The Law and the Indian

THE Indian was fishing — with nets. It was unlawful to fish even with pole and line at that season of the year, and it was unlawful to fish with nets at any season of the year in those waters. The game-warden told him so.

‘I don’t want to make trouble for you, John,’ the game-warden told him, ‘but you’ve got to quit this.’

‘No hunt, no fish,’ said the Indian stolidly.

‘Not out of season,’ explained the warden. ‘You know that.’

‘No can carry gun,’ said the Indian.

‘Not out of season,’ repeated the warden. ‘You’d be potting deer at all seasons.’

‘How live?’ asked the Indian.

‘Work,’ answered the warden.

The Indian straightened up, and the slow sweep of his hand took in the surrounding country. ‘All mine — one time,’ he declared.

' But not now,’ returned the warden. ‘You sold it.’

‘ Keep right to hunt and fish,’ said the Indian. ‘Well now, John, if it will make you feel any better, I don’t mind telling you that I think you’re getting all the worst of it,’ the warden conceded amiably, ‘but that is n’t any of my business. I’d be willing to let you fish and hunt all the time, but I ’ve got to go by the law, and the law says you can’t. Pull up those nets, John.’ The Indian sullenly obeyed. ’I ought to arrest you,’ the warden went on, ‘for you’ve made me trouble before.’

‘Keep right to hunt and fish,’ repeated the Indian.

‘Oh, you kept it all right at first,’ agreed the warden, ‘but the law flimflammed you out of it somewhere. I’m not lawyer enough to tell how it was done, but they’ve got you tied up now, John. That’s why I like to be easy on you. But you’ve got to quit it. Understand? I’ll have to get after you in earnest if this thing happens again. And I’ll just take your nets now, to make sure you don’t use them any more.’

There was a moment of hesitation, a moment when trouble was imminent; then the Indian surrendered the nets, and strode silently away. He was a ‘good’ Indian; he could not well be anything else, for the few left of his tribe were scattered, and he had long since learned the power of the white man; but he could not live as the white man lived. Some of his tribe had been more successful in this, since the cession of their lands to the government, and were able to gain a living from their individual holdings or the bead-work of their squaws or as guides to white hunters; but John Red-Deer — the very name illustrates the tangled conditions that troubled him — was unable to adjust himself to the new mode of life. Nor could he understand the operation of the white man’s law.

In this latter failing he was not alone; there were others who could not understand the operation of the white man’s law as it applied to the Indian; and the game-warden, Jim Tansey by name, was one of these. Not that Tansey troubled himself very much about it, but circumstances occasionally compelled him to give a little thought to individual cases that were puzzling. John Red-Deer was one of the puzzles.

‘I’m going to have trouble with that Indian,’ the warden told Pete Pemberton, when he returned to his headquarters at Woodford. ‘ Some day I ’ll have to bring the old buck in, and then he’ll go to jail because he can’t pay a fine.’

‘What’s the matter with him?’ asked Pete.

‘He can’t understand why he can’t hunt and fish as much as he likes,’ explained Tansey, as he filled his pipe; ‘and I can’t understand it either. Now you can’t blame an Indian for not understanding what puzzles a white man, so I always feel like being rather easy on him. Looks to me like Uncle Sam or somebody put it all over him somehow, but I don’t know how.’ ‘All you got to do,’ argued Pete, ‘is to tell him that it’s the law.’

‘But he comes back with some grunts about an old treaty.’

‘What old treaty?’ asked Pete.

‘I’m hazy on that,’ answered Tansey, scowling at his pipe; ‘but somewhere along when his tribe gave up their lands they made a treaty with the government that gave them and their descendants the right to hunt and fish as much as they liked, whenever they liked, and he thinks he’s got that right yet.’

‘What happened to the treaty?’ persisted Pete.

‘That’s what beats me. Somebody told me once that the Indians was n’t a separate nation and that there could n’t be a treaty except between nations, so this treaty was n’t a treaty at all, and that all there was for the Indian to do was to sit down, and try to figure out what happened to him.’

‘But Uncle Sam got the land,’ suggested Pete, after a pause.

‘Yes, Uncle Sam got the land.’

‘Well,’ declared Pete, ‘I don’t think much of Indians, but Uncle Sam would have to get out the troops to keep me from fishing if I’d had any such trick played on me.’

