The most relevant provisions, however, are found in articles 2 and 12 which deal with the establishment and protection of the three-million-acre reservation. Article 2 reads in pertinent part that the reservation was to be “set apart for the absolute and undisturbed use and occupation of the tribes herein named. . . .”173 The germane section of article 12 reads as follows:
No treaty for the cession of any portion or part of the reservation herein described, which may be held in common, shall be of any validity or force as against the said Indians, unless executed and signed by at least three-fourths of all the adult male Indians occupying the scene. . . .174
Notwithstanding these legal and moral assurances, the fervor to individualize tribal land holdings following the passage of the 1887 General Allotment Act soon reached the confederated Kiowa, Comanche, and Apache (KCA) reservation.
In 1892, the three-member federal Cherokee Commission (also known as the Jerome Commission), established by Congress in 1889 to engage certain Oklahoma tribes in land cession agreements,175 concluded a pact with representatives from the KCA tribes for the allotment of their lands. The remaining “surplus” lands were to be opened for non-Indian settlement. Although a number of Indian signatures were obtained, the three-fourths requirement was not met. Nevertheless, the agreement was sent to Washington, D.C., for congressional ratification.
On October 20, 1893, 323 KCA tribal members memorialized the Senate, strenuously arguing that the October 6, 1892, agreement should not be ratified for several reasons. First, they stated that negotiating sessions had not, as required by law, been conducted “in open council nor in the presence or with the knowledge of their people [tribal leaders] and constituents. Second, they stressed that the commission, after having fraudulently obtained an inadequate number of signatures, then “caused numerous pretended councils of said Indians to be held under the guns of said fort” (Fort Sill), where additional—though still too few—signatures were gathered “by misrepresentation, threats, and fraud. . . .” Finally, that the government’s commission then relocated to the Indian agency headquarters of Anadarko where, for “more than a month . . . it continued its campaign of mendacity, fraud, and coercion until the alleged signatures of 456 Indians were claimed to have been obtained.”176 The tribal memorialists then asserted that once the 456 signatures had been collected, the “said agreement was, without the loss of an hour, but upon the same day, transmitted to Washington. . . .”177
Despite the haste with which the agreement was shuttled to the Capitol, the ratification process would not be so quick. In 1898, five years from the date of the agreement’s arrival in Washington, and after several previous attempts, a bill was finally reported out of committee on the House side favoring enactment of the 1892 agreement. This bill, however, substantially altered the original agreement by inserting a provision to hasten the settlement of Choctaw and Chickasaw claims to the Leased District. The KCA tribes had fought every legislative attempt to approve the agreement; nevertheless, the House bill was passed on May 16, 1898.178
The Senate, however, bowing to pressure from the KCA tribes and a prestigious and influential interest group, The Indian Rights Association, adopted a resolution in January 1899 which directed the secretary of the interior to inquire whether the requisite number of signatures had been obtained.179 When Secretary Hitchcock responded on January 13, 1900, his startling findings confirmed the major contentions of the KCA tribes and their supporters. Hitchcock acknowledged that not only had “less than three-fourths of the adult males . . . signed” the agreement, but that the agricultural acreage provided for in the 1892 agreement was inadequate to meet the needs of the Indians.180
W. A. Jones, the commissioner of Indian affairs, submitted equally revealing findings. The commissioner gave three reasons why he felt the agreement should not be ratified: (1) he questioned “when, if ever, the Indians [would] receive any compensation for their lands”; (2) he stated that “if the lands are paid for there is no certainty that the Comanche, etc., Indians will ever receive one cent”; and (3) he complained that the agreement, as amended, “made no provision for the payment of the interest to the tribes.”181 The commissioner ended his remarks by suggesting that “the agreement should be rejected by Congress, or that it be ratified with the proposed amendments and submitted to the Indians for their acceptance or rejection.”182 After all, noted Commissioner Jones, “it is certainly a novel proposition in law that one party to an agreement may, without the consent of the other, alter or modify an essential part of such contract.” He concluded with, as it turned out, unwarranted faith in the legal system, that “no court of law would uphold or enforce any contract so altered or amended.”183
However sound these and the KCA tribes’ arguments were, it was obvious that certain members of Congress intended to ratify the agreement over the considered opposition of the tribes and the Indian Affairs commissioner. This is apparent in the manner in which the agreement was ultimately approved. It was simply attached as an amendment (section 6) to Senate Bill S. 255, which was a pending agreement between the United States and the Indians of the Fort Hall Reservation in Idaho. The House report accompanying the Senate bill described the 1892 KCA agreement this way:
This agreement . . . embraces 2,969,893 acres of land; and after allotting or giving to each Indian 160 acres, it cedes to the United States 2,517,853 acres, which will be opened to settlement. There are only 2,679 of these Indians. . . . This reservation contains very valuable farm and grazing lands. For years the most of it has been used by cattlemen for the grazing of large herds of cattle. Your committee are advised that these Indians have made great advancement during the last few years under the management of acting agent Captain Baldwin and those who have succeeded him.184
In closing the report, the committee quoted Oklahoma’s territorial governor, who said: “I can not refrain from urging, as I have heretofore, that these reservations be at once opened to settlement. They embrace some of the finest lands in Oklahoma Territory, and would be capable of supporting a large population.”
