*1 every person and ordi- rule intends the natural say passing that may We closely nary gained consequences acts. For of his appears to have case the Powell juris similar v. situations see Chadwick federal any headway little if Hamburg-American supra, Keegan diction. States, supra. L.Ed. Steam Packet v. United Co. observed Stone Chief Judgment Justice affirmed. Powell, People 63 N.Y. “The doctrine rely, a crim petitioners in it ‘innocent conspiracy to do an act inal conspirators be not known self’ corrupt
prohibited some must be actuated intention to do other than the
motive prohibited
act which is and which conspiracy,
object has never accepted by Nothing more this Court.” TOOISGAH UNITED STATES. said, the ac proved, he than that need be No. 4104. contemplation all the persons had in cused Appeals conspired United States Court of they offence which elements Tenth Circuit. to commit.2 Consult also Chadwick Dec. 225; Hamburg-Amer Cir., 141 F. States, 2 Packet Co. v. United ican Steam 250 F. 758-759.
But we substantially are not here authority People
concerned with the
Powell and it, the cases which have followed
for on their facts bear scant resem
blance to the case before us. In this record plenty
there is of evidence that the motives appellant
and intent of Abreu as as of well
were not abundantly innocent. It was Abreu, pursuant
shown that to an understanding appellant, he
made and filed Surplus declarations with the
Property specifically office stating that such
property might as he permitted pur chase acquired would be “personal for his
use,” and that agent he “was not acting as knew, for others.” He appellant, as did Phillips, Judge, Chief dissented. that these statements were false and that in truth and in fact he purchasing property appellant. On the whole of testimony,
his including the documents signed,
certificates he identified as having
it is inescapably evident that he was actuat
ed by purpose the fraudulent of deceiving agency having
charge disposition surplus property.
It is immaterial that as a dis witness he criminality
claimed consciousness of the doing. presumes
what he was The law observation, ap- 2. The fact that this was said in course force of the as will study parent of a on a of the decision. dissent does not detract from the *2 Lewis, Grady Washington, C., D. appellant. Shelton, Atty., E. U. Robert Okla- Okl., City, appellee.
homa PHILLIPS, Judge, Before Chief MURRAH, Judg- BRATTON Circuit es. * * * may HURRAH, Judge. which im- move Circuit vacate, posed sentence to set aside or petitioner, Phillip Tooisgah, full- * * * correct sentence at indicted, tried
blood
time
*.
If
finds that the
the court
District
and convicted
the Western
*3
jurisdic-
was rendered without
Oklahoma,
Tah-
Lucy
the murder
* * *
tion
the court shall vacate and
dooahnippah,
full-blood Comanche
a
discharge
set the
shall
judgment aside and
dian. Federal
over the offense
prisoner
grant
him or
a
resentence
upon
allegation
is based
indict-
may
new trial or
sentence as
correct
ment
oc-
to
effect that
homicide
appear appropriate.”
County,
curred on
in Caddo
June
Oklahoma,
in the
Western District of
The
the court
of the
upon
Country
in Indian
charged
a reservation
United States over the offense
juris-
a
squarely put
facts,
tract
land within the exclusive
agreed
issue on
States, comprising
diction of the United
was sustained as a
in the
matter of law
Mullcehay,
case,
the Indian allotment of Ellen
trial of
holding
the court
that the
patent
having
never
been issued
deed
“defendant had been convicted of murder
Secretary
her
of a
Interior.
full-blood Comanche Indian
And,
judi-
Indian reservation.”
while res
appeal,
on
Too
When the case was here
invoked,
cata has not
strictly
nor is it
Cir.,
F.2d
isgah v. United
10
137
applicable
kind,
in cases of this
Section
713, jurisdiction
court over the of
2255
adequate protection against
affords
challenged.
fense was
We noticed
repetitious
by expressly providing
motions
it, however,
and sustained
under R.
§
that the “sentencing court shall not be re-
217;
25
328
U.S.C.A.
