23 F. 658 | W.D. Ark. | 1885
This case is before me on the application of District Attorney Clayton for a warrant for the removal of petitioner to the district of Kansas, as well as upon the writ of habeas corpus, issued upon application of petitioner. Section 1014 of the Revised Statutes of the United States, among other things, provides that “for any crime or offense against the United States the offender may, by any justice or judge of the United States, * * * be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense.
* * * And when any offender or witness is committed in any district other than,that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had.” If it be true that the district court of Kansas has no jurisdiction to try the offense alleged' to have been committed by petitioner, this court had no right to issue the warrant for his arrest; and although said warrant is regular on its face, yet it would be without authority of law, as such warrant was issued solely with a view to his removal to the district court of Kansas sitting at Wichita. If that is not a court where a trial can be had for the alleged offense of arson, and
Tlie question presents itself under the statute of removal, how far the judge of the district can or may go in his inquiry into the case, before be lakes action in the shape of ordering the removal of a person charged with crime in a district other than the one where he may be arrested. In U. S. v. Brawner, 7 Fed. Rep. 86, In re James, 18 Fed. Rep. 854, and In re Buell, 8 Dill. 116, it was, in effect, held that in acting on a motion for a “warrant of removal” the judge is performing a judicial function, and in the performance of such function, he may look into the proceedings of the commissioner, or the court in which the indictment was found, for the purpose of enabling him to properly determine questions pertaining to the removal, and grant or refuse the order accordingly. If the party has been indicted, can the judge go behind that indictment to inquire into the jurisdiction? The very question that he is called on to investigate and pass on in a proceeding for removal is where the offense is to be tried. What court has jurisdiction of it ? Where the trial is to he had. Now, is he precluded from doing this by an indictment ? The statute is very broad. He must inquire where the trial is to be had. He must send the party to the district where the offense is to he tried; to the court which has jurisdiction, where the trial is to be had. The judge of the district must judicially determine whether the prisoner shall he taken to another district for trial, and that ho may refuse his warrant when it appears that the removal should not he made, or when lie should admit the party'to bail. The judge is to determine for himself whether the party charged should be held or removed. U. S. v. Brawner, 7 Fed. Rep. 86; Conkl. Treat. (4th Ed.) 582; Murray, U. S. Courts, 29; Re Buell, 3 Dill. 116, at p. 120; U. S. v. Jacobi, 14 Int. Rev. Rec. 45; U. S. v. Pape, 24 Int. Rev. Rec. 29; U. S. v. Volz, 14 Blatchf. 15; U. S. v. Haskins, 3 Sawy. 262; Re Alexander, 1 Low. 530; U. S. v. Shepard, 1 Abb. 431; Re Doig, 4 Fed. Rep. 193; and cases cited in these opinions.
In some of these cases there was a writ of habeas corpus, and in some, the original examination was before the district judge, and in one the question arose in the district to which the removal was made on motion to quash the indictment.
Judge Haiimond, in U. S. v. Brawner, says:
“ In none o£ these cases does it seem to have been treated as a matter of much importance by what form of procedure the action of the judge is invoked, and in none is it denied that he may determine for himself whether the removal is proper.”
In the discretion of the judge he may take the indictment as prima facia evidence of jurisdiction; hut suppose the party, when an application for removal is made, objects to the removal on the ground that the court to which he is sought to he removed, has no jurisdiction to try him, he certainly has the right to, in this way, raise the question
But it is objected by counsel that the case cannot be heard on habeas corpus, as the warrant for the arrest of Eogers was legal; that the officer held him legally by virtue of such vyrit, and he being in legal custody, he cannot be discharged by this writ at this stage of the case. If he had been arrested on a warrant of a commissioner, and committed to await a warrant of removal, the action of the commissioner could be inquired into by habeas corpus, or without it on the application for removal. U. S. v. Brawner, 7 Fed. Rep. 86; In re Buell, 3 Dill. 116. The petitioner is in the same condition when held by the marshal under the warrant issued by the judge of this district as though he had been committed by a commissioner to await a warrant of removal. The effect of the warrant was to commit him to the marshal to await the action of the judge in ordering his removal, as would be the effect of the action of a commissioner when he was committed by him to await a warrant of removal. In the one' case, the judge, by habeas corpus, reviews the action of the commissioner. In the other he reviews his own action. By habeas corpus the jurisdiction of a court can be inquired into under the laws of the United States by any judge or court which has the right to issue the writ. In re Buell, 3 Dill. 16; In re James, 18 Fed. Rep. 853; U. S. v. Brawner, 7 Fed. Rep. 86.
