Kie v. United States

• Decision Date: 01 May 1886
• Citation: 27 F. 351
• Parties: KIE v. UNITED STATES.
• Court: U.S. District Court — District of Oregon

27 F. 351

KIE v. UNITED STATES.

United States Circuit Court, D. Oregon.

May 1, 1886

Alfred S. Frank, for plaintiff in error.

Lewis L. McArthur, for defendant in error.

DEADY J.

This is a writ of error to the district court of Alaska, sitting at Sitka. The writ was allowed by the circuit judge, pursuant to section 7 of the act of May 7, 1884, concerning 'a civil government for Alaska,' (23 St. 24,) which provides:

'Writs of error in criminal cases shall issue to the said district court from the United States circuit court for the district of Oregon, in the cases provided in chapter 176 of the Laws of 1879; and the jurisdiction thereby conferred on the circuit court is hereby given to the circuit court of Oregon.'

The 'Laws of 1879' here referred to is the act of March 3 of that year, (20 St. 354,) which gives the circuit court for each judicial district jurisdiction of writs of error in criminal cases tried before the district court, where the sentence is imprisonment or fine not exceeding $300.

It appears from the record that on May 28, 1885, the plaintiff in error, Charles Kie, was indicted by a grand jury of the district court of Alaska, sitting at Sitka, for the crime of murder, alleged to have been committed about September 1, 1884, by stabbing a woman named Nancy, from which stabbing she then and there died. Kie demurred to the indictment, but the demurrer was overruled by the court; and afterwards, on a trial on the plea of 'not guilty,' he was by the jury convicted of the crime of manslaughter, and sentenced by the court to imprisonment for a term of 10 years and fine $100.

There is no formal bill of exceptions in the record, but it contains a statement of certain evidence given to the jury on the trial, which, by the argument of counsel, is so far to have the effect of a bill of exceptions. From this it appears that the killing took place at the town of Juneau, situate on or near Takoo inlet, and distant about 80 miles north by east in an air line from Sitka, and at the date thereof the plaintiff in error was living in and belonged to a village of Alaskan aborigines near by; that the deceased, Nancy, was also an aboriginal Alaskan living with Kie as his wife, and that said Nancy was guilty of adultery, for which cause Kie killed her, as alleged in the indictment, he being permitted and authorized to do so by the laws and customs of the people of said village time out of mind, as a punishment for her misconduct; that on the close of the testimony a motion was made for the discharge of the defendant on the ground that under sections 2145 and 2146 of the Revised Statutes, the court had no jurisdiction of the defendant, which motion was denied, and that after the verdict was received a motion was made to set aside the same, and discharge the defendant, on the same ground, which was also denied, to which rulings of the court the defendant then and there excepted.

The following are the errors assigned:

'(1) The record does not show that the plaintiff in error was present at the trial, or when sentence was pronounced on him. (2) No mode of selecting a jury is provided by the organic act. (3) The court had no jurisdiction to try the cause, and the judgment rendered is void.'

The last assignment will be considered first. It is based on the assumption that Alaska is 'Indian country,' within the meaning of that phrase as used in the Revised Statutes, and section 2146 thereof, which in effect prevents the courts of the United States from taking cognizance of any crime committed by one Indian against the person or property of another, in the Indian country.

In U.S. v. Seveloff, 2 Sawy. 311, I held that Alaska was not 'Indian country' in the conventional sense of the term; that because a country is owned or inhabited, in whole or in part, by Indians or aborigines, it is not therefore 'Indian country' within the meaning of that phrase, as used in the intercourse act of 1834 or the Revised Statutes. This ruling was followed and affirmed in the cases of In re Carr, 3 Sawy. 317; Waters v. Campbell, 4 Sawy. 121; and U.S. v. Stephens, 8 Sawy. 117; S.C. 12 F. 52; and again followed and vindicated in the court below, in an able opinion by District Judge McALLISTER. 7 W.C.R. 6. The Seveloff Case was decided in December, 1872; and on March 3, 1873, congress apparently gave its sanction to the theory of that case (17 St. 530) by amending section 1 of the Alaska act of 1868 (15 St. 240) so as to extend over the country section 20 and 21 of the intercourse act of 1834, prohibiting the introduction and disposition of spirituous liquors therein. As it rests with congress to say whether a district of country shall be considered 'Indian country,' so far as the intercourse between the aborigines thereof and other persons is concerned, this legislation, in my judgment, by at least a reasonable, if not a necessary, implication, is equivalent to a declaration that Alaska is not to be considered 'Indian country,' only so far as concerns the introduction and disposition of spirituous liquors therein.

