In re Blackbird

• Decision Date: 06 June 1901
• Docket Number: 602.
• Citation: 109 F. 139
• Parties: In re BLACKBIRD.
• Court: U.S. District Court — Western District of Wisconsin

109 F. 139

In re BLACKBIRD.

No. 602.

United States District Court, W.D. Wisconsin.

June 6, 1901

William G. Wheeler and Henry T. Sheldon, U.S. Attys.

E. R Hicks, Atty. Gen., for State of Wisconsin.

BUNN District Judge.

John Blackbird, an Indian, and a member of the Chippewa tribe of Indians, situate and residing on the Bad River reservation in the state of Wisconsin, on April 23, 1901, was arrested upon the said reservation by one Bert McLaughlin for setting a net for fish in Bear Trap creek, a small stream upon and mainly within said reservation. His net was seized by the gam warden, and he taken to Ashland, and tried in the municipal court, and convicted of fishing with a net, contrary to the fish and game laws of the state, and sentenced to pay a fine of $25, and costs, amounting to $11.75, and in default of payment was sentenced by the court to imprisonment at hard labor in the county jail of Ashland county for the term of 30 days. This writ is sued out at the instance of the United States government to test the legality of his conviction and imprisonment.

The evidence showed that Blackbird was a full-blooded Indian, and a member of the Chippewa tribe of Indians residing on the Bad River reservation, lying up on Lake Superior, in Wisconsin under the care of an Indian agent appointed by the United States; and the question is whether the fish and game laws of Wisconsin extend to the arrest and punishment of Indians maintaining their tribal relations and residing upon Indian reservations within the limits of the state. It is, in short the continuation of a controversy which should properly have ended with the decision of the United States supreme court in U.S. v. Kagama, 118 U.S. 375, 6 Sup.Ct. 1109, 30 L.Ed. 228. Before that time there may have been some excuse for such decisions as that of the supreme court of Wisconsin in State v. Doxtater, 47 Wis. 278, 2 N.W. 439, where it was held that the criminal laws of this state apply to the Indians on their reservations within the state, and that the state circuit courts have jurisdiction of all crimes committed within the borders of the county of Brown, where the reservation was situated. That decision was made in 1878, before the law of congress providing a code of criminal law for Indians so situated was passed. In the case of Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483, the supreme court of the United States had held that, though the Indians had, by treaty, sold their land within that state, and agreed to remove away, which they had failed to do, the state could not, while they remained on these lands, extend its laws, criminal and civil, over the tribes; that the duty and power to compel their removal was in the United States, and the tribe was under their protection, and not subjected to the laws of the state and the process of its courts. By section 9, c. 341, Act Cong. March 3, 1885, congress provided as follows:

'That immediately upon and after the date of the passage of this act all Indians, committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, assault with intent to kill, arson, burglary and larceny within any territory of the United States, and either within or without an Indian reservation, shall be subject therefor to the laws of such territory relative to said crimes, and shall be tried therefor in the same courts and in the same manner and shall be subject to the same penalties as are all other persons charged with the commission of said crimes, respectively; and the said courts are hereby given jurisdiction in all such cases; and all such Indians committing any of the above crimes against the person or property of another Indian or other person within the boundaries of any state of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.'

The jurisdiction of congress to pass this act, and the jurisdiction of the United States courts under it, was fully considered and settled by the supreme court in U.S. v. Kagama, 118 U.S. 375, 6 Sup.Ct. 1109, 30 L.Ed. 228. Justice Miller, speaking for the court, given the true ground for maintaining the criminal jurisdiction of the United States over the Indians thus:

'The statute itself contains no express limitation upon the powers of a state or the jurisdiction of its courts. If there by any limitation in either of these, it grows out of the implication arising from the fact that congress has defined a crime committed within the state, and made it punishable in the courts of the United States. But congress has done this, and can do it, with regard to all offenses relating to matters to which the federal authority extends. Does that authority extend to this case? It will be seen at once that the nature of the offense (murder) is one which in almost all cases of its commission is punishable by the laws of the states, and within the jurisdiction of their courts. The distinction is claimed to be that the offense under the statute is committed by an Indian, that it is committed on a reservation set apart within the state for residence of the tribe of Indians by the United States, and the fair inference is that the offending Indian shall belong to that or some other tribe. It does not interfere with the process of the state courts within the reservation, nor with the operation of state laws upon white people found there. Its effect is confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation. It seems to us that this is within the competency of congress. These Indian tribes are the wards of the nation. They are communities dependent on the United States; dependent largely for their daily food; dependent for their political rights. They owe no allegiance to the states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive and by congress, and by this court, whenever the question has arisen. The power of the general government over these remnants of a race once powerful, now weak, and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.'

This case should and does settle the question by the highest judicial authority that, congress having taken jurisdiction of crimes committed by Indians within the limits of an Indian reservation, that jurisdiction is exclusive, and that the state laws do not extend to these cases.

The supreme court of Minnesota, in 1893, in State v. Campbell, 53 Minn. 354, 55 N.W. 553, 21 L.R.A. 169, states the true doctrine, and submits to the jurisdiction of the federal courts in these cases in the proper spirit. In an able and exhaustive opinion by Judge Mitchell, the court says:

'The late Justice Miller, speaking for the court, after pointing out that the right of congress to legislate for Indians in territories could be maintained merely upon the ownership and exclusive sovereignty of the United States in and over the country, then proceeds to consider the

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