INDIAN AFFAIRS: LAWS AND TREATIES. Vol. 1, Laws

Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1904.

ACTS OF FIFTIETH CONGRESS—SECOND SESSION, 1889.
CHAP. 172 | CHAP. 333 | CHAP. 412

Chapter 333
Sections 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28

Margin Notes
Chap. 333	Indian Territory, United States court established in. 1895, Mar. 1, c. 145, post, p. 70. 40 Fed. Rep., 372; 153 U. S., 48; 47 Fed. Rep., 488; 66 Fed. Rep., 372; 69 Fed. Rep., 68.
Chap. 333	Boundary of district. R. S., 533. 1890, May 2, c. 182, s. 29. post, p. 47.
Chap. 333	Judge, appointment, term of office, salary.
Sec. 2	Attorney and marshal. R. S., 771-776, 787-792, 824-827, 829. 830. 1888, June 9, c. 382, ante. p. 37. 1895, Mar. 1, c. 145, post. p. 70.
Sec. 2	Deputy marshals. R. S., 780, 783.
Sec. 3	Clerk. R. S., 795, 797-799, 828. 1895, Mar. , c. 145, post, p. 70. 1901, Mar. 3. c. 832, post, p. 111.
Sec. 4	Official oaths. R. S., 712, 782, 794.
Sec. 5	Jurisdiction of offenses. S. 27, post, p. 43. 135 U. S., 263.
Sec. 6	— of civil cases. 1890, May 2, c. 182, s. 29, post, p. 47. 66 Fed. Rep., 843.
Sec. 6	— none in suits between Indians. 1898, June 28. c. 517. s. 26 and 28, post, p. 100.
Sec. 6	Coal-mining leases and contracts by Indians no longer prohibited.
Sec. 6	— jurisdiction of court as to.
Sec. 6	Laws of United States as to procedure to apply, but practice to conform to that of Arkansas. R. S. 911-1042. 1890, May 2, c. 182, s. 31, post, p. 49. 69 Fed. Rep., 68.
Sec. 6	Supreme Court may review cases over $1,000. R. S., 691,692, 699. 1890, May 2, c. 182, s. 42, post, p. 54. 1891, Mar. 3, c. 517, s. 13, post, p. 61. 1895, Mar. 1, c. 145, s. 11, post, p. 75.
Sec. 7	Terms of court. 1890, May 2, c. 182, s. 30, post, p. 47.
Sec. 8	Proceedings to be in English language.
Sec. 9	Jury commissioners. 1890, May 2, c. 182, s. 30, post, p. 48.
Sec. 9	— oath of.
Sec. 10	— selection of jurors by.
Sec. 10	Petit jurors.
Sec. 11	Alternate jurors.
Sec. 11	Oath of clerk.
Sec. 12	Copy of list of petit jurors to be made by clerk.
Sec. 12	Return of jury lists by marshal.
Sec. 12	Filling vacancies on juries.
Sec. 13	Selection by marshal.
Sec. 14	Fees of jurors and witnesses.
Sec. 15	Criminal trials. Citizens only to be jurors when citizen is defendant. Amendment, post, p. 653.
Sec. 16	Writs and processes.
Sec. 17-19	[Repealed] 40 Fed. R. 372.
Sec. 20	In Indian Territory: punishment for obstructing, etc., railroads. 1896, May 25, c. 242, post, p. 78.
Sec. 20	— in case a person is killed.
Sec. 21	— for injury to telegraph, etc., lines.
Sec. 22	— for disturbing religious worship.
Sec. 23	— for assault with intent to rob. Sec. 27, post.
Sec. 24	— for injuries to animal property. Sec. 27, post.
Sec. 25	— for assault. Sec. 27, post; 40 Fed. Rep., 81; 42 Fed. Rep., 320.
Sec. 26	— for setting fire to woods, etc.
Sec. 27	Certain sections not to apply to offenses between Indians. Sec. 5, 23, 24, 25, ante.
Sec. 28	Repeal.

Chapter 333
Mar. 1, 1889. | 25 Stat., 783.

