United States v. Berrigan

WICKERSHAM, District Judge.

The third article of the treaty of 1867 by which Russia ceded Alaska to the United States provided for the protection of the citizenship of the inhabitants of the ceded territory as follows:

“The inhabitants of the ceded territory, according to their choice, reserving their natural allegiance, may return to Russia within three years; but if they should prefer to remain in the ceded territory, they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion. The uncivilized tribes will be subject to such laws and regulations as the United States may from time to time adopt in regard to aboriginal tribes of that country.”

This treaty stipulation divided the inhabitants, into three general classes: (1) Those Russian subjects who preferred to-reserve their natural allegiance were to do so, and were per *446 mitted “to return to Russia within three, years”; (2) those Russian subjects who preferred to remain in the ceded territory, and were guarantied that they “shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion”; and (3) the uncivilized tribes in the territory, who were promised nothing more than that they should “be subject to such laws and regulations as the United States may from time to time adopt in regard to aboriginal tribes of that country.”

Where territory has been acquired by the United States from a foreign power, its courts will take judicial notice of the laws which prevailed there up to the time of such acquisition. They are not, as to such acquired territories, foreign laws, but laws of an antecedent government. United States v. Perot, 98 U. S. 428 , 25 L. Ed. 251 ; Fremont v. United States, 17 How. (U. S.) 542, 15 L. Ed. 241 . Under this rule this court in the Matter of the Naturalization of John Minook (supra, p. 200), basing its opinion upon the terms of the imperial ukase conferring the power of government in Russian Alaska upon the Russian American Company, and defining the rights and status of the people of that colony, concluded that:

“It appears, then, that the imperial law recognized the Russian colonists in Alaska, their creole children, and those settled tribes who embraced the Christian faith, as Russian subjects. Those tribes not wholly dependent — the independent tribes of pagan faith, who acknowledged no restraint from the Russians, and practiced their ancient customs — were classed as uncivilized native tribes by the Russian laws. Those laws and these social conditions continued to exist at the date of the treaty of cession in 1867. The settled tribes lived, as they and their descendants do now, at Unalaska, Belkofski, Unga, Kadiak, Kenai, Seldovia, Nuchek, Tatitlek, and other points from the outer Aleutian Islands to Takutat Bay, as also at Ft. Alexander, at the head of Bristol Bay, at St. Michael, on Bering Sea, at the Russian Mission and Nulato, on the Yukon river. At these amd other colonies or trading posts they gathered in permanent villages; they sup *447 ported a Russian cliureh, attended and assisted in its services, and practiced the moral precepts taught therein. * * * It was these people, Russian colonists, creoles, and settled tribes, members of the established church, whom Russia engaged the United States to admit as citizens, and to maintain and protect ‘in the free enjoyment of their liberty, property, and religion.’ * * * The ‘uncivilized native tribes’ excluded from the naturalization benefits of the third article of the treaty were those independent pagan tribes who acknowledged no allegiance to Russia, and lived the wild life of their savage ancestors.”

. The pleadings and evidence in this case show that the natives for whom the government appears belong to that stock so widely scattered throughout the Yukon and its tributary valleys, and which the science of ethnology classes as belonging to the Athapascan stock. Nor is this stock confined even to the wide ranges of the Yukon; they inhabit the whole interior of Alaska, a region almost as large as the United States east of the Mississippi river, and also nearly the whole of British North America; they crossed the mountain ranges at the head of the Yukon, and inhabited the Fraser headwaters and the region around the upper Columbia lakes. Bands of these hardy rovers were found in Washington, Oregon, and northern California; they passed from the Columbia river basin, probably by the way of the Great Salt Bake country, into New Mexico and Arizona, and thence into Mexico. The Umpquas in Oregon, and the Navajos and dread Apaches of the Mexican border, belong to this widely distributed family, and speak the common stock language spoken by their northern brothers along the Tanana and Yukon. Throughout their wide southern migration they have everywhere preserved and are characterized by a wild and roving disposition, and of all the native tribes of North America they more nearly than any other are fitly described as “uncivilized native tribes.” Roche v. Washington, 19 Ind. 53, 56 , 81 Am. Dec. 376 . The Tinneh tribes of Alaska were uncivilized native tribes at the date of the treaty with Russia, and the evidence in this case shows that the *448 band for which this suit is brought still occupies that plane of culture. As such they are entitled to the equal protection of the law which the United States affords to similar aboriginal tribes-within its borders.

By the terms of the treaty of 1867 Russia ceded to the United States all her territory and dominion in Alaska, including all vacant lands, property, dependencies, and appurtenances, free and unincumbered by any reservations, privileges, franchises, grants, or possessions, by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties, except merely private individual property holders. The vacant, unoccupied, and unappropriated lands in Alaska at the date of cession became a part of the public domain of the United States. Kinkead v. United States, 150 U. S. 483 , 14 Sup. Ct. 172, 37 L. Ed. 1152 ; Bennett v. Harkrader, 158 U. S. 441 , 15 Sup. Ct. 863, 39 L. Ed. 1046 ; Malony v. Adsit, 175 U. S. 281 , 20 Sup. Ct. 115, 44 L. Ed. 163 ; Carroll v. Price (D. C.) 81 Fed. 137 . Congress has subsequently extended over that portion of the public domain lying in Alaska the mining, homestead, town site, coal land, and other general laws for their disposition and sale to settlers.

