Draper v. United States, 496

• Decision Date: 30 November 1896
• Docket Number: No. 496,496
• Parties: DRAPER v. UNITED STATES
• Court: U.S. Supreme Court

164 U.S. 240

17 S.Ct. 107

41 L.Ed. 419

DRAPER

v UNITED STATES.

No. 496.

November 30, 1896.

J. W. Strevell, for plaintiff in error.

Asst. Atty. Gen. Dickinson, for the United States.

Mr. Justice WHITE delivered the opinion of the court.

The plaintiff in error was indicted, tried, convicted, and sentenced to death for the crime of murder, alleged to have been committed on the Crow Indian reservation. He moved to arrest the judgment on the ground that the court had no jurisdiction to try an offense committed on the Crow reservation by other than an Indian, as such crime was exclusively cognizable by the proper court of the state of Montana. The refusal to arrest the judgment on account of this asserted want of jurisdiction is one of the errors pressed upon our attention, and our opinion on the subject will render it unnecessary to consider the other assignments.

The indictment does not state, nor does the record affirmatively show, that the accused and the deceased were negroes, but that fact is conceded both by counsel for the prisoner and the government; and upon such concession the case, as to jurisdiction, was determined below, and is here presented for consideration. Irrespective, however, of the admission of counsel as to the race to which the accused and the deceased belonged, the question of jurisdiction arises on the record, since, if, as matter of law, the reservation was not within the sole and exclusive jurisdiction of the United States, as the indictment fails to charge that the crime was committed by an Indian, it necessarily follows that, if the court had jurisdiction only to punish such a crime, the want of jurisdiction appears upon the face of the record. It is clear that if the accused was an Indian, the court below had jurisdiction under the act of March 3, 1885, which, among other things, authorizes the punishment of any Indian committing the offense of murder within the boundaries of any state of the United States, and within the limits of any Indian reservation, according to the laws and before the tribunals of the United States. U. S. v. Kagama, 118 U. S. 375, 6 Sup. Ct. 1109. The assertion of jurisdiction in the courts of the United States over the crime of mur- der perpetrated by one not an Indian against one not an Indian is based on the fact that the offense was committed on an Indian reservation. The contention as to want of jurisdiction rests upon the proposition that, the Indian reservation being within the state, the courts of the state had alone cognizance of crimes therein done by other than Indians. To determine these conflicting contentions requires a brief examination of the legislation organizing the territory of Montana, and which provided for the admission of that state into the Union.

The territory of Montana was organized in 1864. 13 Stat. 85. Subsequently, in 1868, the Crow Indian reservation was created (15 Stat. 649), the land of which it was composed being wholly situated within the geographical boundaries of the territory of Montana. The treaty creating this reservation contained no stipulation restricting the power of the United States to include the land embraced within the reservation in any state or territory then existing, or which might thereafter be created. The law to enable Montana and other states to be admitted into the Union was passed in 1889. 25 Stat. 676. This act embraced the usual provisions for a convention to frame a constitution, for the adoption of an ordinance directed to contain certain specified agreements, and provided that, upon the compliance with the ordained requirements, and the proclamation of the president so announcing, the state should be admitted on an equal footing with the original states. The question then is, has the state of Montana jurisdiction over offenses committed within its geographical boundaries by persons not Indians, or against Indians, or did the enabling act deprive the courts of the state of such jurisdiction of all offenses committed on the Crow Indian reservation, thereby divesting the state, protanto, of equal authority any jurisdiction over its citizens usually enjoyed by the other states of the Union?

In U. S. v. McBratney, 104 U. S. 622, this court held that where a state was admitted into the Union, and the enabling act contained no exclusion of jurisdiction as to crimes committed on an Indian reservation by others than Indians, or against Indians, the state courts were vested with jurisdiction to try and punish such crimes. The court there said:

'The act of March 3, 1875 [the enabling act, which provided for the admission of the state of Colorado] necessarily repeals the provisions of any prior statute, or of any existing treaty, which are clearly inconsistent therewith. The Cherokee Tobacco, 11 Wall. 616. Whenever, upon the admission of a state into the Union, congress has intended to except out of it an Indian reservation, or the sole and exclusive jurisdiction over that reservation, it has done so by express words. The Kansas Indians, 5 Wall. 737; U. S. v. Ward, supra [1 Woolw. 17, Fed. Cas. No. 16,639]. The state of Colorado, by its admission into the Union by congress upon an equal footing with the original states in all respects whatever, without any such exception as has been made in the treaty with the Ute Indians and in the act establishing a territorial government, has acquired criminal jurisdiction over its own citizens and other white persons throughout the whole of the territory within its limits, including the Ute reservation, and that reservation is no longer within the sole and exclusive jurisdiction of the United States. The courts of the United States have, therefore, no jurisdiction to punish crimes within that reservation, unless so far as may be necessary to carry out such provisions of the treaty with the Ute Indians as remain in force. But that treaty contains no stipulation for the punishment of offenses committed by white men against white men.'

U. S. v. McBratney is therefore decisive of the question now before us, unless the enabling act of the state of Montana contained provisions taking...