Page Images

An act to establish a United States court in the Indian Territory, and for other purposes.^a

^aThe jurisdiction of courts and the punishment of offenses in the Indian Territory have been the subject of numerous statutes.
   Revised Statutes, 533, makes the Indian Territory a part of the western district of Arkansas. Chapter 4 of Title XXVIII, Revised Statutes (2127-2157), relating to the government of Indian country, contains sections defining offenses or imposing penalties as follows: 2133, trading in the Indian country without a license; 2134. foreigner entering the country without passport; 2135, receiving certain articles from Indians; 2136, selling arms or ammunition to Indians; 2137, hunting in Indian country; 2138, removing stock; 2139, 2141, spirituous liquors in the Indian country; 2142, assault with intent to kill or maim by a white person upon anyone, or by an Indian upon white person; 2143, arson by a white person on any property, or by an Indian on property belonging to a white person; 2144, laws of United States for forgery and mail depredations extended to Indian country; 2145, 2146, general laws of United States for punishment of crimes within its exclusive jurisdiction extended to the Indian country, except to crimes by one Indian against another, or to any Indian who has been punished by the tribal law, or where exclusive jurisdiction is secured to the Indian tribes.
   By 1883, January 6, chapter 13 (22 Stat. 400), portions of the Indian Territory are annexed to the district of Kansas and the northern district of Texas. By 1885, March 3, chapter 341, section 9 (ante, p. 32), Indians committing against an Indian or other person certain major offenses in any Territory, either within or without an Indian reservation, are subject to the Territorial laws, and if within a reservation in a State, are subject to the laws relating to the same crimes within the exclusive jurisdiction of the United States. By 1888, February 15, chapter 10 (ante, p. 36), punishment is provided for horse stealing, robbery, and burglary in the Indian Territory; and by 1888, June 9, chapter 382 (ante, p. 37), for offenses against United States officers. By 1888, June 4, chapter 343 (25 Stat., 167), United States marshals are empowered to enter the Indian Territory and execute process. As to what constitutes Indian country, see 95 U. S., 204.
   By 1889, March 1, chapter 333, above, a United States court is established in the Indian Territory with jurisdiction (sec. 5) over all offenses against United States laws not punishable by death or imprisonment at hard labor, and (sec. 6) with certain civil jurisdiction. The following offenses are defined and punished: Section 20, obstruction of railroad; section 21, injury to telegraph or telephone lines; section 22. disturbing religious worship; section 23, assault with intent to rob; section 24, injuries to animal property; section 25, certain assaults; section 26, setting fire to woods, marshes, or prairies, with intent to destroy improvements. By section 27 the jurisdiction of the new court is excluded from offenses by one Indian upon the person o+ property of another, and section 23, 24, and 25 are not to apply to such offenses. Section 17 attaches a part of the Indian Territory to the eastern district of Texas, apparently repealing the jurisdiction of the northern district of Texas, granted by 1883, January 6, chapter 13, section 3 (22 Stat., 400). (See 138 U. S., 157, and 40 Fed. Rep., 472.)
   By 1890, May 2, chapter 182, sections 1-28, (post, pp. 45-47), the Territory of Oklahoma is created out of a part of the Indian Territory, with an independent territorial judicial system (sec. 9), and the Cherokee outlet is attached thereto for judicial purposes. By section 29 jurisdiction of the United States court for the Indian Territory is confined to the remainder of the Territory; by sections 29, 31 its civil powers are extended; by section 34 authority is given to enforce Title XXVIII, chapters 3 and 4, R. S., sections 2111-2157, except in cases of arson and assault; by section 35 jurisdiction is conferred in certain cases under R. S., sections 5392-5412 and by section 36 in civil and criminal cases arising between Indians of different tribes. Various miscellaneous provisions in relation to the court are also contained in the act.

Be it enacted, &c., That a United States court is hereby established, whose jurisdiction shall extend over the Indian Territory, bounded as follows, to wit:

North by the State of Kansas, east by the States of Missouri and Arkansas, south by the State of Texas, and west by the State of Texas and the Territory of New Mexico.

