American Indian Sovereignty and the U.S. Supreme Court

by David E. Wilkins

  White’s discussion of Wyoming’s actual political status insofar as that status overrides Indian treaty rights is an important misconstruction on his part. This is evident in his early statement of the question before the Court, where he equated the establishment of treaty rights (1868) with Wyoming’s existence as a state (1890 in fact; 1868 in White’s articulation). This is a crucial error, because the tribes’ treaty rights predated Wyoming’s territorial status by an entire month (July 1868) and statehood by more than two decades (July 1890). The Indians’ preexisting treaty rights, according to the U.S. Constitution’s treaty clause, entailed the supreme law of the land.

  White then returned to an analysis of the language in article 4 of the treaty, especially the word “unoccupied,” which earlier he had said was “wholly immaterial” to deciding the case. He had to return to this, however, because the language of that provision was explicit, and in order to circumvent such express language he would have to orchestrate the meaning of words carefully:

  It may at once be conceded that the words “unoccupied lands of the United States,” if they stood alone, and were detached from the other provisions of the treaty on the same subject, would convey the meaning of lands owned by the United States, and the title to or occupancy of which had not been disposed of. But in interpreting these words in the treaty, they cannot be considered alone, but must be construed with reference to the context in which they are found. Adopting this elementary method, it becomes at once clear that the unoccupied lands contemplated were not all such lands of the United States wherever situated, but were only lands of that character embraced within what the treaty denominates as hunting districts.136

  White had adroitly changed the tribes’ heretofore unqualified right to hunt on any of their former “unoccupied” territory ceded to and now under the control of the United States in the treaty. He thus reduced this right to a “privilege” subject to state law via hunting districts which had been nonexistent when the treaty was negotiated. White expanded his exercise in obtuse language:

  This view follows as a necessary result from the provision which says that the right to hunt on the unoccupied lands shall only be availed of as long as peace subsists on the borders of the hunting districts. Unless the districts thus referred to be taken as controlling the words “unoccupied lands,” then the reference to the hunting districts would become wholly meaningless, and the cardinal rule of interpretation would be violated, which ordains such construction be adopted as gives effect to all the language of the statute. Nor can this consequence be avoided by saying that the words “hunting districts” simply signified places where game was to be found, for this would read out of the treaty the provision as “to peace on the borders” of such districts, which clearly pointed to the fact that the territory referred to was one beyond the borders of the white settlements.137

  In short, White was saying that the Indians enjoyed the “privilege” of hunting, but if violence erupted, the privilege could be withdrawn.

  The Court then proceeded to give a description of the events surrounding the 1868 treaty’s negotiation and the subsequent years up to and through Wyoming’s statehood. White, using his own rather than the Indians’ interpretation of these treaty proceedings, observed that the Shoshone-Bannock had indeed been granted hunting rights, but only “so long as the necessities of civilization did not require otherwise” and that such rights were “absolutely” dependent “upon the will of Congress.”138

  In constructing his treaty abrogation language, White said that the “privilege” of hunting was available to the Indians “only whilst peace reigned on the borders.”139 With the arguments thus established, White then reached the gist of his justification for abrogating Indian treaty rights:

  To suppose that the words of the treaty intended to give to the Indians the right to enter into already established States and seek out every portion of unoccupied government land and there exercise the right of hunting, in violation of the municipal law, would be to presume that the treaty was so drawn as to frustrate the very object it had in view. It would also render necessary the assumption that Congress, whilst preparing the way, by the treaty, for new settlement and new States, yet created a provision not only detrimental to their future well being, but also irreconcilably in conflict with the powers of the States already existing.140

  This quote contains several fallacies and flaws. First, White spoke as if the state existed as a sovereign at the time of the treaty’s negotiation. Second, the Court, in a questionable interpretation of the Treaty and Supremacy clauses of the Constitution, and ignoring prior judicial precedent (e.g., Worcester v. Georgia [1832]), urged that treaties were of a diminished stature when placed next to “municipal laws.” Third, White noted that the treaty’s language, if interpreted to allow the Shoshone-Bannock’s right to hunt off the reservation, would somehow “frustrate” the purpose behind the treaty’s negotiation. And, finally, he created an alleged “irreconcilability” between a state’s admission into the Union and treaty rights, when no such conflict existed.

  White then made statements about the relationship between the location of Race Horse’s killing of the elk and the timing of statehood. He observed,

  It is undoubted that the place in the State of Wyoming, where the game in question was killed, was at the time of the treaty in 1868, embraced within the hunting districts therein referred to. But this fact does not justify the implication that the treaty authorized the continued enjoyment of the right of killing game therein, when the territory ceased to be a part of the hunting districts and came within the authority and jurisdiction of a State. The right to hunt given by the treaty clearly contemplated the disappearance of the conditions therein specified.141

  Following this remarkable demonstration of how it was possible for a treaty to contemplate the disappearance of nonexistent future conditions, the Court arrived at the apex of its abrogation. White stated that the federal government had the sole power of determining who could do what on the lands in question. This sense of unrestrained ownership harkens back to the “doctrine of discovery” principle first unleashed in 1823 by the Supreme Court in Johnson v. McIntosh, which held that the United States was vested with absolute title to “discovered” Indian lands, while the tribal inhabitants’ land title was diminished to that of occupancy.

