Vol. III, p. 387, sec. 2145.

Murder. The murder of one negro by another within the limits of an Indian reservation in a territory is committed within a place or district under the exclusive jurisdiction of the United States, within the meaning of R. S. sec. 5339, 3 Fed. Stat. Annot. 231, defining and punishing the crime of murder, as amended by the Act of Jan. 15, 1897, 29 Stat. L. 487, ch. 29, 2 Fed. Stat. Annot. 357, and extended by this section to the Indian country, when not within the exceptions made by section 2146, which by reason of the race of the accused and deceased do not apply. Pickett r. U. S., (1910) 216 U. S. 456, 30 S. Ct. 265, 54 U. S. (L. ed.) 566.

Vol. III, p. 388, sec. 9.

Construction of statute. This section uses the term "arson" in its common-law meaning and is in effect an extension of the provisions of R. S. sec. 5385, 1 Fed. Stat. Annot. 457. punishing the offense of arson within a fort, dockyard, etc., to the same offense committed by an Indian on a reservation; and an indictment charging an Indian with the burning of a "building on a reservation, not averred to have been a dwelling house, nor occupied as such, does not state an offense thereunder. U. S. v. Cardish, (1906) 143 Fed. 640.

Conclusiveness of judgment. - Where an Indian was indicted in a federal court within the district of Oregon for an offense committed on an Indian reservation, and was convicted and sentenced on a plea of not guilty, it was held that the judgment constituted a conclusive adjudication that he was a nonallotted Indian, and therefore triable in the federal court, and hence that he could not obtain his discharge on habeas corpus on the ground that both he and his victim were allotted Indians, and that the federal court had no jurisdiction to try him. Ex p. Savage, (1908) 158 Fed. 205.

Crime on allotted lands within reservation. -Land within the Tulalip Indian reservation, in the state of Washington, allotted and patented in severalty, pursuant to the treaty with the Omahas of March 16, 1854, 10 Stat. L. 1043, and the treaty of Point Elliot of Jan. 22, 1855, 12 Stat. L. 927, which provide for a conditional alienation only, is not, by reason of such allotment and patent, excepted from the reservation, so as to defeat the exclusive jurisdiction of the federal courts

a prosecution for a violation of this section for the defendant to assert that he did not know that the person to whom he sold was an Indian. U. S. v. Stofello, (1904) 8 Ariz. 461, 76 Pac. 611.

C. A. 173, affirming (1904) 13 Okla. 512, 75 Pac. 291.

Incest. - The provisions of this and the following section are not affected by any subsequent legislation except by Act March 3, 1885, 23 Stat. L. 385, 3 Fed. Stat. Annot. 388, which makes certain enumerated crimes committed by an Indian against the person or property of another Indian within a territory, either within or without a reservation, subject to punishment in accordance with the laws of such territory. Act March 3, 1887, ch. 397, sec. 4, 24 Stat. L. 635, 1 Fed. Stat. Annot. 709, which defines and prescribes the punishment for the crime of incest, is not therefore in force within an Indian reservation where both parties to the alleged act are Indians and there is no law making such act a crime. Ex p. Hart, (1907) 157 Fed. 130. Oklahoma. To the same effect as the original note, see Brown v. U. S., (1906) 146 Fed. 975, 77 C. C. A. 173, affirming (1904) 13 Okla. 512, 75 Pac. 291.

under this section of crimes committed on such land by one Indian upon the person of another. U. S. v. Celestine, (1909) 215 U. S. 278, 30 S. Ct. 93, 54 U. S. (L. ed.) 195.

Refers to Indians maintaining tribal relations. This section, providing that Indians committing certain crimes within the limits of an Indian reservation shall be subject to the same laws, and be tried in the same courts, and be subject to the same penalties as all other persons committing said crimes within the exclusive jurisdiction of the United States, when construed in connection with the other sections of the Act of which it is the concluding section, which show its purpose to be to make certain appropriations for the benefit of the Indian Department, fulfil treaty stipulations, provide for depreda tion claims, for schools, and other miscellaneous matters connected with the Indian service, refers only to Indians sustaining tribal relations, and does not deprive the state courts of jurisdiction over crimes committed by Indians who either have never sustained or have severed all tribal relations. State r. Howard, (1903) 33 Wash. 250, 74 Pac. 382; State v. Smokalem, (1905) 37 Wash. 91, 79 Pac. 603.

Proof of tribal relations. In a prosecution for murder, the jurisdiction of the court was challenged on the ground that the defendant and deceased were Indians; that the crime was committed on a reservation, and that the proof did not show that defendant had severed his tribal relations. While the first two points were sustained by evidence, the defendant's own testimony as to the latter was that he was not by birth a member of the tribe on whose reservation the'

crime was committed; nor did he show that he had in any other manner become allied with that tribe, or that he ever lived within the limits of the reservation, but that he had lived for a number of years with members of his own family, among white people, and away from any Indian tribe or reservation. It was held to show that the defendant sustained no tribal relation. State v. Howard, (1903) 33 Wash, 250, 74 Pac. 382.

