215 U. S.

Argument for the United States.

Indian reservation in a State is vested in the state or in the Federal courts. A determination of this question is deemed important, because there should be no uncertainty concerning a matter so vital to the successful punishment of criminals. The Tulalip Reservation was a legally constituted Indian reservation. Re Wilson, 140 U. S. 575; Draper v. United States, 164 U. S. 240.

The United States has authority to define and punish crimes by or against Indians on reservations within the States. United States v. Kagama, 118 U. S. 375; Draper v. United States, 164 U. S. 240; United States v. Thomas, 151 U. S. 577; Elk v. United States, 177 U. S. 529; United States v. Bridleman, 7 Fed. Rep. 894; United States v. Martin, 14 Fed. Rep. 817; United States v. Barnhart, 22 Fed. Rep. 285. The United States has not surrendered its criminal jurisdiction over the Tulalip Reservation. Matter of Heff, 197 U. S. 488, distinguished.

Exemption from Federal jurisdiction is not to be presumed in absence of clear legislative provision. Rugles v. Illinois, 108 U. S. 526, 531.

This case lacks the element which in the Heff case was declared essential to confer jurisdiction upon the state courts, to wit, a clear Federal legislative provision subjecting the Indians to state laws.

The act of May 8, 1906, 34 Stat. 182, extending to the expiration of the trust period the date when allottees under the act of 1887 shall be subject to the state laws, and omitting any references to allottees under other laws and treaties is significant. It indicates that Congress found it had been too hasty in placing the first-mentioned allottees under the jurisdiction of the State, and that it did not think any extension of time necessary as to allottees under other acts and treaties, because they had not been subjected to state laws.

Citizenship is not inconsistent with continued Federal jurisdiction. United States v. Logan, 105 Fed. Rep. 240; United

Argument for the United States.

215 U.S.

States v. Mullin, 71 Fed. Rep. 682; Rainbow v. Young, 161 Fed. Rep. 835; United States v. Rickert, 188 U. S. 432; McKay v. Kalyton, 204 U. S. 458; Beck v. Real Estate Co., 65 Fed. Rep. 30; Farrell v. United States, 110 Fed. Rep. 942; Coombs, Petitioner, 127 Massachusetts, 278; State v. Denoyer, 6 N. Dak. 586.

State v. Columbia George, 39 Oregon, 127, governs this case. Columbia George was tried and convicted in the Federal court. An application by him and Toy Toy, with whom he was jointly indicted, for leave to file a petition for the writ of habeas corpus, was denied by this court, 201 U. S. 641. Thereafter a petition by Toy Toy for a writ of habeas corpus upon the ground that, as he was a citizen, the Federal court was without jurisdiction, was denied by the Circuit Court and its action affirmed by this court on appeal, 212 U. S. 542.

To hold that the Federal courts are without jurisdiction of such offenses, after the state courts have declined to exercise jurisdiction, might give rise to a serious condition of affairs.

The rule contended for does not deprive the allottee of any of the rights or privileges of citizenship. It is not contended that a limited citizenship is conferred upon allottees, but rather that citizenship is consistent with tribal existence and Indian character. United States v. Real Estate Co., 69 Fed. Rep. 886, 891.

The offense in question was committed on an Indian reservation within the meaning of the act of March 3, 1885. Couture v. United States, 207 U. S. 581; Eells v. Ross, 64 Fed. Rep. 417, and see United States v. Flournoy Co., 71 Fed. Rep. 576; United States v. Mullin, and Rainbow v. Young, supra. The conclusion that allotted land is not thereby excepted from a reservation and is still Indian country within the intention of Congress, seems to be the only reasonable and proper one. Otherwise Federal statutes relating to reservations and the Indian country and punishing crimes therein

(Rev. Stat., §§ 2127-2157), would cease to apply, and thus Congress, charged with the duty to protect the Indians, would be held to have abandoned that duty entirely, when in fact it only extended to them the privileges of citizenship. There was no appearance or brief for the defendant in

error.

MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.

The fourth paragraph of the act of March 2, 1907, supra, authorizes a review of a "decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy." The defendant in this case had not been put upon trial, therefore he had not been in jeopardy. The decision of the Circuit Court sustained the special plea in bar. This fourth paragraph differs from the two preceding, in that the review authorized by them is limited to cases in which "the decision or judgment is based upon the invalidity or construction of the statute upon which the indictment is founded," while no such limitation appears in this paragraph. The full significance of this difference need not now be determined, but clearly the fourth paragraph gives to this court a right to review the precise question decided by a trial court in sustaining a special plea in bar, although that decision may involve the application rather than the invalidity or construction, strictly speaking, of the statute upon which the indictment was founded.

The general provision of the statutes in reference to punishment of the crime of murder committed within the exclusive jurisdiction of the United States is found in chap. 3, Title 70, Rev. Stat., §§ 5339-5391, as amended by the act of January 15, 1897, c. 29, 29 Stat. 487.

Section 9 of the act of March 3, 1885, c. 341, 23 Stat. 385, provides for the punishment of certain crimes by Indians, as follows:

"That immediately upon and after the date of the passage of this act all Indians, committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny within any Territory of the United States, and all such Indians committing any of the above crimes 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 subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States."

By this section Indians committing against other Indians on a reservation in a State any of the crimes named are subject to Federal laws and tried in Federal courts.

That the offense was committed within the limits of the Tulalip Indian Reservation is distinctly charged in the indictment and not challenged in the plea in bar. Although the defendant had received a patent for the land within that reservation, and although the murdered woman was the owner of another tract within such limits, also patented, both tracts remained within the reservation until Congress excluded them therefrom.

By the second clause of § 3, Art. IV, of the Constitution, to Congress, and to it alone, is given "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." From an early time in the history of the Government it has exercised this power, and has also been legislating concerning Indians occupying such territory. Without noticing prior acts, it is sufficient to refer to that of June 30, 1834, c. CLXI, 4 Stat. 729, the first section of which reads:

"Be it enacted, That all that part of the United States west of the Mississippi, and not within the States of Missouri and

Louisiana, or the Territory of Arkansas, and, also that part of the United States east of the Mississippi river, and not within any State to which the Indian title has not been extinguished, for the purposes of this act, be taken and deemed to be the Indian country."

Construing this section, it was decided, in Bates v. Clark, 95 U. S. 204, 209, that all the country described in the act as "Indian country" remains such "so long as the Indians retain their original title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provision by treaty or by act of Congress." The section was repealed by Rev. Stat., § 5596. Still, it was held that it might be referred to for the purpose of determining what was meant by the term "Indian country" when found in sections of the Revised Statutes which were reënactments of other sections of prior legislation. Ex parte Crow Dog, 109 U. S. 556; United States v. Le Bris, 121 U. S. 278. But the word "reservation" has a different meaning, for while the body of land described in the section quoted as "Indian country" was a reservation, yet a reservation is not necessarily "Indian country." The word is used in the land law to describe any body of land, large or small, which Congress has reserved from sale for any purpose. It may be a military reservation, or an Indian reservation, or, indeed, one for any purpose for which Congress has authority to provide, and when Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress. By the treaty of January 22, 1855 (12 Stat. 927), known as the treaty of Point Elliott, it was provided that certain lands should be reserved for the "use and occupation of the Indians." And, further, article 3, "that the President may establish the central agency and general reservation at such other point as he may deem for the benefit of the Indians." On December 23, 1873, the President established the boundaries of the Tulalip Reservation in the Territory of Washington. The tract sub