66 F. 541 | U.S. Circuit Court for the District of Eastern Wisconsin | 1895
The petitioner was indicted in the district; court of the United States for the Western district of'
“That every Indian born within, the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up within said limits his residence separate and apart from any tribe of- Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United "States, and is entitled to all the rights, privileges and immunities of such citizen, whether said Indian has been or not by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States, without in any manner impairing or otherwise affecting the right of any such Indian to tribal or any other property.”
The petitioner claims that by virtue of this statute, and by reason of such allotment, he is a citizen of the United States, and, by reason of his residence within the state of Wisconsin, that he is a resident and elector of that state, and is not subject to the provisions of the act under which he was indicted; that he can only be held for the act charged to the laws of the state of Wisconsin, and thereunder is entitled to be tried therefor by a jury of the county in which the alleged offense was committed; and that the United States district court for the Western district of Wisconsin was without jurisdiction to try him for the alleged offense.
The indictment aptly charged the statutory offense to have been committed by the petitioner within the district and within the limits of an Indian reservation, and that the petitioner was an Indian of a Chippewa tribe, and was at the time of the commission of the offense under the charge of an Indian agent and superintendent of the United States. The interesting question sought to be raised by this application is this: The government of the United States, in furtherance of its attempt to civilize the Indians, has seen fit to confer upon them the title in severalty to the lands held in
The general principle is well settled that upon the hearing of an application for a writ of habeas corpus the, questiou at issue is whether the prisoner is held without jurisdiction, and that the function of the writ is not to correct errors. In re Chapman, 15 Sup. Ct. 331, and cases cited, and Andrews v. Swartz, 15 Sup. Ct. 389 (both decided February 4, 1895, not yet officially reported). It is there held, following many cases of the supreme court, that ordinarily the writ will not lie where there is a remedy by writ of error or appeal. Here the indictment showed an offense committed within the purview of the statute, and by one to whom the statute applies. The district court for the Western district of Wisconsin has jurisdiction of the offense, and jurisdiction of the person of the petitioner. If the facts asserted by him are availing to take his case from without the general law respecting Indians occupying tribal relations, such facts would constitute a good defense to the charge brought against him, but those facts do not affect the jurisdiction of the district court to try him for the olténse charged. They are matter of defense to the charge, and do not go to the