, (O-trC'wtt Court, D. KansaB. November 28, 1889.)
The Indian Territory is defined by Aat Congo June 80,1884, (4 St. at Lal'g8, '729 ) u
isians, and Arkansas, and all east of the river, and not within any state to whic'b the JJ!,dian title has not yet been extinguished. The tract of land known as "No Man's Land" was not then a part of the United States, and many treaties and acts of congress passed afterwards, by implication at least,locate the western boundary of tbe !ndian Territory at the looth meridian, which is the eastern boundary of "No Man's Land." !nothers, this tract isolearly, or by implication, recognized asa part of the territory. Act Congo 1889, (25 St. at 783,) established a United States court with jurisdiction extending over the Indlan Territory bounded so as to include. "No Man's Land." Section 17 attachea to the eastern district of Texas all of the Indian Territory not otherwise assigned, which included this land, if it was a part 01 the'territory. Held, that the jurisdiction of the United States court for the eastern district of Texas over this tract of land was sufficiently clear to grallt a removal to the state of Texas of one indicted by that court fora crime committed ill "NO l\!lan's LaJ;ld," and l!orr8sted in another state.
all that part of the United States west 01 the Mississippi, and not in Missouri,
Applieation for Habeas Corpua. J. W.Ady and P. L. Soper, for the United States. HaheU Hwme and E. Hagan, for petitioner. BREWER, C. J. In the case E'J! parte Jackson, the facts are these: The petitioner was indicted by the federal court or the eastern 4istrict of Texas for tPlil crime of murder, conimitted in th f3 year 1888, in the district known a& "No Man's Land." He was.arrested in this state; and a removal sought to the Texas district. To preveut that, this petition in habeas corpus has been filed; and the question presented is as to the jurisdiction of ,the Texas court over the territory and the offense, and the duty of this court on habeas C<>ryUS. lithe jurisdiction of that court, both al;l to the territory and the offense, was clear,the duty of this court would be imperative to deny the petition, and see.that the petitioner be removed to that district. On the other hand, if it were clear that that court did not have jurisdiction, either as to the territory or the offense, then it would in like manner be the imperative duty of this court to suspetition, and discharge the petitioner. But neither of those is this case. ..Again, if it was a case where the question was which of two courts had jurisdiction, then it would be the duty of this court to determine, if it were a. matter of doubt, which most probably had jurisdiction, and send the petitioner there. But this case does not even present that question, for here, confessedly, no court has jurisdiction, unless it .be the Texas court; and the question is, what is the duty of this court, under such circumstances as these? Conceding that the jurisdiction of .the Texas court be, doubtful, if it have no jurisdiction, then there is no .jurisdiction to punish this offense. In a case like that, I that .if there be fair renson for, believing that that court has jurisdiction, or .that that C01ll't, being a court of equal authority withtl)is, with the right ·to determine of its own jurisdiction, .would on inquiry hold in favor of that jurisdiction, then, as ill no other _ way 9all inquiry be
IN RE .JACKSON.
