from bringing suit on
Similarly, minors claimed they were of these timber companies. They behalf of individual allottees. His
adults. During the first three weeks needed his representation, since rationale was that the U.S. Consti-
that the Clapp Rider was in effect, R. G. Valentine, newly elected Presi- tution granted Congress authority
Becker County alone recorded more dent William Taft’s commissioner of to handle relations with tribes, not
than 250 mortgages.® Indian affairs, promised to “get to individuals.**
In a few months, when individu- the bottom of the thieving” at White Seven years later, as federal hear-
als fell behind in their mortgage Earth. In 1909 he ordered an inves- ings on the suits were in process,
payments, their property was tigation and asked the U.S. attorney the U.S. Supreme Court upheld a
Fall 2012 93
525


===== page 7 =====

modified form of Powell’s theory, with these Indians and half breeds
ruling that the federal government we have to contribute to their sup-
had no authority to sue for dam- port in order to get satisfactory
ages on behalf of mixed bloods who information.” Some of Powell's
were defrauded of their allotments. “support contributions” were for
Powell had also successfully used the goodwill, such as sending a check for
same argument in 1915 before Min- a reservation anniversary celebra-
nesota’s chief federal district court tion. Others provided direct aid to
judge, Page Morris, whom Powell the impoverished (in one case, a win-
presumably had known since he was ter coat) or paid helpful mixed bloods
a Duluth businessman and Morris for interpreting services.”®
was city attorney. Morris ruled that With Euro-Americans, Powell
once a minor reached adulthood, the —- — was more straightforward. In a let-
federal government could not bring Federal judge Page Morris, 1921 ter to M. J. Kolb of Bagley, a client
actions alleging fraud since an adult who owned several banks and land
could do so in state court.?° ally would represent. Lacking clear companies, Powell relayed another
Powell’s toughest legal challenge title, Powell’s clients wanted a new client’s advice about a litigation
was finding out which allottees were roll with fewer full bloods and more witness: “Almost any other person
mixed bloods, legally free to sell their mixed bloods who, under the 1906 with whom Nancy Ayne-wausch is
land, and which were full bloods. Clapp Rider, could transfer their acquainted could go to her and, for a
The federal government had already property. small payment, procure a complete
conducted two efforts to identify Thus, Powell quietly began to as- disclaimer of any papers she had
group. own
members of each First, during semble his ancestral roll. His executed.” 9
the 1909 investigation into reserva- first step toward procuring evidence A collateral benefit of Powell’s
tion fraud, anthropologist Warren of non-Indian ancestry was to estab- bureau was that his agents provided
Moorehead and Indian inspector lish what he would later call “a sort reservation intelligence. Hurr was
Edward B. Linnen prepared an en- of bureau” at White Earth, which particularly useful as an advocate for
rollment list that identified 591 full operated from 1910 to 1915. He em- the interests of Powell’s clients. For
bloods. Since they were not able to ployed several Ojibwe as agents who example, in June 1912 he reported
reach everybody on the reservation, interviewed hundreds of allottees that Thomas Harper of the Justice
a second attempt was made the fol- and family members. Much of the Department was telling Indians to
lowing year by White Earth special work was coordinated by N. B. Hurr, stand by their contentions that they
Indian agent John H. Hinton. He a former Pine Point boarding-school were full bloods.*°
took information from allottees, principal who had helped Linnen There is no question that, despite
their parents, and older Indians ac- and Moorehead collect their roll. his cynical approach to gathering
quainted with family history. What Hurr also owned a land-and-loan evidence, Powell had good relations
came to be referred to as the Hinton company in the reservation village of with many White Earth Ojibwe.
Roll designated 927 White Earth Ponsford. To pay his agents, Powell Letters from them often call him
Ojibwe as full bloods.¢ assessed lumber companies and “My dear Friend.” One mixed blood
Many of the people that Hinton other clients, who contributed in man, Edward Tanner, called Powell
identified as full bloods had, with- proportion to the number of govern- his “younger brother” and Powell,
out legal authority, either sold their ment suits against them. According in turn, called him “my dear older
allotments outright or lost them to historian Folwell, compiling brother.’ That relationship, too,
through mortgage foreclosure. Most Powell's genealogy cost $20,000 benefited Powell. Tanner ultimately
of the improperly transferred prop- (about $430,000 today).?? turned his property over to Powell in
erties were in the hands of timber At times, Powell and his agents exchange for monthly checks. After
companies, but some were held by paid tribal members directly. He Tanner died suddenly, Powell bought
farmers and speculators, many of summed up his philosophy in a let- the property at a value set by the
whom Powell represented or eventu- ter to a St. Paul attorney: “In dealing Interior Department.”
94 Minnesota History
526


