Sec. 2144. [The laws defining, etc., forgery and depredations on mails, extended to Indian country.] The general laws of the United States defining and prescribing punishments for forgery and for depredations upon the mails, shall extend to the Indian country. [R. S.] Act of March 3, 1855, ch. 204, 10 Stat. L. 700. As to the offenses of forgery and of depre dations upon the mails, see respectively the titles COUNTERFEITING AND FORGING, vol. 2, p. 297; POSTAL SERVICE, Sec. 2145. [General laws as to punishment of crimes extended to Indian country.] 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. [R. S.] Act of June 30, 1834, ch. 161, 4 Stat. L. 733; Act of March 27, 1854, ch. 26, 10 Stat. L. 270. See R. S. sec. 2146, infra, and the several provisions set forth immediately after it. "This title," to which the section refers, is R. S. title XXVIII. Indians," which comprises sections 2039-2157, inclusive. Arkansas criminal law supplants this section, in part, as to the Indian Territory, by the provisions of section 33 of the Act of May 2, 1890, ch. 182, set forth infra, p. 403. Offenses by white man against Indian and vice versa. The United States courts have jurisdiction of crimes committed upon reservations within their districts by a white man upon the person of an Indian, and vice versa, provided the crime is defined by a law of the United States directly applicable to the Indian country, or made so by R. S. secs. 2145, 2146. U. S. r. Bridleman, (1881) 7 Fed. Rep. 894. See also Goodson v. U. S., (1898) 7 Okla. 117. Murder. The punishment of the crime of murder is nowhere expressly provided for in this title, and it follows that where that crime is committed in the Indian country it is within the exclusive jurisdiction of the United States. U. S. r. Martin, (1883) 14 Fed. Rep. 817; U. S. v. Berry, (1880) 4 Fed. Rep. 779; U. S. v. Beebe, (1880) 2 Dak. 292. And the United States statutes in reference to the crime must govern. Brown v. U. S., (1899) 2 Indian Ter. 582. The rule obtains when the crime is committed by an Indian against a white man. U. S. r. Monte, (1884) 3 N. Mex. 126. Such jurisdiction was not removed by the Act of March 3, 1885, infra. In re Wilson, (1891) 140 U. S. 575. See also Ex p. Morgan, (1883) 20 Fed. Rep. 298. Rape.The crime of rape, not being provided for in this title, is punishable by proceedings in the United States courts, when committed by a white man upon a white woman within an Indian reservation. U. S. v. Partello, (1891) 48 Fed. Rep. 670. Robbery. Under the United States statutes, robbery is not punishable with death" in a place within the sole and exclusive jurisdiction of the United States," but only when committed upon the high seas, and such crime, therefore, when committed in the Indian country, is not punishable with death. Anonymous, (1843) 1 Fed. Cas. No. 447. Larceny, when committed upon an Indian reservation, is punishable under the laws of the United States, within this section. In re Ingram, (Okla. 1902) 69 Pac. Rep. 868; U. S. t. Bridleman, (1881) 7 Fed. Rep. 894. When the crime is committed by a white man, the provisions of R. S. sec. 5356 apply; when committed by an Indian, the provisions of the Act of March 3, 1885, infra, apply. U. S. r. Ewing, (1891) 47 Fed. Rep. 809. Jurisdiction of state courts. A state has jurisdiction, except as restricted by Congress, over crimes committed on an Indian reservation by persons other than tribal Indians. State v. Campbell, (1893) 53 Minn. 354. The United States courts have no jurisdiction of crimes committed by a white man upon a white man within a reservation which is not within the sole and exclusive jurisdiction of the United States. U. S. r. McBratney, (1881) 104 U. S. 621. Where the enabling act, by which a state is admitted into the Union, contains no exclusion of jurisdiction as to crimes committed upon an Indian reservation within its borders by others than Indians or against Indians, the state courts are vested with sole jurisdiction to try and punish such crimes. Draper v. U. S., (1896) 164 U. S. 240; U. S. v. McBratney, (1881) 104 U. S. 621. Oklahoma. The provisions of the Organic Act of Oklahoma are not inconsistent with the provisions of this section and do not repeal the same. Goodson . U. S., (1898) 7 Okla. 117. Crime must be committed in Indian country. — The prohibition by this section of the jurisdiction of a court of the United States over a crime committed by one Indian upon another is one which is personal to the Indian only when the crime is committed in the Indian country. In re Wolf, (1886) 27 Fed. Rep. 606. Alaska was held not to be Indian country within the above section, and any inhabitant thereof committing a crime against the person of another could be prosecuted in the United States courts thereof. Kie v. U. S., (1886) 27 Fed. Rep. 351; U. S. v. Kie, (1885) 26 Fed. Cas. No. 15,528a. See also note to R. S. sec. 2127, supra, p. 378. A white man adopted in an Indian tribe is not an Indian, within the meaning of this sec tion. U. S. v. Rogers, (1846) 4 How. (U. S.) 567. An indictment sufficiently negatives the first two clauses of this section by alleging that the defendant is a white man." Westmoreland . U. S., (1895) 155 U. S. 545. Statute abrogated by treaty. A treaty which confers upon the United