Ex parte Nowabbi

• Decision Date: 26 October 1936
• Docket Number: A-9055.
• Citation: 61 P.2d 1139,60 Okla.Crim. 111
• Parties: Ex parte NOWABBI.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

61 P.2d 1139

60 Okla.Crim. 111

Ex parte NOWABBI.

No. A-9055.

Court of Criminal Appeals of Oklahoma

October 26, 1936

Syllabus by the Court.

1. The provision of the Federal Constitution (article 4, § 3) for the admission of states to the Union on an equal footing with the original states does not preclude the imposition of conditions in the Enabling Act for the protection of the Indian wards of the United States and their property.

2. "Indian country," as the term is used in section 2145, U.S.Rev.Stat. (section 217, title 25 U.S.C.A.), which extended to that country certain general laws of the United States as to the punishment of crime, is a country to which the Indians retained the right of use and occupancy involving under certain restrictions freedom of action and of enjoyment in their capacity as a distinct people, and ceases to be such when their title is extinguished unless by virtue of some reservation expressed at the time and clearly appearing.

3. Section 2145, U.S.Rev.Stat. (section 217, title 25 U.S.C.A.) extends to the Indian country certain general laws of the United States as to the punishment of crime. And Act of March 3, 1885, § 9, as amended Cr.Code, § 328 (section 548, title 18 U.S.C.A.), makes certain enumerated crimes committed by an Indian against the person or property of another Indian, or other person within the boundaries of any state, and within the limits of any Indian reservation, subject to the same penalties as are all other persons committing any of the named crimes within the exclusive jurisdiction of the United States. Held, that the lands within that part of the state formerly the Indian Territory are not Indian country within the meaning of section 2145, U.S.Rev.Stat., and the state courts have jurisdiction to prosecute and sentence under the state laws one Indian for a crime committed against another on such lands.

4. The words "sole and exclusive" in section 2145 U.S.Rev.Stat., do not apply to the jurisdiction extended over the Indian country, but are only used in the description of the laws which are extended to it.

5. By Act of Congress Feb. 8, 1887, § 6, 24 Stat. 390 (25 U.S.C.A § 349 note) entitled, "An Act to provide for the allotment of lands in severalty to Indians," etc., it was provided that upon the completion of the allotments and the patenting of the lands to the allottees under that act every allottee should "have the benefit of and be subject to the laws, both civil and criminal of the state or territory," in which he resided. But, by Act of May 8, 1906, chapter 2348 (25 U.S.C.A. § 349), Congress amended this section to postpone to the expiration of the trust period the subjection of allottees under that act to state laws. The second proviso of the section, as amended, is: "That until the issuance of fee-simple patents all allottees to whom trust patents shall hereafter be issued shall be subject to the exclusive jurisdiction of the United States." Under the provisions of this act, Indians residing on a reservation set apart for them by the United States, in that part of the state that was formerly Oklahoma Territory, are wards of the general government, and as such the subject of federal authority and the power to legislate for them is exclusively in Congress. And land formerly a part of such reservations which is in possession under a restricted allotment of an Indian, who is not authorized to alienate it, is Indian country within the meaning of U.S.Rev.Stat. § 2145, extending the general laws of the United States to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States to the Indian country. Section 6 of the act, as amended, further provides in another and final proviso, "That the provisions of this Act shall not extend to any Indians in the Indian Territory." Held that: Under this concluding provision unless otherwise provided by treaty with the Five Civilized Nations or Tribes, or by the act admitting Oklahoma into the Union, the criminal laws of the state, except so far as restricted by the authority of Congress to regulate commerce "with the Indian tribes," extend to all crimes committed on lands within that part of the state that was formerly the Indian Territory.

6. The admission of Oklahoma into the Union under Act of June 16, 1906, 34 Stat. 267, on an equal footing with the original states, without any express reservation by Congress of governmental jurisdiction to prosecute and punish the crimes named in Act of March 3, 1885, and the concluding provision of act of Congress of May 8, 1906, "That the provisions of this act shall not extend to any Indians in the Indian Territory," held that, the courts of the state of Oklahoma, have jurisdiction of the crimes mentioned in the ninth section of act of Congress of March 3, 1885, namely, murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny, committed by an Indian or other person upon a restricted allotment within the limits of what was formerly the Choctaw Nation in the Indian Territory.

