Ex parte Pero, 6471.

• Decision Date: 26 September 1938
• Docket Number: No. 6471.,6471.
• Citation: 99 F.2d 28
• Parties: Ex parte PERO et al. LEE, Warden, v. PERO et al.
• Court: U.S. Court of Appeals — Seventh Circuit

99 F.2d 28 (1938)

Ex parte PERO et al.

LEE, Warden, v. PERO et al.

No. 6471.

Circuit Court of Appeals, Seventh Circuit.

September 26, 1938.

Orland S. Loomis, Atty Gen., and Joseph E. Messerschmidt, Asst. Atty. Gen., for appellant.

W. J. Kershaw, of Milwaukee, Wis., and Thomas L. St. Germain, of Lac Du Flambeau, Wis., for appellees.

Before SPARKS, MAJOR, and TREANOR, Circuit Judges.

TREANOR, Circuit Judge.

This is an appeal from a judgment of the District Court granting a writ of habeas corpus. The petitioners were convicted in a state court of Wisconsin of the crime of murder and were sentenced to life imprisonment in the Wisconsin State Prison. The person against whom the alleged crime was committed was a licensed trader on what is known as the Bad River Indian Reservation, the alleged crime having been committed within the confines of that reservation. The reservation had been set aside under the terms of a treaty with the Federal Government as a reservation for the Lake Superior Chippewa Indians and particularly "for the La Pointe band, and such other Indians as may see fit to settle with them."¹

It is the contention of the petitioners, appellees, that jurisdiction to try petitioners for the commission of the alleged crime was exclusively with the proper federal court; that the trial in the state court and the judgment rendered therein were a nullity and, consequently, that the petitioners were being held in prison unlawfully by the respondent-appellant, Warden of the Wisconsin State Prison. The foregoing propositions rest upon the assumption that petitioners are Indian wards of the United States Government and that by force of the laws of the United States the alleged crime was cognizable only in a district court of the United States, and that the petitioners are subject to the exclusive jurisdiction of the United States.

Congress has enacted that "All Indians committing against the person or property of another Indian or other person any of the following crimes, namely, murder * * * on and within any Indian reservation under the jurisdiction of the United States Government, * * * shall be subject to the same laws, tried in the same courts, and in the same manner, and be subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States."²

The trial judge considered the jurisdictional investigation to be limited to the narrow question of what jurisdictional test was to be made under the foregoing act; and in his memorandum opinion aptly states the question thus: "Who is an Indian within the meaning of that Act?"

The respondent, appellant here, urges that neither of the petitioners is an Indian within the meaning of Section 548, supra, and that both, therefore, were subject to the criminal laws of the state of Wisconsin, even though the crime was committed by them on an Indian reservation. As to petitioner Pero the respondent urges that by force of congressional enactment³ Pero had been made subject to the criminal laws of Wisconsin and was no longer under federal guardianship. Pero was a full-blood Chippewa Indian and respondent assumes that prior to the commission of the alleged crime Pero had been allotted lands under a "trust patent."⁴ This is a written instrument or certificate, issued to an allottee, which declares that the United States will hold the allotted land for a designated period, usually 25 years, in trust for the sole use and benefit of the allottee, or, in case of his death, for the use of his heirs; and the certificate further declares that at the expiration of the trust period the United States will convey the land to the allottee, or to his heirs, in fee, discharged of the trust and free of all charge or incumbrance. And it is the position of respondent that the issuance of a certificate of competency not only freed Pero of restrictions on his power to alienate the allotted land, but also freed him from the guardianship of the United States.

As to petitioner Moore, respondent contends that he was not an "Indian" for the purposes of federal jurisdiction because he had not been enrolled with any Indian tribe or on any reservation. Although Moore was not enrolled, he resided on the reservation and maintained tribal relations with the Indians thereon. His mother was a full-blooded Indian of the St. Croix Band of Lake Superior Chippewas. Moore's father was a half-blood whose mother was a full-blood Indian. Moore's father and mother and their relatives resided on the reservation and were known to the other Indians as Chippewa Indians. Members of bands other than the La Pointe Band of Lake Superior Chippewas resided on the reservation, and the reservation was by treaty set aside for the La Pointe Band and other Indians who might see fit to settle with them. The District Court found Moore to be an Indian and to be a member of the "Lost Tribe of Lake Superior Chippewas."

