United States v. Baker, 4 Indian Terr. 544

United States v. Baker

4 Indian Terr. 544 | Ct. App. Ind. Terr. | 1903

Gill, C. J.

In order to a full understanding of the matters presented in this case upon the record and to be reviewed herein, it will be necessary to set out the United States statutes bearing upon the subject of removals from the Indian country and the return to such country of the person so removed. The indictment is headed “Indictment for Violation of Section 2148, R. S. U. S.” In the body of the indictment it is charged that said removal was made by order of a Commissioner of Indian Affairs, with the approval of the Secretary of the Interior, under section 2149, Rev. St. U. S., because the presence of the defendant (appellee) in said Chickasaw Nation was, in the judgment of said commissioner, detrimental to the peace and welfare of the Indians.

Sections 2147, 2150, Rev. St. U. S., were enacted by Congress June 30, 1834. Section 2147 reads as follows: “Sec. 2147. The Superintendent of Indian affairs, and the Indian agents and subagents, shall have authority to remove from the Indian country all persons found therein contrary to law; and the President is authorized to direct the military force to be employed in such removal.” Section 2150 provides how the military may be employed in apprehending persons violating the law. Thereafter, and on August 18, 1856, Congress enacted section 2148, which reads as follows: “Sec. 2148. If an}*- person who has been removed from the Indian country shall thereafter at any time return or be found within the Indian country, he shall be liable to a penalty of one thousand dollars.” Now, the *548indictment charges the removal of the defendant from the Indian country under section 2149, which section was enacted June 12, 1858, and which section is as follows: “Sec. 2149. The Commissioner of Indian affairs is authorized and required, with the approval of the Secretary of the -Interior, to remove from any tribal reservation any person being therein without authority of law, or whose presence within the limits of the reservation may, in the judgment of the commissioner, be detrimental to the peace and welfare of the Indians; and may employ for the purpose such force as may be necessary to enable the agent to effect the removal of such person.” It may be safely asserted that at the time of the enactment of section 2148 Congress did not have in view the condition of affairs requiring the enactment of section 2149, but was intending to provide a penalty for violations of the law which existed and were in force on the date when such section was enacted. The compiler of the statutes, in arranging these sections, had reference to the subject matter, and because they are arranged seriatim does not in any wise alter or affect the status of the sections as they affect the rights and duties of officials or citizens. These rights and duties are fixed by the law itself with reference to its meaning and intent, and not by the mind of any compiler thereof. The compilation, as prepared, was not re-enacted as the laws of the United States, but was to be received as legal evidence of such laws in all courts of the United States and of the several states therein. Section 2, Act June 20, 1874, c. 333, 18 Stat. 113 (U. S. Comp. St. 1901, p. 3757.)

The question to be decided in this case is, how shall the penalty provided for in section 2148 be recovered? Shall it be recovered as a fine in a criminal action, or shall it be recovered in a civil action? There can be no doubt in the mind of the court that the liability provided for in section 2148 is incurred where the return is made after removal in accordance with section 2149. *549If any one has been removed from the Indian country, and shall thereafter at any time return, or be found, within the Indian country, he shail be liable to a penalty of $1000. Now, that liability is incurred by reason of disobeying the laws of the United States in reference to a return of the party to the Indian country. But the question as to whether this liability shall be recovered by indictment and a fine upon a trial as a criminal action, or whether it shall be recovered by civil action in the nature of an action for debt, is more difficult. It seems to have peen passed upon directly by the Supreme Court of Oklahoma in the case In re Seagraves (Okl.) 48 Pac. 272, in which court it was held: "Section 2148, Rev. St. U. S. which provides, ‘If any person who has been removed from the Indian country shall thereafter at any time return or be found within the Indian country, he shall be liable to a penalty of one thousand dollars/ is not a criminal statute, but only renders the intruder liable to "the penalty therein named; and this penalty under section 2124, Rev. St. U. S. is recoverable ‘in an action in the nature of an action of debt, in the name of the United States, and cannot be enforced by a criminal proceeding; and where a party charged with the violation of section 2148 was prosecuted criminally, and fined $1000, and ordered committed until discharged by due process of law, and imprisoned upon this judgment, the party is discharged upon her petition for a writ of habeas corpus.” The cases cited by appellant in its brief are not directly upon the question involved, and, while the contention of appellant that the United States may elect as to the remedy whether to proceed on indictment, or whether to proceed as a civil action in the nature of an action for debt, is ably presented, we are of opinion that, as to the particular section involved, the remedy is by civil . action, instead of criminal action. Said section 2149 does not declare a return to the Indian country by a'person removed to be a crime at all. It simply provides that, if a person return to the Indian, country, he is liable to a penalty of $1000. The *550sum is fixed. By his act he incurs the liability, and the same must be recovered as a penal liability by civil action in the nature of a debt, the amount being fully liquidated and established by the law, and we are of opinion that the opinion of the Supreme Court of Oklahoma correctly lays down the proper rule in this class of cases. And, such being our opinion, the decision of the lower court in sustaining this demurrer and ordering the case re-referred to the grand jury was correct, and ought to be, and is hereby, affirmed.

Clayton and Raymond, JJ., concur.