Harlan next engaged in a judicial hyperbole of the highest order. In discussing the merits of the 1884 law, he said that even though the right of eminent domain was not expressly granted to the United States in the act, it was not necessary “that an Act of Congress should express, in words, the purpose for which it was passed.”102 Apparently the question was not raised as to what the purpose of a congressional law is if not to identify congressional goals and purposes, or at least to sketch out the legislative terrain and intent. “The court,” Harlan stated, “will determine for itself whether the means employed by Congress have any relation to the powers granted by the Constitution.”103 In other words, whenever a congressional intent is not clear, the Court would read an intent into the law.
Finally, Harlan stated that since the railroad was a “public highway,” it was permissible for Congress to appropriate “private property” for purposes of a right-of-way, so long as just compensation was paid. Thus, Harlan redefined the legal nature of Cherokee communal territory. In later years, Felix S. Cohen stated that Indian land must be distinguished from both individual Indian property and public property of the United States, although it has “some elements of both titles.”104
The lower court’s judgment was reversed and the case was remanded for further proceedings.
Ward v. Race Horse
RIGHTS OR PRIVILEGES?
As with the American Indian the only way to prevent his extermination is to civilize him, so the only way to preserve the remaining buffalo is to domesticate them.105
As the original sovereigns of North America, tribal nations recognized an inherent responsibility to their homelands and the need to care for them properly. However, as colonization ensued, tribes often entered into treaties with the federal government in which they sold or exchanged portions of their territory to the United States or the states. In exchange for these relinquished lands, the tribes reserved all other rights not specifically ceded away, and often received certain other benefits like monetary payments, gifts, etc.
Obviously, Indian lands and the legal protection of their natural resources, both on and off reserved lands, were essential for tribal survival. In Ward v. Race Horse, a Wyoming case, the Supreme Court announced a bizarre set of doctrines which severely impacted Indian treaty rights even further. The interested parties were the state, the Shoshone-Bannock Indians of the Fort Hall Reservation, and the federal government as trustee106 for the tribe’s resources. Before proceeding with the Court’s decision, we must review some historical data.
HISTORICAL BACKGROUND
The Fort Hall Reservation was fashioned by a provision in the 1868 Treaty, ratified in February 1869, between the Eastern band of Shoshone—the Bannock—and the United States.107 Article 4 reserved to the Indians their right to hunt on uninhabited federal lands off the reservation as long as peace existed between the whites and the Indians. Earlier, in July 1868, the government had enacted a law establishing a temporary government for the Wyoming Territory. That law contained a provision acknowledging that this act could not interfere with treaty-reserved Indian political and property rights “so long as such rights shall remain unextinguished by treaty between the United States and such Indians.”108
Wyoming became the forty-fourth state twenty-one years later, in legislation signed on July 10, 1890; this measure, however, lacked a provision recognizing the treaty rights of the resident tribes. With statehood, Wyoming officials and her non-Indian residents, basking in their newly acquired political status, began agitating for jurisdiction over Indian issues and resources. The state’s desire was largely supported by the Bureau of Indian Affairs which, on November 1, 1889, had issued a circular to all federal Indian agents urging them to exercise greater control over Indian hunters. The commissioner of Indian affairs, in conformity with the general perception held of Indians by federal officials of the day, said,
In view of the settlement of the country and the consequent disappearance of the game, the time has long since gone by when the Indian can live by the chase. They should abandon their idle and nomadic ways and endeavor to cultivate habits of industry and adopt civilized pursuits to secure means for self-support.109
The circular did, however, acknowledge that Indian treaty stipulations guaranteeing tribes the right to hunt outside their reservation still should be enforced, although this so-called privilege could be exercised only “to supply the needs of the Indians” and should not lead to the “wanton destruction of game.”110 By 1894 the Department of the Interior was being inundated with complaints from whites—including Wyoming’s governor, county attorneys, and private citizens—that the Shoshone and Bannock were “wantonly slaughtering elk and deer.” The Indian agent, when asked to report on the situation, stated that this was untrue. He did acknowledge that some game had been killed outside the reservation, but he said that the Indians were justified both legally, under article 4, and biologically, because they were starving. “Unless,” said the agent, Captain Ray, “they receive sufficient food on the reservation, no power can prevent them from killing game or cattle.”111
Furthermore, the agent reported that, according to the Indians, whites hunting in the same area were “killing game merely for the pleasure of hunting.”112 These reports were corroborated by other Indian agents, who said that game officials refused to prosecute the whites for violating state game laws because they “did not feel justified in prosecuting white men . . .” as long as “Indians were allowed to hunt.”113
By July 1895 conditions had deteriorated to the point where a number of Indians were killed by white settlers at what became euphemistically known as the “Jackson Hole disturbance.”114 On July 20, 1895, Wyoming’s legislature enacted a comprehensive law to regulate the taking of game throughout the state. As written, the law applied to Indians exercising their off-reservation hunting rights.