  According to White’s logic, since under the Johnson rule the land already belonged to the United States, the Indians’ right to hunt logically “cease[d] the moment the United States parted with the title to its land in the hunting district.”142 Again, this is a problematic historical argument. A reserved treaty right, at this time, was just that, a reserved right, and there was nothing in the language of the treaty which indicated that the Indians’ right to hunt would cease if or when Wyoming went from territorial status to statehood. White then stated his personal views about Indian treaty rights, citing their “temporary and precarious nature”:143

  Here the nature of the right created gives rise to such implication of continuance, since, by its terms, it shows that the burden [the Indians’ hunting rights] imposed on the Territory was essentially perishable and intended to be of a limited duration. Indeed, the whole argument of the defendant in error rests on the assumption that there was a perpetual right conveyed by the treaty, when in fact the privilege given was temporary and precarious.144

  In the end, White had provided an interpretation of an 1868 treaty provision which completely clashed with the treaty views held by the Indians, the Bureau of Indian Affairs, and the Department of Justice. The Court had also read a congressional intent into the treaty which was not discernible from the historical record and which conflicted with the arguments of the federal government’s lawyers, who had sided with the Shoshone-Bannock.

  The Mask of “Equal Footing”

  White firmly indicated that Indian treaty rights should not be allowed to be “destructive of the rights of one of the States.”145 To support this, the Tenth Amendment t
o the Constitution, which expressly states that “the powers not delegated to the United States by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people,” became another source of state power that White and the majority relied on. This view capsulized the fragile position of Indian/tribal treaty rights when the justices of the Court were ideologically aligned with the doctrine of dual-federalism,146 which emphasized the states’ retention of all sovereign rights not delegated to the federal government via their enabling acts.

  Justice White, therefore, maintained that article 4 of the 1868 Treaty (which included the hunting clause) had been repealed because it conflicted with Wyoming’s admission act.147 In an interpretation wholly at odds with District Judge Riner’s more constitutionally sound federal supremacy argument and a recognition of the federal government’s legal, moral, and political obligation to protect Indian treaty rights, Justice White asserted that the act which admitted Wyoming into the union “declared that that State should have all the powers of the other States of the Union, and made no reservation whatever in favor of the Indians.”148 However, the state’s enabling act actually said nothing about Indians. The Constitution’s Commerce Clause had conferred the regulation of the nation’s Indian affairs on the Congress, not the states.

  White quoted liberally from Escanaba Company v. Chicago (1883), which discussed the “equal footing theory.” In Escanaba, the Court held that on admission a state “at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original States. She was admitted, and could be admitted, only on the same footing with them. . . .”149 This is true. However, none of the original states enjoyed unfettered authority over Indian affairs, Indian lands, or Indian treaty rights. Again, the Constitution’s Commerce Clause and the President’s well-exercised treaty authority saw to that.

  Justice White stated that the treaty right had been repealed because of “the conflict between the treaty and the act admitting that State into the Union.” “The two facts,” said White, “the privilege conferred and the act of admission, are irreconcilable in the sense that the two under no reasonable hypothesis can be construed as co-existing.”150 This interpretation, however, directly conflicts with an earlier federal district court opinion, United States v. Berry,151 which involved the attempt of a state (Colorado) to construe its enabling act in a way to repeal the treaty rights of the Ute Indians.

  In Berry, it was held that “according to a well settled rule of construction, since there is no express repeal of any part of the treaty, that instrument and the statute should be construed together, and as far as possible, the provisions of each should be allowed to stand.”152 More importantly, Berry said that an enabling act could not be so construed because it would deprive the United States “of the power of fulfilling the solemn obligations imposed upon them by said treaty.”153 “The treaty by its terms was to be permanent, and the rights conferred thereby were not to be taken away without the consent of the Indians.”154 And while conceding that the United States could abrogate or repeal treaty provisions, “it is clear to my mind that such repeal can only be enacted in express terms, or by such language as imports a clear purpose on the part of congress to effect that end.”155

  While paying lip service to the constitutional delegation of federal authority in relation to Indian tribes, White said that “nothing in this case shows that this power has been exerted by Congress.”156 The Shoshone-Bannock, however, were under the distinct impression, reinforced by the legal support rendered by the government, that their treaty hunting right was not subject to control by any other party, absent tribal consent or a bilateral modification of the preexisting treaty arrangement.

  Nevertheless, wedding public faith, state sovereignty, and congressional will together, White concluded by saying that the lower court’s decision was “erroneous,” and the case was reversed and remanded.

