State v. Howard

• Decision Date: 28 November 1903
• Citation: 33 Wash. 250,74 P. 382
• Court: Washington Supreme Court
• Parties: STATE v. HOWARD.

74 P. 382

33 Wash. 250

STATE v. HOWARD.

Supreme Court of Washington

November 28, 1903

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Tommy Santiago Howard was convicted of manslaughter, and appeals. Affirmed.

F. R Baker and Leo & Cass, for appellant.

Fremont Campbell, Charles O. Bates, and Walter M Harvey, for the state.

HADLEY J.

Appellant was charged with the crime of murder in the first degree. The jury found him guilty of manslaughter, and the court sentenced him to serve a term of 20 years' imprisonment in the penitentiary. He has appealed from the judgment.

It is first necessary that we shall inquire into the question of jurisdiction. One of the errors assigned is that the trial court had no jurisdiction to try the cause, or to pronounce sentence therein, for the following reasons, to wit: That the appellant is an Indian, and the deceased was an Indian woman; that the alleged crime was committed within the limits of an Indian reservation, and within the boundaries of the state of Washington; that there is no proof that the appellant had severed his tribal relations; and that the federal courts have, therefore, exclusive jurisdiction of the case. This question does not appear to have been raised in the court below, and is urged in this court for the first time. The question presented does not arise out of mere irregularities in procedure, but goes directly to the fundamental power of the court to assume jurisdiction of the cause in any event. Such being the case, we think the appellant can urge the point for the first time in this court. The information charging the crime discloses none of the facts upon which appellant's claim of want of jurisdiction is based. It is an ordinary information charging that the crime was committed in Pierce county, Wash. It does not disclose that either appellant or the deceased was an Indian, or that the crime was committed within the boundaries of an Indian reservation. The evidence, however, does show that they were Indians; and, while it does not appear that any special effort was made to show that the crime was committed within the limits of an Indian reservation, yet it seems reasonably clear from the evidence that it was committed within the boundaries of the Puyallup Indian Reservation. It will be remembered that one of the points urged under this assignment of error is that the proof does not show that appellant had severed his tribal relations. Appellant testified that he does not belong to the tribe of Puyallup Indians; that his father did not belong to that tribe, but was a Victorian, and that his mother belonged to the Nesquallies; that for some time prior to 1893 he resided in the state of Oregon, and since the last named date his home has been, and now is, at Traceton, Kitsap county, Wash., where he lives with his mother, sister, and brother-in-law; that just prior to the time of the alleged crime he was working for Gentry Bros.' show. It thus appears from his own testimony that he is not by birth a member of the Puyallup tribe of Indians, and it is not shown that he has in any other manner ever become allied with that tribe. He says he attended the Indian school, and, while it is not so specified, yet presumably it was the Puyallup Indian School; but he does not state that he ever even lived within the limits of the Puyallup Reservation. We think it follows from his own testimony that appellant has never borne any tribal relation with the Puyallup Indians and, as far as the evidence discloses, he has never been in any way allied by association with the ancestral tribes of his father and mother. For at least a number of years he has lived with members of his own family among white people. and away from any Indian tribe or reservation. We therefore believe that his contention upon this point cannot prevail by reason of any sustained tribal relation.

Our next inquiry must be whether the mere fact that appellant belongs to the Indian race, together with the further fact that the alleged crime was committed within the boundaries of an Indian reservation, lodges jurisdiction in the courts of the United States, and prevents the state courts from trying appellant for the crime charged. Appellant claims the privilege to be tried by the courts of the United States under the following federal statute: '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.' Act Cong. March 3, 1885, c. 341, § 9, 23 Stat. 385. It will be observed that, under the above statute, when one of the crimes enumerated therein has been committed within a territory of the United States, and whether within or without the boundaries of an Indian reservation, the offender shall be tried by the territorial court, but if the crime is committed within the boundaries of any state, and within the limits of an Indian reservation, the case shall be tried by the federal courts. It will be further observed that the general term 'Indians' is used in the statute, and there are no qualifying words to indicate whether the statute relates alone to Indians sustaining tribal relations, or whether it relates to all Indians. Appellant contends that the statute broadly and unqualifiedly includes all Indians. It must be conceded that the contention seems forceful when the section quoted is read and considered alone, without reference to the general subject-matter of the act of which it is a part. An examination of the act shows that its purpose was to make certain appropriations for the benefit of the Indian department, and to fulfill treaty stipulations with various Indian tribes. After making appropriations for the department, the act proceeds to authorize the fulfillment of treaty stipulations with more than 50 distinct and designated tribes and bands of Indians. Provision is then made for the investigation of Indian depredation claims, for schools, and for other miscellaneous matters connected with the Indian service. The last section of the act is the one quoted above. The other sections clearly relate to Indians sustaining tribal relations, and to the machinery of the government for dealing with such. It therefore seems reasonable that the quoted section, being the concluding one of the act, was intended to refer to such Indians only as were under consideration in other portions of the act, viz., tribal Indians. This view is strengthened by the language of the opinion in United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228. Appellant relies largely upon that case. One of the questions certified to be answered in the case was whether the provisions of the section quoted above are constitutional, and the court held that they are valid and constitutional. The other question certified, which was considered by the court, was the following: 'Whether the courts of the United States have jurisdiction or authority to try and punish an Indian belonging to an Indian tribe for committing the crime of murder upon another Indian belonging to the same Indian tribe, both sustaining the usual tribal relations; said crime having been committed upon an Indian reservation made and set apart for the use of the Indian tribe to which said Indians both belong?' It will thus be seen that the question squarely presented the case of Indians sustaining tribal relations, and of a crime committed by such an Indian upon the person of another, and within the limits of a reservation. The opinion of the court, at page 383, 118 U.S., page 1113, 6 Sup. Ct., 30 L.Ed. 228, contains the following: 'It will be seen at once that the nature of the offense [murder] is one which in almost all cases of its commission is punishable by the laws of the states, and within the jurisdiction of their courts. The distinction is claimed to be that the offense under the statute is committed by an Indian, that it is committed on a reservation set apart within the state for residence of the tribe of Indians by the United States, and the fair inference is that the offending Indian shall belong to that or some other tribe. It does not interfere with the process of the state courts within the reservation, nor with the...