Throughout this tense period, the Indian agent at Fort Hall reported continuously on the situation to his superiors in the Interior Department. Invariably, these reports painted a bleak picture for the Indians. In Agent Thomas Teter’s words:
The Indians killed by these settlers were practically massacred. . . . One batch, disarmed, were being driven by a body of armed settlers, and in passing over a trail . . . made a break for liberty, whereupon the guards opened fire at once and killed from four to seven Indians, going on the principle that “a good Indian is a dead Indian.”115
As the truth surfaced about the murdered Indians, public sentiment shifted in favor of the tribes. In contrast to the early reports of an Indian massacre of whites, a more accurate view emerged showing that the Indians were the real victims.116
By now even the Indian Affairs office had grudgingly adopted a position supportive of Indian treaty rights. In his 1895 Annual Report, the commissioner stated that “the laws of the State of Wyoming which prohibit hunting within that State for certain kinds of game during certain months must be construed in the light of the treaty granting rights to these Indians to hunt on the unoccupied lands within the State, so far as they apply to the Shoshone and Bannock Indians.” Therefore, urged Browning, “it is not competent for the State to pass any law which would modify, limit, or in any way abridge the right of the Indians to hunt as guaranteed by the treaty.”117
Browning further stated that the government was bound under its treaty with the Shoshone-Bannock to prosecute those whites who had violated the Indians’ treaty-stipulated hunting rights. He requested that the Department of Justice study the matter and make recommendations on how to proceed with punishing the offenders.118 On September 20, 1895, the Office of Indian Affairs instructed Province McCormick, inspector for the United States Indian Service, to proceed to Wyoming to meet with the governor and other state officials regarding the hunting dispute. The Indian commissioner’s instructions to McCormick indicate the great importance the United States attached to this case:
I desire you to confer with the governor of Wyoming with reference to the right of these In
dians to hunt off their reservation in the territory in question and ascertain his views upon the subject. . . . In case the governor is unwilling to concede the rights of the Indians to hunt as above indicated, you will propose to him that there shall be a test case made and a decision arrived at as to the right of the Indians to hunt on public lands under their treaty, either by having an Indian arrested by the State officials for hunting, and an application brought by the United States attorney for Wyoming or a writ of habeas corpus for the release of such prisoner, or in some other way, and that he shall agree that in case it shall be decided that the Indians have a right to hunt, and that the laws of Wyoming are of no effect as against them, then, in that event, he, Governor Richards, shall, by all the means in his power, protect the Indians in such right; and on the other hand, if it shall be decided by the Courts that the Indians have no right to hunt, in violation of the State laws, or, in other words, that the state laws operate to abridge or defeat their said treaty rights, then this Department will recommend to Congress that an agreement be made with them for the relinquishment of the rights guaranteed to them by the treaty of 1868, and which they claim and believe are still in full force.119 (emphasis mine)
Interestingly, the letter goes on to suggest that McCormick not contact the Indians until after he has concluded his meetings with the governor and his officials. This communication highlights the structural disadvantage of tribes existing in an extraconstitutional standing; the United States was exhibiting a clear willingness to negotiate the treaty rights of the Indians without their knowledge or consent.
McCormick traveled to Wyoming and met with Governor Richards on September 29. The governor, McCormick later said, refused to concede that the Indians had any treaty rights that the State was legally bound to recognize. According to the governor, the Indians’ treaty rights had been abrogated by the state’s hunting laws. Nevertheless, McCormick reported that Wyoming’s chief executive was willing to accept the proposition for a “test case” to let the judiciary decide the matter.120 After the detailed state-federal agreement had already been worked out, McCormick met with the Shoshone-Bannock to explain the government’s strategy. Urging the Indians to “rely implicitly upon the Department,” McCormick received near unanimous tribal consent to proceed.121
The inspector terminated his report by predicting that the courts would uphold the treaty rights guaranteed to the Indians.122 Nevertheless, he strongly urged that the government proceed to negotiate with the Indians to have their hunting rights ended because he believed, as the massacre had shown, that “establishing the right of these Indians to hunt on public or unoccupied lands does not protect them in that right.”123
The legal infrastructure was set. Soon, the “test” Indians, including Race Horse, were arrested. Almost immediately, Gibson Clark, a Justice Department attorney, instituted habeas corpus proceedings seeking the release of the Indians. The case was tried in the Federal District Court of Wyoming on November 21, 1895.124 Benjamin Fowler, John Ham, and Willis Van Devanter, representing Wyoming, brought the case against Race Horse. Gibson Clark represented Race Horse.
