The ninth section of the Indian Appropriation Act of March 3,
1885, 23 Stat. 385, is valid and constitutional in both its
branches -- namely, that which gives jurisdiction to the courts of
the Territories of the crimes named (murder, manslaughter, rape,
assault with intent to kill, arson, burglary, and larceny),
committed by Indians within the Territories, and that which gives
jurisdiction in like cases to courts of the United States for the
same crimes committed on an Indian reservation within a State of
the Union.
While the Government of the United States has recognized in the
Indian tribes heretofore a state of semi-independence and pupilage,
it has the right and authority, instead of controlling them by
treaties, to govern them by acts of Congress, they being within the
geographical limit of the United States and being necessarily
subject to the laws which Congress may enact for their protection
and for the protection of the people with whom they come in
contact.
The States have no such power over them as long as they maintain
their tribal relations.
The Indians owe no allegiance to a State within which their
reservation may be established, and the State gives them no
protection.
The case is stated in the opinion of the Court.
MILLER, J.
The case is brought here by certificate of division of opinion
between the circuit judge and the district judge holding the
Circuit Court of the United States for District of California. The
questions certified arise on a demurrer to an indictment against
two Indians for murder committed on the Indian reservation of Hoopa
Valley, in the State of California, the person murdered being also
an Indian of said reservation.
Though there are six questions certified as the subject of
difference, the point of them all is well set out in the third and
sixth, which are as follows:
Page 118 U. S. 376
"3. Whether the provisions of said Section 9 [of the act of
Congress of March 3, 1885] making it a crime for one Indian to
commit murder upon another Indian upon an Indian reservation
situated wholly within the limits of a State of the Union, and
making such Indian so committing the crime of murder within and
upon such Indian reservation 'subject to the same laws,' and
subject to be 'tried in the same courts, and in the same manner,
and subject to the same penalties, as are all other persons'
committing the crime of murder 'within the exclusive jurisdiction
of the United States' is a constitutional and valid law of the
United States."
"6. Whether the courts of the United States have jurisdiction or
authority to try and punish an Indian belonging to an Indian tribe,
for committing the crime of murder upon another Indian belonging to
the same Indian tribe, both sustaining the usual tribal relations,
said crime having been committed upon an Indian reservation made
and set apart for the use of the Indian tribe to which said Indians
both belong."
The indictment sets out in two counts that Kagama, alias Pactah
Billy, an Indian, murdered Iyouse, alias Ike, another Indian, at
Humboldt County, in the State of California, within the limits of
the Hoopa Valley Reservation, and it charges Mahawaha, alias Ben,
also an Indian, with aiding and abetting in the murder.
The law referred to in the certificate is the last section of
the Indian appropriation act of that year, and is as follows:
"ยง 9. That immediately upon and after the date of the passage of
this act, all Indians committing against the person or property of
another Indian or other person any of the following crimes, namely,
murder, manslaughter, rape, assault with intent to kill, arson,
burglary, and larceny, within any territory of the United States,
and either within or without the Indian reservation, shall be
subject therefor to the laws of said territory relating to said
crimes, and shall be tried therefor in the same courts, and in the
same manner, and shall be subject to the same penalties, as are all
other persons charged with the commission of the said crimes
respectively; and said courts are hereby given jurisdiction in all
such cases; and all such Indians
Page 118 U. S. 377
committing any of the above-described crimes against the person
or property of another Indian or other person, within the
boundaries of any State of the United States, and within the limits
of any Indian reservation, shall be subject to the same laws, tried
in the same courts, and in the same manner, and subject to the same
penalties, as are all other persons committing any of the above
crimes within the exclusive jurisdiction of the United States."
The above enactment is clearly separable into two distinct
definitions of the conditions under which Indians may be punished
for the same crimes as defined by the common law. The first of
these is where the offense is committed within the limits of a
territorial government, whether on or off an Indian reservation. In
this class of cases, the Indian charged with the crime shall be
judged by the laws of the territory on that subject, and tried by
its courts. This proposition itself is new in legislation of
Congress, which has heretofore only undertaken to punish an Indian
who sustains the usual relation to his tribe, and the offense is
committed in the Indian country, or on an Indian reservation, in
exceptional cases -- as where the offense was against the person or
property of a white man, or is some violation of the trade and
intercourse regulations imposed by Congress on the Indian tribes.
