Is Lone Wolf v. Hitchcock still good law?

Opinion · Supreme Court of the United States

Lone Wolf v. Hitchcock

187 U.S. 553

Type: Opinion
Court: Supreme Court of the United States
Jurisdiction: Federal
Date: 1903-01-05
Topic: general

How later courts describe this case

stating that “Congress possess[es] paramount power over the property of the Indians, by reason of its exercise of guardianship over their interests”
holding that Congress could terminate a reservation unilaterally
validating congressional allotment in conflict with treaty between the United States and Kiowa and Comanche Tribes
upholding statute ceding Indian land without tribe’s consent and in abrogation of treaty
“When ⅛ * * 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.”
“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”
“Congress possesse[s] a paramount power over the property of the Indians”
“It is to be pre‐ sumed that in this matter the United States would be gov‐ erned by such considerations of justice as would control a Christian people in their treatment of an ignorant and de‐ pendent race.”

Citator

UpLaw has not yet analyzed Lone Wolf v. Hitchcock. The absence of a flag is not a finding that it is good law.

Authority status: pending
Cited by: 410 opinions

Headnotes

Native American Law — Treaty Limitations on Congressional Authority A treaty provision requiring the assent of three-fourths of adult male Indians before any cession of commonly held reservation land is valid cannot be construed to materially limit or qualify Congress's controlling authority over the care and protection of the Indians, or to deprive Congress of all power to act in a possible emergency requiring partition and disposal of tribal lands where such assent cannot be obtained. 187 U.S. 553 (1903)
Native American Law — Congressional Plenary Power Congress has always exercised plenary authority over the tribal relations of the Indians from the beginning, and that power has always been deemed a political one, not subject to control by the judicial department of the government. 187 U.S. 553 (1903)
Native American Law — Indian Right of Occupancy The Indian right of occupancy of tribal lands, whether declared in a treaty or otherwise created, is sacred and as sacred as the fee of the United States in the same lands, but that right is only one of occupancy; the fee is in the United States subject to that right, and may be transferred by the United States whenever it chooses. 187 U.S. 553 (1903)
Native American Law — Abrogation of Indian Treaties The power exists in Congress 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 treaty's stipulations, but may demand, in the interest of the country and the Indians themselves, that it do so; it was never doubted that this power to abrogate existed in Congress and might be availed of in a contingency from considerations of governmental policy, particularly if consistent with perfect good faith toward the Indians. 187 U.S. 553 (1903)
Native American Law — Status of Indian Tribes Indian tribes are the wards of the nation, communities dependent on the United States for their daily food and political rights, who owe no allegiance to the States and receive no protection from them; from their weakness and helplessness arises a duty of protection, and with it the power in the federal government over these dependent peoples, a power necessary both to their protection and to the safety of those among whom they dwell. 187 U.S. 553 (1903) (citing United States v. Kagama, 118 U.S. 375)
Native American Law — Judicial Review of Congressional Action Where Congress possesses legislative power over treaties with the Indians and Indian tribal property, challenges that an agreement with the Indians was obtained by fraudulent misrepresentations or concealment, that the requisite number of Indians did not sign as required by treaty, or that the agreement was amended by Congress without submitting the amendments to the Indians, are matters solely within the domain of the legislative authority, and its action is conclusive upon the courts. 187 U.S. 553 (1903)
Native American Law — Presumption of Congressional Good Faith Where Congress enacts legislation dealing with the disposition of tribal property and purports to give adequate consideration for surplus lands not allotted among the Indians, the courts must presume that Congress acted in perfect good faith and exercised its best judgment; because Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of such legislation. 187 U.S. 553 (1903)
Native American Law — Remedies If injury was occasioned by the use Congress made of its power over Indian tribal property, relief must be sought by an appeal to Congress for redress, not to the courts. 187 U.S. 553 (1903)

LONE WOLFv. HITCHCOCK,187 U.S. 553(1903)

23 S.Ct. 216

LONE WOLFv. HITCHCOCK.

APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

No. 275.

Argued October 23, 1902.

Decided January 5, 1903.

