State v. Doxtater
| Decision Date | 23 September 1879 |
| Citation | 2 N.W. 439,47 Wis. 278 |
| Parties | THE STATE v. DOXTATER |
| Court | Wisconsin Supreme Court |
CERTIFIED on exceptions from the Circuit Court for Brown County.
The case is stated in the opinion.
Exception overruled and cause remanded.
The cause was submitted on the brief of John J. Tracy for the defendant, and that of the Attorney General for the state.
Defendant's counsel contended, that if the omission of the legislature to except the members of the Oneida nation, on its reservation from the operation of our criminal statutes, makes them liable to the penalties therein described, then the omission to except them from the operation of our civil laws must work the same result. Against this view of the authority of the state legislature and of the effect of the statutes, counsel argued substantially as follows: 1. In the treaty of December 2, 1794, the Oneidas are styled a "nation." In the treaty of 1784 with the "Six Nations," it is provided that the "Oneida Nation" shall be secured in the possession of the lands on which they are settled; the treaty of 1789 again confirms the "Oneida Nation" in the possession of its lands; and the treaty of Nov. 11 1794, confirms the "Oneida Nation" in possession of the lands held by it by virtue of treaties with the state of New York; and it cedes to the United States the right to make a wagon road through the Indian territory. 7 U.S. Stats. at Large, pp. 15, 33, 44, 47-8. Prior to 1825, the Oneida Indians had left the state of New York, and established themselves on territories including their present reservation, which had been ceded to them by the Menomonees. 7 U. S. Stats. at Large, p. 272; p. 274, art. VIII.; pp. 242-3, 550. By the treaty of February 8, 1831, the Menomonees ceded to the United States, for the use of the New York Indians, territory including that now held by the Oneidas. By that treaty the Menomonee nation claimed nearly all of Wisconsin and Michigan. 7 U.S. Stats. at Large, p. 345, par. 6. This treaty was modified by the U. S. Senate, and a new treaty was made October 27, 1832, ceding to the United States for the New York Indians, lands including the present Oneida reservation. 7 U.S. Stats., 405-7. On the last page cited, the preamble recites that George B. Porter, "the agent of the United States," after failing in one object, "endeavored to procure the assent of the said chiefs and head men of the Menomonee nation to the best practicable terms short of those proposed by the senate; " and that, "after much labor and pains, entreaty and persuasion," he obtained the consent of the Menomonees to certain terms. Following this treaty (p. 409) is a request from the New York Indians that the same may be ratified, because they believed that the terms proposed were the best that could be obtained from the Menomonees. In 1838, the present Oneida reservation was provided for; and it is declared that these lands are to be held as other Indian lands are held. 7 U. S. Stats. at Large, 556. The treaties with the Menomonees show how complete was the right which the United States recognized them as having in their lands. The act of congress establishing the territorial government of Wisconsin, contains a proviso, "that nothing in this act contained shall be construed to impair the rights of person or property now appertaining to any Indians within the said territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to impair the obligations of any treaty now existing between the United States and such Indians, or to impair or anywise to affect the authority of the United States to make any regulations respecting such Indians, their lands, property or other rights, which it would have been competent to the government to make if this act had never been passed." As to the treaties above cited, counsel contended that they recognize the Oneida tribe of Indians as an independent nation, whose territory the United States have no right to intrude upon, except as the right is expressly conceded by treaty; and that none of them concede to the general government any right to interfere with that nation in its management of its internal concerns according to its laws and customs. Counsel also cited The Cherokee Nation v. Georgia, 5 Pet., 1, and Worcester v. Georgia, 6 id., 515, and quoted at length from the prevailing opinions in those cases, as establishing the doctrine that an Indian nation, living on its own reservation, though within the bounds of a state, while not a "foreign state" so as to be entitled to sue in the courts of the United States, is yet a distinct political community, with the right of self-government, dependent on no other power in the management of its internal concerns, punishing offenses under its own laws, and possessed of exclusive authority within its own territorial boundaries. In support of the same view he also cited the language of KENT, J., in Goodell v. Jackson, 20 Johns., 693.
