Bailey v. United States, 6331.

• Decision Date: 24 February 1931
• Docket Number: No. 6331.,6331.
• Citation: 47 F.2d 702
• Parties: BAILEY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

47 F.2d 702 (1931)

BAILEY et al. v. UNITED STATES.

No. 6331.

Circuit Court of Appeals, Ninth Circuit.

February 24, 1931.

Thos. J. Elliott and Herbert F. Krucker, both of Tucson, Ariz., for appellants.

John C. Gung'l, U. S. Atty., and B. G. Thompson and Norman S. Hull, Asst. U. S. Attys., all of Tucson, Ariz.

Before RUDKIN and WILBUR, Circuit Judges.

WILBUR, Circuit Judge.

The appellants were convicted upon a charge of smuggling thirty-two head of cattle from Mexico into the United States in violation of 19 USCA § 497. The appellants are Indians belonging to the Papago Tribe, living upon the Indian reservation reserved for that tribe in Southern Arizona, bounded on the south by the line between the United States and Mexico. The cattle were purchased in Mexico and driven across the international boundary line into the Indian reservation where they were at the time of their seizure by the customs officials of the United States. It is contended by the appellants that the appellants, being Indians residing on an Indian reservation, are not subject to the general laws of the United States with relation to smuggling, and consequently were improperly convicted. In support of this contention they cite numerous decisions by the federal courts in which the historical relation of Indian tribes to the federal and state governments has been dealt with. For instance, it is stated in United States v. Rickert, 188 U. S. 432, 23 S. Ct. 478, 47 L. Ed. 532, that "general acts of Congress do not apply to Indians unless so worded that they clearly manifest an intention to include them in their operation." See, also, to the same effect, McCandless v. United States ex rel. Diabo (C. C. A.) 25 F.(2d) 71. In view of our conclusion we think it will be unnecessary to discuss at length the rather involved relation of Indians and Indian tribes to the United States involving, as such a discussion must, treaties, legislation, and litigation throughout the entire history of the nation. Upon that subject we cite without further comment cases relied upon by the appellants which we have carefully examined. U. S. v. Quiver, 241 U. S. 602, 36 S. Ct. 699, 60 L. Ed. 1196; Elk v. Wilkins, 112 U. S. 94, 5 S. Ct. 41, 28 L. Ed. 643; Colonial Trust Co. v. Lewellyn (C. C. A.) 17 F.(2d) 36; McCandless v. U. S. (C. C. A.) 25 F.(2d) 71, supra; U. S. ex rel. Lynn v. Hamilton (D. C.) 233 F. 685; U. S. v. Holliday, 3 Wall. 407, 18 L. Ed. 182; U. S. v. Miller (D. C.) 105 F. 944; In re Blackbird (D. C.) 109 F. 139; U. S. v. King (D. C.) 81 F. 625; U. S. v. Cardish et al. (D. C.) 143 F. 640, 641; Ex parte Hart (D. C.) 157 F. 130, 134; Ex parte Crow Dog, 109 U. S. 556, 3 S. Ct. 396, 27 L. Ed. 1030; In re Wilson, 140 U. S. 575, 579, 11 S. Ct. 870, 35 L. Ed. 513; U. S. v. Lewis (D. C.) 253 F. 469.

A general statement of the relation of the federal and state governments with the Indians is contained in an excellent statement by the Attorney General of the state of New York in United States v. Hamilton (D. C.) 233 F. 685, 688. The historical relationship of the Indians to the government of the United States is dealt with exhaustively in United States v. Quiver, 241 U. S. 602, 603, 36 S. Ct. 699, 60 L. Ed. 1196; also in Elk v. Wilkins, 112 U. S. 94, 99-102, 5 S. Ct. 41, 28 L. Ed. 643. Suffice it to say that the general effect of these decisions is that Congress has the exclusive jurisdiction and authority to determine the status of Indians residing upon an Indian reservation and to define the crimes which may be committed therein and determine the punishment therefor. Pursuant to this power and authority Congress, as early as 1834 (4 Stat. 733, § 25), enacted a law which was subsequently incorporated in Revised Statutes, § 2145, as now found in 25 USCA § 217, as follows: "Except as to crimes the punishment of which is expressly provided for in this title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country."

The next section (25 USCA § 218), originally found in the statute of March 27, 1854, 10 Stat. 270, § 3, amended Feb. 18, 1875, § 1, 18 Stat. 318, Rev. St. § 2146, provides as follows: "The preceding section shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe,...