United States v. Bob Celestine

Decision Date13 December 1909
Docket NumberNo. 235,235
Citation215 U.S. 278,30 S.Ct. 93,54 L.Ed. 195
PartiesUNITED STATES, Plff. in Err., v. BOB CELESTINE
CourtU.S. Supreme Court

Assistant Attorney General Harr for plaintiff in error.

No counsel appeared for defendant in error.

Statement by Mr. Justice Brewer:

At the May term, 1908, of the circuit court of the United States for the western district of Washington an indictment was found against the defendant, the first count of which reads:

'That one Bob Celestine, an Indian, on the 30th day of August, in the year of our Lord 1906, within the limits of the Tulalip Indian Reservation, within the boundaries of the state of Washington, and within said western district of Washington, northern division, did, with force and arms, make an assault upon one Mary Chealco, an Indian woman, with an ax, which the said Bob Celestine then and there held in his hands, and did then and there feloniously, wilfully, knowingly, and with malice aforethought, strike, beat, and mortally wound said Mary Chealco with said ax upon the head of the said Mary Chealco, with intent to kill and murder her, the said Mary Chealco, giving to her, the said Mary Chealco, a mortal wound upon the head, from which mortal wound said Mary Chealco then and there languished and died, within said Tulalip Indian Reservation, in said western district of Washington.'

The second count is in similar terms, but charges in addition that the Tulalip Indian Reservation, where the offense was committed, is 'a place under the exclusive jurisdiction of the United States.'

By a special plea the defendant challenged the jurisdiction of the circuit court, alleging that at the time of the offense there had been allotted to him as the head of a family certain lands situate on the Tulalip Indian Reservation, within the limits of the state (then territory) of Washington, under the provisions of the treaty of January 22, 1855 (12 Stat. at L. 927), and in accordance with an executive order of December 23, 1873, and that a patent therefor was issued and delivered to him on May 19, 1885; that he was then a member of the Tulalip tribe of Indians; that ever since that date he 'has been and still is a citizen of the United States, and therefore subject to the laws of the territory and state of Washington;' that he 'was born within the territorial limits of the United States and has always resided within such limits,' and that therefore he was entitled to 'all the rights, privileges, and immunities of said citizens of the United States.'

This plea also alleged that the murdered woman was a citizen of the United States and the widow of one Chealco Peter, who, like the defendant, had received an allotment of land within the Tulalip Reservation, and a patent thereof similar to that of defendant; that she became entitled to her husband's allotment upon his death, and that the place of the commission of the offense was upon the very land allotted to said Chealco Peter, and without the jurisdiction of the court.

A demurrer by the government to the plea was overruled and judgment entered sustaining the plea.

A writ of error to this court was then sued out by the United States under authority of the act of March 2, 1907 (34 Stat. at L. 1246, chap. 2564, U. S. Comp. Stat. Supp. 1907, p. 209).

[Argument of Counsel from pages 280-283 intentionally omitted] Mr. Justice Brewer delivered the opinion of the court:

The fourth paragraph of the act of March 2, 1907, supra, authorizes a review of a 'decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.' The defendant in this case had not been put upon trial, therefore he had not been in jeopardy. The decision of the circuit court sustained the special plea in bar. This fourth paragraph differs from the two preceding, in that the review authorized by them is limited to cases in which 'the decision or judgment is based upon the invalidity or construction of the statute upon which the indictment is founded,' while no such limitation appears in this paragraph. The full significance of this difference need not now be determined, but clearly the fourth paragraph gives to this court a right to review the precise question decided by a trial court in sustaining a special plea in bar, although that decision may involve the application rather than the invalidity or construction, strictly speaking, of the statute upon which the indictment was founded.

The general provision of the statutes in reference to punishment of the crime of murder committed within the exclusive jurisdiction of the United States is found in chap. 3, title 70, Rev. Stat. (U. S. Comp. Stat. 1901, p. 3625), as amended by the act of January 15, 1897 (29 Stat. at L. 487, chap. 29, U. S. Comp. Stat. 1901, p. 3620).

Section 9 of the act of March 3, 1885 (23 Stat. at L. 385, chap. 341), provides for the punishment of certain crimes by Indians, 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 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.'

By this section, Indians committing against other Indians on a reservation in a state any of the crimes named are subject to Federal laws and tried in Federal courts.

That the offense was committed within the limits of the Tulalip Indian Reservation is distinctly charged in the indictment, and not challenged in the plea in bar. Although the defendant had received a patent for the land within that reservation, and although the murdered woman was the owner of another tract within such limits, also patented, both tracts remained within the reservation until Congress excluded them therefrom.

By the second clause of § 3, art. 4, of the Constitution, to Congress, and to it alone, is given 'power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' From an early time in the history of the government it has exercised this power, and has also been legislating concerning Indians occupying such territory. Without noticing prior acts, it is sufficient to refer to that of June 30, 1834 (4 Stat. at L. 729, chap. 161), the 1st section of which reads:

'Be it enacted, . . . that all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana, or the territory of Arkansas, and also that part of the United States east of the Mississippi river, and not within any state, to which the Indian title has not been extinguished, for the purposes of this act be taken and deemed to be the Indian country.'

Construing this section, it was decided, in Bates v. Clark, 95 U. S. 204, 209, 24 L. ed. 471, 473, that all the country described in the act as 'Indian country' remains such 'so long as the Indians retain their original title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provision by treaty or by act of Congress.' The section was repealed by Rev. Stat. § 5596 (U. S. Comp. Stat. 1901, p. 3750). Still, it was held that it might be referred to for the purpose of determining what was meant by the term 'Indian country' when found in sections of the Revised Statutes which were re-enactments of other sections of prior legislation. Ex parte Crow Dog (Ex parte Kang-Gi-Shun-Ca) 109 U. S. 556, 27 L. ed. 1030, 3 Sup. Ct. Rep. 396; United States v. Le Bris, 121 U. S. 278, 30 L. ed. 946, 7 Sup. Ct. Rep. 894. But the word 'reservation' has a different meaning, for while the body of land described in the section quoted as 'Indian country' was a reservation, yet a reservation is not necessarily 'Indian country.' The word is used in the land law to describe any body of land, large or small, which Congress has reserved from sale for any purpose. It may be a military reservation, or an Indian reservation, or, indeed, one for any purpose for which Congress has authority to provide, and, when Congress has once established a reservation, all tracts included within it remain a part of the reservation until separated therefrom by Congress. By the treaty of January 22, 1855 (12 Stat. at L. 927), known as the treaty of Point Elliott, it was provided that certain lands should be reserved for the 'use and occupation of the Indians.' And, further, article 3, 'that the President may establish the central agency and general reservation at such other point as he may deem for the benefit of the Indians.' On December 23, 1873, the President established the boundaries of the Tulalip Reservation in the territory of Washington. The tract subsequently allotted to defendant, as well as that upon which the crime was committed, are within the boundaries prescribed in this executive order. Article 7 of the treaty of Point Elliott authorizes the President to set apart separate tracts within the reservation to such individuals or families as were willing to avail themselves of the privilege and locate on the same as a permanent home, on the same terms and subject to the same regulations as are provided in the sixth article of the treaty with the Omahas, so far as the same may be applicable. The treaty with the Omahas, March 16, 1854 (10 Stat. at L. 1043), provides for the location by an individual or family on land within the Omaha Reservation, its assignment...

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