‘It does n’t look like a square deal to me, not if it’s the way I understand it,’ admitted Tansey; ‘but I don’t understand it very well. There may be kinks that I don’t know anything about. Anyhow, it’s my business to enforce the law, and they tell me the Indian has n’t any more hunting and fishing rights than the white man. So I figure I’ll have to bring the old buck in before I get through with him. But I hate to do it. He fishes and hunts to live, not for sport.’

‘Looks to me,’ mused Pete, ‘like there was some counterfeit coin in what he got for his land; but a man that trades has got to look out for that.’ ‘It’s low-down to trick an Indian that way, though,’observed Tansey, ‘and I’m sorry for the old grunter.’

Nevertheless, the game-warden confiscated the fish that he found in the Indian’s possession a few days later. He thought he was lenient in not arresting him, but the Indian merely realized that he and his squaw went hungry that day.

The following week, being caught again, the Indian was brought to Woodford, and haled before the local justice. His only defense was, ‘Sell land, but no sell right to fish.’ The warden testified that he was a chronic offender, but he also explained that he had practically no other way of making a living, and undoubtedly believed that an old treaty with his tribe gave him the rights he claimed. The justice was sorry for the Indian, admitting in private that the red man seemed to have got the worst of it somewhere, but the law was the law, and must be respected — and the Indian went to jail for ten days. The justice thought he was lenient in the matter, but the Indian merely realized that he was locked up for trying to feed himself and his squaw.

Two days after the Indian was released, the warden left Woodford to make his usual rounds. ‘And,’ he told Pemberton, ‘I’ll bet I’ll find the buck up to his old tricks, though I’m not going to look for him very hard this trip. I wish he’d be good; I don’t want to make any more trouble for him.’

‘You’ll never break him of his bad habits till you kill him,’returned Pete.

A searching party, sent out a week later, brought back a dead warden, and a live Indian. They had known just about where to look, when the warden failed to report from any of the towns he usually visited, and the Indian had stolidly admitted his guilt. ‘Me kill,’he said. ‘Him no let live, so me kill.’ And then, being further pressed, ‘Him break treaty — make all time hell for me.’

It was, of course, a clear case of murder. There could be no question of self-defense, for it was well known that the warden felt rather sorry for the Indian, in spite of the trouble he had occasioned, and certainly would not attack him. Further, the Indian was a law-breaker, several times caught, and attributed all his troubles to the warden. It was evident, therefore, that the Indian either had deliberately waylaid the warden in a spirit of revenge, or, being caught again, had killed him to escape arrest. Indeed, the Indian himself made no claim of self-defense; so it was unquestionably murder.

But it looked like an interesting case to Tom Gates, a lawyer of Woodford. Gates was a young man, without much experience in the law, and, like most of those who knew anything of the circumstances, he was sorry for the Indian. It was a peculiar fact that, in spite of the popularity of the warden, there was quite general sympathy for the Indian. As one of the local men put it, —

‘He’s going to get his, all right, and he had no call to kill Jim Tansey, but he’s been getting the worst of it at that.’

It was the fault of the law, not of Tansey, but it was natural that the Indian should charge it up against the man. They could all see that. Tansey was worth a hundred Indians, but the Indian had suffered much and had only done what seemed to him necessary to protect his rights.

Perhaps, if the Indian’s fate had not been so certainly sealed, they might have felt differently about it, but one can always feel sympathy for a man, misguided rather than vicious, who is about to be hung. He at least thought he was justified, and his very ignorance of the white man’s law and the white man’s courts added to his desperation.

Gates, however, was not so sure he was going to be hung. It might be impossible to secure an acquittal, but there were certainly extenuating circumstances; and, aside from his own feeling in the matter, Gates was glad to take the case for the experience and the notoriety it would give him.

‘If I could get him off,’ reasoned Gates, ‘it would just about make my reputation as a lawyer; and, anyhow, I think I can give them something to think and talk about.’

Gates had been looking up that treaty, and he had found that it actually did exist. It was an old treaty, of course, but it unquestionably gave the members of the tribe and their descendants the right to hunt and fish upon the ceded lands. No time limitation had been put upon that right, and he could find no legislative or executive act that even sought to terminate it. The Indian’s descent from members of this tribe was easily and incontrovertibly established. Clearly then, the Indian was entitled to hunt and fish upon at least so much of this vast tract as remained public lands, and only the public lands figured in the case.