Section
§
quired
entertain
second
successive
Code,
of the Criminal
35
18 U.
Stat.
motion for similar relief
behalf
on
9 of the
March
S.C.A.
Section
Act of
prisoner.”
same
We have construed this
stipulation
on a
empowering
dispose
clause as
the court to
in the
effect that the allot
record to the
aof
“second or successive” motion in the
ment described
indictment was
discretion,
judicial
of a sound
exercise
allotment,
Ellen
it
Mulkehay
that
“guided
by a
and controlled
consideration
property
which the
was trust
bearing
has a
of whatever
rational
on the
allot-
legal
States held
title
the Indian
propriety
sought,”
of the relief
thus liken-
Pelican, 232
tee, citing United States v.
ing successive
Section
motions under
Unit
applications for writs of
to successive
Ramsey, 271
ed States v.
corpus.
Hunter,
See Barrett
habeas
Nowabbi,
parte
1039; Ex
Cir.,
F.2d
28 U.S.C.A.
and see
parte
111,61 P.2d
and Ex
60 Okl.Cr.
Pero, Cir.,
99 F.2d
Since
is the first
(cid:127)
motion under
By this motion
vacate
under Section
2255, cf.
Section
Hunter,
Gebhart v.
Title
United States
Anno-
Code
Cir.,
644, may
it
seriously
tated, we are asked
juris-
to re-examine the
unqualified
doubted whether we have
dis
court,
being
diction
earnestly
con-
cretion to refuse to entertain it as “a sec
agreed
bring
tended
facts do not
ond or successive motion for similar re
provisions
within
so,
even
lief.” But
discretion to entertain
jurisdictional
either
acts relied
motion, going
as
jurisdic
does
upon, as construed
authorities cited
offense,
tion
up
based
controlling.
as
facts,
agreed
on
seems to us manifestly
2255, in material part, provides
Section
clear.
“prisoner
custody
under sentence
of a court established Act
Hudspeth,
Hatten
Unlike
claiming
to be released upon
Johnston,
F.2d
and Davis
the 99
ground
court was
no
with-
new or additional facts
impose
sought
injected
case,
out
are
to be
sentence
into the
per
im
sought
committed
one Indian
adjudicated
no
facts are
property
law whe son or
of another
within
peached.
question is one of
bring any territory of the United
either
adjudicated facts
agreed
ther the
which within or
an Indian
without
the offense within
class over
by-
and “within the
Indian reser
limits
exclusive federal
is extended
squarely
lying
the boundaries
wholly
to vation”
within
goes
the motion
statute. Since
of a
as
agreed
state. This
was reenacted
jurisdiction of
the court
facts;
Code,
liberties,
as Section 328
of the Criminal
involves human
well
commonly
possible
fed
and has become
known
between state and
conflict
Major
phrase
Ten
Act. The
eral
crimes committed
Crimes
state;
sovereign
“within the limits of
Indian reserva
the boundaries of a
*4
subsequently
tion”
jurisdiction was
amended to read
and since the
any
presented
“on and within
Indian reservation
painstakingly
or
considered
appeal,
appropriate
under the
in the direct
we deem it
the United States
1932,
28,
Act of
to re-examine it here. Cf. Bowen v.
Government”.
John
June
336,
ston,
442,
19,
Stat.
Act became known as
306 U.S.
83 L.Ed.
S.Ct.
Section 548 of the United States Code An
original
notated. The effect
this law as
2145,
217,
Under
R.S
U.S.C.A. §
§
ly enacted,
repeal
part
was to
“in
the limi
general
laws
the United States as
imposed by
upon
tation that was
punishment
of crimes
committed
Donnelly
the effect of
2145.”
v. United
any place
and exclusive
within
sole
449, 450,
228 U.S.
33 S.Ct.
ex-
of the
States was
United
820;
57 L.Ed.
see also
States v.
United
Country.”
to “Indian
But the fol-
tended
Kagama, supra:.