States courts jurisdiction over crimes committed by one Indian upon the person of another has the effect of abrogating this section as to the treatymaking tribe. U. S. v. Crow Dog, (1882) 3 Dak. 106. Jurisdiction of Indian court. - To give an Indian court jurisdiction of the person of an offender, such offender must be an Indian, and the one against whom the offense is committed must also be an Indian. Ex p. Kenyon, (1878) 5 Dill. (U. S.) 385. When reservation has no local law governing crime. The murder of one tribal Indian by another, their tribes being different, and the murder having been committed within the reservation of a third tribe, which has no law governing the case, is not punishable in the United States courts, notwithstanding any clause in the treaty of the tribe to which the murdered Indian belonged. (1883) 17 Op. Atty.-Gen. 560. No repeal of this section by implication. The provisions of this section should not be considered to be repealed by implication by subsequent treaties or Acts of Congress. The implication must be necessary, and there must be a positive repugnancy between the provisions of the new laws and those of the old. Ex p. Crow Dog, (1883) 109 U. S. 556. Sec. 2146. [Exceptions to the operation of the preceding sections.] The preceding section shall not be construed to 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 stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. [R. S.] Act of March 27, 1854, ch. 26, 10 Stat. L. 270. R. S. sec. 2146, as originally enacted, was amended to read as above by the Act of Feb. 18, 1875, ch. 80, 18 Stat. L. 318, which inserted after the words "shall not be construed to extend to," the words "crimes committed by one Indian against the person or property of another Indian, nor to." SEC. 9. [Indians committing certain crimes in Territories, etc., subject to laws thereof in States and Indian reservations, to what laws subject.] 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 either within or without an Indian reservation, shall be subject therefor to the laws of such Territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner and shall be subject to the same penalties as are all other persons charged with the commission of said crimes, respectively; and the said courts are hereby given jurisdiction in all such cases; 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.[23 Stat. L. 385.] This section is from the Indian Appropriation Act of March 3, 1885, ch. 341. As to the crime of rape, it is partly superseded by the provision set forth in the next paragraph of the text. Costs in prosecutions under the above section are to be audited and paid as provided in the Act of March 2, 1889, ch. 412, sec. 11, set forth in the next paragraph but one of the .text. This Act is constitutional in both parts thereof. U. S. v. Kagama, (1886) 118 U. S. 375. Effect of Act. This Act makes all Indians amenable to the criminal laws of the United States, and subject to the jurisdiction of its courts for all offenses designated in said Act, committed against the person or property of any other Indian, or any other person. In re Sah Quah, (1886) 31 Fed. Rep. 331. The Act gives to the United States courts no jurisdiction of offenses committed on an Indian reservation unless the offender be an Indian. U. S. v. Hadley, (1900) 99 Fed. Rep. 437; U. S. v. Logan, (1900) 105 Fed. Rep. 240. Where the offender is other than an Indian, the general provisions of the United States statutes have application, under R. S. sec. 2145, supra. U. S. v. Ewing, (1891) 47 Fed. Rep. 809. Territorial laws govern. By this statute, the Indians are subjected, not to the criminal laws of the United States, but to the laws of the territory. The statute does not even define the crimes enumerated, but this must be governed by the laws of the territory, so far as they furnish any definition of the crime. Territorial courts, when trying these crimes, sit as territorial courts only, and not as United States courts. Gon-shay-ee, Petitioner, (1889) 130 U. S. 343. Crimes committed outside reservation. - An Indian is subject to state laws and amenable to the jurisdiction of state courts for offenses committed outside the limits of his reservation. Pablo v. People, (1896) 23 Colo. 134. an Indian mother is not an Indian within the meaning of this Act. U. S. v. Ward, (1890) 42 Fed. Rep. 320. Where the half-breed children of unmarried Indian mothers are never recognized by their white parents, but are left to grow up among Indians and live as Indians, they are as much the subject of governmental concern, as Indians of full blood; but when born under the sanction of marriage and recognized by their fathers, and separated from their tribal relations, they are entitled to all the rights, privileges, and immunities of citizens. U. S. v. Hadley, (1900) 99 Fed. Rep. 437. But, in U. S. v. Sanders, (1847) 27 Fed. Cas. No. 16,220, it was said that the child of an Indian woman must be considered an Indian, whether the father be an Indian or a white man. School lands ceded to state. This Act does not apply to crimes committed within portions of reservations ceded to a state for the use of schools and afterwards sold by the state. U. S. v. Thomas, (1891) 47 Fed. Rep. 488. Assault. Neither this Act, nor any other