United States v. Hamilton

• Citation: 233 F. 685
• Parties: UNITED STATES ex rel. LYNN v. HAMILTON et al.
• Decision Date: 04 November 1915
• Court: U.S. District Court — Western District of New York

233 F. 685

UNITED STATES ex rel. LYNN v. HAMILTON et al.

United States District Court, W.D. New York.

November 4, 1915

Habeas corpus to inquire into the legality of the arrest and imprisonment of Wilford Kennedy and Nelson Hare, charged with violation of the Conservation Law of the state of New York. Upon the hearing the relator appeared by George P. Decker Esq., and the respondents by A. F. Jenks, Deputy Attorney General. After hearing oral arguments, the court held the case to enable counsel to prepare and file with the court written briefs on the law questions involved. The Attorney General, having reached the conclusion that the prisoners should be discharged, has prepared the following memorandum to be filed with the other papers herein:

General Statement.

Wilford Kennedy and Nelson Hare are Indians by blood and members of the Seneca Nation, residing on the Cattaraugus reservation located in the counties of Erie and Cattaraugus in the state of New York. These Indians were arrested April 21, 1915, by Leon W. Paxon and Albert Stadelmeir, state game protectors while fishing with a net in Cattaraugus creek and within the boundaries of the Cattaraugus reservation, and were charged with fishing with a net or seine without a license, and in violation of section 176 of the Conservation Law of the state of New York (Laws 1911, c. 647, as amended by Laws 1913, c 508). While said Indians were being arraigned before Chief Justice William Brennan in the City Court of Buffalo, a writ of habeas corpus was sued out at the instance of the United States government to test the legality of the arrest and imprisonment. The facts, as above outlined are undisputed.

The precise question is whether the Conservation Law of the state of New York extends to Indians maintaining their tribal relations and residing upon an Indian reservation within the limits of the state. The status of Indian tribes and their relation to the federal and state governments have frequently been subjects of judicial investigation. It is necessary to examine somewhat in detail the early history of these tribes and the dealings of the general and state governments with them.

At the time of the formation of the federal government several of the Indian tribes found here were powerful and warlike, and it was found expedient to treat them as possessing some of the attributes of sovereignty, and to deal with them as nations by entering into treaties with them. Later treaties with the Indian tribes were superseded by federal legislation, by which the remnants of the tribes were subjected to the general government and located upon Indian reservations.

It has been the policy of the general government to guarantee to the Indian tribes control over their internal and social affairs including jurisdiction, in certain cases, to punish crimes when committed upon the reservations. This policy was manifested by Congress in the enactment of section 2146 of the Revised Statutes (Comp. St. 1913, Sec. 4149); and for the purpose of their protection, and to allow them to pursue their accustomed life unmolested, Congress, under its constitutional power to regulate commerce with the Indian tribes, passed appropriate legislation forbidding general intercourse between them and the whites.

I. The attitude of certain states.

Several of the states, however, did not concede that the power granted to the federal government to make treaties and to regulate commerce with the Indian tribes deprived them of jurisdiction over them when residing upon reservations within their borders, and therefore sought by statute to extend their laws over them. Thus in State v. Tassels, Dud. 239, a Georgia case, it was held that Indians were not constitutional objects of the treaty-making power of the United States, but were wards of the state within whose boundaries they were domiciled. In State v. Ta-cha-na-tah, 64 N.C. 614, it was held that the criminal laws of North Carolina extended over the Indian tribes. A similar doctrine was laid down by the Supreme Court of Wisconsin. State v. Doxtater, 47 Wis. 278, 2 N.W. 439; State v. Harris, 47 Wis. 298, 2 N.W. 543. And in New York it was held by the County Court of Cattaraugus County that Indians residing upon reservations within the state were subject to the Forest, Fish and Game Law of the state. People v. Pierce, 18 Misc.Rep. 83, 41 N.Y.Supp. 858.

II. The federal government has always claimed guardianship and control over the Indian tribes.

It clearly appears from the federal decisions that the Indian tribes, while maintaining their tribal organizations and residing on reservations set apart for them by, or with the consent of, the general government, have always been regarded as wards of the nation, and not subject to state laws, even when their reservations are located within the borders of a state.

One of the first cases in which the status of Indian tribes was considered by the Supreme Court of the United States is Cherokee Nation v. State of Georgia, 5 Pet. 1, 8 L.Ed. 25. This was a case where the Cherokee Nation moved for an injunction to prevent the enforcement of certain acts of the Legislature of the state of Georgia in the territory of the Cherokee Nation. This tribe claimed the right to proceed in the Supreme Court of the United States as a foreign state against the state of Georgia. The injunction was denied. The court said: 'The condition of the Indians in relation to the United States is, perhaps, unlike that of any two other people in existence. * * * Though the Indians are acknowledged to have an unquestionable, and heretofore unquestioned, right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government, yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession, when their right of possession ceases. Meanwhile, they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection, rely upon its kindness and its power, appeal to it for relief to their wants, and address the President as their great father.'

And so in the case of Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483, where the plaintiff had been convicted of the offense of residing in the Cherokee Nation without a license, contrary to a statute of the state of Georgia. The United States Supreme Court set aside the conviction. Chief Justice Marshall in a most able and exhaustive opinion said: 'The Cherokee Nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force. * * * The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the government of the United States.'

Later the states of New York and Kansas passed statutes taxing the lands of Indians within their borders, which statutes were upheld by the courts of those respective states. These decisions were both reversed by the United States Supreme Court. In the case of The Kansas Indians, 5 Wall. 755, 18 L.Ed. 667, the court said: 'If the tribal organization of the Shawnees is preserved intact, and recognized by the political department of the government as existing, then they are a 'people distinct from others,' capable of making treaties, separated from the jurisdiction of Kansas, and to be governed exclusively by the government of the Union. If under the control of Congress, from necessity there can be no divided authority. If they have outlived many things, they have not outlived the protection afforded by the Constitution, treaties, and laws of Congress. It may be that they cannot exist much longer as a distinct people in the presence of the civilization of Kansas, 'but until they are clothed with the rights and bound to all the duties of citizens' they enjoy the privilege of total immunity from state taxation.'

The case of The New York Indians, 5 Wall. 761, 18 L.Ed. 708, was decided at the same time.

III. The power of Congress to govern Indian tribes by legislation, and thereby to abrogate or supersede Indian treaties has been upheld by the Supreme Court.

This power was first exercised in 1871. By an act of Congress of March 3d of that year section 2079 was added to the Revised Statutes (Comp. St. 1913, Sec. 4034), as follows: 'No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty. ' Since 1871 Congress has governed the Indian tribes by direct legislation.

For many years Indian tribes residing on reservations were permitted to have jurisdiction over their internal and social affairs, and were not in this respect interfered with by the federal government. The policy of the government in this respect has been uniform. Later, however, it appeared to Congress that the policy of allowing the tribes to deal with their criminals according to their local customs was not conducive to the best interest of the tribes themselves or the white population surrounding them. Crimes of a more serious nature, committed by one tribal Indian against another, were not dealt with so as to meet the seriousness of the situation.

The necessity for some action on the part of the federal government was forcibly brought to its attention in the case of Ex parte Crow Dog, 109 U.S. 556, 3 Sup.Ct. 396, 27 L.Ed....