The provisions in article 12 of the Medicine Lodge treaty of 1867 with the Kiowa and Comanche Indians to the effect that no treaty for the cession of any part of the reservation therein described, which may be held in common, shall be of any force or validity as against the Indians unless executed and signed by at least three fourths of all the adult male Indians occupying the same, cannot be adjudged 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 three fourths of all the male Indians could not be obtained. Congress has always exercised plenary authority over the tribal relations of the Indians and the power has always been deemed a political one not subject to be controlled by the courts. In view of the legislative power possessed by Congress over treaties with the Indians, and Indian tribal property, even if a subsequent agreement or treaty purporting to be signed by three fourths of all the male Indians was not signed and amendments to such subsequent treaty were not submitted to the Indians, as all these matters were solely within the domain of the legislative authority, the action of Congress is conclusive upon the courts. As the act of June 6, 1900, as to the disposition of these lands was enacted at a time when the tribal relations between the confederated tribes of the Kiowas, Comanches and Apaches still existed, and that statute and the statutesPage 554supplementary 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, such legislation was constitutional and this court will presume that Congress acted in perfect good faith and exercised its best judgment in the premises, and as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of such legislation.

IN 1867 a treaty was concluded with the Kiowa and Comanche

tribes of Indians, and such other friendly tribes as might be

united with them, setting apart a reservation for the use of such

Indians. By a separate treaty the Apache tribe of Indians was

incorporated with the two former-named, and became entitled to

share in the benefits of the reservation.15 Stat. 581, 589.

The first named treaty is usually called the Medicine Lodge

treaty. By the sixth article thereof it was provided that heads

of families might select a tract of land within the reservation,

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 of the

treaty was as follows:

"Article 12. 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 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 III (VI) of this treaty."

The three tribes settled under the treaties upon the described

land. On October 6, 1892, 456 male adult members of the

confederated tribes signed, with three commissioners representing

the United States, an agreement concerning the reservation. The

Indian agent, in a certificate appended to the agreement,

represented that there were then 562 male adults in the three

tribes. Senate Ex. Doc. No. 27, 52d Congress, second session,

Page 555

page 17. Four hundred and fifty-six male adults therefore

constituted more than three fourths of the certified number of

total male adults in the three tribes. In form the agreement was

a proposed treaty, the terms of which, in substance, provided for

a surrender to the United States of the rights of the tribes in

the reservation, for allotments out of such lands to the Indians

in severally, the fee simple title to be conveyed to the

allottees or their heirs after the expiration of twenty-five

years; and the payment or setting apart for the benefit of the

tribes of two million dollars as the consideration for the

surplus of land over and above the allotments which might be made

to the Indians. It was provided that sundry named friends of the

Indians (among such persons being the Indian agent and an army

officer) "should each be entitled to all the benefits, in land

only, conferred under this agreement, the same as if members of

said tribes." Eliminating 350,000 acres of mountainous land, the

quantity of surplus lands, suitable for farming and grazing

purposes was estimated at 2,150,000 acres. Concerning the payment

to be made for these surplus lands, the commission, in their

report to the President announcing the termination of the

negotiations, said (Senate Ex. Doc. No. 17, second session, 52d

Congress):

"In this connection it is proper to add that the commission

agreed with the Indians to incorporate the following in their

report, which is now done:

"The Indians upon this reservation seem to believe (but

whether from an exercise of their own judgment or from the advice

of others the commission cannot determine) that their surplus

land is worth two and one half million dollars, and Congress may

be induced to give them that much for it. Therefore, in

compliance with their request, we report that they desire to be

heard through an attorney and a delegation to Washington upon

that question, the agreement signed, however, to be effective

upon ratification, no matter what Congress may do with their

appeal for the extra half million dollars."

In transmitting the agreement to the Secretary of the

Interior, the Commissioner of Indian Affairs said:

"The price paid, while considerably in excess of that paid

Page 556

to the Cheyennes and Arapahoes, seems to be fair and reasonable,

both to the government and the Indians, the land being doubtless

of better quality than that in the Cheyenne and Arapahoe

reservation."

Attention was directed to the provision in the agreement in

favor of the Indian agent and an army officer, and it was

suggested that to permit them to avail thereof would establish a

bad precedent.

