United States v. Kan-Gi-Shun-Ca

• Decision Date: 28 October 1882
• Citation: 3 Dak. 106,14 N.W. 437
• Parties: United States v. Kan-Gi-Shun-Ca, (in English, Crow Dog.)
• Court: South Dakota Supreme Court

14 N.W. 437

3 Dak. 106

United States

v.Kan-Gi-Shun-Ca, (in English, Crow Dog.)

Supreme Court of the Territory of Dakota.

Filed October 28, 1882.

Writ of error to the first judicial district court.A. J. Plowman, for defendant, plaintiff in error. Hugh J. Campbell, U. S. Atty., for the United States.

MOODY, J.

The defendant, an Indian, called in English Crow Dog, was convicted in the first district court of the crime of murder, and brings the record here by writ of error. The first and most important question which confronts us arises upon the objection of the defendant to the exercise by the district court of jurisdiction over him, and of the crime for which he has been convicted.

It appears from the transcript that the defendant and the person killed were Indians belonging to the Brule Sioux band of the Sioux nation of Indians; that the killing took place at their agency upon the Great Sioux Indian reservation, in the first judicial district of this territory, in August, 1881.

The act of congress (Rev. St. § 2145) extending the crimes act to the Indian country contains in section 2146 these exceptions: “It shall not extend to crimes committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where by treaty stipulation the exclusive jurisdiction over such offense is or may be secured to the Indian tribes respectively.” If this prosecution rested solely upon such general act of congress it would be apparent it could not be sustained. But it does not so rest. By the treaty made with this band of Indians, of which both the defendant and the deceased were members, proclaimed February 24, 1869, (15 St. 635,) it was expressly provided that “if bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States, and at peace therewith, the Indians herein named solemnly agree that they will, upon proof made to their agent and notice by him, deliver up the wrongdoer to the United States, to be tried and punished according to its laws.” This treaty has frequently been recognized by congress as of binding force, and so far as the portion quoted is concerned it has never been abrogated or repealed. On the contrary, by reference to article 8 of the agreement made with the same tribe of Indians, approved by act of congress of February 28, 1877, (19 St. 254,) it will be seen that its provisions are expressly continued in force, and a positive guaranty given these Indians of protection through the enforcement of the laws of the United States. And in such subsequent agreement a clear and plainly-expressed submission of the Indians to the jurisdiction of such laws is provided for. The language is this: “The provision of the said treaty of 1868,” (proclaimed February 24, 1869,) “except as herein modified, shall continue in full force. They (the said Indians) shall be subject to the laws of the United States, and such individual shall be protected in his rights of property, person, and life.”

The person for the killing of whom this defendant is convicted, Spotted Tail, signed the treaty of 1868 and the subsequent agreement. He was the principal chief of the Brule Sioux band, and while submitting himself and his people to the jurisdiction and laws of the United States, and covenanting that they should be tried and punished according to such laws for wrongs done by them to any person, including Indians, he at the same time secured the solemn guaranty and plighted faith of the government for such protection as the enforcement of its laws would afford. That this treaty and the agreement possess the force of law, and are equal in vigor and strength to an act of congress, will scarcely be questioned.

Chief Justice Marshall, in Foster v. Nielson, 2 Pet. 314, says: “A treaty is to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.”

Clearly, this treaty and agreement so operate. The laws of congress provide for the punishment of persons committing murder in the Indian country, and for the trial of offenders charged with such crime. The exception of Indians committing crimes against other Indians is general. This treaty and agreement takes these Indians out of such exception, and applies to them the general rule. Any other view would deny them the right guarantied by solemn treaty, and would make the covenant of the government a mockery. It is significant that the department of the interior, the department of the government having these very Indians in charge, after advising with the department of justice, and after a careful consideration of the question by the able heads of those departments, has instituted and directed this prosecution. While we fully recognize the ultimate responsibility of this court in determining the law upon this subject, this fact ought to have great consideration and weight. It plainly shows the construction put upon this treaty, and the agreement by the department of the government under whose auspices they were made.

Without further elaboration, we think it clear that the jurisdiction of the district court over the person of the defendant and the crime alleged against him should be sustained. The same remarks will apply to the offer of the defendant's counsel to prove that in some way not stated the defendant was punished by the tribe. If he is subject to be tried and punished according to the laws of the United States, then he is taken as clearly out of the second exception as the first.

The next question in importance relates to the competancy of a witness offered on behalf of the defendant upon the trial. An Indian woman named Pretty Camp was called as a witness by the defendant. It was proven, and is practically conceded, that she was the defendant's lawful wife. Upon the objection of the United States attorney she was excluded from testifying, and this is assigned as error. It is an undoubted rule of the common law that the wife is not a competent witness for her husband in such a case as the one at bar. The statute of the United States makes the party defendant in a criminal action a competent witness in his own behalf at his own volition, but makes no provision for the wife testifying. In the absence of a statute expressly allowing a wife to testify for her husband in a criminal action, she is not a competent witness for him. Neither the removal of the disability of interest nor the allowing of a defendant to testify in his own behalf in a criminal action makes the wife a competent witness. The removal of the disability of interest or allowing a prisoner to testify in no way weakens the reasons upon which the rule...