tions would be influential in giving currency and to the 'bond$; and, upon the principle of ratification, ianQw too late to permit the defenda,nt, while the of the transaction, to dispute its obligations. Judgment is ordered for the plaintiff. , . ,
.
,}.,:'
'.
"
UNITED STATES (Di8trict
'V.
J
p. Oregon.
July 15, 1881.)
1.
LARCENY OJ!' INDIAN PROPERTY.
The Indilm intel'courseact of June 80, '1834, (4 St. 729,) was ex· tended over Oregon, so 'far as the same was applicable thereto, by act of June 5, 1850, (9 St. 437.) Held, that the provision of said act of 1834, providing for the punishment of a white man for stealing the property of an 'Indian, and 'vice 1J8r8a, was applicable to Oregon, and thereafter in force there; and that, the same was not modified or repealed by the admission of the state into the Union,'Februa,ry 14; 1859. 11 St. 383. 2. UMATILLA RESERVATION AN INDIAN COUNTRY.
The treaty of June 9, 1855, (12 St. 445,) establishing the Umatilla reservation for the exclusive use of certain Indian tribes, was not modified or repealed by the act admitting Oregon into the Union, and from the date of such treaty, and by reason thereof, such reservation was and is" Indian country," and all laws for the punishment of crimes committed in such country are applicable thereto, and 'may be enforced in the United States courts for the district of Or. egon. 8. INTERCOURSEWrrH THlll INDIAN TRmEs.
The power of congress to regulate the intercourse between the inhabitants of the United States and the Indian tribes therein, is not limited by state lines or governments, but may be exercised and enforced wherever the SUbject-Indian tribes-exists.
Rufu8 Mallory, for the United States. The defendant, in person.
DEADY, D. J. On July 7, 1881, an information was filed in this court by the district. att0rney charging, the defendant with the larceny of a blanket from an Indian on the Umatilla Indian reservation in this district. The defendant pleaded not guilty, and the case was submitted to the court upon an
69b
agreed etate .of. facts, to, stand' as and for' a special verdlct, u .follows: On Jul:v 1, lS8t,the man, feloniously ,took and carried away from in the district ..of l Oregon·.. then undercharge of an agj:lnt,a blanket of the,vAlue of, two dollars, the same being and there the property of An Indian, then belonging to anclJivitlg upon said reservati-()n, with a..praYer for judgment by the defendant on the ground that the court had no jurisdiction of the offence charged. the act,of June 30, (3 St. 733,) "to regqlat,etrAde ,and interQourse with the Indian tribes," ... modified by.""ections 2145 and 2146 of the enacts as follows..=· "That so muoh of the 14ws·of the United States as provides for·the of crimes :committ!lQ.. within any place within the sole and exclusive jlu1sdiction of the States, except the District of Columbia, shall be In force in the Indian country: provided, the same shall not extend to criIlleS committed by one Indian against the person or prop,;,. arty of another Indian, nor to'snyIndian committing any offence in the Indian country who has lIeen punished by the local law of the tribe, or to any case Where, by treaty stipulations, the exclusive jurisdiction over Buch offences'is, or may be, secured to the Indian tribes respectively."
And seotion5856 of the' Revised Statutes enacts as lows: .. Every perSon who, · .. · fnany place under the exclusive jurisdiction of the United States, takes and carries away, with intent to steal or pudoin, the personal goods of another, shall be punished by a fine of not more. than .1,000, or by imprison,ment not more than one year, or by sucb fine and imprisonment."
It is ,80 far as this court is concerned, that the phrase" Indian country," as used in act of 1834, 8upra,is a technical one, a:t;l;d only applies to such portions of the United thereof, or have States as are described in the first .since become such. by and i.npursuance ot "an act of congress. or a treaty of the. United States, and that it does not extend .9r apply to any country simply because it is owned or inhabited by Indians in whole or in part; and also that said act was local, and.Qnly extended west to the Rocky mount·
896
UEDERAL REPOBTER.
airis,'andwas never extended beyond them, proprfu vigore, or otherwise, than as specially provided by act of congress. U. S. v. Tom, lOt. 27; U; S. v. Saxaloff, 2 Saw. 8U. By section I) of theatlt of June 5, 1850, (9 St. 437,) to authorize "the negotiation of treaties with the Indian tribes in Oregon," and "for other purposes," it was enacted: "That the law [June 30, 1834, 8upra] regulating trade and inter· course 'With the Indian tribes east of the Rocky mountains, or such provisions of the same as may be applicable, be' extended over :the Indian tribes in the territory of Oregon.," .
