Rainbow v. Young
| Decision Date | 08 June 1908 |
| Docket Number | 2,642. |
| Citation | 161 F. 835 |
| Parties | RAINBOW et al. v. YOUNG, Sheriff. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Syllabus by the Court
Under Rev. St. Secs. 441, 463, 2058, 2149 (U.S. Comp. St. 1901, pp 252, 262), the Commissioner of Indian Affairs is authorized with the approval of the Secretary of the Interior, to cause collectors to be excluded and removed from a tribal Indian reservation on days when payments are being made to the Indians, if in his judgment the presence of collectors therein at such times is detrimental to the peace and welfare of the Indians; and this although the reservation be within a state and the Indians be the holders, under trust patents issued to them pursuant to Act Feb. 8, 1887, c. 119, 24 Stat 388, of allotments adjacent to the reservation, and be, therefore, citizens of the United States and the state.
A. W. Lane, Asst. U.S. Atty. (Charles A. Goss, U.S. Atty., on the brief), for appellants.
Thomas L. Sloan (W. E. Whitcomb, on the brief), for appellee.
Before VAN DEVANTER and ADAMS, Circuit Judges, and RINER, District judge.
This appeal calls in question an order discharging a writ of habeas corpus. There is no controversy about the facts, which are as follows: The appellants are Indian policemen at the Winnebago Indian Reservation, in Thurston county, Neb. That reservation consists of 400 acres of land belonging to the United States upon which it maintains an Indian agency and an Indian training school for the benefit of the Winnebago tribe, to the members of which allotments in severalty of the adjacent lands have been made under Act Feb. 8, 1887, c. 119, 24 Stat. 388.
The duties of an Indian agent at that agency, or at least such of them as pertain to the matters here stated, have been devolved upon the superintendent of the training school under a provision in Act March 3, 1903, infra. Somewhat recently, when payments of certain lease moneys were about to be made at that agency to the members of the tribe by such superintendent, he was directed by the Commissioner of Indian Affairs to require collectors to remain away from the agency on the days when the payments were being made; and among those who were duly notified of that direction was Thomas L. Sloan, an attorney of Pender, Neb. On one of the days fixed for making the payments Mr. Sloan, disregarding the notice so given to him, went to the agency for the purpose of making collections from Indians to whom lease moneys were then to be paid. After he had made some collections, and while he was there for the purpose of making others, he was requested by the superintendent to leave the agency and to remain away during the day so fixed for making the payments. He refused to do so, and the appellants then removed him from the reservation, and also prevented him from returning to the agency during that day. In doing so they acted under a verbal order given to them as members of the agency police by the superintendent, who was executing the commissioner's direction. The appellants used no more force than was necessary, and did nothing of which Mr. Sloan could complain, if the superintendent's order to them was a lawful one. Subsequently they were taken into custody by the appellee upon a warrant issued by the county judge of Thurston county upon a complaint made by Mr. Sloan, wherein he charged them with a criminal assault under the laws of the state of Nebraska by reason of their removal of him from the reservation in the circumstances just stated. While they were so in custody and awaiting a trial or examination, a writ of habeas corpus was sued out in their behalf upon a petition presented to the Circuit Court of the United States for the District of Nebraska, wherein it was alleged that their imprisonment was unlawful because the act with which they were charged was done in the discharge of a duty placed upon them as agency policemen in pursuance of a law of the United States. At the final hearing upon the petition, the Circuit Court was of opinion that there was no statutory authority for the direction given by the commissioner, and that it was invalid in the absence of such authority, and so discharged the writ and remanded the appellants to the appellee's custody.
Of the questions discussed by counsel, we deem it necessary to here notice the single one of the commissioner's authority to give the direction which was disregarded by Mr. Sloan and in the orderly execution of which he was removed from the reservation. While the members of the Winnebago tribe have received allotments in severalty and have become citizens of the United States and of the state of Nebraska, their tribal relation has not been terminated. They are not permitted to alienate, mortgage, or lease their allotments without the sanction of the Secretary of the Interior. Their lease moneys are collected and disbursed by officers of the United States.
Their lands and some at least of their other property are not taxable; and the United States maintains a reservation, an agency, and a training school for their benefit. In short they are regarded as being in some respects still in a state of dependency and tutelage which entitles them to the care and protection of the national government; and when they shall be let out of that state is for Congress alone to determine. United States v. Rickert, 188 U.S. 432, 23 Sup.Ct. 478, 47 L.Ed. 532; Matter of Heff, 197 U.S. 488, 25 Sup.Ct. 506, 49 L.Ed. 848; Cherokee Nation v. Hitchcock, 187 U.S. 294, 307, 308, 23 Sup.Ct. 115, 47 L.Ed. 183; McKay v. Kalyton, 204 U.S. 458, 27 Sup.Ct. 346, 51 L.Ed. 566; Dick v. United States, 208 U.S. 340, 28 Sup.Ct. 399, 52 L.Ed. . . . ; United States v. Thurston County, 74 C.C.A. 425, 143 F. 287; Hollister v. United States, 76 C.C.A. 337, 145 F. 773; Beck v. Flournoy, etc., Co., 12 C.C.A. 497, 65 F. 30; United States v. Mullin (D.C.) 71 F. 682. Besides, the reservation from which Mr. Sloan was removed is the property of the United States, is set apart and used as a tribal reservation, and in respect of it the United States has the rights of an individual proprietor , and can maintain its possession and deal with intruders in like manner as can an individual in respect of his property (Camfield v. United States, 167 U.S. 518, 524, 17 Sup.Ct. 864, 42 L.Ed. 260; Jourdan v. Barrett, 4 How. 168, 185, 11 L.Ed. 924; Stephenson v. Little, 10 Mich. 433). With these observations, we turn to the statutes...
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