SEC. 5. [Jurisdiction of offenses.] That the court hereby established shall have exclusive original jurisdiction over all offenses against the laws of the United States committed within the Indian Territory as in this act defined, not punishable by death or by imprisonment at hard labor. [25 Stat. L. 783.] The operation of this section is limited by section 27 of this Act, infra. "Punishable * * *by imprisonment at hard labor."-"An offense which the statute imperatively requires to be punished by imprisonment at hard labor, and one that must be punished by imprisonment,' but the sentence to which imprisonment the court may, in certain cases, and in its discretion, require to be executed in a penitentiary where hard labor is prescribed for convicts, are each punishable' by imprisonment at hard labor. The former offense certainly must be thus punished; and as the latter may, in the discretion of the court, be so punished, it may also, and not unreasonably, be held to be 'punishable' by imprisonment at hard labor.” In re Mills, (1890) 135 U. S. 266. See also In re Bonner, (1893) 57 Fed. Rep. 184. A grand jury cannot be legally impaneled under this statute, as the court created is one of limited criminal jurisdiction, and the Act does not give the right to impanel a grand jury. A person convicted and sentenced to imprisonment upon an indictment returned by a body purporting to act as a grand jury would be illegally convicted. Er p. Farley, (1889) 40 Fed. Rep. 66. Jurisdiction. — Taking this section and sec tions 17 and 18, infra, together, "it is clear that jurisdiction was vested in the new court, created by the Act, over all minor offenses against the laws of the United States committed within the Indian Territory; but that jurisdiction of all offenses punishable by death or by imprisonment at hard labor was conferred upon the United States court for the eastern district of Texas over that portion of the Indian Territory described in section seventeen." This jurisdiction was expressly continued by section 33 of the Act of May 2, 1890, infra, p. 412. In re Johnson, (1897) 167 U. S. 120. An offense is not within the jurisdiction of the court, where the crime charged is punishable simply in the penitentiary for a term of years, as such imprisonment may, under chapter 9, title 70, of the Revised Statutes, be executed in a penitentiary where hard labor is exacted of all convicts, which would be, in effect, imprisonment at hard labor. In re Mayfield, (1891) 141 U. S. 114. The jurisdiction in the cases punishable by death or by imprisonment at hard labor was left to the United States courts of Texas and Arkansas. Harless v. U. S., (C. C. A. 1898) 88 Fed. Rep. 97. - SEC. 6. [Jurisdiction of civil cases- procedure — appellate review.] That the court hereby established shall have jurisdiction in all civil cases between citizens of the United States who are residents of the Indian Territory, or between citizens of the United States, or of any State or Territory therein, and any citizen of or person or persons residing or found in the Indian Territory, and when the value of the thing in controversy, or damages or money claimed shall amount to one hundred dollars or more: Provided, That nothing herein contained shall be so construed as to give the court jurisdiction over controversies between persons of Indian blood only: And provided further, That all laws having the effect to prevent the Cherokee, Choctaw, Creek, Chickasaw and Seminole Nations, or either of them, from lawfully entering into leases or contracts for mining coal for a period not exceeding ten years, are hereby repealed; and said court shall have jurisdiction over all controversies arising out of said mining leases or contracts and of all questions of mining rights or invasions. thereof where the amount involved exceeds the sum of one hundred dollars. That the provisions of chapter eighteen, title thirteen, of the Revised Statutes of the United States shall govern such court, so far as applicable: Provided, That the practice, pleadings, and forms of proceeding in civil causes shall conform, as near as may be, to the practice, pleadings, and forms of proceeding existing at the time in like causes in the courts of record of the State of Arkansas, any rule of court to the contrary notwithstanding; and the plaintiff shall be entitled to like romedies by attachment or other process against the property of the defendant, and for like causes, as now provided by the laws of said State. The final judgment or decree of the court hereby established, in cases where the value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds one thousand dollars may be reviewed and reversed or affirmed in the Supreme Court of the United States upon writ of error or appeal, in the same manner and under the same regulations as the final judgments and decrees of a circuit court. [25 Stat. L. 784.] Addition to the jurisdiction above conferred is made by section 29 of the Act of May 2, 1890, ch. 182, set forth infra, p. 403. Chapter 18, title 13 of the Revised Statutes to which the text refers relates to procedure," and comprises sections 911-1042, which are distributed in various titles in this work. But certain laws of Arkansas relating to pleadings and practice are put in force in the Indian Territory by section 31 of the Act of May 2, 1890, ch. 182, set forth infra, p. 406. When all parties except one were members of the Cherokee Nation, in a suit in the United States court in the Indian Territory, if such person had no cause