, Under this section it was early held (U. S.v. Tom, 8upra) that so much of the act of 1834 as "tends to preventimmigration,the free occupation and the country by the whites, must be considered as repealed. militates against the true interests of. a white population is inapplicable." But the provision (section 20) prohibiting the disposition of spirituous liqu9rs to Indians was held applicable, as not being " necessary to the welfare" of the white people, but a blessing to the Indians and highly promotive of the safety, peace, and good order of the whole community." This decision was followed in this district until section 20 of the act of June 30, 1834, was amended by the acts of li'ebruary 13, Maroh 15,1864, (12 St. 339; 13 St. 29,) so as to make the disposing liquor to an Indian, under the charge of an Indian agent, a crime, without reference to the in whic4it w:a.s done. So, too, section 9 of the act, which prohibits any' person from, depasturing .. the land belonging to anY' 1ndian or Indian tribe," has been considered in force iii Oregon 'as to the land includll'dwithin an Indian reservation, and enforced in this court. U.S. v. Matlock, 2 Sawy. 148. What other features of the act of 1834' were or were not applicable to Oregon has riot been decided, nor has it been specially considered. what effect, if any, the making and ratification of the subsequent treaty under whioh this reservation exists and the admission of the state into the Union have upon this question. In U. S. v. Ward, 1 Wool. 1, it was held by Mr. Justice
UNITED STATBS V.BBIDLElIIAN.
:89'1
Miller that ,the act of 1834- conferred upon the-bational'coutts jurisdiction of offences against the laws of the United' 'States committed on Indian reservations w,. but t,hatthe admittiri,g tqestate into the Union had so far modified act as to deprive the circuit court of inthat ticular case, which was an indIctment for'mlirder comniitte.d by one white man upon another, upon a reservation set apart by treaty for the Kansas tribe of Indians. ' : In U. S. v. Yellow Sun, 1Dil. 271, it was held by Mr. Justice Dillon that the national courts in Kansas did not havd jurisdiction of the crime of murder committed withIn the state of Kansas and not upon a reservation, by Indians belonging to a reservation therein, with an intimation that if the crime had been committed on the reservation the rulin.:g 'Would have been different. In U. S. v; Cisna, 1 McLean, 256, it was held that the power of congress to regulate commerce with the Indian tribes does not cease on their being inoluded within tne limits of a state, but that the federal jutisdictionmust cease, or is lost, where the Indians occupy a very limited territory, and are practically absorbed by the surrounding white population.; . But in U. S. 'V. Holliday, 3 Wall. 407, it was held by the supreme court that the power of congress to regulate commerce with the Indian tribes is co-extensive with the subject, and applies to individuals {lonstituting the tribes, although off a reservation and within the limits of a state, arid therefore the act of 1864, 8upra, for thepunishnient oia person who disposes of spirituous liquor to an Indian under the charge of an agent, is constitutional, although the disposition took place within the limits of a state, to an Indian not tipon, or belonging to, a reservation. On June 9, 1855, a treaty was made with the Wallawalla, Cayuse, Umatilla, and other tribes and bands of Indians in Oregon and Washington territory, by which the reservation in question was Bet apart for the use of the indians in consideration of their ceding their rights to a large extent v.7,no.11-57 .1':
',-898 t . "
of ,country; ;erv",tion____
treaty" (.12 St. 945) provides that the res-
"'Shall'beset ilaid Indian's'; .. · · all of lVhich''tract shall.tie 16$ aPart', ·and, 80 far as necessary, surveyed and marked out, nor shall any white person be per. mitted to permission of the agent and superintendent:" .. , .
On February 14, .1859,. (11 St. 888,) the state of Oregon, with ,6y,terior inoluding the Umatilla reservaWfl,S the Union on an equal footing with t.Q.:EI states .in ,all respects whatever, "without any proYJso or! prQvision P9ncerning the Indians or Indian reservationf} .therein. ,,,, :; .: ,Op 8,; 18.l$9, the treaty was ratified by the senate, and on April 11th it was proclaimed by the president. to regulate commerce with Indian tribes inclutle!l nQt only ,traffic but intercourse with sWlh . tribes-the' personal conduct of the white and other rac13s t() and suclil,tribes and the members thereof, and vice verBa.. Gillbam v. Ogden, {) Wheat. 189; U. S. v. Holliday, 8 Wall. 416. If the p01Ver to regulate the intercourse between the Indian and the white man includes the power to the· latter forgiving the former a drink of spirituous liquor within limits ota state,:-as it undoubtedly does,(U. l;J.v. Holliday, supra, 415,) then it must follow that the power to, intercourse extends to and includes the power to pnnish any other act of ,a white man having or upon the perlJon or property of an Indian within sWjh.lHnits, and vice versa, .even to the taking of life. It is admitted that the power of congress to provide for the punlsP.plent of an, act,' as a crime, is limited to thtl subjects and places peculiar to the natjonal government. Its power to do,so ,arises from locality of. the act in question, when comlllittedin within the exclusive jurisdiction of United States, as its territories, forts, arsenals, etc.; and from .. tpe' subject, the punishment is imposed as a. mel1'ps of carrying into execution or enforcing any of the powers expressly granted to congress by the constitution-as
UNITED 8TATE! V. BRIDLtMAN.
