Stiff v. M'Laughlin

Buck, J. The case of Draper v. United States (recently decided by the supreme court of the United States) 17 Sup. Ct. 107, in our opinion, disposes of this appeal. I he facts in that case were that Draper, a negro, murdered a negro woman on the Crow reservation, which is within the boundaries of Custer county, Montana. He was indicted and convicted in the circuit court of the United States for the district of Montana. The supreme court holds that said circuit court had no jurisdiction of the crime, following United states v. McBratney, 104 U. S. 621. The Draper opinion discusses the .legislation organizing the Territory of Montana, the enabling act of congress admitting Montana as a state, and the ordinance adopted by the Montana constitutional convention providing : “And said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States,” etc. It also reviews the provision of the treaty with the Crow Indians, and the various acts of congress as to Indians and Indian reservations, and the decisions of the United States courts pertinent to the question of jurisdiction of state and United States courts over Indian reservations. It is unnecessary, [303] therefore, for us to recapitulate the reasoning from which the conclusions of law in the McBratney and Draper decisions, supra, were reached. In the McBratney case is the following language : ‘ ‘The record before us presents no question under the provisions of the treaty as to the punishment of crimes committed by or against Indians, the protection of the Indians in their improvements, or the regulation of congress of the alienation and descent of property and the government and internal police of the Indians. The single question that we can or do decide in this case is that stated in the certificate of division of opinion, namely, whether the circuit court of the United States for the district of' Colorado has jurisdiction of the crime of murder committed by a white man upon a while man within the Ute reservation, and within the limits of the State of Colorado; and, for the reasons above given, that question must be answered in the negative.” In the Draper case the court said : “Of course the construction of the enabling act (of Montana) here given is confined exclusively to the issue before us, and therefore involves in no way any of the questions fully reserved in United States v. McBratney, and which are also intended to be fully reserved here. ” There is nothing in the treaty between the United States and the Flathead Indians to except the Flathead Indian reservation from the law as to the jurisdiction of the state courts of Montana laid down in the Draper decision with reference to the Crow reservation. Counsel for respondents say in their brief : ‘ ‘At the time the answer was drawn in this case, and the motion for judgment on the pleadings was argued, the respondents relied largely on the decisions of United States District Judge Knowles in cases before him (United States v. Partello, 48 Fed. 670; Truscott v. Cattle Co., 73 Fed. 60), in which he had decided, in effect, that state officers had no jurisdiction or right to enter upon Indian reservations in Montana to execute process issued out of state courts. While this principle has been limited, and to some extent overruled, in recent decisions of the court of appeals at San Francisco (see Truscott [304] v. Cattle Co., supra), and by the recent decision of the supreme court of the United States in the Draper case, we believe still that this is the law governing the facts involved in this case. While the answer was drawn under the view that the officer had no right to levy an execution from a state court on property on an Indian reservation in any case, still, happily, the answer sets up certain facts, namely, those alleging the tribal relations of the judgment”debtor Sloan to the United States and the confederated tribes of Indians on the Flathead reservation, which clearly show that the respondent sheriff had no jurisdiction to execute the particular process mentioned in the pleadings in this action. The sheriff had no jurisdiction to go upon the reservation, and violate and disturb such tribal relations, without the consent of the proper officers of the United States who are the guardians of such Indians. The answer sufficiently shows by the facts stated that Sloan, the judgment debtor, was an Indian ward of the United States government, sustaining tribal relations to the Flathead tribe of Indians, and affiliated to them, • and lawfully residing on said Flathead reservation with his property there; and we still contend that the sheriff, under the circumstances, had no right to go upon said reservation, and levy the execution upon said Indian’s property. ” The allegations in their answer relied upon by respondents’ counsel appear in the statement. From these allegations, simmered down, it appears that Sloan, the judgment debtor, was a quarter breed (not an Indian) married to a Flathead Indian woman, and residing with her on the Flathead Indian reservation by the permission of the Flathead Indians and the United States authorities. The only language in the Flathead treaty, from which it can be even remotely inferred that the Flathead and the other confederated tribes on the Flathead reservation had the right to adopt Sloan into their tribe and invest him with the privileges and immunities enjoyed by themselves as tribal Indians, is. set forth in the statement. But clearly this language of the treaty admits of no such inference. It provides, perhaps, for the adoption into their tribe of friendly tribes and bands of Indians of [305] Washington Territory. But the Indian blood in Sloan was Chippewa. He was exactly in the same position as if he had had no Indian blood in him at all. The marriage of a man not an Indian to an Indian woman does not give him the status of a tribal Indian, nor does he acquire such a status from the fact that he resides upon an Indian reservation with an Indian wife. Unless in the government’s treaty with the Flathead Indians themselves, or under some act of congress, a right was expressly given the Flathead Indians to adopt persons other than tribal Indians of Washington territory into their tribe, no court would be justified in holding that any such right existed. Their treaty gave no such right to the Flatheads as we have stated, and we know of no law conferring any such right. Nor from the fact that the United States authorities permitted Sloan to reside on the reservation can it be reasonably inferred that he had acquired, or that it was intended by the government that he should acquire, the status of a tribal Indian. We cannot agree with this contention of respondents’ counsel. It is conceded that the property which the sheriff refused to levy upon was personal property. Sloan, the owner, was not a tribal Indian. By going upon the Flathead Indian reservation, and taking Sloan’s personal property into his custody, the sheriff would not, in our opinion, have necessarily interfered with the Indians themselves, or infringed upon their rights as a tribe under their treaty. The refusal of the Indian agent to grant permission to the sheriff to enter the reservation is no justification of the failure to levy the execution. The agent had no right to refuse such permission. Nor was the advice given the sheriff by the United States district attorney any excuse for said sheriff’s failure to perform a duty enjoined upon him by the laws of Montana. We are of the opinion that the court erred in giving j udgment on the pleadings for the respondents. The judgment is reversed, and the cause remanded, with direction to the court below to render judgment on the pleadings in favor of appellant. Reversed. Hunt, J., concurs. Pemberton, C. J., not sitting.