By Daniel M. Cobb, Ph.D., The University of North Carolina, Chapel Hill
The Supreme Court invested Congress with potentially unlimited power in the meaning it assigned to the doctrine of plenary power. While it was originally intended to give the federal government primacy in tribal relations, the US Supreme Court now read it to mean that Congress could act unilaterally and, potentially, with abandon.
The Jerome Commission
In September 1892, Federal negotiators, referred to as the Jerome Commission, were dispatched to secure the allotment of the Kiowa, Comanche, and Apache reservation—purportedly to ensure civilization. The agreement, supposedly reached in October, called for the allotment of approximately 440,000 acres of reservation lands to 2,759 tribal citizens. A whopping 2 million acres magically became surplus land and ripe for non-Natives’ taking.
And yet, the agreement was not as clear-cut as federal officials suggested.
A Kiowa leader named Mamay-day-te challenged the legitimacy of the agreement.
Mamay-day-te: Lone Wolf the Younger
In 1879, Mamay-day-te had been given the name and shield of Lone Wolf the Elder, a Kiowa leader who was imprisoned and sent to Fort Marion after the Red River War and passed away shortly after his release. Now known as Lone Wolf the Younger or Elk Creek Lone Wolf, Mamay-day-te inherited not only the elder Lone Wolf’s power and authority but also the great burden of protecting his people.
With a group derisively labeled The Implacables, Lone Wolf refused to farm, found ways to subvert the ration system, and harassed the Kiowa who cooperated with missionaries and agents. He also continued to participate in traditional ceremonies, such as the Sun Dance, until 1887, when the federal government outlawed it and then used the threat of military force to keep it suppressed.
Lone Wolf, speaking on behalf of a majority of the Kiowa and joined by many Comanches and Apaches, resisted the federal commissioners’ efforts to secure an allotment agreement in September and October of 1892.
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The Misleading Medicine Lodge Treaty
Moreover, Lone Wolf contended that the so-called Jerome Agreement that resulted from these efforts was fraudulent.
Lone Wolf pointed to Article 12 of the Medicine Lodge Treaty, which held that any change in the terms of the treaty required the consent of three-quarters of the adult male population. Moreover, Lone Wolf charged that the Jerome Commission did not abide by the age requirements for what constituted adults and that the federal commissioners misled the people as to what they were agreeing to.
This did not, however, stop Congress from passing legislation in 1900 to move allotment forward.
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Lone Wolf v. Hitchcock
Ultimately, Lone Wolf and the Kiowa, Comanche, and Apache opponents of the Jerome Agreement, took Ethan Allen Hitchcock, the Secretary of the Interior, to court. Citing the violation of the Medicine Lodge Treaty, Lone Wolf sought an injunction in the courts in June 1901.
In the meantime, allotment, referred to by its advocates as ‘a mighty pulverizing engine to break up the tribal mass’, rolled on, as the survey of tribal lands began in August 1901.
Court Ruling in the Lone Wolf v. Hitchcock Case
In October 1902, the Supreme Court heard oral arguments, and in January 1903, the justices handed down a unanimous decision.
Endorsing Kagama’s definition of plenary power, the Court ruled that tribes were not independent nations but were, instead, dependents and in a state of pupilage. Relating the concept of plenary power specifically to the question of Kiowa, Comanche, and Apache treaty rights, the Court affirmed the “unilateral power of Congress to abrogate Indian treaties and to transmute tribal property rights and individual allotments.”
This was a devastating defeat for Lone Wolf and the Kiowa, Comanche, and Apache opponents of allotment. But it was also, more generally, a crippling blow to tribal sovereignty.
The decision meant that Congress could unilaterally act in a way that violated the sanctity of nation-to-nation agreements so long as it deemed the action to be in the best interests of tribal communities. It didn’t even matter whether the tribal community being acted upon agreed.
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Life for the Natives after the Judgment
In the years that followed, Lone Wolf returned home and, in the memorable words of law scholar C. Blue Clark he “continued his adjustment to the surrounding new world that had judicially engulfed him in 1903.” The allotment juggernaut proceeded apace.
Lone Wolf watched as their people lost their allotments—often selling them to address health crises or just to put food on the table. By 1934, the tribal land base on the Kiowa, Comanche, and Apache Reservation had been diminished to only 3,000 acres. A reservation of 3 million acres in 1867 was reduced to 3,000 acres.
Amidst extraordinary hardship, Lone Wolf continued to be regarded as a leader, joining the Elk Creek Baptist Church and doing his best to navigate the world that surrounded him.
The Kiowa, Comanche, and Apache secured at least some compensation in 1955 when they were awarded approximately $2 million because they had been paid less than market value for the land illegally taken from them through the allotment act that ratified the Jerome Agreement in 1900.
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Struggle for Justice
While it is one thing to articulate the external forces that oppressed Native people, it is quite another to understand how Native people dealt with the world that was being remade around them.
To be sure, power was shifting away from tribal governing institutions and systems of justice. And, not only that, but Native people were becoming estranged from the law. It didn’t seem to be their own, but, instead, something external and coercive. And yet, the struggle for justice did continue—as did the assertion of the right to be self-governing.
Common Questions about the Landmark Case of Lone Wolf v. Hitchcock
In September 1892, Federal negotiators, referred to as the Jerome Commission, were dispatched to secure the allotment of the Kiowa, Comanche, and Apache reservation—purportedly to ensure civilization.
Endorsing the definition of plenary power, the Court ruled that tribes were not independent nations but were, instead, dependents and in a state of pupilage.
In 1955, the Kiowa, Comanche, and Apache were awarded approximately $2 million because they had been paid less than market value for the land illegally taken from them through the allotment act that ratified the Jerome Agreement in 1900.
