Sol Louie v. United States

HUNT, Circuit Judge. Sol Fouie brought writ of error to review conviction of murder in the second degree for having killed Adeline Fouie, a Coeur d’Alene Indian and a ward of the United States, about May 24, 1919, in Benewah county, Idaho, alleged to be in an Indian country, within the limits of the Cceur d’Alene Indian reservation in Idaho. The indictment is drawn under section 328 of the Penal Code (Comp. St. § 10502), which provides that any and all such Indians committing murder— “against the person or property of another Indian or other person within the boundaries of any state of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and be subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.” It is alleged that Fouie was a Coeur d’Alene India'n, who had theretofore been declared competent by the authorities of the Department of Indian Affairs, and that he was a member of the Cceur d’Alene tribe of Indians, by reason of the fact that he then and there had, in common with all other members of said tribe, an interest in certain tribal funds thereafter to be disbursed to the members of said tribe, including Fouie. These facts appeared upon ‘the trial : Fouie was given a patent in fee to certain lands in the Coeur d’Alene Indian reservation. Prior to receiving his patent he had a trust patent upon the land, the United States holding tire land in trust for him. Adeline Fouie was a ward of the government, and had never been declared competent, and never had received any patent in fee for allotment. The land patented is within the boundaries of the Coeur d’Alene Indian reservation as the limits of such reservation were prior to the time the last cession was made. There are no tribal lands on the Coeur d’Alene reservation, and all lands that had not been allotted were open to settlement on May 2, 1910. At the time of tire assault the woman was living on the land that was patented to Fouie, but her death occurred upon a lot which had been patented to another person. There were 18,000 acres of land which had never been settled upon and which were included in the cession by the Coeur d’Alene Tribe back to the United States; the Indians having an interest in these lands to the extent that they will get the money to accrue from the sale thereof. The land itself, however, is owned by the United States and is thrown open and platted by white people. What are called Indian lands now consist of the individual allotments in severalty to the members of the tribe and certain town-sites on the reservation. By the cession of the 18,000 acres the Indians relinquished their rights to the land, and when the patents are issued they are made 'direct to” the purchasers from the United States. [297] Louie has had his share of the one distribution already made of the proceeds of sales of part of the 18,000 acres. He lived on the land included in the allotment to him, and had power to rent or sell the land. The patent to Louie was issued under the provisions of the Act of May 8, 1906 (chapter 2348, 34 Stat. 182), amending section 6 of the Act of February 8, 1887. It provides: That at the expiration oi' the trust period, and when the lands have been conveyed to the Indian by patent in fee, as provided by section 5 of the act, “then each and every allottee 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 no territory shall pass of enforce any law denying any such Indian within its jurisdiction Hie equal protection of the law: * * * Provided, that the Secretary of the Interior may, in his discretion, and ho is hereby authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, Incumbrance, or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent: Provided further, that until the issuance of fee-simple patents all allottees to whom trust patents shall hereafter be issued shall be subjbct to the exclusivo jurisdiction of the United States: And provided further, that the provisions of this Act shall not extend to any Indians in the Indian Territory.” Barnes’ Fed. Code, p. 801, ■§ 3598 (Comp. St. § 4203). Counsel agree in their respective briefs that the only question presented by the record for determination is whether the District Court had jurisdiction of the crime charged and over the person of the defendant below. In our opinion this court has no jurisdiction to review the judgment of the District Court. The question of the construction of that portion of the Act of March 3, 1891 (26 Stat. 826; section 238, Judicial Code [Comp. St. § 1215]), which provides that appeals and writs of error may be taken from the District Court direct to the Supreme Court in any case in which jurisdiction of the court, is in issue, has often been considered, and the view which obtains is that, in order that the Circuit Court of Appeals may entertain the writ of error, there must be in the case something more than the question of jurisdiction. This court so held in Excelsior Wooden-Pipe Co. v. Pacific Bridge Co. et al., 109 Fed. 497, 48 C. C. A. 349. See, also, Halpin v. Amerman, 138 Fed. 548, 70 C. C. A. 462; Boston & M. R. Co. v. Gokey, 149 Fed. 42, 79 C. C. A. 64, 9 Ann. Cas. 384; Smith v. Farbenfabriken of Elberfeld Co., 203 Fed. 476, 121 C. C. A. 598; In United States ex rel. Butterworth & Lowe v. Sessions, Judge, 205 Fed. 502, 123 C. C. A. 570, the Court of Appeals for the Sixth. Circuit said that, where only a question of jurisdiction of the District Court is involved, the Circuit Court of Appeals has no power, either upon error or appeal, to review the decision of the District Court. “The remedy lies exclusively in the Supreme Court (Remington v. Central Pacific R. Co., 198 U. S. 95, 97 ; 25 Sup. Ct. 577, 49 L. Ed. 959; Olds v. Herman H. Hettler Lumber Co., 195 Fed. 9, 11, 115 C. C. A. 91 [C. C. A. 6th Cir.]; Coler v. Grainger County, 74 Fed. 16, 21, 20 C. C. A. 267 [C. C. A. 6th Cir.]; Loveland, App. Jur. § 103, p. 222) ; but if the case should be tried on its merits in the court below, and brought to this court with assignments of error-raising an independent question of general law, this court would have power [298] to hear and determine all the questions (see cases last cited, and A. J. Phillips Co. v. Grand Trunk Western Ry. Co., 195 Fed. 12, 15, 115 C. C. A. 94 [C. C. A. 6th Cir.] ; Smith v. Farbenfabriken of Elberfeld Co. [C. C. A.] 203 Fed. 476, 478, 121 C. C. A. 598 [C. C. A. 6th Cir.]).” See Hammond Lumber Co. v. U. S. District Court, 240 Fed. 924, 153 C. C. A. 610; Great Northern R. Co. v. Blaine County, 252 Fed. 548, 164 C. C. A. 464. The writ must be dismissed for lack of jurisdiction.