Peters v. Malin

• Citation: 111 F. 244
• Parties: PETERS v. MALIN.
• Decision Date: 21 October 1901
• Court: United States District Courts. 8th Circuit. Northern District of Iowa

111 F. 244

PETERS v. MALIN.

United States Circuit Court, N.D. Iowa, Eastern Division.

October 21, 1901

J. W Lamb and Wm. G. Clark, for plaintiff.

Caldwell & Walters, Struble & Stiger, and H. G. McMillan, for defendant.

SHIRAS District Judge.

This action was brought by the plaintiff, who is a member of the tribe of Indians settled in Tama county, Iowa, against the defendant, who is the agent appointed by the United States and placed in charge of the tribe, to recover damages for a false imprisonment of the plaintiff. The case was tried before a jury at the September term of the court at Cedar Rapids, and a verdict awarding the plaintiff damages in the sum of $10 was returned by the jury, and now both parties move for a new trial. It will probably conduce to a better understanding of the questions presented by the motions to give a brief recital of the dealings of the state and national governments with these Indians:

The Indians settled in Tama county are a remnant of the once powerful combined tribe of Sacs and Foxes, who at an early day occupied a large part of the territory now forming the state of Iowa. Under date of October 11, 1842, a treaty was entered into between the United States and the confederated tribes of Sacs and Foxes by which the latter ceded to the former all their interest in the lands west of the Mississippi river in consideration of the payment to be made by the United States of the sums of money named in the treaty, and upon the promise of the government to assign to the Indians a suitable tract of land upon the Missouri river or some of its tributaries. 7 Stat. 596. In accordance with the terms of this treaty a reservation was assigned to the Indians within the territory now forming the state of Kansas and the large majority of the Indians removed to the land assigned them. leaving, however, a few individuals who clung to their old homes in Iowa, the number so remaining being increased by others who returned to Iowa. The government of the United States endeavored to compel these Indians to follow the tribes into Kansas, by refusing to pay them their share of the annuities due under the terms of the treaty unless they would join their brethren in Kansas, but without avail. In 1856 the legislature of the state of Iowa adopted an act declaring:

'That the consent of the state is hereby given that the Indians now residing in Tama county, known as a portion of the Sacs and Foxes, be permitted to remain and reside in said state, and that the governor be requested to inform the secretary of war thereof, and urge on said department the propriety of paying said Indians their portion of the annuities due or to become due to said tribes of Sacs and Foxes. ' Acts 5th Gen Assem. (Ex. Sess.) c. 30.

In 1857 the Indians bought 80 acres of land in Tama county, which was the beginning of their present settlement, and there has been added thereto since that date some 3,000 acres; the title to part being taken in the name of the governor of Iowa, and the remainder in the name of the secretary of the interior, but all being held in trust for the Indians, whose numbers are now about 400. Since 1867 the government has paid to these Indians their proportionate share of the annuities coming to the Sacs and Foxes, and for years has maintained an agent upon the land in charge of their affairs. As the number of the children in the settlement increased, it was deemed desirable to make provision for their education, and to that end, among others, the state of Iowa, by an act of the general assembly approved February 14, 1896, ceded to the United States exclusive jurisdiction over the Sac and Fox Indians residing in Iowa, which cession was accepted by the United States in the act of congress approved June 10, 1896; and at the same time congress appropriated the sum of $35,000 for the purchase of a site and the erection of the necessary buildings for an Indian industrial school, which was located and erected at Toledo, in Tama county, not upon the Indian lands or reservation, but some four or five miles therefrom. After the erection of the school buildings, efforts were made by the Indian agent and the school superintendent to secure the attendance of the Indian children; but much opposition thereto was manifested by the Indian parents, who evidently became impressed with the idea that the purpose of the school was to convert the children from the Indian modes of thought and living to those of the white men, and therefore the Indians would not consent to the taking of the children from their homes on the reservation and keeping them at the school at Toledo. In this situation of affairs, a plan was devised for securing the appointment of the defendant, Malin, as the guardian of the persons of the Indian children; and, upon application made, the district court of Tama county, Iowa, appointed the defendant guardian of some 15 to 20 of these children, and directed him, as such guardian, to place and keep these children at the industrial school, and the defendant thus by compulsion placed a number of them in the school. Subsequently two of these children ran away from the school, going to their homes on the reservation, and thereupon the mother of one of them, in order to prevent their being recaptured and forcibly returned to the school, determined to take them away from the reservation, and to that end arranged with plaintiff that he should accompany her and the children to the home of a white man named Ruhl, living in Poweshiek county, in order to drive the wagon that was to convey them, and to act as interpreter in arranging for the board and care of the children. The plaintiff thus aided in taking the children to the place named, and upon his return he was arrested upon an information sworn to by the defendant, and taken before a justice of the peace, charged with the crime of enticing away a child under 15 years from the Indian reservation and keeping her in hiding; the information being based upon section 4761 of the Code of Iowa, which enacts that:

