United States v. Thomas (151 U.S. 577)
On a certificate of division in opinion between the judges of the circuit court of the United States for the western district of Wisconsin.

Statement by Mr. Justice FIELD:

This case comes before us on a certificate of division of opinion between the judges of the circuit court for the western district of Wisconsin, on the question of its jurisdiction to try the defendant upon the indictment against him. See 47 Fed. 488. The defendant, an Indian of the Chippewa tribe, was indicted in that court for the murder of one David Corbin, a half-breed, of the same tribe, within the limits of La Court Oreilles Indian reservation, in Wisconsin, and was convicted. The evidence tended to show that the offense was committed in section 16 in a township in Sawyer county, of that state, embraced within the reservation; and on that ground the counsel for the defendant moved to set aside the verdict, and for a new trial, contending that by the provisions of the enabling act by which Wisconsin was admitted into the Union section 16 in every township in Wisconsin was ceded to the state for school purposes, and could not, therefore, be subsequently taken by the United States, and set off as part of an Indian reservation.

La Court Oreilles reservation, in the state of Wisconsin, was set apart for the Chippewa tribe of Indians, and embraces three townships in area, but by reason of the extension of several meandered lakes covers about seven townships. The reservation was approved by the treaty of 1854. The survey of the lands of this portion of the state had not then been made, and the townships which compose the reservation were not surveyed until the year 1855, and the lands were not selected until 1859. The state sold, in 1865, section 16 to parties, who cut off the timber, but otherwise made no use of the land except for the erection of a cabin while removing the timber. The land had been used by the Indians continuously from the immemorial previous to its reservation, and after it was denuded of timber they continued to hunt and travel over it.

Section 9 of the act of congress making appropriations for the Indian department for the fiscal year ending June 30, 1886, provides: 'That immediately upon and after the date of the passage of this act 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, arson, burglary, and larceny within any territory of the United States, and either within or without any Indian reservation, shall be subject therefor to the laws of such territory relating to such 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 are hereby given jurisdiction in all such cases; an all such Indians committing any of the above crimes against the person or property of another Indian or other person within the bounda- ries 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 subject to the same penalties, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.'

The motion to set aside the verdict and for a new trial was argued before the circuit judge and the district judge, composing the court, and they differed in opinion. The circuit judge held that the title to the township upon which the offense was committed was in the state of Wisconsin from the time of its admission into the Union, and consequently could not afterwards be used by the United States as a part of an Indian reservation. He was therefore of opinion that the court had no jurisdiction over an offense committed in that township, under the act of congress upon which it assumes to take jurisdiction of this case. The district judge, on the contrary, held that the right of occupancy of the Chippewa Indians to the land composing the reservation had never been divested, and that until so divested the title to section 16 could not vest in the state of Wisconsin under its enabling act; and, further, that, independent of any question of title, it was competent for the United States, having set apart certain lands within the state to be used as an Indian reservation, to provide for the protection of the Indians thereon, and for the punishment of offenses committed against them, and therefore he was against granting the motion.

The certificate sent to us is as follows: 'The motion of the defendant to set aside the verdict and for a new trial, etc., came on to be argued, and was argued by the counsel for the respective parties, and upon the hearing it occurred as a question 'Whether, as the evidence shows that the murder was committed upon section sixteen, in township forty north, of range eight west, in the state of Wisconsin, said section sixteen being within the outside limits of the said Indian reservation, and having been previously, in 1859, settled, platted, and set apart by the United States as a part and parcel of said reservation, and ever after occupied by said Indians as such, though claimed and sold by the state of Wisconsin as and for a part of the school land previously ceded to said state by act of congress, such murder was committed within the limits of said reservation, within the meaning of section 9 of chapter 341 of the act of congress approved March 3, 1885, so as to give the federal courts jurisdiction of the offense;' on which question the opinions of the judges were opposed, which said opinions are herewith transmitted.' And the court added: 'The court considering, as the whole case now turns upon the question of jurisdiction in this court, and no proceedings can be had until that question is determined, and that the same question would arise in any subsequent trial, that it is not one addressed to the discretion of the court but is proper to be certified to the supreme court for its opinion; whereupon, on motion of the United States, by their attorneys and counsel, it is ordered that the point upon which the disagreement hath happened as herein stated under the direction of the judges, including the entire record of proceedings in court, the evidence on the trial, and statement of facts as stipulated by the attorneys herein, also copy of the said indictment, be, and the same hereby are, made a part of the transcript certified under the seal of this court, according to the request of the United States by their counsel, to be supreme court, that the matter may be finally decided.'

Sol. Gen. Maxwell, for plaintiff.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court. 

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