30 F. 918 (D.Kan. 1887), United States v. Soule

Citation:30 F. 918
Party Name:UNITED STATES v. SOULE and others.
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 918

30 F. 918 (D.Kan. 1887)

UNITED STATES

v.

SOULE and others.

United States Circuit Court, D. Kansas.

1887

W. Perry, U.S. Dist. Atty., for plaintiff.

Henry T. Sumner and D. W. C. Duncan, for defendants.

BREWER, J.

The defendants were indicted in the district court of the district of Kansas for murder. They filed a plea challenging the jurisdiction of that court. That plea has been certified to this court for decision. The question presented is whether the district court had jurisdiction of the place at which the offense is charged to have been committed. The place is described in the indictment as 'within that part of the Indian

Page 919

territory lying north of the Canadian river, and east of Texas and the one hundredth meridian, not set apart and occupied by the Cherokee, Creek, and Seminole Indian tribes, and at that part of the territory known as the 'Cherokee Outlet.' Prior to January 6, 1883, unquestionably the entire Indian territory was within the jurisdiction of the district court of the Western district of Arkansas. On that day an act was passed (22 St.,.S. 400) providing for one term of the United States district court for the district of Kansas to be held at Wichita, a place near the southern boundary of the state of Kansas. Section two of that act provides as follows:

'That all that part of the Indian territory lying north of the Canadian river, and east of Texas and the one hundredth meridian, not set apart and occupied by the Cherokee, Creek, and Seminole Indian tribes, shall, from and after the passage of this act, be annexed to and constitute a part of the United States judicial district of Kansas, and the United States district courts at Wichita and Fort Scott, in the district of Kansas, shall have exclusive original jurisdiction of all offenses committed within the limits of the territory hereby annexed to said district of Kansas against any of the laws of the United States now or that may hereafter be operative therein.'

Unquestionably by this section a portion of the Indian territory was placed within the jurisdiction of the district court of Kansas, and the question is whether the Cherokee outlet is within this portion. As significant of the intent of congress, the third section is important. It reads as follows:

'That all that part of the Indian territory not annexed to the district of Kansas by this act, and not set apart and occupied by the Cherokee, Creek, Choctaw, Chickasaw, and Seminole Indian tribes, shall, from and after the passage of this act, be annexed to and constitute a part of the United States judicial district known as the Northern district of Texas, and the United States district court at Graham, in said Northern district of Texas shall have exclusive original jurisdiction of all offenses committed within the limits of the territory hereby annexed to said Northern district of Texas, against any of the laws of the United States now or that may hereafter be operative therein.'

It will be seen from these two sections, taken in conjunction with the prior statutes vesting jurisdiction over the entire territory in the district court of the Western district of Arkansas, that the intent of congress was to apportion the territory between the three courts; and we should naturally expect, in the absence of cogent reasons for the contrary, that the entire portion of the territory...

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