Hollister v. United States

• Decision Date: 16 March 1906
• Docket Number: 2,253.
• Citation: 145 F. 773
• Parties: HOLLISTER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

145 F. 773

HOLLISTER et al. v. UNITED STATES.

No. 2,253.

United States Court of Appeals, Eighth Circuit.

March 16, 1906

[Copyrighted Material Omitted]

Joe Kirby and S. H. Wright, for plaintiffs in error.

William G. Porter (James D. Elliott, on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge.

This was a writ of scire facias issued by the District Court of the United States for the District of South Dakota against Frank Waugh, as principal, W. C. Hollister and Thomas Scanlan, as sureties, upon a forfeited recognizance for $1,000 given to secure Waugh's appearance at the next term of that court to answer a criminal charge preferred against him, consisting of the larceny of two mares committed on the Rosebud Indian reservation. Waugh not being found service of the writ was made against the sureties only, and they are now the only parties defendant.

The record does not disclose that Waugh was an Indian or that he stole the property of an Indian. He was, therefore, not subject to the provisions of section 9 of the act of March 3, 1885 (chapter 341, 23 Stat. 362), and was not indicted under that act. By Act Feb. 2, 1903, c. 351, 32 Stat. 793 (U.S. Comp. St. Supp. 1905, p. 719), under which he was indicted, Congress undertook to confer jurisdiction upon the Circuit and District Courts of the District of South Dakota to try cases, among others, of larceny committed by any person upon any Indian reservation of that state. It is urged at the outset that Congress did not possess power to confer such jurisdiction upon the national courts, certainly without the consent of the state in which the reservation affected might be located.

Upon the adoption of the general policy disclosed by the act of February 8, 1887 (chapter 119, 24 Stat. 389), looking towards the cessation of tribal relations, division of the lands in severalty among the Indians, establishment of homes for them, and bestowal of the rights of citizenship upon them, a serious and important trust devolved upon the United States. This has been expressed by the Supreme Court in various ways, such as 'these Indians are yet the wards of the nation, in a condition of pupilage or dependency, and have not been discharged from that condition. * * * It is a part of the national policy by which the Indians are to be maintained as well as prepared for assuming the habits of civilized life, and ultimately the privileges of citizenship. ' U.S. v. Rickert, 188 U.S. 432, 437, 23 Sup.Ct. 478, 480, 47 L.Ed. 532. 'The recognized relation between the government and the Indians is that of a superior and an inferior, whereby the latter is placed under the care and protection of the former. ' Matter of Heff, 197 U.S. 488, 498, 25 Sup.Ct. 506, 507, 49 L.Ed. 848. The obligation cast upon the legislative and executive departments of the government to administer upon and guard the tribal property and determine when and on what conditions it should be vested absolutely in the individual Indian, as declared in Cherokee Nation v. Hitchcock, 187 U.S. 294, 23 Sup.Ct. 115, 47 L.Ed. 183; Lone Wolf v. Hitchcock, 187 U.S. 553, 12 Sup.Ct. 216, 47 L.Ed. 299; Stephens v. Cherokee Nation, 174 U.S. 445, 19 Sup.Ct. 722, 43 L.Ed. 1031, discloses the appropriateness and wisdom of the policy of reserving to the United States courts criminal jurisdiction over certain offenses specified in the act of February 2, 1902. It was a reasonable thing, in line with the paternal duty imposed upon the nation, to make a demonstration to its wards in the vicinity of their abode of the benefits and advantages of a well-governed community.

If it was the duty of the nation to care for them as its wards and develop them into a condition of civilized life and merited citizenship, power to adopt all reasonable methods to that end, of course, existed. As said in United States v. Rickert, supra, and U.S. v. Kagama, 118 U.S. 375, 384, 6 Sup.Ct. 1109, 30 L.Ed. 228, from the considerations just alluded to 'there arises the duty of protection, and with it the power.'