899
th'e power to fay and collect taxes, to borrow money, to regulate commerce, etc. The act'of 1834, as a regulation of tradl:l and intercourse with the Indian tribes in the «Indian country," as defined in section 1 of that act, was within the power of both on the ground of looalityand subject-such «Indilin country" being without the limits of any state, and'therefore within the exclusive jurisdiction of the United States; and the intercoUrse with subject' within its jurisdiction generally. And as, when the act was extended over Oregon, on June 5, 1850, the latter was still a territory, the right to do so rested upon the same grounds-the power of congress over the locality a.nd the subject. , But when Oregon was admitted into the Union-February 14, 1859-the power of congress over the Indian tribes' in Oregon, or the intercourse between them and others, so far a8 it depended on the locality, was gone, unless, and so far as, it may have been saved by the operation of the treaty of June 9, 1855, establishing the Umatilla reservation. But the jurisdiction which was not dependent upon 'localitythe jurisdiction which arises out of the subject-the intercourse between the inhabitants of the state and the Indian tribes therein-remained as if no change had taken pla.ce in the relation of the territory to the general government. Congress could no longer prohibit the introduction, manufacture, or sale of spirituous liquor in the country, but only the disposition of it to Indians. And, as it could prohibit that as well within the limits of a state as a place where it ha.d exclusive jurisdiction, it could punish the violation of prohibition in the former case as well as the latter. The necessary inference from these premises seems to'be that the act of 1884, or so much of it as congress was authOrized to enact within the limits of a state for the purpose of regulating the intercourse--.:.thegoings on-between the Indians and the inhabitants:of the latter, remains in full foioe. Of this character are all the provisions of the act which punish persons for wrong or injury done to the person or pro. perty of an Indian, and vice versa. .
BEPORTER·
.. 'rhis .intercourile is a of federal juriadictiqn, the same as the naturalization of aliens, the subject of bankor :the establishment of post-offices, and tp.erefore eoqgressmay pass laws regulating or even forbidding it, and providing fQr the punishment of acts or conduct growing out of it or connectfld resulting in injury to either the other party, Or calculated to interrllpt or destroy its or, beneficial ·character. Section 5356 of the. which provides for the punishment of larcenyc()mmittedin a place within the exclusive jurisdiction of the United. States,was made a part of the act. of 1834, by section 25.thereof, whenever the larceny was committed ,by a white man upon the goods of an Indian, and vice versa ; and as such it was, in my judgment, extended over Oregon on June 5, 1850,-it not being locally inapplicable any more than the provision concerning the spirituous liquor to an Indian. Nor did the admission of the state into.theUnion upon "an equal footing" with the other states ,have the effect to modify or, repeal this provision. If the same provision could not be made and enforced in every other state at the will of congress, then, of course, the adm,issionof Oregon into the Union upon aJ;l.equality with the oth,er states. would have worked a repeal of it. But congress has the power to legislate upon the subject of intercourse with In.dian tJ,'ibe.s, wherever they exist, irrespective of state lines or .governments; and this provision against larceny by the parties to this intercourse, being well calculated to preserve the peace between them and prevent it from resulting in the shedding of innocent blood and cruel and devastating Indian wars, is as convenient and necessary to that end as any other that can be suggested. If congress can punish the defendant for buying Shick-Shuck's blanket-trading for it-why not for stealing it? Upon ,the national government is devolved the power and dutytp supervise and control theintercours6 between the Indian and its citizens, so that, so far as possible, each n;Lay be protected from wrong and injury by the other, and in the exercise of this power, and the performance of this dutYI
UNITED STATES V. BRIDLEMAN.
