United States v. Partello

• Citation: 48 F. 670
• Parties: UNITED STATES v. PARTELLO.
• Decision Date: 23 November 1891
• Court: U.S. District Court — District of Montana

48 F. 670

UNITED STATES v. PARTELLO.

United States Circuit Court, D. Montana.

November 23, 1891

Elbert D. Weed, U.S. Atty.

Rufus C. Garland, for defendant.

KNOWLES J.

In this case the defendant, Fred Partello, is charged in an indictment found by a grand jury, impaneled in this court with the crime of rape, committed upon a white woman within the limits of the Crow Indian reservation, state of Montana. Defendant interposed a plea to the indictment and specified as a ground therefor that this court had no jurisdiction of the offense charged, by reason of the fact that the defendant is a white man, and the person on whom the offense was committed is a white woman. The United States interposed a demurrer to this plea. Defendant urges that as it is admitted that defendant is a white man, and the woman upon whom the offense was committed, or it is charged was committed, is a white woman, the offense was cognizable, if at all, in the state courts of Montana. A portion of section 5339 of the Revised Statutes of the United States provides:

'Every person who commits murder-- First, within any fort, arsenal dock-yard, magazine, or in any other place or district of country under the exclusive jurisdiction of the United States; * * * second, or upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular state; third or who upon any such waters maliciously strikes, stabs, wounds, poisons, or shoots at any person, of which striking, stabbing, wounding, poisoning, or shooting such other person dies, either on land or at sea, within or without the United States, shall suffer death.'

Section 5345 of said Statutes provides: 'Every person who within any of the places, or upon any of the waters, specified in section fifty-three hundred and thirty-nine, commits the crime of rape shall suffer death.'

These two provisions of the statute, construed together, make the crime of rape committed in a place within the exclusive jurisdiction of the United States, an offense against its laws.

Section 2145 of said Revised Statutes provides:

'Except as to crimes the punishment of which is expressly provided for in this title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.'

The crime of rape is not provided for in that title, and it is a crime for which the general laws of the United States provide a punishment as I have shown, when committed in a place within the exclusive jurisdiction of the United States, and hence must be an offense against such laws when committed in the Indian country. The next point, then, for determination is what is Indian country? In the case of Bates v. Clark, 95 U.S. 204, the supreme court held:

'The simple criterion is that, as to all lands thus described, it was Indian country whenever the Indian title had not been extinguished, and it continued to be Indian country so long as the Indians had title to it, and no longer. As soon as they parted with the title, it ceased to be Indian country, without any further act of congress, unless by the treaty by which the Indians parted with their title, or by some act of congress, a different rule was made applicable in the case.'

This rule as to what constituted Indian country was affirmed in the case of Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396; and of the above definition the supreme court said:

'In our opinion, that definition now applies to all the country to which the Indian title has not been extinguished, within the limits of the United States, even when not within a reservation expressly set apart for the exclusive occupancy of Indians, although much of it has been acquired since the passage of the act of 1834, and notwithstanding the formal definition in that act has been dropped from the statutes, excluding, however, any territory embraced within the exterior geographical limits of a state, not excepted from its jurisdiction by treaty or by statute, at the time of its admission into the Union, but saving even in respect to territory not thus excepted and actually in the exclusive occupancy of Indians, the authority of congress over it under the constitutional power to regulate commerce with the Indian tribes, and under any treaty made in pursuance of it.'

In the case of U.S. v. Le Bris, 121 U.S. 278, 7 S.Ct. 894 the supreme court held that 'the reservation of the Red Lake and Pembina Indians in Polk county, Minn., is Indian country. ' In the case of U.S. v. Martin, 14 F. 817, Judge DEADY held that 'Indian reservations' were 'Indian country.' Many other decisions from the United States circuit court might be cited to the same effect.

Considering the Crow Indian reservation, which will hereafter be described, and the above definitions of 'Indian country,' and there can be no doubt but it belongs to that character of country denominated 'Indian,' unless the admission of Montana as a state in the Union changed its character in this respect. The point is presented, then, did this admission of Montana as a state in the Union cause the Crow Indian reservation to cease being that character of a region classed as Indian country? The able counsel for defendant maintains that it did, and that it came under the jurisdiction of the state, at least to the extent of allowing it to punish offenses committed by one white man against another white man. In other words, whatever jurisdiction the United States had over this Indian reservation before Montana was admitted into the Union was abrogated and repealed by the act of admission, and the state of Montana acquired full authority over the same, and the right to legislate for the inhabitants thereof, except as to those cases pointed out for national legislation in the constitution of the United States, or which are implied from the constitutional right of congress to regulate commerce among the Indian tribes; hence no longer could congress exercise the combined power of a state and national government over said reservation, but only the powers which pertained to a national government. The point here presented is, it appears to me, one of considerable difficulty and importance, and to some extent the court is left without adequate judicial determinations for the decision of the same.

Let us consider whether or not there could be any limit upon the authority of the state government over this reservation by any proceeding on its part coupled with reservations in the act admitting Montana into the Union as a state.

In the case of U.S. v. McBratney, 104 U.S. 621, the supreme court, while holding that the act admitting Colorado into the Union so modified the term 'Indian country' that the United States had no jurisdiction of the crime of murder committed by one white man upon another on the Ute reservation used this language as to the admission act of Colorado: 'And the act contains no exception of the Ute reservation, or of jurisdiction over it;' clearly intimating that it might have made a difference with the rule established in that case, if it had. In the case of Ex parte Crow Dog, supra, it will be observed that this language was used in defining Indian country: 'Excluding, however, any territory embraced within the exterior geographical limits of a state not excepted from its jurisdiction by treaty, or by statute, at the time of its admission into the Union. ' Here it is intimated that, if by a statute, at the time of admission of a state in the Union, any portion of the same was excluded thereby from the jurisdiction of the state, such portion of said state would remain Indian country. It would seem, also, from that decision, that, although a portion of a state was not excepted from the jurisdiction thereof by treaty or statute, yet, if occupied by Indians, congress might have jurisdiction over the same under the constitutional power to regulate commerce with the Indian tribes, and under any treaty made in pursuance of it. Under the last power, it would have to appear that the offense charged in some way interfered with commerce with the Indian tribes. But the right to legislate for Indian country was not so limited. In the case of U.S. v. Ward, 1 Woolw. 17, Justice MILLER, while holding that the act admitting Kansas into the Union repealed the jurisdiction of the United States over any portion of the state which had before that time been classed as Indian country within its borders, which was not excepted from the limits of the state by treaty with the Indians and some provision in the admission act, says:

'And the converse of this proposition is inferable; that is, that congress intended to and did concede to the new state, and it acquired and holds irrevocably, except as it sees fit to surrender the same, full right and authority to legislate to enforce her laws and to exercise plenary jurisdiction over all such parts of her territory as were not covered by such treaties.'

Here it is intimated that, if Kansas had seen fit to surrender its jurisdiction over any portion of her territory to the United States, it...