===== page 8 =====

|
Ransom J. Powell and three Indian thes
ne Styrene
women. probably at White Earth
ee
Reservation. about 1910
Powell told historian a
\
Years later,
a
a)
in y
Folwell that, putting together
‘
his roll, he would select “a remote,
but fully authenticated, ancestor
...and then carefully and painstak-
ingly search out and establish all of
the living and dead descendants.”
Using cross-references derived from
their interviews, he and his helpers
traced a network of marriages and
the resulting children. The process
took several years and resulted in de-
tailed records of 92 extended family
groups. Finding some European an-
cestry was not particularly difficult,
since Ojibwe people had been inter- Nelson and Clapp and Representa- Congress. It called for a two-person
marrying with European traders and tive Steenerson at the Detroit Lakes enrollment commission charged with
trappers for about 200 years.*? Commercial Club. In attendance determining the “fractional amount
Much of this genealogical infor- were more than 100 farmers, busi- of Indian ancestry” of every White
mation may have been accurate but, nesspeople, and timber-industry Earth allottee. As Powell told Hurr,
because of its hearsay nature, could representatives, including Powell. his agent, “The purpose of the bill is
not be used for legal evidence. Powell Most had bought reservation lands to establish a basis for quieting all
told Folwell that his roll, from a legal and now, as defendants in the gov- of the titles on the Reservation.” The
Justice Department would appoint
one commissioner, and the Min-
Despite his cynical approach to gathering nesota federal district court would
name the other. On December 31,
1912, Powell met in Duluth with
evidence, Powell had good relations with
many White Earth Ojibwe. have federal to judge appoint Morris, Powell who at may this
time.**
Three days later, Powell boarded
standpoint, was “a monument of no ernment suits, feared losing rights to a train to Washington, D.C. His trip
particular value,’ while acknowledg- what they considered their property. was successful. Both the Justice and
ing that it would have considerable Also present were some mixed bloods Interior departments agreed to back
historical interest. However, Powell who were being sued by special U.S. the measure. On January 24, 1913,
probably used the information in attorney Burch for facilitating im- Steenerson introduced the commis-
his next, more successful, effort at proper land sales. The congressmen sion bill in the House, and Clapp
creating a definitive White Earth promised to consider new ways to introduced it in the Senate as an
blood-quantum roll. resolve the lawsuits and, implicitly, amendment to that year’s Indian ap-
reduce the number of enrolled full propriations bill.*
bloods, thereby making the land pur- In April 1913 Powell wrote to
T HIS NEW TACTIC may have chases more secure.*? Hurr that the bill was sound. Based
been conceived at a November Within the next few weeks, on “all probability,” he would be
23, 1912, meeting with Senators Powell wrote a bill to be presented to one commissioner, and the other
Fall 2012 95
527


