THE RACE HORSE CASE. 



445 



any statutory regulations. To this I re- 

 plied that I did not feel I was called 

 on to construe a treaty, but that I was 

 required to enforce the laws of the State 

 of Wyoming, and that I purposed doing 

 so; that I could not conceive that an In- 

 dian from a reservation situated in another 

 State could have rights within the State 

 of Wyoming which were denied to its own 

 white citizens; and that, at all events, I 

 should continue to enforce the laws 

 against the wanton destruction of game by 

 all persons, regardless of color or na- 

 tionality. 



This position brought the State into 

 conflict with the Federal Government, and 

 some time after the return of the troops 

 from Jackson's Hole negotiations were be- 

 gun looking to a judicial determination of 

 the disputed question. A special agent of 

 the Indian Department came to Wyoming 

 and proposed a test case in the Federal 

 courts. To this I readily assented, as all 

 the State had done had been in conformity 

 with law in an attempt to enforce our 

 State statutes. In this conference with 

 the representative of the Government he 

 was accompanied by the United States at- 

 torney for Wyoming and by Brigadier- 

 General Coppinger, and Colonel, now 

 Brigadier-General Randall. The Attorney- 

 General of Wyoming being absent from 

 the capital, I called in as my legal ad- 

 viser Judge Willis Van Devanter, the pres- 

 ent Assistant United States Attorney-Gen- 

 eral for the Interior Department. Having 

 thus become associated with the case at 

 its inception, Judge Van Devanter, at my 

 solicitation, continued in the case until 

 its final determination. Being an ardent 

 sportsman, a successful hunter of big game 

 and a consistent advocate of its protection, 

 he took the laboring oar and devoted all 

 his powers to the work in hand. To his 

 able, intelligent and untiring efforts, 

 seconded by Attorney-General B. F. Fow- 

 ler, of Wyoming, we are indebted for the 

 successful issue of this important and far- 

 reaching case. 



The test case was instituted by the ar- 

 rest of a Bannock Indian named Race 

 Horse, who admitted that he had killed 7 

 elk in Uinta county, Wyoming, on or 

 about the first day of July, 1895. An appli- 

 cation was made by the United States At- 

 torney to the United States Circuit Court, 

 District of Wyoming, for a writ of habeas 

 corpus directed to John H. Ward, sheriff 

 of Uinta county, in which it was claimed 

 that the arrest and detention of Race 

 Horse was in violation of the Constitu- 

 tion of the United States and in violation 

 of Article 4 of the treaty made with the 

 Bannock Indians at Fort Bridger in 1868; 

 and thus was the case of Ward vs. Race 

 Horse brought to the attention of the 

 United States Circuit Court. 



In the hearing in that court there was 

 but little testimony introduced, the essen- 

 tial facts being admitted. The contention 

 of the Government was that the provision 

 in the treaty with the Bannocks that "they 

 shall have the right to hunt on the unoc- 

 cupied lands of the United States as long 

 as game may be found thereon, and as 

 long as peace subsists among the whites 

 and Indians, on the borders of the hunt 

 ing districts," gave them the right to hunt 

 in Wyoming regardless of our game laws. 

 This the State denied, and raised the fol- 

 lowing points in support of its position: 



1. The place of the commission of the 

 offense with which Race Horse was 

 charged, and for which he was held in 

 custody, was not "unoccupied lands of the 

 United States" within the meaning of 

 Article IV. of the treaty. 



2: Game and fish, by the English com- 

 mon law, were the property of the crown, 

 and in the States of the United States they 

 are the property of the people of such 

 States. The State may exclusively control 

 their taking and capture, the same as it 

 may control its other property. 



3. Independent of the question of own- 

 ership, the preservation of game and fish 

 is within the proper domain of the police 

 power of the States and the hunting privi- 

 lege granted to the Indians by the treaty 

 is subject to the exercise of that power. 



4. The Wyoming law regulating the tak- 

 ing and killing of game, enacted under the 

 police power of the State, is not a regula- 

 tion of commerce with the Indian tribes. 



5. The United States has recognized and 

 acquiesced in that construction of the 

 treaty which makes the hunting privileges 

 for the Indians subject to regulation and 

 control under the police power. 



6. Indians within the limits of a State 

 and off from their own reservation arc 

 subject to the jurisdiction of the State and 

 amenable to its laws. 



7. New States, when admitted into the 

 Union, are so admitted on an equal foot- 

 ing with the original States and become 

 possessed of all the authority, powers and 

 attributes of sovereignty possessed by tin- 

 original States. On their admission, all 

 legislation by Congress enacted solely 

 through the exercise of the power of Con 

 gress to control the Territories, is repealed 

 and abrogated as to such new States. 



8. A treaty and a law of Congress are 

 on the same footing. Neither has supe- 

 riority over the other, and both are subor- 

 dinate to the Constitution. Treaty pro- 

 visions are repealed by subsequent incon- 

 sistent Congressional legislation. The re- 

 peal may be either by implication <>r it 

 may be expressed. The Act of Congress 

 admitting Wyoming into the Union, on 

 an equal footing with the original State-, is 



^ inconsistent with the Indian treaty and 



