that it did not do so. We must hold that the former adjudication is no bar to this action for another reason. The law is well settled that if different proofs be required to sustain the two actions, a judgmen: in one of them is no bar to the other.

"If the evidence in a second suit between the same parties is sufficient to entitle plaintiff to recover, his right cannot be defeated by showing any judgment against him in any action where the evidence in the present suit could not, if offered, have altered the result." Freem. Judgm. § 259. That the evidence in this case is sufficient to entitle complainant to relief has already been decided. That it would not

have availed the complainant in the former action is clear from what has already been said. The suit was to enjoin the execution of a tax deed, and the court was bound by the decisions of the supreme court of Nebraska, according to which the bill was fatally defective in not alleging an offer to pay legal taxes, and in showing a case where there was a complete and adequate remedy at law. The proof now relied upon would have been properly excluded in the former case, or, if admitted, would have availed the complainant nothing, because, in that case, there was no offer to pay or refund legal taxes. There is such an offer in the present bill, which makes the proof here both admissible and efficacious. It results from these views that the plea of former adjudication must be overruled. It remains only to consider the exceptions to the master's report, filed by the plaintiff's counsel. It appears that the only evidence presented to the master to establish the fact that respondent had paid legal taxes, were certain tax receipts. It is objected that these do not show that the taxes were legal, and it is insisted that their legality must be established by other and better evidence, showing a substantial compliance with the law. The burden is upon respondent, in order to establish his lien, to show that he has paid taxes for which the land in question was liable, and which the complainant would have been obliged to pay if respondent had not paid them.

It is therefore ordered that the case be referred to Webster, as master, to take further proof and report, on or before the first day of next term, what, if any, legal taxes against the land in controversy have been paid by respondents.

UNITED STATES v. MARTIN.

District Court, D. Oregon. February 3, 1883.)

1. INDIAN COUNTRY-UMATILLA AGENCY.

Since the repeal of section 1 of the Indian intercourse act of 1834 (4 St. 129) by section 5596 of the Revised Statutes, the only Indian country in the United States, within the purview of that phrase, as used in chapter 4, title 28, of the Revised Statutes, is the tracts of country set apart by the authority of the United States for the exclusive use and occupancy of particular Indian tribes, and known as Indian reservations; and the Umatilla reservation in Oregon is such Indian country.

2. CRIMES COMMITTED BY OR AGAINST AN INDIAN.

In the exercise of its constitutional power to regulate intercourse with the Indian tribes, congress may define and punish crimes committed by white men upon the person or property of an Indian, and vice versa, within as well as without the limits of a state.

3. MURDER ON THE UMATILLA RESERVATION.

Congress having provided for the punishment of murder committed in the Indian country, (sections 2145, 5339, Rev. St.,) the United States circuit court for the district of Oregon has jurisdiction of the crime of murder committed on the Umatilla reservation by an Indian upon a white man; and therefore it is a violation of section 5398 of the Revised Statutes for any one to resist or obstruct the execution of an order made by a circuit court commissioner, engaged in the examination of an Indian charged before him with the commission of murder, under such circumstances.

Information for Obstructing the Service of Process.

James F. Watson, for the United States.

H. Y. Thompson, for defendant.

DEADY, D. J. On January 9, 1883, an information was filed in this court by the district attorney, charging the defendant with a violation of section 5398 of the Revised Statutes, which enacts:

"Every person who knowingly and willfully obstructs, resists, or opposes any officer of the United States in serving or attempting to serve or execute any mesne process or warrant, or any rule or order of any court of the United States, or any other legal or judicial writ or process, or assaults, beats, or wounds any officer or other person duly authorized, in serving or executing any writ, rule, order, process, or warrant, shall be imprisoned not more than 12 months, and fined not more than $300.”

The information contains two counts.

The first one alleges that on December 18, 1882, in this district, two Indians, namely, Peteus and Capsawalla, being then and there under the charge of an Indian agent, were duly arrested by the marshal of this district upon a warrant duly issued by a commissioner of the circuit court for this district, upon a charge of murder committed v.14,no.14-52

by said Indians, in killing one Mulhenen, a white man, upon the Umatilla Indian reservation in this district, and were by the order of said commissioner duly committed to the jail of Umatilla county, for examination before him on said charge, the defendant being then and there the keeper of said jail; and that afterwards, on December 19th, said commissioner duly made and delivered to the deputy of said marshal an order commanding him to bring said Indians before him for examination upon the charge aforesaid, who then and there attempted to execute the same, but was prevented from so doing by the defendant, who knowingly and willfully refused to deliver said Indians to said deputy, and by force and violence prevented the latter from executing said order.

The second count alleges that the defendant obstructed an officer in the execution of process in the case of two other Indians, namely, Ah Hoot and Weet Snoot, charged before said commissioner on December 7, 1882, with the killing of said Mulhenen on said reservation, on which day they were duly committed by the order of said commissioner to the custody of P. McDowell, the keeper of the town jail at Pendleton, in said county, for examination on said charge; and that on December 18th the defendant took said Indians from the custody of said jailer of Pendleton, they being then and there in the custody of the latter under the order of the said commissioner.

Upon the filing of the information a warrant issued, upon which the defendant was arrested and held to bail in the sum of $1,000.