218,
2146,
lowing
Section
U.S.C.A. §
expressly provides
in material
repealed
But Section 2146 was not
Section 2145 should not extend to crimes by
328,
except to the extent necesr
by
against
person
prop-
one Indian
or
sary
to confer federal
erty of another Indian.
certain enumerated crimes when commit
by
ted
Indian against
one
another Indian
originally
R.
When
enacted
carefully specified
Indeed,
places.
Sec
as Section
of the Act of June
tion 2146
unchanged
remained
when was
it
4 Stat.
it was and -had been the uni
recodified with Section 2145 as Section
policy
recog
form
United States to
Code,
1152 of the Revised Criminal
18 U.
Country
Indians in
nize the
Indian
as a
is
S.C.A.
It
therefore clear that the of
separate
power
people,
regulate
cognizable
fense
here is not
in the
relations,
their
internal
and social
Federal court under
(now
Section 2145
leave
thus to
to the tribal
1152),
only question
and the
for decision
jurisdiction over crimes and offenses com
whether
jurisdic
federal
the asserted
against
person
mitted
one Indian
tion over the offense is sustainable under
of another
property
Indian in Indian Coun
328 as an offense of murder
one Indian
try.
Joseph,
United States v.
94 U.S.
by another “on
any
Indian
295;
parte
24 L.Ed.
Ex
Dog,
Crow
reservation under the
1030;
109 U.S.
United States Government.”
Kagama,
States v.
United
United
question,
In the resolution of that
Quiver,
States v.
important
keep
it is
in mind that when
Cohen Handbook on
Territory
of Oklahoma was
Law,
7, p.
Ch.
Federal Indian
equal
admitted into the Union
states,
footing
original
thereby
It
not until after the decision
with the
Dog, supra,
complete
acquired
Crow
full and
parte
Ex
persons
boundaries,
Congress,
things
Section 9
Act of March all
within its
Indians,
except
including
extended federal
to the extent
government expressly
the federal
law and federal
over certain that
re
crimes,
murder,
including
paramount jurisdiction
or asserted
enumerated
when tained
February
ward. See the General Allotment Act
guardian
over them
McBratney, 104 U.S.
24 Stat. 388.
States v.
Draper
v. United
Act,
Section 6 of
Allotment
the General
We find it trust allotments whether here- Tooisgah, The indictment Coun as “Indian might have construed defendant, of- inafter called try” 217 or 548 when the offense under degree, fense of murder the first committed, that Con since we are convinced “in alleged such offense was committed “Indian intend to terms gress did not use the the Western District of Oklahoma Country” and “within the limits within the Court when synonymously reservation” Country upon and in a imposed relax the limitations came thereof, as established legislative by When law of the United and on certain a set- historical considered scheme is tract of land was then and significance ting, it of controlling think we under the sole exclusive term employing the familiar that instead comprised States and the United and flex- Country”, with its broad “Indian Mulkehay, Indian allotment Ellen jurisdic- federal ible to delineate definition day title to allotment said on the 2nd carefully de- tion, language Congress chose June, being held in trust Unit- jurisdic- recognize sovereign signed ed inalienable said States and state, was com- a unless tion Mulkehay, Ellen and for which said allot- govern- place a mitted Mulkehay Ellen ment said had never delib- Indians as a ment of the tribe. Secretary to her issued of, any In- phrase “within erate choice Department terior dian reservation of title and the certificate Government indicates, States Government” having the United States and exclu- sole to, think, Congressional disposition re- we lands, sive control over said organized res- jurisdiction to strict federal alleged The indictment further within a state. lying ervations defendant was a full-blood person and that the murdered was full- reenactment of 548 as Section In the *7 U.S.C.A., blood Comanche the Congress substi- Counsel for Title 18 Indian. Country” within for “on the tuted “Indian defendant at trial on the indictment [or] reservation”, conferring any Indian thus expressly stipulated allega- that all of such jurisdiction over the enumerated federal of the indictment were tions true. Country, committed in Indian crimes when quash By motion and at trial on the in Section 1151 of Revised the as defined indictment, the the defendant challenged Code. Criminal jurisdiction of the court over the of- But, charged. The judging jurisdiction sentencing federal fense ad- court judged that the defendant the words the statute when had con- “been here committed, guilty we are now victed on verdict of the offense * * * to hold that when in the indictment the reserva to wit constrained murder a full-blood dissolved tribal Comanche Indian tion Thus, the allotted lands lost their char up, an Indian Reservation.” it broken any “within sentencing Indian reserva will be seen that the as lands court ad- acter acquire had judged retain or Nor that of the of- tion”. did adjudication identity peculiar sepa That charged. fense involved character questions reservation. We therefore determination of fact and rate questions appeal, the court lacked of law. On this court hold that The order is re accordingly sentencing considered the offense. cause and the remanded direc court’s versed offense judgment adjudged vacate the and dismiss decided and that the trial court tions jurisdiction of the indictment. offense.
