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fused by the court before June 2d, without appointing any time for the execution of the sentence, but leaving the time to which she was reprieved to stand as such. She was further reprieved from June 2d to June 23d, leaving the sentence of execution to be carried into effect then. She appears to have been kept in the same solitary confinement since February 3d that she was during the three months before February 3d until she was produced on this writ, without further sentence than that of Bennington county court, which expired on that day.

In Medley's Case, 134 U. S. 160, 10 Sup. Ct. 384, 33 L. Ed. 835, solitary confinement, with the sentence of death, appears to have been considered and held to be of itself a separate and severe punishment, in addition to being in custody until execution by hanging; and he appears to have been discharged from that confinement because the state of Colorado had, by statute going into effect after the commission of the crime, provided for the punishment of solitary confinement for a time before the execution. In this case the statutes require the keeper of the prison, having custody, to inflict solitary confinement until February 3d, as it was imposed by sentence of Bennington county court. The prisoner was left to suffer that punishment after February 3d by the reprieve of the Governor, and has been suffering it ever since. The Governor could only reprieve to a certain time, and the Supreme Court could only appoint a new time for execution. Neither could resentence, and she has been suffering the punishment of solitary confinement. since February 3d, without sentence, and has been brought from such confinement on this writ. The fourteenth amendment to the Constitution of the United States provides that no state shall deprive any person of life, liberty, or property without due process of law. The petitioner apparently has been kept in solitary confinement, not imposed as a sentence by any court anywhere, but because the statute (section 2007) left that to be done, and by that law the state of Vermont required the prison officials to inflict that punishment in addition to that of hanging. It was not the Governor nor the Supreme Court of the state. So this appears to be a deprivation of liberty by the state, to the extent of this solitary confinement. She might prefer to have the time of execution fixed by the Supreme Court rather than by the Governor, and the judgment of death would not cut off any of her rights to such consideration. This situation led to the granting of this writ. The question now is whether it is sufficient to require holding the petitioner out of the custody of the State Prison officials and discharging her, because she has been unlawfully made to suffer that punishment until now, and, if remanded to the full custody of the prison officials, would have to suffer it till the time of execution, left to stand according to the reprieves, without being fixed by the court. Due process of law would seem to require that the person be present and have an opportunity to be heard at the time of the sentence, and that the time of execution after it be fixed by the authorized tribunal. No court anywhere would probably sentence to such severe punishment as solitary confinement without the pres

ence of the prisoner. She had not been present at any sentence to that infliction, and therefore appears to have been deprived of the right to be free from it by the state without the due process of law guarantied by the federal Constitution. It follows that she should be discharged from that solitary confinement if it can and should now be done, and altogether, if leaving the time of the reprieve to stand as the time of execution without otherwise fixing it would not be fixing it, and therefore not due process of law. This court has no authority in any manner to interfere with the state proceedings, except to prevent any of the privileges or immunities of the person under the Constitution of the United States from being taken away or abridged. She has all the while had the right to apply to the state courts for relief from this solitary confinement and holding for execution, by habeas corpus proceedings like these. According to Storti v. Massachusetts, 183 U. S. 138, 22 Sup. Ct. 72, 46 L. Ed. 120, and other cases, as understood, these matters should to the extent of denial or failure be followed out in the state courts. A discharge from the solitary confinement on this writ now would be so near the time of execution under the expiration of the reprieve as to be practically inoperative, while it could have been applied for sooner in the state courts or here; and, on the whole, these seem to be so far matters of state procedure that the petitioner should be remanded. It appears that an application for a writ of error to the state Supreme Court has been before Mr. Justice Peckham, and his decision thereon has been referred to. If the questions here had been involved there before him, of course, they would not have been examined here, but it is understood that they were not. An application for a writ of error to review the proceedings of the Supreme Court on the petition for a new trial would not seem to involve any question as to the custody of the petitioner pending that petition or after a reprieve. The facts stated as to the petition for a new trial, the memorandum of the two judges thereon, its disposition, and the omission therefrom of any appointment thereon by the Supreme Court of a time of execution, are found from concessions made by the Attorney General of the state and counsel for the petitioner in her presence at the hearing; and the fact of solitary confinement since February 3d, the same as before, as stated, is inferred from the returns and like concessions of the prison officials.

