U. S. ex rel. Young v. Imoda

4 Mont. 38 | Mont. | 1881

Wade, C. J.

This is an application for a writ of habeas corpus. The petition in substance states that the petitioner is the agent of the United States for the tribe of Indians known as the Blackfeet Indians, dwelling within the territory of Montana; that under and by virtue of certain treaties between the United States aiid said tribes, and the acts of congress pertaining thereto, the United States has established a school at the Blackfoot agency for the education of the minor children of said tribe of Indians, and that such agent, by virtue of said laws and treaties, is given the right, on behalf of the United States, to the custody, care, training and education of said minor children.

The petition further states that one 0. Imoda, a priest of the Roman Catholic church of the St. Peter’s mission, on the 23d day of May, 1880, came upon the Blackfoot reservation, and did unlawfully seduce, entice and abduct from the said school and from the reservation, and did carry and lead away with him beyond the limits of the reservation, and without their consent or that of the United States, two Indian boys, to wit, Ah-Ween, aged twelve years, and So-Ween-a-Much, aged nine years, whose parénts are members of the said Blackfoot tribe, and refuses on demand to surrender said children to said agent of the United States. Wherefore the petition for a writ of habeas corpus.

The relations existing between the United States and the Indian tribes are regulated by treaty stipulation. It is not necessary to inquire by what right or authority these tribes and the United States treat and contract with each other. It was argued at the bar that the relation existing between the Indians and the United States was substantially that of guardian and ward, and hence that the United States, as guardian, had the right to the custody and care of its wards, the children aforesaid. What difficulties might arise in attempting to explain how the general government, as guardian, has the right to treat and contract with its wards, we shall not undertake to point out. It is sufficient to know that the government does treat with the Indians. For the purposes of this case, we must consider the Indian tribes as distinct communities, capable of entering into and forming treaties with the United States.

It has ever been the policy of the government, while asserting final sovereignty and dominion over the soil within its jurisdiction, tó respect the possessory or other rights of the various Indian tribes. Such rights have been enlarged or extinguished by treaty. The government recognizes the authority of the Indian tribes to make treaties. It does not assert any authority over the Indians except such as is founded upon their consent. The government has attempted to civilize the Indians and to give to their children the rudiments of an education, but whatever has been done in this regard has been performed by virtue of treaty stipulation.

The rights of the petitioner, then, must depend upon the provisions of the treaty existing between the United States and the Blackfoot tribe, and the laws of congress made in aid of and not in conflict therewith.

Article 7 of the treaty is as follows: “ In order to insure the civilization of the Indians entering into the treaty, the necessity of education is admitted, especially of such of them as are or may be settled on said agricultural reservations, and they therefore pledge themselves to compel their children, male and female, between the ages of six and sixteen years, to attend school; and it is hereby made the duty of the agent of said Indians to see that this stipulation is strictly complied with; and the United States agrees that for every thirty children between said ages who can be induced or compelled to attend school, a house shall be provided, and a teacher competent to teach the elementary branches of an English education shall be furnished, who will reside among said Indians and faithfully discharge his or her duties as a teacher.” Revision of Indian Treaties, p. 918.

As early as 1819, and long prior to the taking effect of the treaty aforesaid, congress, with a view to the education and civilization of the Indians, had enacted the following statute, which is still in force: “The president may in every case, where he shall judge improvement in the habits and condition of such Indians practicable, and that the means of instruction can be introduced with their own consent, employ capable persons of good moral character to instruct them in the mode of agriculture suited to their situation; and for teaching their children in reading, writing and arithmetic, and performing such other duties as may be enjoined according to such instructions and rules as the president may give and prescribe for the regulation of their conduct in the discharge of their duties. A repost of the proceedings adopted in the execution of this provision shall be annually laid before congress.” Revised Statutes of the U. S., sec. 2071, p. 865.

Upon this statute and treaty the relator rests his right to the writ prayed for in his petition. And the question presented is, whether the Blackfeet Indians, by having entered into this treaty obligation, thereby surrendered to the United States or to its agents the right to the possession, custody, care and education of their minor children.

This treaty and statute fairly illustrates the policy of the government towards the Indians. The purpose is to civilize and educate them. But the government does not assume to force upon the Indians an education, nor to compel them to adopt the modes of civilized life. The fundamental idea is that whatever is done in the premises must be by consent of the Indians. The treaty is based entirely upon that proposition. It admits the necessity of an education for the purpose of civilizing the Indians. It provides for a school house and a competent teacher at the agency. And the Indians on their part contract and promise to compel their children, male and female, between the ages of six and sixteen, to attend school, and it is made the duty of the agent to see that this stipulation is carried out.

By the terms of the treaty the Indians are to compel their children to attend school. But the United States is given no authority over the children; certainly is not given the right to their custody and possession. The agent of the United States is only charged with the duty of seeing to it that the Indians redeem their pledge and send their children to school. But suppose they do not ? Suppose they violate their pledge and fail to perform their contract ? Is such failure accompanied by a penalty giving to the United States the right to the possession and custody of the children of the tribe ? We think not. The United States cannot compel these Indian children to attend the school. Such attendance can only be enforced by their parents or the Indians of the tribe.

If this were an application by the parents to recover the custody and possession of their children, a very different case would be presented. It does not appear that these children were taken by the priest against the consent of their parents; and if with their consent, and they have thus failed to perform the pledge and contract of the treaty, we do not think that the United States, thereby, becomes entitled to the custody of their children.

The application for the writ of habeas corpus is therefore denied. Application denied.