100 States, motion vacate See Louie United 254 U.S. 41 his v. The defendant sentencing to determine S.Ct. 65 L.Ed. court Bowen v.
asked and, Johnston, 19, 25, 26, again precise 306 U.S. 59 that issue S.Ct. denying case, his appeal from order the Louie the court on an said: motion, court to determine now asks this again precise issue of “The motions made defendant in the sentencing adjudged question,
which was District Court raised a not of charge court, criminal in the trial juris court of that but of the appeal from on an court diction of the United States. The conten motion to In his was, essence, that, of conviction. tion reason of the fact vacate, alleges no new motions, defendant facts forth in the the defendant criminal trial of the presented not in the respect complained acts the facts allege he subject Neither does case. to the laws of the state Idaho that trial are States; in the record as reflected and not to the laws of the United In other words that he did not violate anywise erroneous. Compare laws the United States. Unit provide an alter 2255 does not Section D.C., Kiya, ed States v. 126 F. remedy appeal. It does for an nate provides Section 328 of Penal Code relitigate, open door to a defendant committing murder on another and then on sentencing first Indian ‘within the boundaries state court, which must matters appeal in this States], and within [of original trial in the directly raised limits of shall be con appeal from the and on case criminal penalties same A motion under therein. viction persons are all other committing’ the same grounds predicated may be 2255 crime ‘within the exclusive attack on collateral may raised in a ibe United States.’ United States Ka v. held Barrett v. We so judgment. gama, 6 510, 513; Pulliam Hunter, Cir., F.2d Donnelly States, v. United States, Cir., F.2d United Cir., Gould defendant, effect, denied that the like following decisions F.2d was, killing sense, statutory Howell v. United See Fourth 'Circuit. true, If reservation. this was an essen Cir., cases F.2d tial element crime Gallagher, 3 cited; United States lacking; States was as much so as if Hastings had been established in United Sutton, *8 200, on its face does not show Soldana, record The States v. 246 that the court was affirmatively sentencing 38 62 U.S. S.Ct. L.Ed. region liquor On jurisdiction over offense. into which without was introduced clearly and contrary, country. the indictment was not Indian That the District charged jurisdiction an offense within the sufficiently Court for Idaho had to deter quo sentencing of the court under mine whether the locus in jurisdiction was a 3, 1885, questioned. Act of March of the reservation was not of the provisions By 15, 1897, January the Act of Section 78 Code as amended the whole Judicial Idaho comprised March and the Act state of is Act of within Idaho; ¡by 29 paragraph Stat. District of 23 Stat. second June 487 ¡Courts 1151; 47 Stat. 337. section 24 District ; original have question jurisdiction And, can be no but that the of all and cog crimes offenses acquired jurisdiction authority nizable under the sentencing court States; The and of the defendant. sentenc- the' defendant was person arrested therefore, court, jurisdiction within the district of Idaho. 'had ing adjudicate question determine motions in “Since defendant’s the Dis- jurisdiction question did not raise a properly it had trict Court whether offense.
