Author: The Evergreen State College

Lone Wolf v. Hitchcock: Background

Lone Wolf v. Hitichcock involves litigation by Lone Wolf, chief of the Kiowa people, who had joined other southern Great Plains tribes to sign a treaty with the U.S. government in 1867.  Known as the Treaty of Medicine Lodge Creek, it created a reservation between the Canadian and Rivers in Oklahoma.   Among other things, the treaty provided that the heads of Indian families could select up to 320 acres of reservation land to own.  Article 12 of the treaty stated that:

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 Indian males occupying the same. 

In 1887, Senator Henry Dawes of Massachusetts sponsored the General Allotment Act, designed to promote the assimilation of Indians into American society by encouraging the breakup of tribes.  In Lone Wolf v. Hitchcock, Chief Lone Wolf and others of the Kiowa people contended that by carrying out the provisions of the Allotment (Dawes Act), Congress had unlawfully violated the Treaty of Medicine Lodge Creek. To help you understand the Lone Wolf case, I have provided relevant information from two sources.

From Blue Clark, Lone Wolf v. Hitchcock: Treaty Rights & Indian Law at the End of the Nineteenth Century (1994: University of Nebraska Press), pp1-2:

“Allotment comprised the most important policy change for American Indians in nineteenth-century America.  It proved disastrous for tribal government and land areas: allotment undermined both.  The federal government’s allotment policy assigned farmsteads to individual Indians in an attempt to merge the new Indian yeomanry into national life.  Partitioning tribal estates liquidated tribal reservation land areas, terminated communal Indian land ownership, detribalized the individual Indian, and opened the surplus lands to homesteading.

“Massachusetts Senator Henry L. Dawes embraced an earlier idea to compel Indians to take individual farmsteads, forcing an end to any Indian connections to a communal tribal organization.  Senator Dawes came to symbolize allotment of Indian lands.  He represented the assumption of his era regarding the conquered status of Indians and their governments, as well as the disposition of their lands.  He believed that their condition could be altered according to the will of Congress without regard to Indians’ wishes.  His rigid views remained constant in spite of lingering doubts about the effectiveness of the policy of allotment that would be identified with his name.

“The Dawes Severalty or General Allotment Act of 1887 inaugurated vigorous American Indian reservation land division, which dominated United States Indian policy for over half a century.  Its effects took a variety of forms depending on the reservation, circumstances, effectiveness of resistance, and swings in national assimilation policy.  Ultimately, over two-thirds of Indian land passed out of aboriginal control as a consequence of the measure.  What little land was left in Indian possession was often marginal and unproductive.  Fractionated division of surviving Indian allotted land left it equally poor.  Unrelenting pressures for allotment after 1887 led directly to Indian landholding decline.  After removal from their homelands earlier in the century, allotment was the most traumatic federal policy affecting Indian people.  Its ramifications reach into the present.”

From Wikipeda, the Free Encyclopedia: Dawes Act (http://en.wikipedia.org/wiki/Dawes_Act):

“The practical results of the Dawes act were that some sixty million acres (240,000 km²) of treaty land (almost half) were opened to settlement by non-Indians. The plan proved disastrous for the Indians, however. Few attained the self-sufficiency envisioned by the humanitarian groups.

“The congressionally commissioned Miriam Report of 1928 documented fraud and misappropriation by government agents. In particular, the act was used to illegally deprive Indians of their land rights. After considerable debate, the congress terminated the allotment process by enacting the Wheeler-Howard Act (Indian Reorganization Act) of 1934.

“The 1887 Dawes General Allotment Act had one of the most substantial impacts on Natives, most significantly affecting Native gender roles. This Act broke up the reservation lands into privately owned parcels of property. In this way, the legislators hoped to complete the assimilation process by deteriorating the communal life-style of the Native societies and impose values of strengthening the nuclear family and values of economic dependency strictly within this small household. Legislators' opinions of communal living saw the extended family as “needy” since the Indigenous ideas of wealth contrasted and disagreed with Western ideas of wealth (Stremlau 277). Indigenous people valued generosity and received status by being generous. Western values form around individual wealth and surplus and status is gained from these same values.

