Under the Act of March 3, 1885, c. 341, 23 Stat. 362, the
federal court in Wisconsin has jurisdiction to try an Indian
charged with murdering another Indian within the limits of section
16 in a township in that state which is embraced within and forms
part of the La Court Oreilles reservation for the Chippewa
Indians.
A Chippewa Indian being indicted in the District Court of the
United States for the Western District of Wisconsin for the murder
of another Indian on the Chippewa reservation, it appeared at the
trial that the offense took place in township 16, one of the
townships set apart for the state as a school reservation. The
defendant being found guilty, a motion was made for a new trial.
This motion was heard before the district judge and the circuit
judge. They differed in opinion on the question of jurisdiction and
certified the question here. With it they sent up a transcript of
the whole record.
Held:
(1) That it was irregular to send the entire record with a
certificate of division in opinion, and that generally there could
be no such certificate on a motion for a new trial, but that under
the circumstances, this Court would consider the question
certified.
(2) That the trial court had jurisdiction, and the motion to set
aside the verdict and grant a new trial must be denied.
This case comes before us on a certificate of division of
opinion between the judges of the Circuit Court for the Western
District of Wisconsin on the question of its jurisdiction to try
the defendant upon the indictment against him. The defendant, an
Indian of the Chippewa tribe, was indicted in that court for the
murder of one David Corbin, a half-breed of the same tribe, within
the limits of La Court Oreilles Indian reservation in Wisconsin,
and was convicted. The evidence tended to show that the offense was
committed in section sixteen in a township in Sawyer County, of
that state, embraced within the reservation, and on that ground the
counsel for the defendant moved to set aside the verdict, and for a
new
Page 151 U. S. 578
trial, contending that by the provisions of the Enabling Act by
which Wisconsin was admitted into the union, section sixteen in
every township in Wisconsin was ceded to the state for school
purposes, and could not therefore be subsequently taken by the
United States, and set off as part of an Indian reservation.
La Court Oreilles reservation, in the State of Wisconsin, was
set apart for the Chippewa tribe of Indians, and embraces three
townships in area, but by reason of the extension of several
meandered lakes, covers about seven townships. The reservation was
approved by the Treaty of 1854. The survey of the lands of this
portion of the state had not then been made, and the townships
which compose the reservation were not surveyed until the year
1855, and the lands were not selected until 1859. The state sold,
in 1865, section sixteen to parties, who cut off the timber, but
otherwise made no use of the land except for the erection of a
cabin while removing the timber. The land had been used by the
Indians continuously from the immemorial previous to its
reservation, and after it was denuded of timber, they continued to
hunt and travel over it.
Section 9 of the act of Congress making appropriations for the
Indian department for the fiscal year ending June 30, 1886,
provides:
"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 either within or without any Indian reservation,
shall be subject therefor to the laws of such territory relating to
such crimes, and shall be tried therefor in the same courts and in
the same manner, and shall be subject to the same penalties, as are
all other persons charged with the commission of said crimes,
respectively, and the said courts are hereby given jurisdiction in
all such cases; and all such Indians committing any of the above
crimes against the person or property of another Indian or other
person
within the boundaries
Page 151 U. S. 579
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."
The motion to set aside the verdict and for a new trial was
argued before the circuit judge and the district judge, composing
the court, and they differed in opinion. The circuit judge held
that the title to the township upon which the offense was committed
was in the State of Wisconsin from the time of its admission into
the Union, and consequently could not afterwards be used by the
United States as a part of an Indian reservation. He was therefore
of opinion that the court had no jurisdiction over an offense
committed in that township, under the act of Congress upon which it
assumes to take jurisdiction of this case. The district judge, on
the contrary, held that the right of occupancy of the Chippewa
Indians to the land composing the reservation had never been
divested, and that until so divested, the title to section sixteen
could not vest in the State of Wisconsin under its Enabling Act,
and further that, independent of any question of title, it was
competent for the United States, having set apart certain lands
within the state to be used as an Indian reservation, to provide
for the protection of the Indians thereon, and for the punishment
of offenses committed against them, and therefore he was against
granting the motion.
The certificate sent to us is as follows:
"The motion of the defendant to set aside the verdict and for a
new trial, etc., came on to be argued, and was argued by the
counsel for the respective parties, and upon the hearing it
occurred as a question"
"Whether, as the evidence shows that the murder was committed
upon section sixteen, in township forty north, of range eight west,
in the State of Wisconsin, said section sixteen being within the
outside limits of the said Indian reservation, and having been
previously, in 1859, settled, platted, and set apart by the United
States as a part and parcel of said reservation, and ever after
occupied by said Indians as such, though
Page 151 U. S. 580
claimed and sold by the State of Wisconsin as and for a part of
the school land previously ceded to said state by act of Congress,
such murder was committed within the limits of said reservation
within the meaning of section 9 of chapter 341 of the Act of
Congress approved March 3, 1885, so as to give the federal courts
jurisdiction of the offense,"
"on which question the opinions of the judges were opposed,
which said opinions are herewith transmitted."
