statutes. The necessity of connecting the East and the West by rail was paramount to all other considerations. It was impossible to prevent it, and as it was necessary to cross the Indian reservations rights of way were given to the companies. In some instances new treaties were made with the Indians whose reservations were affected; in other cases Congress acted first and adjusted the matter afterwards, sometimes providing in the statutes for compensation, sometimes leaving it to the court, and sometimes not making any direct provision whatever. Under such circumstances matters involving the construction of Indian treaties reserving territory for the Indians and subsequent statutes granting the same territory to railroad companies frequently came before the courts. The rule adopted, generally speaking, has been to uphold and construe the treaty and the statute together whenever possible, but, if impossible to do so, the later statute must prevail, the grant be upheld, and the loss sustained by the Indians settled by Congress, or by the Court of Claims, or such other court, as may have jurisdiction, either under general statutes or ones passed for the special occasion.

There are over a hundred statutes and as many decisions involving these questions; a few cases only are referred to in the notes. The treaties can be found by examining the

§ 418.

1 Buttz vs. Northern Pacific Railroad, U. S. Sup. Ct. 1886, 119 U. S. 55, FIELD, J.

Cal. & Ore. Land Co. vs. Worden, U. S. Cir. Ct. Ore. 1898, 85 Fed. Rep. 94, and 87 Fed. Rep. 532, BELLINGER, J.

Cherokee Nation vs. Southern Kansas Railway Co., U. S. Sup. Ct. 1890, 135 U. S. 641, HARLAN, J.

Illinois Steel Co. vs. Budzisz, U.S. C. C. E. D. Wis. 1897, 82 Fed. Rep. 160, SEAMAN, J. And see also Budzisz vs. Illinois Steel Co., U. S. Sup. Ct. 1898, 170 U. S. 41, SHIRAS, J. Leavenworth &c. R. R. Co. vs. United States, U. S. Sup. Ct. 1875, 92 U. S. 733, DAVIS, J.

M. K. & T. R. R. Co. vs. Roberts,

U. S. Sup. Ct. 1894, 152 U. S. 114,
FIELD, J.

M. K. & T. R. R. Co. vs. United
States, U. S. Sup. Ct. 1875, 92
U. S. 760, Davis, J.

Shepard vs. N. W. Life Ins. Co., U. S. Cir. Ct. Michigan, 1889, 40 Fed. Rep. 341, BROWN, J.

Ross vs. Eells, U. S. Cir. Ct. N. D. Wash. 1893, 56 Fed. Rep. 855, HANFORD, J. And see also Eells vs. Ross, 64 Fed. Rep. 417.

St. Paul, etc., Ry. Co. vs. Phelps, U. S. Sup. Ct. 1890, 137 U. S. 528, LAMAR, J.

Stroud vs. Missouri River, etc., R. R. Co., U. S. Cir. Ct. Kan. 1877, 4 Dillon, 396, Fed. Cas. 13,547, DILLON, J.

Utah & Northern Ry. Co. vs.

Indian treaty volume of 1873 and the statutes are generally referred to in the opinions. The abandonment of the treaty method of dealing with Indians has greatly lessened this class of cases.

§ 419. Criminal jurisdiction; treaty provisions and statutes. Many of the Indian treaties contain provisions for the trial of Indians by their own tribunals.

The special provisions of the treaties control the extent of this exclusive jurisdiction, which depends upon the nationality of the accused and the locality of the crime.

In a leading case by the Supreme Court1 the history of

Fisher, U. S. Sup. Ct. 1885, 116
U. S. 28, FIELD, J.

$419.

1 United States vs. Kagama, U. S. Sup. Ct. 1886, 118 U. S. 375, MILLER, J.

The questions in this case arose on demurrer to an indictment against two Indians for murder of another Indian, committed on an Indian reservation in California.

The question was whether the United States had the right to pass the act of 1885, giving Congress necessary jurisdiction to try Indians under such circumstances on reservations and where tribal relations still existed.

| the United States from Mexico by the treaty of Guadalupe-Hidalgo, and the whole of California, with the allegiance of its inhabitants, many of whom were Indians, was transferred by that treaty to the United States.

"The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one and of a complex character.

66

Following the policy of the European governments in the discovery of America towards the Indians who were found here, the The court reviewed the relation colonies before the Revolution and of the Indians to the United States the States and the United States at length, and the right of the Uni- since, have recognized in the Inted States to govern territories, re- dians a possessory right to the soil ferring to the cases of the Cherokee over which they roamed and hunted Nation vs. State of Georgia, 5 Pe- and established occasional villages. ters, 1; Murphy vs. Ramsey, 114 U. But they asserted an ultimate title S. 15; American Insurance Com- in the land itself, by which the Inpany vs. Canter, 1 Peters, 511, dian tribes were forbidden to sell United States vs. Rogers, 4 How- or transfer it to other nations or ard, 567, and in regard to the pres-peoples without the consent of this ent status of the Indians and the paramount authority. right of the United States to legislate in regard to them the court says (pp. 381-385):

"The Indian reservation in the case before us is land bought by

When a

a tribe wished to dispose of its land, or any part of it, or the State or the United States wished to purchase it, a treaty with the tribe was the only mode in which this could

Indian relations was reviewed at length and the jurisdiction of the Indian tribal courts sustained to the exclusion of that of the United States courts.

they were within its limits, where they had been for ages, had attempted to extend her laws and the jurisdiction of her courts over them.

