Chapter Seven

Lone Wolf v. Hitchcock: Breaking the Treaties

THE WEATHER WAS BLISTERING HOT in western Oklahoma. Nevertheless, over fifty thousand sweaty-faced folks crowded into El Reno, Oklahoma Territory, to watch the lottery drawing. The government land office was opening the Kiowa, Comanche, and Apache Reservation to white settlement—a real boon. The dusty onlookers were quite a rabble, mainly down-and-out homesteaders, hucksters, and land sharks. These homeless sodbusters had lost out on five previous occasions to rivals who feverishly staked claims to Indian land in the Oklahoma land runs. The races carved up Indian Territory under the federal government’s allotment policy to satisfy popular demand for Indian land. By 1902, this was the last intact reservation in the former Indian Territory. Despite the heat, two million acres would be divvied up today among 12,500 winners, and that would complete colonization of the Indian reservations in present-day Oklahoma, the Sooner State.1 At the dawn of the twentieth century, Manifest Destiny had almost run its course, but not before these buckaroos got their land.

America was about to engulf the Kiowa, Comanche, and Apache people. These allied tribes were a tough bunch. Their confederacy once ruled the southern plains; the panhandle of Texas, Oklahoma, and New Mexico, extending into Kansas and Colorado, comprised the vast homeland. Mounted warriors from these buffalo-hunting nations barred Spanish, Mexican, Texan, and American settlement in the region for over 160 years. At the urging of a war-weary United States, they made peace in the Medicine Lodge Treaty of 1867.2 The peace accord ceded the enormous region to the United States, but reserved buffalo-hunting rights in the ceded area and a permanent homeland “for the absolute and undisturbed use and occupation” of the three tribes in the Wichita Mountains of southwest Oklahoma, where the Indians settled and took up the reservation way of life.3 This story is about Lone Wolf, a Kiowa warrior and chief, and his efforts to avoid the forced allotment of his reservation in the courts of the conqueror.

On that hot summer day in 1902, Lone Wolf grimaced as settlers streamed into the reservation for the land lottery. This was illegal! The treaty guaranteed that the reservation would never be taken away, unless by consent of a three-quarters vote of all adult male tribal members.4 Despite that stipulation, Congress opened the reservation to settlers without the required vote.5 To make it worse, the lawmakers knew the Indians did not want to sell their land and were against the bill and that the federal negotiators involved in the matter had acted in a fraudulent, underhanded way. In the words of one commentator, the process “stank to high heaven.”6 But Congress passed the law anyway, approving the heavily tainted Jerome Agreement. Incessant parochial pressure from land-hungry Oklahomans was more important to the lawmakers than Kiowa treaty and property rights—after all, Indians could not vote, they were just wards of the government.

Besides that, breaking up the reservation was supposed to be good for Indians, according to policy makers and social reformers. Indians could not become assimilated into society as useful citizens, it seemed, while still in a tribal state, and their communally owned tribal land was seen as an obstacle to the government’s civilization efforts. Consequently, Congress passed the General Allotment Act of 1887 (known as the Dawes Act) to establish a process for breaking up reservation homelands by parceling tribal land owned by Indian tribes to individual members and selling the remainder to white settlers.7 According to Rough Rider President Teddy Roosevelt, this law was “a mighty pulverizing engine to break up the tribal mass.”8 The allotment and sale process would benefit Indians, according to policy makers, by stamping out tribalism and savagery so the red race could be absorbed into mainstream society. This transformation would theoretically be brought about by incoming white neighbors bringing the gifts of civilization in buckboard wagons and teaching Indians the habits of civilized life; and once civilized, Indians would not need so much land. Indians must be “liberated” from the burden of owning too much land before these benefits could be bestowed upon them—whether they wanted them or not. In actuality, the land transfer from one race to another was nothing more than an affirmative action program for landless settlers done at tribal expense, and the program had devastating consequences on Indian tribes, causing the loss of almost ninety million acres of tribal land by 1934 (two-thirds of the land base in 1887), when the policy was abandoned as a dismal failure.9

Many Indian traditionalists, like Lone Wolf, were not persuaded of the benefits of civilization and assimilation at the cost of their homeland, culture, and way of life, and they resisted government destruction of the tribal land base. Lone Wolf was an old-time Kiowa warrior, a veteran of raids into Texas and Mexico and of hard-fought battles in the Llano Estacado (“Staked Plains”)—places like Palo Duro Canyon and the Adobe Walls. Originally named Walking Above (Mamedaty in Kiowa), he won the name Lone Wolf (Gazpacho), bestowed on him by none other than the great Kiowa war chief Lone Wolf the elder for counting coup on a Texas Ranger in the Llano Estacado during the Buffalo War of 1874 (also known as the Red River War). From that day on, Walking Above was known as Lone Wolf the younger, and upon the death of the elder chief in 1879, Lone Wolf the younger succeeded him.

During the soul-killing days of reservation life when missionaries and Indian agents tried to “civilize” the Kiowa, Lone Wolf became a staunch opponent of the government’s allotment and assimilation programs. He would not accept forced allotment and the government’s shenanigans without a fight. Relying upon the Medicine Lodge Treaty, Lone Wolf led a group of Indians in filing suit in 1901 to block the illegal allotment and sale of their reservation. As the case worked its way to the Supreme Court, President William McKinley opened the reservation on August 6, 1902, and the three tribes’ land was soon parceled out to the motley crew at El Reno. Now only the Supreme Court could halt the destruction of the Indians’ treaty-protected land base.

On January 5, 1903, the Supreme Court handed down the decision in Lone Wolf v. Hitchcock (1903).10 Announcing the “plenary power” doctrine, the court allowed Congress to carve up the reservation against the Indians’ will, in violation of the treaty. Writing for the unanimous Court, Justice Edward Douglas White explained that Congress possesses paramount power over Indian tribes and their property because it is their guardian. Strangely, this plenary power is not found in the Constitution, but was implied by the Court from the trusteeship doctrine. The Court declared that Congress’s plenary political power over Indians is absolute—that is, beyond the rule of law—because it is not subject to judicial review, and it includes the raw power to abrogate treaties. The sole check on that unlimited power was a bare presumption that Congress will exercise it in “perfect good faith.”11 The plenary-power doctrine was seemingly plucked out of thin air by the Supreme Court against the backdrop of federal guardianship of a dependent, supposedly inferior race of people—a dubious basis upon which to sanction the rule of Native people by unlimited power, a despotic power aimed at no other Americans in US history. Under this extraordinary doctrine, the Lone Wolf Court held that Congress can lawfully dispose of Indian property any way it sees fit, even by laws that abrogate treaty stipulations, and the Indians have no legal recourse in the courts.

