State v. Newell

Citation24 A. 943,84 Me. 465
PartiesSTATE v. NEWELL.
Decision Date19 April 1892
CourtSupreme Judicial Court of Maine (US)

(Official.)

Report from supreme judicial court, Washington county.

Peter Newell, a member of the Passamaquoddy tribe of Indians, was indicted for unlawfully killing two deer, and on arraignment pleaded that he was guilty, unless the court should find that he had a lawful right to do the acts charged by reason of certain treaties. On report. Judgment for state.

Charles E. Littlefield, Atty. Gen., and F. 1. Campbell, Co. Atty., for the State.

George M. Hanson, for defendant.

EMERY, J. The defendant admittedly killed two deer in this state, contrary to the form, letter, and spirit of the statute for the preservation of deer and other game animals. The only matter of fact he interposes in defense is that he is an Indian, one of the Passamaquoddy tribe, a tribe living on and near Lewey's island, in the eastern part of the state.

Whatever the status of the Indian tribes in the west may be, all the Indians, of whatever tribe, remaining in Massachusetts and Maine, have always been regarded by those states and by the United States as bound by the laws of the state in which they live. Danzell v. Webquish, 108 Mass. 133; Murch v. Tomer, 21 Me. 535 Their position is like that of those Cherokees who remained in North Carolina. It was said of them by the United States supreme court, in Cherokee Trust Funds, 117 U. S. 288, 6 Sup. Ct. Rep. 718, that they were inhabitants of North Carolina and subject to its laws.

Indeed, the defendant concedes that he is bound by all the laws of the state, except those restricting the freedom of hunting and fishing. As to these restrictive statutes, he contends they must give way as to him before certain Indian treaties, named in the report of the case He claims that these treaties are made, by the fifth section of the act of separation, (incorporated into our constitution,) a constitutional restraint upon the power of the legislature to limit the freedom of the Passamaquoddy Indians in hunting and fishing.

The defendant's counsel, with much zeal and industry, has furnished us with many and interesting papers concerning the various treaties with the Indians of Maine and the east. The treaty of 1713 was "the submission and agreement of the eastern Indians" to and with Gov. Dudley at Portsmouth. It purported to be executed by delegates from "all the Indian plantations on the rivers of St. John, Penobscot, Kenybeck, Amascogon, Snco, and Merrimack." The conference of 1717 was simply a confirmation of the same treaty. The treaty of 1725 was after the French and Indian wars of that period, and was between the governors of Nova Scotia, New Hampshire, and Massachusetts Bay, on the one hand, and "the several tribes, viz., the Penobscot, Norridgewock, St. Johns, Cape Sable, and other tribes, inhabiting within New England and Nova Scotia, "on the other hand. This treaty was further confirmed in 1727. In 1749, after another Indian war, commissioners from Gov. Phipps made a treaty of peace with "the Indians of the tribes of Penobscot, Norridgewock, St. Francois, and other Indians inhabiting within his majesty's territory of New England." The conference in 1752 was only a confirmation of the treaty of 1749. What is called in the report" the treaty of 1780 "appears to be (so far as any papers or citations are furnished us) simply a letter of thanks and kind assurances from Gov. Bowdoin to the "different tribes of Indians under Col. John Allan." It contains no mention of hunting and fishing.

We do not find that the federal...

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10 cases
  • Penobscot Nation v. Mills
    • United States
    • U.S. Court of Appeals — First Circuit
    • June 30, 2017
    ...were simply not recognized by the state or the federal government in an official or ‘political sense.’ ") (quoting State v. Newell , 84 Me. 465, 24 A. 943, 944 (1892) ; United States v. Levesque , 681 F.2d 75 (1st Cir. 1982) (Criminal cases committed in Indian country still outstanding afte......
  • State v. Dana
    • United States
    • Maine Supreme Court
    • July 3, 1979
    ...(1st Cir. 1979). In deciding Passamaquoddy v. Morton, the Court of Appeals for the First Circuit referred specifically to State v. Newell, 84 Me. 465, 24 A. 943 (1892), and to the reasoning underlying the dictum in that case (referred to by the presiding Justice here) denying the existence ......
  • Joint Tribal Council of the Passamaquoddy Tribe v. Morton, s. 75--1171
    • United States
    • U.S. Court of Appeals — First Circuit
    • December 23, 1975
    ...above, there is no evidence of the latter. Intervenor also points to a decision by the Supreme Judicial Court of Maine, State v. Newell, 84 Me. 465, 24 A. 943 (1892), which found that the Passamaquoddy Tribe has never been recognized by the federal government, and argues that the federal go......
  • Maine v. Johnson, 04-1363.
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 8, 2007
    ...Maine and its courts considered the tribes to be "as completely subject to the state as any other inhabitants can be." State v. Newell, 84 Me. 465, 24 A. 943, 944 (1892). Similarly, the federal government had "repeatedly denied that it had jurisdiction over or responsibility for the [Maine ......
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