901
it is not limited or restrained by the fact that the Iridians are within the limits of a state. The Indians were here before the state was, and the state was forrped and admitted into the Union subject to theirright to remain here, and the power of congress over the intercourse between them imdthe people of the state, until they are removed, or become a part of. the latter, through the agency or with the consent of the genUnited States. Nor is it material that the state has eral power to and does punish for larceny committed within its limits. So it has the power to regulate and control the disposition of spirituous liquor. But in neither case does this power exclude or supersede the paramount authority of the national government where the larceny or disposition touches upon, or affects a subject within its jurisdiction and power. As, for instance, the general police power of the state over the manufacture, sale, and use of distilled spirits within its limits is subordinate to the act of congress passed in pursuance of its power to regulate commerce, which permits the importation of such spirits into the state from foreign countries; nor can the state interfere iith or tax the importer in the exercise of his right to sell and dispose of the same within its limits, in the original package. Brown v. Maryland, 12 Wheat. 419; License Cases, 5 How. 573. The power to regulate commerce being construed to include navigation, (Gibbons v. Ogden, 9 Wheat. 186,) it has been held by the supreme court that congress may, in pursuance of this authority, provide for the punishment of persons who steal goods or effects belonging to a ve8sel in distress, or wrecked within the admiralty jurisdiction, although such goods are taken not immediately from the vessel, but above high-water mark on the land, and within the jurisdiction of the state. U. S. v. Coombs, 12 Pet. 72. Now, if congress, in pursuance of its power to regulate commerce, can punish for the larceny of goods constituting an element of that commerce anywhere within the state, why may not it, in pursuance of the same power,punish the defendant for the of a blanket, within the state, from a member of an Indian
9Q9
REPORTER.
trip6,the intercourse with which is under its, absolute control? But there is another upon which the jurisdiction of the United States to punish this offence may be safely placed. The ratification of the treaty of June 9, 1855, on March 8, 1859, took effect by relation from the date of its signing, so that it was in full force when the state was admitted. U. $. v. Reynes, 9 How. 143 j Davis v. The Police Court, Id. 285; Haver v. Yaker, 9 Wall. 34. Like every other treaty made by the authority of the United States, this one was and is the supreme law of the land. Const. U. S. art. 6, subd. 2; W01'cester v. Georgia, 6 Pet. 515. By it the Umatill,a reservation was set apart for "the exclusive use" of the tribe of Indians to which Shick-Shuck belongs, and no white person was to be permitted "to reside upon the same" without the permission of the United States given by its superintendent and agent. In my judgment the effect of this treaty was to make the act of 1834 applicable thereto, except as otherwise provided therein, so that it became and is, to all intents and purposes, "Indian country," within the the meaning o'f that phrase as used in that act and the Revised Statutes. The admission of the state into the Union, with this reservation established within its exterior lines, did not and could not have the effect to abrogate or modify this treaty, The act of admission is silent upon the subject, and admitting that the treaty might be repealed by an act of congress, (Taylor v. Morton, 2 Curt. C. C. 454; The Clinton Bridge, 1 Woolw. 155; The Oherokee Tobacco, 11 Wall. 620,) there is no reason to believe that congress intended by such act to affect it in any way. The necessity for the reservation was quite as apparent then as when it was created, and the treaty providing for it was ratified by the senate within a month after the passage of the act of admission. The reservation has ever since been maintained by the United States, and congress has continued to recognize its existence as provided in the treaty by making appropriations for its support.
UNITED STATES' V. BRIDLEMAN.
g08
In the U. S. v. Leather, and Same v. Sturgeon, (D. C. Nev. Dist. July, 1879,) in a well-considered opinion, Mr. Justice Hillyer held that an Indian reservation established in Nevada on March 3,1874, by a mere executive order, for" the use" of certain Indians, and afterwards recognized as such by congress, was "Indian country," within the meaning of sections 2133, 2139, and 2148 of the Revised Statutes, providing for punishing persons who reside or trade in the Indian country without license, or return thither after being removed therefrom,or introduce spirituous liquor into such country or dispose of the same to an Indian therein. Assuming, then, that the Umatilla reservation exists aB established by the treaty, it is still "Indian country," Bet apart by law for the "exclusive use" of the Indians, and all crimes committed within it, by a white man upon an Indian, and vice versa, and made punishable by the laws of the United States r are within the jurisdiction of the federal courts for this district. There'is also much force in the suggestion made hy Mr. Justice Hillyer in U. S. v. Leathers, 8upra, that as section 1 of the act of 1834, defining or describing the then limits or extent of the "Indian country," was repealed by title 74 of the Revised Statutes, (December 1, 1873,) there is now no Indian country to which the various provisions in title 28 of the Revised Statutes, relating to such country, and the conduct of persons thereon and thereabout, can apply, unless the several reservations set apart for their exclusive use in the various states are considered to be such.