Lone Wolf is one of the ten worst Indian law cases ever decided. Much has been written about this infamous decision by legal scholars analyzing the many disturbing ramifications of the landmark case, but the fact remains that this notorious case is not well known to the general public.12 One federal court ruefully observed, when looking back on Lone Wolf many years later, that “[t]he day Lone Wolf was handed down, January 5, 1903, might be called one of the blackest days in the history of the American Indian, the Indians’ Dred Scott decision.”13 Indeed, the parallels to the infamous slavery ruling are chilling. Both cases turned on patently racist notions of white supremacy, both refused to address claims of the plaintiffs, and both placed these racial groups beyond the pale of judicial and constitutional protection under the political-question doctrine.14 Though Dred Scott and its progeny have been repudiated and are no longer cited as legal authority by the courts, the essence of Lone Wolf and its philosophy remain with us in many frightening respects. For these reasons, it is important to understand the genesis of Lone Wolf’s legal doctrines lest they be applied to other people, here or abroad, and to forestall the continuing vitality of the Lone Wolf mentality in the courts of the conqueror when Native American issues are concerned.

Though many aspects of Lone Wolf can be decried, the uppermost concern addressed in this chapter is honor. “Great nations, like great men, should keep their word.”15 With these words, Justice Hugo Black underscored the importance of good faith and fair dealing in making and keeping treaties with Indian nations. Over 360 Indian treaties were negotiated by American diplomats, signed by the president, and ratified by the Senate pursuant to the Treaty Clause of the US Constitution.16 The Constitution proclaims that all treaties made “shall be the supreme Law of the Land,” including those made with Indian nations.17 Despite the lofty constitutional status of treaties, history is replete with instances like Lone Wolf in which the United States did not keep its word. As noted by Senator Daniel K. Inouye, the longtime chairman of the Senate Indian Affairs Committee during the modern era of federal Indian law:

Too few Americans know that the Indian nations ceded millions of acres to the United States, or that while the terms of the treaties naturally varied, the promises and commitments made by the United States were typically made in perpetuity. History has recorded, however, that our great nation did not keep its word to the Indian nations, and our preeminent challenge today as lawmakers is to assure the integrity of our treaty commitments and to bring an end to the era of broken promises.18

The hundreds of treaties made in the nineteenth century were vitally important to the signatories, both the United States and Indian nations. An entire continent was transferred to the fledgling republic through treaties struck with Native peoples. Through them, the republic obtained the enormous land cessions that allowed settlement of Indian lands, demarcated boundaries between sovereigns, and set aside reservation homelands for the tribes.19 The treaties are equally important to Indian nations because they are the foundational documents by which they entered into the protection of and a political union with the United States, as “protectorate” nations, which will be elaborated upon in chapter fifteen.

The treaty agreements, which were struck in solemn councils between official representatives of the negotiating parties, guided formal political relationships in Indian affairs throughout most of the nineteenth century. Indeed, the treaties were the only legal means for dealing with Indian tribes during much of the nation’s early history. Until 1871, when Congress ended the treaty-making practice by statute, treaties were one of the principal means by which the United States interacted with Indian nations.20 Through these diplomatic agreements, the federal government established peace, trade, and friendship with Indian nations; developed mutual assistance pacts; brought the tribes under the protection of the United States; engineered the removal of tribes from their homelands to the reservation system; and advanced myriad Indian policies intended to promote American ideas about civilization, education, and assimilation. The treaty agreements embody hard-fought deals made by Native Americans, together with the promises made to indigenous peoples by a grateful though often overreaching nation during the colonization period. Today, the treaty accords constitute a major source of federal Indian law that defines the rights, relationships, and responsibilities among indigenous and nonindigenous peoples in the United States.

This chapter examines the diplomatic and legal history of the Medicine Lodge Treaty that conveyed a large portion of the southern plains to the United States while retaining a reservation homeland in western Oklahoma. The Lone Wolf story illustrates how treaties with Indian nations were made, why they were vital to each signatory, and how treaties were broken, with the blessing of the Supreme Court, by lawmakers who callously disregarded the rights of a few Indians in order to pander to popular political positions. In examining the plenary-power doctrine of Lone Wolf, we must consider the moral obligations that rest on lawmakers when they exercise absolute power over an Indian minority and confront the dangers of the “tyranny of the majority”—feared by thinkers such as Alexis de Tocequeville and John Stewart Mill—that can arise in the midst of a democracy when courts fail to carry out their antimajoritarian function to place in check the abuse of power. As you will see, the Lone Wolf mentality sounds a warning to democratic values.

The Treaty Negotiations

Our story begins in the “Great American Desert,” as the Indian Peace Commission made its way across the open prairie, cutting deep tracks in the tall buffalo grass. The little caravan was a small army, really. The contingent was led by seven top-level diplomats appointed by the president, with an entourage of Indian chiefs, local politicians, and a gaggle of reporters embedded in a wagon train bearing gifts, food, and supplies. With guidons flying in the wind, the Seventh Cavalry escort accompanied the party with orders to protect the group, but not provoke the waiting tribes gathered at Medicine Lodge Creek, Kansas. In all, the caravan numbered about 600 souls—diplomats, interpreters, sundry officials and staff, soldiers and civilian scouts, and teamsters—with 211 wagons and 1,250 animals in the column.21 The seven diplomats named to the Indian Peace Commission were Senator John B. Henderson, the chairman of the Senate Indian Affairs Committee, the commissioner of Indian Affairs, Samuel F. Tappan, and three generals: Major General William S. Harney, Major General C. C. Augur, and Major General Alfred H. Terry.

Their mission was of grave importance. Congress wanted to make peace with the Plains Indians and create permanent homeland reservations for the nomadic tribes where over time they could be assimilated into the republic—all so that the march of Manifest Destiny, which had faltered in these southern plains amid fierce tribal resistance, could resume its course peaceably. The Indian Peace Commission was created by Congress in 1867 to ascertain the causes of war, remove those causes, and accomplish the nation’s peace and reservation objectives through a great treaty-making process.22 Emphasizing the gravity of the situation, section five of the act authorized the president and secretary of war to gather four thousand volunteers, should the commissioners fail to establish peace and secure the Indians’ consent to remove to the reservations, “for the suppression of Indian hostilities.”

