State v. Nimrod

McCOY, P. J. The defendant, Joseph Nimrod, was charged with the offense of bigamy, alleged in the information to have been committed as follows: “That Joseph Nimrod, on the ist day of November, in the year of our Lord one thousand nine hundred and nine, at the county of 'Charles Mix, and state of South Dakota aforesaid, and at the city of Wagner, in said county of Charles Mix, state of South Dakota, within the boundaries of the original Yankton Inndian reservation, and upon deeded land for which the United States had heretofore issued a patent in fee, and released all its title, rights, and interest therein, did then and there willfully, unlawfully, and feloniously marry one Victoria Pledges, a female person, she the said Victoria Pledges, being then and-there a mixed-breed -Indian woman of the half blood and a member of the Yankton Sioux tribe of Indians, and her, the said Victoria Pledges, then and thepe had for his wife, he, the., said Joseph Nimrod, being then and there an Indian of -the Yankton Sioux tribe of Indians, and he, the said Joseph Nimrod being then and there a married man, having been theretofore, and on the 17th day of September, A. D. 1905, at the. city of Valentine, Cherry comity, Nebraska, and outside of an Indian reservation, lawfully married to one Caroline Douville, who ivas thereafter known as Caroline Nimrod, and who was then and there a mixed-breed Rosebud Indian and a resident of the Rosebud Indian reservation in South Dakota, she, the said Caroline Douville, being then and there on the ist day of November, 1909, alive and the bonds of matrimony and the marriage between him, -the said Joseph Nimrod, and her, the said Caroline Douville being then and there unliss-olved, the same never having been dissolved, terminated, or annulled by any court having competent jurisdiction, and that he, -the said Joseph Nimrod, at the time of. his said marriage with her, -the said Caroline Douville, had been alloted land on the Yankton Indian reservation 'in South Dakota by the United States, and the said, allotted land had prior thereto. been patented to'him by the United States under and in accordance with the provisions of the act of Congress approved February 8, 1887, entitled 'An act -to provide for -the allotment of lands in 'severalty- to Indians on the various reservations and to ex — 251 — tend the protection of the laws of the United States and the territories over -the Indians and for other purposes/ and in accordance with an act of Congress, approved February 28, 1891, amending ■the said act of February 8, 1887, entitled 'An act to amend and further extend the benefits of the ac-t approved February 8, 1887, entitled “A11 act to provide for the allotment of land in severalty to Indians on the various reservations and to extend the protection of the laws of the United States over the Indians and for other purposes,” ■' and that he, the said Joseph Nimrod, was born within the territorial limits of the United States, and that he, the said Joseph Nimrod, at the time of said marriage with her, the said Victoria Hedges, was under the supervision of the United States Indian agent at Greenwood, South Dakota, the same being the agency maintained by -the United States for the benefit of the Yankton tribe cf Sioux Indians, and that he,, the said Joseph Nimrod, prior to -the time of his said marriage to the said Caroline Douville, had voluntarily taken up within -the limits of the state of South Dakota his residence 'separate and apart from any tribe of Indians within the United States and had adopted the habits of civilized life and was then and there a citizen of the United States and of the state of South Dakota.” To this information the defendant demurred upon the grounds (1) that the alleged facts stated in the said information do not constitute a public offense; (2) that from the facts alleged in said information, if any crime or public offense was committed -the same was not committed within the jurisdiction of this count. The said demurrer was sustained, and the state appeals. [1] It is the contention of appellant that by reason of the defendant having taken land in severalty under the act of Congress of February 8, 1887 (the Dawes Act), and also having voluntarily taken up within the limits of the state of South Dakota his residence separate and apart from any tribe of Indians within the United States and adopted the habits of civilized life, he ■thereby became a citizen of the United States and of the state of South Dakota, and amenable to all the laws of the state, both civil and criminal. We are inclined to the view that appellant is right in this contention. It is contended by respondent that, inasmuch as it appears from the information that defendant is an Indian, and -that the offense was committed by one Indian against — 252 — another Indian jvithin the 'boundaries of the Yankton Indian reservation, the United 'States has exclusive jurisdiction of the offense. There is much seeming conflict of authority on this question, but a careful examination of the decisions, with the underlying reason, upon the particular facts of each case, removes much of such conflict. One of the best considered cases is that of State v. Columbia George, 39 Or. 127, 65 Pac. 604. The defendant was a Umatilla Indian, and it was held that the provisions of the Dawes Act do not apply to the Umatilla Indians because the allotments on the Umatilla reservation were not made under the provisions of the Dawes Act, but under the provisions of another special act not containing like provisions as to. citizenship and amenability of the allottees to the state laws. The court said: “The language of said first clause of section 6 (Dawes Act) ‘that upon the completion of said allotments and the patenting of the lands to the said allottees/ has reference to the allotments and allottees under the act, and none- other, and hence does not comprehend Indian allottees under special acts and therefore cannot affect the Umatilla Indians.” Also, in this Columbia George Case, in discussing the provisions of the Dawes Act, the learned court draws the plain distinction between Indian allottees who have voluntarily taken up their residence separate and apart from the Indian tribe and adopted the habits of civilized life and those who still retain to some degree the tribal relation, with the plain inference that those who have taken allotments under