of action against the defendants, he was not a party to the suit, and the United State. court was without jurisdiction of the suit. Davenport v. Buffington, (C. C. A. 1899) 97 Fed. Rep. 234. When the aggregate of the damages or money claimed amounts to one hundred dollars, the court has jurisdiction under this section. In a suit for damages for killing stock, the fact that each animal for which the plaintiff sues was worth less than one hundred dollars makes no difference, if the damages claimed for all of them amount to that sum. Gulf, etc., R. Co. v. Washington, (C. C. A. 1892) 49 Fed. Rep. 347. Ejectment. Under this provision the action of ejectment, as prescribed by the statutes of Arkansas, is in full force in the Indian Territory, since the chapter in Mansfield's Digest, entitled "Ejectment," was not adopted by section 31 of the Act of May 2, 1890, ch. 182, and the provision in the text above, in view of section 13 of the Act of March 1, 1895, ch. 145, cannot be regarded as repealed. Wilson t. Owens, (1897) 1 Indian Ter. 163. Assignment for the benefit of creditors. The Act of Arkansas of March 31, 1887, relating to assignments for the benefit of cred itors, is positive and affirmative legislation, and does not relate to "the pleadings and practice and forms of proceeding in civil actions." Martin Browne Co. v. Morris, (1897) 1 Indian Ter. 495. Proceedings to restore lost or destroyed records do not relate to "the practice, pleadings, and forms of proceeding in civil causes," and such proceedings, under sections 5347 to 5357 of Mansf. Dig. Ark., are not put in force by this section. Bohart v. Hull, (1898) 2 Indian Ter. 45. Garnishment proceedings, under chapters 9 and 71 of Mansf. Dig. Ark., were adopted by this section, as part of "the practice, pleadings, and forms of proceeding in civil causes." Pace v. J. S. Merrill Drug Co., (1899) 2 Indian Ter. 218. Collection of taxes.- An action for, and to enforce by its judgment the collection of, a tax imposed by a tribe of Indians residing in the Indian Territory, upon a citizen of the United States residing in the tribe, cannot be maintained either under this statute or under section 29 of the Act of May 2, 1890, infra. Crabtree . Madden, (C. C. A. 1893) 54 Fed. Rep. 426. To grant such relief in equity as is consonant with the established rules and practice of courts of chancery is within the power of this court, in cases within its jurisdiction. McClellan v. Pyeatt, (C. C. A. 1895) 66 Fed. Rep. 843. Action against nation. Neither this Act, nor section 29 of the Act of May 2, 1890, infra, conferred on the United States court jurisdiction of an action against the Choctaw nation, or the chief executive officers of the nation, when sued in their capacity as such, for an alleged debt or liability of the nation, and when the judgment will operate against the nation. Thebo v. Choctaw Tribe of Indians, (C. C. A. 1895) 66 Fed. Rep. 372. SEC. 7. [Terms of court.] That two terms of said court shall be held each year at Muscogee, in said Territory, on the first Monday in April and September, and such special sessions as may be necessary for the dispatch of the business in said court at such times as the judge may deem expedient; and he may adjourn such special sessions to any other time previous to a regular term; and the marshal shall procure suitable rooms for the use and occupation of the court hereby created. [25 Stat. L. 784.] This section is superseded by provisions in section 30 of the Act of May 2, 1890, ch. 182, as set forth infra, p. 404. SEC. 8. [Proceedings to be in English language.] That all proceedings in said court shall be had in the English language; and bona-fide male residerts of the Indian Territory, over twenty-one years of age, and understanding the English language sufficiently to comprehend the proceedings of the court, shall be competent to serve as jurors in said court but shall be subject to exemptions and challenges as provided by law in regard to jurors in the district court for the western district of Arkansas. [25 Stat. L. 784.] SEC. 9. [Jury commissioners — oath of.] That the jurors shall be selected as follows: The court at its regular term shall select three jury commissioners, possessing the qualifications prescribed for jurymen, and who have no suits in court requiring the intervention of a jury; and the same persons shall not act as jury commissioners more than once in the same year. The judge shall administer to each commissioner the following oath: "You do swear to discharge faithfully the duties required of you as jury commissioner; that you will not knowingly select any one as juryman whom you believe unfit and not qualified; that you will not make known to any one the name of any juryman selected by you and reported on your list to the court until after the commencement of the next term of this court; that you will not, directly or indirectly, converse with any one selected by you as a juryman concerning the merits of any cause or procedure to be tried at the next term of this court; so help you God." [25 Stat. L. 784.] The above provision and the provisions in the following sections 10-13 are applied in section 30 of the Act of May 2, 1890, ch. 182, to each of the divisions of the court created by that Act. SEC. 10. [Selection of petit jurors.] That the jury commissioners, after they have been appointed and sworn, shall retire to a jury room, or some other apartment designated by the judge, and be kept free from the intrusion of any person, and shall not separate