70 F. 598 (D.Wyo.), In re Race Horse

Citation:70 F. 598
Party Name:In Re RACE HORSE.
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 598

70 F. 598 (D.Wyo.)

In Re RACE HORSE.

United States Circuit Court, D. Wyoming.

Page 599

Gibson Clark, U.S. Atty., for petitioner.

Benjamin F. Fowler, Atty. Gen., Willis Van Devanter, and John C. Ham, for respondent.

RINER, District Judge.

On the 7th day of October, 1895, the petitioner, Race Horse, filed in this court his petition and application for a writ of habeas corpus. He sets forth in his petition that he is a Bannack Indian, and a member of that certain tribe of Bannack Indians which entered into and concluded a treaty with the United States of America at Ft. Bridger, in the territory of Utah, on the 3d day of July, A.D. 1868, and that he resides upon what is known as the 'Fort Hall Indian Reservation,' situate in the eastern part of the state of Idaho. He further represents in his petition that he was born a member of said tribe of Indians, that he was a member thereof at the time of the making of said treaty, and has at all times and still does maintain tribal relations with said tribe of Bannack Indians. He further sets forth in his petition that he is unjustly and unlawfully, and in violation of the constitution of the United States, and in violation of article 4 of the treaty entered into between the Bannack Indians and the United States, restrained of his liberty and held in custody by one John H. Ward, the sheriff of Uinta county, in the state of Wyoming, at the town of Evanston, in said county, by virtue of a warrant of commitment issued out of and under the seal of the district court of the Third judicial district of the state of Wyoming, within and for the county of Uinta in said state. He further alleges and sets forth in his petition that Mr. John C. Ham, county and prosecuting attorney of Uinta county, on the 3d day of October, 1895, filed in said court an information charging that the petitioner did, on the 1st day of July. 1895, at the county of Uinta, in the state of Wyoming, seven elk, unlawfully, wantonly, and in excess of the number he could immediately use for food purposes, take, capture, destroy, and kill, contrary to the form of the statute of the state of Wyoming, and that thereafter a warrant was duly issued out of the clerk's office of the said district court, and under the seal thereof, for his arrest; that he was thereupon arrested, and brought before the clerk of the district court, and was held to bail in the sum of $500, for his appearance before the said district court on the first day of the next term thereof; that he failed to give the bond required, and was, in default thereof, committed to the custody of the sheriff of Uinta county, to be by him safely kept, until discharged by due process of law. Copies of the information and warrant are attached to the petition. The petitioner admits that he did pursue, hunt, and kill the seven elk mentioned in the information, and alleges that he killed the said seven elk at a point about 20 miles southeast of Mt. Hoback, in the county of Uinta and state of Wyoming, on or about the 1st day of July, 1895. He then alleges that the place where he killed the elk was about 60 miles distant from any ranch or settlement of any kind whatever, and was upon unoccupied

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lands of the United States; that there were no occupied or settled lands nearer than 60 miles to the point where said act of killing was done; that, at the time said elk were killed by him, there was wild game in abundance upon the lands just mentioned, and in the immediate vicinity of the point at which he killed the elk in question; that the lands over which he was at that time hunting constituted and were lands which the said tribe of Indians had for a great many years last past been in the habit of hunting over and upon; that along and upon the borders of said hunting districts, and of said lands over which the said Indians had been in the habit of hunting, peace between the whites and Indians had for many years subsisted, and was subsisting, and did subsist at the time the petitioner was hunting thereon, and at the time he killed the seven elk mentioned in the information or complaint. He admits that the seven elk were in excess of the number he could immediately use for food purposes, but he alleges that he killed these elk solely for the purpose of furnishing means of subsistence for himself and family, and for other members of the Bannack tribe of Indians, saving, curing, and preserving the meat of the animals so killed, so that it might be and constitute a food supply for the use of himself, his family, and others of said Bannack tribe of Indians, during the following winter. He then sets out in his petition article 4 of the treaty between the United States and the Bannack Indians, which is in the following words:

'Art. 4. The Indians herein named agree, when the agency house and other buildings shall be constructed on their reservations, named, they will make said reservations their permanent home, and they will make no permanent settlement elsewhere; but they shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts.'

