laws of the United States; that the district court had no jurisdiction to try him, and that its judgment and sentence are void. It therefore prays for a writ of habeas corpus, that he may be delivered from an imprisonment which he asserts to be illegal. The indictment is framed upon section 5339 of the Revised Statutes. That section is found in title 70, on the subject of crimes against the United States, and in chapter 3, which treats of crimes arising within the maritime and territorial jurisdiction of the United States. It provides that "every person who commits murder, within any fort,

arsenal, dock-yard, magazine, or in any other place or district of country under the exclusive jurisdiction of the United States, *

shall suffer death." Title 28 of the Revised Statutes relates to Indians, and the sub-title of chapter 4 is, "Government of Indian Country." It embraces many provisions regulating the subject of intercourse and trade with the Indians in the Indian country, and imposes penalties and punishments for various violations of them. Section 2142 provides for the punishment of assaults with deadly weapons and intent, by Indians upon white persons, and by white persons upon Indians; section 2143, for the case of arson, in like cases; and section 2144 provides that "the general laws of the United States defining and prescribing punishments for forgery and depredations upon the mails shall extend to the Indian country." The next two sections are as follows:

"Sec. 2145. Except as to crimes, the punishment of which is expressly provided for in this title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.

"Sec. 2146. The preceding section shall not be construed to extend to [crimes committed by one Indian against the person or property of another Indian, nor to] any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where by treaty stipulations the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively."

That part of section 2146 placed within brackets was in the act of twenty-seventh March, 1854, c. 26, § 3, (10 St. 270,) was omitted by the revisers in the original Revision, and restored by the act of eighteenth February, 1875, c. 80, (18 St. 318,) and now appears in the second edition of the Revised Statutes. It is assumed for the purposes of this opinion that the omission in the original Revision was inadvertent, and that the restoration evinces no other intent on the part of congress than that the provision should be considered as in force, without interruption, and not a new enactment of it for any other purpose than to correct the error of the Revision.

The district courts of the territory of Dakota are invested with the same jurisdiction in all cases arising under the laws of the United States as is vested in the circuit and district courts of the United States. Rev. St. §§ 1907-1910. The reservation of the Sioux In

court.

dians, lying within the exterior boundaries of the territory of Dakota, was defined by article 2 of the treaty concluded April 29, 1868, (15 St. 635,) and by section 1839 Rev. St., it is excepted out of and constitutes no part of that territory. The object of this exception is stated to be to exclude the jurisdiction of any state or territorial government over Indians within its exterior lines, without their consent, where their rights have been reserved and remain unextinguished by treaty. But the district courts of the territory having, by law, the jurisdiction of district and circuit courts of the United States, may, in that character, take cognizance of offenses against the laws of the United States, although committed within an Indian reservation, when the latter is situate within the space which is constituted by the authority of the territorial government the judicial district of such If the land reserved for the exclusive occupancy of Indians lies outside the exterior boundaries of any organized territorial government, it would require an act of congress to attach it to a judicial district, of which there are many instances, the latest being the act of January 6, 1883, by which a part of the Indian territory was attached to the district of Kansas and a part of the northern district of Texas. 22 St. 400. In the present case the Sioux reservation is within the geographical limits of the territory of Dakota, and being excepted out of it only in respect to the territorial government, the district court of that territory within the geographical boundaries of whose district it lies, may exercise jurisdiction under the laws of the United States over offenses made punishable by them, committed within its limits. U. S. v. Dawson, 15 How. 467; U. S. v. Jackalow, 1 Black, 484; U. S. v. Rogers, 4 How. 567; U. S. v. Alberty, Hemp. 444, opinion by Mr. Justice DANIEL; U. S. v. Starr, Id. 469; U. S. v. Ta-wan-ga-ca, Id. 304. The district court has two distinct jurisdictions. As a territorial court it administers the local law of the territorial government; as invested by act of congress with jurisdiction to administer the laws of the United States, it has all the authority of circuit and district courts; so that, in the former character, it may try a prisoner for murder committed in the territory proper, under the local law, which requires the jury to determine whether the punishment shall be death or imprisonment for life; (Laws Dak. 1883, c. 9;) and, in the other character, try another for a murder committed within the Indian reservation, under a law of the United States, which imposes, in case of conviction, the penalty of death.

Section 2145 of the Revised Statutes extends the general laws of the United States as to the punishment of crimes committed in any place within their sole and exclusive jurisdiction, except the District of Columbia, to the Indian country, and it becomes necessary, therefore, to inquire whether the locality of the homicide, for which the prisoner was convicted of murder, is within that description.

The first section of the Indian intercourse act of June 30, 1834, defines the Indian country as follows:

"That all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisana or the territory of Arkansas, and also that part of the United States east of the Mississippi river not within any state, to which the Indian title has not been extinguished, for the purposes of this act, be taken and be deemed to be the Indian country."