In a sterling opinion affirming Indian treaty rights, District Judge Riner ruled that Wyoming’s hunting laws were invalid against the treaty and reserved hunting rights of the Shoshone-Bannock. Judge Riner’s decision had three interrelated points: (1) whether an Indian treaty and the rights and privileges claimed under it were void and continued even after Wyoming’s statehood; (2) whether a Wyoming statute which was inconsistent with the federally sanctioned Indian treaty was lawful; and (3) whether Wyoming’s admission as a state “upon an equal footing with the original States” abrogated the Indian treaty’s provision.125
Judge Riner began by asserting the supremacy of the federal government’s treaty power; “a power which is expressly delegated to the United States and prohibited to the States.”126 Wyoming’s hunting laws, therefore, which conflicted with the Indians’ treaty rights, were invalid because Congress’s intention to violate the treaty was not clear and unequivocal.127 The district judge also refused to accept Wyoming’s “equal footing” argument as nullifying treaty rights. While acknowledging that the act which admitted Wyoming into statehood had not explicitly reserved the tribes’ treaty rights, Judge Riner forcefully wrote, “neither does it, in express terms, abrogate the treaty, or any of its provisions.”128 In conclusion, Judge Riner noted that “the act admitting Wyoming into the Union does not, by necessary implication, repeal or abrogate the treaty, and that the treaty provision remains in force.”129
Despite this impressive judicial ruling, the Shoshone-Bannock soon faced a legislative extinguishment of their hunting rights. Their agent, Thomas Teter, echoing the treaty-rights termination sentiment expressed earlier by Inspector McCormick, strongly urged that the Bureau of Indian Affairs establish a commission to negotiate with the Indians “for a relinquishment of their treaty rights.”130 The rationale given: to “prevent a recurrence . . . of the Jackson Hole troubles of the past July.”131
H. R. 4444 was introduced by Representative Frank Mondell (R., Wyoming). Mondell sought either a complete “surrender” or at least a major “modification” of the Indians’ right to hunt “to such an extent that they shall be amenable to State game laws and regulations.”132 The bill was read, its title was amended, and it was subsequently passed in the House. It was not, however, enacted into law. By the time it was introduced, Willis Van Devanter, Wyoming’s lead attorney, had already appealed the district court’s ruling to the Supreme Court.
MASKING WITHIN THE DECISION: THE OPINION
The Supreme Court, speaking in majority fashion (seven to one; Justice David Brewer did not participate) through Justice Edward D. White, reversed Judge Riner’s decision by declaring that judgment “erroneous” and held that Wyoming’s gaming laws had superseded the Shoshone-Bannock’s treaty-guaranteed rights to hunt either off-reservation or on unoccupied lands ceded by the two tribes to the United States.
White began the majority decision by denying as “wholly immaterial” the importance of exactly where John Race Horse had killed the elk. This denial language immediately signaled his position on the treaty since that document explicitly recognized the Shoshone-Bannock’s right to hunt on “unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts.”133 For White, the “sole question” to be considered was whether the treaty “gave” the Shoshone-Bannock the “right to exercise the hunting privilege,” which now was in violation of Wyoming’s laws.
The Mask of Treaties as “Privileges”
Notwithstanding that the Shoshone-Bannock, like other hunting tribes, had always relied on hunting to sustain themselves, White asserted that this was a right “given” to the tribes. The hunting right assumed an even more paramount nature since the Indian agents had evidence that many Indians were malnourished because of the inconsistent and inadequate federal food supply to the Fort Hall Reservation. These food supplies had been guaranteed to the Indians as part of their 1868 treaty arrangement with the United States. The federal government’s rationale for supplying foodstuffs to the Indians on the reservation was to create a sedentary lifestyle which they believed would aid in their assimilation to the American way of life.
White’s postulation of hunting as a “privilege,” a term he would use throughout the case, says much about the tenuous nature of what actually were vested rights that the tribes reserved for themselves during their treaty negotiations with the federal commissioners. The tribes, in fact, had been very careful to reserve the bulk of those rights that had not explicitly been ceded away in the 1868 treaty. In other words, the Shoshone-Bannock surrendered much of their aboriginal territory to the federal government and, in exchange, secured to themselves all those rights specifically mentioned in the treaty—i.e., hunting—and all other rights not granted away. The issue for White became whether to interpret expressed
treaty provisions “as the Indians understood them” or to consider only the Supreme Court’s interpretation, even when it conflicted with the Indians’ view.
Furthermore, in wording the question in this manner, White held implicit that a state municipal law was superior to a ratified federal treaty. In discrediting the status of treaty-reserved hunting rights, White observed,
If it [treaty] gave such right, the mere fact that the State had created school districts or election districts . . . could no more efficaciously operate to destroy the right of the Indian to hunt on the lands than could the passage of the game law. If, on the other hand, the terms of the treaty did not refer to lands within a State, . . . then it is equally clear that, although the lands were not in school and election districts and were not near settlements, the right conferred on the Indians by the treaty would be of no avail to justify a violation of state law.134
In this quote, White effectively manipulated the facts to give legitimacy to the state’s claim where none existed; specifically, the 1868 treaty could not possibly refer to state lands, because Wyoming did not become a state until 1890. Although it was true that Wyoming achieved territorial status in 1868, shortly after the signing of the Fort Bridger Treaty, the act that established territoriality included an explicit provision stating, “nothing in this act shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians.”135
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