It is new, because it now proposes to punish these offenses when
they are committed by one Indian on the person or property of
another. The second is where the offense is committed by one Indian
against the person or property of another, within the limits of a
State of the Union, but on an Indian reservation. In this case, of
which the State and its tribunals would have jurisdiction if the
offense was committed by a white man outside an Indian reservation,
the courts of the United States are to exercise jurisdiction as if
the offense had been committed at some place within the exclusive
jurisdiction of the United States. The first clause subjects all
Indians, guilty of these crimes committed within the limits of a
territory, to the laws of that territory, and to its courts for
trial. The second, which applies solely to offenses by Indians
which are committed within the limits of a State and the limits of
a reservation, subjects the offenders
Page 118 U. S. 378
to the laws of the United States passed for the government of
places under the exclusive jurisdiction of those laws, and to trial
by the courts of the United States. This is a still further
advance, as asserting this jurisdiction over the Indians within the
limits of the States of the Union.
Although the offense charged in this indictment was committed
within a State, and not within a territory, the considerations
which are necessary to a solution of the problem in regard to the
one must in a large degree affect the other. The constitution of
the United States is almost silent in regard to the relations of
the government which was established by it to the numerous tribes
of Indians within its borders. In declaring the basis on which
representation in the lower branch of the Congress and direct
taxation should be apportioned, it was fixed that it should be
according to numbers, excluding Indians not taxed, which, of
course, excluded nearly all of that race, but which meant that, if
there were such within a State as were taxed to support the
government, they should be counted for representation, and in the
computation for direct taxes levied by the United States. This
expression, "excluding Indians not taxed," is found in the
fourteenth amendment, where it deals with the same subject under
the new conditions produced by the emancipation of the slaves.
Neither of these shed much light on the power of Congress over the
Indians in their existence as tribes distinct from the ordinary
citizens of a State or territory.
The mention of Indians in the constitution which has received
most attention is that found in the clause which gives Congress
"power to regulate commerce with foreign nations, and among the
several States, and with the Indian tribes." This clause is relied
on in the argument in the present case, the proposition being that
the statute under consideration is a regulation of commerce with
the Indian tribes. But we think it would be a very strained
construction of this clause that a system of criminal laws for
Indians living peaceably in their reservations, which left out the
entire code of trade and intercourse laws justly enacted under that
provision, and established punishments for the common law crimes of
murder, manslaughter,
Page 118 U. S. 379
arson, burglary, larceny, and the like, without any reference to
their relation to any kind of commerce, was authorized by the grant
of power to regulate commerce with the Indian tribes. While we are
not able to see in either of these clauses of the Constitution and
its amendments any delegation of power to enact a code of criminal
law for the punishment of the worst class of crimes known to
civilized life when committed by Indians, there is a suggestion in
the manner in which the Indian tribes are introduced into that
clause which may have a bearing on the subject before us. The
commerce with foreign nations is distinctly stated as submitted to
the control of Congress. Were the Indian tribes foreign nations? If
so, they came within the first of the three classes of commerce
mentioned, and did not need to be repeated as Indian tribes. Were
they nations, in the minds of the framers of the Constitution? If
so, the natural phrase would have been "foreign nations and Indian
nations," or, in the terseness of language uniformly used by the
framers of the instrument, it would naturally have been "foreign
and Indian nations." And so, in the case of
Cherokee Nation v.
Georgia, brought in the Supreme Court of the United States,
under the declaration that the judicial power extends to suits
between a State and foreign states, and giving to the Supreme Court
original jurisdiction where a State is a party, it was conceded
that Georgia as a State came within the clause, but held that the
Cherokees were not a State or nation, within the meaning of the
Constitution, so as to be able to maintain the suit.
30 U. S. 5 Pet.
20.
But these Indians are within the geographical limits of the
United States. The soil and the people within these limits are
under the political control of the government of the United States,
or of the States of the Union. There exists within the broad domain
of sovereignty but these two. There may be cities, counties, and
other organized bodies, with limited legislative functions, but
they are all derived from, or exist in, subordination to one or the
other of these. The territorial governments owe all their powers to
the statutes of the United States conferring on them the powers
which they exercise, and which are liable to be withdrawn,
modified, or repealed at any time
Page 118 U. S. 380
by Congress. What authority the state governments may have to
enact criminal laws for the Indians will be presently considered.
But this power of Congress to organize territorial governments, and
make laws for their inhabitants, arises not so much from the clause
in the Constitution in regard to disposing of and making rules and
regulations concerning the territory and other property of the
United States as from the ownership of the country in which the
territories are, and the right of exclusive sovereignty which must
exist in the National Government, and can be found nowhere else.