Petitioner remanded.

After the petitioner was remanded an appeal to the Supreme Court of the United States was applied for and opposed by the In Storti v. Massachusetts an appeal was denied promptly by the judges of the Circuit Court to give "counsel an opportunity to seasonably reach the Supreme Court, or some justice thereof." An appeal appears to have been allowed afterwards by Mr. Justice Gray. In re Storti (C. C.) 109 Fed. 807. Here there was no sufficient time-only about one day before execution-in which to reach a justice of the Supreme Court, and no one else could allow an appeal if it should be denied here. What seems to be more of

a federal question than any involved or determined there arises. here, and to deny an appeal, which is largely a matter of right, would arbitrarily cut off all chance to have it reviewed. The Governor appears to have granted a further reprieve till the 8th of December, after the sitting of the Supreme Court at which the appeal may be determined. After that the appeal was allowed.

UNITED STATES v. HEYFRON, County Treasurer.

(Circuit Court, D. Montana. April 24, 1905.)

No. 690.

INDIANS-ADOPTION OF HALF-BREED INTO TRIBE-TRIBAL RIGHTS.

The various acts of Congress relating to Indians, including those relating to the Flathead Indian Nation, as well as the practice of the executive departments of the government, recognize the right of a tribe to adopt as a member thereof an Indian of the half blood who has continued to reside on the reservation as an Indian, and one so adopted has all the rights of a tribal Indian and a ward of the United States, including the exemption from state taxation of his property held on the reservation, so long as his tribal relation continues.

In Equity. Suit for injunction.

Carl Rasch, U. S. Atty. (Marshall & Stiff, of counsel), for plaintiff. Woody & Woody, for defendant.

HUNT, District Judge. The United States brought this bill against the county treasurer of the county of Missoula, within the state of Montana, praying for a writ of injunction to restrain the said treasurer from enforcing the collection of certain taxes which he was seeking to collect from Michel Pablo. It is alleged that Pablo is an Indian person and a member of the Flathead Indian Nation, and was such during the year of 1903, when the defendant attempted to collect taxes; that, under the laws of the United States and the treaties heretofore entered into by the United States with the Flathead Indian Nation, the said Pablo became, and, as a member of the Flathead Indian Nation, is, a ward of the United States, and entitled to own and hold personal property on the said Indian reservation in his own right, free from taxation by the state and the county of Missoula. The answer denies that Pablo is an Indian or a member of the Flathead Nation, and denies that he is entitled to own and hold property on the Flathead Reservation exempt from taxation.

There is but one question presented by the pleadings, which is, was Michel Pablo a ward of the government of the United States, by reason of his being an Indian and maintaining tribal relations. with certain Indian tribes? The facts are these: Michel Pablo was born about 58 or 60 years ago, east of the Rocky Mountains, in what is now known as part of the state of Montana, and which was at the time of his birth a section recognized as Indian country, occupied by Blackfeet Indians. His father was a Spaniard, and his mother a full-blood Piegan Indian. His father died when he was

young, and after the death of the father the boy accompanied his Indian mother to the Colville Reservation, in the territory of Washington. His mother died there, and he remained on the Colville Reservation until he was about 13, associating in his boyhood with Indian boys. Then he went to De Smet, Mont., which is now within Missoula county; and after staying there a short time he went to the Flathead Reservation, and has lived there ever since, or for about 42 or 43 years. About 4 years after he removed to the Flathead Reservation a council of Indian chiefs of the Indian tribes and Indians was called for the purpose of considering the question of the adoption of Pablo. This council was held in 1864. Pablo himself was present at the council. The chiefs announced his adoption after the council, and ever since that time he has been treated as a member of the tribe by the Indians themselves, and has complied with all the laws, rules, and regulations of the tribe. He married a member of the tribe, and has reared a family, and never has severed his tribal relations, but without interruption has maintained the habits and customs of the Indians. The government of the United States has made no difference in its treatment of Pablo from that accorded to Indians of the tribe, and Pablo has participated and acted with the tribes and nations in tribal affairs and councils and otherwise. His name appears upon the official roll and the annuity roll of the government of the United States, and about 20 years ago, when the Northern Pacific Railroad Company obtained a right of way through the reservation, and paid the Indians about $21,000 therefor, Michael Pablo received a share in the distribution. of the fund, participated in the council of the Indians held in respect to the matter, and was in all respects recognized as entitled to the privileges and rights of membership in the tribe.

