72 N.W. 1014 | N.D. | 1897
The relators herein are Indians or persons of Indian descent. The defendants are the county commissioners of Benson county, in this state. Relators applied to the proper District Court, by petition, for a writ of mandamus requiring the defendants to establish a voting precinct for certain described territory. The alternative writ was issued, and upon the return day the defendants appeared and made answer. The matter was submitted to the District Court upon stipulated facts, and on
The second subdivision of § 4 of the Enabling Act approved February 22, 1889, and under which North Dakota, South Dakota, Montana, and Washington were admitted as states of this Union, provides: “That the people inhabiting said proposed states do agree and declare.that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes, and that until the title thereto shall have been, extinguished by the United States the same shall be and remain subject to the disposition of the United States and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States.” The people of this state, by the second subdivision of § 203 in their Constitution, disclaimed all right and title to said lands in the precise terms of the Enabling Act, and declared that such Indian lands “shall remain under the absolute jurisdiction and control of the congress of the United States.” Since, by the stipulation of facts, it appears that the territory in question was and is within the limits of the Devils Lake Indian Reservation, and is occupied by Indians, it is urged that it comes clearly within the Enabling Act, and is within the absolute jurisdiction of congress, — a jurisdiction so exclusive that no state or county official has any right or authority to perform any act that shall effect said territory or the persons residing thereon. Respondents deny any such extended jurisdiction. Their position is that the absolute jurisdiction and control of congress, as expressed in the Enabling Act, extends
The facts show that lands were allotted to these respondents, under the provisions of said act, on November I, 1892, and that what we may term the “preliminary patents” were issued to them for their respective allotments on April 10, 1893; that they are living upon the lands so allotted to them in severalty, and have improved the same, and are engaged in farming thereon, and are entirely self-supporting. It remains, then, for us to determine whether or not the act of appellants in establishing a voting precinct upon said territory would in any manner conflict with the jurisdiction of congress over said lands, and also whether or not these respondents are legal voters in the State of . North Dakota. It is conceded that, under §481, Rev. Codes, it had become the duty of appellants to divide the entire County of Benson into election precincts prior to the time this application was made, unless they were prohibited from so doing by the acts of congress and the provisions of our State Constitution heretofore mentioned. The question of the extent of the jurisdiction of congress over the lands of the United States and over Indian reservations has been often before the courts, and perhaps not with entirely uniform results. We think it must be conceded that there is a difference between lands ceded to the United States, and actually occupied as a fort, arsenal, dockyard, or some similar purpose, and the public domain generally. In the former cases jurisdiction is exclusive for all purposes. Persons residing
Wherein, then, lies the difference in the jurisdiction exercised by the general government over the lands of the public domain and over Indian Reservations or Indian lands ? When we turn to the Enabling Act, we see that it required the state to “forever
The powers and duties of the United States in this behalf are clearly set forth and defined in Beck v. Real Estate Co., 12 C. C. A. 497, 65 Fed. Rep. 35, and U. S. v. Flournoy Live-Stock & Real Estate Co., 69 Fed. Rep. 892. These cases involved the validity of certain leases made by Winnebago Indians of lands that had been allotted to them in severalty, under the provisions of the “Dawes Act”; the lands being within the limits of the Omaha and Winnebago Indian Reservation, in the State of Nebraska. The leases were held to be absolutely void, as, under the terms of the act, the United States held the title in trust for the Indians for the period of twenty-five years, and all contracts made during said period with other than native Indians were declared null and void. And the cases held that these provisions were necessary in order to enable the United States to fulfill its treaty obligations, and carry out its policy of civilizing the Indians. The case of U. S. v. Mullin, 71 Fed. Rep. 682, which arose over allotments on the same reservation, went one step further, and held that the United States was not relieved from its duties of guardianship and protection of the members of an Indian tribe, assumed by treaty with such tribe, in consequence of the Indians becoming citizens of the United States. But in neither of these cases is it decided, and in the case in 69 Fed. Judge Shiras expressly declines to decide, whether or not lands thus allotted cease to be a part of the Indian reservation. Nor do we think that question is or can be material in the case at bar, because, under the Enabling Act and under the disclaimer in our Constitution, “Indian lands,” as the words are there used, include all lands “owned or held by any Indian or Indian tribes”; so that, in order that land should be under the absolute jurisdiction and control of congress, it was not necessary that it be included within any reservation, but only that it be "owned or held by an Indian.” It is certainly favorable to these appellants to hold that congress has the same jurisdiction oyer alloted lands within the limits of an original
These authorities establish firmly the proposition that the jurisdiction reserved by the Enabling Act was not an exclusive jurisdiction. It did not take Indian lands out of the jurisdiction of the state where located, in the sense that the lands in another state are excluded. The United States retained all jurisdiction necessary for the disposition of the land and the title thereto; all jurisdiction necessary to enable it to carry out all treaty and contract stipulations with the Indians; all jurisdiction necessary to enable it to protect and civilize its unfortunate wards. But the state had jurisdiction to tax the property of its citizens within the reservation, to enter thereon for the purpose of enforcing, by levy and sale, the collection of such tax. It had jurisdiction to punish its citizens for crimes committed one against the other thereon. And the principle of these decisions logically and necessarily lead further, and give the state the right to extend to its citizens lawfully upon such Indian lands all the privileges and immunities
Were these relators voters ? Under § 480, Rev. Codes, they would not be voters unless they had entirely abandoned their tribal relations, and were in no manner subject to the authority of any Indian chief or Indian agent. Appellants contend that, under the stipulated facts, these respondents do not fulfill the requirements of the statute. Respondents, without admitting the appellant’s contention, urge that the statute itself is unconstitutional. Section 121 of our Constitution defines who shall be deemed qualified electors, and the first class is “Citizens of the United States.” The sixth section of the Dawes Act declares that these relators are citizens of the United States. Hence they must be qualified electors, unless barred by § 480, Rev. Codes. Such section is clearly a restriction upon the right of suffrage, as established by said § 121 of the Constitution. But § 122 of the Constitution declares: “* * *■ But no law extending or restricting the right of suffrage shall be in force until adopted by a majority of the voters of the state voting at a general election.” It is conceded that § 480, Rev. Codes, has never been so adopted; hence, in so far as it restricts the constitutional right of suffrage, it is of no effect. The points that we have discussed were before the Supreme Court of Nebraska in State v. Norris, 55 N. W. Rep. 1086, and the decision in that case is direct authority for the conclusions we have reached. The order of the District Court is modified in so far as it required appellants to establish a voting place at a particular point within said precinct, as that matter
In all other respects the order appealed from is affirmed, and the peremptory writ of mandamus, as thus modified, must be obeyed.
Modified and affirmed.