In re Now-Ge-Zhuck

• Decision Date: 07 May 1904
• Docket Number: 13,858
• Citation: 76 P. 877,69 Kan. 410
• Parties: In re NOW-GE-ZHUCK, alias TOMMY WALK-KAS
• Court: Kansas Supreme Court

76 P. 877

69 Kan. 410

In re NOW-GE-ZHUCK, alias TOMMY WALK-KAS

No. 13,858

Supreme Court of Kansas

May 7, 1904

Decided January, 1904.

Original proceeding in habeas corpus.

Petition remanded.

SYLLABUS

SYLLABUS BY THE COURT.

JURISDICTION -- Power of State Courts to Punish Indian Allottees for Violations of State Laws. The act of congress of February 8, 1887 (24 U.S. Stat. at L., ch. 119), providing for the allotment of lands constituting a reservation to the Indians in severalty and the issuing of patents to the allottees therefor, and further providing that, upon the completion of said allotments and the issuing of patents to each of the allottees constituting the tribe, each allottee should have the benefit of, and be subject to, the laws, both civil and criminal, of the state in which he might reside, confers jurisdiction on the state courts to try and punish an allottee for any violation of the laws of the state, though the offense committed be one against the person or property of an Indian or other person within the limits of an Indian reservation.

Crane & Woodburn Bros., for petitioner.

W. F. Means, for respondent.

ATKINSON J. All the Justices concurring.

OPINION

ATKINSON, J.:

On December 12, 1903, Now-ge-zhuck, alias Tommy Walk-kas, a Pottawatomie Indian, filed in this court his petition in habeas corpus averring that he was unlawfully restrained of his liberty by the sheriff of Brown county, Kansas, and asking that he be discharged. The case is before us for determination upon the following agreed facts:

"It is agreed by and between the parties to this action that Now-ge-zhuck, alias Tommy Walk-kas, was born a member of the Prairie band of Pottawatomie Indians, of Jackson county, Kansas, and is still a member of said tribe of Indians, if their tribal relations were not dissolved by the allotment of lands, in severalty, to the members of said tribe under the act of congress, February 8, 1887. The said band of Indians have made their home on the diminished Pottawatomie Indian reservation, in Jackson county, Kansas, for more than forty years; and Now-ge-zhuck, alias Tommy Walk-kas, has resided thereon during all his life, and resided thereon when arrested in Brown county, Kansas. About the year 1893, the Indians who composed the Prairie band of Pottawatomie Indians were allotted land in severalty, under the aforesaid act of congress, on the diminished Pottawatomie reservation, in said county and state, and each, including Now-ge-zhuck, alias Tommy Walk-kas, received his preliminary patent therefor, as provided by said act. The Prairie band of Pottawatomie Indians are, and have been for many years, under the charge of an agent, or a bonded superintendent, appointed by the secretary of the interior of the United States. These Indians still receive their annuities from the United States government. They also have a chief and council. About the -- day of November, 1903, Now-ge-zhuck, alias Tommy Walk-kas, was attending the Indian payment of annuities on the Kickapoo Indian reservation, in Brown county, Kansas. The Kickapoo Indians are a tribe of Indians who are located upon the Kickapoo Indian reservation, in Brown county, Kansas. They have resided on said reservation for more than forty years. They have a chief and council, and are, and have been for many years, under the charge of an agent, or a bonded superintendent, appointed by the secretary of the interior of the United States, and still receive their annuities from the United States government. About the year 1893, the Indians who composed the Kickapoo tribe of Indians were allotted land in severalty, under the aforesaid act of congress, on the Kickapoo Indian reservation, in Brown county, Kansas, and preliminary patents were issued therefor. On the -- day of November, 1903, Now-ge-zhuck, alias Tommy Walk-kas, while attending said payment, was arrested by the sheriff of Brown county, Kansas, on a warrant issued by the justice of the peace of Brown county, Kansas, on a complaint charging Now-ge-zhuck, alias Tommy Walk-kas, on the -- day of November, 1903, with disturbing the peace and quiet of persons on said reservation in Brown county, Kansas, to which complaint he entered a plea of guilty of such offense and was adjudged to pay a fine of thirty (30) dollars and the costs of said action, and to be confined to said jail for a period of ninety days, and to be committed to said jail until said fine and said costs be paid. From such imprisonment Now-ge-zhuck, alias Tommy Walk-kas, asks to be released."

