able doubt. In each case, criminal as well as civil, the jurors are citizens who for the time are as fully public judicial officers as is the judge. Their oaths bind them to apply to the conflicting evidence the law given them by the judge, exactly as the judge's oath binds him to give the jurors a full and accurate exposition of the law applicable to the case. Between the criminal case and the civil case there is a difference in the law of presumptions and burden of proof; but when the judge has instructed the jurors as to the law, their duty to apply the law to the evidence is the same in either case. It is the exclusive function of the jurors to return a verdict; that is, a true saying of proven facts. [5] If a defendant asks that a verdict be set aside because it is not supported by the required weight of evidence, his motion is addressed to the discretion of the trial judge. In order properly to exercise. that discretion it is manifest that the trial judge, as well as the jurors, should attentively consider and weigh the evidence as it is being introduced, because in that respect he is sitting as the thirteenth juror. It is the exclusive and unassignable function of the trial judge to grant or refuse a new trial in cases of conflicting evidence.

[6, 7] If, a new trial having been denied, a defendant prosecutes a writ of error, he is availing himself of a grace granted by the lawmakers. Day in court, confrontation of witnesses, trial by jury, and all other elements of due process of law are provided in the trial court, and Congress was not compelled by the Constitution to provide for any review. The review that is allowed is limited to questions of law arising at the trial, such as sufficiency of pleadings, admissibility of evidence, and instructions to the jurors. It is also well established that the question whether every material allegation of a pleading is supported by evidence may, by proper motions, rulings, and exceptions, be made a question of law arising at the trial. But the review of that question of law is the exercise of a function that should not be confused with the nontransferable function of the trial judge in acting as the thirteenth juror.

In the present case we find that every material allegation of the indictment is supported by evidence; that the evidence, not violating any laws of nature, is credible; that it was for the jurors to decide what facts and circumstances were proved beyond a reasonable doubt, and for them to draw the inferences deducible therefrom (Keith v. State, 157 Ind. 376, 61 N. E. 716); and that, as the inference of guilt was fairly to be drawn from the circumstances of which there was evidence, the action of the jurors and of the trial judge in finding the truth to be in accordance with the government's evidence presents in federal procedure no reviewable question of law.

The judgment is affirmed.

(274 F.)

EUGENE SOL LOUIE v. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit. June 6, 1921.)

No. 3380.

Indians 38 (2) -Federal courts without jurisdiction of crime committed by Indian allottee in fee.

Criminal Code § 328 (Comp. St. § 10502), held not to give courts of the United States jurisdiction of the crime of murder committed by an Indian of the Cœur d'Alene tribe against another Indian of the tribe on land to which the defendant has received a patent in fee under Act Feb. 8, 1887, § 5 (Comp. St. § 4201); but under section 6 of the act, as amended by Act May 8, 1906 (Comp. St. § 4203), providing that "when the lands have been conveyed to the Indian by patent in fee, as provided in section 5 of this act, then each and every allottee shall have the benefit of, and be subject to the laws both civil and criminal, of the state or territory in which they may reside," the state courts have exclusive jurisdiction of the offense, and it is immaterial that the place where it was committed was within the boundaries of the Cœur d'Alene reservation, in Idaho.

Gilbert, Circuit Judge, dissenting.

In Error to the District Court of the United States for the Northern Division of the District of Idaho.

Criminal prosecution by the United States against Eugene Sol Louie. Judgment of conviction, and defendant brings error. Reversed.

W. B. McFarland, of Coeur d'Alene, Idaho, for plaintiff in error. J. L. McClear, U. S. Atty., and J. R. Smead, Asst. U. S. Atty., both of Boise, Idaho.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT, Circuit Judge. Louie was tried and sentenced for the murder of Adeline Louie, a Coeur d'Alene Indian and a ward of the United States, in Benewah county, Idaho, alleged to be in an Indian country within the limits of the Coeur d'Alene Indian reservation in Idaho. By writ of error the question presented is whether the United States had jurisdiction of the defendant Louie, plaintiff in error here. Eugene Sol Louie v. United States, 254 U. S. 548, 41 Sup. Ct. 188, 65 L. Ed. (January 17, 1921); Id. (C. C. A.) 264 Fed. 295.

