People ex rel. Cusick v. Daly

• Citation: 212 N.Y. 183,105 N.E. 1048
• Parties: PEOPLE ex rel. CUSICK v. DALY, Sheriff.
• Decision Date: 16 June 1914
• Court: New York Court of Appeals Court of Appeals

212 N.Y. 183

105 N.E. 1048

PEOPLE ex rel. CUSICK

v.DALY, Sheriff.

Court of Appeals of New York.

June 16, 1914.

Appeal from Supreme Court, Appellate Division, Fourth department.

Habeas corpus, on the relation of Webster Cusick, against Dennis W. Daly, Sheriff of Niagara County. From an order of the Appellate Division (158 App. Div. 892,143 N. Y. Supp. 1137) which affirmed an order of the Special Term (78 Misc. Rep. 657,138 N. Y. Supp. 817) dismissing the writ, relator appeals. Reversed and remitted.

William E. Lockner, of Lockport, for appellant.

Fred M. Ackerson, of Niagara Falls, for respondent.

WERNER, J.

The relator is a Tuscarora Indian, living with the other members of his tribe on its reservation in Niagara county, in this state. On August 19, 1912, he was arrested on a warrant issued by a justice of the peace of the town of Lewiston in that county, charging that the relator, while on said reservation and armed with a dangerous knife, attacked another Indian with intent to kill. The relator was committed to the county jail to await the action of the grand jury.

Thereafter he sued out a writ of habeas corpus, upon the plea that his arrest and detention were illegal, because the United States courts had exclusive jurisdiction to try him for the offense with which he was charged. Upon the return to the writ a hearing was had at Special Term, the writ was dismissed, and the relator remanded to custody. This disposition of the proceeding was affirmed at the Appellate Division, and the matter is now before this court on the relator's appeal.

The question to be decided is whether the courts of this state have power to try an Indian for the offense of assault with intent to kill committed upon the person of another Indian, within the boundaries of the reservation of the Tuscarora Tribe, of which both are members. The relator's counsel contends that by virtue of the provisions of the ninth section of the federal act of March 3, 1885, c. 341, 23 Stat. 385 (U. S. Comp. St. 1901, p. 3621), now section 328 of the U. S. Crim. Code the courts of the United States have been vested with exclusive jurisdiction of the crime of which the relator is charged. This section reads 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, burglaryand 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 relating 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 federal statute of 1885 was evidently enacted to remedy the conditions which resulted from the decision of the United States Supreme Court in Ex parte Crow Dog, 109 U. S. 556, 3 Sup. Ct. 396, 27 L. Ed. 1030, rendered in December, 1883. Donnelly v . U. S., 228 U. S. 243, 270, 33 Sup. Ct. 449, 57 L. Ed. 820, Ann . Cas. 1913E, 710. In Crow Dog's Case it was held that an Indian, who had murdered another Indian in the Sioux reservation in the then territory of Dakota, would not be punished by the courts under the statutes and treaties as they then existed, and under which offenses committed by one Indian against another were dealt with by each tribe according to its local customs. Ex parte Crow Dog, 109 U. S. 571, 572, 3 Sup. Ct. 396, 27 L. Ed. 1030. This enactment superceded the rule laid down in Crow Dog's Case, by vesting the federal courts with jurisdiction over such of the more serious crimes as the savage nature of the Indian would lead him to commit, and for the punishment of which the tribal regulations and tribunals were probably regarded as inadequate.

It is to be observed that the statute consists of two distinct provisions. The first relates to the crimes therein enumerated when committed by Indians in a territory of the United States, whether or without the precincts of an Indian reservation, and the second relates to such crimes when committed by Indians within the ‘boundaries of any state of the United States, and within the limits of any Indian reservation.’

The constitutionality of this act was challenged in the case of U. S. v. Kagama, 118 U. S. 375, 383, 6 Sup. Ct. 1109, 30 L. Ed. 228, and the validity of both provisions was upheld. In that case the defendant was indicted for the murder of another Indian upon the Hoopa reservation, in the state of California, and in sustaining the power of Congress to enact the statute, so far as it relates to crimes committed by Indians upon reservations lying within the boundaries of a state, Mr. Justice Miller thus wrote for the Supreme Court:

‘Is this latter fact a fatal objection to the law? The statute itself contains no express limitation upon the powers of a state or the jurisdiction of its courts. If there be 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 in 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.’

We have quoted thus at length from the opinion in the Kagama Case because the views there expressed bear so directly upon the question here involved. It will be noted that Mr. Justice Miller laid some stress upon the facts that the reservation there was one set apart by the United States, and that the tribes referred to were dependent upon the general government for their daily food. Neither of these things is strictly true of our New York state tribes. But these were not the controlling elements in the decision, as will be seen from a perusal of the whole opinion, for the power of the federal authorities was asserted primarily because the Indian tribes in this country were, and always had been since the formation of the government, the wards of the nation and not of the states.

The learned justice who wrote at Special Term in the case at bar took the view that the word ‘reservation,’ as used in the statute, was not intended to include such reservations as are occupied by the tribes of Indians still residing in this state, but that Congress had in mind only such lands as had been set apart for the use of the Indian tribes in the West by some action on the part of the United States government. The Tuscarora Indians, it is true, received no part of their reservation from the United States government, and in this respect they are no different from the other tribes still resident here. The Tuscaroras are kinsmen of the Senecas, the in earlier days formed the sixth nation of the once powerful Iroquois, who in the height of their power, were the dominant tribes in this state and some of the contiguous territory. At a remote period in their history the Tuscaroras separated from their kinsmen and emigrated to that part of our country afterwards included in the state of North Carolina. They returned to this state as early as 1714, and settled finally in Niagara county, within the confines of the Seneca country, upon land allotted to them by the Seneca tribe. This reservation was later enlarged by a grant from the Holland Land Company, and still later by the purchase of additional lands within moneys received from the United States authorities out of the sale of territory formerly occupied by the Tuscaroras in North Carolina. Report of Special Commission Appointed by the N. Y. State Assembly of 1888 to Investigate the Indian Problem, Known as the Whipple Report, pp. 12, 13...