And the court added:
"The court considering, as the whole case now turns upon the
question of jurisdiction in this court, and no proceedings can be
had until that question is determined, and that the same question
would arise in any subsequent trial, that it is not one addressed
to the discretion of the court but is proper to be certified to the
supreme court for its opinion; whereupon, on motion of the United
States, by their attorneys and counsel, it is ordered that the
point upon which the disagreement hath happened as herein stated
under the direction of the judges, including the entire record of
proceedings in court, the evidence on the trial, and statement of
facts as stipulated by the attorneys herein, also copy of the said
indictment, be, and the same hereby are, made a part of the
transcript certified under the seal of this court, according to the
request of the United States by their counsel, to be supreme court,
that the matter may be finally decided."
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court.
The judges of the circuit court have sent up with the
certificate of their division of opinion the entire record of the
proceedings in that court, including the evidence on the trial and
the agreed statement of facts by counsel. Such matters outside of
the certificate, not constituting part of the pleadings in the case
or of the public statutes or treaties bearing upon the point
certified, cannot be considered by us in disposing
Page 151 U. S. 581
of the question presented. The division of opinion arose on the
motion to set aside the verdict and for a new trial, the judges
differing as to the jurisdiction of the court under the act of
Congress upon the facts presented. Until this question is disposed
of, there can be no further proceedings in the case, and, as it
arises upon the statute as applied to the facts, this Court may
very properly consider and answer it, although irrelevant matter,
which will not be regarded, is also embraced in the
certificate.
It is the general doctrine that there can be no certificate of a
division of opinion between the judges of the circuit court on a
motion for a new trial, as such motion usually rests in the
discretion of the court, and therefore properly presents no
questions for our determination.
United
States v. Rosenburgh, 7 Wall. 580. But such is not
always the case. Sometimes a motion of the kind or of a similar
kind may present for consideration a question going directly to the
merits, and a decision of which may determine the point in
controversy. In such instances, the Court will consider the
question submitted on a certificate of division of opinion between
the judges of the court below. Thus, in
United
States v. Wilson, 7 Pet. 160, the question arose
between the judges of the circuit court whether a person convicted
of a capital offense, who had received a pardon, could derive any
advantage from it without bringing the same judicially before the
court by appeal, motion, or otherwise. Upon this question the
judges were opposed in opinion, and it was stated under their
direction, and certified to this Court, and here considered and
decided. The Court regarded the motion as one going to the merits
of his case, having a direct bearing upon the punishment to be
imposed, and not a question determinable in the discretion of the
court, and held that it could properly consider the question upon a
certificate of division of opinion of the judges of the circuit
court.
Holding, therefore, that we can consider the question certified,
disregarding the irrelevant matter accompanying the certificate, we
proceed to its examination.
The treaty concluded October 4, 1842, and proclaimed in
Page 151 U. S. 582
March, 1843, 7 Stat. 591, between the United States and the
Chippewa Indians ceded to the United States a large tract of land
between Lake Superior and the Mississippi. In article 5 it recited
that the whole country between those points had always been
understood as belonging, in common, to the Chippewas. In article 2
it declared that the Indians stipulated for the right of hunting on
the ceded territory, with the other usual privileges of occupancy,
until required to remove by the President of the United States, and
that the laws of the United States should be continued in force, in
respect to their trade and intercourse with the whites, until
ordered by Congress otherwise. And in article 7 it declared that
the treaty should be obligatory upon the contracting parties when
ratified by the President and Senate of the United States.
The Indians have never been removed from the lands thus ceded,
and no executive order has ever been made for their removal, and no
change has taken place in their occupancy of the lands except as
provided by the Treaty of September 30, 1854. 10 Stat. 1109. By
that treaty, the Chippewas ceded a large portion of their
territory, previously retained in Wisconsin and elsewhere, and
provision was made in consideration thereof for the formation of
permanent reservations for their benefit, each to embrace three
full townships, and their boundaries to be established under the
direction of the President. One of these included the tract
comprised in the La Court Oreilles reservation. In the provision
for these reservations, nothing was said of the sixteenth section
of any townships, and it is clear that it was not contemplated that
any section should be left out of any one of them. The land
reserved was to be, as near as possible, in a compact form except
so far as the meandered lakes were concerned. When the townships
composing these reservation were surveyed, the sixteenth section
was already disposed of in the sense of the Enabling Act of 1846.
It had been included within the limits of the reservations.
As will be seen by the treaty of 1842, ratified in 1843, which
was previous to the Enabling Act, the Indians stipulated
Page 151 U. S. 583
for the right of occupancy to the lands. That right of occupancy
gave them the enjoyment of the land until they were required to
surrender it by the President of the United States, which
requirement was never made. Whatever right the State of Wisconsin
acquired by the Enabling Act to the sixteenth section was
subordinate to this right of occupancy for which the Indians
stipulated, and which the United States recognized. The general
rule established by the Land Department in reference to the school
lands in the different states is that the title to them vests in
the several states in which the land is situated, subject to any
prior right of occupation by the Indians or others which the
government had stipulated to recognize.
