The Fort Hill Indian Reservation in the County of Oneida, in the
Territory of Idaho, is not excluded from the limits of the
Territory by the Act of March 3, 1863, creating it, and the Treaty
of July 3, 1868, with the Eastern Band of Shoshonees and the
Bannack Tribe does not necessarily except it from the jurisdiction
of the territory.
The lands and railroad of the Utah & Northern Railway
Company situated within the limits of the Fort Hill Indian
Reservation are subject to territorial taxation, which may be
enforced within the exterior boundaries of the reservation by
proper process.
The facts which make the case are stated in the opinion of the
court.
MR. JUSTICE FIELD delivered the opinion of the Court.
The plaintiff became a corporation of Utah under an Act of the
Territory of February 12, 1869, for the incorporation of railroad
companies, and by the Act of Congress of June 20, 1878, it was made
a railway corporation, not only of that territory, but of Idaho and
Montana also, with the same rights and privileges it had under its
original articles of incorporation,
Page 116 U. S. 29
with a proviso, however, that it should thereafter be subject to
all laws and regulations in relation to railroads of the United
States, or of any territory or state through which it might pass.
20 Stat. c. 362, ยง 2. It now owns and operates in Idaho a railroad,
which, for the distance of sixty-nine miles and a fraction of a
mile, passes through a tract of land in the County of Oneida, known
as the "Fort Hill Indian Reservation," which was on the 30th of
July, 1869, set apart by order of the president for the Bannock
tribe of Indians, pursuant to the provisions of a treaty between
the United States and the eastern band of Shoshonees and the
Bannock tribe, concluded July 3, 1868. 15 Stat. 673.
In 1882 there was levied under the laws of the territory upon
the railroad, its depots, and other property within the
reservation, for territorial and county purposes, a tax, amounting
in the aggregate to $4,478. The defendant is the assessor and tax
collector of the county, and the tax having become delinquent, he
was proceeding to enforce it by a sale of the property, when the
plaintiff commenced this suit in the district court of the county
to restrain him, contending that the property being within the
boundaries of the Indian reservation is withdrawn from the
jurisdiction of the territory. A preliminary injunction was
granted, but at the hearing the court held that the property was
subject to taxation, and that the tax was duly levied. The
injunction was accordingly dissolved and judgment rendered for the
defendant. On appeal to the supreme court of the territory this
judgment was affirmed.
The contention of the plaintiff is that the Indian reservation
is excluded from the limits of Idaho by the Act of March 3, 1863,
creating the territory, or that it is necessarily excepted from the
jurisdiction of the territory by the Treaty of July 3, 1868.
Neither position can be sustained. The first section of that act
embraces within the boundaries of the territory the reservation,
and the proviso upon which the plaintiff relies only declares that
nothing shall be construed to impair the existing rights of the
Indians in Idaho, so long as they shall remain unextinguished by
treaty, or to include within its boundaries or jurisdiction any
lands which, by treaty
Page 116 U. S. 30
with the Indian tribes, were not, without their consent, to be
included within the limits or jurisdiction of any state or
territory; or to affect the authority of the government of the
United States to make any regulations respecting the Indians, their
lands, property, or other rights, by treaty, law, or otherwise,
which it would have been competent for the government to make if
the act had not passed. 12 Stat. 808. The proviso excludes from the
limits and jurisdiction of Idaho only such lands as by treaty were
not to be included without the consent of the Indians, and it
recognizes the authority of the United States to make the same
regulations respecting the lands, property, and other rights of the
Indians, which it would have been competent to make before the
passage of the act. There was at that time no treaty with the
Indians that the lands, which might be reserved to them, should be
thus excluded from the limits and jurisdiction of any state or
territory. The clause of the proviso on that head has therefore no
application.
Harkness v. Hyde, 98 U. S.
476, in which it was held that the juris diction of the
territory did not extend over the reservation, was decided upon the
mistaken belief that such a treaty existed, and that to it the
proviso referred. This error was corrected in
Langford v.
Monteith, 102 U. S. 147.
As no such treaty existed, the proviso did not exclude the
reservation from the limits or the jurisdiction of the
territory.