Soon after the signing of the foregoing agreement it was

claimed by the Indians that their assent had been obtained by

fraudulent misrepresentations of its terms by the interpreters,

and it was asserted that the agreement should not be held binding

upon the tribes because three fourths of the adult male members

had not assented thereto, as was required by the twelfth

article of the Medicine Lodge treaty.

Obviously, in consequence of the policy embodied in section

2079 of the Revised Statutes, departing from the former custom of

dealing with Indian affairs by treaty and providing for

legislative action on such subjects, various bills were

introduced in both Houses of Congress designed to give legal

effect to the agreement made by the Indians in 1892. These bills

were referred to the proper committees, and before such

committees the Indians presented their objections to the

propriety of giving effect to the agreement. (H.R. Doc. No. 431,

55th Congress, second session.) In 1898 the Committee on Indian

Affairs of the House of Representatives unanimously reported a

bill for the execution of the agreement made with the Indians.

The report of the committee recited that a favorable conclusion

had been reached by the committee "after the fullest hearings

from delegations of the Indian tribes and all parties at

interest." (H.R. Doc. No. 419, first session, 56th Congress, p. 5.)

The bill thus reported did not exactly conform to the

agreement as signed by the Indians. It modified the agreement by

changing the time for making the allotments, and it also provided

that the proceeds of the surplus lands remaining after allotments

to the Indians should be held to await the judicial decision of a

claim asserted by the Choctaw and Chickasaw

Page 557

tribes of Indians to the surplus lands. This claim was based upon

a treaty made in 1866, by which the two tribes ceded the

reservation in question, it being contended that the lands were

impressed with a trust in favor of the ceding tribes, and that

whenever the reservation was abandoned, so much of it as was not

allotted to the confederated Indians of the Comanche, Kiowa and

Apache tribes reverted to the Choctaws and Chickasaws.

The bill just referred to passed the House of Representatives

on May 16, 1898. (31st Cong. Rec. p. 4947.) When the bill reached

the Senate that body, on January 25, 1899, adopted a resolution

calling upon the Secretary of the Interior for information as to

whether the signatures attached to the agreement comprised three

fourths of the male adults of the tribes. In response the

Secretary of the Interior informed the Senate, under date of

January 28, 1899, that the records of the department "failed to

show a census of these Indians for the year 1892," but that "from

a roll used in making a payment to them in January and February,

1893, it appeared that there were 725 males over eighteen years

of age, of whom 639 were twenty-one years and over." The

Secretary further called attention to the fact that by the

agreement of 1892 a right of selection was conferred upon each

member of the tribes over eighteen years of age, and observed:

"If 18 years and over be held to be the legal age of those who

were authorized to sign the agreement, the number of persons who

actually signed was 87 less than three fourths of the adult male

membership of the tribes; and if 21 years be held to be the

minimum age, then 23 less than three fourths signed the

agreement. In either event, less than three fourths of the male

adults appear to have so signed."

With this information before it the bill was favorably

reported by the Committee on Indian Affairs of the Senate, but

did not pass that body.

At the first session of the following Congress (the

Fifty-sixth) bills were introduced in both the Senate and House

of Representatives substantially like that which has just been

noticed. (Senate, 1352; H.R. 905.)

Page 558

In the meanwhile, about October, 1899, the Indians had, at a

general council at which 571 male adults of the tribes purported

to be present, protested against the execution of the provisions

of the agreement of 1892, and adopted a memorial to Congress,

praying that that body should not give effect to the agreement.

