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Dissenting Opinion

United States Supreme Court

163 U.S. 504

Ward  v.  Race Horse

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 appellee 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.


This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).