As the delegation entered tribal hunting grounds populated by grazing buffalo in the Kansas prairie, the escort of Indian chiefs provided safe passage. Among them was Satanta (“White-Bear-Person”), the flamboyant Kiowa war chief—a man who lived in a flaming-red tipi and carried an army bugle to confuse US troops on the battlefield. Known as the “orator of the plains,” the large-sized warrior entertained, and perhaps intimidated, the reporters with his tales of many exploits.

Just two days out of Fort Larned, Kansas, a pale of foreboding swept over the skittish travelers as they encountered a prairie fire burning in the distance. “Was it torched by warriors protesting our arrival?” asked nervous reporters (dressed variously, in trim waistcoats from their train ride to Kansas or duded up in buckskin fringes with brand-new revolvers strapped to their sides). The southern plains of Kansas, Oklahoma, Texas, New Mexico, and Colorado can be a forbidding place to newcomers, frequented as it is by violent thunderstorms and life-threatening tornadoes. These arid, windswept prairies are bitter cold in winter and baking hot in summer. Water is scarce unless you know where to find it, especially in Llano Estacado, where only the hardy (or very desperate) survive. The baldies were hardly fit for colonization. Most immigrants scurried quickly through the region to friendlier, more habitable destinations.

In 1867, this wide expanse was more than inhospitable. It was a danger zone occupied by mounted Comanche, Kiowa, Apache, Cheyenne, and Arapaho, fiercely determined to prevent unwanted intrusions into their domain. These allied tribes ruled this vast empire on horseback, like the Mongol and Arab horse cultures living in other unfenced lands suited mainly for a nomadic way of life. They were especially opposed to the construction of railroads and telegraph lines through the buffalo commons, which disturbed and drove away the herds upon which the tribes depended. Even less did they accept the building on Indian land of permanent white settlements, which were invariably destructive of the Indian way of life. These tribes were fighting harder for their land and way of life than any others had done before. They made westward immigration downright dangerous and settlement all but impossible. The Comanche repulsed Spanish, Mexican, and Texan expansion for 150 years. The Texas frontier was scoured by raiders who swept through hapless settlements under the Comanche moon in search of horses and captives. Colorado towns were burned to the ground by angry Sand Creek Massacre survivors and their allies in 1865. Pilgrims fled to Denver as forts, ranches, and way stations burned along the South Platte River during this period. During Red Cloud’s War (1865–1868), the army retreated from the Powder River country, abandoning forts and the Bozeman Trail to victorious Cheyenne, Arapaho, and Sioux warriors in the Fort Laramie Treaty of 1868.23 The previous year, Dog Soldiers attacked an Iron Horse (a steam locomotive) and wrecked the westbound Union Pacific train near Plum Creek Station, Nebraska, and their war parties roamed central Kansas at will throughout the 1860s. The Kiowa, who possessed more horses per capita than any other Plains tribe, were notorious for their frequent raids into Texas and Mexico. The Plains Indians—said to be the best light cavalry in the world—fought on their own terms and were forever cutting telegraph lines, attacking railroad construction crews, forts, and buffalo hunters, not to mention isolated ranches. In 1867 alone, Indians and whites fought 139 battles throughout the West.

Peace—that’s what the war-weary nation wanted in 1867. With the end of bloodletting in the Civil War, America was undergoing reconstruction and reconciliation in the war-torn South. Eastern cities were bustling, and the continent lay before millions of immigrants who began streaming westward as railroad and telegraph lines inched toward connecting the coasts. The only obstacle to progress and prosperity was the western Indian tribes who formed a barrier to white settlement. The Republic could either conduct a race war of extermination or negotiate and assimilate the Indians into settler society. After national debate and more than a few violent confrontations, the country chose the latter approach—it was more humane and less costly. Hence, the United States launched its Indian Peace Policy on the Great Plains in 1867 with the creation of the Indian Peace Commission.

And now, over five thousand hostile Indians awaited the American negotiators at the treaty grounds in western Kansas—camped in a remote valley where the Medicine Lodge Creek flowed through ceremonial land dotted with Kiowa Sun Dance lodges. It was the largest gathering of Plains Indians ever assembled and everyone was skittish. The Americans were jumpy as they bravely entered the vast encampment. The Indians were leery of the soldiers and on guard against marauding Pawnee and Kaw who were prowling about the valley after the large pony herds. And everyone—Indian and white alike—worried about the large band of Cheyenne Dog Soldiers who were camped several miles away on the Cimarron River with intentions unknown. There was good reason for the commissioners to be nervous upon entering the camp. Lieutenant Colonel Douglas C. Jones sized up their situation:

[F]ifty soldiers were able to offer but little protection. The Cheyennes had stopped raiding, but most of them were still staying away from the treaty grounds—assembled within easy striking distance. The Kiowas were traditionally unpredictable, and certainly [General] Harney must have been aware of their reputation. These fine, delicate-featured horsemen were claimed to be the most vicious, ruthless, unprincipled Indians on the Great Plains. If trouble should develop, most assuredly the Comanches would throw their lot behind Indian friends—although there were not overly fond of the Cheyennes, their loyalty to the Kiowas was already well known. Only the Arapahoes could be considered trustworthy, and many of them were not resigned to peace.24

One thing was clear, the lords of the southern plains did not come as supplicants as the two cultures met under the council arbor to hear proposals and promises made by the Peace Commission.

It had been a painstaking feat to assemble the tribes, a task accomplished by Indian Superintendent Thomas Murphy. At last, on October 14, the Peace Commission arrived. After being welcomed by a party of chiefs, the commission made its camp within a wagon barricade on the banks of Medicine Lodge Creek, amidst the braying of government mules and barking Indian dogs. Guards were posted and the treaty party settled down for the night. The next few days were spent in the customary treaty rituals—gift giving and welcome speeches, posturing, and other preparations for the treaty councils as the correspondents strolled through the Indian camps. Many participants wanted to wait until the Cheyenne Dog Soldiers came in, but the Human Beings were making medicine on the Cimarron, and this would take several days. Separate treaties would be negotiated with different tribal confederacies. On the evening of October 15, eighty Dog Soldiers rode into the camp, led by Tall Bull, to make preliminary arrangements for the arrival of the Cheyenne contingent from the Cimarron. Their sudden appearance, singing as they rode splashing through the water into the commissioners’ camp, sent jitters throughout the encampment.25 The Kiowa were impatient to conduct their business and depart for their winter camps, so they and the Comanche agreed to talk in four days, allowing Indians and whites to testify before the commission about the causes of war in the meantime.