There can, I think, he no doubt that the petitioner can raise the question of jurisdiction on an application for removal either when the motion for a writ of removal is pending, and on such motion, or by habeas corpus, and that the judge can, if the question of the jurisdiction of the court to which the prisoner is asked to be sent for trial is raised, go behind the indictment to ascertain where the trial is to be had. Then the material question in this case is, did tho district court of Kansas have jurisdiction of this alleged offense? The proof submitted in this case shows that a number of persons had handed together under the lead of one D. L. Payne, for the purpose of making a raid into the Indian country; that they had entered that country and made a settlement at a point four miles south of Hunniwell, Kansas, and the thirty-seventh parallel of north latitude, and between the ninety-seventh and ninety-eighth degrees of west longitude, a little north-west of the Nez Perce reservation on the Shaskaskie river; that those persons wore intruders in the Indian country. They wore there against and in violation of the laws of the United States. The president of the United States had issued his proclamation for their expulsion and arrest. The petitioner in this case had gone there as “acting Indian agent” of the five civilized tribes to point out to the military the intruders who wore to be expelled and arrested. That the petitioner set fire to and caused to be burned a small board shanty, which the intruders could not, or would not, remove after being requested by petitioner to remove same. If this is an offense against the laws of the United States, it was committed in that part of the Cherokee country known as the “Cherokee Outlet.” This country, together with the other part of its lands, was granted to the Cherokee Nation, as a nation, by the treaties between the Nation and the United States, made May 6,1828. Indian Treaties 56 and 57, the fourteenth of February, 1833, Id. 63, and December 29, 1835, Id. 61. By these treaties the Cherokee Nation was granted a perpetual outlet west, and a free and unmolested use of all the country lying west of the western boundary line of the 7,000,000 acres of land granted in and by the same treaties.
On the thirty-first of December, 1838, a patent was issued by the government of the United States, in accordance with treaty stipula
Prior to the act of congress of January 6, 1883, all of the country lying west of Missouri and Arkansas, known as the “Indian Territory,” was attached by a law of the United States to the judicial district of Arkansas. And the district court of such district had jurisdiction ■over all the country described above as Indian country for the trial of offenses, when committed by a certain class of persons, or upon a certain class of persons. Up to the time of the act above referred to there was no question as to the Cherokee outlet being in the jurisdiction of the district court for the Western district of Arkansas. It was Indian country and Indian country, lying west of Missouri and Arkansas, and a part of what was known as the Indian country. On the date above named, congress passed an act entitled “An act to provide for holding a term of the district court of the United States, at Wichita, Kansas, and for other purposes, which provides, by section 2, “that all that part of the Indian Territory lying north of the Can
.By the treaties and patent above referred do the Cherokee outlet was, beyond question, set apart, to the Gherokees and to that extent was in a condition the converse of that which is necessary to attach it to the district of Kansas. It matters not what may have been the extent of their title. If they had a title of any degree whatever, it was set apart to them. Now, at the time of the commission of this alleged offense, was it occupied by the Gherokee tribe of Indians? If it was set apart and occupied by this tribe, it is not in the jurisdiction of the district court of Kansas.
The evidence in this case shows that the Cherokee Nation has constantly, and all the time since it obtained the outlet, claimed it, and exercised acts of ownership and control over it. The nation has collected at different times a, grazier’s tax from white men who were grazing their stock on it. Individual Indians have gone on it and fenced up large tracts of land on the outlet. Different individual Indians have gone out and lived on it, and now live on it. That since the passage of this law of January 6, 1883, the Cherokee Nation has leased to citizens of the United States for grazing purposes 6,000,000 acres of this outlet. That under the provisions of the sixteenth article of the treaty of 1866 with the United States, it has sold tracts of land on this outlet for reservations to the Pawnees, Poncas, Nez Perces, Otocs, and Missonras. The very country where this alleged offense was committed, was, at the time of its commission, leased to the cattle men as a part of the 6,000,000-acre lease. That the Cherokee Nation never has abandoned any part of the outlet except what it has sold. It claims tiie title and possession of the outlet and of that part of it where this alleged offense is shown to have been committed. The United States, the grantor, has admitted its title to it. Then, does the Cherokee Nation occupy the country where the offense was committed? It becomes necessary in this connection to ascertain what is meant by the word “occupy.” It is well to remember that the country was set apart to the Cherokee Nation,—not to individual Clierokoos, but to the Cherokee Nation as such. When congress used the phrase “not set apart and occupied,” did it moan to imply that to constitute an occupation the Cherokee Nation must actually reside on the land, as a tenant resides in the house of his landlord? How could the nation do that ? This would be impossible. Did it mean to say that all the country upon which individual Indians, members
The government of the United States occupies all of its public lands. The Cherokee Nation occupies, and is in the actual legal possession of, all its lands to which it has title, and to which it has not relinquished such title. This, in my judgment, is the only reasonable interpretation which can be given to this word “occupied,” as used in the act of congress of January 6, 1883. If this be so, there is left no room for any other construction of this act of congress than that it does not put in the jurisdiction of the district court of Kansas any of the Cherokee country to which the nation has title, and which is subject to its will and control. But it is claimed in this case that the Cherokees no longer have any title to the country where the alleged offense is said to have occurred, as they sold it to the Cheyennes and Arapahoes in 1866. /
We find by the treaty of May 22, 1866, between the United States and the Cheyennes and Arapahoes, a reservation was set apart for them, which included, as a part thereof, the very country where this alleged crime was committed. By the terms of the second article of the treaty they were not required to settle on said reservation until