114 F. 551 | D. Wash. | 1902
Upon the petition of Mrs. Josie Celestine, an Indian woman residing on the Tulalip Indian reservation, and Dr. Buchanan, United States Indian agent in charge of said reservation, this court granted a writ of habeas corpus against George Sidwall and his wife, who are Indians residing near Seattle, and not upon an Indian reservation, for the purpose of inquiring into the cause of the alleged detention of Annie George, an infant child of the petitioner, Mrs. Josie Celestine. The object of the proceeding is to restore to Mrs. Celestine the custody and control of her child. By their return to the writ, the respondents admit the parentage of the child, admit that she has been in their care since the death of her father, and admit that they have refused to give up the child to her mother; but they urge that they have become attached to the child, and that they are willing and anxious to keep and provide for her as their own child, which they are able to do. They also deny the jurisdiction of the court to interfere in the matter.
The question of jurisdiction is serious, and must be decided before the court can give consideration to the merits of the controversy.
Therefore our inquiry is narrowed down to the question whether an Indian agent of the United States is authorized by law to sue for the benefit or protection of Indians, and my attention has not been directed to any statute giving to such officer any such authority. On the contrary, it has been decided in several cases that it is the right and duty of the government itself to maintain such suits as may be necessary for the protection of the rights of the Indians. 16 Am. & Eng. Enc. Law (2d Ed.) 226; U. S. v. Boyd (C. C.) 68 Fed. 577; U. S. v. Flournoy Live Stock Co. (C. C.) 69 Fed. 886; Id., 71 Fed. 576; U. S. v. Winans (C. C.) 73 Fed. 72. The reasons above given lead me to the conclusion that whilst the government may, in performance of the paternal functions which it has assumed with respect to Indians who are neither aliens nor citizens, maintain suits and actions in any form when necessary for their protection, Indian agents cannot of their own volition assume like authority. They must show authority conferred by law, or else this court cannot take jurisdiction. Congress can confer the necessary authority upon those officers, but it has not done so, and therefore this court does not have jurisdiction of this case.
' The district attorney, in behalf of the United States, has asked for leave to intervene and carry the case through as if the government had appeared as a party of record at the commencement of the case, but it would be an irregular proceeding for a new party to intervene in a case of which the court has no jurisdiction. I believe that there is no precedent for a proceeding so extraordinary as this would become if the national government should now appear in the role of a petitioner for a writ of habeas corpus. I am not prepared to say that the gov-
“When a man has emerged from slavery, and by the aid of beneficent legislation has shaken oil the inseparable concomitants of that state, there must be some stage in the progress of his elevation when lie takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected.” Civil Rights Cases, 109 U. S. 25, 3 Sup. Ct. 31, 27 L. Ed. 844.
In view of their status as citizens, I consider that the mother and stepfather of this child should be permitted to seek an adjudication of their controversy with respect to her in the state court which has jurisdiction of such causes.
A judgment of dismissal for want of jurisdiction will be entered.