  JUSTICE BROWN’S DISSENT

  Justice Henry Brown was aware of the destructive precedent being established by the Court’s opinion. He said that the majority’s ruling was a “distinct repudiation by Congress of a treaty with the Bannock Indians.”157 The continuing validity of the treaty, and the fact that Wyoming’s admission to statehood abrogated the treaty pro tanto and left tribes “at the mercy of the state government”158 was enough to rankle Brown’s sense of justice. While claiming that Congress retained the power to abrogate treaties, Brown stated that such an extinguishment should not occur except and unless the intent was clear and unambiguous.159 After describing the history of the treaty—coming as it had at the close of a series of deadly skirmishes—Brown noted that the tribes agreed to the terms of the treaty and ceded certain sections of their land, reserving all other rights to their remaining territory and specific rights in the ceded land. The United States, Brown said, solemnly pledged to protect the tribes and their retained rights, including the essential hunting right. Brown’s interpretation of article 4 was radically different from the majority’s and closely conformed to what the federal government was arguing on behalf of the Indians. He said that the Shoshone-Bannock retained the right to hunt, as long as there was game and peace. More importantly, Brown noted:

  The right to hunt was not one secured to them for sporting purposes, but as a means of subsistence. It is a fact so well known that we may take judicial notice of it, that the Indians have never been an industrial people; . . . and that their chief reliance for food has been upon the chase. The right to hunt on the unoccupied lands of the United States was a matter of supreme importance to them, and as a result of being deprived of it they can hardly escape becoming a burden upon the public. It is now proposed to take it away from them, not because they have violated a treaty, but because the State of Wyoming desires to preserve its game. Not doubting for a moment that the preservation of game is a matter of great importance, I regard the preservation of the public faith, even to the helpless Indian, as a matter of much greater importance.160

  Brown also refused to accept the “equal footing argument.” He argued, in line with the Court’s precedent in The Kansas Indians,161 that Indian treaty rights could not be adversely affected except “by purchase or by a new arrangement [treaty] with the United States.”162 Since neither of these stipulations had been met, there was no lawful basis for the Court to accede to Wyoming’s abrogation of the Indians’ treaty rights. In closing, Brown gave a more historically justified appraisal of the words “unoccupied lands of the United States.” He said that although the language referred “not only to lands which have not been patented, but also to those which have not been settled upon, fenced or otherwise appropriated to private ownership,” he did not believe that “the admission of a Territory into the Union changes their character of unoccupied to that of occupied lands.”163

  CONCLUSION

  Although Ward was thought to have been implicitly overruled in United States v. Winans (1905) and has been a much criticized opinion,164 this decision nevertheless continues to pose a viable and recently reinvigorated threat to tribal sovereignty and the exercise of off-reservation treaty rights.165 Ward dealt a paralyzing blow to the sanctity of Indian treaties by ignoring earlier case precedent166 and elevated state power not only over tribes’ vested rights, but also over the federal government itself as trustee for the Indians. This last element was in direct contrast to what the Court had maintained in the two most recent cases examined, Southern Kansas Railway and U.S. v. Kagama.

  Lone Wolf v. Hitchcock

  JUDICIAL MYOPIA—WHAT INDIAN RIGHTS?

  In the March 29, 1902, edition of The Outlook magazine, an article appeared entitled “Have Reservation Indians Any Vested Rights?” Its author was George Kennan, The Outlook‘s Washington correspondent. Kennan examined the federal government’s policy of leasing tribal lands on the Standing Rock Sioux Reservation and concluded that Indian lands were not being protected, and were, in fact, being confiscated without tribal consent.167
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  As evidence that this actually had happened, Kennan quoted from a decision rendered March 4, 1902, by the Court of Appeals of the District of Columbia in Lone Wolf v. Hitchcock.168 In this case, the court had held that the pertinent provisions of the 1868 treaty between the Kiowa, Comanche, and the United States did not give the tribes legally enforceable title to their lands. In the appeal judge’s own amazing and prophetic words:

  The treaty of 1868 certainly did not vest in the Indians, either in their individual or tribal capacity, anything more than the right to occupy the lands as against the United States until it was found necessary to make other provisions for them. There was no grant of estates either of freehold or a leasehold; only a mere right to occupy and use the lands, according to the habits and customs of the Indians; but those rights of the Indians were sacred to them as against every one, until Congress made provision for assuming control over the lands, and making other disposition thereof, upon such terms and conditions as Congress should prescribe.169

  The issue of Congress’s power to abrogate foreign and Indian treaties had been dealt with by the federal courts in several earlier cases.170 Those decisions, at least the ones involving Indian treaties, however, are clearly differentiated from Lone Wolf because they did not specifically involve a deprivation of tribal property rights previously acknowledged under a ratified treaty.171

  HISTORICAL BACKGROUND

  On October 21, 1867, representatives of the Kiowa and Comanche tribes (the Apache Tribe joined by separate treaty later) entered into a treaty with the seven-member delegation of the congressionally created Indian Peace Commission at Medicine Lodge Creek in Kansas.172 This multipurpose treaty entailed land cessions, the establishment of peace, and the creation of reservation boundaries. Moreover, it contained several “civilization” provisions, including the following: Indian parents agreed to send their children to schools; heads of households could select up to 320 acres for farming; and the Indians agreed to remain within boundaries of their newly established homelands.