Ward v. Race Horse

• Decision Date: 25 May 1896
• Docket Number: No. 841,841
• Citation: 16 S.Ct. 1076,41 L.Ed. 244,163 U.S. 504
• Parties: WARD, Sheriff, v. RACE HORSE
• Court: U.S. Supreme Court

163 U.S. 504

16 S.Ct. 1076

41 L.Ed. 244

WARD, Sheriff,

v RACE HORSE.

No. 841.

May 25, 1896.

Proceeding by Race Horse against John H. Ward, sheriff of the county of Uinta, in the state of Wyoming. There was an order discharging appellee from custody (70 Fed. 598), and said sheriff appeals. Reversed.

This appeal was taken from an order of the court below, rendered in a habeas corpus proceeding, discharging the ap- pellee from custody. 70 Fed. 598. The petition for the writ based the right to the relief which it prayed, and which the court below granted, on the ground that the detention complained of was in violation of the constitution and laws of the United States, and in disregard of a right arising from and guarantied by a treaty made by the United States with the Bannock Indians. Because of these grounds the jurisdiction below existed, and the right to review here obtains. Rev. St. § 753; Act March 3, 1891 (36 Stat. 826). The record shows the following material facts: he appellee, the plaintiff below, was a member of the Bannock tribe of Indians, retaining his tribal relations and residing with it in the Ft. Hall Indian reservation. This reservation was created by the United States in compliance with a treaty entered into between the United States and the Eastern band of Shoshonees and the Bannock tribe of Indians, which took effect February 24, 1869. 15 Stat. 673. Article 2 of this treaty, besides setting apart a reservation for the use of the Shoshonees, provided:

'It is agreed that whenever the Bannocks desire a reservation to be set apart for their use, or whenever the president of the United States shall deem it advisable for them to be put upon a reservation, he shall cause a suitable one to be selected for them in their present country, which shall embrace reasonable portions of the 'Port Neuf' and 'Kansas Prairie' countries.'

In pursuance of the foregoing stipulation the Ft. Hall Indian reservation was set apart for the use of the Bannock tribe.

Article 4 of the treaty provided as follows:

'The Indians herein named agree, when the agency house and other buildings shall be constructed on their reservations named, they will make said reservations their permanent home, and they will make no permanent settlement elsewhere; but they shall have the right to hunt upon the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts.'

In July, 1868, an act had been passed erecting a temporary government for the territory of Wyoming (15 Stat. 178), and in this act it was provided as follows:

'That nothing in this act shall be construed to impair the rights of persons or property now pertaining to the Indians in said territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians.'

Wyoming was admitted into the Union on July 10, 1890. 26 Stat. 222. Section 1 of that act provides as follows:

'That the state of Wyoming is hereby declared to be a state of the United States of America, and is hereby declared admitted into the Union on an equal footing with the original states in all respects whatever; and that the constitution which the people of Wyoming have formed for themselves be, and the same is hereby, accepted, ratified, and confirmed.'

The act contains no exception or reservation in favor of or for the benefit of Indians.

The legislature of Wyoming on July 20, 1895 (Laws Wyo. 1895, p. 225, c. 98), passed an act regulating the killing of game within the state. In October, 1895, the district attorney of Uinta county, state of Wyoming, filed an information against the appellee (Race Horse) for having killed in that county seven elk, in violation of the law of the state. He was taken into custody by the sheriff, and it was to obtain a release from imprisonment authorized by a commitment issued under these proceedings that the writ of habeas corpus was sued out. The following facts are unquestioned: (1) That the elk were killed in Uinta county, Wyo., at a point about 100 miles from the Ft. Hall Indian reservation, which is situated in the state of Idaho; (2) that the killing was in violation of the laws of the state of Wyoming; (3) that the place where the killing took place was unoccupied public land of the United States, in the sense that the United States was the owner of the fee of the land; (4) that the place where the elk were killed was in a mountainous region, some distance removed from settlements, but was used by the settlers as a range for cattle, and was within election and school districts of the state of Wyoming.