The assumption of jurisdiction found in the act of February 2, 1903, comes fairly within the power of Congress as an instrumentality employed in the discharge of the national duty toward the Indians. Utah & N. Ry. v. Fisher, 116 U.S. 28, 6 Sup.Ct. 246, 29 L.Ed. 542. In our opinion, too, that jurisdiction was assumed with the assent of the people of South Dakota. The last section of the last-mentioned act recites that it was passed pursuant to a cession of jurisdiction by that state. The state, by the act of February 14, 1901 (Sess. Laws S.D. 1901, p. 132, c. 106), relinquished to the United States exclusive jurisdiction to arrest, prosecute, and punish all persons who might commit upon any Indian reservation in the state for any offenses which might be denounced by Congress. This cannot be said to be an arbitrary relinquishment of power inconsistent with the sovereignty of a state. It was made at a time when, as a result of the adoption of the policy announced in the act of February 8, 1887, large bodies of land embraced in the several reservations within the confines of South Dakota, permanent improvements erected thereon, and stock and personal property derived from the government and used in connection therewith became exempt from taxation for support of the state government (U.S. v. Rickert, supra), and at a time when tribal reservations under the act of 1887 were fast being disintegrated by allotments of lands in severalty to Indians and the opening of the balance to general settlement. The act of February 2, 1903, ex vi termini, became inoperative so far as any particular reservation was concerned upon the extinguishment of the Indian title. Bates v. Clark, 95 U.S. 204, 208, 24 L.Ed. 471, Buster v. Wright, 135 F. 947, 952, 68 C.C.A. 505, and common knowledge tells us that the Indian title is being rapidly extinguished, and that we may reasonably expect in the near future such progress in that direction as to leave few, if any, Indian reservations in existence. Accordingly the ceding of jurisdiction by the state of South Dakota may well be considered a mere temporary expedient, relieving the state for the time being from burdens which, for want of power to impose taxes upon property of Indians, had become heavy and difficult to bear, and as a permissible and worthy co-operation with the national government in the discharge of its duties and obligations towards the Indians. For the reasons just suggested, the relinquishment of limited jurisdiction such as is involved in this case comes fairly within the general legislative power of the state.

Instances of relinquishment and acceptance of criminal jurisdiction by state Legislatures and the national Congress, respectively, over forts, arsenals, public buildings, and other property of the United States situated within the states, are common, and their legality has never, so far as we know, been questioned. Obvious considerations of public policy and convenience which have prompted such legislation apply, in our opinion, with equal force to the relinquishment and acceptance of jurisdiction temporarily over Indian reservations. The method of relinquishing such jurisdiction by act of the Legislature of a state and the acceptance thereof by the Congress of the United States, has been without objection recognized as effectual and lawful. Peters v. Malin (C.C.) 111 F. 244; In re Lelah-Puc-Ka-Chee (D.C.) 98 F. 429. But, if it be true that such legislation by a state needs authorization by the people, we are of opinion that the Legislature of South Dakota was by fair intendment of language employed, authorized by the Constitution of the state to relinquish jurisdiction to the United States, even of a more permanent character than what was done by the act of February 2, 1903.

Pursuant to the requirements of the enabling act of Congress, the people of South Dakota in the adoption of their Constitution in 1889 agreed, among other things, by article 26, that all Indian lands should remain under the absolute jurisdiction and control of Congress until the Indian title thereto should be extinguished by the United States, and that jurisdiction should be ceded to the United States over the military reservations of Ft. Mead, Ft. Randall, and Ft. Sully. And as part of that article it was ordained that the same should be irrevocable without the consent of the United States, and also the people of South Dakota 'expressed by their legislative assembly.' The provisions of article 22 of the Constitution made them also irrevocable without like consent of the people 'expressed by their legislative assembly.' These provisions of the Constitution received a practical construction in the Political Code adopted by the Legislature soon after the organization of the state government, in which the sovereignty and jurisdiction of the state are made subject to 'such limitations and qualifications of jurisdiction as have been or may hereafter be ceded by law to the United States,' and in which jurisdiction is ceded over other lands acquired by the United States for public buildings and public works, as long as such lands shall remain the property of the United States. Revised Code of South Dakota, 1903, Political Code, p. 3. We are of opinion that tested by the methods prescribed by the Constitution for securing the consent of the people in kindred matters above referred to their consent to the cession of criminal jurisdiction over Indian reservations is sufficiently expressed by the act of their Legislature in question.

Objection is made to that act because it adopts the punishment for the crime of larceny as provided by the state of South Dakota. This kind of legislation first found...