Ex parte Wilson

Citation35 L.Ed. 513,140 U.S. 575,11 S.Ct. 870
PartiesEx parte WILSON
Decision Date25 May 1891
CourtU.S. Supreme Court

J. Altheus Johnson, for petitioner.

Sol. Gen. Taft, for respondent.

BREWER, J.

On June 12, 1890, the petitioner was by the district court of the second judicial district of the territory of Arizona sentenced to be hung. He has sued out this habeas corpus to test the validity of such sentence. He does not come here by writ of error to review the proceedings, so that errors therein may be corrected, but attacks them in this way collaterally, as void. His attack is rested on two propositions. The proceedings had were in a territorial court, sitting as a court of the United Staes. The first claim is that the court did not have jurisdiction of the offense charged. The indictment charges the crime of murder committed upon one William Fleming, within the White Mountain Indian Reservation, in the second judicial district of the territory of Arizona. The petition alleges that the petitioner is a citizen of the United States of African descent; that William Fleming, the person killed, was also a negro; that the second judicial district of Arizona is composed of four counties, one of them being the county of Gila; and that the White Mountain Indian Reservation is within said county of Gila. The reservation, therefore, is within the territorial limits of the second judicial district, but the contention is that the district court of that district, sitting as a United States court, did not have jurisdiction, but that it was vested alone in the district court sitting as a territorial court; and that the indictment should have run in the name of the people of the territory, instead of in the name of the United States of America. The second contention is that the grand jury which indicted him was not a legally constituted tribunal, in that it was composed of only 15 persons. In this respect it is admitted that by the laws of the territory of Arizona, in force until March 22, 1889, grand juries were to be composed of not less than 13 nor more than 15 members, (Rev. St. Ariz. p. 384, § 2164,) but it is claimed that on that day a law came into force by which the number of members of a grand jury was increased, and required to be not less than 17 nor more than 23. Upon these two propositions the petitioner denies the validity of the sentence against him, and asks that he be discharged from custody.

With respect to the first question, it may be observed that the White Mountain Indian Reservation was a legally constituted Indian reservation. True, when the territory of Arizona was organized, on February 24, 1863, (12 St. 664,) there was no such reservation; and it was created in the first instance by order of the president in 1871. Whatever doubts there might have been, if any, as to the validity of such executive order, are put at rest by the act of congress of February 8, 1887, (24 St. 388,) the first clause of which is 'that in all cases where any tribe or band of Indians has been or shall hereafter be, located upon any reservation created for their use, either by treaty stipulations or by virtue of an act of congress or executive order setting apart the same for their use, the president of the United States be, and he hereby is, authorized, whenever in his opinion any reservation, or any part thereof, of such Indians is advantageous for agricultural and grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon, in quantities as follows.' The necessary effect of this legislative recognition was to confirm the executive order, and establish beyond challenge the Indian title to this reservation. Indeed, the fact that this is an Indian reservation is not contested by the petitioner, but rather assumed by him in his argument. His proposition is that 'congress, by act approved March 3, 1885, (23 St. 385,) conferred upon the territory and her courts full jurisdiction of the offense of murder when committed on an Indian reservation by an Indian. Ex Parte Gon-sha-yee, 130 U. S. 343, 9 Sup. Ct. Rep. 542. This offense had heretofore, when committed in such place by others than an Indian, been cognizable by the courts of the United States under section 2145, Rev. St. The petitioner believes that the United States, by yielding up a part of her jurisdiction over the offense of murder when committed on an Indian reservation, lost all,—that is, that her jurisdiction of the offense in the particular place must be 'sole and exclusive,' or will not exist at all; that it cannot be that there shall be one law and one moe o f trial for a murder in a particular place if committed by an Indian, and another law and mode of trial for the identical offense in the same place committed by a white man or a negro.' We are unable to yield our assent to this argument. The question is one of statutory construction. The jurisdiction of the United States over these reservations, and the power of congress to provide for the punishment of all offenses committed therein, by whomsoever committed, are not open questions. U. S. v. Kagama, 118 U. S. 375, 6 Sup. Ct. Rep. 1109. And this power being a general one, congress may provide for the punishment of one class of offenses in one court, and another class in a different court. There is no necessity for, and no constitutional provision compelling, full and exclusive jurisdiction in one tribunal, and the policy of congress for a long time has been to give only a limited jurisdiction to the United States courts. Section 2145 extends to the Indian country 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 as to crimes the punishment of which is otherwise expressly provided for. This Indian reservation is a part of the Indian country within the meaning of that section. Bates v. Clark, 95 U. S. 204; Ex parte Crow Dog, 109 U. S. 556, 3 Sup. Ct. Rep. 396. But this extension of the criminal laws of the United States over the Indian country is limited by the section immediately succeeding, (section 2146,) 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, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.' So that before the act of 1885 the jurisdiction of the United States courts was not sole and exclusive over all offenses committed within the limits of an Indian reservation. The words 'sole and exclusive,' in section 2145 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. The effect of the act of 1885 was not to transfer to territorial courts a part of the sole and exclusive jurisdiction of United States courts, but only a part of the limited jurisdiction then exercised by such courts, together with jurisdiction over offenses not theretofore vested therein. The argument of the petitioner therefore fails. There has been no transfer of part of a sole and exclusive jurisdiction, carrying by implication, even in the absence of express language, a transfer of all jurisdiction, but only a transfer of part of an already limited jurisdiction, and neither by language nor implication transferring that theretofore vested and not in terms trans- ferred. We may here, in passing, notice that the distinction between district courts when sitting as courts of the territory, and when sitting as courts of the United States was fully developed and explained in the case of Ex parte Gon-sha-yee supra; that by section 629, Rev. St., the circuit courts of the United States are given jurisdiction of crimes and offenses cognizable under the authority of the United States; and that by the act organizing the territory of New Mexico, of September 9, 1850, (9 St. 446,) and the subsequent act of February 24, 1863, (12 St. 664,) organizing the territory of Arizona, the district courts of the latter territory were given the same jurisdiction in all cases arising under the constitution and laws of the United States as is vested in the circuit and district courts of the United States. It follows that as the circuit courts of the United States have jurisdiction over the crime of murder committed within any fort, arsenal, or other place within the exclusive jurisdiction of the United States, so prior to 1885 the district courts of a territory had jurisdiction over the crime of murder committed by any person other than an Indian upon an Indian reservation within its territorial limits, and that such jurisdiction has not been taken away by the legislation of that year. The first contention of petitioner, therefore, cannot be sustained.

The second is equally untenable. His proposition is that the grand jury which indicted him was not a legally constituted tribunal, in that it was composed of only 15 members, whereas, by an act of the legislature of the territory of Arizona passed on March 12, 1889, a day before that upon which the offense is charged to have been committed, it was required that grand juries should be composed of not less than 17 nor more than 23 members. The response thereto is that no such act was passed, and that, even if it were, the defect in the number of grand jurors did not vitiate the entire proceedings, so that they could be challenged collaterally on habeas corpus, but was only a matter of error, to be corrected by proceedings in error. It appears from the record that a challenge to the grand jury was made by the petitioner and overruled, but...

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