Swift v. Leach
| Decision Date | 26 May 1920 |
| Citation | 178 N.W. 437,45 N.D. 437 |
| Court | North Dakota Supreme Court |
Election contest, upon the removal of a county seat, in Sioux County, Crawford, J.
From a judgment of dismissal, the plaintiff has appealed.
Affirmed.
Judgment affirmed, with costs.
Sullivan & Sullivan, for appellant.
The Indians are not a portion of the political community called the people of the United States; and, although not foreign nations or persons, they always have been regarded and treated as distinct and independent political communities. Worcester v. Georgia, 5 Pet. 515; Cherokee Nation v Georgia, 5 Pet. 1; United States v. Osborne, 2 F 58; Elk v. Wilkins, 112 U.S. 94, 28 L.Ed. 643, 5 S.Ct. 41, 45.
As to whether the evidence shows they have severed tribal relations or not. Bem-Wam-Bin-Ness v. Eshelbey, 87 Minn. 108, 91 N.W. 291.
The Indian cannot by his own act, without the consent of the government of the United States, sever his tribal relation, or release himself from the state of pupilage or the guardianship of the United States. Elk v. Wilkins, 28 L.Ed. 647, 648.
In the absence of evidence that illegal votes cast at an election were given for any particular candidate, it is not error to apportion them among the several candidates and deduct pro rata from their respective scores. 15 Cyc. 372; Ellis v. May, 25 L.R.A. 331; Gibbons v. Shepard, 2 Brewst. (Pa.) 138; Finley v. Walls, 4 Cong. Elect. Cas. 367; Platte v. Goode, 4 Cong. Elect. Cas. 650.
Miller, Zuger, & Tillotson and Edward S. Johnson, for respondents.
The party holding the affirmative is required to prove the facts, and all the facts, necessary to make out a case. Briggs v. Christ, 28 S.D. 562, 134 N.W. 323.
To a state belongs exclusively the power to regulate suffrage and to determine who shall or who shall not be a voter. 10 Am. & Eng. Enc. Law, 2d ed. 570; Anderson v. Baker, 23 Md. 623; Huber v. Riley, 53 Pa. 112.
The 15th Amendment to the United States Constitution does not apply to Indians. 10 Am. & Eng. Enc. Law, 2d ed. 591; Helgers v. Quinney (Wis.) 8 N.W. 17.
In the relation of the government to the Indians, there is nothing affecting his right to vote in this state, or any other rights which he may possess under state laws. Marchie Tiger v. Western Invest. Co. 221 U.S. 286, 55 L.Ed. 738; Comp. Laws 1913, § 4349.
The civil and political status of the Indians does not condition the government to protect their property or to instruct them. Their admission to citizenship does not deprive the United States of its power, nor relieve it of its duty, to control their property, to protect their rights. United States v. Thurston County (Neb.) 74 C. C. A. 425, 143 F. 289; Richert v. Roberts County, 188 U.S. 432, 47 L.Ed. 532; United States v. Osborne, 6 Sawy. 406, 2 F. 58; United States v. Rickert, 188 U.S. 432, 27 L.Ed. 532; United States v. Celestine, 215 U.S. 278, 54 L.Ed. 195; Hallowell v. United States, 221 U.S. 317, 55 L.Ed. 750; United States v. Sandoval, 231 U.S. 48, 58 L.Ed. 107; United States v. Nice, 241 U.S. 591, 60 L.Ed. 1192; Williams v. Stenmetz (Okla.) 82 P. 986; Eells v. Ross, 64 F. 417. See also Frazee v. Spokane County (Wash.) 69 P. 783.
Statement.