And a judge shall be appointed for said court by the President of the United States, by and with the advice and consent of the Senate, who shall hold his office for a term of four years, and until his successor is appointed and qualified, and receive a salary of three thousand five hundred dollars per annum, to be paid from the Treasury of the United States in like manner as the salaries of judges of the United States district courts.

That there shall be appointed by the President, by and with the advice and consent of the Senate, an attorney and marshal for said court, who shall continue in office for four years, and until their successors be duly appointed and qualified, and they shall discharge the like duties and receive the same fees and salary as now received by the United States attorney and marshal for the western district of Arkansas.

The said marshal may appoint one or more deputies, who shall have the same powers, perform the like duties, and be removable in like manner as other deputy United States marshals; and said marshal shall give bond, with two or more sureties, to be approved by the judge of said court, in the sum of ten thousand dollars, conditioned as by law required in regard to the bonds of other United States marshals.

That a clerk of said court shall be appointed by the judge thereof, who shall reside and keep his office at the place of holding said court. Said clerk shall perform the same duties, be subject to the same liabilities, and shall receive the same fees and compensation as the clerk of the United States court of the western district of Arkansas; and before entering upon his duties he shall give bond in the sum of ten thousand dollars, with two or more sureties, to be approved by the judge of said court, conditioned that he will discharge his duties as required by law.

That the judge appointed under the provision of this act shall take [the same] oath, required by law to be taken by the judges of the districts courts of the United States; and the oath, when taken as in such cases provided, shall be duly certified by the officer before whom the same shall have been taken to the clerk of the court herein established, to be by him recorded in the records of said court.

The clerk, marshal, and deputy marshals shall take before the judge of said court the oath required by law of the clerk, marshal, and deputy marshals of the United States district courts, the same to be entered of record in said court as provided by law in like cases.

That the court hereby established shall have exclusive original jurisdiction over all offenses against the laws of the United States committed within the Indian Territory as in this act defined, not punishable by death or by imprisonment at hard labor.

That the court hereby established shall have jurisdiction in all civil cases between citizens of the United States who are residents of the Indian Territory, or between citizens of the United States, or of any State or Territory therein, and any citizen of or person or persons

residing or found in the Indian Territory, and when the value of the thing in controversy, or damages or money claimed shall amount to one hundred dollars or more:

Provided, That nothing herein contained shall be so construed as to give the court jurisdiction over controversies between persons of Indian blood only:

And provided further, That all laws having the effect to prevent the Cherokee, Choctaw, Creek, Chickasaw and Seminole Nations, or either of them, from lawfully entering into leases or contracts for mining coal for a period not exceeding ten years, are hereby repealed;

And said court shall have jurisdiction over all controversies arising out of said mining leases or contracts and of all questions of mining rights or invasions thereof where the amount involved exceeds the sum of one hundred dollars.

That the provisions of chapter eighteen, title thirteen, of the Revised Statutes of the United States shall govern such court, so far as applicable: Provided, That the practice, pleadings, and forms of proceeding in civil causes shall conform, as near as may be, to the practice, pleadings, and forms of proceeding existing at the time in like causes in the courts of record of the State of Arkansas, any rule of court to the contrary not withstanding; and the plaintiff shall be entitled to like remedies by attachment or other process against the property of the defendant, and for like causes, as now provided by the laws of said State.

The final judgment or decree of the court hereby established, in cases where the value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds one thousand dollars may be reviewed and reversed or affirmed in the Supreme Court of the United States upon writ of error or appeal, in the same manner and under the same regulations as the final judgments and decrees of a circuit court.

That two terms of said court shall be held each year at Muscogee, in said Territory, on the first Monday in April and September, and such special sessions as may be necessary for the dispatch of the business in said court at such times as the judge may deem expedient; and he may adjourn such special sessions to any other time previous to a regular term; and the marshal shall procure suitable rooms for the use and occupation of the court hereby created.