“The kin-network, which was the base of economic and social reproduction in Indigenous societies, split and the reservation became a checkerboard pattern. Each “head of the family,” which, in contrast most Indigenous traditional structures, became the male, received a 160-acre allotment and each single person over eighteen years of age or orphan received an 80-acre allotment. The United States government opened the surplus land to non-Indian settlement, creating the checkerboard pattern (Stremlau 276). The allotment policy abolished Native society leaving Native people as simply Americans, and impoverished Americans at that.

“The Act forced Native people onto small tracts of land distant from their kin relations. Traditionally, in most Indigenous societies, women were the agriculturists while the men were the hunters and warriors. The Allotment policy depleted the land base, ending hunting as a means of subsistence. According to Victorian ideals, the men were forced into the fields to take on the woman's role and the women were domesticated. This Act imposed a patrilineal nuclear household onto many traditional matrilineal Native societies. Native gender roles and relations quickly changed with this policy since communal living shaped the social order of Native communities. Women were no longer the caretakers of the land and they were no longer valued in the public political sphere. Even in the home, the Native woman was dependent on her husband. Before Allotment, women divorced easily and had important political and social status for they were usually the center of their kin network (Olund 157). With this Act, women were deprived title to land and the distribution of allotments proves this point. To receive the full 160 acres, women had to be married and even then, her husband received title to the land.

Sources:

Olund, Eric N. “Public Domesticity during the Indian Reform Era; or, Mrs. Jackson is induced to go to Washington.” Gender, Place, and Culture 9 (2002): 153-166.

Stremlau, Rose. “To Domesticate and Civilize Wild Indians”: Allotment and the Campaign to Reform Indian Families, 1875-1887. Journal of Family History 30 (2005): 265-286.

Supreme Court of the United States
LONE WOLF, Principal Chief of the Kiowas, et al., Appts.,
v.
ETHAN A. HITCHCOCK, Secretary of the Interior, et al.
No. 275.

Argued October 23, 1902.
Decided January 5, 1903.

 APPEAL from the Court of Appeals of the District of Columbia to review a decree which affirmed a decree of the Supreme Court of the District in favor of defendants in a suit to enjoin the carrying into effect of the act of Congress of June 6, 1900 (31 Stat. at L. 677, chap. 813), dealing with the disposition of tribal property of the Kiowa, Comanche, and Apache Indians.  Affirmed.

 Mr. Justice White … delivered the opinion of the court:

By the sixth article of the first of the two treaties referred to in the preceding statement, proclaimed on August 25, 1868 (15 Stat. at L. 581), it was provided that heads of families of the tribes affected by the treaty might select, within the reservation, a tract of land of not exceeding 320 acres in extent, which should thereafter cease to be held in common, and should be for the exclusive possession of the Indian making the selection so long as he or his family might continue to cultivate the land.  The twelfth article reads as follows:

 'Article 12.  No treaty for the cession of any portion or part of the reservation herein in 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 same, and no cession by the tribe shall be understood or construed in such manner as to deprive, without his consent, any individual member of the tribe of his rights to any tract of land selected by him as provided in article 3 [6] of this treaty.'

The appellants base their right to relief on the proposition that by the effect of the article just quoted the confederated tribes of Kiowas, Comanches, and Apaches were vested with an interest in the lands held in common within the reservation, which interest could not be devested by Congress in any other mode than that specified in the said twelfth article, and that as a result of the said stipulation the interest of the Indians in the common lands fell within the protection of the 5th Amendment to the Constitution of the United States, and such interest--indirectly at least--came under the control of the judicial branch of the government.  We are unable to yield our assent to this view.

The contention [that Congress could not divest the tribes of their lands except according to the terms of the treaty] in effect ignores the status of the contracting Indians and the relation of dependency they bore and continue to bear towards the government of the United States.  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.