The prosecution is based upon section 328 of the Penal Code of 1910 (Comp. St. § 10502), which provides that all Indians committing murder 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, and shall be tried in the same manner as are all other persons charged with a commission of said crime. The statute provides:

"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 in the United States, or 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."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

It is alleged that Louie was a Coeur d'Alene Indian, who had theretofore been declared competent by the authorities of the Department of Indian Affairs, and that he was a member of the Cour d'Alene tribe of Indians, by reason of the fact that he then and there had, in common with all other members of said tribe, an interest in certain tribal funds thereafter to be disbursed to the members of said tribe, including Louie.

Louie held a patent in fee to certain lands in the Coeur d'Alene Indian reservation, and prior to receiving patent held trust patent, the United States holding the land in trust for him. The land patented is within the boundaries of the Coeur d'Alene Indian reservation as the limits thereof were prior to the time the last cession was made. There are no tribal lands on the Cœur d'Alene reservation and all lands that had not been allotted were open to settlement on May 2, 1910. At the time of the assault the victim was living on the land that was patented to Louie. It appears that there were 18,000 acres of land which had never been settled upon and which were included in the cession by the Coeur d'Alene tribe back to the United States; the Indians having an interest in these lands to the extent that they will get the money to accrue from the sale thereof. The land itself, however, is owned by the United States, and is thrown open and platted by white people.

What are called Indian lands now consist of the individual allotments in severalty to the members of the tribe and certain townsites on the reservation. By the cession of the 18,000 acres the Indians relinquished their rights to the land and when the patents are issued they are made direct to the purchasers from the United States. Louie has had his share of one distribution already made of the proceeds of sales of part of the 18,000 acres. He lived on the land included in the allotment to him, and had power to rent or sell the land. patent to Louie was issued under the provisions of the Act of May 8, 1906 (chapter 2348, 34 Stat. 182 [Comp. St. § 4203]), amending section 6 of the Act of February 8, 1887. It provides that at the expiration of the trust period, and when the lands have been conveyed to the Indian by patent in fee, as provided by section 5 of the act (section 4201)

The

"then each and every allottee shall have the benefit of and be subject to the laws both civil and criminal, of the state or territory in which they may reside, and no territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law: Provided, the Secretary of the Interior may, in his discretion, and he is hereby authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent: Provided further, that until the issuance of fee simple patents all allottees to whom trust patents shall hereafter be issued shall be subject to the exclusive jurisdiction of the United States: And provided further, that the provisions of this act shall not extend to any Indians in the Indian Territory." Barnes' Fed. Code, p. 801, § 3598.

(274 F.)

In 1887 the United States made a treaty with the Coeur d'Alene Indians, and Congress ratified the same in 1891 (26 Stat. p. 1028), whereunder the Coeur d'Alene Indians ceded all right, title, and claim to large tracts to the United States. By article 5 of the treaty it was provided that, in consideration of the cession and agreements, the Coeur d'Alene reservation

"shall be held forever as Indian land and as homes for the Cœur d'Alene Indians, now residing on said reservation, and the Spokane or other Indiaus who may be removed to said reservation under this agreement, and their posterity, and no part of said reservation shall ever be sold, occupied, open to white settlement, or otherwise disposed of without the consent of the Indians residing on said reservation."

In 1906 provision was made for the selling and disposition of unallotted lands in the Coeur d'Alene Indian reservation (34 Stat. p. 335) "to all persons belonging to or having tribal relations on said Cour d'Alene Indian reservation," and upon approval of such allotments by the Secretary patents were to issue there for under the provision. of the general allotment law of the United States. It was also provided that upon completion of said allotments to said Indians the surplus. lands not allotted or reserved for Indian school agency or other purposes of the Coeur d'Alene reservation should be classified as agricultural, grazing, or timber lands, and should be appraised by legal subdivision, and upon completion of the classification and appraisement such surplus land shall be open to settlement and entry under the provisions of the homestead laws at not less than the appraised value, by proclamation of the President.