101 process, determine quirements court, went of due but jurisdiction of the jurisdiction have they direct whether or not merits, for a no basis there was purpose to Pronovost entertain the cause and for this court. error from writ of which apply construe and the statute 232 v. determina- they Their asked to act. are Lamar v. United to direct questions, open He tions while of such S.Ct. collaterally. review, may assailed Court not be properly sought in the Circuit review Appeals.” sj< ijj i'fi authority pass question has the jurisdiction “The court The its decree upon ques questions fact and its own offense raised attack, while involving tions of law the construction sustaining judicata in open review, is res R.S. to direct R.S. U.S.C.A. § § Act of collateral action.” U.S.C.A. amended, supra. March Where And, Surety Co. in American again, deter court has hear and Baldwin, 287 U.S. right or question, judgment, mine the princi- “The the court said: wrong, impregnable is attack. to collateral questions of judicata ples apply res test of case is The in such a issues.” jurisdiction as well as to other power whether the tribunal has to enter presented precise question came The here upon inquiry, con whether its Ninth Davis v. before the Circuit in John- clusion in the course is ston, There, 144 F.2d the indictment wrong.1 alleged offense murder Burgess Nail, In committed an Indian within 43, we “Error said: in the determination attack a collateral questions upon of law or fact which judgment (cid:127)made on the of conviction court’s particular case ground indictment on the mur- depends, having general juris- court upon der land which had was 'committed diction person, the cause and is error patented been allotted and to an Indian jurisdiction. exercise Such severalty and thereafter sold to a white ground error affords no at- collateral citizen, was, therefore, no longer tack.” court, deny- reservation. ing relief, said: “The uniform rule is that County Chicot Drainage v. Bax- Dist. where the court is Bank, ter State dependent issue in the trial court 317, 319, 320, said: court alleged, jurisdic- finding facts “The lower federal courts are all courts parties tion is conclusive on the in a col- of limited jurisdiction, is, lateral attack on the on habeas pre- has corpus proceedings or otherwise.” scribed. But none the less courts are with authority, The same parties when before this brought are Hudspeth, before them Hatten accordance with the re- See, also, Gottlieb, Ry. Foltz Co., St. Louis & Stoll v. F. *9 Cir., 316, 165, 319; 318, Burgess 60 F. 59 S.Ct. 83 L. v. Nail, Ry. Cir., 104; Chicago 37, 44; Walling 10 Ed. R. I. & 103 Co. F.2d P. v. Miller, 611, Cir., 617, Schendel, v. 632; 629, 8 U.S. F.2d 270 46 S.Ct. 138 Co., National Park Bank L.Ed. v. 70 Sunshine Anthracite McKibben & D.C.Ga., Adkins, Coal Co. v. 254, 255; Ripperger 310 43 F.2d Allyn U.S. 60 1263; Bretsky Co., v. v. A. Cir., C. 84 & S.Ct. Lehigh Valley L.Ed. 2 F.2d 113 332, 333; Brotsky Co., Cir., Lehigh Valley 2 R.R. 156 F. v. R. Co., Cir., Nye R. 2 2d National Park Bank F.2d Mc Co., D.C.Ga., Cir., Kibben & 43 F.2d 255. 137 F.2d 77; O. F. Nelson & Co. v. United also, Ripperger Allyn See, v. A. C. & 3. 833, 836; 169 F.2d Bostwick Co., Cir., 332, 333; Walling Drainage Dist., Cir., Baldwin F.2d Miller, 1, 4. filed charged judgment, a motion to vacate the The indictment there limits under offense was committed sentencing of an Indian reservation. The be But, jurisdiction could if the issue of jurisdiction court of- it had held my is it proceeding, re-examined this Upon application fense. an for a writ opinion say record on the that we cannot corpus of habeas this court held that such before us that the court lacked adjudication judicata res and the issue indictment. over the offense sentencing court Mulkehay majority that the states that case be could not raised on collateral apart allotment the area set was within attack. reservation and established as an Indian Comanche, Kiowa, Apache Moreover court has held that when Treaty of Lodge adjudicated by judg- issue dians the Medicine has 'been a That, per- ap- ment in proceeding the criminal and on peal haps, a may from judgment, precise from that be or inferred is- assumed Mulkehay sue, fact, apparently stipulated, judicata of res the doctrine may not was an allottee. relitigated a be thereafter on motion to vacate a filed sentence under § An Indian is a territorial reservation not application or on an for cor- habeas laws government, unit of where Indian pus.4 does prevail. and Indian customs Neither territory a reservation strictly