"In the opinions in these cases they are spoken of as 'wards of the nation,' 'pupils,' as local de

be done. The United States recognized no right in private persons, or in other nations to make such a purchase by treaty or otherwise. With the Indians themselves these relations are equally difficult to define. They were, and always have been, regarded as having a semiindependent position when they pendent communities. In this preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided.

"Perhaps the best statement of their position is found in the two opinions of this court by Chief Justice Marshall in the case of the Cherokee Nation vs. Georgia, 5 Peters, 1, and in the case of Worcester vs. State of Georgia, 6 Peters, 515, 536. These opinions are exhaustive; and in the separate opinion of Mr. Justice Baldwin, in the former, is a very valuable résumé of the treaties and statutes concerning the Indian tribes previous to and during the confederation.

"In the first of the above cases it was held that these tribes were neither states nor nations, and had only some of the attributes of sovereignty, and could not be so far recognized in that capacity as to sustain a suit in the Supreme Court of the United States. In the second case it was said that they were not subject to the jurisdiction asserted over them by the State of Georgia, which, because

spirit the United States has conducted its relations to them from its organization to this time. But, after an experience of a hundred years of the treaty-making system of government, Congress has determined upon a new departureto govern them by acts of Congress. This is seen in the act of March 3, 1871, embodied in sec. 2079, U. S. Revised Statutes (the section is then quoted as on p. 197, ante):

"The case of Crow Dog, 109 U. S. 556, in which an agreement with the Sioux Indians, ratified by an act of Congress, was supposed to extend over them the laws of the United States and the jurisdiction of its courts, covering murder and other grave crimes, shows the purpose of Congress in this new departure. The decision in that case admits that if the intention of Congress had been to punish, by the United States courts, the murder of one Indian by another, the law would have been valid. But the court could not see, in the agreement with the Indians sanctioned by Congress, a purpose to repeal sec. 2146 of the Revised Statutes, which expressly excludes from that jurisdiction the case of a crime committed by one Indian against another in the Indian country.

A number of cases are cited in the notes in which the jurisdiction of Federal, State and Territorial courts has been the sole question argued and decided in trials of Indians.

The passage of the act now under consideration was designed to remove that objection, and to go further by including such crimes reservations lying within a

on

state.

to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation.

"It seems to us that this is within the competency of Congress. "Is this latter fact a fatal objec- These Indian tribes are the wards tion to the law? The statute in it- of the nation. They are communiself contains no express limitation ties dependent on the United States. upon the powers of a state or the Dependent largely for their daily jurisdiction of its courts. If there food. Dependent for their politibe any limitation in either of these, cal rights. They owe no allegiance it grows out of the implication to the States, and receive from them arising from the fact that Congress no protection. Because of the has defined a crime committed within the state, and made it punishable in the courts of the United States. But Congress has done this, and can do it, with regard to all offences relating to matters to which the Federal authority extends. Does that authority extend to this case?

local ill-feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and Congress, and by this court, whenever the question has arisen.

"It will be seen at once that the nature of the offence (murder) is one which in almost all cases of its commission is punishable by the laws of the States, and within the jurisdiction of their courts. The "In the case of Worcester vs. distinction is claimed to be that The State of Georgia, above cited, the offence under the statute is it was held that, though the Indians committed by an Indian, that it is had by treaty sold their land within committed on a reservation set that State, and agreed to remove apart within the state for residence away, which they had failed to do, of the tribe of Indians by the Uni- the State could not, while they reted States, and the fair inference mained on those lands, extend its is that the offending Indian shall laws, criminal and civil, over the belong to that or some other tribe. tribes; that the duty and power to It does not interfere with the proc- compel their removal was in the ess of the State courts within the United States, and the tribe was reservation, nor with the operation under their protection, and could of State laws upon white people not be subjected to the laws of the found there. Its effect is confined State and the process of its courts.

2 For note 2 see p. 229.

§ 420. Indian citizenship; treaties and statutes; status of native inhabitants of acquired possessions.—The ques

Indian jurisdiction sustained: Held, that the United States courts had no jurisdiction under the Cherokee Treaties to try an Indian for killing an Indian in the Cherokee Nation's territory. Held also that the burden of proof was on A Passamaquoddy Indian inthe prosecution to prove that the murdered man in the Indian country was not an Indian.