--This is an election contest involving the removal of the county seat of Sioux county. Fort Yates has been the county seat since the organization of the county. At the general election held on November 5, 1918, there was submitted to the electors the proposition of removing the county seat of Selfridge, a town located some 18 miles west of Fort Yates, on the Milwaukee railway. As officially canvassed 479 votes (330 men, 149 women) were cast for Selfridge, and 393 votes (263 men, 130 women) for Fort Yates. At such election 273 so-termed trust patent Indians voted upon this proposition, in four of the eleven precincts in the county. The Standing Rock Indian reservation includes practically all of such county and extends also into Carson county, South Dakota.
At Fort Yates, the Indian reserve, comprising six or seven quarter sections of land, has been reserved for the Federal Indian agency and government school. Here, the superintendent of the Indian agency, for many years, has resided, and now resides. His jurisdiction now extends over the entire Indian reservation, excepting the homestead lands. This reservation has been open for settlement and allotment, under Federal authority, from time to time, the last proclamation of the President being in March, 1915, when allotments were closed.
Homesteaders have settled all through the reservation. Through land sales and fee patent sales, the white men have moved in here and there. The Indians who hold their allotted land, either under fee patent titles or so-termed trust patent titles from the Federal government, may be found farming side by side with white persons. There are no Indians on the reservation in this county, now living in communities and farming in common. The Indians do not live in Indian villages. As stated by the superintendent of the Indian agency, the Indians live just the same as white people; their principal occupation is farming, and stock raising. They are scattered throughout the county, farming individually.
The trust-patent Indians, who voted at such election, are those who have received so-termed trust patents, as Indians of the Sioux tribe in this reservation, pursuant to the Federal Burke Act of May 8, 1906. 34 Stat. at L. 182, chap. 2348, Comp. Stat. § 3951, 3 Fed. Stat. Anno. 2d ed. 830. This act amended the Dawes Act of February 8, 1887. It provides for the allotment of land in severalty to an Indian and the issuance to him of a patent to be held in trust, for his use and benefit, for a period of twenty-five years, or such enlarged period as the President should direct. In part, it specifically provides:
"And every Indian born within the territorial limits of the United States to whom allotments shall have been made and who has received a patent in fee simple under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up within said limits his residence, separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property; Provided, That the Secretary of the Interior may, in his discretion, and he is hereby authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, encumbrance, or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent: Provided, further, that until the issuance of fee-simple patents all allottees to whom trust patents shall hereafter be issued shall be subject to the exclusive jurisdiction of the United States."
The cause was tried before the court, without a jury, in June, 1919. At the trial the present superintendent of the Indian reservation, as well as two former superintendents, testified. Other witnesses familiar with the conditions of life in Sioux county, the tribal relations, the civilization, and habits of life of the Indians, whose right to vote was questioned, likewise, testified.
From the testimony of the present superintendent, it appears that pursuant to the Federal policy of supervision, control, and protection over the Indian, this superintendent has general supervision over these Indians in Sioux county. He testified that every Federal regulation is made with the idea of giving to the Indian more individuality and to make him more independent. That the policy is to make the Indian absolutely self-supporting. That the idea of this supervision is to make it advisory rather than compulsory. He testifies that we are supposed to assist them in every possible way that we can, and encourage them to take up whatever vocation they wish.
There exists in this county an Indian court, established under Federal regulations, composed of two Indians and one white person. Trust-patent Indians are subject to its jurisdiction involving minor offenses and the settlement of disputes. These Indians, however, may and do resort to the state or Federal courts. He testifies that "most of the cases are now being taken into the state and Federal courts;" that they are gradually doing away with the Indian court; that formerly it had one term a month, now it has only two terms during a year, and involves mostly cases of domestic trouble, which are generally settled by advice. The county is also divided into farming districts, over each of which there is a farmer, a sort of better farming agent, under his supervision. These farmers direct methods of better farming for both fee-patent and trust-patent Indians. Three of these farmers in charge of such districts are Indians. These farmers supervise farming, stock raising, sanitation, and policing. In a manner they have jurisdiction over white people, if they trespass. He testifies that there is no apparent distinction between trust-patent and fee-patent Indians in their method of...
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