3. JURISDIOTION OF UNITED STATES COURTS OVER CRIMES COMMITTED Olll' THE REB-
The United States courts of the district of Oregon have jurisdiction over all crimes committed on the Umatilla reservation by a white man on the property or persoD of an Indian, and t#C6 verBa. so far as the same have been defined by an act of congress.
PLEA OF AUTREFOIS ACQUIT.
B. and A. were indicted in the United States court for the crime of manslaughter, committed in killing Indian William on the Umatilla reservation, !lnd pleaded to the indictment a former acquittal, from which plea it appeared they had been indicted and tried in the state court for the murder of said Indian. and acquitted, to which plea there was a demurrer. Held, that the crime of which the defendants were acquitted in the state court was not the same as that charged in the indictment in the United States court, and therefore the plea was bad.
Indictment for Manslaughter. Jarnes F. Watson, for the United States. W. Lair Hill, for defendants. DEADY, J. On November 21,1884, the grand jury of the United States district comt for this district, by an indictment then duly found, accused the defendants of the crime of manslaughter, committed as follows: On May 13, 1884, the defendants, being white men, did "feloniously and willfully" shoot. with a revolving pistol, one William, an Indian, then and there being on the Umatilla Indian reservation, in this district, and belonging thereto, whereof he then and there died. Afterwards the indictment was remitted to this court for trial. On November 24th the defendants demurred to the indictment, on the ground that the court had no jurisdiction of the offense; and on November 26th they withdrew their demurrers, and on being arraigned pleaded autrefois acquit, or a former acquittal of the same charge in the circuit court of the state for the county of Umatilla. From the pleas it appears that on June 16, 1884, the defendants were jointly indicted in said court for the crime of murder, committed in killing the said William on May 13,1884, in said county of Umatilla, which includes said Indian reservation; and thereafter, to-wit, on July 2, 1884, were duly tried therein on said charge, on the plea thereto of not guilty, and acquitted. To these pleas the district attorney demurs, for that the facts stated therein "do not constitute a formal acquittal of the offense set forth in· the indictment, and do not constitute a bar to the prosecution by the United States for said offense." In U. S. v. Bridleman,7 Sawy. 243, S. C. 7 FED. REP. 894, and in U. S. v. Martin,8 Sawy. 473, S. C. 14 FED. REP. 817, it was held that the United States courts of this district have "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 and 2146 of the Revised Statutes. The crime of manslaughtel', when committed on the high seas or in any place within the exclusive jurisdiction of the United States, is defined by section 5341 of the Revised Statutes as the un-
ONITED STATES V. BARNHABT.
lawful and willful injuring of another, without malioe, bat so as to cause death; and this section was extended to the Indian oountry, so as to include the case of the killing of an Indian by a white man, and vice versa, by sections 2145 and 2146 of the Revised Statutes. Under section 8, art. 1, of the constitution, the power of congress to provide for the punishment of a crime committed by a white man on the person or property of an Indian, and vice versa, anywhere in the United States, is undoubted. As was said in the case of U. S. v. Bridleman, supra, 249:
"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 iniury by the other, and in the exercise of this power and the performance of t1tis duty it is not limited or restrained by the fact that the Indians are within the limits of a state."
But as congress has not seen proper to confer jurisdiction upon the national courts of the crime of murder or manslaughter growing out of intercourse between the whites and Indians, unless committed in the "Indian country," the only debatable point there ever was in these cases is whether the Umatilla reservation is "Indian country," within the meaning of that term as used in the Revised Statutes. In the Bridleman and Martin Gases, supra, the court held that the reservation was such Indian country; and it appears that the point has since been definitely decided in the same way by the supreme court in E:.c parte Grow Dog, 109 U. S. 556; S. O. 3 Sup. Ct. Rep. 396. In that case, Mr. Justice MATTHEWS, speaking for the court, says the term "Indian country" "applies to all the country to which the Indian title has not been extinguished within the limits of the United States, even when not within a reservation expressly set apart for the exclusive occupancy of Indians, although much of it had been acthe quired since the passage of the act of 1834, and formal definition in that act has been dropped from the statutes, excluding, however, any territory embraced within the exterior geographical limits of a state not excepted from its jurisdiction, by treaty or by statute, at the time of its admission into the Union, but saving, even in respect to territory not thus excepted, and [but?] actually in the excl1tsive occupancy of Indians, the authority of congress over it, under the constitutional power to regulate commerce with the Indian tribes, and under any treaty made in pursuance of it." The Umatilla reservation was made by a treaty negotiated with the Indians now in the occupation of it, on June 9, 1855, and ratified by the senate on March 8, 1859,-22 days after the admission of the state into the Union. It was thereby set apart for the "exclusive use" of these Indians, and has been occupied by them, under the care and direction of congress, ever since. U. S. v. Bridleman, 8upm" 246; And although this reservation was never expressly excepted from the jurisdiction of the state, by either treaty or statute, it is nevertheless