‘That Indian,’ reasoned Gates, in discussing the matter with Wiley Cregan, ‘was clearly within his rights in all that he did previous to the killing, and Jim Tansey was altogether in the wrong. It was n’t Jim’s fault, of course. Jim was no lawyer, and he simply did what he was told. The Indian was no lawyer, or he would have gone about the matter differently; but he had rights that he was entitled to protect, and these rights involved his means of livelihood. Jim, meaning well, trespassed upon the Indian’s rights—did it again and again—and the Indian adopted the only means known to him to stop it. They can’t hang that Indian, Wiley.’ ‘But they will,’ asserted Cregan.

‘But don’t you see—’

‘He’s an Indian,’ interrupted Cregan, ‘and they ’ll hang him.’

‘Oh, there’s a good deal of sympathy for him,’ argued Gates.

‘That’s because he’s going to be hung,’ was Cregan’s philosophic rejoinder. ‘Let. them think he’s going to get off, and you ’ll hear a howl for blood that will make the ground tremble.’

‘Oh, I don’t expect to get him off,’ said Gates, ‘but I tell you, Wiley, they can’t hang him!’

‘And I tell you, Tom, they will!’

‘But look at it,’ persisted Gates. ‘ He was interfered with in the exercise of his lawful rights; he was harried and worried and goaded to desperation; he was put in jail; he was practically denied the right to live; and for what? Why, just because he insisted upon doing what he had a right to do. The right was his by treaty, which is the highest form of man-made law. State legislation can’t abrogate a treaty made with the national government. They would n’t even suggest the absurdity of a state law superseding a treaty in dealing with anybody but an Indian.’

‘But they’ll hang him,’ said Cregan.

‘Don’t you believe it,’retorted Gates warmly. ‘He had no right to kill Tansey, of course, but Tansey had no right to interfere with him. That Tansey thought he was right does n’t cut any figure at all: the Indian also thought he was right, and the Indian was right. That’s what counts. Then, too, he did n’t know any other way to stop this persecution. They may send him up for manslaughter, Wiley, but they can’t hang him.’

‘They’ll hang him,’ maintained Cregan doggedly.

‘By thunder!’ exclaimed Gates, goaded to wrath by this insistence, ‘I’m not sure I won’t get him off entirely. There’s a tremendous lot in his favor: the very fact that he’s an Indian ought to count.’

‘That’s why they’ll hang him,’ said Cregan, still serenely confident.

This time, however, Gates was too absorbed in his own thoughts to resent the remark. He was thinking as a lawyer, a young lawyer, an ambitious lawyer, rather than as a man and a citizen. ‘Great Jupiter!’ he cried suddenly, ‘but would n’t it be a big thing for me if I should get him off! Just think of winning such a desperate case as that!’

‘But you won’t,’ asserted Cregan. ‘I’m sorry for the Indian, myself, but he’ll hang.’

Perhaps this pessimistic view of the situation aroused in Gates more than the usual amount of natural obstinacy. At any rate, he went about his preparations for the trial with enthusiasm and confidence — at least, the outward appearance of confidence — that the people of Woodford found it difficult to understand.

The case was a simple one. The prosecuting attorney said the trial would be brief, and Gates agreed with him. The prosecuting attorney also said that he was sorry for the Indian, but that this, of course, did not affect his duty in the premises. Everybody was sorry for the Indian, but nobody was so sorry for him as to lose any sleep over his fate. It was right and necessary that the man who killed Jim Tansey should suffer the penalty, for Jim was a good man. But they were sorry for the Indian. Perhaps, however, the Indian is not to be blamed for showing no gratitude for sympathy that contemplated his death upon the gallows with so much equanimity.

Gates had the Indian’s squaw present at the opening of the trial. A squaw, however wretched her plight, cannot arouse much sympathy in the breasts of a jury, but, as Gates remarked, —

‘It helps some, and there’s no use overlooking even the minor points.’

The squaw was a miserable creature, ugly and dirty; but even squaws have to live, and it was partly to provide food for her that the Indian had defied the game-warden.

The jury was quickly selected. Gates challenged only an occasional man whose antipathy to Indians generally made him objectionable. The case for the prosecution was presented almost as quickly. The main facts were not disputed, and it was only necessary to bring them properly to the attention of the jury, and to present such additional details as might have a bearing on the question of punishment.

The Indian had killed the game-warden. This was admitted. The warden had not been the aggressor, except in so far as, within his lawful authority, he might have attempted to confiscate the Indian’s fish or place the Indian under arrest. This was not capable of proof, as there had been no witness of the actual killing, but it was admitted in part. The warden had not been an intentional aggressor, but he might have unwittingly exceeded his authority, and thus been a technical aggressor.