Murphy v. Ramsey, 114 U. S. 15,
114 U. S.
44.
In the case of
American Ins. Co. v.
Canter, 1 Pet. 511,
26 U. S. 542,
in which the condition of the people of Florida, then under a
territorial government, was under consideration, Marshall, Chief
Justice, said:
"Perhaps the power of governing a territory belonging to the
United States which has not, by becoming a State, acquired the
means of self-government, may result necessarily from the fact that
it is not within the jurisdiction of any particular State, and is
within the power and jurisdiction of the United States. The right
to govern may be the inevitable consequence of the right to acquire
territory. Whichever may be the source whence the power is derived,
the possession of it is unquestionable."
In the case of
United States v.
Rogers, 4 How. 567,
45 U. S. 572,
where a white man pleaded in abatement to an indictment for murder,
committed in the country of the Cherokee Indians, that he had been
adopted by and become a member of the Cherokee tribe, Chief Justice
Taney said:
"The country in which the crime is charged to have been
committed is a part of the territory of the United States, and not
within the limits of any State. It is true it is occupied by the
Cherokee Indians, but it has been assigned to them, and they hold
with the assent and under the authority of the United States."
After referring to the policy of the European nations and the
United States in asserting dominion over all the country discovered
by them, and the justice of this course, he adds:
"But had it been otherwise, and were the right and propriety of
exercising this
Page 118 U. S. 381
power now open to question, yet it is a question for the
lawmaking and political departments of the Government, and not for
the judicial. It is our duty to expound and execute the law as we
find it, and we think it too firmly and clearly established to
admit of dispute that the Indian tribes, residing within the
territorial limits of the United States, are subject to their
authority, and when the country occupied by one of them is not
within the limits of one of these, Congress may by law punish every
offense committed there, no matter whether the offender be a white
man or an Indian."
The Indian reservation in the case before us is land bought by
the United States from Mexico by the treaty of Guadaloupe Hidalgo,
and the whole of California, with the allegiance of its
inhabitants, many of whom were Indians, was transferred by that
treaty to the United States. The relation of the Indian tribes
living within the borders of the United States, both before and
since the Revolution, to the people of the United States has always
been an anomalous one, and of a complex character. Following the
policy of the European governments in the discovery of America,
towards the Indians who were found here, the colonies before the
Revolution, and the States and the United States since, have
recognized in the Indians a possessory right to the soil over which
they roamed and hunted and established occasional villages. But
they asserted an ultimate title in the land itself, by which the
Indian tribes were forbidden to sell or transfer it to other
nations or peoples without the consent of this paramount authority.
When a tribe wished to dispose of its land, or any part of it, or
the State or the United States wished to purchase it, a treaty with
the tribe was the only mode in which this could be done. The United
States recognized no right in private persons or in other nations
to make such a purchase by treaty or otherwise. With the Indians
themselves, these relations are equally difficult to define. They
were, and always have been, regarded as having a semi-independent
position when they preserved their tribal relations; not as States,
not as nations, not as possessed of the full attributes of
sovereignty, but as a separate people, with
Page 118 U. S. 382
the power of regulating their internal and social relations, and
thus far not brought under the laws of the Union or of the State
within whose limits they resided.
Perhaps the best statement of their position is found in the two
opinions of this court by Chief Justice Marshall in the case of
Cherokee Nation v.
Georgia, 5 Pet. 1, and in the case of
Worcester v.
Georgia, 6 Pet. 515,
31 U. S. 536.
These opinions are exhaustive, and in the separate opinion of Mr.
Justice Baldwin in the former is a very valuable resume of the
treaties and statutes concerning the Indian tribes previous to and
during the confederation. In the first of the above cases, it was
held that these tribes were neither States nor nations, had only
some of the attributes of sovereignty, and could not be so far
recognized in that capacity as to sustain a suit in the Supreme
Court of the United States. In the second case it was said that
they were not subject to the jurisdiction asserted over them by the
State of Georgia, which, because they were within its limits, where
they had been for ages, had attempted to extend her laws and the
jurisdiction of her courts over them. In the opinions in these
cases they are spoken of as "wards of the nation;" "pupils;" as
local dependent communities. In this spirit, the United States has
conducted its relations to them from its organization to this time.