===== page 9 =====

appointee “must be satisfactory to Since the suits hinged on who was
the parties I represent.” Congress mixed blood and legally entitled to
approved the measure, funded at transfer land under the Clapp Rider
$5,000 per year, on June 30. Powell of 1906, the first step for Powell and
was appointed by Judge Morris soon the government attorneys was get-
after enactment and the Justice ting a judicial definition of mixed
Department chose attorney Gordon blood. Earlier efforts had failed,
Cain. (In 1916 Commissioner Cain including Clapp’s proposed 1912 stip-
joined Powell’s law firm to handle ulation that “those having any trace
Indian land title cases.)** of white blood be classed as mixed
We do not know how much bloods.”*° Nor did the law setting
Powell was paid for his work on the up Powell’s enrollment commission
commission. However, assuming he define “mixed blood.” That left the
and Cain were paid $2,000 each and definition up to the courts, which is Senator Moses E. Clapp. about 1905
$1,000 was set aside for expenses, likely where Powell wanted it.
Powell would have annually earned Powell and federal prosecutors chief prosecutors was a major prob-
today’s equivalent of $42,318. It is agreed on a test case, which was tried lem for the government. Marsden
likely that he earned much more than in 1913 before none other than Judge Burch, appointed by the Taft ad-
that, since Cain was already on the Morris. The government assumed ministration in 1910, brought more
Justice Department payroll and pre- that mixed blood meant one-half than 1,000 suits in his first year but
sumably could not be paid twice as a or more non-Indian ancestry. But quickly ran into the problem of es-
government employee.*” More impor- Morris ruled that being one-eighth tablishing blood quantum for the
tant, Powell’s work as commissioner Indian was enough to qualify. Both people he was trying to protect. After
benefited most of his clients—who the government and the timber com- a time, Burch also found working
were already paying him. panies appealed. The Circuit Court with timber-company representa-
Powell also used his new position of Appeals and the U.S. Supreme tives much better than he thought,
to generate fees from non-clients. For Court in June 1914 (United States v. deeming Powell and others to be
example, responding to a letter from First National Bank) gave the phrase “very tractable” and “very decent in
attorney Frank D. Beaulieu of White even broader meaning, as Clapp every way.’ *
Earth, Powell first explained the dif- had earlier wished, ruling that any The Wilson administration in
ficulties of getting the government to non-Indian ancestry, no matter how March 1913 selected a more aggres-
approve mixed-blood status in order small, made an individual a mixed sive lead prosecutor, Charles Daniels.
sell a parcel. Then, Powell offered blood—and thereby capable of sell- In 1915, with all parties frustrated at
to have the commission approve the ing his or her allotment.“ the long delay, hearings finally began
matter for a payment of $25 (about Not only was the First National in St. Paul before a federal special
$310 in 2012) to his firm.® Bank ruling an important victory for magistrate, George O’Reilly. Daniels
Today, it is inconceivable that Powell, but waiting for it until] 1914 won his first case, convicting Powell’s
a supposedly neutral federal judge had also slowed decision-making on client, banker and developer M. J.
such as Page Morris would give the other cases, a big advantage for his Kolb, of “criminal conspiracy and in-
lead defense attorney in complex and clients. One later writer observed, ducing federal officials to issue land
critical litigation a key role in decid- “Powell’s strategy had always been patents to full blood As he
ing who could sue his own clients. to outwait, not outwit, the federal continued trying cases before Magis-
Even at the time, conflict-of-interest prosecutors.” *? In fact, Powell did trate O’Reilly, Daniels was hampered
questions were raised, notably by both. While the litigation ground on, by the Supreme Court’s decision on
President Woodrow Wilson’s interior the timber companies continued to blood quantum and by Powell's suc-
secretary, Franklin Lane. Never- log their White Earth properties. As cessful contention before his patron,
theless, Powell remained on the they did, the value of those lands de- Judge Morris, that individuals who
commission until it was disbanded creased substantially. were no longer minors should bring
in 1920.°9 At the same time, turnover of their own cases in state court. Add-
96 Minnesota History
528


===== page 10 =====

ing to Daniels’ problems, Powell
was interposing motions and asking
for continuances that Folwell later
characterized as “appropriate for
procrastinating litigation.” Ironically,
considering that Powell was respon-
sible for most of the delays, in early
1916 Daniels was dismissed due, at
least in part, to charges that he was
unnecessarily slow.**
Daniels’ successor, Francis J.
Kearful, determined that, since a
decade had passed since many of the
frauds had occurred, it would be dif-
ficult to prevail at trial due to lack of
witnesses and faulty memories. So,
in most disputes he sought out-of- Anthropologist Albert E. Jenks, 1932, when his career focused on archaeology
court settlements. Thus, most of the
challenged White Earth transactions Hrdliéka, head of anthropology at Minnesota.” The results were messy
were never considered by a judge.* the Smithsonian Institution. He was and in many cases, dubious. Children
Kearful and Powell, in his role as assisted by the University of Min- with the same parents were classified
attorney for the defendants, worked nesota’s Dr. Albert E. Jenks, later to differently, and full-blood children
out a three-part general arrange- become the first chair of the school’s were attributed to mixed-blood
ment: Land would be restored to full anthropology department.*” parents.*®
bloods; the cases involving mixed In 1915 and 1916, Hrdliéka and Since his clients were paying for
bloods who were competent to sell Jenks examined 696 allottees who the anthropologists, Powell did not
would be dismissed; and others who claimed to be full bloods, comparing hesitate to say which Indians ought
were defrauded, such as minors, their physical attributes to the Pima to be examined first. For example,
would receive the difference between Indians of the southwestern United in July 1915, even before the Kearful
their original payments and the fair States, whom the anthropologists compromise, he instructed Hurr to
value of the property at time of sale, considered the most racially “pure” have Jenks examine all descendants
plus six percent interest to the time American Indians. They carefully of Wa-Boose and those of any others
of settlement.’ Significantly, no rem- measured and calibrated hair, eyes, who were currently suing.*® Because
edy was established for mixed bloods nails, gums, head shapes, and teeth Powell had completed his own roll,
who had been defrauded. of White Earth Ojibwe and com- it is likely that he directed Hrdlitka
The Kearful-Powell compromise pared this data to measurements of and Jenks to focus on allottees he
required the enrollment commis- the Pima. Another exam involved thought were most likely to be found
sion to determine who was mixed pressing a fingernail across a sub- as mixed blood.
blood and who was full blood under ject’s chest to see how irritated the
the criteria of the Supreme Court’s skin became. The more an Ojibwe
1914 First National Bank ruling. The person’s physical attributes resem- HROUGHOUT MUCH of 1915
commission was helped in that effort bled a Pima’s, the more likely she or and 1916, Hrdlitka and Jenks
by two practitioners of the emerging he would be considered a full blood either testified in hearings pre-
social science of physical anthro- by the anthropologists. They also sided over by Magistrate O'Reilly or
pology, whom Powell hired with measured attributes of 100 French- supplied testimony through deposi-
timber-company funds in late 1914— men and 50 Scots, who were, in tions. Though the anthropologists
after the high court’s decision but Jenks’ words, “the two racial groups claimed otherwise, they could not
before his compromise with Kearful. contributing most of the ‘white prove the “fractional amount of In-
Powell’s lead expert was Dr. Ales blood’ to the mixed blood Indians of dian ancestry” required by the 1913
Fall 2012 97
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===== page 11 =====