While measure va- speaking a motion to may a which an Indian exercise cate is in a direct attack court sentence form simply A a jurisdiction. is on the it reservation judgment, in is a col- substance domain, apart proper attack, may predicated lateral because it be occupancy gen- only authority for use and grounds may urged on purposes Such eral or limited Indians. challenged on judgment a collateral may for- a reservation be created without attack. or formal act. mal cession State jurisdic- sentencing Since had court Hitchcock, Minnesota v. person defendant, tion over since 650, 657, 46 not want court said: appear affirmatively does not on “Now, reservation, record, in order create a contrary face of but on the necessary a it is not that there should be alleges give facts indictment which would setting formal cession or formal act a court offense under particular enough that amended, tract. It a is Act as of March done from what has been there results expressly the defendant counsel his such, appropriated cer- certain defined tract stipulated the criminal trial at occupation purposes. tain Here the true, sentencing facts were since treaty to a certain was confined had to determine wheth- effect, became, specified tract. That offense, and it had er Chandler, Spalding Indian reservation. expressly adjudged had that the defendant of the offense of murder been convicted ‘ here, There, presented point. is in upon an In- a full-blood Comanche origin jurisdic- and that dian respect (160 thereto it was and in said offense, my conclusion tion over such pages page at at ground urged that it not could 469): that the collateral attack “ did not have sentencing court necessary to determine how ‘It is and, therefore, tract, particular such asserted sub- of the offense the reservation of *10 reserve,” sequently known the “Indian as ground affords no for of want Cir., Hunter, Cir., Hunter, 164 F.2d 184 F.2d Fowler Gebhart Hunter, cited; Garrison v. Holbrook v. and cases 230, 231; Hunter, made, the remain- clearly the had been came inferable allotments to made. It is be entry. ing opened to from record lands should be in the the evidence contained treaty that at time of making the the did agreement of The October of Chippewa tribe the and it June not discontinue tribal relations occupation and in Indians actual were the contemplate that tribal clear that it did encamp- use of this Indian reserve as dis- would be relations of the three tribes * * * pursuit ment fishing. for the not that continued, provided, because it But simply whether Indians continued the 480,000 should grazing land the acres to encamp where accustomed had been by be used in common the members prior treaty to making to the be tribes, should lands three but such tract, whether a selection of afterwards the for said “set use in common aside for the reserve, known as the Indian was made Indian tribes.” by subsequent making the Indians to the Pelican, United States treaty by acquiesced the in the government, United or whether the charged by indictment defendants were by selection was made with of murder on tract acquiesced Indians, by in is immaterial. land, which had been allotted to * * * If from the reservation was free Agnes. indictment on R.S. The was based objection by government, it was as in 2145. The allotment was embraced though particular effectual as to tract Reservation, Colville Indian be designated by used specifically was alone, fact virtue of became treaty boundaries in the itself. The reser- country. The