School District No. 21 In Fremont County v. The Board of County Commissioners of Fremont County

Decision Date07 July 1906
Citation86 P. 24,15 Wyo. 73
PartiesSCHOOL DISTRICT NO. 21 IN FREMONT COUNTY v. THE BOARD OF COUNTY COMMISSIONERS OF FREMONT COUNTY ET AL
CourtWyoming Supreme Court

ERROR to the District Court, Fremont County, HON. CHARLES E CARPENTER, Judge.

The material facts are stated in the opinion.

Judgment reversed and temporary injunction vacated, and cause remanded.

E. H Fourt, for plaintiff in error.

The only question involved is whether the school district, which lies within the limits of the Shoshone Indian Reservation was or was not, for that reason, lawfully organized. It was sought by the petition in the case to question the right to organize a school district upon an Indian reservation.

The state was admitted with certain geographical boundaries. (Art. 11, Sec. 1, Const.) The counties then existing were declared to be the counties of the state. (Art. 12, Sec. 1 id.) The state was admitted on an equal footing with the original states of the Union in all respects (Act of Admission, Sec. 1), except that provision was made in the act of admission for the government and control of the National Park by Congress. (Id., Sec. 2.) Exclusive jurisdiction was afterward ceded to the United States by the State Legislature over the territory within the Shoshone Indian Reservation, saving to the state the right to serve civil and criminal process therein in a certain general class of suits, and saving to the state also the right to tax persons and corporations, their franchises and property on the reservation.

The intention of the act of cession was, we think, merely to give the general government ample authority to exercise jurisdiction over the Indians, that its duty toward them might be properly performed. The act, however, was not necessary, for the reason that, under the commerce clause of the federal constitution, the national government possesses all the authority required. If the act of cession goes beyond that purpose it is void, and would be inconsistent with the admission of the state on an equality in all respects, except as above stated, with the original states. (In re Langford, 118 U.S. 375; Langford v. Monteith, 102 U.S. 145; In re Gon-Shay-ee, 130 U.S. 343; U. S. v. McBratney, 104 U.S. 621; Cherokee Tobacco Co. v. U.S. 78 U.S. 616; Kansas Indians v. Board, &c., 5 Wall, 737; Draper v. U.S. 164 U.S. 238; Ry. Co. v. Lowe, 114 U.S. 525; Benson v. U.S. 146 U.S. 325; 1 Madison's Journal Const. Conv., 662, 753, 754; Sinks v. Rease, 19 Ohio St. 306; In re Kelly, 71 F. 545; State v. Doxtater, 2 N.W. 467; Stiff v. McLaughlin, 48 P. 232; Keokuk v. Ulam, 38 P. 1081; 24 U. S. Stat., 388; 1 Rev. Supp. 1891, 536; Wolf v. Hitchcock, 187 U.S. 550; Cherokee Nation v. Hitchcock, id., 294; In re Now-ge-zhuck, 76 P. 877; Schriber v. Langlade, 29 N.W. 547.) To say that Indians, or others, lawfully residing upon the reservation, shall not be permitted to vote or to enjoy school privileges, or to have the protection of the state laws, is to deny what the statutes of the United States have expressly said that they shall have. (In re Heff, 197 U.S. 488; Torrey v. Baldwin, 3 Wyo. 430; Sec. 3, Ordinances of Const. Wyo.) The act of cession is a grant, if anything, and as such is specially prohibited, in so far as it deprives of the power to tax. (Const. Wyo. Art. 15, Sec. 14.)