S f
Among the things revealed are
the following: Both Hrdlicka and
myself have hair of most typical
negro type and the Scandinavians
have hair more circular in cross
section than our pure blood Pima
Indians. I am not sure yet just
what these facts mean; but either
the old classification of human
races by hair texture is not of
scientific value or Dr. Hrdlicka
[a Bohemian immigrant] and
I are related to the negro, and
the Scandinavians are simply
bleached out Mongolians.
Yet after the work was completed,
Powell thanked the University of
Minnesota's Board of Regents for
allowing Jenks to assist him and
commended the results, which “had
the effect of demonstrating the unre-
liability of the Indians’ testimony.”
Ultimately, Powell's enrollment
commission formally approved the
three-part Kearful-Powell compro-
mise, thereby disposing of hundreds
of suits. The remaining settlements
were issued after Judge Morris ac-
cepted the commission’s roll in
From Powell's papers: Louisa Fineday’s 1920 letter to the enrollment commission. November 1920. Informally referred
complaining that her family was misclassified and requesting a response— to as the Powell Roll, it remains to
and Powell's reaction. this day the basis for membership in
the White Earth Band and for claims
enrollment-commission law. Em- before the roll was finalized in 1920. regarding federal or state benefits.*?
powered by the 1914 Supreme Court The anthropologists claimed that Were the findings accurate? On
decision on blood quantum, Powell more than 500 of the 927 listed as one hand, Powell and his agents
arranged for an amendment to the full bloods on the Hinton Roll were spent a great deal of time research-
1917 Indian appropriations bill that mixed bloods. This meant that few ing ancestry by meeting with people
allowed the commission to record White Earth members received their involved. On the other, the anthro-
only whether a tribal member was land back. Still, years later, Powell pologists’ theories and methods
mixed blood or full blood, instead of complained to historian Folwell that have rightfully been discredited.
setting out fractions.©° the work of the anthropologists was Besides, Powell had every incen-
Not surprisingly, Hrdli¢ka and “greatly hampered by the refusal tive to bend facts to fit his clients’
Jenks reported highly favorable of doubtful Indians to permit an interests. Nevertheless, overturning
results for Powell’s clients. Of the examination.” the findings today would be very dif-
5,173 White Earth allottees, only Even Jenks had doubts about his ficult, since they were upheld by the
4.08 were considered to be full tests. After they were finished, he court to which Congress assigned
bloods—and 306 of them died told Powell jurisdiction.
98 Minnesota History
930