Congress has also, by special enactment, provided for the protection of the Indian right of occupancy upon the public domain in Alaska. By the eighth section of “An act to provide a civil government for Alaska,” approved May 17, 1884, c. 53, 23 Stat. 24 , a land office was established in Alaska, and provision made for disposing of the public mineral lands therein. The first proviso in that section is:

“That the Indians of other persons in said district shall not he disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress.”

By “An act to repeal timber culture laws, and for other purposes,” approved March 3, 1891, c. 561, 26 Stat. 1095 [U. *449 S. Comp. St. 1901, p. 1535], Congress extended the town site laws to Alaska, and provided for the sale of lands in this territory for purposes of trade and business; but provided in section 14:

“That none of the provisions of the last two preceding sections of this act shall be so construed as to warrant the sale of any lands * * * to which the natives of Alaska have prior rights by virtue of actual occupation.”

The homestead laws and the law for the location of rights of 'way for railroads were extended to Alaska by the act of Congress approved May 14, 1898, the seventh section of which, however, provides:

“That this act shall not apply to any lands within the limits of any * * * Indian, or other reservation unless such right of way shall be provided for by act of Congress.” Chapter 299, 30 Stat. 412 [U. S. Comp. St. 1901, p. 1580]

And by the 27th section of the act of Congress approved June 6, 1900 (chapter 786), entitled “An act making further provisions for a civil government for Alaska, and for other purposes,” 31 Stat. 330 , it is again provided that “the Indians * * * shall not be disturbed in the possession of any lands now actually in their use or occupation.”

The evidence in this case discloses that Jarvis and Henry and their people were in the actual occupation of the tract in question when first known to the witnesses, and for at least eight years prior thereto, and long prior to any entry by the defendants. This being admitted, it follows that the defendants can acquire no rights in the lands by virtue of the United States land laws, which forbid a sale thereof, or any entry thereon. The law, however, is even much broader in its scope, for the act of June 6, 1900, expressly declares that “the Indians * * * shall not be disturbed in the possession of any lands now actually in their use or occupation.” This is not only a direct and mandatory congressional prohibition against *450 an entry under the land laws, but it forbids as well any other act which shall disturb their possession, and renders void all attempts to dispossess them by deed or contract.

The United States has the right, and it is its duty, to protect the property rights of its Indian wards. United States v. Kagama, 118 U. S. 375 , 6 Sup. Ct. 1109, 30 L. Ed. 228 ; U. S. v. Boyd (C. C.) 68 Fed. 577 ; U. S. v. Flournoy (C. C.) 69 Fed. 886 ; U. S. v. Flournoy (C. C.) 71 Fed. 578 ; U. S. v. Winans (C. C.) 73 Fed. 72 ; U. S. v. Boyd, 83 Fed. 547 , 27 C. C. A. 592 . Defendants admit the right and duty of the government to maintain suits of this character, but insist that the government has a plain, speedy, and adequate remedy at law by ejectment, and that equitable relief is thereby barred. This very question was raised in a similar case (U. S. v. Flournoy [C. C.] 69 Fed. 886 ), and was carefully considered and decided by Judge Shiras, who upheld the equitable power of the court on the ground that the remedy at law was wholly inadequate. Counsel also cites and relies upon the case of Lane v. Jordan, 116 Fed. 623 , 54 C. C. A. 79 , in which the Circuit Court of Appeals for this circuit held that the district courts of Alaska had no power under the Alaska Code by injunction to transfer the possession of real property pendente lite from one litigant to another. The cases are different, however. There the court was acting under its power as a state court only, and by its interlocutory order compelled one citizen to deliver the property to another citizen in advance of a trial and final decree; here the court is acting also under the power conferred upon it as a United States court by the third section of “An act providing a civil government for Alaska,” approved May 17, 1884, c. 53, 23 Stat. 24 , and also after trial and upon final judgment.

The defendants also rely upon the bona fides of their contracts with the Indians, but the evidence shows that the con-' tracts were obtained without consideration, and under circumstances which clearly show that the Indians did not understand *451 or appreciate their force and effect. Nor can I bring myself to agree with the ruling in the case of Sutter v. Heckman, 1 Alaska, 188 , holding that an Indian in Alaska has power to convey the rights reserved for him by section 27 of the act of June 6, 1900 (chapter 786, 31 Stat. 330 ), providing that “the Indians * * * shall not be disturbed in the possession of any lands now actually in their use or occupation.” Such a rule would completely nullify the act of Congress, or at least permit the Indian to do it, and thus leave him a prey to the very evil from which Congress intended to shiéld him. Congress alone has the right to dispose of the lands thus specially reserved for his occupancy, and any attempt to procure him to abandon them is void. He is a dependent ward of the government, and his reserved lands are not subject to disposal or sale or abandonment by him. Relief prayed for by the United States is granted.