With interpreters at the ready, the Kiowa and Comanche treaty negotiation began on October 19. Since the Kiowa language was the least known among the seven spoken by the parties and they had no interpreter of their own, the Kiowa delegation relied upon the Comanche’s interpreter, Phillip McCusker, a frontiersman married to a Comanche woman. He translated English into Comanche (the trade language of the southern plains understood by most neighboring tribes) into Kiowa, and then vice versa.26 Because additional tribes were also present, the laborious process required speakers to pause after each sentence to allow translation into several different languages.

The treaty council was held under a brush arbor constructed in a cottonwood grove where the tribal representatives seated themselves on logs, “garbed in their best blankets and fine buckskin jackets, and many wore neck pieces of bear claws and elk teeth, while others sported breast plates of polished quills and bones” and others yet were “fitted out in army coats.”27 The prominent chiefs lined the front rows, with lesser chiefs and warriors filling the back rows, and in the shady grove alongside the Medicine Lodge, “the women tended children and horses.”28 One reporter described the Kiowa delegation in the half circle of Indians facing the treaty commissioners:

The Kiowa were on the left, with Satanta sitting in front on an army campstool, probably commandeered from some frontier post. The chief wore an army coat General Hancock had given him earlier in the year. Behind him were Kicking Bird and old Satank. Satank wore about his neck a silver medal with the profile of President Buchanan. The old Kiowa was sixty-seven years old, and streaks of grey marked his long, straight-hanging hair. His mustache was a dirty white.29

The Comanche delegation was headed by Ten Bears.30 Cheyenne, Arapaho, and Apache onlookers were present, even though they were to negotiate their treaties at a later date.

As negotiations got underway, Senator Henderson spoke first for the United States, greeting the tribal delegates: “Friends of the Cheyenne, Comanche, Kiowa, Arapaho, and Apache Nations! The Government of the United States and the great Father has sent us seven commissioners to come here and have a talk with you.”31 He explained that the government was concerned about incessant warfare in the region and wanted to correct the underlying root causes:

What has the government done of which you complain? If soldiers have done wrong to you, tell us when and where, and who are the guilty parties. If these agents, whom we have put here to protect you, have cheated and defrauded you, be not afraid to tell us. We have come here to hear all your complaints and to correct all your wrongs…we intend to do justice to the red man. If we have harmed him, we will correct it; if the red man has harmed us, we believe he is brave and generous enough to acknowledge it and to cease from doing any more wrong.32

He promised many things to bring about peace on the plains:

We…would give…all the comforts of civilization, religion, and wealth, and now we are authorized by the great Father to provide…comfortable homes upon our richest agricultural lands. We are authorized to build for the Indian school-houses and churches and provide teachers to educate his children. We can furnish him with agricultural implements to work, and domestic cattle, sheep, and hogs to stock his farm.33

Senator Henderson’s remarks were met with complete silence. At last, the mercurial Satanta arose and spoke for the Kiowa. He stated the Kiowa and Comanche were not at war, but had come “to listen to the good word,” and he rejected the gifts proffered by the United States.

All the land south of the Arkansas belongs to the Kiowas and Comanches, and I don’t want to give away any of it. I love the land and the buffalo, and I will not part with any. I want you to understand also that the Kiowas don’t want to fight, and have not been fighting since the treaty. I hear a good deal of fine talk from these gentlemen, but they never do what they say. I don’t want any of these Medicine homes [churches] built in the country. I want the papooses brought up just exactly as I am. When I make peace, it is a long and lasting one, there is no end to it… I have heard you intend to settle us on a reservation near the Mountains. I don’t want to settle there. I love to roam over the wide prairie, and when I do, I feel free and happy, but when we settle down we grow pale and die.34

The next day, Ten Bears expressed similar sentiments for the Comanche.

You said you wanted to put us upon a reservation, to build us houses, and to make us Medicine lodges. I do not want them. I was born upon the prairie where the wind blew free and there was nothing to break the light of the sun. I was born where there were no enclosures, and where everything drew a free breath. I want to die there, and not within walls. I know every stream and every wood between the Rio Grande and the Arkansas. I have hunted and lived over that country. I lived like my father before me, and like them, I lived happily.35

Senator Henderson persisted, urging that the reservations would be for the Indians’ own good, and he offered the tribes buffalo-hunting rights in the ceded area so they could continue the chase and ways of their fathers while the great herds lasted. He proposed to make their home on the Red River around the Wichita Mountains of their ancestral homeland, which would provide a spot to bury their dead and to farm for those who wished to do so.36 Based on these promises, the chiefs relented at last and reluctantly touched the pen to the treaty on Sunday, October 21, with the addition of an off-reservation hunting clause, ceding sixty thousand square miles of tribal land to the United States in exchange for a reservation homeland, hunting rights, and the other amenities promised by the United States. Most of that day was devoted to church services (many Indians showed up drunk or hungover, to General Harney’s chagrin—he thought it was a foolish idea to bring Plains warriors to church in the first place) and to explaining the treaty provisions to the chiefs.37 Senator Henderson reiterated that, “[t]he treaty is for the purpose of giving you more goods than you received before. It is solely for your good and not for the good of the whites.”38 The reluctant Satanta expressed misgivings about reservation life and Kiowa dependence upon the government for food that was promised by Senator Henderson:

This building of homes for us is all nonsense; we don’t want you to build any for us. We would all die. Look at the Penntatus. Formerly they were powerful but now they are weak and poor. I want all my land even from the Arkansas south to the Red River. My country is small enough already. If you build us houses, the land will be smaller. Why do you insist on this? What good can come of it? I do not understand your reason. It is time enough to build us houses when the buffalo are all gone…This trusting to the agents for my food, I do not believe in it. Too many things have been promised.39

He added, “I have no little lies hid about me, but I do not know how it is with the commissioners.”40 Lone Wolf the elder was present, but the war chief refused to touch the pen and make his mark upon the treaty.

On October 22, the Kiowa and Comanche assembled to receive their treaty gifts, which were stacked in great bundles upon the ground. During this respite, the Comanche performed feats of horsemanship for the correspondents. The newspapermen also discovered that the Kiowa had two captive white women in their camp, but the captives refused repatriation and opted to stay with the Indians. As the Kiowa broke camp, Satank rode to the commissioners’ camp to say his farewell. Standing before them and speaking through the translator, McCusker, the Kiowa chief made an eloquent speech urging the government negotiators to keep their word. His words had a profound impact upon those present.41 One reporter wrote this about Satank’s farewell speech:

I have heard the re-echoing eloquence of statesmen, as it warbled through the House and Senate of our national capitol. I have heard and felt the influence of ministerial oratory as it came from the rostrum…When the last goodby fell from his lips, it was not the voice of college culture, of prejudice, of partisan strife; it was the voice of nature and of God.42

After shaking hands, the elder mounted his pony and rode off with his waiting family to winter in their aboriginal homeland—a land no longer owned by them.