===== page 12 =====

P OWELL FINISHED his work at reservation. Of the 99.5 percent of than 100 title opinions on reserva-
the right time, since by 1920 White Earth that was allotted, 94 tion parcels.*®
significant logging on White Earth— percent was sold to non-Indians by
and in most of Minnesota—was 1933. The tribal government itself
done. The last lumber mill in Min- owned 810 acres, a little more than D UE TO ILL HEALTH, Powell re-
neapolis closed in 1919. Smaller mills one-tenth of one percent of the tired from law practice in 1932.
remained in northern cities and land.5° He died at his home in Anoka on
towns, but the great timber compa- Still, the most lasting effect of November 14, 1937. His Minneapolis
nies were focusing their energies on Powell’s work may have been de- Journal obituary called him a “pio-
the Pacific Northwest.** creasing the number of individuals neer lawyer” and pointed out that
Powell’s chief clients, the two who could be considered full blood. he gained national prominence for
largest timber companies, came His results were dramatic. The 1900 defending lumber companies against
out extremely well in the litigation. census reported that 44 percent of title actions. It noted that Powell had
According to figures he provided Fol- White Earth Indians were full blood. been a recognized expert on Indian
well in 1926, Nichols-Chisholm paid In 1910 the number had shrunk to 15 treaties and laws.°? Nothing was said
out only $48,497 and its sister firm, percent, and in 1930, after Powell's of the White Earth Ojibwes’ loss of
Park Rapids Lumber, only $23,015. advocacy was complete, only 1 per- their lands.
Those were small sums compared cent were considered full blood.*” Powell’s historical role was de-
to what the same companies earned By 1917 Powell and his law part- fending the actions by which White
from the timber. Lacking solid cost ners had found a new profitable line Earth members lost their lands and
data, it is impossible today to as- of business—issuing title opinions then delaying resolution of disputes.
certain their profits. One thing is on White Earth lands. The firm was In legislative, judicial, and adminis-
clear, however: profit margins were ideally situated for the job, since trative arenas, his skills, hard work,
substantial. White Earth Superinten- both Powell and his firm’s newest and relationships prevailed again
dent John Howard told government member, Cain, were the commis- and again on behalf of his clients. He
investigators that the average value sioners who decided which White made the prospects of justice for in-
of timbered allotments was about Earth members could transfer their dividual Indians much more difficult.
$8,000. While a few sellers received property. Title examinations were From 1907 to 1920, more than any
that much and more for their allot- conducted rapidly. For example, on other individual—Indian or not—
ments, most parcels appear to have July 17, 1918, the Park Rapids State
been sold for less than $500. Bank requested an opinion and the Crookston Mill and Lumber Yards, Bemidji.
The combined consequences of task was completed the next day. One one of Thomas Shevlin’s companies.
the congressional allotment policy land buyer alone, James Schermer- about 1920. Shevlin died before this post-
and Powell’s advocacy were devas- horn of Chicago (later, Minneapolis), card was made.
tating to Ojibwe ownership on the hired Powell’s firm to provide more
° ; be et AM FAC
. é. &- . MA
é¢ ~~ “- . a we . : . “ . 1
‘* * , .
- ‘ ’ Ty . ~ a w a a at, ~ - > & ra
. 3 ; +, 3: . iF < ak 2 ra ef fi fF , Sy case. .
tet , erie tay a aie ~~ _ - ae
. we ett aa oie as
. : canst, \ . .
FO Been . 1 2° — Oo RecA - .
3 dreenennr-ce8.x tanto +e Rewer Be. . = + ee ; ee
eet
Ty
ee a Tae a Te a Se page ce EAR TE a RRR rr
¥: ee
—_— a . a ga NN Ne Ot a ;
ear Site eo Ray fgg h , _— a nr wale 14 ge te af { . . “Nae aa Get eet . TfBia. . a . a
ng [| ots eg soem we : ee ar | c.2. -— FF _——~ @ = wears” P pave ~m rr - o pal -