Record. Where, on scire facias on a forfeited recognizance, the record did not disclose that the accused was an Indian or that he stole the property charged from another Indian, it was held that he was not subject to this section. Hollister v. U. S., (C. C. A. 1906 145 Fed. 773.

Jurisdiction challenged on appeal. In a prosecution of an Indian for murder, the jurisdiction of the state courts on the ground that the defendant and deceased were both Indians, and that the crime was committed within the limits of an Indian reservation, and that there was no proof that defendant had severed his tribal relations, can be challenged for the first time on appeal. State v. Howard, (1903) 33 Wash. 250, 74 Pac. 382.

Vol. III, p. 389, sec. 5.

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Indictment. Under this section extending all criminal laws to all Indians, excepting offenses committed upon a reservation by one Indian against another, it is not necessary that a state indictment against one Indian, for an offense against another, charge, and that the state prove, that the offense was committed off a reservation, since it is not necessary, in a state prosecution, to negative the federal jurisdiction, nor for the state to prove more than that the offense was committed within the country. State v. Buckaroo Jack, (1908) 30 Nev. 325, 96 Pac. 497.

Evidence. That a homicide occurred at a house about a quarter of a mile from an Indian day school was held to be insufficient to show that it occurred on a reservation. State v. Buckaroo Jack, (1908) 30 Nev. 325, 96 Pac. 497.

Vol. III, p. 390, sec. 2147.

Agent cannot evict lessee. To the same effect as the original note, see Stephens v. Quigley, (C. C. A. 1903) 126 Fed. 148.

Authority of military. Under this section and the section immediately following the

Vol. III, p. 390, sec. 2148.

Nature of proceeding for recovery of penalty. The penalty provided by this section can only be recovered in a civil action, and not as a fine in a criminal proceeding. U. S. v. Baker, (1903) 4 Ind. Ter. 544, 76 S. W. 103.

Vol. III, p. 390, sec. 2149.

Confinement after removal. This section only authorizes the removal of troublesome persons from a reservation, and does not imply authority to detain them in confinement after such removal. In re Bi-A-Lil-Le, (1909) 12 Ariz. 150, 100 Pac. 450.

Alderman of incorporated town. - Under this section the commissioner, prior to the Act Cong. May 27, 1902, ch. 888, 32 Stat. L. 245, 3 Fed. Stat. Annot. 486, prohibiting the removal of certain citizens from the Indian Territory, with the approval of the Secretary of the Interior, was authorized to remove a person from the Indian Territory who, in his judgment, was detrimental to the welfare of the Indians, though he was an alderman of an incorporated town in the territory. Ex p. Carter, (1903) 4 Ind. Ter. 539, 76 S. W. 102.

military department has no authority to hold a person apprehended for being unlawfully in the country indefinitely as a prisoner, nor to destroy property so found. U. S. v. Crook, (1875) 179 Fed. 391.

When penalty accrues. Under this section in connection with R. S. secs. 2147 and 2149, it has been held that the penalty imposed by this section is incurred when the return is made after removal under R. S. sec. 2149. U. S. v. Baker, (1903) 4 Ind. Ter. 544, 76 S. W. 103.

Removal of collectors. The Commissioner of Indian Affairs is authorized, with the approval of the Secretary of the Interior, to cause collectors to be excluded and removed from a tribal Indian reservation on days when payments are being made to the Indians, if in his judgment the presence of collectors therein at such times is detrimental to the peace and welfare of the Indians; and this although the reservation be within a state and the Indians be the holders, under trust patents issued to them pursuant to Act Feb. 8, 1887, ch. 119, 24 Stat. L. 388, 3 Fed. Stat. Annot. 494, of allotments adjacent to the reservation, and be, therefore, citizens of the United States and the state. Rainbow v. Young, (C. C. A. 1908) 161 Fed. 835.

Vol. III, p. 415, sec. 41.

Construction. This section does not affect the power under R. S. sec. 1014, 2 Fed. Stat. Annot. 321, and Act of May 28, 1896, ch. 252, sec. 19, 29 Stat. L. 184, 4 Fed. Stat. Annot. 79, of a United States commissioner, appointed for a district in a state, to issue a

Vol. III, p. 422, sec. 4. [Arkansas Determination of punishment by jury. Since this section puts in force Mansf. Dig. of the Gen. Laws of Arkansas, sec. 2283, providing that the jury on rendering a verdict of guilty must affix the punishment if the amount thereof is not determined by law, one on trial for crime punishable by fine not ex

warrant for the arrest of a person in such district for an offense committed in the Indian Territory against the laws of the United States. Douglass v. Stahl, (1903) 71 Ark. 236, 72 S. W. 568.

criminal law and procedure in force.] ceeding a specified sum, and by imprisonment for not less than a specified time, nor for more than a specified time, is entitled to have the jury determine the punishment on their finding him guilty. Taylor v. U. S., (1906) 6 Ind. Ter. 350, 98 S. W. 123.