He then alleges that the complaint and information, to answer which he is unlawfully and wrongfully held in custody, is based upon an act of the legislature of the state of Wyoming approved February 20, 1895, entitled 'An act for the preservation of game and fish,' being chapter 98 of the Session Laws of Wyoming of 1895. He then alleges that his detention, restraint, and imprisonment are illegal, for the reason that, under and by virtue of the treaty provision above quoted, he had the right, under the constitution and laws of the United States, to hunt and kill said seven elk upon the unoccupied lands of the United States, and that this right was a right guarantied to him by the laws and constitution of the United States; that the act of the legislature of the state of Wyoming, in so far as it in any manner whatsoever related to him, was and is wholly and absolutely void, being in derogation of, and contrary to, the provisions of the treaty, and especially to article 4, above quoted. He further asks that a writ of habeas corpus may issue out of this court, directed to the sheriff of Uinta county, Wyo., to the end that he may forthwith be brought before the court, to so submit to and receive what the law may direct.

Upon the filing of this petition the writ was duly issued out of this

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court, directed to the sheriff of Uinta county, Wyo., directing him to have the body of the petitioner before the court at Cheyenne, Wyo., on the 26th day of October, 1895, at 10 o'clock in the forenoon of that day. Upon application duly made, and at the request of both counsel for the petitioner and the sheriff, the hearing was, on the 26th day of October, continued until the 2d day of November, 1895, and the sheriff was given until that day to make his return to the writ. Upon the last-named day Mr. Ward, the sheriff, produced the body of the petitioner, as directed by the writ, and made return thereto that he held the petitioner in custody under and by virtue of a warrant of commitment under the hand and seal of the clerk of the district court of the county of Uinta, in the state of Wyoming; that the said warrant of commitment was duly and regularly issued upon a criminal information theretofore duly and regularly made, presented, and filed in the said district court of the county of Uinta, in the state of Wyoming, by the county and prosecuting attorney of said county, and that he did, prior to and at the time of the service of the writ of habeas corpus, hold and detain, and that he still holds and detains, the said petitioner, Race Horse, in his custody, under and in pursuance of the command of the said warrant of commitment, and not otherwise. He then alleges that the accusation and charge against the petitioner is still depending and not disposed of by the district court of that county, and that the cause of the detention of petitioner by him, as sheriff of Uinta county, is that he may have petitioner before the said district court at the next term thereof, on the first Monday in April, A.D. 1896, then and there to answer the charge and accusation made in the said criminal information filed by the county and prosecuting attorney. He then admits that the petitioner is a Bannack Indian, and a member of the Bannack tribe, which concluded a treaty with the United States at Ft. Bridger on the 3d day of July, 1868, and that the petitioner resides at Ft. Hall Indian reservation; that the petitioner was born a member of that tribe; that he was a member thereof at the time of making the said treaty; and that at all times mentioned in the petition or application the petitioner maintained tribal relations with said tribe of Bannack Indians. He further admits that the elk were killed by the petitioner at the place mentioned in the petition, and that they were killed on public lands of the United States, which had not been entered under the land laws of the United States, and which had not been settled upon. He then alleges, in substance, that the public lands of the United States, at the place and in the vicinity where the elk were killed, had been surveyed, subdivided and platted by the United States, and had been so subdivided and platted long before the time of the commission of the alleged offense by petitioner, and long before then, and ever since, had been opened to entry and settlement under the land laws of the United States. He further alleges that a considerable portion of the public lands in and near the vicinity of the place where the elk were killed had been, before the time of the commission of the offense, settled upon, and duly entered under the land laws of the United States, and were occupied and used by the persons making such entry as...

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