American Indian Culture and Research Journal

INTRODUCTION Tribal reserved lands and the (sometimes porous) federal legal protection of those territories and the natural resources contained therein, both within and without reservation boundaries, are critical for the perpetuation of tribal survival. Individually, these natural resource rights—rights to hunt, gather, and fish, and to own and utilize water, timber and minerals—have been studied in depth by various scholars. My intention, however, is much more modest. I will examine a single case, Ward v. Race Horse, decided on 25 May 1896, in which the Supreme Court announced a set of powerful and problematic doctrines that constricted Indian treaty rights and also articulated a vision of tribal-state political relations that elevated states’ rights to a preeminent role above even federally sanctioned Indian treaty rights. I believe much of the current debate about states’ rights vis-à-vis tribes is rooted in the doctrines laid out in Ward. Certain elements of Ward were previously thought to have been “implicitly” overruled by the 1905 decision United States v. Winans, in which the Court affirmed treaty-defined off-reservation fishing rights. Furthermore, the entire decision has been “much criticized” by other jurists and commentators. However, Ward’s key holdings, which center on treaty interpretation, the relationship between state law and tribal sovereignty as exercised via treaty rights, and the so-called equal-footing doctrine—which requires that all states newly admitted to the Union after the thirteen original states be admitted with the same rights and sovereignty at the time of admission as the original states—were remarkably resuscitated in a recent Tenth Circuit Court of Appeals decision, Crow Tribe of Indians and Thomas Ten Bear v. Repsis, in which the court said Ward v. Race Horse “is alive and well.”