without leave of the court until they have completed the duties required of them; that they shall select from the bona fide male residents of the Territory such number of qualified persons as the court shall designate, not less than sixty, free from all legal exception, of fair character and approved integrity, of sound judgment and reasonable information, to serve as petit jurors at the next term of court; shall write the names of such persons on separate pieces of paper, of as near the same size and appearance as may be, and fold the same so that the names thereon may not be seen. names so written and folded shall be then deposited in a box, and after they shall be shaken and well mixed, the commissioners shall draw from said box the names of thirty seven persons, one by one, and record the same as drawn, which record shall be certified and signed by the commissioners, and indorsed "List of petit jurors." [25 Stat. L. 785.] See note to section 9 of this Act, supra. The SEC. 11. [Alternate petit jurors - oath of clerk and deputies.] That the said commissioners shall then proceed to draw in like manner twelve other names, which shall be recorded in like manner on another paper, which shall be certified and signed by the commissioners, and indorsed "List of alternate petit jurors". The two list [s] shall be inclosed and sealed so that the contents can not be seen, and indorsed "List of petit jurors," designating for what term of the court they are to serve, which indorsement shall be signed by the commissioners, and the same shall be delivered to the judge in open court; and the judge shall deliver the lists to the clerk in open court, and administer to the clerk and his deputies the following oath: "You do swear that you will not open the jury-lists now delivered to you; that you will not, directly or indirectly, converse with any one selected as a petit juror concerning any suit pending and for trial in this court at the next term, unless by leave of the court; so help you God." Stat. L. 785.] See note to section 9 of this Act, supra. [25 SEC. 12. [Copy of jury lists to be made return of lists by marshal - filling vacancies.] That within thirty days before the next term, and not before, the clerk shall open the envelopes and make a fair copy of the lists of petit jurors and alternate petit jurors, and give the same to the marshal, who shall, at least fifteen days prior to the first day of the next term, summon the persons named as petit jurors and alternate petit jurors to attend on the first day of said term as petit jurors, by giving personal notice to each, or by leaving a written notice at the juror's place of residence with some person over ten years of age and there residing. That the marshal shall return said lists with a statement in writing of the date and manner in which each juror was summoned; and if any juror or alternate legally summoned shall fail to attend he may be attached and fined or committed as for contempt. That if there shall not be a sufficient number of competent petit jurors and alternates present, and not excused, to form a petit jury, the court may compel the attendance of such absentees or order other competent persons to be summoned to complete the juries. [25 Stat. L. 785.] See note to section 9 of this Act, supra. SEC. 13. [Selection of jurors by marshal.] That if for any cause the jury commissioners shall not appoint or shall fail to select a petit jury as provided, or the panels selected be set aside, or the jury list returned in court shall be lost or destroyed, the court shall order the marshal to summon a petit jury of the number herein before designated, who shall be sworn to perform the duties of petit jurors as if they had been regularly selected; and this provision shall also apply in the formation of petit juries for the first term of the court. The want of qualification of any person selected as juror under section ten of this act shall not necessarily operate as cause of challenge to the whole panel. [25 Stat. L. 785.] See note to section 9 of this Act, supra. SEC. 14. [Fees of jurors and witnesses.] That the fees of the jurors and witnesses before said court herein created shall be the same as provided in the district court of the United States for the western district of Arkansas. Stat. L. 785.] [25 SEC. 15. [Criminal trials — citizens only to be jurors, when citizen is defendant.] That in all criminal trials had in said court, in which a jury shall be demanded, and in which the defendant or defendants shall be citizens of the United States, none but citizens of the United States shall be competent jurors. [25 Stat. L. 786.] SEC. 16. [Writs and processes.] That the judge of the court herein established shall have the same authority to issue writs of habeas corpus, injunctions, mandamus, and other remedial process, as exists in the circuit court of the United States. [25 Stat. L. 786.] Proceedings for the removal of a convicted person to the trial district for the purpose of being sentenced in accordance with law upon the verdict of guilty against him may be pursued under section 716, R. S., and this statute. In re Christian, (1897) 82 Fed. Rep. 885. the titles JUDICIAL CIRCUITS AND DISTRICTS and JUDICIAL OFFICERS, respectively. The sections thus repealed or superseded were as follows: SECS. 17, 18, 19. [Repealed by provisions cited below.] Sections 17, 18, and 19, given below, were repealed as to the criminal jurisdiction conferred thereby by section 9 of the Act of March 1, 1895, ch. 145, set forth