Now, it is true that in decisions of this court, the Indian right of occupancy of tribal lands, whether declared in a treaty or otherwise created, has been stated to be sacred, or, as sometimes expressed, as sacred as the fee of the United States in the same lands.  But in none of these cases was there involved a controversy between Indians and the government respecting the power of Congress to administer the property of the Indians.  The questions considered in the cases referred to, which either directly or indirectly had relation to the nature of the property rights of the Indians, concerned the character and extent of such rights as respected states or individuals.  In one of the cited cases it was clearly pointed out that Congress possessed a paramount power over the property of the Indians, by reason of its exercise of guardianship over their interests, and that such authority might be implied, even though opposed to the strict letter of a treaty with the Indians.  Thus, in Beecher v. Weherby, 95 U. S. 525, 24 L. ed. 441, discussing the claim that there had been a prior reservation of land by treaty to the use of a certain tribe of Indians, the court said (p. 525, L. ed. p. 441):

 'But the right which the Indians held was only that of occupancy.  The fee was in the United States, subject to that right, and could be transferred by them whenever they chose.  …It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race.  …

Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government.  Until the year 1871 the policy was pursued of dealing with the Indian tribes by means of treaties, and, of course, a moral obligation rested upon Congress to act in good faith in performing the stipulations entered into on its behalf.  But, as with treaties made with foreign nations (Chinese Exclusion Case, 130 U. S. 581, 600, 32 L. ed. 1068, 1073, 9 Sup. Ct. Rep. 623), the legislative power might pass laws in conflict with treaties made with the Indians.

The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so.  When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians.  In United States v. Kagama (1885) 118 U. S. 375, 30 L. ed. 228, 6 Sup. Ct. Rep. 1109, speaking of the Indians, the court said (p. 382, L. ed. p. 230, Sup. Ct. Rep. p. 1113):

 'After an experience of a hundred years of the treaty-making system of government Congress has determined upon a new departure,--to govern them by acts of Congress.  This is seen in the act of March 3, 1871, embodied in §  2079 of the Revised Statutes:  'No Indian nation or tribe, within the territory of the United States, shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3d, 1871, shall be hereby invalidated or impaired.''

In upholding the validity of an act of Congress which conferred jurisdiction upon the courts of the United States for certain crimes committed on an Indian reservation within a state, the court said (p. 383, L. ed. p. 231, Sup. Ct. Rep. p. 1114):

'It seems to us that this is within the competency of Congress.  These Indian tribes are the wards of the nation.  They are communities dependent on the United States.  Dependent largely for their daily food.  Dependent for their political rights.  They own no allegiance to the states, and receive from them no protection.  Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies.  From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power.  This has always been recognized by the executive and by Congress, and by this court, whenever the question has arisen.

  * * *
‘The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell.  It must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.'

That Indians who had not been fully emancipated from the control and protection of the United States are subject, at least so far as the tribal lands were concerned, to be controlled by direct legislation of Congress, is also declared in Choctaw Nation v. United States, 119 U. S. 1, 27, 30 L. ed. 306, 314, 7 Sup. Ct. Rep. 75, and Stephens v. Choctaw Nation, 174 U. S. 445, 483, 43 L. ed. 1041, 1054, 19 Sup. Ct. Rep. 722.

In view of the legislative power possessed by Congress over treaties with the Indians and Indian tribal property, we may not specially consider the contentions pressed upon our notice that the signing by the Indians of the agreement of October 6, 1892, was obtained by fraudulent misrepresentations, and concealment, that the requisite three fourths of adult male Indians had not signed, as required by the twelfth article of the treaty of 1867, and that the treaty as signed had been amended by Congress without submitting such amendments to the action of the Indians since all these matters, in any event, were solely within the domain of the legislative authority, and its action is conclusive upon the courts.

The act of June 6, 1900, which is complained of in the bill, was enacted at a time when the tribal relations between the confederated tribes of Kiowas, Comanches, and Apaches still existed, and that statute and the statutes supplementary thereto dealt with the disposition of tribal property, and purported to give an adequate consideration for the surplus lands not allotted among the Indians or reserved for their benefit.  Indeed, the controversy which this case presents is concluded by the decision in Cherokee Nation v. Hitchcock, 187 U. S. 294, ante, 115, 23 Sup. Ct. Rep. 115, decided at this term, where it was held that full administrative power was possessed by Congress over Indian tribal property.  In effect, the action of Congress now complained of was but an exercise of such power, a mere change in the form of investment of Indian tribal property, the property of those who, as we have held, were in substantial effect the wards of the government.  We must presume that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises.  In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation.  If injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress, and not to the courts. The legislation in question was constitutional, and the demurrer to the bill was therefore rightly sustained.

 …[F]or the reasons previously given and the nature of the controversy, we think the decree below should be affirmed.

 And it is so ordered.

 Mr. Justice Harlan concurs in the result.