Vol. III, p. 424, sec. 8.

Effect of Act of Jan. 30, 1897. This section was not impliedly repealed by the Act of Congress of Jan. 30, 1897, 29 Stat. L. 506, ch. 109, 3 Fed. Stat. Annot. 384. U. S. v. Buckles, (1906) 6 Ind. Ter. 319, 97 S. W. 1022.

Still in force. This section is still in force in Indian Territory and has been since its enactment. Burch . U. S., (1907) 7 Ind. Ter. 284, 104 S. W. 619.

Sale by agent. Where an agent solicited orders in Indian Territory for the sale of intoxicating liquors, and forwarded the order to his principal, a nonresident, who shipped the liquors pursuant to the orders to the buyers therein named, the agent, whether he collected the purchase price or not, violated the statute. Taylor v. Ü. S., (1906) 6 Ind. Ter. 350, 98 S. W. 123.

Presumptions. On a prosecution for introducing liquor into Indian Territory, an instruction that the possession of liquor in the territory was prima facie evidence of the

provided for the punishment of an offense, defining it and prescribing the punishment, as in case of R. S. sec. 5357, 6 Fed. Stat. Annot. 761, relative to receiving stolen goods, such laws will govern and be in force in the Indian Territory. Bise v. U. S., (1904) 5 Ind. Ter. 602, 82 S. W. 921.

the right of trial by jury where the value in controversy exceeds twenty dollars. Missouri, etc., R. Co. v. Phelps, (1903) 4 Ind. Ter. 706, 76 S. W. 285.

introduction of the same by the party in whose possession it was found was held to be error. The court should have instructed that if the jury found beyond a reasonable doubt that defendant was in possession of liquor within the territory the law presumed him guilty of having introduced it, unless he could show otherwise by a reasonable, truthful explanation. Ellis v. U. S., (1906) 6 Ind. Ter. 291, 97 S. W. 1013. Indictment.

An indictment alleged that accused "did introduce" from without the limits of the Indian Territory intoxicating liquors. It was held that the indictment charged the offense denounced by this section, and not the offense denounced by the Act of Congress of Jan. 30, 1897, 29 Stat. L. 506, ch. 109, 3 Fed. Stat. Annot. 384, making it an offense for a person to "introduce or attempt to introduce " any intoxicating liquors into the Indian country, for the word "introduce" in the indictment is synonymous

with the words used in the Act of 1895. U. S. v. Buckles, (1906) 6 Ind. Ter. 319, 97 S. W. 1022.

An indictment charging in one count that the accused sold intoxicating liquors within

Vol. III, p. 426, sec. 11.

Jurisdiction. - Under Act June 10, 1896, ch. 398, 29 Stat. L. 339, 3 Fed. Stat. Annot. 431, conferring on the Dawes Commission the power of determining applications to be enrolled as members of one of the tribes of Indians, and providing that appeal may be had from it to the District Court, and Act July 1, 1898, ch. 545, 30 Stat. L. 591, 3 Fed. Stat.

the Indian Territory to a person named, and in a second count that he furnished intoxicating liquor to the person named, is not bad as charging two distinct offenses. Taylor r. U. S., (1906) 6 Ind. Ter. 350, 98 S. W. 123.

Annot. 467, allowing appeal in certain cases direct to the United States Supreme Court, the Court of Appeals of the Indian Territory has no jurisdiction of an appeal from the District Court from an order as to taxation of costs in such a case. Chickasaw Nation v. Roff, (1903) 4 Ind. Ter. 535, 76 S. W. 101.

au

Constitutionality. thorizing the commission to the Five Civilized Tribes to determine citizenship in the Five Nations is constitutional. Dukes r. Goodall, (1904) 5 Ind. Ter. 145, 82 S. W. 702; Dick v. Ross, (1905) 6 Ind. Ter. 85, 89 S. W. 664.

Effect of application for enrolment. — The application for enrolment under this Act, notwithstanding the fact that applicants were already on the rolls, was a waiver of the conclusiveness of the rolls in their cases, the Act providing that the commission shall hear and determine the application of all persons who may apply to them for citizenship in any of said nations. (1907) 26 Op. Atty. Gen. 127.