===== page 13 =====

Powell dominated decision-making ans, were in a better position to take for compensation. A compromise
affecting White Earth. full advantage of that potential. That in 1986 resulted in congressional
Was White Earth’s fate any worse opportunity was denied them. passage of the White Earth Land
than that of other reservations in Settlement Act. Under the act, al-
the early 1900s? Tribes such as the lottees and their heirs wrongfully
Rosebud Sioux in South Dakota, the T= RESERVATION is slowly deprived of their land were paid the
Kiowa in Oklahoma, and the Sho- recovering from the ravages land’s value at the time of transfer
shone and Arapahoe in Wyoming of a century ago. In 1977 the Min- plus interest to date. The reserva-
also lost substantial parts of their nesota Supreme Court found in tion government also received $6.6
reservations during that time. One Minnesota v. Zay Zah that the tax million for economic development
difference between them and White forfeitures of Powell’s era were im- and 10,000 acres of land from the
Earth was that the latter had rich proper. Prompted by this decision, State of Minnesota. Today, about 10
resources, and the Ojibwe, because of investigations of these and other percent of White Earth is in Indian
their long relationship with Europe- _land transfers produced demands hands.®
Notes
1. William W. Folwell, History of Minne- 7. Here and two paragraphs below Simon Michelet, White
sota, rev. ed. (St. Paul: Minnesota Historical (through quote), Hennepin Co. Bar Assn., Earth Indian agent,
Society, 1969), 4: 261. This article uses the Memorials, 1938; Peter Guy, Percy Penguin
term Ojibwe to designate the people whom and His Pals (St. Paul: Webb Publishing, about 1910
Euro-Americans, over the years, have called 1925), copy in MHS. Powell’s daughter,
Chippewa or Ojibwe (both with variant Alyce Vick, illustrated the book; Powell held Interior Dept., Report
spellings). The tribe is officially the Minne- the copyright. in the Matter of the
sota Chippewa Tribe. 8. Agnes M. Larson, History of the White Investigation of the
2. Melissa L. Meyer, The White Earth Pine Industry in Minnesota (Minneapolis: White Earth Reserva-
Tragedy: Ethnicity and Dispossession at University of Minnesota Press, 1949), 243. tion, 62 Cong,., 3 sess.,
a Minnesota Anishinaabe Reservation 9. 25 U.S. Statutes at Large, 642 (Nelson 1913, House Report 1336,
(Lincoln: University of Nebraska Press, Act). For details of these fraudulent and p. 2281, 1703 (hereinafter,
1994), 56; U.S. Office of Indian Affairs, collusive maneuvers, see Folwell, History, Graham Report).
Annual Report, 1900, 642. For the March 4: 232, 242-43, 249-53. 15. Folwell, History, 4: 275-76; Meyer,
19, 1867, treaty, see 16 U.S. Statutes at 10. 32 U.S. Statutes at Large, 245; Fol- White Earth Tragedy, 151.
Large, 719. Since the Red Lake Chippewa well, History, 4: 265-67. 16. John R. Howard, former White Earth
never ceded their territory to the U.S., 11. Meyer, White Earth Tragedy, 35; Nee superintendent, interview by W. W. Folwell,
Congress in 1886 decided not to seek their geshig to Powell, n.d., microfilm roll 1, June 25, 1926, box 114, vol. 90, William
removal to White Earth. frame 15 (style hereinafter, 1: 15), Ransom Watts Folwell and Family Papers, MHS.
3. D. S. Otis, The Dawes and the J. Powell Papers, MHS. Unless otherwise Folwell compiled these important, valuable
Allotment of Indian Lands (Norman: Uni- noted, all correspondence is in these papers. “Notes on Minnesota History” while re-
versity of Oklahoma Press, 1973), 20. 12. 38 U.S. Statutes at Large, 209, 539; searching his magisterial History. Meyer,
4, For the Dawes Act, see 24 U.S. Stat- Folwell, History, 4: 265-67; Larson, White White Earth Tragedy, 151-52 (Beaulieu).
utes at Large, 388. Congress stopped Pine Industry, 321-25. The Dawes Act 17. 34 U.S. Statutes at Large 325, 353;
making treaties with Indian tribes in 1872. promised 160-acre allotments but was Folwell, History, 4: 277; Meyer, White
Thereafter, it simply passed laws, some- amended so that individuals originally re- Earth Tragedy, 160. Like others who partic-
times after considering views of tribal ceived only 80 acres; Folwell, History, 4: ipated in White Earth’s dismemberment,
members but often not. 266. Almost immediately, many full bloods Clapp resists easy categorization. In 1912 he
5. Meyer, White Earth Tragedy; Folwell, protested—ultimately, to no avail—claiming joined the Progressive Party, excoriating
History, 4: 261-96. For a general legal his- that better acreages were given to mixed “the defenders of special privilege.” For this
tory, see Edward Peterson, “That So-Called bloods; St. Paul Pioneer Press, Nov. 24, apostasy in 1916 the state GOP refused to
Warranty Deed: Clouded Land Titles on the 1905, p. 2. Years later, a congressional com- renominate him for a fourth term, ending
White Earth Indian Reservation in Minne- mittee investigating expenditures accused his political career.
sota,’ North Dakota Law Review 59 (1983): White Earth agent Simon Michelet of 18. Folwell, History, 4: 278.
159-81. Records of Powell’s legal work “fraudulent partiality” in assigning allot- 19. Anton Treuer, The Assassination of
involving White Earth, including corre- ments to those Ojibwe who could most eas- Hole in the Day (St. Paul: Minnesota His-
spondence and the genealogical data he ily be manipulated by lumber-company torical Society Press, 2011), 197; Warren K.
compiled, are in the 15 microfilm reels of representatives; Minneapolis Journal, Jan. Moorehead, The American Indian in the
the Ransom Judd Powell Papers, Minnesota 16, 1913, p. 1. Rep. James Graham (D. IL) United States: 1850-1914 (Andover MA:
Historical Society (MHS). headed the committee, whose findings are Andover Press, 1914), 76.
Se
6. Mankato Free Press, July 24, 1905, generally called the Graham Report. While acknowledging that value varied
p. 1; Hennepin Co. Bar Association, Memo- 13. Folwell, History, 4: 274-76. tremendously from allotment to allotment,
rials, 1938, MHS. 14. Committee on Expenditures in the White Earth Superintendent Howard esti-
100 Minnesota History
532