Nor is this conclusion contrary to the ruling in Bates v. Clark, 95 U.S. 204, or Ex parte Crow Dog, 109 U.S. 556, S.C. 3 S.Ct. 396, in the former of which Mr. Justice MILLER said 'that all the country described by the act of 1834 as Indian country remains 'Indian country' so long as the Indians retain their original title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provision by treaty or act of congress;' and in the latter of which Mr. Justice MATTHEWS gives the above paragraph from Bates v. Clark, and adds:

'In our opinion, that definition now applies to all the country to which the Indian title has not been extinguished, within the limits of the United States, even when not within a reservation expressly set apart for the exclusive occupancy of Indians, although much of it has been acquired since the passage of the act of 1834, and notwithstanding the formal definition in that act has been dropped from the statutes.'

The conclusion is not in conflict with the ruling in Bates v. Clark, because, as we have seen, Alaska was not described or included in the act of 1834, the same being at the time foreign territory, and for the further reason that, if it had been, congress has since made special and different provision concerning the intercourse therein between the aborigines and others.

Nor do I think it is in conflict with the ruling in Ex parte Crow Dog, rightly understood. True, it is said in the opinion in the later case that the phrase may and does include territory acquired since the date of the act of 1834, and therefore not described in it. But the case then before the court arose in Dakota, a territory acquired from France in 1803, while the anomalous condition of Alaska was not probably considered by the court, or the language in question used with reference to it; but rather to the similar and contiguous territory acquired from Mexico in 1848, as New Mexico, Arizona, Nevada, Utah, and Western Colorado, which thereupon, in the language of section 1 of the act of 1834, (4 St. 729,) defining or describing the Indian country, became and were included in 'that part of the United States west of the Mississippi and not within the states of Missouri and Louisiana.' Nor is it at all probable that the aborigines of Alaska can or will be considered as dependent or domestic nations, or people having any title to the soil of the country, to be extinguished by the United States, as were the Indian tribes north and west of the Ohio river. The country was purchased from Russia in 1867. By article 2 of the treaty of purchase (Pub. Treat. 672) it is declared that 'the cession of territory and dominion' thereby made, shall include 'the right of property in all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices which are not private individual property. ' Article 3 provides that such of 'the inhabitants of the ceded territory' as 'prefer to remain' therein, 'with the exception of the uncivilized native tribes, shall be admitted to 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. ' And article 6 declares such cession 'to be free and unincumbered by any reservations, privileges, franchises, grants, or possessions * * * by any parties, except merely private individual property holders; and the cession hereby made conveys all the rights, franchises, and privileges now belonging to Russia in said territory or dominion, and appurtenances thereto.'

At the date of this cession Russia owned this country as completely as it now does the opposite Asiatic shore; and the right of the inhabitants in and to the use of the soil was such, and only such, as it saw proper to acknowledge or concede to them. The United States took the country on the same footing agreeing to respect the private property of individuals, and to make such regulations concerning the uncivilized natives, including, of course, their occupation of the soil, as it might deem best. Accordingly, congress, by the passage of the Alaska act of 1884, has provided a government for the country without any reservation or qualification as to the persons or classes of the inhabitants over and upon whom it shall have jurisdiction and authority. By this act (section 8) the laws of the United States relating to mining claims and are extended over Alaska, and it is made a...