Mr. Justice Brown dissenting. 70 Fed. 598, reversed.

Benj. F. Fowler and Willis Van Devanter, for appellant.

Atty. Gen. Harmon, for appellee.

Mr. Justice WHITE, after stating the case, delivered the opinion of the court.

It is wholly immaterial, for the purpose of the legal issue here presented, to conside whether the place where the elk were killed is in the vicinage of white settlements. It is also equally irrelevant to ascertain how far the land was used for a cattle range, since the sole question which the case presents is whether the treaty made by the United States with the Bannock Indians gave them the right to exercise the hunting privilege, therein referred to, within the limits of the state of Wyoming, in violation of its laws. If it gave such right, the mere fact that the state had created school districts or election districts, and had provided for pasturage on the lands, could no more efficaciously operate to destroy the right of the Indian to hunt on the lands than could the passage of the game law. If, on the other hand, the terms of the treaty did not refer to lands within a state, which were subject to the legislative power of the state, then it is equally clear that, although the lands were not in school and election districts, and were not near settlements, the right conferred on the Indians by the treaty would be of no avail to justify a violation of the state law.

The power of a state to control and regulate the taking of game cannot be questioned. Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. 600. The text of article 4 of the treaty, relied on as giving the right to kill game within the state of Wyoming, in violation of its laws, is as follows:

'But they shall have the right to hunt on the unoccupied lands of the United States, so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts.'

It may at once be conceded that the words 'unoccupied lands of the United States,' If they stood alone, and were detached from the other provisions of the treaty on the same subject, would convey the meaning of lands owned by the United States, and the title to or occupancy of which had not been disposed of. But, in interpreting these words in the treaty, they cannot be considered alone, but must be construed with reference to the context in which they are found. Adopting this elementary method, it becomes at once clear that the unoccupied lands contemplated were not all such lands of the United States, wherever situated, but were only lands of that character embraced within what the treaty denominates as 'hunting districts.' This view follows as a necessary result from the provision which says that the right to hunt on the unoccupied lands shall only be availed of as long as peace subsists on the borders of the hunting districts. Unless the districts thus referred to be taken as controlling the words 'unoccupied lands,' then the reference to the hunting districts would become wholly meaningless, and the cardinal rule of interpretation would be violated, which ordains that such construction be adopted as gives effect to all the language of the statute. Nor can this consequence be avoided by saying that the words 'hunting districts' simply signified places where game was to be found, for this would read out of the treaty the provision as 'to peace on the borders' of such districts, which clearly pointed to the fact that the territory referred to was one beyond the borders of the white settlements. The unoccupied lands referred to being therefore contained within the hunting districts, by the ascertainment of the latter the former will be necessarily determined, as the less is contained in the greater. The elucidation of this issue will be made plain by an appreciation of the situation existing at the time of the adoption of the treaty, of the necessities which brought it into being, and of the purposes intended to be by it accomplished.

When, in 1868, the treaty was framed, the progress of the white settlements westward had hardly, except in a very scattered way, reached the confines of the place selected for the Indian reservation. While this was true, the march of advancing civilization foreshadowed the fact that the wilder- ness, which lay on all sides of he point selected for the reservation, was destined to be occupied and settled by the white man, hence interfering with the hitherto untrammeled right of occupancy of the Indian. For this reason, to protect his rights, and to preserve for him a home where his tribal relations might be enjoyed under the shelter of the authority of the United States, the reservation was created. While confining him to the reservation, and in order to give him the privilege of hunting in the designated districts, so long as the necessities of civilization did not require otherwise, the provision in question was doubtless adopted, care being, however, taken to make the whole enjoyment in this regard dependent absolutely upon the will of congress. To prevent this privilege from becoming dangerous to the peace of the new settlements as they advanced, the provision allowing the Indian to avail himself of it only while peace reigned on the borders was inserted. To suppose that the words...