===== page 14 =====

mated that the average value of 80-acre Sept. 15, 1914, 1: 208; Julius H. Brown to 47. Jenks is better known for his 1930s
timber parcels was $8,000; Moorehead Powell, Jan. 30, 1915, and Powell to Brown, investigations of Minnesota Woman and
_——
said values ranged from $2,000 to Feb. 17, 1915, 1: 231, 234. Browns Valley Man, demonstrating that
$25,000. Graham Report, 115, 73 (respec- 29. Powell to M. J. Kolb, Oct. 24, 1913, 1: Minnesota had been inhabited 9,000 years
tively). White Earth members also lost an 178. Kolb was no stranger to such shenani- ago, much earlier than previously thought.
estimated 100,000 acres through tax fore- gans, as his 1915 conviction in federal court Clark A. Dobbs, “A Brief History of Archae-
closures. Under the state’s interpretation of (see below) would show. ology in Minnesota,” Institute for Minne-
the Clapp Rider of 1906, allotments were 30. YoungBear-Tibbetts, “Without Due sota Archaeology, www,fromsitetostory.org
subject to property taxes which, if unpaid, Process,” 105. For Hurr’s report and follow- /sources/papers/mnhistory/mnhistory.asp
resulted in foreclosure. up, see Hurr to Powell, June 10, Dec. 3, #ref (accessed July 9, 2012).
20. Andy Favorite, instructor at White Dec. 10, all 1912, 1: 102, 117, 119. 48. Ale3 Hrdliéka, “Trip to the Chippewa
Earth Community College, interview by the 31. Edward Tanner to Powell, Aug. 25, Indians of Minnesota,’ Smithsonian Miscel-
author, Aug. 28, 2009; Powell to N. B. 1915, and Powell to Tanner, Aug. 31, 1915, 1: laneous Collections, 66, no. 3 (1915), 74;
Hurr, Dec. 14, 1920, and Hurr to Powell, 201; Mary W. English to Powell, July 8, 1918, A. E. Jenks to W. W. Folwell, May 21, 1926,
Dec. 31, 1920, 3: 547, 564. and Powell to English, July 11, 1918, 1: 503-06. box 52, Folwell papers; Louisa Fineday to
21. Larson, White Pine Industry, 389; 32. Here and below, Powell to W. W. Chippewa Enrollment Commission, Mar. 3,
Graham Report, 1112. As supply diminished Folwell, May 18, 1926, box 51, Folwell 1920, 3: 119-20.
after 1900, prices went up, making White papers. 49. Powell to Hurr, July 9, 1915, 1: 248.
Earth’s timber even more valuable. 33. Detroit Record, Nov. 29, 1912, p. 1. 50. Meyer, White Earth Tragedy, 170.
22. Folwell, History, 4: 284; Graham 34. Powell to Hurr, Apr. 30, 1913, 1: 148. 51. Powell to W. W. Folwell, May 18,
Report, 1351. Telegrams: Powell to Morris and Morris to 1926 (“Statement as to Timber”) box 51,
23. Graham Report, 103-05. Powell, Dec. 30, 1912, 1: 123-24. Morris Folwell papers.
24, A. F. Amundsen to Powell, May 28, served in the U.S. House of Representatives 52. A. E. Jenks to Powell, May 21, 1917,
1909, and Powell to Amundsen, May 29, from 1897 to 1903, when he was appointed 1: 352; Powell to Fred Snyder, Mar. 6, 1916,
1909, 1:59, 65-66. to the federal bench; Bruce M. White et al., 1: 307.
25. United States v. Lucky S. Wailer, 243 Minnesota Votes (St. Paul: Minnesota His- 53. Peterson, “So-Called Warranty
US 452, 37 S. Ct. 430 and 61 L. Ed 843 torical Society, 1977), 224. Deed,” 169.
(1917). A White Earth husband and wife, 35. Folwell, History, 4: 286-87. 54. Larson, White Pine Industry, 398.
both mixed bloods, received $145 for land 36. Powell to Hurr, Apr. 30, 1913, 1: 148; 55. Powell to Folwell, May 24, 1926, box
that the Supreme Court said was worth at Folwell, History, 4: 287. Cain completed 52, Folwell papers; Graham Report, 115.
