Ward v. Race Horse/Dissent Brown

Mr. Justice BROWN, dissenting.

As the opinion of the court seems to me to imply and to sanction a distinct repudiation by congress of a treaty with the Bannock Indians, I am unable to give my assent to it. The facts are in a nutshell.

On July 3, 1868, the United States entered into a treaty (15 Stat. 673) with the Shoshonees and Bannock tribes of Indians, by which the latter agreed to accept and settle upon certain reservations, and the former agreed that the Indians shoud have 'the right to hunt on the 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.'

A few days thereafter, and on July 25, 1868, congress passed an act 'to provide a temporary government for the territory of Wyoming' (15 Stat. 178), within which the Bannock reservation was situated, with a proviso 'that 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.'

So far as it appears, the above treaty still remains in force, but the position of the majority of the court is that the admission of the territory of Wyoming as a state abrogated it pro tanto, and put the power of the Indians to hunt on the unoccupied lands of the United States completely at the mercy of the state government.

Conceding, at once, that it is within the power of congress to abrogate a treaty, or, rather, that the exercise of such power raises an issue, which the other party to the treaty is alone competent to deal with, it will be also conceded that the abrogation of a public treaty ought not to be inferred from doubtful language, but that the intention of congress to repudiate its obligation ought clearly to appear. As we said in Hauenstein v. Lynham, 100 U.S. 483, 'where a treaty admits of two constructions, one restricted as to the rights that may be claimed under it, and the other liberal, the latter is to be preferred. Such is the settled rule of this court.' See, also, Chew Heong v. U.S., 112 U.S. 536, 549, 5 Sup. Ct. 255.

It appears from the first article that this treaty was entered into at the close of a war between the two contracting parties; that the Indians agreed to accept certain reservations of land, and the United States, on its part, 'solemnly agreed' that no persons, with certain designated exceptions, 'shall ever be permitted to pass over, settle upon, or reside in the territory described in this article for the use of said Indians, and * *  * they shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists between the whites and the Indians on the borders of the hunting districts.' The fact that the territory of Wyoming would ultimately be admitted as a state must have been anticipated by congress, yet the right to hunt was assured to the Indians, not until this should take place, but so long as game may be found upon the lands, and so long as peace should subsist on the borders of the hunting districts. Not only this, but the territory was created with the distinct reservation that the rights of the Indians should not be construed to be impaired so long as they remained unextinguished by further treaty. 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, that even their agriculture was of the rudest description, 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 the 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. If the position of the court be sound, this treaty might have been abrogated the next day by the admission of Wyoming as a state, and what might have been done in this case might be done in the case of every Indian tribe within our boundaries. There is no limit to the right of the state, which may, in its discretion, prohibit the killing of all game, and thus practically deprive the Indians of their principal means of subsistence.

I am not impressed with the theory that the act admitting Wyoming into the Union upon an equal footing with the original states authorized them to impair or abrogate rights previously granted by the sovereign power by treaty, or to discharge itself of burdens which the United States had assumed before her admission into the Union. In the Cases of the Kansas Indians, 5 Wall. 737, we held that a state, when admitted into the Union, was bound to respect an exemption from taxation which had been previously granted to tribes of Indians within its borders, because, as the court said, the state of Kansas 'accepted this status when she accepted the act admitting her into the Union. Conferring rights and privileges on these Indians cannot affect their situation, which can only be changed by treaty stipulation, or a voluntary abandonment of their tribal organization. As long as the United States recognizes their national character, they are under the protection of the treaties and laws of congress, and their property is withdrawn from the operation of state laws.'

It is true that the act admitting the state of Kansas into the Union contained a proviso similar to that in the act erecting a government for the territory of Wyoming, viz.: 'That nothing contained in this said constitution respecting the boundaries of said state shall be construed to impair the rights of person or property now pertaining to the Indians of said territory, so long as such rights shall remain unextinguished by treaty with such Indians.' In this particular the cases differ from each other only in the fact that the proviso in the one case is inserted in the act creating the territory, and in the other in the act admitting the territory as a state; and, unless we are to say that the act admi ting the territory of Wyoming as a state absolved it from its liabilities as a territory, it would seem that the treaty applied as much in the one case as in the other. But, however this may be, the proviso in the territorial act exhibited a clear intention on the part of congress to continue in force the stipulation of the treaty, and there is nothing in the act admitting the territory as a state which manifests an intention to repudiate them. I think, therefore, the rights of these Indians could only be extinguished by purchase, or by a new arrangement with the United States.

I understant the words 'unoccupied lands of the United States' to refer, 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, but I am quite unable to see how the admission of a territory into the Union changes their character from that of unoccupied to that of occupied lands.