It is urged that the state court, under the facts stated, had no jurisdiction to try or punish the petitioner, an Indian, for the offense committed. In determining the jurisdiction of the state court, that the question may be considered free from collateral issues the fact that petitioner entered a plea of guilty and the further fact that the offense was committed on the Kickapoo reservation will be treated as though the offense had been committed on the Pottawatomie reservation and petitioner had been tried and convicted.

The act of congress of May 30, 1854 (10 U.S. Stat. at L. ch. 59), organizing the territory of Kansas, and also the act of January 29, 1861 (12 U.S. Stat. at L., ch. 20), admitting Kansas as a state of the union, each in express terms provided that nothing therein should be construed to impair the rights of persons or property then pertaining to the Indians in the territory included in Kansas, so long as the rights of the Indians should remain unextinguished by treaty with the United States, and that all lands in Kansas belonging to the Indians by treaty with the United States were excepted from, and constituted no part of, the territory of the state of Kansas, unless by treaty or authority of the United States jurisdiction should be extended to the state. From the reservations in these acts of congress it is manifest that the state could have no jurisdiction over the person or property of the Indian while upon the lands reserved, or of the lands so reserved, except by the act and authority of the United States. There is, however, no treaty, act of congress or law of the state that precludes the courts of Kansas from taking jurisdiction of the person and property of the Indians found within the territorial boundaries of the state, except while such Indians or property are actually situated on a reservation excluded from the jurisdiction of the state. (Rubideaux v. Vallie, 12 Kan. 28.)

The United States, prior to the act of congress of March 3, 1885 (23 U.S. Stat. at L., ch. 341), in matters jurisdictional of the person and property of the Indians, determined its relation to the tribes by treaty rights. This act was a departure from the treaty method of dealing with them in that particular, and was declaratory of the right of the United States to assume jurisdiction, and also of the right to adopt the laws, and confer jurisdiction upon the courts, of a territory of the United states as to certain crimes when committed by an Indian against the person or property of an Indian or other person upon a reservation. Section 9 of the act specifies the crimes over which this jurisdiction should extend, as murder, manslaughter, rape, assault With intent to kill, arson, burglary, and larceny. The right of punishment for these crimes committed by an Indian against the person or property of another Indian or other person, without or within an Indian reservation and within the boundaries of a territory of the United States, was extended to the courts of the territory. The laws of the territory relating to the crimes specified were adopted as the laws by which to govern and control the Indian, and to punish him for the commission of any of the crimes mentioned. Section 9 of the act further provides that an Indian charged with any of the crimes specified, when committed within the limits of an Indian reservation situated within the boundary of a state, shall be tried in courts of the United States and be punished by the laws of the United States.

It will be noted that, while by this act, as to crimes specified, jurisdiction was extended to the territories in which the reservation was situated and the laws of the territory adopted for the government and punishment of the offending Indians, no such rights were extended to the states or to the state courts. The effect of the act of March 3, 1885, was confined to acts of a criminal character, committed by an Indian, a member of some tribe, and committed within the limits of a reservation. It did not interfere with the process of the state courts within the reservation, nor with the operation of the state laws upon the white people found therein. (United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228.)

Our attention has not been directed to, and we have been unable to find, any treaty with the Indian tribes whereby the government acquired or asserted jurisdiction of offenses inferior to those specifically mentioned in the act of March 3, 1885. We assume that it was left with the tribes to govern and to punish the...