least $2,500, with timber worth at least an many White Earth title opinions after join- 56. Richard Weil, “Destroying a Home-
additional $2,000. The court acknowl- ing Powell's firm and also authored “Indian land: White Earth, Minnesota,” American
edged, “It is quite evident that the Indians Land Titles in Minnesota,’ Minnesota Law Indian Culture and Research Journal 13: 2
here were incapable of making an intelligent Review 2 (Feb. 1918): 177-91. (1989): 69, 82.
disposition of their lands” but nonetheless 37. Graham Report, 49. 57. Meyer, White Earth Tragedy, 118.
ruled that lawyers employed by the govern- 38. Powell to Frank Beaulieu, Nov. 22, 58. W. R. B. Smyth to Powell, July 17,
ment could not represent the couple in fed- 1919, 2: 491. 1917, and Powell to Smyth, July 18, 1917, 1:
eral court. On the district court decision, see 39. Meyer, White Earth Tragedy, 164. 365-66; James Schermerhorn to Powell,
Holly YoungBear-Tibbetts, “Without Due 40. YoungBear-Tibbetts, “Without Due Nov. 28, 1917, 1: 373.
Process: The Alienation of Individual Trust Process,” 103, citing St. Paul Pioneer Press, 59. Minneapolis Journal, Nov. 15, 1937,
Allotments of the White Earth Anishinaa- May 2, 1912, p. 16. p. 1.
beg,” American Indian Culture and Re- 41. U.S. v. First National Bank of Detroit, 60. William T. Hagan, Theodore Roos-
search Journal 15: 2 (1991): 109. et al., 234 U.S. 245 (1914). evelt and Six Friends of the Indian (Nor-
26. YoungBear-Tibbetts, “Without Due 42. YoungBear-Tibbetts, “Without Due man: University of Oklahoma Press, 1997),
Process,” 104; Folwell, History, 4: 282. The Process,” 107. 91-112.
Hinton Roll was published in 1911 by the 43. Folwell, History, 4: 285 note 6. 61. State of Minnesota v. Zay Zah, 259
Office of Indian Affairs as Lists Showing the 44. Graham Report, 103-05 (Powell was NW2d 580, 1977, cert denied, 436 U.S. 917
Degree of Indian Blood of Certain Persons Kolb’s defense counsel in the criminal case); (1978); www.indianaffairs.state.mn.us
Holding Land upon the White Earth Reser- YoungBear-Tibbetts, “Without Due Process,” /tribes_whiteearth.html (accessed June 18,
vation in Minnesota and a List Showing the 102, 107-09; Folwell, History, 4: 289-90; 2012).
Date of Death of Certain Persons Who Held Minneapolis Journal, Dec. 19, 1915, sec. 6,
Land upon Such Reservation. p. 6. Another possible reason for Daniels’
27. Powell to Folwell, May 18, 1926, box dismissal is that Minnesota Democrats
114, vol. 90, Folwell papers; Graham Report, wanted one of their own in the position; All images are in MHS collections, includ-
1351; Folwell, History, 4: 291 note 15. For Folwell, History, 4: 290. ing p. 98, from roll 3, Ransom Judd Powell
currency conversions, see www.halfhill.com. 45. Powell to Folwell, May 24, 1926, box papers. The photo on p. 88 is by state
28. Powell to N. H. Clapp, Jan. 30, 1918, 52, Folwell papers. Sorestry commissioner C. C. Andrews, p. 94
1: 421; Powell to Hurr, June 10, 1913, 1: 132; 46. Powell, interview by Folwell, Apr. 23, and 100 are by Lee Brothers, and p. 97 is a
Mrs. Jack Rabbit to Powell, Dec. 30, 1914, 1926, box 114, vol. 90, Folwell papers; Min- Minneapolis Star Journal photo.
and Powell to Mrs. Jack Rabbit, Jan. 11, neapolis Journal, May 1, 1918, p. 1, May 5,
1915, 1: 225, 228; Powell to Sha-go-se-kung, 1918, sec. 1, p. 12.
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533