The defendant demurs to the information, and for cause alleges substantially that "the courts of the United States do not have jurisdiction to try the Indians named in the information for the crime with which they are charged," and therefore the order or process which the officer was attempting to execute was void and not within the purview of the statute.

The question made by this demurrer was considered and decided by this court in U. S. v. Bridleman, 7 Sawy. 243, [S. C. 7 FED. Rep. 894]-an information charging a white man with stealing from an Indian on this same reservation.

In that case it was held that this court has jurisdiction of a crime committed on the Umatilla reservation by a white man upon the person or property of an Indian, and vice versa, provided the crime is defined by a law of the United States directly applicable to the Indian country, or made so by sections 2145, 2146, of the Revised Statutes, which enact:

"Section 2145. Except as to crimes, the punishment of which is expressly provided in this title, [28,] the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.

"Section 2146. The preceding section shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country, who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively."

The punishment of the crime of murder, committed in a place within the sole and exclusive jurisdiction of the United States, is provided for in section 5339 of the Revised Statutes, which enacts:

"Every person who commits murder within any fort, arsenal, dock-yard, magazine, or in any other place or district of country under the exclusive jurisdiction of the United States, * shall suffer death."

This section is made applicable to the Indian country by section. 2145 of the Revised Statutes, supra; and if the Umatilla reservation. is "Indian country," within the purview of the statute, the United States circuit court for this district has jurisdiction to try these Indians upon this charge of murder.

That the reservation is Indian country was held in U. S. v. Bridleman, supra. In that case the origin of this reservation, and the power of congress to regulate intercourse with the Indian tribes, was stated as follows:

"On June 9, 1855, a treaty was made with the Walla Walla, Cayuse, Umatilla, and other tribes and bands of Indians in Oregon and Washington territory, by which the reservation in question was set apart for the exclusive use of the Indians, in consideration of their ceding their right to a large extent of country. The treaty (12 St. 945) provides that the reservation shall be set apart as a residence for said Indians, which tract, for the purposes contemplated, shall be held and regarded as an Indian reservation; * * ** all of which tract shall be set apart, and, so far as necessary, surveyed and marked out for their exclusive use; nor shall any white person be permitted to reside upon the same without permission of the agent and superintendent.'

"On February 14, 1859, (11 St. 383,) the state of Oregon, with exterior boundaries, including the Umatilla reservation, was received into the Union on an equal footing with the other states in all respects whatever,' without any proviso or provision concerning the Indians or Indian reservations therein.

"On March 8, 1859, the treaty was ratified by the senate, and on April 11th it was proclaimed by the president.

"The power to regulate commerce with the Indian tribes (U. S. Const. art. 1, § 8) includes not only traffic in commodities, but intercourse with such

tribes the personal conduct of the white and other races to and with such tribes, and the numbers thereof, and vice versa. Gibbons v. Ogden, 9 Wheat. 189; U. S. v. Holliday, 3 Wall. 416.

"If the power to regulate the intercourse between the Indian and the white man includes the power to punish the latter for giving the former a drink of spirituous liquor within the limits of a state, as it undoubtedly does, (U. S. v. Holliday, supra,) then it must follow that the power to regulate such intercourse extends to and includes the power to punish any other act of a white man having or taking effect upon the person or property of an Indian within such limits, and vice versa, even to the taking of life.

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"It is admitted that the power of congress to provide for the punishment of an act as a crime is limited to the subjects and places peculiar to the national government. Its power to do so arises from the locality of the act in question, when it is committed in a place within the exclusive jurisdiction of the United States, as its territories, forts, arsenals, etc.; and from the subject, when the punishment is imposed as a means of carrying into execution or enforcing any of the powers expressly granted to congress by the constitution; as the power to levy and collect taxes, to borrow money, to regulate commerce, etc.

"This intercourse is a subject of federal jurisdiction, the same as the naturalization of aliens, the subject of bankruptcies, or the establishment of postoffices, and therefore congress may pass laws regulating or even forbidding it, and providing for the punishment of acts or conduct growing out of it or connected therewith, resulting in injury either to the Indian or the other party, or calculated to interrupt or destroy its peaceful or beneficial character.

"Upon the national government is devolved the power and duty to supervise and control the intercourse between the Indians and its citizens, so that, as far as possible, each may be protected from wrong and injury by the other; and in the exercise of this power, and the performance of this duty, it is not limited or restrained by the fact that the Indians are within the limits of a state. The Indians were here before the state was, and the state was formed and admitted into the Union subject to their right to remain here, and the power of congress over the intercourse between them and the people of the state until they were removed or become a part of the latter through the agency or with the consent of the United States."

By this treaty, which was ratified after the admission of the state into the Union, and took effect by relation from the date of its signing, (U. S. v. Reynes, 9 How. 143; Davis v. The Police Court, Id. 285; Haver v. Yaker, 9 Wall. 34,) this Umatilla reservation was set apart for the "exclusive use" of the Indians named, and no white person. was allowed "to reside upon the same" without the permission of the United States. And this treaty, like every other made by the authority of the United States, is the supreme law of the land. U. S. Const. art. 6, sub. 2; Worcester v. Georgia, 6 Pet. 515.

In U. S. v. 43 Gallons of Whisky, 93 U. S. 188, Mr. Justice DAVIS, speaking for the supreme court, says: The power to regulate com