994"
FEDERAL REPORTER.
In re FELTER,
PARK
&, Co., Bankrupts. July 22, 1881.)
(Di8f1rict Court, D. New JerBey.
,
The burden of showing that a creditor's claim, duly proven according to the provisions of the bankrupt act, is founded in mistake or fraud', lies upon the assignee or the creditor attacking the proof. After such proof the claim is, primajacie, good.
2.
REGIS'l'ER-,-DECISION OF, REVERSED.
A register's decision in favor of a whole claim as proved will be. ,reversed when the evidence is undoubted that one item of ,the Claim' had been paid in full.
',Joh'n
. ,NlXoN,D. J. This case comes before me on the petition of' Daniel Adams, the of the above-named bankrupts, to reverse the decision of the register, who has allowed the proof of debt of David Torrens,a creditor. Said proof was filed September 25, 1877, claiming that there was due from the bankrupt's estate the sum of $13,165.39. The assignee objected to the proof, and petitioned that the same might be expunged and disallowed. A large amount of testimony was, taken before the and on the first of February, 1881, he reported to the court that after deliberate consideration he was of the opinion that the evidence offered by the assIgnee was not sufficient to warrant him in reporting adversely to the proof, and he reoommended that the same be affirmed, and admitted to its proper dividend out of the estate of the bankrupts. This report was accompanied by the register's certificate that his decision was made in pursuance of an agreement made before him by and between the attorneys of the assignee and of the said creditor Torrens, respectively, and by their request that he should examine and decide the matter, instead of requiring the parties to form an issue to be certified into the court for determination, under general order No. 34. Upon filing the register's report each party applied for a rule,-the creditor, for the assignee to I'lhow cause why the
P.
w. Taylor, for creditor David Torrens.
et D. Mitchell, for assignee.
IN RE FELTER.
905
report should not be confirmed; and the assignee, for the creditor to show cause why it should not be reversed, and a hearing had by the court upon the evidence taken in the case. As there seemed to be a misundestanding between the respective counsel in regard to the oral agreement entered into before the register,-on the one side insisting that it was the of the parties that the decision of the register should be final; and the other, that it was to be interlocutory and subject to review'by the court,-Ideeilied it proper to take the latter view and give the patties a rehearing upon the testimony. I was moved to this coursebyseveral considerations: (1) Because the stipulation or agreement was oral, and not reduced to writing and signed by the counsel; (2) because its meaning, as stated by the register, was neither definite nor clear; (3) because the register reported in favor of the whole claim as proved, although the evidence was undoubted that at least one of the notes proved against the estate, to-wit, the note of Chase & Locke for $225, and protest fees and interest, for the payment of :which the bankrupts wllre. secondarily liable, been paid in full by the makers and ought to have been deducted; and (4) because of the wide discrepancy which appeared upon, the face of the proceedings in bankruptcy between the amount of the proof of claim excepted to and a former proof of claim filed by the said Torrens, as one of the petitioning creditors, on the third day of July, 1877, against the said bankrupts.
After an examination of the testimony and consideration of the argument of connsel, I have reached the conclusion that I am not in reversing the decision of the register, except as to the amount of the Chase & Locke note. There were, doubtless, circumstances of suspicion growing out of the dealings of the creditor and the bankrupts suffi· cient to justify the assignee in petitioning to have the claim expunged. One of these was the mutilation by the bankrupts of their books of account, which embraced the record of the dealings of the parties. If there had been evidence in anywise connecting the creditor with the fact of this mutilation, or with a knowledge of it, I should have been most reluctant to reGognize the justice and truth of his claim; but the weight of the testimony fails to fasten upon him the sibility of the act, or any connivance with the guilty parrties who perpetrated it. .
l}06
, A creditor's claim, duly proved according to the provisions of the bankrupt act, is, pr'ima facie, good. The burden of showing that the claim is founded in mistake or fraud, lies upon the aS8ignee or the creditor attacking the proof. r think he has failed in this respect, in the present instance, except in the amount of the Chase & Locke note, as before stated. Under the circumstances, the proper order to be entered is that the register's decision be reversed; that the proof of claim be expunged; and that the creditor have leave to put in new proof, after deducting the amount of the Chase & Locke note, and that no costs be allowed to either party
& WASHBURN
MOEN MANUF'G
Co.
'V. HAISH. 'V. SAME.
& MOEN MANUF'G Co. and another
(Circuit Court, N. D. Illinois.
February 21, 1881,)