reservation created was vation precisely thus created stood July 2, By executive order on same category reserva- other Indian specified July Act 27 Stat. tions, general whether established for reservation, with tract embraced ” uses, limited exceptions, certain re- was vacated and 21, 1892, ap- of October domain, public to stored and it was proved 676-681, in June provided open such to tract should my opinion, only disestablished the entry by proclamation settlement and Lodge reservation created the Medicine provide of the President. In order to Treaty agree- It of 1867. is true such tract, residing the Indians Con- such relinquished ment ceded and to the United gress exceptions made the referred to States the lands described in the Medicine every providing that Indian should such Lodge Treaty, but that cession and re- be select entitled to from such tract 80 linquishment expressly subject to the acres, severalty, to be allotted him severalty, allotment in adult to each and and that the title to the allotted lands Comanche, Kiowa, minor member of should be held trust for the' benefit tribes, of 160 acres of land allottees, respectively, afterwards relinquished, out of the land ceded and to conveyed simple in fee allottees allottees, respec- held trust heirs. their One the 80-acre tracts tively, period years; provision selected under such al- relinquishment that cession and was fur- Agnes. dealing lotment The court expressly setting ther aside exceptions to, referred said: “The for the “use in common” “said Indian purpose was to evident carve 480,000 grazing tribes” of acres of land portion out the reservation re- relinquished. out of the land ceded and domain the stored lands to reserved, stated, interruption right be allotted and
There was no and to occupy lands on make the restoration as to Indians effective The vacation agreement ex- the residue. and restoration because the accomplished (§ 1) pressly to each Indian the to which statute gave expressly ‘subject allotment made as his reser- select thus improvements in severalty vation and allotment had made and then he used occupied, provided the individual members of the Indians that after *11 lOá occupancy
of
the were
to
under
the Colville Reservation’ for which
devoted
provided.”
imposed
July
by
act
the
the Act of
limitations
1, 1892, such lands retained their Indian
Likewise, it
the instant
seems to me in
country.
character
and remained
case,
by
agreement
that
of October
the
the
And
Court concluded
provided
“subject
which
to the
Congress
of
of
to
no doubt
the intent
lands,
in-
severalty
allotment of
to the
maintain
lands
Federal
over the
Comanche,
dividual
Kiowa
members
Indian, Agnes,
to
sus-
allotted
the
and
* * *
Indians,
and
tribes of
court
tained the
of the Federal
subject
apart”
setting
and
to the
over the offense.6
“for
the use in common for said
480,000
grazing
eighty
tribes four
acres
aside as
hundred and
thousand
set
by
three
grazing
acres of
lands lands to
used in common
the
lands
the
created
tribes
continued
Ibe an Indian
clearly
embraced
to
Lodge Treaty
reservation;
and
Medicine
were ceded
the
lands were
allotted
relinquished
to
United
and
use
occu-
the
the exclusive
and
such
be restored
pancy
Indians;
lands should thereafter
of
the
to the allotted
title
public domain, Congress
by
the
intended
lands was held
the
States
United
allottees;
except
carve
and
from
cession
out
the
trust
benefit
the Indian
to the
the
States
restoration
United
and the United States retained exclusive
domain,
and jurisdiction
lands to be allotted
the
such lands and the allot-
and to
grazing
designated
the
lands to be
tees
trust
during the continuance
the
It,
effective period.
therefore,
make
cession and restoration
the
seems
me
only
residue.
the
instead of the
of 1892 disestab-
reservation,
lishing
the
extinguishing
Furthermore,
case,
in the Pelican
the
merely
thereof,
reduced
so that
area
held,
Supreme
notwithstanding
Court
thereafter
it embraced
the allotted
was com-
allotment
480,000
lands and
grazing
acres of
country solely by
became
mitted
lands.