Entered into the Record on April 2, 1900, a month before Congress acted on the measure, the comments of Representative Charles Curtis (the sponsor of the devastating Curtis Act of 1898 which legally dismembered the Five Civilized Tribes) reveal the political strategy used by the House to get both the KCA and Fort Hall bills enacted. Curtis stated: “The bill to ratify the Kiowa [KCA] treaty has passed this body upon two different occasions. It has never passed the Senate. The Fort Hall bill has passed the Senate twice, but has never passed the House. The Committee on Indian Affairs reported this bill unanimously. This, I believe, is all there is to say about this bill.”185
The House proponents, in desperation, had attached their two-year-old bill as a rider to the Senate Indian bill on Fort Hall. The House passed the merged measure, and it went to the Senate. On June 6, 1900, nearly eight years after the original agreement was signed, the Senate passed the amended agreement without debate at the end of the session. Nothing in the title of the act indicated that section 6 was a ratification of the contested Jerome Agreement of 1892.186 Three supplementary acts enacted in 1901 expanded the manner in which ceded tribal lands were to be handled.
THE JUDICIAL PROCESS BEGINS
Lone Wolf, a well-known Kiowa headman, supported by the Indian Rights Association, filed suit in the Supreme Court of the District of Columbia on June 6, 1901, to obtain an injunction to prevent implementation of the acts confirming the 1892 agreement. Lone Wolf and his associates lost in the District Court. They then appealed to the district court of appeals. Even as this appeal was pending, President McKinley issued a proclamation on July 4, 1901, which said that the KCA-ceded surplus lands were to be opened for settlement from August 6, 1901.187
The court of appeals also ruled for the United States. The court stated that reservation Indians with “assigned lands” had no vested rights but only a right to occupy “at the will of the government.” The judges, however,
after having savaged tribal treaty and property rights, ironically ended their opinion by piously intoning, “We shall be greatly gratified if that high tribunal [U.S. Supreme Court] may be able to find a way for affording a remedy for what is alleged to be a grievous wrong to the Indians.”188
Lone Wolf, also known as A. Kei-quodle, was joined by Eshitie, principal chief of the Comanche; White Buffalo, Ko-Koy-Taudle, Mar-mo-sook-car-we, Narwats, Too-wi-car-ne, William Tivis, and Delos K. Lone Wolf (Lone Wolf’s interpreter). They were represented by William Springer and Hampton L. Carson. Ethan A. Hitchcock was joined by William A. Jones, commissioner of Indian affairs, and Binger Herman, commissioner of the general land office, as appellants.
Springer and Carson, on behalf of the KCA tribes, raised a number of compelling treaty and constitutional arguments in their brief before the Supreme Court that stress the importance of this case. First, they argued that the Court of Appeals had made a “fundamental error” in stating that Indians “had always been treated as wards with assigned lands and no defensible title.” They noted that this was a “historical error and ignore[d] the feature of Indian consent.”189
Second, they cited the precedent established in Mitchel v. United States (1835) and reaffirmed in Holden v. Joy (1872) that Indian title was as “sacred as the fee-simple title of whites.” And they brought forth another principle established in Holden—that Congress has no power to interfere with treaty rights, “except in cases purely political.”190
Third, they argued that the 1867 Medicine Lodge treaty was a binding contract. They said that agreements executed and confirmed by which the tribes “in consideration of the relinquishment of the right to use and occupy other lands,” were binding upon both parties and could not “be annulled or abrogated without the consent of both parties.”191
Fourth, the tribes’ attorneys maintained that the central issues in the case were not “political questions” and reminded the justices that the court of appeals itself had concluded its decision by stating that it hoped the Supreme Court would find a remedy for the Indians.192
Fifth, the attorneys stated that tribal objections to the original amendment and Congress’s unilateral amendments to the treaty, which were not submitted to the Indians for approval, portrayed a situation which “shocks the conscience of every person who believes in justice and fair dealing.”193
Sixth, Springer and Carson argued that the Indians had a vested right to their property and that under existing law legislative acts impairing such rights were void.194 They then cited Marbury v. Madison, and argued that since the essence of civil liberty was the right of every individual to have the protection of the law when an injury was sustained, the Supreme Court had the authority to provide a forum for the determination of what constitutes vested rights.195
Seventh, they asserted that the Indians had a perpetual right of occupancy, that they were entitled to due process of law, that Indians were “persons” under the Constitution, and that the tribes’ property had not been taken for “public use.”196 This action by the government, argued the attorneys, was without precedent. Prior to the act of June 6, 1900, Congress had “never passed an Act which deprived Indians of the right to the use and occupancy of lands secured to them by treaty, without their consent, except by due process of law.”197
Eighth, Springer and Carson rejected the government’s contention that as “wards,” Indians had few rights. Moreover, they astutely noted that even if the Court insisted on treating the Indians as wards, even wards could not be divested of their title to lands without some kind of hearing.198