That all proceedings in said court shall be had in the English language; and bona-fide male residents of the Indian Territory, over

twenty-one years of age, and understanding the English language sufficiently to comprehend the proceedings of the court, shall be competent to serve as jurors in said court but shall be subject to exemptions and challenges as provided by law in regard to jurors in the district court for the western district of Arkansas.

That the jurors shall be selected as follows: The court at its regular term shall select three jury commissioners, possessing the qualifications prescribed for jurymen, and who have no suits in court requiring the intervention of a jury; and the same persons shall not act as jury commissioners more than once in the same year. The judge shall administer to each commissioner the following oath:

“You do swear to discharge faithfully the duties required of you as jury commissioner; that you will not knowingly select any one as juryman whom you believe unfit and not qualified; that you will not make known to any one the name of any juryman selected by you and reported on your list to the court until after the commencement of the next term of this court; that you will not, directly or indirectly, converse with any one selected by you as a juryman concerning the merits of any cause or procedure to be tried at the next term of this court; so help you God.”

That the jury commissioners, after they have been appointed and sworn, shall retire to a jury room, or some other apartment designated by the judge, and be kept free from the intrusion of any person, and shall not separate without leave of the court until they have completed the duties required of them; that they shall select from the bona fide male residents of the Territory such number of qualified persons as the court shall designate, not less than sixty, free from all legal exception, of fair character and approved integrity, of sound judgment and reasonable information, to serve as petit jurors at the next term of court; shall write the names of such persons on separate pieces of paper, of as near the same size and appearance as may be, and fold the same so that the names thereon may not be seen.

The names so written and folded shall be then deposited in a box, and after they shall be shaken and well mixed, the commissioners shall draw from said box the names of thirty seven persons, one by one, and record the same as drawn, which record shall be certified and signed by the commissioners, and indorsed “List of petit jurors.”

That the said commissioners shall then proceed to draw in like manner twelve other names, which shall be recorded in like manner on another paper, which shall be certified and signed by the commissioners, and indorsed “List of alternate petit jurors.” The two lists shall be inclosed and scaled so that the contents can not be seen, and indorsed “List of petit jurors,” designating for what term of the court they are to serve, which indorsement shall be signed by the commissioners, and the same shall be delivered to the judge in open court; and the judge shall deliver the lists to the clerk in open court, and administer to the clerk and his deputies the following oath:

“You do swear that you will not open the jury-lists now delivered to you; that you will not, directly or indirectly, converse with any one selected as a petit juror concerning any suit pending and for trial in this court at the next term, unless by leave of the court: so help you God.”

That within thirty days before the next term, and not before, the clerk shall open the envelopes and make a fair copy of the lists of petit jurors and alternate petit jurors, and give the same to the marshal, who shall, at least fifteen days prior to the first day of the next term, summon the persons named as petit jurors and alternate petit jurors to attend on the first day of said term as petit jurors, by giving personal notice to each, or by leaving a written notice at the juror's place of residence with some person over ten years of age and there residing.

That the marshal shall return said lists with a statement in writing of the date and manner in which each juror was summoned; and if any juror or alternate legally summoned shall fail to attend he may be attached and fined or committed as for contempt.

That if there shall not be a sufficient number of competent petit jurors and alternates present, and not excused, to form a petit jury, the court may compel the attendance of such absentees or order other competent persons to be summoned to complete the juries.

That if for any cause the jury commissioners shall not appoint or shall fail to select a petit jury as provided, or the panels selected be set aside, or the jury list returned in court shall be lost or destroyed, the court shall order the marshal to summon a petit jury of the number hereinbefore designated, who shall be sworn to perform the duties of petit jurors as if they had been regularly selected; and this provision shall also apply in the formation of petit juries for the first term of the court. The want of qualification of any person selected as juror under section ten of this act shall not necessarily operate as cause of challenge to the whole panel.

That the fees of the jurors and witnesses before said court herein created shall be the same as provided in the district court of the United States for the western district of Arkansas.