This memorial was forwarded to the Secretary of the Interior by

the Commissioner of Indian Affairs with lengthy comments,

pointing out the fact that the Indians claimed that their

signatures to the agreement had been procured by fraud and that

the legal number of Indians had not signed the agreement, and

that the previous bills and bills then pending contemplated

modification of the agreement in important particulars without

the consent of the Indians. This communication from the

Commissioner of Indian Affairs, together with the memorial of the

Indians, were transmitted by the Secretary of the Interior to

Congress. (Senate Doc. No. 76; H.R. Doc. No. 333; first session,

Fifty-sixth Congress.) Attention was called to the fact that

although by the agreement of October 6, 1892, one half of each

allotment was contemplated to be agricultural land, there was

only sufficient agricultural land in the entire reservation to

average thirty acres per Indian. After setting out the charges of

fraud and complaints respecting the proposed amendments designed

to be made to the agreement, as above stated, particular

complaint was made of the provision in the agreement of 1892 as

to allotments in severally among the Indians of lands for

agricultural purposes. After reciting that the tribal lands were

not adapted to such purposes, but were suitable for grazing, the

memorial proceeded as follows:

"We submit that the provision for lands to be allotted to us

under this treaty are insufficient, because it is evident we

cannot, on account of the climate of our section, which renders

the maturity of crops uncertain, become a successful farming

community; that we, or whoever else occupies these lands, will

have to depend upon the cattle industry for revenue and support.

And we therefore pray, if we cannot be granted the privilege of

keeping our reservation under the treaty made with us in 1868,

and known as the Medicine Lodge treaty, that authority

Page 559

be granted for the consideration of a new treaty that will make

the allowance of land to be allotted to us sufficient for us to

graze upon it enough stock cattle, the increase from which we can

market for support of ourselves and families."

With the papers just referred to before it, the House

Committee on Indian Affairs, in February, 1900, favorably

reported a bill to give effect to the agreement of 1892.

On January 19, 1900, an act was passed by the Senate, entitled

"An act to ratify an agreement made with the Indians of the Fort

Hall Indian reservation in Idaho, and making an appropriation to

carry the same into effect." In February, 1900, the House

Committee on Indian Affairs, having before it the memorial of the

Indians transmitted by the Secretary of the Interior, and also

having for consideration the Senate bill just alluded to,

reported that bill back to the House favorably, with certain

amendments. (H.R. Doc. No. 419, 56th Congress, first session.)

One of such amendments consisted in adding to the bill in

question, as section 6, a provision to execute the agreement made

with the Kiowa, Comanche and Apache Indians in 1892. Although the

bill thus reported embodied the execution of the agreement last

referred to, the title of the bill was not changed, and

consequently referred only to the execution of the agreement made

with the Indians of the Fort Hall reservation in Idaho. The

provisions thus embodied in section 6 of the bill in question

substantially conformed to those contained in the bill which had

previously passed the House, except that the previous enactment

on this subject was changed so as to do away with the necessity

for making to each Indian one half of his allotment in

agricultural land and the other half in grazing land. In addition

a clause was inserted in the bill providing for the setting apart

of a large amount of grazing land to be used in common by the

Indians. The provision in question was as follows:

"That in addition to the allotment of lands to said Indians as

provided for in this agreement, the Secretary of the Interior

shall set aside for the use in common for said Indian tribes four

hundred and eighty thousand acres of grazing lands, to be

Page 560

selected by the Secretary of the Interior, either in one or more

tracts as will best subserve the interest of said Indians."

The provision of the agreement in favor of the Indian agent

and army officer was also eliminated.

The bill, moreover, exempted the money consideration for the

surplus lands from all claims for Indian depredations, and

expressly provided that in the event the claim of the Choctaws

and Chickasaws was ultimately sustained, the consideration

referred to should be subject to the further action of Congress.

In this bill as in previous ones provision was made for

allotments to the Indians, the opening of the surplus land for

settlement, etc. The bill became a law by concurrence of the

Senate in the amendments adopted by the House as just stated.

Thereafter, by acts approved on January 4, 1901,31 Stat. 727,

c. 8; March 3, 1901,31 Stat. 1078, c. 832, and March 3, 1901,

31 Stat. 1093, c. 846, authority was given to extend the time for

making allotments and opening of the surplus land for settlement

for a period not exceeding eight months from December 6, 1900;

appropriations were made for surveys in connection with

allotments and setting apart of grazing lands; and authority was

conferred to establish counties and county seats, townsites,

etc., and proclaim the surplus lands open for settlement by white

people.

