State v. Columbia George

• Decision Date: 08 July 1901
• Citation: 39 Or. 127,65 P. 604
• Parties: STATE v. COLUMBIA GEORGE et al.
• Court: Oregon Supreme Court

65 P. 604

39 Or. 127

STATE v. COLUMBIA GEORGE et al.

Supreme Court of Oregon

July 8, 1901

Appeal from circuit court, Umatilla county; W.R. Ellis, Judge.

Columbia George was convicted of murder in the first degree, and he appeals. Reversed.

The defendant, Columbia George, was jointly indicted with Toy Toy, but separately tried and convicted of the crime of murder in the first degree, committed on the United States Indian reservation in Umatilla county, Or., and this appeal is from the judgment rendered in pursuance thereof. Both defendants are Indians of the Umatilla tribe, allottees of the reservation lands, and resided thereon at the time of the commission of the offense. The deceased, known as "Anna Edna," was an Indian woman, and, although an allottee she did not live at the time upon her own allotment, but upon that of another Indian woman.

Wm Parson and R.J. Slater, for appellant.

T.G Hailey, Dist. Atty., and D.R.N. Blackburn, Atty. Gen., for the State.

WOLVERTON J.

The defendant challenges the jurisdiction of the court to try the cause upon the ground that the general government has jurisdiction thereof to the exclusion of the state courts. Under the view we entertain of this proposition, it is unnecessary to examine any other question brought up by the record. There is a grave responsibility imposed upon every court to be very sure that it is the law that condemns, and not the court, except as the correct and impartial instrumentality of the law; and in no case is this humane principle so impressively discovered to the understanding as where the life of a human being is suspended in the balance, whether the subject be of high or low degree. Yet, if the law condemns, its judgments should be certain, so as to insure respect, and an obedient observance of its behests. The law by which it is claimed the general government has assumed jurisdiction of the crime involved is section 9 of the act of March 3, 1885 (1 Supp.Rev.St. 482, c 341), which 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, burglary, and 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." Prior to this enactment, federal jurisdiction over Indian reservations, as to crimes committed by Indians thereon, was dependent upon sections 2145, 2146, Rev.St. U.S., and other provisions of title 28, Rev.St. U.S., touching Indian affairs, of which they are a part. These sections read as follows:

"Sec. 2145. Except as to crimes the punishment of which is expressly provided for in this title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.

"Sec. 2146. The preceding section shall not be construed to extend to [crimes committed by one Indian against the person or property of another Indian, nor to] any Indian committing any offense in the Indian country who has been punished by the local laws of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively."

That part of section 2146 comprised in brackets above was a part of the original act of March 27, 1834 (10 Stat. 270, c. 26, § 3). It was omitted in the revision thereof, but was restored by the act of February 18, 1875 (18 Stat. 318, c. 80), and now appears in the second revised edition. There has been much discussion among the authorities as to what constitutes Indian country within the purview of said section 2145, but the latter clause of section 9 of the act of 1885 (the one with which we are concerned) restricts the jurisdiction to Indian reservations, and there can be no dispute, that at the time of its enactment Umatilla reservation fell within its meaning and purpose. The inquiry is as to the effect of concurrent and subsequent enactments, and the acts of the government and the Indians in pursuance thereof, in the way of disannulling or extinguishing the reserve as Indian country and withdrawing federal jurisdiction. It is unnecessary, therefore, to determine what is Indian country or whether an Indian reservation falls within the designation. It was early the policy of the government to treat the various Indian tribes found within the territory as quasi independent peoples and nations, but under the protection and tutelage of the general government. They were recognized as having the possessory right to the soil over which they were wont to hunt and exercise a primitive authority, but not the ultimate title to the land itself. Of the latter they were denied ownership, and were not permitted to sell or dispose of it to any person or nation without the consent of the United States. They were never regarded as citizens or constituent members of our body politic with the rights and privileges of citizenship, and were subjects only in a restrictive sense. They were amenable generally, when without the Indian country, to the laws of the United States and of the state and territory where they may be within their respective jurisdiction, but were permitted to maintain their separate, independent communities and political organizations or primitive tribal relations for the government of their own people. In permitting this, they were treated as wards in a state of pupilage, emerging from their savage condition to a higher civilization; and it was thought to be the better means to the end, while instructing them in the arts of industry and civilization, that they should be encouraged to become self-governing, as well as self-supporting. Worcester v. Georgia, 6 Pet. 515, 536, 8 L.Ed. 483; Ex parte Crow Dog, 109 U.S. 556, 3 Sup.Ct. 396, 27 L.Ed. 1030; U.S. v. Kagama, 118 U.S. 375, 6 Sup.Ct. 1109, 30 L.Ed. 228. It was in pursuance of this policy of permitting different Indian nationalities and tribes to govern themselves, and in recognition of the amenability of the individuals thereof to their own domestic and peculiar rules and regulations, that it was enacted that the general laws touching the punishment of crimes committed within the exclusive jurisdiction of the United States, which were extended to the Indian country, should not be construed to include crimes committed by one Indian against the person or property of another, nor to any Indian committing any offense in the Indian country, who had been punished therefor by the local laws of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. Accordingly, upon the trial of Ex parte Crow Dog, supra, which involved the jurisdiction of the court to try an Indian of the Brule Sioux band of the Sioux nation for the murder of another Indian of the same band, committed within the Indian country, it was held that the court was without jurisdiction of the offense. The government had in 1868 entered into a treaty with the tribes of the Sioux Indians, whereby it was stipulated, among other things, that, if a bad man among the Indians should commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States, and at peace therewith, the tribe should surrender the wrongdoer to be tried and punished according to the laws of the United States; and in 1877, in pursuance of a subsequent agreement with such Indians, it was enacted that the provisions of said treaty of 1868, except as modified, should continue in full force, and that congress, by appropriate legislation, should secure to them an orderly government; that they should be subject to the laws of the United States, and each Indian should be protected in his rights, property, and life; and it was urged that the treaty stipulations and the act of congress had repealed by implication the clause of section 2146, excepting from the jurisdiction of the United States crimes committed by one Indian against another, but the court was of the opinion that such was not the intendment of either the treaty or of the act of congress, and therefore refused to entertain jurisdiction of the offense, because it was a matter that had been left to be dealt with by the Indians themselves. As touching this early policy of the government, Mr. Justice Matthews, in delivering the opinion of the court, says: "If the question has been mooted heretofore in any courts of the United States, the jurisdiction has never before been practically asserted as in the present instance. The provisions now contained in sections 2145 and 2146 of the Revised Statutes of the United States were first enacted in section 25 of the Indian...