territory to which the Indian title has never been extinguished, and "aotually in the ex.clusive occupancy of Indians," in pursuance of llo treaty of the Uni.ted States. This brings it within the definition or description of "Indian country," in Ex parte Crow Dog, supra. The question is not one of power in the national government, for, as has been shown, congress may provide for the punishment of this crime wherever committed in the United States. Its jurisdiction is co-extensive with the subject-matter,-the intercourse between the white man and the tribal Indian,-and is not limited by place or other circumstance. But congress has only made provision for the punishment of this crime, when committed in the Indian country, as defined or desciibed by law. But, this reservation being such Indian country, the jurisdiction of ,this court over the offense is undoubted. Admitting this proposition, counsel for the defendants contends that in the killing of the Indian William there was but one crime, if any, committed, for whioh the defendants were subject to trial by either the state or the United States court, and that whichever of these jurisdictions first took cognizance of the oase, took it with the absolute exclusion of the other, and therefore the defendants, having been first tried and acquitted on this oharge in the state court, the question of their guilt or innocence is res judicata, and they cannot be retried upon it in this or any other oourt. This argument assumes that this homicide only involves one orime, of which neither the state nor national courts have exclusive jurisdiotion, but only concurrent. Where an act constitutes a orime against two sovereignties-as the state and the United States-there may be a "oonourrent" right to proceed against the offender, so that whichever of the two governments first acquires jurisdiction of him shall be entitled to proceed ad finem litis without interference fl'om the other. But, in the very nature of things, courts of different sovereignties cannot have concurrent jurisdiction of the same offense, unless it is one arising under some law common to them all; as the law of nations. Piracy, or robbing on the high seas, is a violation of this common or universal law, and thel'efore the courts of every nation in the civilized world have con· current jurisdiction of it. And, this being so, a trial in one of them, upon such a charge, is considered a bar to a prosecution therefor in another. As was said in U. S. v. Pirates, 5 Wheat., 197:
"It [piracy] is against all, and punished by all; and there can be no doubt that the plea of autrefois acquit would be good in any civilized state, though resting on a prosecution instituted in the courts of any other civilized state."
But there was no crime involved in the killing of Indian William, punishable in any oourt, unless the law of Oregon or the United States made it so. No other power had any jurisdiotion over the place where the killing ocourred or the persons concerned in it. Nor could either of these make this killing a crime triable in the courts of the other. Neither is there any law common to both of them, as the law of nations, making this killing a crime, and under which either might
UNITED STATES V. BARNHART.
take jurisdiction of it t'o the exclusion of the other. The United States had declared the killing to be murder or manslaughter, according to the circumstances of the case, and provided for the punishment of the persons guilty of it in its own courts. The state also had a law providing for the punishment C!f persons guilty of such crimes, when committed within its geographical limits, not excluding this reservation. And while the latter comprehends the unlawful killing of any human being within the peace of the state, the former only extends to such killjng of a human being known as a tribal Indian by a white man, and vice versa. But the crimes defined by these laws, however similar in circumstance or origin, are legally distinct. They are offenses against different sovereignties and triable in different courts. In U. S. v. Mal·tin, supra, 478, it is "conceded that the admission of Oregon into the Union upon an equality with the other states, without any special reservation of jurisdiction over the place .then known and occupied as the Umatilla Indian reserva.tion, extended the jurisdiction of the state thereover as to all subjects constitutionally within its power of legislation, such as a crime committed thereon by one white man upon another, and itmay be by one Indian upon another." But as this subject of the intercourse between the white man and the Indian is committed by the constitution to the government of the United States, and as congress has provided for the punishment' of a white man for the felonious killing of an Indian upon this reservation, and vice versa, it is not admitted that the state has any authority over such killing, or power to punish or absolve the person committing the same. Local interference in such cases generally results in the punishment of the Indian and the acquittal of the white man. Most of the Indian wars which have desolated the frontier of this country, in the last 80 years, have been the direct result of crimes committed by a few lawless and savage white men upon Indians, which the local authorities were powerless or indisposed to punish. As a rule, the proceedings in these tribunals have resulted in one judgment for the white man and another for the red one. No white man was ever hung for killing an Indian, and no Indian tried for killing a white man ever escaped the gallows. But it may be that the state can punish acts growing out of the intercourse between the whites and Indians, until congress vests the jurisdiction thereof exclusively in the national courts. See Goleman v. Tennessee, 97 U. S. 514. But be this as it may, and assuming for the present that the state has authority to provide for the trial and punishment or acquittal of a white person charged with the commission of a wrong upon the person at property of an Indian, on this reservation, still the pleas of a former acquittal are not good. The crime set forth in these pleas, of which it thereby appears the defendants were acquitted in the state court, is not the same crime charged in this indictment. The former is a v.22F,no.5-19