Section 5 of the Act of Congress of February 8, 1887 (24 Stat. 388), provides that, upon the approval of the allotments provided for by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect and declare that the United States does and will hold the land thus allotted for the period of 25 years in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs, according to the laws of the state or territory where such land is situated, and that at the expiration of said period the United States will convey same by patent to said Indian or his heirs as aforesaid in fee, discharged of said trust, and free of all charge or incumbrance whatsoever. Inasmuch as patent was issued under the Act of May 8, 1906, amending section 6 of the Act of February 8, 1887, we think that Louie as an allottee became subject to the laws, civil and criminal, of the state in which he resided.

The fact that the land was situate within the limits or boundaries of an Indian reservation is immaterial, because the allottee of the feesimple patent was expressly declared to be subject to the laws of the state within which the land is situated. This view is strengthened by the fact that the proviso of section 6 (chapter 2348, Act May 8, 1906, the amendatory act heretofore referred to) expressly declares that, until the issuance of fee-simple patents, all allottees to whom trust patents shall thereafter be issued shall be subject to the exclusive juris

274 F.-4

diction of the United States. Such emphatic retention of exclusive jurisdiction until fee-simple patent shall issue brings into relief the equally positive prior declaration that after patent shall have issued the allottee shall be subject to the laws of the state in which he resides. Counsel for the government cites United States v. Celestine, 215 U. S. 278, 30 Sup. Ct. 93, 54 L. Ed. 195. There the Indian committed murder within the limits of the Tulalip Indian reservation, and the patent the Indian had received for land was within that reservation. Jurisdiction was challenged upon the ground that when the offense was committed there had been allotted to Celestine certain lands on the Tulalip Indian reservation within the territory of Washington under the provisions of the treaty of January 22, 1855 (12 Stat. 927), and that in accordance with executive order patent had been issued in May, 1885; that the Indian was then a member of the Tulalip tribe and was a citizen of the United States, and therefore subject to the laws of the state of Washington. The court held that, although Celestine had received a patent for the land within the Tulalip Indian reservation, and although the woman he murdered was the owner of another tract within such limits, also patented, both tracts remained within the reservation until Congress excluded them therefrom. The court also held that, although Celestine was made a citizen of the United States and of the state of Washington, it did not follow that the United States lost jurisdiction over him for offenses committed within the limits of the reservation.

Stress was laid upon the fact that, notwithstanding the gift of citizenship, Celestine and the murdered woman remained Indians by race, and that the crime was committed by one Indian upon the person of another and within the limits of the reservation, and that unless there was in terms a subjection of the individual Indian to the laws, civil and criminal, of the state, it should be held that the United States had jurisdiction. The court, however, pointed out that the patents to Celestine and to the murdered Indian woman were issued under the authority of the treaty with the Omahas of 1854 (10 Stat. 1043) and the treaty of Point Elliott of 1855 (12 Stat. 927), and that the first sentence of section 6 of the Act of February 8, 1887, hereinbefore cited, was applicable only to patents made under the authority of the act cited; whereas the sentence to the effect that an Indian born within the territorial limits of the United States to whom an allotment was made under the provisions of the act is declared to be a citizen of the United States, entitled to the rights, privileges, and immunities of such citizen, refers to allotments made under the act of 1887, or under any other law or treaty. The court therefore, held that the plea raised only the point that Celestine had been given a citizenship in the United States, and that it did not follow that the United States had lost jurisdiction over him for offenses committed within the limits of the reservation. The court said:

"There is not in this case in terms a subjection of the individual Indian to the laws, both civil and criminal, of the state; no grant to him of the benefit of those laws; no denial of the personal jurisdiction of the United States."