Forbidden (72 page)

1
. Lyda Burton Conley, of Kansas City, was the first Native American woman lawyer in the United States. Admitted to the Kansas bar in 1910, she'd begun studying law in 1904 in order to represent herself and the Wyandotte tribe in a lawsuit against the United States government. The Wyandotte tribe had settled in Kansas in the midnineteenth century and were nearly wiped out by a smallpox epidemic that killed Conley's mother and three hundred others in 1844. The victims were interred at Huron Park in separate burial grounds that the U.S. Secretary of the Interior had authorized razed in 1904 to make way for a commercial development project. Lyda and her sister Lena, outraged that the sanctity of the burial grounds would be violated in such a cavalier manner, built a hut on the grounds, close to the graves of their parents, loaded their guns and sent word out that the first man to turn a sod over one of the graves would either turn another for the Conley sisters or have some other person perform a like service for himself. Armed with a musket and standing watch in the shack, Lyda Burton Conley studied for the bar examinations and prepared research for her upcoming litigation. For nearly six years, the rightful ownership of the cemetery remained in doubt. The case eventually went to the U.S. Supreme Court where not unexpectedly, the Court refused to interfere with the decision of Congress and the Department of the Interior. But while the Con-ley sisters lost the case, they won the battle, for their actions had brought so much attention to the proposed land deal that in 1912, the House Indian Affairs Committee reported a bill prohibiting removal of the cemetery.

2
. There actually was a Judge Nott who expressed this sentiment to Belva A. Lockwood, a Washington, D.C. attorney during the
Raines
case in c. 1875 when she was attempting to plead a case in a federal court. She was denied admittance, the substitute male lawyer lost the case, allowing her the opportunity to appeal and argue the case before the United States Supreme Court. She was however also denied the right to practice in the Supreme Court.

The opinion of the Supreme Court in the Lockwood denial is typical of the arguments used at the time to bar women from the courts:

"By the uniform practice of the court, from its organization to the present time, and by the fair construction of its rule, none but men are admitted to practice before it as attorneys and counselors. This is in accordance with immemorial usage in England, and the law and practice in all the States until within a recent period; and the Court does not feel called upon to make a change, until such change is required by statute, or a more extended practice in the highest courts of the States… As this Court knows no English precedent for the admission of women to the bar, it declines to admit, unless there shall be a more extended public opinion or special legislation."

As for the argument made by the Court that women in England could not practice law, Myra Bradwell, an Illinois woman trained as a lawyer who published the
Chicago Legal News
, noted in one of her editorials: "According to our Canadian and English brothers it would be cruel to allow a woman to 'embark upon the rough and troubled sea of actual legal practice,' but not to allow her to govern all England with Canada and other dependencies thrown in. Our brothers will get used to it and then it will not seem any worse to them to have women practicing in the courts than it does to have a queen rule over them." (Queen Victoria reigned 1837-1901.)

Realizing federal legislation would be required, Belva Lock-wood drafted a bill specifically providing for admission of women to the federal courts and persuaded Representative Benjamin F. Butler to submit it. The first and second bills she drafted never got to the floor of the House, but in 1878, the House passed Bill No. 1077, which gave women attorneys access to the federal courts. After another year of buttonholing senators in the corridors of the Capitol, the "Lockwood" bill passed the Senate in 1879 after three years of extensive lobbying, and President Rutherford B. Hayes signed it into law.

3
. This speech is excerpted from a longer opinion of a Judge Edward Ryan of the Wisconsin Supreme Court in 1875 in denying Lavinia Goodell admission to the state bar. Since law practice on the county level often didn't require admission to a state or territorial bar, women lawyers were able to practice locally. But the admission of women to state bars became a state-by-state struggle. Belle Babb Mansfield has the distinction of being the first woman in the United States to be formally admitted to the bar. In June 1869, Iowa allowed her admittance. The following year the Iowa State Legislature ensured the admission of women to the profession by removing the restrictive gender language in its admissions statute. Over the next five decades, women were slowly allowed equal rights to practice as attorneys, Delaware having the dubious distinction of being the last state to admit women to its bar in 1923. Montana's first woman lawyer, Ella Knowles Haskell, was admitted to the bar in 1889.

Many opinions denying women admission to state and federal courts were couched in patronizing distinctions of sex and divine, irrefutable law.

Judge Ryan additionally notes: "The peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife. Nature has tempered women as little for the judicial conflicts of the court-room as for the physical conflicts of the battle-field. Womanhood is modeled for gentler and better things…"

The U.S. Supreme Court in its 1873 decision ruling against Myra Bradwell, used the same hypocritical arguments at a time when women were settling the frontier, working twelve-hour days in mills, practicing as doctors and lawyers, toiling in sweatshops and sculleries: "The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator…"

4
. In Pretty Shield's memoirs, she describes the practice: "… we were given a reservation, a fine one, long ago. We had many, many horses, and even cattle that the Government had given us. We might have managed to get along if the White Chief in Washington had not leased our lands to white stockmen. These men, some of them, shot down our horses on our own lands, because they wanted all the grass for themselves… these white men shot down our horses so that their cows and sheep might have the grass. They even paid three dollars for each pair of horse's ears, to get our horses killed. I wonder if the lease money that is paid to the Government in Washington by the white stockmen will be given to my grandchildren when it is paid in, or if they will have to wear out their moccasins going to the Agency office to ask for it, as I do."