In view of this contention, the prosecuting attorney deemed it wise to go more into detail than was necessary where the facts were undisputed. He showed, by witnesses, that the gamewarden, far from being vindictive toward the Indian, had been disposed to be as lenient with him as the circumstances would permit, and had even stated that he ‘was n’t going to look for him very hard’ on his last trip. So it was altogether unlikely that any attack had been made by him upon the Indian.

Gates waived cross-examination.

The prosecuting attorney also showed that the Indian was a chronic lawbreaker.

‘Helps my case,’murmured Gates, and he waived cross-examination again.

Next it was proved that the Indian had been repeatedly warned, that his fish, game, and nets had been often confiscated, that he had been arrested and sent to jail, and that he blamed it all on the game-warden. Gates smiled, as if this were quite in line with his plans, and waived cross-examination.

The actual killing being admitted, and having proved, to his own satisfaction, that the warden was acting in the line of his duty, that he had been tolerant, that his feeling for the Indian was one of pity rather than anger, and that the Indian had a motive for the deliberate murder that he evidently committed, the prosecuting attorney rested his case.

Gates, for the defense, put the Indian on the stand. This was a surprise, for it seemed to open a way for the prosecution to show on cross-examination that the warden was in no sense the aggressor. But the Indian proved a difficult witness. He admitted the killing, of course, but, beyond that, even Gates could get no more out of him than, ‘Him break treaty—make all time hell for me,’or ‘Him no let live, so me kill.’

Whatever the question, the answer usually took one of these forms. It seemed almost as if Gates had coached him, and the prosecution quickly realized that every repetition served to emphasize the fact that the Indian believed he was being unwarrantably persecuted, and, driven to desperation, had sought to end that persecution in the only way that seemed possible to one of his primitive instincts. In effect, the situation presented, indirectly, extenuating circumstances. So the crossexamination was quickly dropped. The squaw followed, and she was an equally difficult witness. Still, under skillful questioning, she did succeed in making it clear that the activity of the warden left them often hungry, there being neither fish nor game to eat, and no money wherewith to buy anything else.

Here Gates changed the line of his defense, and, first proving the descent of the Indian, then offered in evidence a copy of the treaty with the United States Government, that gave these Indians the right to hunt and fish on the ceded lands.

The prosecuting attorney immediately objected, and the judge asked Gates what he expected to prove by it.

‘I expect to prove,’was the reply, ' that the warden was an aggressor, that he had exceeded his authority in practically all his dealings with this Indian, that he had deprived the Indian of rights guaranteed him by the United States Government, that it was the warden who was the law-breaker, and that the Indian, up to the moment of the killing, was wholly within his legal rights. That there was no personal malice or unlawful intent on the part of the warden in this matter is of no consequence; he did hound and persecute this Indian, and I wish to show that the Indian acted in defense of actual, not imagined, rights. Your honor will see that everything in this case depends upon which was and had been the real law-breaker when they last met.'

The judge turned to the prosecuting attorney, and the prosecuting attorney again objected.

The whole case hinged upon that treaty, and each lawyer saw that success or failure depended upon whether or not it was allowed to be put in evidence. So far as Gates was concerned, it was the keystone of his whole case. Without it, there was absolutely nothing upon which to hang a plea of even partial justification, nothing but the mere fact that the Indian, believing himself in the right, had defied and finally killed an official for doing his duty. So Gates went over the ground again, being careful to see that no link was missing. The Indian was a descendant of the tribe, the tribe had made the treaty with the government, the treaty never had been abrogated, the rights under it still belonged to the Indian, and it was proper to show, in extenuation of his act, that he had these rights, and was acting in defense of them.

The prosecuting attorney replied that there was no treaty. It was quite impossible that there should be any treaty. The Indian, under the Indian Appropriation Act of 1871, was held to be incapable of contracting treaty obligations. He was to be considered as either a citizen or a ward of the government, and in neither of these capacities was it possible for him to make a treaty. True, the act in question expressly stated that it was not to be construed as invalidating any existing treaty, but there had been no existing treaty in this case — certainly none covering this point.

The prosecuting attorney was an older and more experienced man than Gates, and it was evident that he had foreseen and prepared for this question. His calm denial of the existence of a treaty that had just been offered in evidence was staggering. Gates was inclined to doubt the evidence of his own senses, but he managed to call attention to the fact that he had already produced a copy of the document.