virtue
its
Reser-
inclusion
Colville
alleged
prior
date of the
vation and
Lands which
form a
an Indian
been allotted
the offense had
commission
reservation are not
from
excluded
1, 1892, to
July
Act of
under the
reason
their allotment
by
dian,
that because such land
Agnes,
severalty,
patents
under trust
which re
trust
the United States for the
held in
legal
tain the
title in
United
States
his
and benefit
the allottee and
sole use
impose
allottee
trust
conditions
years,
period of 25
for a
because
heirs
alienation, and
al
notwithstanding
allottee5 continued to
such lands
lands,
States
lotment
United
control
be under
com
jurisdiction over crimes
courts retain
purposes
governmental
for all
provision of
mitted on such
under
protec-
relating
guardianship
to the
3, 1885,as amended.7
Act of March
Indians, and because such lands
tion of the
occupied
ing
Act,
sucb lands were held
Indian Allotment
5. Section 6
people
tbe Pueblo
communal
February
tbe
Act
during
ownership,
grant made
May 8,
under
amended
Act
recognized
sovereignty,
Spanish
provide:
Mex-
“That un-
ico,
patente
fee-simple
and confirmed
all
til
issuance
people
primarily
patents
because
trust
shall
to whom
allottees
Pueblo
States
were wards
United
shall be
be issued
hereafter
jurisdiction.
therefore,
and,
United
exclusive
States.”
Yohyowan
Luce, D.C.Wash.,
F.
Celestine,
425, 427, 428;
Chavez,
States v.
United
And,
290 U.
Sutton,
States v.
Pueblo
United
294,
lands of
held that
country
Davis
were Indian
of Isleta
meaning
notwithstand-
of U.S.
*12
that,
respect to
Supreme
It will
with
Court
be observed
After
decision
an
against
Dog,
by
U.S.
S.
offense committed
parte
in Ex
Crow
holding
exclusive
that R.S.
who is
Ct.
jurisdiction
States,
and
supra,
give
United States
did
lands over
States retains
committed
which the United
over offenses
courts
jurisdiction,
Supreme
placed
has
by
against
Court
another
one
phrase
“In-
that
broad
country, it was discovered
such
construction
country”
dian
unpunished,
it was
used
R.S.
and
as
going
were
offenses
remedy
Act
to
situation that the
think
I
the same broad construction
Prior to
March
enacted.8
placed upon
should ibe
phrase
“Indian
Act,
by
crimes
In
enactment of the latter
reservation”
used
as
Act of March
against
left to
Indians were
be dealt
dians
amended,
respect
with
of-
to
itself, according to
by each
tribe for
fenses embraced
such Act and commit-
its local customs.9
by
against
Indians
on Indian
ted
Indians
allotments, at
a time when
Kagama,
States
States retains exclusive
6 S.Ct.
the allottee and
al-
Dog,
the court
“The Case of
said:
Crow
lotted land.
1030],
109 U.S.
[27
my opinion
long
It is
that so
title
with the Sioux In
the allotted
by
lands
members
selected
dians,
by
Congress,
ratified
an act of
iComanche, Kiowa,
supposed to extend
over them
laws
Indians,
tribes
and carved out of
the United States and the
relinquished
ceded
lands
the United
courts,
murder
covering
grave
and other
States,
by
continue
be held in trust
crimes,
purpose
shows
the United
such
continue
departure.
this new
The decision in that
be set
exclusive use
oc-
case admits
if
intention
Con
cupancy
by members of the three tribes
gress
punish, by
had been to
alienation,
without the
long
and so
courts,
by
the murder of one Indian
as the United
ju-
States retains exclusive
another, the law would have been valid.
risdiction over the Indian
allottees
see,
But the court could not
agree
lands,
over such
such
ment with the Indians sanctioned
Con
480,000
acres of
land
grazing
set aside
gress,
purpose
repeal
section
tribes,
for the use in
common
such
Statutes,
the Revised
which expressly ex
be regarded as an
should
Indian reserva-
cludes from the
the case of a
tion, although
original
crime
one
committed
an
relinquishment
reduced
the cession and
country.
other in the Indian
The passage
other lands to
United States.
of the act now under consideration10 was
designed
indicated,
objection,
remove
For the reasons
I
think the
go
including
sentencing
crimes on res
further
lying
ervations
offense
(Italics
state.”
should
mine.)
affirmed.
parte Pero,
parte
Dog,
Ex
Ex
Crow
parte
Wallace, Okl.Cr.App.,
Ex
P.
Don-
nelly
2d
v. United