126 F. 879 | D.N.D. | 1903
The indictment in this action charges the defendant with having committed, upon the Devils Lake Indian Reservation, the crime of rape upon the person of an Indian girl residing upon said reservation. It appears from the plea interposed by the defendant to the indictment, and the answer thereto, that both the defendant and the Indian girl upon whose person the crime is charged to have been committed are full-blood Indians, residing upon the Devils Lake Indian Reservation, under the charge of F. O. Getchell, the Indian agent of said reservation, and that neither of them has severed the tribal relations. It further appears in like manner that they were at the time the offense is charged to have been committed, and have been since the year 1893, residing upon lands allotted to each of them under and by virtue of the act of Congress approved February 8, 1887 (24 Stat. 388, c. 119), entitled “An act to provide for the allotment .of lands in severalty to Indians,” etc. It also appears in the pleadings that the defendant has been regularly held and bound over to appear and answer in the district court of the county of Ramsey and state of North Dakota at the November term, 1903, for the same offense which is charged in the indictment in ■this action.
Upon the foregoing facts, it is claimed by the defendant that he has not committed any offense against the laws of the United States, but that the acts charged, if the same were committed, are a violation of the laws of the state of North Dakota only; and, second, that this ■court has no jurisdiction to try the defendant for said offense, but that he is subject solely to the jurisdiction of the state courts.
The proper disposition of the questions thus raised involves a construction of the act of February 8, 1887, above referred to. This act provides, in substance, for an allotment of lands in severalty to Indians residing upon Indian reservations, the title to such lands to be held in trust by the government for a term of 25 years, or such longer period as the president of the United States may deem best, and at the expiration of such period an absolute title to pass' to the allottee. Section 5 (24 Stat. 389) provides that as soon as the allotments have been made and approved a patent shall issue in the name of the allottee, which shall declare that the United States will hold the land that is allotted for the period of 25 years in trust for the sole use and benefit of the Indian to whom such allotment shall be made. It further provides that at the expiration of this period, or
After a somewhat careful consideration of the statutes, I am led to the conclusion that the “patenting” referred to in section 6, above quoted, is the preliminary patent that is issued as soon as the allotment is made. The debates in Congress while this statute was pending leave no doubt that it was the purpose of Congress to try the experiment of placing the Indians, as far as possible, in the same situation as other residents of the communities in which they lived, compelling them to live upon their lands, and by industry support themselves therefrom, and subjecting them to the laws of the local community of their residence. It was hoped that in this way the Indian would be led out from the habits of indolence and shiftlessness, which had characterized his life while residing upon reservations and supported by the government, into a life of self-supporting industry and law-abiding citizenship. The language that such Indians “should be subject to the laws, both civil and criminal, of the state or territory in which they may reside,” is as plain and comprehensive as it could well be made. It could not have been the intention of Congress to render these Indians subject generally to the criminal laws both of the state and the nation. The language quoted plainly makes them amenable to the criminal laws of the state, and thereby removes them from the plane of national penal legislation, unless such legisla-tion is by express provision in particular cases made applicable to them. It has been held by the Supreme Court of North Dakota that Indians in the situation of those referred to in this action are full citizens of the state, entitled not only to the protection of its laws, but to the exercise of the right of franchise, the same as white inhabitants. State v. Denoyer, 6 N. D. 586, 72 N. W. 1014. A similar holding has been made by the Circuit Court of Appeals of this circuit in respect to Indians residing in the state of South Dakota, where the local statutes and Constitution on the subject are the same as in this state. Farrell v. United States, 110 Fed. 942, 49 C. C. A. 183.
It is doubtless true that Congress might have conferred upon Indians residing upon allotted lands all the rights of citizenship, and yet reserved to Congress control over them as wards of the government. The question here, however, is not what Congress can do, but what it has done. It is noteworthy that in the act of January 30, 1897, c. 109 (29 Stat. 506) forbidding the sale of liquor to Indians
A full consideration of these statutes seems to lead to the conclusion that Indians in the state of North Dakota residing upon allotted lands are subject to the laws of the state, both civil and criminal, and that they are not subject to federal law except in the cases where Congress has so expressly provided, as in the statute dealing with the subject of intoxicating liquors. The plea will therefore be sustained, and the defendant discharged.