Finally, Springer and Carson gave Congress the benefit of the doubt and said “there is some doubt even as to whether Congress really intended to ratify the so-called Jerome Agreement. . . .”199 They noted that the KCA Agreement, which had never been ratified by the Indians, had been dovetailed with the tribally approved Fort Hall Agreement. And they expressed doubt that a majority of Congress knew what was transpiring: “The fact that it was being amended and ratified without submission to the Indians for ratification or rejection does not appear to have been called to the attention of either House of Congress. It is highly probable, therefore, that but few Senators or members understood the full import of the measure.”200
The United States attorneys, Assistant Attorney General Willis Van Devanter (Wyoming’s lead attorney in Ward, and a future Supreme Court justice) supported by William C. Pollock and Anthony C. Campbell, reached for and relied on the entrenched rhetoric of Indian “wardship” and argued that as “wards” tribes were fully controlled and cared for by Congress. Van Devanter said:
It was demonstrated that the Indian [by this period] was absolutely incapable of protecting himself in his new surroundings or of determining what was for his advantage. . . . [T]o afford the Indian that protection which the laws of humanity demanded should be given him, and to prevent as far as possible the evil consequences to both parties which would necessarily flow from the clash between civilization and savageism, it was necessary that the Government should intervene and assume complete control over the Indians.201
Another telling quote from Van Devanter’s brief indicates how deeply the guardianship-wardship theory had seeped into the consciousness of government lawyers and policymakers. “While sentimentality may characterize the exercise of absolute authority over the affairs of the Indians as an arrogation of power because of might, yet the exigencies of the situation demanded its assumption and results have justified it.”202
Finally, Van Devanter reiterated a classic Darwinian cultural argument—that the federal government had legitimate authority to force the Indians to emerge from their alleged “savage” state. The essential step in this “cultural evolution” was individual ownership of land. As Van Devanter argued:
There was nothing in his [Indian] connection with the land that tended to his civilization or improvement, financially, or otherwise. . . . The Indians had not become self-supporting and had made no advance in that direction which would justify a hope that they ever would become so under the old system. It was not only the right, but the imperative duty of the United States to change this condition of affairs and to make such provision for these people as would start them upon the road to self support and civilization. To successfully accomplish this it is necessary that each individual should be invested with the ownership of a tract which he should look upon as his own. . . . The indefinite, intangible, undivided, and indivisible interest of the individual in the tribal right of occupancy must be replaced by a defined, separate, and distinct personal right in and to a specific tract of land.203
In the Records and Briefs file of the case are two heart-rending letters written by Lone Wolf to his attorney, William Springer. The first, written December 27, 1901, reveals a man who was defiantly opposed to the selling of tribal lands, and who remained optimistic that the federal political and legal systems would protect his people’s property and treaty rights. Lone Wolf informed Springer that the Kiowa Nation had instructed him to inform the government that they would not accept any monetary settlement offered by the United States for tribal lands being squatted on by whites. “We believe,” said Lone Wolf, “that while everything seems to be against us, we will succeed. There is [a] just God who rules the affairs of this government.”204 By July 1902, Lone Wolf’s tone was noticeably more depressed. In a letter to Springer signed by Lone Wolf and sixteen other Indians, one senses the severe level of frustration now experienced by the tribesmen regarding their inability to protect their lands from white encroachment, notwithstanding their seemingly invincible legal and moral arguments. “Good friend,” wrote Lone Wolf, “we, the undersigned members of the Kiowa and Comanche tribes, wish to write to you concerning our affairs. We think we ought to have by rights the say so in some things, but the way things are running we have no rights whatever.” Lone Wolf’s fears were soon to be realized.
MASKING WITHIN THE DECISION: THE OPINION
The fate of the KCA tribes
now lay at the Supreme Court’s doorstep. In the ensuing decision, however, their hopes and, by implication, those of all tribes with treaty-based rights and desirable lands, were crushed. The Court’s unanimous opinion represented a perfect and deadly synthesis of the plenary power concept and the political question doctrine. The Court refused, citing the political question doctrine, to even consider the tribes’ core argument of “fraudulent misrepresentation” by government officials. The justices also refused to consider the issue of the Senate’s unilateral alteration of the 1892 agreements provisions. Additionally, the Court ignored the fact that the KCA were not in a relation of dependency when they negotiated their treaty with the U.S. in 1867.
The only question the Court considered was whether the Act of June 6, 1900, was constitutional. Despite Lone Wolf’s treaty and constitutional arguments, Justice White accepted the “wardship” arguments of Van Devanter and said that the Indians’ treaty-defined property rights had vested not in themselves but in the federal government. This “contention” of the Indians, said White, “in effect ignores the status of the contracting Indians and the relation of dependency they bore and continue to bear toward the government of the United States.” White was retroactively bestowing wardship status on the tribes to make the abrogation of their treaty rights appear legal. He went on: “To uphold the claim would be to adjudge that the indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act, if the assent of the Indians could not be obtained.”205
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