Breaking the Treaty of Medicine Lodge

It is interesting to see how soon promises are forgotten. Though the treaty promised that no unauthorized persons “shall ever be permitted to pass over, settle upon, or reside” in the tribes’ reservation, their homeland lasted only thirty-five years.43 Early reservation years were marked by turmoil and strife, leading to the Buffalo War of 1874–75, as the Indians saw their herds in treaty areas diminish and found adaptation to reservation life difficult. During the hostilities, Lone Wolf the elder fought alongside of the Swan, a medicine man who received his power from buffalo bulls. Following military defeat, the tribes returned to the reservation at Fort Sill, where they were disarmed and dismounted. Lone Wolf was the last chief to come in from the Staked Plains in February 1875.

Upon surrender, President Ulysses S. Grant directed the War Department to pick tribal leaders for confinement. Seventy-two were sent in chains to Fort Marion in Saint Augustine, Florida—including Lone Wolf and the Swan—where they were incarcerated for three years as prisoners of war.44 This was done summarily, without a trial.45 Shortly following his release in 1878, Lone Wolf passed away, marking the end of an era. The Kiowa now took up the reservation way of life in earnest under the firm hand of Bureau of Indian Affairs (BIA) agents and government missionaries.

During reservation days, Lone Wolf the younger lived in an isolated reservation area near Rainy Mountain Creek, where as the new chief he upheld the old ways and participated in Kiowa ceremonial life—the Ghost Dance, Sun Dance, and the Peyote Religion—and resisted government assimilation efforts to stamp out Kiowa culture. As a traditional leader, he and his followers were called “The Implacables” by the Indian agents.46 To resist the assault on Kiowa culture, they used nonviolent means to interfere with the government farming program, missionary work, and school attendance, and found other ways to outwit the federal agents.47 Unfortunately, resistance was an uphill battle since the assimilation onslaught was backed by the machinery of the government. In the end, troops were called in to halt the Kiowa Sun Dance in 1887.48 Using the full power of law as an assimilation tool, the BIA enacted its infamous Code of Indian Offenses, which banned traditional Native American religious beliefs and practices across the country and established a special court to enforce its dictates with the invidious goal “to end Indian culture.”49 And the missionaries’ zealous religious work among the Kiowa to proselytize, convert, and provide religious education among them was sponsored by the government, despite the prohibition against government-sponsored religion in the Establishment Clause of the First Amendment to the US Constitution. The legality of these efforts to remake the Kiowa people shall be discussed in other chapters.

However, it was the establishment of the Jerome Commission in 1889 to open the reservations in Indian Territory to white settlement that concerned Lone Wolf and his followers the most.50 The commission was one of fifteen working throughout the nation to negotiate with the Indian tribes to break apart their reservations. Composed of ruthless negotiators, the Jerome Commission had successfully concluded nine agreements to cede and allot Indian reservations by the time it arrived at the Kiowa, Comanche, and Apache Reservation in 1892. This time the negotiations would be far different from the treaty negotiations of 1867, which led to the Medicine Lodge Treaty. There would be no pretense of equality between the parties. As Chairman Jerome told the Indians, “Congress has full power over you, it can do as it is a mind to with you.” And he warned them that “Congress has determined to open this country.”51 The government envoys would dictate terms to the three tribes and resort to falsehoods, intimidation, and bribery to browbeat the Indians into an agreement. Scholars have thoroughly chronicled the threats, fabrications, and fraud employed by these negotiators.52

The central legal flaw in securing the so-called agreement was the fraudulent manner in which Indian signatures were obtained by the government. The treaty required that no cessations of the reservation could occur without the consent of at least three-fourths of the adult male population of said reservation, and the commissioners could not persuade that many Indians to sign. Thus, the commissioners lied to the Indians about the purchase price, claiming they would receive more money by selling out (twenty-five dollars per person) than by their current lease income (which was, in reality, seventy-five dollars per person annually).53 Desperate, the commissioners and their interpreter began working behind the scenes to coerce those Indians who worked for the government to sign the agreement, some were simply ordered to sign, and the interpreter signed for those who refused.54 Troops were called in to quell the Indians’ outrage at the fraud, but despite the work of the commission to simply add Indian names to the document, the three-fourths consent of the adult males was never obtained. Nevertheless, the tainted agreement was sent back to Washington, where, incredibly, “the commissioners switched versions of the agreement, substituting their altered copy for that which had been partially signed at the councils” and it “ultimately contained only counterfeit signatures.”55 The heavy-handed negotiations were a travesty, running roughshod over Indians who opposed the allotment and sale of their reservation.

There is no pleasant way to violate a treaty, but the Jerome Commission process stank to high heaven by any measure. The Indians strenuously opposed congressional ratification of the tainted agreement for eight years. Lone Wolf and various tribal delegations made repeated pilgrimages to Washington, DC, hat in hand, to lobby against bills to ratify the Jerome Agreement. But in the end, Congress approved the measure in 1900.56

Lone Wolf turned to the courts to overturn that law, relying upon the Treaty of Medicine Lodge. The legal initiative was supported by local cattlemen who were opposed to opening reservation pastures to homesteaders and by the Indian Rights Association, a precursor to modern-day Native American advocacy groups. The Indians hired William M. Springer to bring the case. The well-known lawyer, a former Indian Territory judge and former congressman, was an interesting choice because during his time in Congress he had been instrumental in creating the Jerome Commission, declaring in 1888 that “no portion of this continent can be held in barbarism to the exclusion of civilized men.”57 But this controversial past also meant that Springer was intimately aware of the issues and well-suited to challenge the law on the grounds that the allotment and sale of the reservation was done fraudulently, against the Indians’ will and in violation of their treaty. Suit was filed in 1901 to halt the government sale in the face of widespread popular clamor for opening the reservation.

Lone Wolf: The Spawn of Legal Doctrines for Ruling American Colonies

Lone Wolf and his legal team were optimistic as the case came to the Supreme Court. Their case involved seamy facts and a clear-cut treaty violation. No court had ever sanctioned the taking of tribal land against the Indians’ will under such circumstances. Unfortunately, the appeal came before justices who had, only a few years earlier, decided Plessy v. Ferguson (1896), the unjust case that legalized racial segregation.58 They gave short shrift to Lone Wolf’s arguments in the Court’s first case involving the power of Congress to administer Indian property.