United States statute, provides for the punishment of the crime of simple assault or assault with intent to commit murder in any such place as an Indian reservation. U. S. v. Barnaby, (1892) 51 Fed. Rep. 20. Assault with intent to commit rape. The crime of assault with intent to commit rape is not provided for in this Act or in any United States statute; and, where committed by an Indian upon an Indian is not, under R. S. sec. 2146, within the jurisdiction of the United States courts. U. S. v. King, (1897) 81 Fed. Rep. 625. SEC. 5. [Indian committing rape, how punished.] That any Indian who shall commit the offense of rape within the limits of any Indian reservation shall be punished by imprisonment at the discretion of the So much of the ninth section of chapter three hundred and fortyone of the acts of the year eighteen hundred and eighty-five as is inconsistent herewith is herewith [hereby?] repealed. [29 Stat. L. 487.] court. This section 5 is from the Act of Jan. 15, 1897, ch. 29, "to reduce the cases in which the penalty of death may be inflicted." The provision of the Act of 1885, ch. 341, to which it refers is set forth in the preceding paragraph of the text. This Act did not repeal that part of the Act of March 3, 1885, supra, p. 388, conferring jurisdiction upon the United States courts to punish the crime of the murder of one Indian by another with death. Good Shot v. U. S., (1900) 104 Fed. Rep. 257. SEC. 11. [Costs in prosecution of Indians for crimes in Territories, how paid.] That hereafter the costs of the trial of the cases in the courts of the several Territories tried pursuant to and for the offenses named in section nine of the act entitled "An act making appropriations for the current and contingent expenses of the Indian Department, and fulfilling treaty stipulations with various Indian tribes for the year ending June thirtieth, eighteen hundred and eighty-six and for other purposes," shall be audited by the accounting officers of the Treasury and paid out of money for similar expenses in the trial of criminal cases in the courts of the United States. [25 Stat. L. 1004.] This section 11 is from the Act of March 2, 1889, ch. 412, making appropriations for current and contingent expenses of the Indian department for the next fiscal year. "Section nine of the Act" to which the text refers is in the Act of March 3, 1885, ch. 341, and is set forth supra, p. 388. Sec. 2147. [Removal of persons from Indian country.] The superintendent of Indian affairs, and the Indian agents and sub-agents, shall have authority to remove from the Indian country all persons found therein contrary to law; and the President is authorized to direct the military force to be employed in such removal. [R. S.] Act of June 30, 1834, ch. 161, 4 Stat. L. 730. See notes to R. S. secs. 2137, supra, p. 382, and 2149, infra. Decision of officials final. - Whether any person is within the Indian country contrary to law, is a question left to the officials mentioned in this section, and the courts will not review their decision. U. S. v. Sturgeon, (1879) 6 Sawy. (U. S.) 29. The duty to call upon the military forces for the removal of persons improperly upon a reservation follows necessarily from the granting of such power. (1900) 23 Op. Atty.Gen. 214. Secretary of war may call upon military.— It is not essential that the order directing the military force to remove persons from reservations should be issued by the President in his own hand. Such an order is sufficient if issued by the secretary of war. (1874) 14 Op. Atty. Gen. 451. Agent cannot evict lessee. This section does not give an Indian agent authority to eject the lessee of a citizen of an Indian nation on the ground that such lease is invalid. Quigley v. Stephens, (1900) 3 Indian Ter. 265. Sec. 2148. [Penalty for return.] If any person who has been removed from the Indian country shall thereafter at any time return or be found within the Indian country, he shall be liable to a penalty of one thousand dollars. [R. S.] Act of Aug. 18, 1856, ch. 128, 11 Stat. L. 80. See note to R. S. sec. 2137, supra, p. 382. Return after removal not an indictable offense. A return to the Indian country after being removed therefrom is not an indictable offense and cannot be prosecuted by criminal proceedings. It is an offense for which R. S. sec. 2124 prescribes a penalty with the mode of enforcing the same. U. S. v. Payne, (1884) 22 Fed. Rep. 426; In re Seagraves, (1896) 4 Okla. 422. Contra. - This section was originally part of the Act of 1856, which, when passed, was not intended as an amendment, but rather as a supplement to the Act of 1834. The incorporation of this section into the Revised Statutes and the accompanying change of the wording of section 2124, so as to read "this title" instead of "this act," do not operate to make the remedy for the recovery of penalties provided for in section 2124 applicable in an exclusive sense to section 2148. And the penalty prescribed in section 2148 may be recovered by indictment or debt. U. S. v. Stocking, (1898) 87 Fed. Rep. 857; U. S. v. Howard, (1883) 17 Fed. Rep. 638. Return to pursue lawful occupation. Where persons have been found fishing upon an Indian reservation and have been removed therefrom by the proper officials, their return for the