The Indians upon the reservation have nearly all accepted allotments of their lands in severalty, though some adjustments are now being made. When the Indians have accepted their lands and are living in severalty, and in this way have renounced tribal relations, they are, under the federal statute, citizens of the United States, and entitled to all the rights, privileges and immunities of any other citizen of the United States. The constitution of Wyoming provides that every citizen of the United States of the age of twenty-one years, and upward, who has resided in the state or territory a year, and the county sixty days, shall be entitled to vote (Art. 6, Sec. 2), and the only thing which can prevent an Indian on the reservation from voting is the educational qualification found in the state constitution. Citizenship is determined by the law of the United States, and our constitution expressly provides that citizens of the State of Wyoming, both male and female, shall enjoy all civil, political and religious rights and privileges. (Sec. 1, Art. 6.) It will, we think, be conceded that the white people as well as the Indians residing upon the Shoshone Indian Reservation, and within the geographical boundaries of the State of Wyoming, had the right to vote under the constitution of Wyoming, and the act admitting the State of Wyoming without any exclusions. There is nothing to prevent their exercising that right still, unless it be found in the law of 1893, which ceded jurisdiction over the reservation back to the United States. And the question for this court to determine is whether or not the Legislature, without the consent of the people, can cede the sovereign rights of the people, or the sovereignty of the state over any portion of the state or of any county. If the Legislature has power to cede the sovereignty of the state over the Indian Reservation, then it would have power to cede away the jurisdiction of the state over any other county or portion of the state. It has no such power. (Matt. v. R. R. Co., 30 Pa. St. 9; In re O'Connor, 37 Wis. 379; Treat v. Lord, 42 Me. 552; Chancely v. Bailey, 37 Ga. 532; Moore v. Shaw, 17 Cal. 199.)

The federal government has never accepted the jurisdiction ceded by the state over the reservation and the United States courts have many times refused to take jurisdiction over other places, under similar conditions.

By an examination of the report of the Secretary of the Interior, it will be seen that public schools are maintained among the Omahas and Winnebagoes in Nebraska. (Report Secy. Int. Indian Affairs, 1903, p. 202.) And at Fort Hall, Idaho. (Id., 153.)

It was urged in oral argument, to the lower court, that the Federal Court at Cheyenne has taken jurisdiction over cases upon the Indian Reserve in question, and I am forced to admit that this is true in a limited sense, but none of the cases have been of very great importance, and I am also informed that the question of jurisdiction has never been raised.

J. S. Vidal and S. T. Corn, for defendants in error.

The cases which seem to be relied upon by counsel for plaintiff in error are directed mainly to such questions as whether process of the courts may run upon Indian reservations, and whether under the statutes, applicable to the particular case, jurisdiction of crimes rests in the federal or in the state or territorial courts. And they affect this case, if at all, only remotely. If it is competent for the authorities of a state or territory to establish school districts and maintain public schools under state or territorial laws, upon an Indian reservation, independent of and disregarding the authority of the general government, it is remarkable that none of the cases cited by counsel furnish any hint that it has ever before been done or attempted. And we have not been able to find any instance of such an attempt. This is not a matter of accident arising out of a lack of public interest in education upon such reservations, for Congress has carefully provided by statute for the education of Indians residing thereon, and appropriates large sums of money for the purpose. It is also a matter of public notoriety, of which this court will no doubt take judicial notice, that various religious denominations have established and maintain schools upon the reservation by the consent of the government. Indeed, Congress formerly made appropriations in aid of such denominational schools. We think it is evident, therefore, that it must have been recognized that there was some fundamental objection to the establishment and maintenance of such schools.

Moreover, while, so far as we have been able to ascertain, there are no decisions directly upon the question whether such a school may be established and maintained upon a reservation, it seems to be taken for granted that it cannot be. (Torrey v. Baldwin, 26 P. 908; Thomas v. Gay, 169 U.S. 276.)

A consideration of the conditions existing upon the reservation will, we think, make it plain that the establishment of a school district there is not only without authority of law but is a legal impossibility. By the treaty between the United States and the Shoshones the government agreed that "no persons except those designated and authorized so to do, and except such officers, agents and employees of the government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon or reside," in the territory set apart for the reservation. This treaty is no doubt still in force, as to its substantial provisions, never having been abrogated by any subsequent agreement between the contracting parties nor by any statute of the United States, though doubtless some of its provisions may have become inoperative by reason of changed conditions. Doubtless also the provision to exclude unauthorized persons from the reservation has been very imperfectly enforced. But it has, nevertheless, remained at all times the duty of the government to enforce it whenever the protection of the Indians might require its enforcement. Indeed, independent of any treaty stipulations, the government having assumed the obligation of protecting the Indians upon their reservations from the encroachments of the white race, it follows necessarily that it must retain the control of the reservations in this respect. (State v. Denoyer, 6 N. D., 594; Beck v. Real Estate Co., 65 F. 35; U. S. v. Flournoy, 69...

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