the Dawes Act, and have wholly abandoned the tribal relation, and have adopted the habits of civilized life would be amenable to- the state laws. Section 6, Act Feb. 8, 1887 (-the Dawes Act), provides that, upon the completion of -said allotments and the patenting of the lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of -the state or territory in which they may reside, and every Indian- born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from- any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and. immunities of such citizens. In construing this act in — 253 — relation to -the commission of crimes by one Indian against another, in the state of North Dakota (U. S. v. Kiya [D. C.] 126 Fed 879), the United States court said: “The language that such Indians ‘should be subject to the laws, both civil and criminal, of the state or territory in which they reside,’ is as plain and comprehensive as it could well be made. It could not have been the intention of Congress to render these Indians subject generally to the criminal laws both of the state and the nation. The language quoted plainly makes them amenable to the criminal laws of the state, and thereby removes them from the plane of national penal legislation, unless such legislation is by express provision in particular cases made applicable to them.” Also see the cases of State v. Williams, 13 Wash. 335, 43 Pac. 15, and State v. Howard, 33 Wash. 250, 74 Pac. 382. In the first of these cases the Supreme Court of Washington said: “Our investigation of the authorities leads us to conclude that an Indian who has severed his tribal relations may be prosecuted in the courts of this state without regard to whether the place of the commission of the offense is within or without the limits of a reservation.” In the Howard Case, referring to this part of the decision in the Williams Case, the Supreme Court of Washington again said: “While the above language may not have applied to the facts of the case then under discussion, yet, based upon our discussion herein, and upon authorities cited in that opinion, we do not believe that it was an erroneous .statement of the law. We do not believe it was the intention of Congress that an Indian without tribal relations who resides among the white people of the state and is amenable to the laws -thereof can go within an Indian reservation and commit a crime against another Indian, and then assert that the court of the state cannot try him for the crime. It has been often held that the state courts can try white men for crimes committed within a reservation, and we can see no reason in principle why the jurisdiction of .the state shall not likewise extend to an Indian who is not allied with any tribe, and who is not therefore a subject of guardianship by the United States.” While these two last cited cases are not based expressly upon the provisions of the Dawes Act, yet the Dawes Act was in .force at the time of their rendition. The case of United States v. Celestine, 215 U. S. 291, 30 Sup. Ct. 93, 54 L. Ed. 195, is cited by appellant, but under the — 254 — Columbia George Case the Celestine Case is not applicable to Indian allottees under the Dawes Act, the defendant in that case being a Tulalip Indian holding an allotment of land in severalty, not under Act Feb. 8, 1887, .but under Ti'eaty March 16, 1854, 10 Stat. 1043. In view of the fact that the information alleges defendant to be an aillottee under the Act Feb. 8, 1887, and that he has voluntarily taken up within the limits of .this state his residence separate and apart from any tribe of Indians, and has adopted the habits of civilized life, we are of the opinion that he is amenable to the general ciriminal laws of this state, as to all criminal offenses, excepting only where the acts of Congress by 'express provisions, in particular cases have made the laws of the United States applicable to such Indians as he. [2] It is also contended by respondent that inasmuch as the crime of bigamy is not mentioned in the special act of Congress of February 2, 1903 (Act Feb. 2, 1903, c. 351, 32 Stat. 793), providing “That the Circuit and District -Courts of the United States for the Distinct of South Dakota are hereby given jurisdiction to hear, try, and determine all actions and proceedings in which any person shall be charged with the crime of murder, manslaughter, rape, assault with intent to kill, arson, burglary, larceny, or assault with a 'dangerous weapon, committed within the limits of any Indian reservation in the state of South Dakota,” it ivas intended that Indians should not be liable to prosecution for the offense, of bigamy. According to the decision in United States v. Iviya, supra, if the allottee under the Dawes Act is amenable to the general criminal laws of the state, except where Congress has by express legislation, in particular cases, provided otherwise, it would seem to leave no- room for doubt but what respondent was still liable to prosecution for bigamy under the state law. It would seem to necessarily follow that, if respondent is amenable to the criminal laws of the state by being an allottee under the Dawes Act, he is amenable to all the criminal laws- of the state except where Congress has expressly legislated otherwise in particular cases. This is one of the particular cases where Congress hai not legislated otherwise. Bigamy is one of the offenses created by the general criminal laws of the state. If an Indian in this •state' is exempt from prosecution for bigamy for such cause, for the very 'same reason he would be exempt from prosecution for for — 255 — gery, embezzlement, incest, obtaining property by means of false pretenses and all other crimes under our statute not mentioned in this special act of February 2, 1903. It will be observed that this act of February 2, 1903, provides, “in which any person shall be charged with the crime .of murder,” etc., thereby making the said act apply to all persons whomsoever, whether Indians or whites. It does not purport to be limited to Indians only. There is no ■distinction between whites and Indians so far as the operation of this law is concerned. We are not prepared to concede that a white man could not be successfully prosecuted for bigamy although committed on an Indian reservation. The judgment of the lower court 'sustaining the demurrer to the information is reversed, and the cause remanded for further procedure.