In a unanimous opinion, the Lone Wolf Court held that Congress has “[p]lenary authority over the tribal relations in the United States,” and that political power “is not subject to be controlled by the judicial department.”59 This remarkable power is not found in the Constitution. Rather, the justices reasoned that:

Congress possessed a paramount power over the property of the Indians, by reason of its exercise of guardianship over their interests, and…such authority might be implied, even though opposed to the strict letter of a treaty with the Indians.60

Writing for the Court, Justice Edward White explained that the sole check on this absolute power over Indian people is a bare moral obligation of Congress “to act in good faith.”61 The Court precluded Indian challenges to congressional action by citing the convenient political-question doctrine, explaining that “the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation.”62

The decision thus placed American Indians outside the rule of law in their relations with the federal government, leaving them protected only by a thin hope that the government would act in “perfect good faith”—a cruel gesture in a case challenging bad faith on the part of the government that leaves one to wonder when Congress’s moral obligation might come into play if not in circumstances involving “fraudulent misrepresentations,” “concealment,” and treaty violation. Hiding behind the political-question doctrine, Justice White brushed the sordid facts aside, explaining “these matters, in any event, were solely within the domain of the legislative authority, and its action is conclusive upon the courts.”63 Instead, he asked Indians to trust the government as their sole recourse under the law:

We must presume that Congress acted in perfect good faith in the dealings with the Indians [and] that the legislative branch made 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.64

Without judicial review, no meaningful remedy could be hoped for by the Indians. Justice White allowed the fox to guard the henhouse—if Indians are injured by Congress, they must ask that same body for relief.65

The miscarriage of justice in Lone Wolf is best understood against the backdrop of the American law of colonialism developed in the Insular Cases (1889–1905).66 During the turn of the century, the nation was in a patriotic fervor as an emerging world power embroiled in imperialist wars to acquire oversees colonies or quell rebellions in the new American possessions. The Spanish-American War (1898–1902), the overthrow of the Kingdom of Hawaii (1887), the American-Philippine War (1899–1913), and the Boxer Rebellion in China (1900–1903) raised a series of new constitutional questions about the relationships and responsibilities of the American government with colonized people in far-flung parts of the world. These were the questions that the Court was preoccupied with when the Kiowa case came to it in 1903.

Justice White, the author of the Lone Wolf opinion, was deeply embroiled in the judicial debate over how the colonies should be ruled. In the Insular Cases, he argued that Congress has plenary power over colonies unfettered by the Constitution, because it does not follow the flag into new territories and is inapplicable to them unless and until Congress so declares. In Downes v.
Bidwell (1901), the precursor to Lone Wolf, Justice White espoused the view that constitutional protections are not applicable to overseas possessions without express congressional approval. He reasoned that the nation has inherent power to acquire and rule territories by conquest, discovery, or cessation under the law of nations.67 Relying upon the harsh law of conquest and various Indian cases, like Johnson v. M’Intosh (1823) and Kagama v. United States (1886),68 he wrote that “the conqueror, by the completion of his conquest, becomes the absolute owner of the property conquered from the enemy nation or state,” and Congress can impose any conditions it sees fit “relating to the rights of the people then inhabiting those territories.”69 According to White, though a colony belongs to the United States, it is not part of the nation and can be governed by terms imposed by Congress regardless of the Constitution.70 This doctrine, which leaves the civil rights and political status of native colonial subjects up to the sole discretion of Congress, prevailed against Justice John Harlan’s minority view that the rule creates a dangerous double standard for governance in our democracy.

Justice Harlan warned that the doctrine gave Congress an “omnipotent” power to “withhold fundamental guarantees of life and liberty from peoples who have come under our complete jurisdiction” and could allow those rights, including property rights, to be taken by laws “inconsistent with the Constitution of the United States.”71 He argued that unless the Constitution follows the flag into the new possessions and takes effect immediately, a serious double standard in constitutional law will arise in which “the Constitution is the supreme law of the land in the states…and organized territories of the United States,” but not in the colonized lands of native peoples “over which the United States had acquired all rights of sovereignty of whatsoever kind.”72 “It would mean,” he wrote in 1903, “that the United States may acquire territory by cessation, conquest, or treaty, and Congress may exercise sovereign domain over it, outside of and in violation of the Constitution, and under regulations that could not be applied to the organized territories of the United States and their inhabitants” and thereby cause “the American people [to] lose sight of, or become indifferent to, principles which had been supposed to be essential to real liberty.”73

These concerns were unpersuasive to the majority. Indeed, Justice White feared any result that would endow colonized inhabitants with the rights and protections of citizenship. This would “inflict grave detriment” on the nation by bestowing citizenship on those “absolutely unfit to receive it.”74 Voicing the worst fears of every colonizer, he warned that if millions of uncivilized inhabitants of alien lands were “immediately and irrevocably incorporated into the United States…the whole structure of the government [could] be overthrown.”75 To him, it was far better to vest Congress with plenary power over the colonies and not worry about their constitutional rights. We will assume that Congress will not abuse its power and be faithful to constitutional ideals, even though those limits are inferred, not expressly required.76

Justice Harlan predicted that as the American empire grew, an abhorrent double standard would become engrafted upon our constitutional form of government. He wrote, “a colonial system entirely foreign to the genius of our government and abhorrent to the principles that underlie and pervade the Constitution” will result. There will be “two governments over the peoples subject to the jurisdiction of the United States—one, existing under a written Constitution, creating a government with authority to exercise only powers expressly granted” and “the other existing outside of the written Constitution in virtue of unwritten law, to be declared from time to time by Congress, which is itself only a creature of that instrument.”77 Harlan could not assent to such a system that allowed the exercise of absolute and arbitrary legislative power over an underclass in our constitutional democracy.78

Despite the dangers described by Justice Harlan, the majority view prevailed. The Insular Cases allowed Congress to make laws to govern colonies without being subject to the restrictions normally imposed when it passes laws for the United States. The majority vested Congress with the absolute, unfettered plenary power to determine the civil rights and political status of the inhabitants of those lands.

