In re Seagraves

Decision Date04 September 1896
Citation48 P. 272,4 Okla. 422,1896 OK 71
PartiesIn re SEAGRAVES.
CourtOklahoma Supreme Court

Syllabus by the Court.

Section 2148, Rev. St. U.S., which provides, "If any person who has been removed from the Indian country shall thereafter at any time return or be found within the Indian country, he shall be liable to a penalty of one thousand dollars," is not a criminal statute, but only renders the intruder liable to the penalty therein named; and this penalty, under section 2124, Rev. St. U.S., is recoverable "in an action in the nature of an action of debt, in the name of the United States," and cannot be enforced by a criminal proceeding; and where a party charged with the violation of section 2148 was prosecuted criminally, and fined $1,000, and ordered committed until discharged by due process of law, and imprisoned upon this judgment, the party is discharged upon her petition for a writ of habeas corpus.

Application by Maude Seagraves for a writ of habeas corpus. Petitioner discharged.

R. B Forrest and Buckner & Son, for petitioner.

C. R Brooks, U.S. Atty., and Roy Hoffman, for the United States.

BIERER J.

The petitioner asks for her discharge from the federal jail of the United States at Guthrie, Okl., where, she alleges, she is imprisoned and confined without authority of law. It is shown in her petition, and in the return of the United States marshal, that the petitioner was prosecuted for the alleged crime, under section 2148 of the Revised Statutes, of having returned to the Indian country attached to Canadian county for judicial purposes, after having been removed therefrom by the Indian agent, as provided by section 2147 of the Revised Statutes, and that, upon her trial and conviction, she was fined in the sum of $1,000 and the costs, and committed to the United States prison at Guthrie, Okl., until discharged by due process of law. We take the judgment of the court directing her confinement to mean that she was fined the sum of $1,000 and the costs, and the marshal directed to commit her to jail until the same were paid, and we treat the case as if that had been the judgment. The petitioner claims that her return to the Indian country, after having been removed therefrom, subjected her only to the payment of the penalty of $1,000, and that such penalty is not a criminal punishment, and that she has committed no crime against the laws of the United States for which she is imprisoned, and that her imprisonment is therefore unlawful. On the part of the government it is contended that section 2148 of the Revised Statutes is a criminal statute, and that the penalty can be enforced by criminal procedure. This question was in 1884 squarely presented to the United States district court for the district of Kansas, in the case of U.S. v Payne, 22 F. 426. Payne and others were prosecuted charged with a conspiracy, under the laws of the United States, to make settlement on Indian lands, and to return to the Indian country after having been removed therefrom; and it was held by Judge Foster that the acts of which the alleged conspiracy consisted were not a crime, and that the offense of returning to the Indian country after the party had been removed therefrom had a definite penalty attached thereto, and a definite mode of enforcing the penalty, and that it was not an indictable offense, and could not be prosecuted by a criminal proceeding. The case is squarely in point in the case at bar, and we would consider it as settling this question in favor of the petitioner, and would give the matter no further review, if it were not for the fact that a directly opposite view of the question was taken by Judge Deady in the case of U.S. v. Howard, 17 F. 638, from the circuit court of the district of Oregon, in which it was held that the act for which the penalty is provided in section 2148 is criminal, and could be enforced by criminal prosecution. Judge Foster, in the Payne Case, made no reference whatever to the Howard Case, decided by Judge Deady, and the two cases stand as decisions of the United States courts upon this question, holding to directly opposite views; and we therefore feel it our duty to give the reason for following the one rather than the other.

We have examined the Revised Statutes and the provisions of the Session Laws of Congress (from which the revised section is taken) carefully, to ascertain wherein congress, in fixing a penalty for the return of a party, who had been removed therefrom, to the Indian country, intended to declare it a crime, or to provide for the enforcement of the penalty by criminal procedure; but we are absolutely unable to find any such intention in any expression that congress has made, and a careful review of the subject convinces us beyond doubt that congress, in the legislation upon this subject, has evinced the contrary intention; that is, that the act denounced is to incur a mere forfeiture,--the payment of money,--and not a criminal punishment. Section 10 of the act of June 30, 1834 (4 Stat. 730), provides: "And be it further enacted, that the superintendent of Indian affairs and Indian agents and subagents, shall have authority to remove from the Indian country all persons found therein contrary to law; and the president of the United States is authorized to direct the military force to be employed in such removal." Section 23 of the same act provides: "And be it further enacted, that it shall be lawful for the military force of the United States to be employed in such manner and under such regulations as the president may direct, in the apprehension of every person who shall or may be found in the Indian country, in violation of any of the provisions of this act, and him immediately to convey from said Indian country, in the nearest convenient and safe route, to the civil authority of the territory or judicial district in which said person shall be found, to be proceeded against in due course of law; and also, in the examination and seizure of stores, packages, and boats, authorized by the twentieth section of this act, and in preventing the introduction of persons and property into the Indian country contrary to law; *** provided, that no person apprehended by military force as aforesaid, shall be detained longer than five days after the arrest and before removal. And all officers and soldiers who may have any such person or persons in custody shall treat them with all the humanity which the circumstances will possibly permit; and every officer or soldier who shall be guilty of maltreating any such person while in custody, shall suffer such punishment as a court-martial shall direct." Section 27 of the act provides: "And be it further enacted, that all penalties which shall accrue under this act, shall be sued for and recovered in an action of debt, in the name of the United States, before any court having jurisdiction of the same, 'in any state or territory in which the defendant shall be arrested or found,' the one half to the use of the informer, and the other half to the use of the United States, except when the prosecution shall be first instituted on behalf of the United States, in which case the whole shall be to their use." Section 2 of the act of congress of August 18, 1856 (11 Stat. 80), provides: "And be it further enacted, that if any person who has been removed from the Indian country under the provisions of the tenth section of the act of congress, approved the thirtieth of June, eighteen hundred and thirty-four, entitled 'An act to regulate trade and intercourse with the Indian tribes, and preserve peace on the frontiers,' shall thereafter at any time return or be found within the Indian territory, such offender shall forfeit and pay the sum of one thousand dollars." Section 10 of the act of June 30, 1834, is incorporated into the Revised Statutes as section 2147; section 23 of said act is incorporated into sections 2150 and 2151 of the Revised Statutes; section 27 of such act is incorporated into the Revised Statutes as section 2124; and section 2 of the act of August 18, 1856, is incorporated into the Revised Statutes as section 2148. It will also be observed, on comparison with the Revised Statutes, that the original congressional legislation from which section 2148 is taken referred specifically to the act of June 30, 1834, by date and by title; and that while the language of the original section was, "Such offender shall forfeit and pay the sum of one thousand dollars," it appears in the revised section, "He shall be liable to a penalty of one thousand dollars," the words "such offender" and the words "forfeit and pay" being omitted, and the words "he" and "be liable to a penalty" being placed in lieu thereof. It will also be observed that, while the language of section 27 of the act of June 30, 1834, made the section apply only to penalties "which shall accrue under this act," section 2124 applies to all penalties "which shall accrue under this title," and shows clearly, as we think, that the compiler of the Revised Statutes understood that these sections of the act of 1834 and the act of 1856 were to be given the same meaning and force as if they had been a part of one and the same enactment. Indeed, we think that congress, having observed in 1856 that, while it had given the authority to the superintendent of Indian affairs and agents and subagents to remove a person from the Indian country who was therein without authority of law, it had provided no restrictions whatever against the person's so returning, except that he might be again and again removed therefrom by the Indian agent or the military forces, and by the act of 1856 it intended simply to supply a defect in the legislation of 1834, both laws relating to the same subject, and passed...

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