From these facts, and the law to be applied to them, I conclude that Michael Pablo was adopted by the Indians rightfully upon the reservation, and that he became tied to the tribes by a relationship lawfully made, and was and is, in law, an Indian sustaining tribal relations. That the Indians had right of adoption, without doing violence to the Stevens treaty of 1856, is inferable from the several acts of Congress bearing upon rights of Indians, and particularly from the provisions of section 1 of "An act to provide for the removal of the Flathead and other Indians from the Bitter Root Valley in the territory of Montana," approved June 5, 1872, c. 308, 17 Stat. 226, wherein it was provided that the President should remove as soon as practicable "the Flathead Indians (whether of full or mixed bloods), and all other Indians connected with said tribe, and recognized as members thereof, from Bitter Root Valley, in the territory of Montana, to the general reservation in said territory (commonly known as the Jocko Reservation), which by a treaty concluded at Hell Gate, in the Bitter Root Valley, July sixteenth, eighteen hundred and fifty-five, and ratified by the Senate March eighth, eighteen hundred and fifty-nine, between the United States and the confederated tribes of Flathead, Kootenai, and Pend d'Oreille Indians, and was set apart and reserved for the use and occupation of said confederated tribes."

The right accorded to all persons who are in whole or in part of Indian blood or descent, who are entitled to allotments of land under any law or treaty, to sue in the Circuit Court of the United States, is also recognition of Congress that those who are but part Indian in blood or descent may be entitled to rights of allotments of land accorded other Indians under laws or treaties. Act Cong. Feb. 6, 1901, c. 217, 31 Stat. 760, amending Act Aug. 15, 1894, c. 290, 28 Stat. 286; 3 Fed. Stat. Ann. p. 503. The act of Congress approved April 23, 1904 (St. 1903-1904, c. 1495, 33 Stat. 302), providing for the survey and allotment of lands within the limits of the Flathead Indian Reservation, expressly authorizes allotments to be made "to all persons having tribal rights, with said confederated tribes of Flatheads, Kootenais, Upper Pend d'Oreille, and such other Indians and persons holding tribal relations as may rightfully belong on said Flathead Indian Reservation, including the Lower Pend d'Oreille or Kalispel Indians now on the reservation, under the provisions of the allotment laws of the United States"; and by section 14 of the same act provision is expressly made for certain expenditures "for the benefit of the said Indians and such persons having tribal rights on the reservation," etc. Taking these several acts of Congress together, I gather from their language that Congress has dealt with the Indians and persons having tribal rights on the reservation with the clear intention to make no distinction between them in the extension of benefits of allotment provisions, and, by expressly including Indians and such persons as have tribal rights on the reservation, it is manifest that Congress intended to and did recognize that tribal relations might be created in a way recognized by other acts of Congress or by executive and judicial interpretation.

We find another instance of the recognition of the practice of Indian tribes, in section 1 of the act of Congress approved June 7, 1897, c. 3, "making appropriations for current and contingent expenses of the Indian department, and for other purposes" (30 Stat. 90), wherein it is provided "that all children born of a marriage heretofore solemnized between a white man and an Indian woman by blood and not by adoption, where said Indian woman is at this time, or was at the time of her death, recognized by the tribe, shall have the same rights and privileges to the property of the tribe to which the mother belongs, or belonged at the time of her death, by blood, as any other member of the tribe, and no prior act of Congress shall be construed as to debar such child of such right."

Turning now to the opinions of the courts regarding the status. of persons claiming to be members of Indian tribes, we find that in the case of Sloan v. United States (C. C.) 118 Fed. 283, Judge Shiras held that:

"Recognition of persons as members of an Indian tribe might be had and allotments of land might be made where the tribe clearly deemed such person as a member; and the right of the Interior Department in making an allotment to persons other than actual resident members of the tribe was recognized where the Indians had acted in open council, and had declared persons to be members of the tribe, and entitled to share in the allotments of tribal lands."

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