Justice Harlan did not express the same concerns in Lone Wolf, decided the same year that he dissented in the Insular Cases and under the same principles. He silently concurred as Lone Wolf applied the plenary-power doctrine at home, allowing Congress to ignore treaties with Indian tribes and govern their lands as it wished, just like colonized peoples in overseas possessions. Indeed, the similarities between Lone Wolf and Insular Cases are striking. Both sanctioned Congress’s plenary power to govern Native peoples without the limitations imposed by the Constitution. Both denied Native people any recourse under American law and asked them to trust that Congress would only exercise its immense power in good faith and be faithful to the spirit of the Constitution in its dealings with native inhabitants. And both imposed a double standard for governing peoples and lands under the United States’ jurisdiction: on the one hand, a constitutional government for citizens of the states and organized territories of the United States, complete with judicial review of legislative acts and, on the other hand, an extraconstitutional form of governance for Native peoples, one engrafted upon the Republic as a far-flung colonial system, and the other embedded at home on Indian reservations within the boundaries of the United States.

Implications of Lone Wolf and Hardships Imposed on Native Americans

Lone Wolf is a frightening case on many levels. First, it marks a low point in American jurisprudence defining the political and legal status of Indian nations and their members within the boundaries of the United States. At the beginning of the nineteenth century, Indian nations had been largely independent sovereigns functioning outside the boundaries and sphere of interference of the United States. As Manifest Destiny overran the tribes, the law shifted away from treating them as domestic dependent nations with the right of self-government described in Worcester v. Georgia (1832),79 to treating them in Lone Wolf as a weak, dependent, inferior people—simple wards of the government ruled by plenary power not subject to judicial review. By 1903, the law treated Native Americans as a fully colonized people. It is unfortunate that as the nation surrounded the tribes and engulfed their lands, the turn-of-the-century Supreme Court deliberately rejected the opportunity to welcome Native peoples into the body politic on a much more equitable basis. Instead, the Lone Wolf Court chose to treat Native America like the colonized subjects in the Insular Cases, without recourse to the courts of the conqueror. Even though Indian tribes and their territories were undeniably part of the United States by 1903, the law accorded the First Americans lower legal status than immigrants.

Second, by legitimizing the forced government allotment of the Kiowa, Comanche, and Apache Reservation, Lone Wolf opened the door to the most massive, uncompensated seizure of private property ever seen in US history—an abhorrent and anomalous proposition in a nation that is otherwise religiously devoted to the protection of property rights.80 After Lone Wolf, Congress no longer needed Indian consent to allot reservations and sell the remaining lands to homesteaders. Nothing stood between Indian land and the power of the federal government to acquire it. Oklahoma history became a microcosm of colonialism, complete with all the trappings. Within two years of the Court’s decision, Congress enacted six laws disassembling other Indian reservations without tribal consent, or even negotiations.81 By 1906, Oklahoma Territory was neatly organized into counties, enabling Congress to burp out the State of Oklahoma.82 Just three decades after Lone Wolf opened the frontier, the sea of grass in the wild Oklahoma prairie had been destroyed by steel plows pulled across the country. Within a single generation, the sodbusters’ land turned to dust and blew away, leaving only a dust bowl.

Third, empowered by Lone Wolf, Congress was free to abrogate treaties made with Indian nations with impunity. This dark political power was wielded with a heavy hand until nearly every treaty ever made was in some fashion unilaterally broken, along with the word and honor of a nation.83

Above all, Lone Wolf sanctioned a deplorable use of despotism in our democracy. Its holding rendered carefully negotiated treaties subject to the plenary power of Congress and left the treaties unenforceable should Congress choose to breach them. On a larger scale, vulnerable nonvoting Indians were placed into the hands of lawmakers, who were granted absolute control over them simply because they were wards of the government. This extraconstitutional power created the double standard in governance feared by Justice Harlan in the Insular Cases and perhaps helped the public to “lose sight of, or become indifferent to, principles which had been supposed to be essential to real liberty” when American Indians are concerned. There is no other word to describe governance under the Lone Wolf doctrine except tyranny, as that term is commonly understood—the exercise of absolute power beyond the rule of law. Indeed, tyranny was exercised in the facts of the Kiowa case: The Indians’ land base was unilaterally taken against their will by an act of Congress, ostensibly to assimilate them, also against their will, into the dominant society. In upholding such a law, the Court sanctioned a radical congressional experiment in social engineering that used American Indians as subjects against their will. The proud warriors and hunters of the southern plains would be made to become yeoman farmers and barefooted Baptists by the government.

The presence of unbridled legislative power in a constitutional democracy seriously ruptures democratic principles, because it unleashes an all-powerful majority. This is a prescription for totalitarianism, as J. L. Brierly noted in The Law of Nations:

[A] majority rarely is, and never ought to be, all-powerful. No Democrat if he is true to his principles can believe that there ought somewhere in the state to be a repository of absolute power, and to say that such a power resides in the people is to deny that either minorities or individuals have any rights except those that the majority allow them. That is totalitarianism, for autocracy is autocracy whoever the autocrat may be.84

Absolute power is dangerous, especially to minorities. In the past, Congress used this potent power to enact laws harming Indian tribes, sometimes when Indians could not vote, but always when this tiny, impoverished minority could not defend its interests before that branch of government.85 Lone Wolf asked only that lawmakers be required to act in “perfect good faith.” Under that good-faith standard, what working principles should guide lawmakers when crafting laws affecting Native Americans? John Stuart Mill and Alexis de Tocqueville provide some answers from classical Western thought on the nature of liberty and minority rights in democratic society. At minimum, their guideposts for protecting individual liberty and minority rights should be followed by lawmakers when legislating in “perfect good faith” for Native peoples or other minorities in our democracy.

Mill defined liberty as protection against the tyranny of political rulers in any form of government. His essay On Liberty (1859) explains that harmony between authority and liberty is achieved only when social control over individual freedom is imposed to prevent harm to others.86 Unwarranted intrusions upon liberty arise when individuals are forced to do something against their will, even if it is for their own good.87 He cautioned that political despotism can occur in democracies when popular government oversteps those bounds. Mill described this condition as the “tyranny of the majority,” observing that society itself can become the tyrant

if it issues wrong mandates instead of right ones, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.88

The lawmakers’ paramount ethical challenges to avoid such tyranny are to realize there is a “limit to the legitimate interference of collective opinion with individual independence,” to find that limit, and to “maintain it against encroachment…as indispensable to a good condition of human affairs” and “as protection against political despotism.”89

In a similar vein, Alexis de Tocqueville observed that Congress is particularly susceptible to the tyranny of the majority because its members are swayed “even to the daily passions, of their constituents.”90 He warned that liberty is endangered when the omnipotent power of the majority in a democracy goes unchecked. Unlike Justice White, Tocqueville held no myopic views about “good faith” in the exercise of absolute power by any form of government:

Unlimited power is in itself a bad and dangerous thing; human beings are not competent to exercise it with discretion, and God alone can be omnipotent, because His wisdom and His justice are always equal to His power. But no power upon earth is so worthy of honor for itself, or of reverential obedience to the rights which it represents, that I would consent to admit its uncontrolled and all-predominant authority. When I see that the right and the means of absolute command are conferred on a people or upon a king, upon an aristocracy or a democracy, a monarch or a republic, I recognize the germ of tyranny, and I journey onward to a land of more hopeful institutions.91

To avoid a slide toward despotism, Tocqueville urged that laws be confined to that which is just and courts must enforce limits on the exercise of legislative power.92 Above all, the exercise of omnipotent power from any quarter must be resisted and checked in a democracy.