Since the passage of that act great changes have taken place by the acquisition of new territory, by the creation of new states, and by the organization of territorial governments, and the Revised Statutes, while retaining the substance of many important provisions of the act of 1834, with amendments and additions since made regulating intercourse with the Indian tribes, has, nevertheless, omitted all definition of what now must be taken to be "the Indian country." Nevertheless, although the section of the act of 1834 containing the definition of that date has been repealed, it is not to be regarded as if it had never been adopted, but may be referred to in connection with the provisions of its original context which remain in force, and may be considered in connection with the changes which have taken place in our situation, with a view of determining from time to time what must be regarded as Indian country, where it is spoken of in the statutes. It is an admitted rule in the interpretation of statutes that clauses which have been repealed may still be considered in construing the provisions that remain in force. BRAMWELL, L. J. in Atty. Gen. v. Lamplough, 3 Exch. Div. 223-227; Harde. St. 217; Savings Bank v. Collector, 3 Wall. 495-513; Com. v. Bailey, 13 Allen, 541. This rule was applied in reference to the very question now under consideration in Bates v. Clark, 95 U. S. 204, decided at the October term, 1877. It was said in that case by Mr. Justice MILLER, delivering the opinion of the court, that "it follows from this that all the country described by the act of 1834 as Indian country remains Indian country so long as the Indians retain their original title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provision by treaty or by act of congress." In our opinion that definition now applies to all the country to which the Indian title has not been extinguished within the limits of the United States, even when not within a reservation expressly set apart for the exclusive occupancy of Indians, although much of it has been acquired since the passage of the act of 1834, and notwithstanding the formal definition in that act has been dropped from the statutes, excluding, however, any territory embraced within the exterior geographical limits of a state, not excepted from its jurisdiction by treaty or by statute at the time of its admission into the Union, but saving, even in respect to territory not thus excepted and actually in the exclusive occupancy of Indians, the authority of congress over it, under the constitutional power to regulate commerce with the Indian tribes, and under any treaty made in pursuance of it. U. S. v. McBratney, 104 U. S. 621. This definition, though not now expressed in the Revised Statutes, is implied

in all those provisions, most of which were originally connected with it when first enacted, and which still refer to it. It would be otherwise impossible to explain these references, or give effect to many of the most important provisions of existing legislation for the government of Indian country. It follows that the locus in quo of the alleged offense is within Indian country over which, territorially, the district court of the first judicial district of Dakota, sitting with the authority of a circuit court of the United States, had jurisdiction. But if section 2145, Rev. St., extends the act of congress, section 5339, punishing murder, to the locality of the prisoner's offense, section 2146 expressly excepts from its operation "crimes committed by one Indian against the person or property of another Indian;" an exception which includes the case of the prisoner, and which, if it is effective and in force, makes his conviction illegal and void. This brings us at once to the main question of jurisdiction, deemed by congress to be of such importance to the prisoner and the public as to justify a special appropriation for the payment of the expenses incurred on his behalf in presenting it for decision in this proceeding to this court. 22 St. p. 624, c. 143, March 3, 1883. The argument in support of the jurisdiction and conviction is, that the exception contained in section 2146, Rev. St., is repealed by the operation and legal effect of the treaty with the different tribes of the Sioux Indians of April 29, 1868, (15 St. 635;) and an act of congress, approved February 28, 1877, to ratify an agreement with certain bands of the Sioux Indians, etc. 19 St. 254.

The following provisions of the treaty of 1868 are relied on:

"Article 1. From this time forward all war between the parties to this agreement shall forever cease. The government of the United States desires peace, and its honor is hereby pledged to keep it. The Indians desire peace, and they now pledge their honor to maintain it.

"If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the commissioner of Indian affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.

"If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States and at peace therewith, the Indians herein named solemnly agree that they will, upon proof made to their agent and notice by him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws. And in case they wilfully refuse so to do, the person injured shall be reimbursed for his loss from the annuities or other moneys due or to become due to them under this or other treaties made with the United States. And the president, on advising with the commissioner of Indian affairs, shall prescribe rules and regulations for ascertaining damages under the provisions of this article as in his judgment may be proper. But no one sustaining loss while violating the provisions of this treaty or the laws of the United States shall be reimbursed therefor."

The second article defines the reservation, which, it is stipulated,"Is set apart for the absolute and undisturbed use and occupation of the Indians herein named, and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit among them; and the United States now solemnly agrees that no person except those herein designated and authorized so to do, and except such officers, agents, and employes of the government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article."

* * *

“Article 5. The United States agrees that the agent for said Indians shall in future make his home at the agency building; that he shall reside among them, and keep an office open at all times for the purpose of prompt and diligent inquiry into such matters of complaint by and against the Indians as may be presented for investigation under their treaty stipulations, as also for the faithful discharge of other duties enjoined upon him by law. In all cases of depredation on person or property he shall cause evidence to be taken in writing and forwarded, together with his findings, to the commissioner of Indian affairs, whose decision, subject to the revision of the secretary of the interior, shall be binding on the parties to this treaty."

Other provisions of this treaty are intended to encourage the settlement of individuals and families upon separate agricultural reservations, and the education of children in schools to be established. The condition of the tribe, in point of civilization, is illustrated by stipulations on the part of the Indians, that they will not interfere with the construction of railroads on the plains or over their reservation, nor attack persons at home or traveling, nor disturb wagon trains, mules, or cattle belonging to the people of the United States, nor capture nor carry off white women or children from the settlements, nor kill nor scalp white men, nor attempt to do them harm.

By the Indian appropriation act of August 15, 1876, congress appropriated $1,000,000 for the subsistence of the Sioux Indians, in accordance with the treaty of 1868, and "for purposes of their civilization," (19 St. 192,) but coupled it with certain conditions relative to a cession of a portion of the reservation, and with the proviso "that no further appropriation for said Sioux Indians for subsistence shall hereafter be made until some stipulation, agreement, or arrangement shall have been entered into by said Indians with the president of the United States, which is calculated and designed to enable said Indians to become self-supporting." In pursuance of that provision the agreement was made, which was ratified in part by the act of congress of February 28, 1877. The enactment of this agreement by statute, instead of its ratification as a treaty, was in pursuance of the policy which had been declared for the first time in a proviso to the Indian appropriation act of March 3, 1871, (16 St. 566, c. 120,) and permanently adopted in section 2079 of the Revised Statutes, that thereafter "no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, v.3--26