People ex rel. Cusick v. Daly , 28 N.Y. Crim. 508 ( 1912 )

Pound, J.

Relator, a Tuscarora Indian, is imprisoned in Niagara county jail awaiting trial under an indictment found in this court charging him with assault in the first degree, committed on the person of another Tuscarora Indian on the Tuscarora reservation in this county. He claims that his detention is illegal under the provisions of section 328 of the United States Criminal Code (ch. 14), which reads as follows:

“ Sec. 328. 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, assault with a dangerous weapon, arson, burglary, and larceny, within any Territory of the United States, and either within or without an Indian reservation, shall be subject therefor to the laws of such Territory relating to said 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 &re hereby given jurisdiction in all such cases. And all such Indians committing any of the above named crimes against the person or property of another Indian or other person within the boundaries 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 be subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.”

Notwithstanding the numerous authorities cited on the brief of the learned counsel for the relator to sustain the general position that such crimes, committed on Indian reservations, are exclusively within the jurisdiction of the United States Courts, I am of the opinion that the state of New York has jurisdiction over criminal offenses commited by ‘Indians upon the persons of other Indians within the limits of the Tuscarora reservation, so called. The Tuscarora Indians came originally from North Carolina and acquired their lands by purchase from the Seneca Nation of Indians and the Holland Land Company. It does not appear that, as in the case of the western Indians, the United States Government ever settled them on such lands or set the same apart for their use.

An Indian reservation within the meaning of the act of March 3, 1885 (now U. S. Crim. Code, § 328, Act of March 4, 1909), above quoted, may be defined as being “ a part of the public domain set apart by proper authority for the use and occupation of a tribe or tribes of Indians. It may be set apart by act of congress, by treaty or by executive order.” Forty-three cases Cognac Brandy, 14 Fed. Rep. 539.

It was said in the case of United States v. Thomas, 151 U. S. 577, 585, decided long after the relator’s leading case of United States v. Kagama, 118 id. 375, that “ 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 these people full protection in their persons and property, and to punish all offenses against them or hy them within" such reservation.”

If a tribe of Indians purchases'its own domain and voluntarily locates itself thereon, the tract is not a “ reservation,” nor outside the sovereignty and jurisdiction of the state.

The policy of the state has been to extend its civil and criminal jurisdiction over the Tuscarora “ reservation ” and to me this policy seems wise and proper, in the interests of law and order, for the protection of the Indians themselves and for the preservation of the public peace. Benson v. United States, 44 Fed. Rep. 178, 182, 183.

It has been held that estates of deceased members of the Tuscaroras may be administered in Niagara county Surrogate’s Court (Matter of Printup, 121 App. Div. 322), and that summary proceedings to recover possession of lands on the reservation may be maintained in the state courts. Peters v. Tallchief, 121 App. Div. 309.

Peters v. Malin, 111 Fed. Rep. 244, 250, is not in conflict with my conclusions, for the Tuscarora Indians were never, as were the Sac and Fox Indians in that case, removed by the United States to their present' reservation — at least it does not so appear in this proceeding.

Prisoner remanded to the custody of the sheriff of Nia gara county.

Ordered accordingly.