But, after an experience of a hundred years of the treaty-making
system of government, Congress has determined upon a new departure
-- to govern them by acts of Congress. This is seen in the act of
March 3, 1871, embodied in section 2079 of the Revised
Statutes:
"No Indian nation or tribe, within the territory of the United
States, shall be acknowledged or recognized as an independent
nation, tribe, or power, with whom the United States may contract
by treaty; but no obligation of any treaty lawfully made and
ratified with any such Indian nation or tribe prior to March 3,
1871, shall be hereby invalidated or impaired."
The case of
Crow Dog, 109 U. S. 556, in
which an agreement with the Sioux Indians, ratified by an act of
Congress, was supposed to extend over them the laws of the
United
Page 118 U. S. 383
States and the jurisdiction of its courts, covering murder and
other grave crimes, shows the purpose of Congress in this new
departure. The decision in that case admits that if the intention
of Congress had been to punish, by the United States courts, the
murder of one Indian by another, the law would have been valid. But
the Court could not see, in the agreement with the Indians
sanctioned by Congress, a purpose to repeal section 2146 of the
Revised Statutes, which expressly excludes from that jurisdiction
the case of a crime committed by one Indian against another in the
Indian country. The passage of the act now under consideration was
designed to remove that objection, and to go further by including
such crimes on reservations lying within a State. Is this latter
fact a fatal objection to the law? The statute itself contains no
express limitation upon the powers of a State, or the jurisdiction
of its courts. If there be any limitation in either of these, it
grows out of the implication arising from the fact that Congress
has defined a crime committed within the State, and made it
punishable in the courts of the United States. But Congress has
done this, and can do it, with regard to all offenses relating to
matters to which the federal authority extends. Does that authority
extend to this case?
It will be seen at once that the nature of the offense (murder)
is one which in most all cases of its commission is punishable by
the laws of the States, and within the jurisdiction of their
courts. The distinction is claimed to be that the offense under the
statute is committed by an Indian, that it is committed on a
reservation set apart within the State for residence of the tribe
of Indians by the United States, and the fair inference is that the
offending Indian shall belong to that or some other tribe. It does
not interfere with the process of the state courts within the
reservation, nor with the operation of state laws upon white people
found there. Its effect is confined to the acts of an Indian of
some tribe, of a criminal character, committed within the limits of
the reservation. It seems to us that this is within the competency
of Congress. These Indian tribes are the wards of the nation.
They
Page 118 U. S. 384
are communities dependent on the United States -- dependent
largely for their daily food; dependent for their political rights.
They owe no allegiance to the States, and receive from them no
protection. Because of the local ill feeling, the people of the
States where they are found are often their deadliest enemies. From
their very weakness and helplessness, so largely due to the course
of dealing of the federal government with them, and the treaties in
which it has been promised, there arises the duty of protection,
and with it the power. This has always been recognized by the
executive, and by Congress, and by this Court, whenever the
question has arisen.
In the case of
Worcester v. Georgia, above cited, it
was held that, though the Indians had by treaty sold their land
within that State, and agreed to remove away, which they had failed
to do, the State could not, while they remained on those lands,
extend its laws, criminal and civil, over the tribes; that the duty
and power to compel their removal was in the United States, and the
tribe was under their protection, and could not be subjected to the
laws of the State, and the process of its courts.
The same thing was decided in the case of
Fellows v.
Blacksmith & Others, 19 How. 366. In this case,
also, the Indians had sold their lands under supervision of the
States of Massachusetts and of New York, and had agreed to remove
within a given time. When the time came, a suit to recover some of
the land was brought in the Supreme Court of New York, which gave
judgment for the plaintiff. But this Court held, on writ of error,
that the State could not enforce this removal, but the duty and the
power to do so was in the United States.
See also the case
of
Kansas
Indians, 5 Wall. 737;
New York
Indians, 5 Wall. 761.
The power of the General Government over these remnants of a
race once powerful, now weak and diminished in numbers, is
necessary to their protection, as well as to the safety of those
among whom they dwell. It must exist in that Government, because it
never has existed anywhere else; because the theater of its
exercise is within the geographical limits of the United
Page 118 U. S. 385
States; because it has never been denied; and because it alone
can enforce its laws on all the tribes.
We answer the questions propounded to us: that the ninth
section of the act of March 23, 1855, is a valid law in both its
branches, and that the Circuit Court of the United States for the
district of California has jurisdiction of the offense charged in
the indictment in this case.