In 1903, the United States Supreme Court issued a decision in the case of Lone Wolf v. Hitchcock, in which the Court allocated plenary authority over Indian affairs to Congress. This authority included the power not only to break Indian treaties at its discretion, but also to dispose of treaty-protected Indian land at will. Although widely discredited, the case has never been overruled and represents a landmark case in American Indian law.
Lone Wolf v. Hitchcock was decided amid a background of separation, assimilation, and allotment. In an effort to confine Indian occupancy and use of land to specific territories, the earliest Indian treaties established the idea of reservations. However, the lure for gold, land, and other resources in Indian territory was a temptation too great for the settlers to resist. Consequently, many Indian tribes were removed westward to large blocks of land reserved for their use with the assurance that the new lands would remain Indian reservations forever. In fact, settlers soon encountered Indian Country as the nation expanded westward. Before long, homesteaders demanded more lands from the government, and the federal policy makers acquiesced by developing programs to diminish the Indians' reservation land base.
Specifically, in 1853 Commissioner of Indian Affairs George Manypenny instituted a general policy of attempting to negotiate allotment provisions in treaties, which converted communally held tribal lands into individually owned parcels. Any surplus lands remaining were then opened to settlement by non-Indians. Congress quickly adopted his policy and, by virtue of the General Allotment (Dawes) Act of 1887, Congress was able systematically to allot some 41 million acres of tribal lands. Former reservations soon became checkerboarded with non-Indian–owned land.
However, the Dawes Act did not apply to all Indian territory; rather, the allotment of certain areas, particularly those lands in the Oklahoma Territory, required a special act from Congress. In 1892, Congress sent three commissioners, known as the Jerome Commission, to negotiate with the Kiowas, a tribe whose reservation was located in the Oklahoma Territory, for the allotment and cession of their lands. According to the Treaty of Medicine Lodge, no further Kiowa land cessions would occur without the approval of a supermajority of the tribe. Specifically, Article XII of the treaty stated that any cession of tribal land required the signatures of "at least three-fourths of all the adult male Indians occupying the same."
Lone Wolf, the Kiowa chief, led his people in resistance to the allotment of their reservation. During negotiations, Lone Wolf reminded the commission that the Treaty of Medicine Lodge, which established their reservation, guaranteed their lands forever. In addition, Lone Wolf noted that the small farms that would result from allotment would not support tribal families. Realizing that the negotiations were going badly, the commission threatened the tribe, asserting that Congress has the power to take their land without payment or assent. Nevertheless, Lone Wolf and his tribe resisted any form of allotment.
Once negotiations faltered, the commissioners fraudulently induced some tribal members to sign various allotment documents under false pretenses. To obtain the supermajority required by the treaty for the cession of the Kiowa lands, the commissioners had members of other tribes sign the documents as well. By October 6, 1892, the government claimed that a majority of Kiowas had signed the agreement, which proposed to give every member of the tribe a 160-acre allotment and to pay $2 million for the surplus lands. The Commission then returned to Washington, asking Congress to proceed with the allotment of the Kiowa lands.
However, Lone Wolf and several other Kiowas claimed that any assent to the agreements had been obtained by fraudulent misrepresentations of the terms by interpreters. In addition, they alleged that the agreement was invalid since, according to the tribal rolls, less than three-fourths of the adult male Indians signed the agreement. In October 1899, the tribes held a council and drafted a petition to Congress signed by a supermajority of eligible Kiowa members. The petition was a clear and simple statement of the tribes' repudiation of the agreement.
Despite the Kiowas' opposition and any congressional concerns about the fraudulent process used by the commission, in February 1900 Congress proceeded with the allotment. Subsequently, Lone Wolf filed a complaint in the equity division of the Supreme Court of the District of Columbia seeking to restrain the Department of Interior from carrying out the provisions of the Allotment Act, arguing that the Acts of Congress were unconstitutional, void, and a violation of solemn treaty provisions.
The Court refused to entertain any complaint concerning the statute or the federal policy of allotment in general. Instead, by recognizing the tribe's dependent relationship with the federal government, the Court upheld Congress's authority to allot the Kiowa reservation without any tribal assent:
The contention in effect ignores the status of 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 (Lone Wolf v. Hitchcock, 1903, 564).
According to the Court, Congress, through its plenary power, has the authority to abrogate treaties unilaterally if that action is in furtherance of its obligation to care for and protect the Indians. Thus, the Court held that whether a supermajority of the tribe had signed the allotment documents was inconsequential. Rather, because Congress thought it necessary to allot the Kiowa reservation for the care and protection of the tribal members, it was entitled to do so without their assent.
In effect, the Lone Wolf decision granted Congress not only the plenary authority to abrogate treaties with the Indians unilaterally, but also an absolute, unchecked power to regulate in all aspects of Indian affairs. By relying on the Indians' special fiduciary relationship with the federal government, the Court established the presumption that any congressional actions taken toward Indian affairs are made in good faith: "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" (Lone Wolf v. Hitchcock, 1903, 568). Furthermore, by characterizing such plenary actions as political questions, the Court announced that congressional legislation in the field of Indian law is "not subject to be controlled by the judicial department of the government" and is therefore unreviewable (Lone Wolf v. Hitchcock, 1903, 565). Thus, because any regulation of Indian affairs is presumed to have been taken in good faith and because such regulation is a political question, Congress has unfettered authority to act as it sees fit.
In recent years, Lone Wolf v. Hitchcock has been widely discredited, and the Supreme Court has attempted to mute its harsh ruling. Specifically, the Court now requires that any congressional intention to abrogate an Indian treaty or treaty right be clear and plain. In addition, the Court has declared that congressional activity in Indian affairs is no longer an unreviewable political question; rather, if such action cannot be characterized as that of a good faith trustee toward its beneficiary, the Court will subject the action as to the Takings Clause of the Fifth Amendment. Nonetheless, Lone Wolf v. Hitchcock remains a precedent in the field of American Indian law and provides authority for Congress, subject to few limitations, to deal with Indian tribes as it sees fit.
J. Landon K. Schmidt
Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903).; Clark, Blue. 1999. Lone Wolf v. Hitchcock: Treaty Rights and Indian Law at the End of the Nineteenth Century. Lincoln: University of Nebraska Press.; Estinn, Ann Laquer. 1984. " Lone Wolf v. Hitchcock: The Long Shadow." In The Aggressions of Civilizations: Federal Indian Policy Since the 1880's. Edited by Sandra L. Cadwalader and Vine Deloria, Jr., 215–234. Philadelphia, PA: Temple University Press.; Getches, David H., Charles F. Wilkinson, and Robert A. Williams, Jr., eds. 1998. Cases and Materials on Federal Indian Law, 4th ed. St. Paul, MN: West.; Gulig, Anthony G., and Sidney L. Harring. 2002. "'An Indian Cannot get a Morsel of Pork... ' A Retrospective on Crow Dog, Lone Wolf, Blackbird, Tribal Sovereignty, Indian Land, and Writing Indian Legal History." Tulsa Law Review 38: 87–111.; Treaty of Medicine Lodge. 1867. October 21. 15 Stat. 581.; Wildenthal, Bryan H. 2002. "Fighting the Lone Wolf Mentality: Twenty-First Century Reflections on the Paradoxical State of American Indian Law." Tulsa Law Review 38: 113–144.; Wilkins, David E. 1997. American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice. Austin: University of Texas Press.