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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 1. 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. 1. 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 — The provisions of this section should not be considered to be repealed by implication by subsequent treaties or Acts of Congress.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. after the words "shall not be construed to 270.

extend to,” the words “crimes committed by R. S. sec. 2146, as originally enacted, was one Indian against the person or property of amended to read as above by the Act of Feb. another Indian, nor to.". 18, 1875, ch. 80, 18 Stat. L. 318, which inserted

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 Appropria forth in the next paragraph but one of the tion Act of March 3, 1885, ch. 341. As to the .text. crime of rape, it is partly superseded by the This Act is constitutional in both parts provision set forth in the next paragraph of thereof. U. S. t. Kagama, (1886) 118 U. S. the text.

375. Costs in prosecutions under the above sec Effect of Act. - This Act makes all Indians tion are to be audited and paid as provided in amenable to the criminal laws of the United the Act of March 2, 1889, ch. 412, sec. 11, set 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.

Restriction on power of state. — By this Act, Congress has enumerated all the acts which, in its judgment, should be crimes when committed by Indians, and the state cannot extend its criminal laws over Indians on reservations within its boundaries. State r. Campbell, (1893) 53 Minn. 354; Ini re Blackbird, (1901) 109 Fed. Rep. 139.

Half-breed. — The son of a negro father and

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. lladley, (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 court.

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.]

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. Secretary of war may call upon military.

See notes to R. S. secs. 2137, supra, p. 382, It is not essential that the order directing and 2149, infra.

the military force to remove persons from Decision of officials final. - Whether any reservations should be issued by the Presiperson is within the Indian country contrary dent in his own hand. Such an order is suffito law, is a question left to the officials men cient if issued by the secretary of war. (1874) tioned in this section, and the courts will not 14 Op. Atty.-Gen. 451. review their decision. U. S. v. Sturgeon, Agent cannot evict lessee. This section (1879) 6 Sawy. (U. S.) 29.

does not give an Indian agent authority to The duty to call upon the military forces eject the lessee of a citizen of an Indian nafor the removal of persons improperly upon a tion on the ground that such lease is invalid. reservation follows necessarily from the Quigley v. Stephens, (1900) 3 Indian Ter. 265. granting of such power. (1900) 23 Op. Atty.Gen. 214.

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. title" instead of "this act," do not operate See note to R. S. sec. 2137, supra, p. 382. to make the remedy for the recovery of penal

Return after removal not an indictable of ties provided for in section 2124 applicable fense. - A return to the Indian country after in an exclusive sense to section 2148. And the being removed therefrom is not an indictable penalty prescribed in section 2148 may be reoffense and cannot be prosecuted by criminal covered by indictment or debt. U. S. v. proceedings. It is an offense for which R. S. Stocking, (1898) 87 Fed. Rep. 857; U. S. v. sec. 2124 prescribes a penalty with the mode Howard, (1883) 17 Fed. Rep. 638. of enforcing the same. U. S. v. Payne, (1884) Return to pursue lawful occupation. 22 Fed. Rep. 426; In re Seagraves, (1896) 4 Where persons have been found fishing upon Okla. 422.

an Indian reservation and have been removed Contra. This section was originally part therefrom by the proper officials, their return of the Act of 1856, which, when passed, was for the purpose of continuing their business not intended as an amendment, but rather as of fishing is not a return to continue a lawa supplement to the Act of 1834. The incor ful occupation and is a violation of the above poration of this section into the Revised section. U. S. v. Sturgeon, (1879) 6 Sawy. Statutes and the accompanying change of the (U. S.) 29. wording of section 2124, so as to read “ this

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. person found upon a tribal reservation is det

rimental to the peace and welfare of the InSee note to R. S. sec. 2119, supra, p. 375. dians, is a question left to the officials men

This section applies to an Indian as well as tioned in this section, and the courts will not to a white person. U. S. v. Crook, (1878) 5 review their decision. U. S. 1'. Sturgeon, Dill. (U. S.) 453.

(1879) 6 Sawy. (U. S.) 29; (1891) 20 Op. Decision of officials final. - Whether any Atty.-Gen. 245.

332.

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. by the military for unlawful traffic with the

See notes to R. S. secs. 2125, 2137, supra, Indians, and also the property taken with pp. 376, 382.

them, should be placed in the custody of the Alaska was held to be Indian country marshal of the territory or judicial district in within the meaning of this section.

In re

which the capture occurred, whereupon will Carr, (1875) 3 Sawy. (U. S.) 316, holding that be the duty of the United States attorney to the United States forces might be used to institute proceedings for the recovery of the make arrests therein of persons violating the penalty and for the forfeiture of the property law as to the introduction of spirituous under sections 27 and 28 of the Act, now R. S. liquors. See also note to R. S. sec. 2127, secs. 2124 and 2125. Where the parties apsupra, p. 378.

prehended have not only been engaged in unRemoval of Indians from one reservation to lawful traffic with the United States, but in another. — This Act does not authorize the violating the articles of war by relieving military forces to remove Indians from one hostile Indians with ammunition, they may reservation to another without their consent. be tried and punished by court-martial, or be U. S. v. Crook, (1879) 5 Dill. (U. S.) 453. turned over to the civil authorities to be

Apprehension of persons by military under proceeded against as above mentioned. (1871) Act of June 30, 1834. — Persons apprehended 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. longer than the time prescribed. Waters v.