infra, p. 425, and as to the territory added to the eastern judicial district of Texas, and the appointment of a clerk to reside at Paris, they are superseded by later provisions set forth in "SEC. 17. That the Chickasaw Nation and the portion of the Choctaw Nation within the following boundaries, to wit: Beginning on Red River at the southeast corner of the Choctaw Nation; thence north with the boundary-line between the said Choctaw Nation and the State of Arkansas to a point where Big Creek, a tributary of the Black Fork of the Kimishi River, crosses the said boundary-line; thence westerly with Big Creek and the said Black Fork to the junction of the said Black Fork with Buffalo Creek; thence northwesterly with said Buffalo Creek to a point where the same is crossed by the old military road from Fort Smith, Arkansas, to Boggy Depot, in the Choctaw Nation; thence southwesterly with the said road to where the same crosses Perryville Creek; thence northwesterly up said creek to where the same is crossed by the Missouri, Kansas and Texas Railway track; thence northerly up the center of the main track of the said road to the South Canadian River; thence up the center of the main channel of the said river to the western boundary-line of the Chickasaw Nation, the same being the northwest corner of the said nation; thence south on the boundary-line between the said nation and the reservation of the Wichita Indians; thence continuing south with the boundary-line between the said Chickasaw Nation and the reservations of the Kiowa, Comanche, and Apache Indians to Red River; thence down said river to the place of beginning; and all that portion of the Indian Territory not annexed to the district of Kansas by the act approved January sixth, eighteen hundred and eighty-three, and not set apart and occupied by the five civilized tribes, shall, from and after the passage of this act, be annexed to and constitute a part of the eastern judicial district of the State of Texas, for judicial purposes." [25 Stat. L. 786.] See In re Johnson, (1897) 167 U. S. 120; Westmoreland v. U. S., (1895) 155 U. S. 547; Cook . U. S., (1891) 138 U. S. 169; In re Jackson, (1889) 40 Fed. Rep. 372; (1890) 19 Op. Atty. Gen. 477. "SEC. 18. That the counties of Lamar, Fan nin, Red River, and Delta of the State of Texas, and all that part of the Indian Territory attached to the said eastern judicial district of the State of Texas by the provisions of this act, shall constitute a division of the eastern judicial district of Texas; and terms of the circuit and district courts of the United States for the said eastern district of the State of Texas shall be held twice in each year at the city of Paris on the third Mondays in April and the second Mondays in October; and the United States courts herein provided to be held at Paris shall have exclusive original jurisdiction of all offenses committed against the laws of the United States within the limits of that portion of the Indian Territory attached to the eastern judicial district of the State of Texas by the provisions of this act, of which jurisdiction is not given by this act to the court herein established in the Indian Territory; and all civil process, issued against persons resident in the said counties of Lamar, Fannin, Red River, and Delta, cognizable before the United States courts shall be made returnable to the courts, respectively, to be held at the city of Paris, Texas; and all prosecutions for offenses committed in either of said lastmentioned counties shall be tried in the division of said eastern district of which said counties form a part: Provided, That no process issued or prosecution commenced or suit instituted before the passage of this act shall be in any way affected by the provisions thereof." [25 Stat. L. 786.] See In re Johnson, (1897) 167 U. S. 120; Westmoreland v. U. S., (1895) 155 U. S. 547; Ball . U. S., (1891) 140 U. S. 118; Cook v. U. S., (1891) 138 U. S. 169. "SEC. 19. That the judge of the eastern judicial district of the State of Texas shall appoint a clerk of said court, who shall reside at the city of Paris, in the county of Lamar." [25 Stat. L. 787.] SEC. 20. [Obstructing, etc., railroads.] That every person who shall, in the Indian Territory, willfully and maliciously place any obstruction, by stones, logs, or any other thing, on the track of any railroad, or shall tear up or remove, burn, or destroy any part of any such railroad, or the works thereof, with intent to obstruct the passage of any engine, car, or cars thereon, or to throw them off the track, shall be deemed guilty of malicious mischief, and, on conviction thereof, shall be sentenced to imprisonment at hard labor for any time not more than twenty years: Provided, That if any passenger, employee, or other person shall be killed, either directly or indirectly, because of said obstruction, tearing up, removing, burning, or destroying, the person causing the same shall be deemed guilty of murder, and, upon conviction thereof, shall be punished accordingly. [25 Stat. L. 787.] SEC. 21. [Injury to telegraph, etc., lines.] That any person aforesaid who shall, in the Indian Territory, willfully and intentionally destroy, injure or obstruct any telegraph or telephone line, or any of the property or materials. thereof, shall be deemed guilty of malicious mischief, and, on conviction thereof, shall be fined in any sum not more than five hundred dollars and imprisoned for any time not more than one year. [25 Stat. L. 787.] 3 F. S. A.-26 451 Volume III. |