The petitioners were convicted in 1927; and at that time the law, as announced by the Wisconsin Supreme Court, was that the state courts had jurisdiction of crimes committed by Indians on a reservation.⁵ Thereafter in 1931 in the case of State of Wisconsin v. Rufus,⁶ the Wisconsin Supreme Court overruled its prior decision and held that such crimes were exclusively within the federal jurisdiction. The effect of this holding is that by the law of Wisconsin the state court was without power to try the petitioners for the alleged offense if they were Indians within the meaning of Section 548, supra.

The federal statute which gives federal courts exclusive jurisdiction over the crime in question when committed by an Indian on an Indian reservation does not define "Indian" for the purposes of the act. And we have not been cited to any section of a federal act, and we have been unable to find any, which purports to give a definition of the term "Indian" for purposes of jurisdiction in criminal causes.

In the case of United States v. Rogers⁷ it was held that a white man who at a mature age had been adopted into an Indian tribe does not thereby become an Indian within the meaning of an exception in the statute which provides that a named section "shall not extend to crimes committed by one Indian against the person or property of another Indian." The court was of the opinion that the exception was confined to those who by the usages and customs of the Indians are regarded as belonging to their race. In United States v. Higgins,⁸ it was held that one born of a white father and an Indian mother, and who was a recognized member of the tribe of Indians in which his mother belonged, was not subject to taxation under the laws of the state in which he resided. In the course of its opinion the court referred to various treaties and statutes in which "the executive and political departments of the government have recognized persons having at least one-half Indian blood in their veins, whose fathers were white men, which half-bloods lived and resided with the tribes to which their mothers belonged, as Indians." And it was further stated in the opinion: "It is well known to those who have lived upon the frontier in America that, as a rule, half-breeds or mixed-blood Indians have resided with the tribes to which their mothers belonged; that they have, as a rule, never found a welcome home with their white relatives, but with their Indian kindred. It is but just, then, that they should be classed as Indians, and have all of the rights of the Indian."

In Vezina v. United States⁹ the daughter of a half to three-fourths Chippewa woman and a white man was held to be by blood a member of the Fond du Lac Band of the Chippewas of Lake Superior, the court thereby overruling the action of the Department of Indian Affairs in refusing enrollment and allotment to the daughter. And in Sully, et al. v. United States,¹⁰ where one-eighth bloods were involved the court stated that the persons were of sufficient Indian blood to substantially handicap them in the struggle for existence, and held that they were Indians and were entitled to be enrolled as such.¹¹

In Doe ex dem. Lafontaine v. Avalina,¹² it was necessary for the court to construe a statute which forbade devises of land by Indians to persons other than Indians, except by consent of the state. The particular question was whether a three-eighths blood "Indian" was an Indian within the meaning of the statute. The person involved had been treated as an Indian by both whites and Indians, and spoke the language of the Indians; and her habits and mode of living were those of the Indians about her. The court discussed the tests of "preponderance of blood" and of "the habits of the person"; and suggested that the purpose of the act was to protect Indians from the fraud of their neighbors and that the act should be construed for their benefit. The court held that the person was an Indian for the purposes of the statute. The Indiana court adopted what may be said to be the test of a substantial amount of Indian blood plus an actual racial status as an Indian. In the instant case petitioner Moore was an Indian under the three tests: (1) preponderance of blood, (2) habits of the person, and (3) substantial amount of Indian blood plus a racial status in fact as an Indian.

Many congressional acts relating to Indians have recognized both full-bloods and mixed-bloods as Indians for purposes of the acts. Of special significance for the present question is the treaty relating to the Chippewas of Lake Superior¹³ (of which Moore is a member if he is an Indian), in which the mixed-bloods were expressly mentioned, and it was recognized therein that a mixed-blood could be a member of the Chippewas. The treaty contains the following, art. 2, subd. 7: "Each * * * person over twenty-one years of age at the present time of the mixed bloods, belonging to the Chippewas of Lake Superior * * *."¹⁴

We are convinced that the overwhelming...