The Attorney General, as to the general authority of the state over all places within its territorial limits, cited the first section of the enabling act, the first section of the act admitting this state into the Union, and secs. 1, 4, ch. 1, R. S. He contended that the criminal jurisdiction of a state is coextensive with its legislative power, or in other words with its territory (U. S. v. Bevans, 3 Wheat., 386-7); and as to the general criminal jurisdiction of the circuit courts, he cited sec. 8, art. VII of the state constitution. He also contended that the title to the tracts of land in the reservation is in the United States (Treaty of 1827, art. III, 7 U.S. Stats. at Large, 304); and that they are expressly "subject to such regulations and alteration of tenure as congress and the president of the United States shall from time to time think proper to adopt." Treaty of 1831, art. I, 7 U.S. Stats. at Large, 342. After observing that the reservation in question lies near to the city of Green Bay, is from twelve to fifteen miles in length by from eight to ten miles in breadth, and is within Brown and Outagamie counties, and that the inhabitants of those two counties nearly surround it, and have daily intercourse with the Indians resident upon it, and that a railroad connecting distant parts of the state runs through the reservation, he cited, as to the jurisdiction of the state over crimes committed within such a reservation, U. S. v. Ward, McCahon, 199; U. S. v. Stahl, id., 206; Clay v. The State, 4 Kans., 49; U. S. v. Cisna, 1 McLean, 255; U. S. v. Bailey, id., 234; U. S. v. Sa-coo-da-cot, 1 Abb., U.S., 386; State v. Foreman, 8 Yerg., 256-318; Caldwell v. State, 1 Stew. & Port., 327; State v. Tassels, Dudley (Ga.), 229; State v. Ta-cha-na-tah, 64 N.C. 614. He also distinguished the case of Worcester v. Georgia, in which the statute of Georgia was in conflict with an act of congress.
The defendant was tried upon an information for adultery, in the circuit court for Brown county in this state, and found guilty by the verdict of the jury. The proof showed, and it was admitted upon the trial, that the adultery was committed at the house of the defendant and within the limits of the Oneida reservation; that the defendant was an Oneida Indian, and a member of the tribe of the Oneidas living on said reservation; and that the woman with whom he committed the adultery was a married woman, not an Indian or a member of the tribe.
After the conviction, the defendant moved to set aside the verdict, on the following grounds: "That the said alleged crime, as charged in the information, was committed within the territorial limits of the said Indian reservation, and out of and beyond the jurisdiction of said court, and not within the county of Brown or elsewhere within the jurisdiction of said court; that the defendant, at the time of his arrest for said alleged crime, was at his house upon the Oneida Indian reservation, and not within either the criminal or civil jurisdiction of said court, or of the state of Wisconsin; that the state ought not to maintain said action against him, because of his being an Indian and a member of the Oneida nation of Indians; that various treaties have from time to time been made and entered into by the government of the United States with the Chippewa, Winnebago, Menomonee, and Oneida nations of Indians, whereby the Oneida reservation of lands was set apart as a home for said Oneida nation of Indians, and said reservation has been held by them as such reservation ever since the year 1825, which treaties have been duly ratified by the senate of the United States; and that, by the terms of said treaties and the laws of the United States, the government of the United States granted to them their present territorial reservation, acknowledging said Oneida nation to be a sovereign nation, and, by virtue of such treaties and laws of the United States, the Oneida nation are authorized and empowered to govern themselves according to their own usages and customs; that said Indians are under the protection of the United States, and are free from any right of legislative interference by the state; that by the said treaties and laws of the United States, passed for the protecting and governing of the various Indian tribes on the frontiers, the Oneida Indian reservation of land has been set off and guarantied to them for a home, all of which treaties and laws are existing treaties and laws at this day in full force; and that the treaties and laws of the United States contemplate that the Indian territory is completely separate from that of the states, over which Indian territory, and the Indians therein, the state law has no force."
Other grounds were alleged why the verdict should be set...
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