On June 6, 1901, a bill was filed on the equity side of the

Supreme Court of the District of Columbia, wherein Lone Wolf (one

of the appellants herein) was named as complainant, suing for

himself as well as for all other members of the confederated

tribes of the Kiowa, Comanche and Apache Indians, residing in the

Territory of Oklahoma. The present appellees (the Secretary of

the Interior, the Commissioner of Indian Affairs and the

Commissioner of the General Land Office) were made respondents to

the bill. Subsequently, by an amendment to the bill, members of

the Kiowa, Comanche and Apache tribes were joined with Lone Wolf

as parties complainant.

The bill recited the establishing and occupancy of the

reservation in Oklahoma by the confederated tribes of Kiowas,

Comanches and Apaches, the signing of the agreement of October 6,

1892, and the subsequent proceedings which have been detailed,

Page 561

culminating in the passage of the act of June 6, 1900, and the

acts of Congress supplementary to said act. In substance it was

further charged in the bill that the agreement had not been

signed as required by the Medicine Lodge treaty, that is, by

three fourths of the male adult members of the tribe, and that

the signatures thereto had been obtained by fraudulent

misrepresentations and concealment, similar to those recited in

the memorial signed at the 1899 council. In addition to the

grievance previously stated in the memorial, the charge was made

that the interpreters falsely represented, when the said treaty

was being considered by the Indians, that the treaty provided

"for the sale of their surplus lands at some time in the future

at the price of $2.50 per acre;" whereas, in truth and in fact,

"by the terms of said treaty, only $1.00 an acre is allowed for

said surplus lands," which sum, it was charged, was an amount far

below the real value of said lands. It was also averred that

portions of the signed agreement had been changed by Congress

without submitting such changes to the Indians for their

consideration. Based upon the foregoing allegations, it was

alleged that so much of said act of Congress of June 6, 1900, and

so much of said acts supplementary thereto and amendatory thereof

as provided for the taking effect of said agreement, the

allotment of certain lands mentioned therein to members of said

Indian tribes, the surveying, laying out, and platting townsites

and locating county seats on said lands, and the ceding to the

United States and the opening to settlement by white men of two

million acres of said lands, were enacted in violation of the

property rights of the said Kiowa, Comanche and Apache Indians,

and if carried into effect would deprive said Indians of their

lands without due process of law, and that said parts of said

acts were contrary to the Constitution of the United States, and

were void, and conferred no right, power or duty upon the

respondents to do or perform any of the acts or things enjoined

or required by the acts of Congress in question. Alleging the

intention of the respondents to carry into effect the aforesaid

claimed unconstitutional and void acts, and asking discovery by

answers to interrogatories propounded to the respondents, the

allowance of a temporary restraining order, and a final decree

Page 562

awarding a perpetual injunction was prayed, to restrain the

commission by the respondents of the alleged unlawful acts by

them threatened to be done. General relief was also prayed.

On January 6, 1901, a rule to show cause why a temporary

injunction should not be granted was issued. In response to this

rule an affidavit of the Secretary of the Interior was filed, in

which in substance it was averred that the complainant (Lone

Wolf) and his wife and daughter had selected allotments under the

act of June 6, 1900, and the same had been approved by the

Secretary of the Interior and that all other members of the

tribes, excepting twelve, had also accepted and retained

allotments in severally, and that the greater part thereof had

been approved before the bringing of this suit. It was also

averred that the 480,000 acres of grazing land provided to be set

apart, in the act of June 6, 1900, for the use by the Indians in

common, had been so set apart prior to the institution of the

suit, "with the approval of a council composed of chiefs and

headmen of said Indians." Thereupon an affidavit verified by Lone

Wolf was filed, in which in effect he denied that he had accepted

an allotment of lands under the act of June 6, 1900, and the acts

supplementary to and amendatory thereof. Thereafter, on June 17,

1901, leave was given to amend the bill and the same was amended,

as heretofore stated, by adding additional parties complainant

and by providing a substituted first paragraph of the bill, in

which was set forth, among other things, that the three tribes,

at a general council held on June 7, 1901, had voted to institute

all legal and other proceedings necessary to be taken, to prevent

the carrying into effect of the legislation complained of.

