United States ex rel. Davis v. Shanks

McMillan, J. By the Court It fully appears that Hole-in-the-day, the deceased, was an Indian .of unmixed blood, and was at the time of his death, and for a long time prior thereto, had been a Chief of the Chippewas of the Mississippi, Pillager, and Lake Winnebagoshish bands of Chippewa Indians, in Minnesota; that he and the said bands did at the- time of his death hold treaty relations to [379] the United States; that his children and heirs are Indians ; that the said Hole-in-the-day was at the time of his death possessed of personal property, and of certain real estate hereinafter mentioned. It appears that by treaty of May 7, 1864, between the United States of America, and the said Ohippewas of the Mississippi and Pillager and Lake Winnebagoshish bands of Chippewa Indians in Minnesota, “the reservations known as Gull Lake, Mille Lac, Sandy Lake, Rabbit Lake, Pokagomin Lake, and Rice Lake, as described in the second clause of the second article of the treaty with the Ohippewas of the 22d of February, 1855, are ceded to the United States, excepting * * * * one section of land, to be located by the Secretary of the Interior, on the southeast side of Gull Lake, and which is hereby granted in fee simple to the chief Hole-in-the-day,” &c. That in pursuance of the requirements of the said treaty, the Secretary of the Interior of the United States did afterwards locate within the limits of the property so ceded, the. following described property; section six in town one hundred and thirty-four, north of range twenty-eight, west, the same being a fractional section and containing 292.98 acres, also section one in said town, and in range twenty-nine, west, the same being a fractional section and containing 233.68 acres; also lots one, two and three, in section two in said town, and range last mentioned, containing 95.01 acres; also lot one, in section twelve, in the town and range last mentioned, containing 47.50 acres; and that on July 24, 1866, a patent issued from the United States to said Hole-in-the-day, therefor ; that the said Hole-in-the-day at the time of his death resided upon the premises aforesaid, and that said premises lie' wholly in Cass county, Minnesota. Upon this state of facts, we are of opinion that the probate court of Morrison county had no jurisdiction of the estate of the deceased for any purpose. [380] We take judicial notice of the treaty of February 22, 1855, between the United States and the bands of Indians above mentioned, by the second article of which certain lands described therein are reserved and set apart for the permanent homes of the said bands of Indians. 10 U. S. Stat. at L. 1166. These were therefore Indian reservations, and these reservations are the lands ceded by the treaty of May 7th, 1864. 13 U. S. Stat. at L. 693. The portion of the original reservation granted in fee to Iiole-in-the-Day being expressly excepted from the cession in the latter treaty, and the exception and grant being made in favor of and to Hole-in-the Day, an Indian and Chief of the bands executing the treaty, the land excepted and embraced in the grant must retain its original character as an Indian reservation, from which the jurisdiction of the state for civil purposes, at least, was excluded. The Indians within our territory have always been considered and recognised by the United States as distinct political communities; and so far as is essential to constitute them separate nations, the rights of sovereignty have been conceded to them. Worcester vs. the State of Georgia, 6 Peters, 515. The intestate, Indian chief Hole-in-the-Day, therefore, was not a citizen of the State of Minnesota, nor of the United States, but belonged to a separate nation, upon whom the laws of the state beyond the territorial limits of the state could haye no force; and the Indian reservation, which was in his occupancy, and upon which he resided, was not embraced within the civil jurisdiction of the state. The law oí the domicil and the law of the place where the property is situated are identical, and none of the questions which arise where these differ, are presented in this case. The state did not give the law to either. [381] The state court, therefore, having no jurisdiction, it is not for us to look further. If it were necessary to find a jurisdiction, we might find it in the United States Government, which has under the constitution power to regulate commerce with these Indian tribes, and who although separate nations are yet under the protection of the general government (Story on the Constitution, sec. 110, and authorities cited), and the immediate superintendence of its officers and agent; or in the Indian tribe to which the deceased belonged. The absolute "Writ of Prohibition should be granted.