In re Sah Quah

• Decision Date: 08 May 1886
• Citation: 31 F. 327
• Parties: In re SAH QUAH.
• Court: U.S. District Court — District of Alaska

31 F. 327

In re SAH QUAH.

United States District Court, District of Alaska.

May 8, 1886

W Clark and P. J. Berry, for petitioner.

M. D Ball, for respondent.

DAWSON J.

Petitioner alleges that he is unlawfully restrained of his liberty by the respondent, who claims to own him as a slave and chattel and prays to be released from the restraint imposed upon him by the respondent. Respondent, by way of return to the writ, in substance alleges that both he and the petitioner are Indians of the Thlinket or Kalosian race; that they are uncivilized natives; that they and their ancestors have inhabited the Alaskan shores from time whereof the memory of man runneth not to the contrary, in communities independent of any other law, authority, or jurisdiction except that established by their own rules and customs; that the buying, selling, and holding of slaves is one of the rules and customs of their race and tribe; that the civil authorities have no jurisdiction over them; and impliedly asserting that Alaska is Indian country, and that they are inhabitants are subject to no law, save the usages and customs of Indians.

The issue presented is important, and necessarily involved an examination of the treaty by which this vast region was ceded to the United States by his majesty, the emperor of all the Russians, as well as certain acts of congress in relation to Alaska. The third article of the treaty of March 30, 1867, is as follows:

'The inhabitants of the ceded territory, according to their choice, reserving their natural allegiance, may return to Russia within three years; but, if they should prefer to remain in the ceded territory, they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion. The uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country.'

It will be observed that the power to make laws and regulations for the government of the Indians is expressly reserved in the treaty to the United States, thus indicating very clearly that they were even then regarded as subject to some power superior to their own untamed inclinations. Pursuant to the power reserved in the treaty, congress, on the twenty-seventh day of July, 1868, extended the laws of the United States relating to customs, commerce, and navigation to and over all the mainland, islands, and waters of Alaska, and conferred upon the president of the United States power to restrict and regulate or prohibit the importation and use of fire-arms, ammunition, and distilled spirits into and within the territory. Sections 1954, 1955, Rev. St.

On the third day of March, 1873, congress amended the two sections referred to by extending over this territory two sections of the act of June 30, 1834, known as the 'Indian Intercourse Laws,' relating almost exclusively to the interdiction of the liquor traffic among the Indians, and to the distillation of ardent spirits in the Indian country. But I cannot infer that when congress, in express terms, extended two sections of the same act, and made them applicable to a certain people, it was intended to extend the whole act.

The presumption is clear that by singling out, mentioning, and extending two sections only, the intention was to withhold or exclude from the territory all the other sections of the act. If I am correct in this conclusion, it necessarily follows that only as to the prohibited commerce mentioned in the sections referred to, can Alaska be regarded as Indian country. 14 Ops.Attys.Gen. 290; 16 Ops.Attys.Gen. 141.

What, then, is the legal status of Alaska Indians? Many of them have connected themselves with the mission churches, manifest a great interest in the education of their youth, and have adopted civilized habits of life. Their condition has been gradually changing until the attributes of their original sovereignty have been lost, and they are becoming more and more dependent upon and subject to the laws of the United States, and yet they are not citizens within the full meaning of that term.

From the organization of the government to the present time, the various Indian tribes of the United States have been treated as free and independent within their respective territories, governed by their tribal laws and customs, in all matters pertaining to their internal affairs, such as contracts and the manner of their enforcement, marriage, descents, and the punishment for crimes committed against each other. They have been excused from all allegiance to the municipal laws of the whites as precedents or otherwise in relation to tribal affairs, subject, however, to such restraints as were from time to time deemed necessary for their own protection, and for the protection of the whites adjacent to them. Cherokee Nat. v. Georgia, 5 Pet. 1, 16, 17; Jackson v. Goodell, 20 Johns. 193.

This policy, upon the part of the United States grew out of the ordinance of 1787, adopted by the confederate congress for the government of the territory north-west of the Ohio river and has been constantly and scrupulously observed in relation to all...