A person arrested under this section is not Campbell, (1877) 5 Sawy. (U. S.) 17; In re a military prisoner and cannot be detained 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. attempting to intrude upon the Indian counBandits and outlaws committing robberies try, or are absconding offenders, within the within the Indian country cannot be appre provisions of this section. (1894) 21 Op. hended by the aid of the United States Atty.-Gen. 72. troops, unless they are illegally intruding or

Sec. 2153. [Executing process.] In executing process in the Indian country, the marshal may employ a posse comitatus, not exceeding three persons in any of the States respectively, to assist in executing process by arresting and bringing in prisoners from the Indian country, and allow them three dollars for each day in lieu of all expenses and services. [R. S.]

Act of June 14, 1858, ch. 163, 11 Stat. L. 363. he is marshal, or by any commissioner of Repealed provisions. -- T'he Act of June 4, either of said courts, to enter the Indian Ter1888, ch. 343, 25 Stat. L. 167, provided : ritory, and to execute the same therein in the " That after the passage of this act any same manner that he is now required by law United States marshal is hereby authorized to execute like processes in his own district." and required, when necessary to execute any This Act was expressly repealed by a proprocess connected with any criminal proceed vision in the Act of March 3, 1899, .ch. 427, 30 ings issued out of the circuit or district court Stat. L. 1237. of the United States for the district of which

Sec. 2154. [Reparation for injured property.) Whenever, in the commission, by a white person, of any crime, offense, or misdemeanor, within the Indian country, the property of any friendly Indian is taken, injured, or destroyed, and a conviction is had for such crime, offense, or misdemeanor, the person so convicted shall be sentenced to pay to such friendly Indian to whom the property may belong, or whose person may be injured, a sum equal to twice the just value of the property so taken, injured, or destroyed. [R. S.]

Act of June 30, 1834, ch. 161, 4 Stat. L. 731. sections for stealing the property of an In.

A negro cannot be convicted and sentenced dian. U. S. v. Perryman, (1879) 100 U. S. under the provisions of this and the following

235.

Sec. 2155. [Payment where the offender is unable.] If such offender shall be unable to pay a sum at least equal to the just value or amount, whatever such payment shall fall short of the same shall be paid out of the Treasury of the United States. If such offender cannot be apprehended and brought to trial, the amount of such property shall be paid out of the Treasury. But no Indian shall be entitled to any payment out of the Treasury of the United States, for any such property, if he, or any of the nation to which he belongs, have sought private revenge, or have attempted to obtain satisfaction by any force or violence. [R. S.]

Act of June 30, 1834, ch. 161, 4 Stat. L. 731.
See note to the preceding section.

Sec. 2156. [Repealed by Act of March 3, 1891, ch. 538, 26 Stat. L. 851.] The Act above cited provides for the adjudi tion to the nation or tribe to which such Incation and payment of claims arising from dian shall belong, for satisfaction; and if Indian depredations and is set forth in title such nation or tribe shall neglect or refuse to CLAINS, vol. 2, p. 91. It impliedly repeals make satisfaction, in a reasonable time not and supersedes R. S. sec. 2156.' Senate Docu exceeding twelve months, such superintendment No. 452, “ Indian Affairs," 57th Cor ent, agent, or sub-agent shall make return of gress, 1st session, note on p. 20.

his doings to the Commissioner of Indian R. S. sec. 2156 was as follows:

Affairs, that such further steps may be taken Indian, belonging to any tribe in amity with as shall be proper, in the opinion of the Presi. the United States, shall, within the Indian dent, to obtain satisfaction for the injury." country, take or destroy the property of any Act of June 30, 1834, ch. 161, 4 Stat. L. 731; person lawfully within such country, or shall Act of Feb. 28, 1859, ch. 66, 11 Stat. L. 401. pass from Indian country into any State or This section and the acts from which it was Territory inhabited by citizens of the United evolved were construed in the following cases : States, and there take, steal, or destroy, any Leighton v. U. S., (1896) 161 U. S. 291; (1894) horse, or other property belonging to any citi 29 Ct. Cl. 288; Johnson 1. U. S., (1896) 160 zen or inhabitant of the United States, such U. S. 546; Corralitos Co. v. U. S., (1900) 178 citizen or inhabitant, his representative, at U. S. 280; (1898) 33 Ct. Cl. 342; U, S. v. Antorney, or agent, may make application to drews, (1900) 179 U. S. 96; Brown v. U. S., the proper superintendent, agent, or sub (1897) 32 Ct. Cl. 432; Brice v. U. S., (1896) agent, who, upon being furnished with the 32 Ct. Cl. 23; Welch 1: U.S., (1897) 32 Ct, C). necessary documents and proofs, -shall, under 106; Garrison 1. U. S., (1895) 30 Ct. Cl. 272; the direction of the President, make applica Ilegwer v. U. S., (1895) 30 Ct. Cl. 405; John

“ If any

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