The Supreme Court of the District on June 21, 1901, denied the

application for a temporary injunction. The cause was thereafter

submitted to the court on a demurrer to the bill as amended. The

demurrer was sustained, and the complainants electing not to

plead further, on June 26, 1901, a decree was entered in favor of

the respondents. An appeal was thereupon taken to the Court of

Appeals of the District. While this appeal was pending, the

President issued a proclamation, dated July 4, 1901, (32 Stat.

Appx. Proclamations, 11,) in which it was

Page 563

ordered that the surplus lands ceded by the Comanche, Kiowa and

Apache and other tribes of Indians should be opened to entry and

settlement on August 6, 1901. Among other things, it was recited

in the proclamation that all the conditions required by law to be

performed prior to the opening of the lands to settlement and

entry had been performed. It was also therein recited that, in

pursuance of the act of Congress ratifying the agreement,

allotments of land in severally had been regularly made to each

member of the Comanche, Kiowa and Apache tribes of Indians; the

lands occupied by religious societies or other organizations for

religious or educational work among the Indians had been

regularly allotted and confirmed to such societies and

organizations, respectively; and the Secretary of the Interior,

out of the lands ceded by the agreement, had regularly selected

and set aside for the use in common for said Comanche, Kiowa and

Apache tribes of Indians, four hundred and eighty thousand acres

of grazing lands.

The Court of Appeals (without passing on a motion which had

been made to dismiss the appeal) affirmed the decree of the court

below, and overruled a motion for reargument.19 App.D.C. 315.

An appeal was allowed, and the decree of affirmance is now here

for review.

Mr. William M. SpringerandMr. Hampton L. Carsonfor appellants.Mr. Assistant Attorney General Van Devanterfor appellee.

MR. JUSTICE WHITE, after making the foregoing statement, 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. 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,Page 564so 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 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 III (VI) 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 divested 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 Fifth 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 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.Johnsonv.McIntosh, (1823) 8 Wheat. 543, 574;Page 565Cherokee Nationv.Georgia, (1831) 5 Pet. 1, 48;Worcesterv.Georgia, (1832) 6 Pet. 515, 581;United Statesv.Cook, (1873) 19 Wall. 591, 592;Leavenworth c. R.R. Co. v.UnitedStates, (1875)92 U.S. 733,755;Beecherv.Wetherby, (1877)95 U.S. 517,525. 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, inBeecherv.Wetherby,95 U.S. 517, 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):

"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. The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians; that occupancy could only be interfered with or determined by the United States. 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. Be that as it may, the propriety or justice of their action towards the Indians with respect to their lands is a question of governmental policy, and is not a matter open to discussion in a controversy between third parties, neither of whom derives title from the Indians."

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 thePage 566Indian 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 ExclusionCase,130 U.S. 581,600, the legislative power might pass laws in conflict with treaties made with the Indians.Thomasv.Gay,169 U.S. 264,270;Wardv.Race Horse,163 U.S. 504,511;Spaldingv.Chandler,160 U.S. 394,405;Missouri,Kansas Texas Ry. Co. v.Roberts,152 U.S. 114,117;TheCherokee Tobacco, 11 Wall. 616.

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 thepowerto 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. InUnited Statesv.Kagama, (1885)118 U.S. 375, speaking of the Indians, the court said (p. 382):

"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 third, eighteen hundred and seventy-one, 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):Page 567

"It seems to us that this is within the competency of Congress. These Indian tribesarethe wards of the nation. They are communitiesdependenton the United States. Dependent largely for their daily food. Dependent for their political rights. They owe 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 theatre 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 inChoctawNationv.United States,119 U.S. 1,27, andStephensv.Cherokee Nation,174 U.S. 445,483.

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 actionPage 568of 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 inCherokee Nationv.Hitchcock,187 U.S. 294, 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.

The motion to dismiss does not challenge jurisdiction over the subject matter. Without expressly referring to the propositions of fact upon which it proceeds, suffice it to say that we think it need not be further adverted to, since, for the reasons previously given and the nature of the controversy, we think the decree below should beAffirmed.

MR. JUSTICE HARLAN concurs in the result.Page 569