'If any person maliciously, forcibly or fraudulently lead, take, decoy or entice away any child under the age of fifteen years, with intent to detain or conceal such child from its parent, guardian or other person having lawful charge thereof, he shall be imprisoned in the penitentiary not more than ten years or be fined not more than one thousand dollars or punished by both such fine and imprisonment.'

Upon the hearing before the justice the plaintiff was held to answer before the grand jury of the state court, and by that body was indicted; and, being brought to trial before the court and petit jury, by direction of the court a verdict of not guilty was returned. During the pendency of these proceedings the plaintiff was imprisoned in the county jail for a period of some nine days, and after the dismissal of the case in the state court the plaintiff brought this action in this court to recover damages caused him by his imprisonment in the county jail. The case was originally brought against Wm. G. Malin, the Indian agent, and J. W. Nellis, the superintendent of the Indian school, but was subsequently dismissed as to the last-named party, and therefore the questions will be considered the same as though he had never been named as a party defendant.

The defendant, Malin, filed a demurrer to the petition on the ground that this court could not take jurisdiction of the case, for the reason that the controversy was not between citizens of different states, and the cause of action was not based upon any provision of the constitution, laws, or treaties of the United States. The demurrer was overruled, and thereupon an answer and an amended answer were filed, and upon the issues thus presented the case was heard before a jury, a verdict for plaintiff in the sum of $10 being returned; and now the defendant moves for a new trial upon numerous grounds, the first of which is that this court has not jurisdiction over the case, it being contended that false imprisonment is a cause of action at the common law, and does not arise under the provisions of the constitution, laws, or treaties of the United States.

To sustain an action of false imprisonment, it must be shown that the party complainant was arrested and imprisoned without warrant of law, or upon void process. Thus, in Byran v. Congdon, 86 F. 221, 29 C.C.A. 670,-- a case decided by the court of appeals for this circuit,-- it is ruled that:

'The established law lying at the foundation of this action is that if a person has been arrested and imprisoned under color of legal process, which is thereafter set aside for irregularity, the person who set the process in motion is responsible in damages to him upon whom the indignity and deprivation of liberty have been visited. Where the process is set aside for mere error committed by the court in the progress of the action, in contradistinction to irregular or void process, no responsibility may attach to him who caused its issue; but, when it is vacated because it was irregular in its inception, responsibility at once attaches. ' In the one case a man acts irregularity and improperly, without the sanction of any law, and he therefore takes the consequences of his own unauthorized act. But, where he relies on the judgment of a competent court, he is protected.' * * * The whole doctrine is concisely summed up in Day v. Bach, 87 N.Y. 56-60, and in Fischer v. Langbein, 103 N.Y. 84, 8 N.E. 251, substantially as follows: He who causes void or irregular process to be issued, whereby injury comes to another against whom it is enforced, is liable in damages therefor. Where the process is void, the right of action for the injury attaches when the wrong is committed, and no

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