Mr. Justice Lamar, while Secretary of the Interior, had frequent
occasion to consider the nature and effect of the grant of school
lands where the title was at all encumbered or doubtful, and on
this subject he said (6 L.D. 418) that the true theory was
this:
"That where the fee is in the United States at the date of
survey, and the land is so encumbered that full and complete title
and right of possession cannot then vest in the state, the state
may, if it so desires, elect to take equivalent lands in
fulfillment of the compact, or it may wait until the right and
title of possession unite in the government, and then satisfy its
grant by taking the lands specifically granted."
And this view he considered "as fully sustained by the decision
of the courts and the opinions of the attorneys general," and cited
in support of it
Cooper v.
Roberts, 18 How. 173; 3 Opins. 56; 8 Opins. 255; 9
Opins. 346; 16 Opins. 430;
Ham v.
Missouri, 18 How. 126.
In
Beecher v. Wetherby, 95 U. S.
517, this Court had occasion to consider the nature of
the right which Wisconsin took to the sixteenth section in the
townships of that state by virtue of her Enabling Act, which
declared that it was an unalterable condition of her admission into
the union that section sixteen of every township of the public
lands of the state, which had not been sold or otherwise disposed
of, should be granted to her for the use of schools. The Court said
that this compact, whether considered as merely promissory on
the
Page 151 U. S. 584
part of the United States, and constituting only a pledge of a
grant in future, or as operating as a transfer of the title to the
state upon her acceptance of the proposition, as soon as the
sections could be afterwards identified by the public surveys, in
either case the lands which might be embraced within those sections
were appropriated to the state, subject to any existing claim or
right to them; that for many years before Wisconsin became a state,
various portions of the territory within her limits were occupied
by a tribe of Indians, but the right which they had was only that
of occupancy. The Court held that the fee was in the United States,
subject to that right, and could be transferred whenever they
chose, but added:
"The grantee would take only the naked fee, and could not
disturb the occupancy of the Indians; that occupancy could only be
interfered with or determined by the United States."
We therefore are of opinion that, by virtue of the treaty of
1842, in the absence of any proof that the Chippewa Indians have
surrendered their right of occupancy, the right still remains with
them, and that the title and right which the state may claim
ultimately to the sixteenth section of every township for the use
of schools is subordinate to this right of occupancy of the
Indians, which has, so far as the Court is informed, never been
released to any of their lands, except as it may be inferred from
the provisions of the treaty of 1854. That treaty provided for
permanent reservations, which included the section in question. The
treaty did not operate to defeat the prior right of occupancy to
that particular section, but, by including it in the new
reservations, made as a condition of the cession of large tracts of
land in Wisconsin, continued it in force. The State of Wisconsin
therefore had no such control over that section or right to it as
would prevent its being set apart by the United States, with the
consent of the Indians, as a part of their permanent reservation.
So, by authority of their original right of occupancy, as well as
by the fact that the section in included within the tract set aside
as a portion of the permanent reservation in consideration of the
cession of lands, the title never vested in
Page 151 U. S. 585
the state, except as subordinate to that right of occupation of
the Indians.
But, independently of any question of title, we think the court
below had jurisdiction of the case. The Indians of the country are
considered as the wards of the nation, and whenever the United
States set apart any land of their own as an Indian reservation,
whether within a state or territory, they have full authority to
pass such laws and authorize such measures as may be necessary to
give to these people full protection in their persons and property,
and to punish all offenses committed against them or by them within
such reservations.
This subject was fully considered by this Court in
United
States v. Kagama, 118 U. S. 375. It
was contended that the act of Congress extending its protection and
jurisdiction over the Indians within the limits of the state
encroached upon matters within the exclusive jurisdiction of the
state. But the Court answered this objection, speaking through Mr.
Justice Miller, by observing that the act
"does not interfere with the process of the state courts within
the reservation, nor with the operation of state laws upon white
people found there. Its effect is confined to the acts of an Indian
of some tribe, of a criminal character, committed within the limits
of the reservation."
"It seems to us that this is within the competency of Congress.
These Indian tribes are the wards of the nation. They are
communities dependent on the United States; dependent largely for
their daily food; dependent for their political rights. They own no
allegiance to the states, and receive from them no protection.
Because of the local ill feeling, the people of the state where
they are found are often their deadliest enemies. From their very
weakness and helplessness, so largely due to the course of dealing
of the federal government with them and the treaties in which it
has been promised, there arises the duty of protection, and with it
the power. This has always been recognized by the executive and by
Congress, and by this Court whenever the question has arisen. . . .
"
Page 151 U. S. 586
"The power of the general government over these remnants of a
race once powerful, now weak and diminished in numbers, is
necessary to their protection as well as to the safety of those
among whom they dwell. It must exist in that government, because it
never has existed anywhere else, because the theater of exercise is
within the geographical limits of the United States, because it has
never been denied, and because it alone can enforce its laws on all
the tribes."
We therefore answer the question certified in the affirmative,
that the offense committed was within the limits of the reservation
within the meaning of the Act of Congress approved March 3, 1885,
so as to give the federal courts jurisdiction of the same, and our
answer to that purport will be returned to the court below, and
that
The motion to set aside the verdict and for a new trial
should be denied.
