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in all those provisions, most of which were originally counected with it when first enacted, and which still refer to it. It would be other. wise impossible to explain these references, or give effect to many of the most important provisions of existing legislation for the government of Indian country. It follows that the locus in quo of the alleged offense is within Indian country over which, territorially, the district court of the first judicial district of Dakota, sittiug with the authority of a circuit court of the United States, had jurisdiction. Butif section 2145, Rev. St., extends the act of congress, section 5339, punishing murder, to the locality of the prisoner's offense, section 2146 expressly excepts from its operation “crimes committed by one Indian against the person or property of another Indian;" an exception which includes the case of the prisoner, and which, if it is effective and in force, makes his conviction illegal and void. This brings us at once to the main question of jurisdiction, deemed by congress to be of such importance to the prisoner and the public as to justify a special appropriation for the payment of the expenses incurred on his behalf in presenting it for decision in this proceeding to this court. 22 St. p. 624, c. 143, March 3, 1883. The argument in support of the jurisdiction and conviction is, that the exception contained in section 2146, Rev. St., is repealed by the operation and legal effect of the treaty with the different tribes of the Sioux Indians of April 29, 1868, (15 St. 635;) and an act of congress, approved February 28, 1877, to ratify an agreement with certain bands of the Sioux Indians, etc. 19 St. 254.
The following provisions of the treaty of 1868 are relied on:
"Article 1. From this time forward all war between the parties to this agreement shall forever cease. The government of the United States desires peace, and its honor is hereby pledged to keep it. The Indians desire peace, and they now pledge their honor to maintain it.
"If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the commissioner of Indian affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.
"If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States and at peace therewith, the Indians herein named solemnly agree that they will, upon proof made to their agent and notice by him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws. And in case they wilfully refuse so to do, the person injured shall be reimbursed for his loss from the annuities or other moneys due or to become due to them under this or other treaties made with the United States. And the president, on advising with the commissioner of Indian affairs, shall prescribe rules and regulations for ascertaining damages under the provisions of this article as in his judgment may be proper. But no one sustaining loss while violating the provisions of this treaty or the laws of the United States shall be reimbursed therefor."
The second article defines the reservation, which, it is stipulated, "Is set apart for the absolute and undisturbed use and occupation of the Indians herein named, and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit among them; and the United States now solemnly agrees that no person except those herein designated and authorized so to do, and except such officers, agents, and employes of the government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over,"settle upon, or reside in the territory described in this article.”
"Article 5. The United States agrees that the agent for said Indians shall in future make his home at the agency building; that he shall reside among them, and keep an office open at all times for the purpose of prompt and diligent inquiry into such matters of complaint by and against the Indians as may be presented for investigation under their treaty stipulations, as also for the faithful discharge of other duties enjoined upon him by law. In all cases of depredation on person or property he shall cause evidence to be taken in writing and forwarded, together with his findings, to the commissioner of Indian affairs, whose decision, subject to the revision of the secretary of the interior, shall be binding on the parties to this treaty."
Other provisions of this treaty are intended to encourage the settlement of individuals and families upon separate agricultural reservations, and the education of children in schools to be established. The condition of the tribe, in point of civilization, is illustrated by stipulations on the part of the Indians, that they will not interfere with the construction of railroads on the plains or over their reservation, nor attack persons at home or traveling, nor disturb wagon trains, mules, or cattle belonging to the people of the United States, por capture nor carry off white women or children from the settlements, nor kill nor scalp white men, nor attempt to do them harm.
By the Indian appropriation act of August 15, 1876, congress appropriated $1,000,000 for the subsistence of the Sioux Indians, in accordance with the treaty of 1868, and "for purposes of their civilization,” (19 St. 192,) but coupled it with certain conditions relative to a cession of a portion of the reservation, and with the proviso "that no further appropriation for said Sioux Indians for subsistence shall hereafter be made until some stipulation, agreement, or arrangement shall have been entered into by said Indians with the president of the United States, which is calculated and designed to enable said Indians to become self-supporting.” In pursuance of that provision the agreement was made, which was ratified in part by the act of congress of February 28, 1877. The enactment of this agreement by statute, instead of its ratification as a treaty, was in pursuance of the policy which had been declared for the first time in a proviso to the Indian appropriation act of March 3, 1871, (16 St. 566, c. 120,) and permanently adopted in section 2079 of the Revised Statutes, that thereafter “no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation,
tribe, or power with whom the United States may contract by treaty,” but without invalidating or impairing the obligation of subsisting treaties.
The instrument in which the agreement was embodied was signed by the commissioners, on the part of the United States, and by the representative chiefs and head men of the various Sioux tribes, but with certain exceptions on the part of some of the latter, and consisted of 11 articles. The first defines the boundaries of the reser. vation; the second provides for wagon roads through it to the country lying west of it, and for the free navigation of the Mississippi river; the third for the places where annuities shall be received. Article four was as follows:
"The government of the United States and the said Indians being mutually desirous that the latter shall be located in a country where they may eventually become self-supporting and acquire the arts of civilized life, it is therefore agreed that the said Indians shall select a delegation of five or more chiefs and principal men from each band, who shall, without delay, visit the Indian territory, under the guidance and protection of suitable persons, to be appointed for that purpose by the department of the interior, with a view to selecting therein a permanent home for the said Indians. If such delegation shall make a selection which shall be satisfactory to themselves, the people whom they represent, and to the United States, then the said Indians agree that they will remove to the country so selected within one year from this date. And the said Indians do further agree in all things to submit themselves to such beneficent plans as the government may provide for them in the selection of a couutry suitable for a permanent home, where they may live like white men."
