Lee v. Pero (99 F.2d 28, 1938)

TREANOR, Circuit Judge.

This is an appeal from a judgment of the District Court granting a writ of habeas corpus. The petitioners were convicted in a state court of Wisconsin of the crime of murder and were sentenced to life imprisoument in the Wisconsin State Prison, The person against whom the alleged crime was committed was a licensed trader on what is known as the Bad River Indian Reservation, the alleged crime having been committed within the confines of that reservation. The reservation had been set aside under the terms of a treaty with the Federal Government as a reservation for the Lake Superior Chippewa Indians and particularly “for the La Pointe band, and such other Indians as may see fit to settle with them.” -

Jt js phe contention of the petitioners, appellees, that jurisdiction to try petitioners for ¿e commission of the alleged crime was exclusively with the proper federal court; that the trial in the state court and the judgment rendered therein were a nuljjty and; consequently, that the petitioners were being held in prison unlawfully by the respondent-appellant, Warden of the Wisconsin State Prison. The foregoing propositions rest upon the assumption that Petitioners are Indian wards of the United Government and that by force of the laws of the Unded Sfte? the aUeg.ed crlme ^ “gmzable onI7 f a district court oí thc Untlted Stat“« and,tllat the P.e' titioners are subject to the exclusive jurisdiction of the United States.

Congress has enacted that “All Indians committing against the person or property another Indian or othei pel son any of the following crimes, namely, murder * * * on and within aüy Indian reserVation under the jurisdiction of the United States Government * * * shall be subject to the same laws, tried in the same courts, and in the same manner, and be subject to the same penalties as are all otiler Pers«ns committing any of the above crimes withm the exclusive jurisdiction of the United States.”

+. The_ trial judge considered the jurisdictl0nal ^es ügation to be limited to the narrow ?uestl°n of what jurisdictional test was to be made under the ioregomg act; and jn his memorandum opinion aptly states the question thus: “Who is an Indian within the meaning of that Act?”

The respondent, appellant here; urges that neither of the petitioners is an Indian within the meaning of Section 548, supra, and that both, therefore, were subject to the criminal laws of the state of Wisconsin, even though the crime was committed by them on an Indian reservation. As to petitioner Pero the respondent urges that by force of congressional enactment Pero had been made subject to the criminal laws of Wisconsin and was no longer under federal guardianship. Pero was a full-blood Chippewa Indian and respondent assumes that prior to the commission of the alleged crime Pero had been allotted lands under a “trust patent.” This is a written instrument or certificate, issued to an allottee, which declares that the United States will hold the allotted land for a designated period, usually 25 years, m trust for the sole use and benefit of the allottee, or, m case of his death for the use of his heirs; and the certificate further declares that at the expiration of the trust period ,1 tt 1 , -n ±1 1 j x the United States will convey the land to the allottee or to his heirs, m fee discharged of the trust and free of all charge .s , « j •• • * or incumbrance. And it is the position oi , - , - . f ,.r. respondent that the issuance of a certificate of competency not only freed Pero of restrictions on his power to alienate the allotted land, but also freed him from the guardianship of the United States.

. .... , As to petitioner Moore respondent contends that he was not an Indian for the purposes of federal jurisdiction because he had not been enrolled with any Indian tribe or on any reservation. Although Moore was not enrolled, he resided on the reservation and maintained tribal relations .. T .. - TT. - with the Indians thereon. His mother was £ 11 i~i j j t j* * ^ . a full-blooded Indian of the St. Croix Band of Lake Superior Chippewas. Moores father- was a half-blood whose mother was a full-blood Indian Moores father and mother and their relatives re- .. - - ,. , . sided on the reservation and were known , - J