‘Oh, that was abrogated long ago,’was the reply. ‘The Indians may not have known exactly what happened to them, but that does not alter the facts. The form and the words still remain, but as a valid treaty it passed out of existence long before the Indian Appropriation Act became a law.’

The prosecuting attorney was unpleasantly patronizing and confident. The treaty, he said, was made previous to the admission of the state to the Union. The state had then been admitted ‘on an equal footing with the original states,’ and the act contained no reservation as to rights of Indians under treaties, and no mention of any special privileges grant ed to or held by any Indians. It had been held in at least two states, Wyoming and Wisconsin, that the admission of a state on an equal footing with other states abrogates, by implication, the treaties with Indians which grant them privileges inconsistent with the sovereignty of the state, or the rights and powers possessed by other states. In support of this he quoted from the decision in the Wyoming case of Ward vs. Race Horse: —

‘Determining the question whether the provisions of a treaty giving the right to hunt upon unoccupied lands of the United States in the hunting districts, are repealed in so far as the land in such districts is now embraced within the State of Wyoming, it becomes plain that the repeal results from the conflict between a treaty and the act admitting that state into the Union.'

The Wisconsin case, State vs. Morrin, was to similar effect: —

‘The Act of Congress admitting Wisconsin into the Union on an equal footing with the other states abrogated the stipulations of the treaty of March 28, 1843, with the Chippewa Indians, respecting their right to hunt and fish within the borders of the state, so that thereafter they were subject to the laws of the state in that regard.’

‘ So I submit, your honor,’ he said in conclusion, ‘that this so-called treaty is no better than waste paper and should not be admitted in evidence.’

‘Ruled out,’ decided the judge.

Gates saw his case crumbling, and he was desperate. He listened gloomily to the brief and formal statement of the case by the prosecuting attorney, and he became bitter. His case had collapsed, had become so weak that the prosecution deemed it hardly worth while to argue the question at all; his client had not even had the poor satisfaction of having his rights taken from him openly and boldly, but had been cunningly deprived of them, without his knowledge, by implication. By implication! An Indian, who at best would have difficulty in comprehending laws that dealt with him directly and frankly, was now told that his treaty had been nullified by inference. The idea rankled. He based his brief address to the jury on it.

‘The tribe had these rights,’ he said, ‘and they should have descended to this Indian among others. The promise was made that they would so descend, but they were taken away by implication — not honestly and openly, in a way that the Indian could understand, but by implication, by inference. The Indian never knew that he had legally lost them; he thought all his troubles were due to one man; he does n’t understand it yet. Uncle Sam put the little pea under the walnut shell, but it was n’t there when the Indian lifted the shell. The Indian is still wondering what happened.

‘ “Where’s my treaty?” he asks. “ I had it, I thought I had it, and then I did n’t have it, but you got all you bargained for — you never discovered anything wrong until it became inconvenient for you to carry out your share of the contract.”

‘“I don’t really know what became of that treaty,” says Uncle Sam. “It looked perfectly good the last time I noticed it, but somewhere in the course of a transfer it got frost-bitten or burned up or something. All I know about it now is what my courts tell me, and they are sometimes rather hazy and difficult to understand. I’m mighty sorry about this. You certainly had some treaty rights, but they seem to have vanished, and I’m not sure just when or how it all happened.”

‘And if Uncle Sam is puzzled,’ demanded Gates, ‘how can you expect an Indian to understand?’

More there was in explanation of the Indian’s point of view and in sarcastic arraignment of the government’s treatment of him, much of which might have been excluded had the prosecution cared to object, but it had no bearing on the material facts, and the prosecution did not object. The prosecuting attorney, while in no sense condoning the crime, was sorry for the Indian.

The foreman of the jury also found something in the Indian’s plight to excite sympathy. ‘The old buck has certainly been given the worst of it all along the line,’ he remarked carelessly, when the jury had retired, ‘but he killed Jim Tansey, and we don’t have to bother about the rest, of it.’ So the verdict was ‘Guilty as charged,’ and it was reached without discussion.

‘To be hanged by the neck until dead,’ was the important detail of the sentence pronounced by the judge.

There was a silence then, which was broken only when the sheriff led the Indian back to his cell.

The jurors were thanked and discharged, the lawyers left, and the judge leaned back in his chair, and gazed moodily at the ceiling.

‘I can’t, help being sorry for that Indian,’ the judge finally muttered, and then, straightening up,—

‘Call the next case.’