The fifth article recites that, in consideration of the foregoing cession of territory and rights, the United States agrees “to provide all necessary aid to assist the said Indians in the work of civilization; to furnish to them schools, and instruction in mechanical and agricultural arts, as provided for by the treaty of 1868;" to provide subsistence, etc. Article 8 is as follows:
"The provisions of the said treaty of 1868, except as herein modified, shall continue in full force, and, with the provisions of this agreement, shall apply to any country which may hereafter be occupied by the said Indians as a home; and congress shall, by appropriate legislation, secure to them an orderly government; they shall be subject to the laws of the United States, and each individual shall be protected in his rights of property, person, and life.
“Art. 9. The Indians, parties to this agreement, do hereby solemnly pledge themselves, individually and collectively, to observe each and all of the stipulations herein contained; to select allotments of land as soon as possible after their removal to their permanent home, and to use their best efforts to learn to cultivate the same. And they do solemnly pledge themselves that they will, at all times, maintain peace with the citizens and government of the United States; that they will observe the laws thereof, and loyally endeavor to fulfill all the obligations assumed by them under the treaty of 1868 and the present agreement, and to this end will, whenever requested by the president of the United States, select so many suitable men from each band to co-operate with him in maintaining order and peace on the reservation as the president may deem necessary, who shall receive such compensation for their services as congress may provide.”
By the eleventh and last article it was provided that the term "reservation,” as therein used, should be held to apply to any country which should be selected under the authority of the United States as their future home. The fourth article and part of the sixth article of the agreement, which referred to the removal of the Indians to the Indian territory, were omitted from its ratification, not having been agreed to by the Indians.
If this legislation has the effect contended for to support the conviction in the present case, it also makes punishable, when committed within the Indian country by one Indian against the person or property of another Indian, the following offenses, defined by the general laws of the United States as to crimes committed in places within their exclusive jurisdiction, viz.: Manslaughter, section 5341; attempt to commit murder or manslaughter, section 5342; rape, section 5345; mayhem, section 5348; bigamy, section 5352; larceny, section 5356; and receiving stolen goods, section 5357. That this legislation could constitutionally be extended to embrace Indians in the Indian country, by the mere force of a treaty, whenever it operates of itself, without the aid of any legislative provision, was decided by this court in the case of U.S. v. 43 Gallons of Whisky, 93 U. S. 188. See Holden v. Joy, 17 Wall. 211; The Cherokee Tobacco, 11 Wall. 616. It becomes necessary, therefore, to examine the particular provisions that are supposed to work this result.
The first of these is contained in the first article of the treaty of 1868, that "if bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States and at peace therewith, the Indians herein named solemnly agree that they will, upon proof made to their agent and notice by him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws. But it is quite clear from the context that this does not cover the present case of an alleged wrong committed by one Indian upon the person of another of the same tribe. The provision must be construed with its counterpart, just preceding it, which provides for the punishment by the United States of any bad men among the whites, or among other people subject to their authority, who shall commit any wrong upon the person or property of the Indians. Here are two parties,"among whom, respectively, there may be individuals guilty of a wrong against one of the other—one is the party of whites and their allies, the other is the tribe of Indians with whom the treaty is made. In each case the guilty party is to be tried and punished by the United States, and in case the offender is one of the Indians who are parties to the treaty, the agreement is that he shall be delivered up. In case of refusal, deduction is to be made from the annuities payable to the tribe, for compensation to the injured person. a provision which points quite distinctly to the conclusion that the injured person cannot himself be one of the same tribe. Similar provisions for the extradition of criminals are to be found in most of thu treaties with Indian tribes, as far back, at least, as that concluded at Hopewell with the Cherokees, November 28, 1785. 7 St. 18.
The second of these provisions, that are supposed to justify tho jurisdiction asserted in the present case, is the eighth article of the agreement, embodied in the act of 1877, in which it is declared: “And congress shall, by appropriate legislation, secure to them an orderly government; they shall be subject to the laws of the United States, and each individual shall be protected in his rights of property, person, and life.” It is equally clear, in our opinion, that these words can have no such effect as that claimed for them. The pledge to secure to these people, with wliom the United States was contracting as a distinct political body, an orderly government, by appropriate legislation thereafter to be framed and enacted, necessarily implies, having regard to all the circumstances attending the transaction, that among the arts of civilized life, which it was the very purpose of all these arrangements to introduce and naturalize among them, was the highest and best of all,—that of self-government, the regulation by themselves of their own domestic affairs, the
maintenance of order and peace among their own members by tho administration of their own laws and customs. They were nevertheless to be subject to the laws of the United States, not in the sense of citizens, but, as they had always been, as wards, subject to a guardian; not as individuals, constituted members of the political community of the United States, with a voice in the selection of representatives and the framing of the laws, but as a dependent community who were in a state of pupilage, advancing from the condition of a savage tribe to that of a people who, through the discipline of labor, and by education, it was hoped might become a self-supporting and self-governed society. The laws to which they were declared to be subject were the laws then existing, and which applied to them as Indians, and, of course, included the very statute under consideration, which excepted from the operation of the general laws of the United States, otherwise applicable, the very case of the prisoner. Declaring them subject to the laws made them so, if it effected any change in their situation, only in respect to laws in force and as existing, and did not effect any change in the laws themselves. The phrase cannot, we think, have any more extensive meaning than an acknowledgement of their allegiance, as Indians, to the laws of the United States, made or to be made in the exercise of legislative authority over them as such. The corresponding obligation of protection on the part of the government is immediately connected with it, in the declaration that each individual shall be protected in his rights of property, person, and life, and that obligation was to be fulfilled by the enforcement of the laws then existing appropriate to those objects, and by that future appropriate legislation which was promised to secure to them an orderly government. The expressions