made into this allegedoft"ense, this court ought to remit the party to that court. Has that court jurisdiction? The homicide took place in "No Man's Land," in 1888, as alleged. What is known as the "Indian country," or the "Indian Territory," was first defined and bounded by the act of June 30, 1834, (4 St. at Large, 729.) That definition is as follows: "That all that part of the United States west of the Mississippi, and Dot within the states of Missouri and Louisiana, or the territory of Arkansas, and also that part of the United States east of the Mississippi ri ver, 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." . Now the expressions "Indian country" and "Indian Territory" are used interchangeably hi the statutes. We speak of the Indian TerritorYi bnt,politically, that is a lnistake. There is no organization. It more properly a territory referring simply to geographical extension, arid not to any political organization. At the time this act of 1834 was passed, "No Man's Land " was not a part of the United States. It did not then come within" Indian country," as defined; and, unquestionably,' many treaties and acts of congress have been made and passed since in which the western boundary of this Indian country, 0).' Indian Territory, is, by implicatiort at least, located on the 100th meridian, which is the eastern boundary of "No Man's Land." And yet this original territorial bound,; sry inay, without'lmy undue stretch of language, be regatd'ed as a shift;. ing boundary. It is not a boundary prescribed for the purpose of political organization, or fora deed or other conveyance. It is a boundary for the mere purpoSe ofdefining the territory over which certain laws of the United States will have operation. Being such a boundary, it would not be irhproper tocollsider that boundary shifting, wheneverotherter:ritory was properly subjected to the operation of the same laws. It would'be changed by the organization of any part ofthis territory into a political territory of the United States. It might be changed whenever the territorial boundaries of the United States were extended westward, by purchase or conquest, into country unoccupied, save by the Indians. It may be regarded as a boundary certain, but shifting; something on the principle .controlling the boundary of a lot on a river or on a lake.' That boundary is certain, though it may be shifting. By accretions, the water-line may be extended far into the river or the lake; but still it is the So here, considering the purpose for which the Indian country was bounded, one may fairly infer that that boundary shifted as the territorial extensions of the United States increased, or as territory was carved out of it for political organization. That such is the real force Qfthat description is evident from the case of & parte Grow Dog, in 109 U. S. 556, (3 Sup. Ct. Rep. 396.) The syllabus, and the opinion bears . this out, reads as follows: . 'i The definition of the term ·Indian country' contained in chaptel' 161, § 1; of the Act of 1834, (4 St. 729,) though not incorporated in the Revised Statutes, and though repealed simultaneously. with other enactments, may be re" ferred to. in .oreler to determine what is by the term 'VlIen used in the
1\114 'It' JaWUes ,tb'att tbeoollntry'to>wliich tb., 'lfJ:dilin 'title has Mt been extinguisbed within the limits of the United States, whether witllin,lIo pr ,not, and'Yhl'!tberacquired before or sin<;e the passl\geof. that ,.:, '" . , . , ,,'; " ': , )1 This territory wasacquiTed since the passage of that'act.
taw, Chickasaw, and Seminole' Indian shall, from and after tbe passage ofth,is act,1;>e annexed to and constitute apart of the United States judicial d\Strict known as the ·Northern of 'fexas.''' 22 St. 400.
As'Isa1d,.howevt'lr,thereare rnany treaties and stllitutes since that in the implication that the 100th meridian was the west,boundary,or was regarded as the westernbollndary, of the Indian Territory. ,That, of course, throws doubt upon the scope of that ion. Go'the other hand,w6' find some in which: iti8 equally clear that this "No Mim'sLand" is tecogriizedas a patt ofthe IndhinTerritory, as in article 2 of the witp tqlil Comanches and Kiowas, October 18, 1865,.found in 14 Statutes at Large, 718. But, coming closer that, iothe ,act of 1883, which there tj.n attempted partition of the jUrisdiction over the, ;£lldian beto,yeen the district of RaIlsa8'itht;l northerndistIdct,l,lf,Texal3, and the eastern district of.(\rkansas" in describing that portion .ofthe territory whigh wasassignedt9 the,district of Kansas, it is "all that part,of the Indian Territory, lying north of the Canadiaqriver and east of Texas and the one hundredth meridian" bl?annexe!i to and ,constitute a part of the United judi, cial districtofKansas,.,. ",That part of Indian Territory east of Texas and. one hundredth iIllplyiIlg that WaS' some portion of the territory west of the or other of theae, two. And section Ssays: ' ," All that portion of the Indian Territory not annexed to the district of Kan· sas by this act, and not set apart and occupied I:>Y the Cherokee, Creek, Choc-
