446 



RECREATION. 



therefore repeals it to the extent of such 

 inconsistency. 



The points chiefly relied on by the State 

 were that the origin^ States had the power 

 to control and regulate the taking of 

 game; that when Wyoming was admitted 

 to the Union ''on an equal footing with the 

 original States in all respects whatever" it 

 became vested with the same power in 

 that as in all other respects, and that a 

 treaty may supersede a prior act of Con- 

 gress and an act of Congress supersede a 

 prior treaty. The other points were sup- 

 plemental to and in support of this super- 

 structure on which rested our case. 



On the conclusion of the hearing we 

 felt we had won our case, and were 

 therefore greatly disappointed when an ad- 

 verse decision was rendered. We had cited 

 many cases wherein the Supreme Court 

 had held that a treaty had been repealed 

 by implication by an act of Congress, but 

 the court based its opinion on 2 cases 

 where it had been held that the State could 

 not tax Indian property because of a treaty 

 exempting it. In that connection the 

 court said: 



"The power to levy and collect taxes is 

 undoubtedly a power which a State may 

 properly exercise, as is also the authority 

 to regulate the taking of game under the 

 police power. Both are unquestionably 

 sovereign powers possessed by the States, 

 and, as it seems to me, stand on an equal 

 footing. Certainly the exercise of the po- 

 lice power is not superior to the power to 

 collect taxes, for the very existence of the 

 State government depends on its power 

 to provide a revenue by taxation for the 

 purpose of maintaining the State govern- 

 ment; yet it was held by the Supreme 

 Court in the case of the New York In- 

 dians — 5 Wallace, 761 — that a law passed 

 by the State of New York which provided 

 for taxing certain Indian lands was void 

 because in conflict with the terms and pro- 

 visions of a treaty exempting those lands 

 from taxation, entered into between the 

 United States and the Seneca Indians. See 

 also case of Kansas Indians, 5 Wallace, 



737- 



"While it is true Kansas accepted her 

 admission into the Union on condition that 

 the Indian rights should remain unim- 

 paired, and that the General Government 

 might make any regulation respecting 

 them, their lands, property or rights which 

 it might have been competent to make if 

 Kansas had not been admitted into the 

 Union, yet, I think, the case following in 

 the same volume of the New York In- 

 dians shows clearly that in the absence of 

 such a provision as that contained in the 

 act admitting Kansas the judgment would 

 necessarily have been the same. Both 

 cases turn on the question of the conflict 



between the State law and the provisions 

 of a treaty." 



Those two cases caused a decision 

 against us. The reasoning is plausible, 

 too, as is often the case when an argu- 

 ment is based on a false premise. But 

 those cases and the Race Horse case are 

 not analogous. In the latter we contended 

 that when Wyoming was admitted on an 

 equality with the original States there was 

 no reservation of her rights implied or 

 otherwise; that one of those rights was 

 the possession of the game within her 

 borders, to which not even her own citi- 

 zens had any claim except as granted by 

 the sovereign power, while in the cases 

 cited and relied on by the court, one, that 

 of the Kansas Indians, differed from our 

 case in that the power to tax those Indians 

 was expressly excluded in the enabling 

 act under which the State was admitted; 

 while that of the New York Indians in- 

 volved the right of the State to tax land 

 embraced in an Indian reservation which 

 existed prior to the adoption of the Con- 

 stitution of the United States. Thus those 

 2 cases involved the authority of the State 

 to exert its taxing power on lands em- 

 braced within an Indian reservation within 

 i^s jurisdiction, while the Race Horse case 

 involved a question of whether, where no 

 reservation exists, a State can be stripped 

 by implication and deduction of an essen- 

 tial attribute of its governmental existence. 



This decision caused all the batteries of 

 the hostile press to be again turned on 

 Wyoming and its officers. The siege 

 guns, the rapid-fire guns and the pop guns 

 all took a shot at us, but instead of re- 

 treating we made an advance under fire 

 and a last stand on Capitol Kopje in Wash- 

 ington. We appealed the case to the 

 grandest tribunal on earth, the Supreme 

 Court' of the United States. The case at- 

 tracted considerable attention in official 

 circles. The War Department, the In- 

 terior Department, and the Department 

 of Justice were all interested in it, and At- 

 torney-General Harmon appeared person- 

 ally for the Government. Arguments on 

 behalf of the State were made by Judge 

 Van Devanter and Attorney-General Fow- 

 ler. With little delay an opinion was 

 handed down sustaining the State on every 

 essential point for which it had contended. 

 But 8 judges heard the argument, 7 of 

 whom concurred in the opinion, while one 

 mildly dissented. This decision may be 

 found in 163 U. S., 504, under the title of 

 Ward vs. Race Horse. The court held 

 that the power of a State to control and 

 regulate the taking of game can not be 

 questioned; that the treaty of 1868 was in- 

 tended to provide a home for the In- 

 dian, which was done by giving him a 

 reservation on which settlers can not er|- 



