State v. Jackson , 218 Minn. 429 ( 1944 )

The authorities cited in the original opinion furnish adequate answers to all questions raised in the state's application for reargument. Further discussion is added only because of the state's insistence that we overlooked certain language of the Nelson Act (25 Stat. 642, Act of January 14, 1889, c. 24), providing for the cession and relinquishment by the Chippewa Indians of their title and interest in all reservations in the state except the White Earth and Red Lake Reservations.

The language called to our attention is in § 1 of the act:

"* * * the acceptance and approval of such cession and relinquishment by the President of the United States * * * shall operate as a complete extinguishment of the Indian title without any other or further act or ceremony whatsoever for the purposes and upon the terms in this act provided."

This is followed by provisions in § 3 for the removal of the Indians from Leech Lake and other reservations to the White Earth Reservation, with this important proviso, which the state has either overlooked or disregarded, though here decisive:

"* * * That any of the Indians residing on any of said reservations may, in his discretion, take his allotment in severalty under this act on the reservation where he lives at the time of the removal herein provided for is effected, instead of being removed to and taking such allotment on White Earth Reservation."

The lands here involved were allotted to John Hunter in conformity to allotment act of 1887, infra, as amended, under the express authority of the quoted proviso from the Nelson Act, and, under the decision in United States v. Pelican,232 U.S. 442, 449, 34 S. Ct. 396, 399, 58 L. ed. 676, 679, and other cases cited in our original opinion, remained "Indian country" under the exclusive jurisdiction of the federal government.

The act of congress under consideration in the Pelican case (27 Stat. 62, Act of July 1, 1892, c. 140) related to the opening of a part of the Colville Indian Reservation in the state of Washington. The act provided that, "subject to the reservations and allotment of lands in severalty to the individual members of the Indians of the Colville Reservation," the portions of the reservation described in the act were "vacated and restored to the public domain." In commenting upon the act, the court said (232 U.S. 446,34 S. Ct. 397, 398, 58 L. ed. 678):

"* * * The exceptions were made by Congress in order to care for the Indians residing on that portion of the reservation. Every such Indian was entitled to select therefrom eighty acres which was to be allotted to the Indian in severalty (§ 4). The titles to the lands, selected were to 'be held in trust for the benefit of the allottees, respectively, and afterwards conveyed in fee simple to the allottees or their heirs,' " as provided in the Acts of February 8, 1887 (24 Stat. 388, c. 119), and February 28, 1891 (26 Stat. 794, c. 383).

"The evident purpose of Congress was to carve out of theportion of the reservation restored to the public domain thelands to be allotted and reserved, as stated, and to make therestoration effective only as to the residue." (Italics supplied.)

By parity of reasoning, the "complete extinguishment of the Indian title," referred to in the Nelson Act, was "effective only as to the residue" of the Leech Lake Reservation remaining after the Indians residing thereon had taken their allotments in severalty. And, as held in the Pelican case (232 U.S. 447,34 S. Ct. 398, 58 L. ed. 678), all lands allotted in severalty and held in trust for the Indians "continued to be under the jurisdiction and control of Congress for all governmental purposes, relating to the guardianship and protection of the Indians, * * *."

State v. Bush, 195 Minn. 413, 419, 263 N.W. 300, 303, upon which the state still relies, is clearly distinguishable, because, as stated in that opinion, "Bush had received his patent in fee at the time of the commission of the misdemeanor" with which he was charged.

We pointed out in our original decision that we were confronted with a federal question upon which the federal decisions were controlling and suggested to the state a possible solution of the problems involved. We repeat again the language of Mr. Justice Black in United States v. McGowan, 302 U.S. 535, 538, 58 S. Ct. 286,287, 82 L. ed. 410, 412:

"* * * Congress alone has the right to determine the manner in which this country's guardianship over the Indians shall be carried out."

Application denied.

MR. JUSTICE MAGNEY took no part in the consideration or decision of this case.