,.Of course, thisis mere implication, but it certainly is strong ithplica.. tion, that· there was someterritory.Jying west of the 100th meridian; and it could be only that which is known as "No Man's Land.'7 ' That wasio 188S. Coming down to 1889, an. act was pallsed to estahlisha United States court in the Iodian Territolly,.which is, found in 25 U. S. St. at Large, 783, in which the Indian Territory is. bounded: "That a United StateS court is hereby established'whosejul'isdiction shall extend over'the Indian Territory ,bounded as. follows:" "lThen it bounds it.so as to include "No Man's Land."} .This is either' a recognition, by congress oOhat as the previous, houndary, oftMs Indian Territolly; or is an assertion: that henceforward such should be the boundary. The court created by this act was given jurisdictionofmisdemeanofs·. The seventeenth section of that act attached to the ,eastern jtldiQial district of Texas all thaiportion of the Indian Territory not otherwise and included "No if it Nqw, where is 'qSed and defined. in, the Qpening p!lirtof' a ·atatute, the use of that ,term , thereafter in the statute is'with the same meaning, and the same dafirii· tion. The" Indian Territory'l is bounded ill the' first section so 'as to in·
!'DE . FOREST II., THOMPSON.;
elude tenn, used thereafter, without any definition of boundary, means the same territory. Hence I have no question but that by said secition 17 the jurisdiction over this " No Man's Land" was assigned to the eastern district of Texas. That, of course, was since the offense was charged to have been committed. My conclusions, then, are these: That to-day, ,and since March, 1889, the court of the eastern district of Texas has jurisdiction over "No Man's Larid."; Probably, Jllso:,the court of the, northern district of Texas had 'like jurisdiction prior thereto, and since 1883; and, there being a federal court, with jurisdiction territorially, with ministerial officers, a clerk, and: a: marshal, there is no trouble in finding all the machinery for. purposes of trial. Under those circumstances, it seems to me that it is Ule duty of this court to deny this petition.
et al.v. TIioM'l\soN, Commissioner, et elL,
(Circuit Oourt. D. West Virginia. November 1.
and 'irregularity, though SUch' sales lind deeds were made pursuant to an order of 8 :' iltate court of the COU'Ilty where the lands sold are lIituated.
BY FORlilIGN ' ExECUTORS.
The federal courts have jurisdiction of a suit between citizens of diil'erent lltaU,S, to set aside sllies of la.ud,l! forfeited to the state, and deeds therefor. for illegality
OJ' FEDERAtJ dOURTS-SutTs TO VACATE TAX-SALES.
W!lere the will of the deceased owner of such lands, in whose name they were sold, vests the title thereto in his executors and trustees, who arllcitizens of au· other the latter n;lay bring the suit in a federal court sitting in ,the state where the lands:lie, though they have not qualified in that state, as they sue in'their indiVidual, aJid not in their representative, oapacity. ,
EQUITY-JURISDICTION-MuLTIPLICITY OJ' SUITS.
Where there are ma!'lY defendants, each of whom claims apart of the land under a 's81e' made under the'san;le oi-der of oourt relating to the whole, eqUity has juris)'. diction to avoid a mUltiplicity of, suits, though the sales were absolutely void, and plaintiJrs. have an adequate remedy at law. ' :Wherelaild is purehB6ed;by the state for non-payment of taxes, and is not redeeJIled by the owner the statutory period, such owner is not a- necessary party. to proceedings by the commissioner of school lands to sell such land for the benllfit; of the school fund, under Code W.' Va. Co 105, is 5, 6, as his title is gone.
' ;', ' ' , ,'. " _
.. '1'UATION':"SALE J'OR
" Failufeof the sherif! ,too return a li!lt of lands lold for taxes in West Virginia , within: IO'days, as prescribed by Code W. Va. c.311 f aI, and failure of 'the recorder ',to :note thetin;le of ftlirig lIuch list, as 'required by tue same statute, ren4eJ'the sales "invalid. , '
5.S:UI:E....IRREGULARITIEB. , :
Wilerean origin&! bill assails BUch. sales as void on other grounC!lI, a supplesetting up the /lheriil"s failure to.return the list within the statutory tIme as all additional reason holdina the sales void, does nbt make anew 'and moon. ,
In>Equity. .', " , BiMsbyR. W. DeForest and ,L. W. Knox. citizens of York, trustees and executors of theestateof..Burr Wakeman, against William Thompson, commissiOller ofsc.ho,ol cqt!-ntYl W.