purpose of continuing their business of fishing is not a return to continue a lawful occupation and is a violation of the above section. U. S. v. Sturgeon, (1879) 6 Sawy. (U. S.) 29. Sec. 2149. [Removal from reservations.] The Commissioner of Indian Affairs is authorized and required, with the approval of the Secretary of the Interior, to remove from any tribal reservation any person being therein without authority of law, or whose presence within the limits of the reservation may, in the judgment of the Commissioner, be detrimental to the peace and welfare of the Indians; and may employ for the purpose such force as may be necessary to enable the agent to effect the removal of such person. [R. S.] Act of June 12, 1858, ch. 155, 11 Stat. L. 332. See note to R. S. sec. 2119, supra, p. 375. This section applies to an Indian as well as to a white person. U. S. v. Crook, (1878) 5 Dill. (U. S.) 453. Decision of officials final. - Whether any person found upon a tribal reservation is detrimental to the peace and welfare of the Indians, is a question left to the officials mentioned in this section, and the courts will not review their decision. U. S. r. Sturgeon, (1879) 6 Sawy. (U. S.) 29; (1891) 20 Op. Atty. Gen. 245. Sec. 2150. [Employment of the military in apprehending persons violating the law.] The military forces of the United States may be employed in such manner and under such regulations as the President may direct First. In the apprehension of every person who may be in the Indian country in violation of law; and in conveying him immediately from the Indian country, by the nearest convenient and safe route, to the civil authority of the Territory or judicial district in which such person shall be found, to be proceeded against in due course of law: Second. In the examination and seizure of stores, packages, and boats, authorized by law; Third. In preventing the introduction of persons and property into the Indian country contrary to law; which persons and property shall be proceeded against according to law; Fourth. And also in destroying and breaking up any distillery for manufacturing ardent spirits set up or continued within the Indian country. [R. S.] Act of June 30, 1834, ch. 161, 4 Stat. L. 732. See notes to R. S. secs. 2125, 2137, supra, pp. 376, 382. In re Alaska was held to be Indian country within the meaning of this section. Carr, (1875) 3 Sawy. (U. S.) 316, holding that the United States forces might be used to make arrests therein of persons violating the law as to the introduction of spirituous liquors. See also note to R. S. sec. 2127, supra, p. 378. Removal of Indians from one reservation to another. This Act does not authorize the military forces to remove Indians from one reservation to another without their consent. U. S. v. Crook, (1879) 5 Dill. (U. S.) 453. Apprehension of persons by military under Act of June 30, 1834. - Persons apprehended by the military for unlawful traffic with the Indians, and also the property taken with them, should be placed in the custody of the marshal of the territory or judicial district in which the capture occurred, whereupon it will be the duty of the United States attorney to institute proceedings for the recovery of the penalty and for the forfeiture of the property under sections 27 and 28 of the Act, now R. S. secs. 2124 and 2125. Where the parties apprehended have not only been engaged in unlawful traffic with the United States, but in violating the articles of war by relieving hostile Indians with ammunition, they may be tried and punished by court-martial, or be turned over to the civil authorities to be proceeded against as above mentioned. (1871) 13 Op. Atty.-Gen. 470. Sec. 2151. [Detention of persons apprehended by the military.] No person apprehended by military force under the preceding section shall be detained longer than five days after arrest and before removal. All officers and soldiers who may have any such person in custody shall treat him with all the humanity which the circumstances will permit. [R. S.] Act of June 30, 1834, ch. 161, 4 Stat. L. 733. a military prisoner and cannot be detained longer than the time prescribed. Waters v. Campbell, (1877) 5 Sawy. (U. S.) 17; In re Carr, (1875) 3 Sawy. (U. S.) 316. Sec. 2152. [Arrest of absconding Indians guilty of crime.] The superintendents, agents, and sub-agents shall endeavor to procure the arrest and trial of all Indians accused of committing any crime, offense, or misdemeanor, and of all other persons who may have committed crimes or offenses within any State or Territory, and have fled into the Indian country, either by demanding the same of the chiefs of the proper tribe, or by such other means as the President may authorize. The President may direct the military force of the United States to be employed in the apprehension of such Indians, and also in preventing or terminating hostilities between any of the Indian tribes. [R. S.] Act of June 30, 1834, ch. 161, 4 Stat. L. 732. Bandits and outlaws committing_robberies within the Indian country cannot be apprehended by the aid of the United States troops, unless they are illegally intruding or attempting to intrude upon the Indian country, or are absconding offenders, within the provisions of this section. (1894) 21 Op. Atty. Gen. 72. |