Lone Wolf sanctioned just such evils. It legitimized majoritarian intrusions upon the liberty and property of the Kiowa, Comanche, and Apache. Freed from the antimajoritarian principles represented by the judiciary, lawmakers chose to act, not in “perfect good faith” toward the Indians, as Justice White presumed, but in blatant disregard of the principles elucidated by Mills and Tocqueville in a clear-cut case of the tyranny of the majority.

Efforts to Overcome Hardships Imposed by Lone Wolf

In 1955, the Kiowa, Comanche, and Apache were awarded $2 million in damages against the government for taking their land at an unconscionable price below the fair market value.93 And in 1998, almost one hundred years after Lone Wolf, the Supreme Court recognized and protected the sovereign attributes of the Kiowa tribal government, which, despite this history, is flourishing in western Oklahoma.94 However, Lone Wolf provides sober lessons in American honor, liberty, and governance.

During much of the twentieth century, Congress ruled Native America with unchecked plenary power. That unbridled power has been partially fettered in the modern era of federal Indian law as Indian nations struggled to reclaim their sovereignty in the United States. As the tribes gained increasing reliable access to the courthouse, the judiciary began to trim the hard edges from Lone Wolf’s doctrines. First, the political-question doctrine was repudiated in Delaware Tribal Business Committee v. Weeks (1976).95 That case held that Congress’s power is not absolute; rather, it is subject to judicial review and constitutional limitations. Next, the decision in United States v. Sioux Nation (1980) rejected Justice White’s stupid conclusive presumption of congressional good faith.96 Sioux Nation held the government liable for taking Indian property under the Fifth Amendment, making its power over Indian property as trustee subject to constitutional limitations.97 Yet, core principles of Lone Wolf remain embedded in the law, ready for use at any pendulum swing. Congress still has plenary power over Indians. As held in Santa Clara Pueblo v. Martinez (1978), Indian tribes enjoy the sovereign right of self-government, with the power to make their own laws in internal matters, but “Congress has plenary authority to limit, modify or eliminate the powers of local self-government which the Tribes otherwise possess.”98 And no act of Congress has been struck down no matter how deeply it abrogated an Indian treaty without consent of the Indians. In short, the Supreme Court has only partially repudiated Lone Wolf’s notion that the Constitution places no limits on Congress’s power over Indians.99

A new legislative era began in 1970, once Congress became accountable to the courts and the Constitution and after Indians gained voting rights and lobbying expertise. During that age of Indian self-determination, which was inaugurated by President Richard Nixon, the legislative branch passed remedial Indian legislation to protect tribal sovereignty and self-determination, land and natural resources, and the human and culture rights of Native Americans. On the legislative front, it is still possible today to witness the abuse of power in the halls of Congress by beltway bigots who routinely place holds on Indian legislation in the dark corners of the US Senate or by weak souls in the House of Representatives who lack the spirit to speak honestly to majorities back home. And, frightening periods of backlash sometimes arise when the majority party exudes hostility or indifference toward Native American interests. These episodes are harsh reminders that Native Americans are a permanent minority—political captives, so to speak, who, without a strong and courageous judiciary, are forever subject to the tyranny of the majority.

And what about the treaties? Early Native American Rights Fund litigation in the tribal sovereignty movement sought to breathe life back into the treaties.100 Recognizing that “Congress chose treaties rather than conquest to acquire vast Indian lands,” the federal courts began to limit the ways in which Congress may abrogate treaties—requiring clear congressional intent to do so—and to actually enforce treaty promises, sometimes in the face of bitter local opposition.101 The sweeping decision in Washington v.
Fishing Vessel Association (1979) upheld Indian fishing rights reserved in the treaties that relinquished the Pacific Northwest to the United States in exchange for reservations and a right to fish at usual and accustomed fishing sites.102 The case affirmed that a treaty is “a contract between two sovereign nations” and began a new era of treaty enforcement.103

That legacy allowed me to stride to the podium in 2003 (one hundred years after Lone Wolf) to deliver my argument before the Ninth Circuit Court of Appeals, carrying with me the Klamath Treaty of 1864. My purpose in Braren v. United States (2003) was to defend the lower court’s vibrant interpretation of the treaty, a holding that recognized the Klamath Tribes’ treaty-protected water rights for habitat needed to support tribal hunting, fishing, and gathering activities. While the court dismissed the case on procedural grounds, it was careful not to disturb the vitality of the treaty, the promises made in that document, or the legal status of treaties with Indian nations—ideals deeply engrained in federal Indian law.104

When judges enforce treaties, they uphold solemn promises made by our nation to its Native peoples and restore honor to the words spoken by American diplomats. That gives meaning to Justice Black’s remark that great nations, like great men, should keep their word. In the final analysis, we must consider the import of words, whether spoken by a great man or a great nation. Lone Wolf the younger was a Kiowa warrior and chief who became a plaintiff in the courts of the conqueror. He attempted to hold the nation to its words spoken on the banks of the Medicine Lodge Creek. Lone Wolf was buried in 1923 in Kiowa country, near Rainy Mountain in western Oklahoma, but his memory lives on. One of his descendants is none other than N. Scott Momaday, the acclaimed Pulitzer Prize winner and poet laureate of Oklahoma.105 His observations about the nature of a word are apropos to the promises of a nation:

A word has power in and of itself. It comes from nothing into sound and meaning; it gives origin to all things. By means of words can a man deal with the world on equal terms. And the word is sacred.106

On September 13, 2007, the United Nations approved the United Nations Declaration on the Rights of Indigenous Peoples, which, among other things, requires every nation to recognize, observe, and enforce indigenous “treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honor and respect such treaties, agreements and other constructive arrangements.” Time will tell whether and to what extent this international standard is observed in the courts of the conqueror.