44 F. 178 | U.S. Circuit Court for the District of Northern New York | 1890
Lead Opinion
The question in this case is whether the village of Sal-amanca, a village of white inhabitants, containing a population of 4,000 persons, and incorporated under the laws of this state, is “Indian eoun-. try,” within the meaning of section 2139 of the United States Revised Statutes. For the purpose of having this question decided in this court, upon the trial in the district court, at the suggestion of both parties, the district judge made a proforma ruling against the plaintiff in error; and, a verdict of guilty having been rendered, and sentence pronounced, the circuit and district judges, sitting together, have heard the question upon writ of error. That section declares that every person “who introduces or attempts to introduce any spirituous liquor or wine into the Indian country shall be punishable by imprisonment for not more than two years, and by a fine of not more than $300.” The plaintiff in error was licensed to sell spirituous liquors in Salamanca by the proper local authorities, conformably to the act of the legislature of this state of April 11, 1870, to regulate the sale of intoxicating liquors; and he has been convicted of an offense under section 2139 upon evidence which shows that he brought liquors to his place of business at Salamanca, and sold them there at various times, as by the terms of his license he was permitted to do. It is insisted for the government that, inasmuch as Salamanca is located within the exterior boundaries of the Allegany Indian reservation, the plaintiff in error was properly convicted, although there was no evidence of any attempt or intent on his part to introduce
Irrespective of the act of 1875, the conclusion seems irresistible that none of those villages, and none of the Indian reservations within this state, are Indian country, within the meaning of the three sections of the Revised Statutes mentioned. It is unnecessary to consider the question of the power of congress to extend such statutes over the Indian reservations of this state, even to the exclusion of any state jurisdiction over the lands of the Indians, or over criminal offenses committed within their territory, so long as the reservations are occupied by Indians in tribal organization. The government of the United States has always regarded the Indian tribes as distinct communities, in a state of semi-independence and pupilage, between which and it certain international relations were to' be maintained; and both the legislative and judicial departments of the national government have always emphatically asserted that the Indian tribes possess such a national character as to be within the treaty-making power of the constitution, and outside the sphere of state jurisdiction over their persons or their lands so far as the national authority has intervened. As early as in 1802, by the twelfth section of the act of congress for regulating trade and intercourse with the Indian tribes, it was declared that no purchase of lands made from any Indian or any. Indian tribe or nation within the United States should be “of any validity, in law or equity, unless the same be made by treaty or convention,
In the recent case of U. S. v. Kagama, 118 U. S. 375, 6 Sup. Ct. Rep. HOP, an act of congress, giving jurisdiction to the courts of the United States over the crimes of arson, burglary, and murder, when committed against the person or properly of an Indian or other person on an Indian reservation within a state, was upheld as constitutional by the supreme court. The court declared that the government of the United States has the right and authority, instead of controlling the Indian tribes by treaties, to govern them by acts of congress, and that, the Indians being necessarily subject to the laws which congress may enact for their protection, and for the protection of the people with whom they como in contact, the states have no such power over them as long as they maintain their tribal relations. But the question now involved is not one of the power of the national government over Indians or Indian reservations within the states; it is one as to the extent of its exercise by congress over Indian country under the trade and intercourse acts. A brief consideration will demonstrate that certainly since 1834 the Indian reservations of this state have not boon embraced in the Indian country of the laws of congress. The term “Indian country” originated in the acts of congress passed in or prior to 1834 to regulate trade and intercourse with the Indian tribes. The act of June 30, 1834 , which was a revision and repeal of the former acts regulating trade and intercourse with the Indian tribes, contained the identical provisions which are now embodied in sections 2133, 2134, and 2139 of the Revised Statutes. That act specifically described what lands in the United States were to be deemed Indian country for the purpose of the act, and thus defined what was meant by the term as used in the original statutes, from which the three sections are taken. The lands described comprised parts of the United States which were outside of the territorial limits of the then existing states. As interpreted by the supreme court in Bates v. Clark, 95 U. S. 204, the Indian country of this act comprised the lands west of the Mississippi river, to which the Indian title had not been extinguished, not within any state or organized territory, and the lands east of the Mississippi river to which the Indian title had not been extinguished, not within any state. The country east of the Mississippi, not within any state, was the region then under the government of Michigan territory, now constituting the states of Michigan and Wisconsin. All the “Indian country ” east or west of the Mississippi was “lauds not within any state.” After this act was passed, and before the Revised .Statutes were adopted, now territory had been acquired by the United States, new territorial governments had been established, and new states had been admitted to the Union; and when some of the new states were
Concurrence Opinion
concurred in the result, upon the ground that, under the provisions of the act of congress of February 19, 1875, (18 St. at Largo, p. 330,) and the act of the legislature of New York of May 2, 1881, (Sess. Laws 1881, p. 288,) extending the municipal laws of the state over the villages of the Allegany reservation, the village of Salamanca, where the defendant resides, is not “Indian country,’' within the meaning of section 2139 of the Itevised Statutes.