That in all criminal trials had in said court, in which a jury shall be demanded, and in which the defendant or defendants shall be citizens of the United States, none but citizens of the United States shall be competent jurors.

That the judge of the court herein established shall have the same authority to issue writs of habeas corpus, injunctions, mandamus, and other remedial process, as exists in the circuit court of the United States.

[Sections 17 to 19 are repealed by Section 9, act of March 1, 1895, Chapter 145, post, page 74.]

That every person who shall, in the Indian Territory, willfully and maliciously place any obstruction, by stones, logs, or any other thing, on the track of any railroad, or shall tear up or remove, burn, or destroy any part of any such railroad, or the works thereof, with intent to obstruct the passage of any engine, car, or cars thereon, or to throw them off the track, shall be deemed guilty of malicious mischief, and, on conviction thereof, shall be sentenced to imprisonment at hard labor for any time not more than twenty years:

Provided, That if any passenger, employee, or other person shall be killed, either directly or indirectly, because of said obstruction, tearing up, removing burning, or destroying, the person causing the same shall be deemed guilty of murder, and, upon conviction thereof, shall be punished accordingly.

That any person aforesaid who shall, in the Indian Territory, willfully and intentionally destroy, injury or obstruct any telegraph or telephone line, or any of the property or materials thereof, shall be deemed guilty of malicious mischief, and, on conviction thereof, shall be fined in any sum not more than five hundred dollars and imprisoned for any time not more than one year.

That every person aforesaid who shall, in the Indian Territory; maliciously or contemptuously disturb or disquiet any congregation or private family assembled in any church or other place for religious worship, or persons assembled for the transaction of church business, by profanely swearing or using indecent gestures, threatening language, or committing any violence of any kind to or upon any person so assembled, or by using any language or acting in any manner that is calculated to disgust, insult, or interrupt said congregation, shall, upon conviction thereof, be sentenced to imprisonment for any time not exceeding sixty days, or to a fine not exceeding one hundred dollars, or both such fine and imprisonment.

That every person aforesaid who shall, in the Indian country, feloniously, willfully, and with malice aforethought assault any person with intent to rob, and his counselors, aiders, and abettors, shall, on conviction thereof, be imprisoned at hard labor for a time not less than one nor more than fifteen years.

That every person who shall, in the Indian Territory, knowingly mark, brand, or alter the mark or brand of any animal the subject of larceny, the property of another, or who shall knowingly administer any poison to or maliciously expose any poisonous substance with the intent that the same shall be taken by any of the aforesaid animals, or shall willfully and maliciously, by any means whatsoever, kill, maim, or wound any of the aforesaid animals, shall be deemed guilty of malicious mischief, and, on conviction thereof, shall be sentenced to imprisonment for a period of not more than six months, or a fine of not more than two hundred dollars, or both such fine and imprisonment; and in case the animal shall have been killed or injured by said malicious mischief, the jury trying the case shall assess the amount of damages which the owner of the animal shall have sustained by reason thereof, and, in addition to the sentence aforesaid, the court shall render judgment in favor of the party injured for threefold the amount of the damages so assessed by the jury, for which said amount execution may issue against the defendant and his property.

That if any person, in the Indian country, assault another with a deadly weapon, instrument, or other thing, with an intent to inflict upon the person of another a bodily injury where no consider able provocation appears, or where the circumstances of the assault show an abandoned and malignant disposition, he shall be adjudged guilty of a misdemeanor, and, on conviction shall be fined in any sum not less than fifty nor exceeding one thousand dollars and imprisoned not exceeding one year.

That if any person shall maliciously and willfully set on fire any woods, marshes, or prairies, in the Indian Territory, with the intent to destroy the fences, improvements, or property of another, such person shall be fined in any sum not exceeding five hundred dollars, or be imprisoned not more than six months, or both, at the discretion of the court.

That sections five, twenty-three, twenty-four, and twentyfive of this act shall not be so construed as to apply to offenses committed by one Indian upon the person or property of another Indian.

That all laws and parts of laws inconsistent with the provisions of this act be, and the same are hereby, repealed. [March 1, 1889.]