Original proceeding on the application of David Nowabbi for a writ of habeas corpus to be directed to the Warden of the State Penitentiary.

Writ denied.

The question presented is an important one to the state of Oklahoma, in that it involves the validity of the trial, conviction, and sentence of several hundred prisoners convicted of the crimes of "murder, manslaughter, rape, assault with intent to kill, assault with a dangerous weapon, arson, burglary and larceny," in the state courts, particularly where said crimes were committed in that part of the state that was formerly the Indian Territory.

At the time of the approval of the Act of May 2, 1890 (Organic Act, 26 Stat. 81), organizing the Territory of Oklahoma, more than three-fifths of its area consisted of Indian reservations, occupied by semicivilized tribes, maintaining tribal relations.

They were the Cheyenne and Arapaho, Kiowa, Comanche and Apache, Osage, Kansas or Kaw, Pottawatomie, Kickapoo, Shawnee, Iowa, Sac and Fox, Pawnee, Ponca, Otoe and Missouri, Tonkawa and Wichita. Allotments to members of the foregoing Indian tribes in Oklahoma Territory, except that of the Osage had been substantially completed at the time of the approval of the Act of June 16, 1906 (Enabling Act, 34 Stat. 267, c. 3335).

The Quapaw, Peoria, Miami, Seneca, and Wyndotte Indians on reservations in the Indian Territory had also been allotted before statehood under the General Allotment Act, 24 Stat. 388, and the Act of May 27, 1902, 32 Stat. 245.

It may be well to here notice some of the legislation of Congress in connection with the final disposition of the affairs of the Five Civilized Tribes or Nations in the Indian Territory.

By treaty between the United States and the Choctaw Nation held at Dancing Rabbit creek, September 15, 1830 (7 Stat. 333) followed by the proclamation of the President of the United States of February 24, 1831, the Choctaw Nation of Indians ceded to the United States the entire country they owned and possessed east of the Mississippi River:

Article 2 of this treaty reads: "The United States under a grant specially to be made by the President of the U.S. shall cause to be conveyed to the Choctaw Nation a tract of country west of the Mississippi River, in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it, beginning near Fort Smith where the Arkansas boundary crosses the Arkansas River, running thence to the source of the Canadian fork; if in the limits of the United States, or to those limits; thence due south to Red River, and down Red River to the West boundary of the Territory of Arkansas; thence north along that line to the beginning. The boundary of the same to be agreeably to the Treaty made and concluded at Washington City in the year 1825."

By subsequent treaties and agreements the Choctaw and Chickasaw Nations were consolidated.

The Act of June 28, 1898 (30 Stat. 495, c. 517), authorized the allotment of the land to the Choctaws and Chickasaws in fair and equal proportions, and provided that this should be done under the direction of the Secretary of the Interior; also, as soon as practicable after the completion of said allotment, the principal chief of the Choctaw Nation and the Governor of the Chickasaw Nation should jointly execute under their hands and seals of their respective nations, and deliver to their allottees, patents conveying to them all the right, title, and interest of the Indians in and to the lands allotted.

The Choctaws and Chickasaws received their allotments in severalty pursuant to the original Choctaw-Chickasaw Allotment Act, section 29, Act June 28, 1898, chapter 517, 30 Stat. 495, 505 (25 U.S.C.A. § 117 note) and Choctaw-Chickasaw Supple-mental Agreement, Act July 1, 1902, c. 1362, 32 Stat. 641.

The Cherokees received their allotments in severalty pursuant to Act July 1, 1902, c. 1375, 32 Stat. 716.

The Creeks received their allotments in severalty pursuant to act approved March 1, 1901, chapter 676, 31 Stat. 861 and amendment thereof supplemental Creek agreement approved June 30, 1902, c. 1323, 32 Stat. 500.

The Seminoles received their allotments in severalty pursuant to an act approved July 1, 1898, 30 Stat. 567, c. 542, and amendment thereof, Supplemental Agreement October 7, 1899, approved June 2, 1900, 31 Stat. 250, c. 610.

Act of June 7, 1897, c. 3, 30 Stat. 62, 83, provided: "That on and after January first, eighteen hundred and ninety-eight the United States courts in said Territory shall have original and exclusive jurisdiction and authority to try and determine all civil causes in law and equity thereafter instituted and all criminal causes for the...