By the treaty, it was agreed that whenever the Bannocks desired
a reservation to be set apart for their use, or the president
deemed it advisable to put them upon a reservation, he should cause
a suitable one to be selected in their country. It was under this
agreement that the Fort Hill reservation was subsequently
established and the Bannocks placed upon it. The treaty provided a
reservation for the Shoshonees, and declared that they should enjoy
various rights and privileges, and that the Bannocks, when their
reservation was made, should have the same rights and privileges
therein. Among other things, it was stipulated that the reservation
should be set apart for their absolute and undisturbed use and
occupation, and for such other friendly tribes or individual
Indians to whose admission from time to time they and the United
States
Page 116 U. S. 31
might consent, and that no person should ever be permitted by
the United States to pass through, settle upon, or reside on the
reservation, except those designated in the treaty, and such
officers, agents, and employees of the government as might be
authorized to enter therein in the discharge of duties enjoined by
law. The treaty also provided for the punishment, according to the
laws of the United States, of any person among the Indians who
should commit a wrong or depredation upon the person or property of
anyone, white, black, or Indian, subject to the authority of the
United States, and at peace therewith, and that no treaty for the
cession of any portion of the reservation held in common should be
of any force or validity as against the Indians, unless executed
and signed by a majority of the adult male Indians occupying or
interested there, and that no cession should be construed to
deprive, without his consent, any member of the tribe of his right
to land selected by him under the treaty.
It is contended by the plaintiff that these stipulations cannot
be carried out, if the laws of the territory are enforced on the
reservation, and in support of the position special emphasis is
placed upon the clause in regard to persons passing over, settling
upon, or residing in the territory, and the clause touching
wrongdoers among the Indians. As these treaty provisions have the
force and effect of a law, it is insisted that the reservation is
excluded from the general jurisdiction of the territory, as
effectually as if the exclusion was made in specific terms.
To uphold that jurisdiction in all cases and to the fullest
extent would undoubtedly interfere with the enforcement of the
treaty stipulations, and might thus defeat provisions designed for
the security of the Indians. But it is not necessary to insist upon
such general jurisdiction for the Indians to enjoy the full benefit
of the stipulations for their protection. The authority of the
territory may rightfully extend to all matters not interfering with
that protection. It has therefore been held that process of its
courts may run into an Indian reservation of this kind, where the
subject matter or controversy is otherwise within their cognizance.
If the plaintiff lawfully constructed and now operates a railroad
through the reservation, it is not
Page 116 U. S. 32
perceived that any just rights of the Indians, under the treaty
can be impaired by taxing the road and property used in operating
it. The authority to construct and operate the road appears from
the agreement of July 18, 1881, between the United States and the
Indians, which was ratified by act of Congress of July 3, 1882.
That agreement recites that the Utah and Northern Railway Company
had applied for permission to construct a line of railway through
the reservation, and that the Indians had agreed, for the
consideration thereafter mentioned, to surrender to the United
States their title to so much of the reservation as might be
necessary for the legitimate and practical uses of the road. A
strip of land and several parcels adjoining it, forming part of the
reservation, were ceded to the United States for the consideration
of $6,000, to be used by the company and its successors or assigns
as a right of way and roadbed, and for depots, stations, and other
structures. By an act of Congress confirmatory of the agreement,
the same right of way was relinquished by the United States to the
company for the construction of its road, and the use of the
several parcels of land intended for depots, stations, and other
structures was granted to the company and its successors or
assigns, upon the payment to the United States, of the $6,000, and
on the condition of paying any damages which the United States or
Indians, individuals or in their tribal capacity, might sustain by
reason of the acts of the company, or its agents or employees, or
on account of fires originating in the construction or operation of
the road. By force of the cession thus made, the land upon which
the railroad and other property of the plaintiff are situated was,
so far as necessary for the construction and working of the road,
and the construction and use of buildings connected there with,
withdrawn from the reservation. The road and property thereupon
became subject to the laws of the territory relating to railroads,
as if the reservation had never existed. The very terms on which
the plaintiff became a corporation in the territory rendered it
subject to all such laws, and, of course, to those by which the tax
in controversy was imposed.
The only answer of the plaintiff to this view is that, by
the
Page 116 U. S. 33
stipulation of the parties and the finding of the court thereon,
it appears that the railway and property which are taxed, are
situated within the boundaries of and
upon the
reservation. If this be so, it does not follow that the result
would be changed. The moment that the road was lawfully
constructed, it came under the operation of the laws of the
territory. The stipulation and finding must, however, be read with
reference to the legislation of Congress, and therefore as only
establishing that the road and property are within the exterior
boundaries of the reservation. They will not be so construed as to
allow the company to escape taxation by the force of a stipulation
as to an alleged fact which that legislation shows does not
exist.
Judgment affirmed.