5
. The bark of the pussy willow
(salix discolor)
contains tannin and salinigrin, a glucoside with tonic, sedative, and aphrodisiac properties. Mrs. Grieve's
Modern Herbal
recommends half a teaspoon of the fluid extract.

6
. During the nineteenth century there was considerable debate in France by those concerned with banquets and formal dinners on the respective merits of
service à la française
and
service à la russe
. The former method involved placing on the tables all the dishes that were to be served in each service. Guests were thus allowed the pleasure of viewing the food in all its decorative splendor. The dishes would then be taken away to be carved or otherwise prepared for distribution. In the time elapsed before serving, many dishes suffered.

Service à la russe
was introduced about 1860. This style of serving had the carving and preparation done in advance so the food was brought in in relays, ready for immediate distribution.

Food intended to be eaten hot was hot, dishes which needed to be served as soon as they came from the oven, such as souffles, were properly served, and ices didn't melt beforetime.

7
. According to Alexandre Dumas père's
Grand Dictionnaire de Cuisine
, the baba in France originated with King Stanislas Leczinski, father-in-law to Louis XV. When babas were served in his household, they were always accompanied by a sauceboat that contained sweet Malaga wine mixed with a sixth part of eau de tanaisie, the oil obtained by distillation from the tansy plant. Stanislas's Polish court had been transferred to Lunéville in France after his defeat in the War of Polish Succession in 1735. Stanislas adored
The Thousand and One Nights;
hence the name.

The other dishes served by the Duc de Vec's chefs that night after the opera were all taken from Dumas's cookbook, a fascinating assortment of recipes, anecdotes, personal experiences, and miscellaneous information he'd gathered during a Gulliverian and peripatetic lifetime.

8
. Until the
Standing Bear
decision in May 1879, the U.S. policy concerning citizenship for Native Americans had been handled on a case-by-case basis either by treaty, individual legislation, or in conjunction with land allotment. Theory, too, apropos Indian rights, had fluctuated often in the course of the previous two hundred years with equal-nation status, assimilation, segregation, and paternalism utilized in a variety of forms. All unfortunately, in the end, exploitive of native cultures.

In 1879 with the U.S. district court's judgment in the
Standing Bear
case pronouncing, "Means should be devised by which an Indian, when he has attained the necessary degree of civilization, shall be released from the arbitrary control of the Indian Bureau and allowed all the rights and immunities of a free man," the legal basis for confining tribes to reservations and forcing "civilization" on them was dealt a severe blow. Additionally, Standing Bear's extensive tour of the East Coast (although not the first instance of a Native American leader arguing his case before crowds of eastern sympathizers) galvanized criticism of the government's programs, and Indian policy reform became a national issue. Politically powerful reform groups rose articulating the assimilation argument.

Thus the central issue of the 1880s was not whether the reservations system would be changed, but when and how. The popular total assimilation policy was also conveniently advantageous to a wide range of political and economic factions interested in the development of the West. Self-interest opportunely meshed with idealism and between 1880 and 1896, tribes were dispossessed of sixty percent of their remaining land. The Dawes Act of 1887, the first federal program encompassing all Native Americans, while offering the promise of citizenship and a pathway to social integration, proved more often to be a means of encroaching further on Indian lands.

The successful disfranchisement of blacks in the South (upheld by the Supreme Court decisions in civil rights cases and
Plessy v. Ferguson)
during the 1890s confirmed the power of the state authorities to control access to the voting booth. And if individual states were as eager to exclude Indians from the polls as they were to exclude blacks, they were legally capable of accomplishing their objective. Every state with a significant Indian population had voting regulations that limited Native American participation in elections. With the initiation of the "Jim Crow" laws, by 1919 it was estimated that only 25,000 of the nation's 336,000 Indians cast ballots.

In the case of Montana, the sole restriction to voting was that the elector be a citizen. However, in contrast to tribes like the Oregon Umatillas and the Omahas of Nebraska who had been admitted to citizenship en masse when their reservations were allotted, most Indians in Montana remained on undivided reservations or were allotted after the Burke Act of 1906 had delayed the granting of citizenship.

When Louis Reale attempted to organize the Montana Metis in 1883-84 for the purpose of voting, a Republican judge at Fort Benton jailed him in order to keep him out of the field during the election. When the Metis attempted to vote, many were turned away at the polls, and those who were allowed to vote in certain localities found their votes disqualified by the Secretary of the Territory. Supported by the Democrats who would benefit by the Metis vote, Reale's case was moved to a more amenable Democratic judge in Helena who freed him. Shortly after, however, the Canadian authorities transported Reale back to Canada.

9
. Although women had been discouraged from pursuing a professional education well into the twentieth century, it's estimated that by 1870, more than 11,000 women were enrolled in some 582 institutions of higher learning. Most women were earning degrees in education, but the opening of law schools in the Midwest and West and in the major cities in the East gave women the opportunity to study law, even though opportunities to practice were severely limited. The prestigious Ivy League law schools, such as Yale, Columbia, and Harvard, however, resisted enrolling women law students longer than most. Yale first admitted women to their law school in 1918, Columbia in 1927, and Harvard not until 1950.