Right to enrolment. — In (1907) 26 Op. Atty. Gen. 127, it appeared that K. and L., children of white parents who had become affiliated with the Choctaw Nation by an act of the Choctaw council, and thereby granted

all rights, privileges, and immunities of the Choctaw citizens, were born in the Choctaw Nation, have always resided there as its recognized citizens, and their names appear upon various tribal rolls. They applied to the Commission to the Five Civilized Tribes under this Act and were enrolled, and no appeal was taken by the nation. It was held that they are clearly entitled to enrolment.

Parties. Since Indian lands apportioned to the Indians of the Chickasaw and Choctaw Nations are still public lands, and are not held by the allottees in their individual capacity as tenants in common, prior individual Indian allottees, members of the Chickasaw and Choctaw Nations, are not necessary parties to suits brought to determine citizenship rights of others, as authorized by this Act. Dukes v. Goodall, (1904) 5 Ind. Ter. 145, 82 S. W. 702.

not to action or nonaction of the commission. (1907) 26 Op. Atty. Gen. 127.

in the tribes and the right to tribal lands or funds, and does not have the effect of abolishing the general exemption of the tribes from civil suits. Adams . Murphy, (1908) 165 Fed. 304, 91 C. C. A. 272, reversing (1907) 7 Ind. Ter. 395, 104 S. W. 658.

Purchaser pending suit, — In a suit under this section the general rule applies that a stranger cannot, by a conveyance or transfer of possession from the defendant pendente lite, acquire any rights which are not subject to the judgment subsequently rendered in the suit, whether or not he is made a party there

to; and where such a purchaser or transferee is brought in by an amended complaint it is not necessary to allege that his membership in the tribe has been disallowed. Hargrove v. Cherokee Nation, (1904) 129 Fed. 186, 63 C. C. A. 276.

lease, etc.]

tribes, or members thereof, by persons in possession under contracts executed prior to Jan. 1, 1898, did not change the character of an

action by a member of one of those tribes of forcible detainer from a law action to a suit in equity. Sharrock v. Kreiger, (1906) 6 Ind. Ter. 466, 98 S. W. 161.

Rental value. The term "rental value," as used in this section, means the sum mentioned in the rental contract up to the year

Vol. III, p. 440, sec. 5.

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Sufficiency of notice. Under this section proper notice by the person bringing the action is sufficient, although an Indian nation is afterward joined as party plaintiff. Har

Vol. III, p. 441, sec. 6.

Substitution of parties. A suit under this Act to dispossess an intruder on lands owned by an Indian tribe or nation, although brought by a member of the tribe, as permitted by the Act, when the tribe fails or refuses to bring it, is based primarily on the right of the tribe, and the court may properly permit it to be substituted as plaintiff, and to allow the name of the original plaintiff to be stricken out, with his consent. Brought. Cherokee Nation, (C. C. A. 1904) 129 Fed. 192.

Complaint. In Price v. Cherokee Nation, (1904) 5 Ind. Ter. 518, 82 S. W. 893, a complaint in an action of ejectment by a Chero

Vol. III, p. 442, sec. 11.

Curtesy. In Sanders r. Sanders, (Okla. 1909) 117 Pac. 338, it was held that a citizen of the Creek Nation in possession of lands of said nation, who filed thereon before the Commission to the Five Civilized Tribes, under this Act, and died April 28, 1900, without receiving her certificate of allotment therefor, was seized of no estate of inheritance, and that curtesy therein did not attach.

Descent and distribution. — The allotment of a citizen of the Creek Nation set apart

Vol. III, p. 443, sec. 13.

Authority of Secretary of Interior. — An instrument dated July 9, 1901, purporting to be a mineral lease from a Delaware Indian of certain lands in the Indian Territory, was held to be void at its inception, as the power to make such a lease was, at that time, vested exclusively in the Secretary of the Interior. This authority was taken from the Secretary of the Interior by section 73 of the Act of July 1, 1902, 32 Stat. L. 727, and it is now impossible for him to give validity to the lease, either in whole or in part. (1904) 25 Op. Atty. Gen. 168.

than three) were authorized to form a corporate company to engage in developing coal mines. This Act was amended Sept. 24, 1887 (Laws Chickasaw Nation, p. 190), so as to include petroleum, natural gas, and asphaltum. Reservation of all lands containing deposits of such minerals was made by Act Cong. June 28, 1898, ch. 517, sec. 13, 30 Stat. L. 498, which required payment of royalties for the benefit of the Indians; and the Chickasaw statute also provided that after the formation of the company, and on compliance with such statute, the corporation was authorized to contract with capitalists to develop and work the mines. It was held that such Acts impliedly authorized the leasing of coal and oil lands allotted to such Indians for a limited period for the tribal or individual benefit of such Indians, and that such leases were not void on their face. McBride 1. Farrington, (1904) 131 Fed. 797, affirmed (C. C. A. 1906) 149 Fed, 114,