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in which it was insisted that it was the complaint which, if raised in any form in duty of the court to consider the assign the trial court before judgment, would have ment based on the insufficiency of the com- required the trial court to hold that the plaint, since not to do so would be a denial of complaint was inadequate. But the quesdue process of law. The rehearing was re- tion for decision is not whether the comfused, and the sentence imposed below was plaint, which was thus deficient, could have increased to three years, six months, and been sustained, in view of the constitutiontwenty-nine days, on the ground that this al guaranties, if a challenge as to its sufwas the minimum punishment provided for ficiency had been presented in any form to the offense.

the trial court before final judgment, but The errors assigned on this writ of error, whether, when no such challenge was made and the propositions urged at bar to support in the trial court before judgment, a denial them, are confined to the assertion that the of the guaranties of the statutory Bill of refusal of the court below to consider the Rights arose from the action of the appelassignment of error concerning the insuffi- late court in refusing to entertain an obciency of the complaint amounted to a conjection to the sufficiency of the complaint viction of the accused without informing because no such ground was urged in the them of the nature and character of the of- trial court. Thus reducing the case to the fense with which they were charged, and real issue enables us to put out of view a was, besides, equivalent to a conviction number of decisions of this court referred without due process of law. It is settled to in the margin,† as well as many decided that, by virtue of the Bill of Rights en cases of state courts referred to in the brief acted by Congress for the Philippine Islands of counsel, because they are irrelevant, since (32 Stat. at L. 691, 692, chap. 1369, U. S. all the former, and, if not all, certainly all Comp. Stat. Supp. 1905, p. 391), that guar- of the latter, concern the soundness of obanties equivalent to the due process and jections made in the trial court, by the acequal protection of the law clause of the cused, to the sufficiency of indictments or 14th Amendment, the twice in jeopardy informations. clause of the 5th Amendment, and the sub- In Ex parte Parks, 93 U. S. 18, 23 L. ed. stantial guaranties of the 6th Amendment, 787, the case was this: The petitioner, exclusive of the right to trial by jury, were Parks, applied to this court for a writ of extended to the Philippine Islands. It is habeas corpus. He had been convicted and further settled that the guaranties which sentenced for the crime of forgery in a Congress has extended to the Philippine Is- district court of the United States. The lands are to be interpreted as meaning what ground relied upon for release was that the the like provisions meant at the time when indictment stated no offense. The writ was Congress made them applicable to the Phil- discharged. Speaking through Mr. Justice ippine Islands. Kepner v. United States, 195 Bradley, it was said: U. S. 100, 49 L. ed. 114, 24 Sup. Ct. Rep. 797. “But the question whether it was or was

For the purpose, therefore, of passing on not a crime within the statute was one the errors assigned, we must test the cor- which the district court was competent to rectness of the action of the court below by decide. It was before the court and within substantially the same criteria which we its jurisdiction. would apply to a case arising in the United States and controlled by the Bill of Rights "Whether an act charged in an indictexpressed in the Amendments to the Con- ment is or is not a crime by the law which stitution of the United States. Turning to the court administers [in this case the statthe text of the articles of the Philippine ute law of the United States] is a quesPenal Code upon which the prosecution was tion which has to be met at almost every based, it will be seen that an essential in- stage of criminal proceedings; on motions gredient of the crime of adultery, as therein to quash the indictment, on demurrers, on defined, is knowledge on the part of the motions to arrest judgment, etc. The court man charged of the fact that the woman may err, but it has jurisdiction of the queswith whom the adultery was committed was tion. If it errs, there is no remedy, after a married woman. Turning to the com- final judgment, unless a writ of error lies plaint upon which the prosecution was begun, it will be at once seen that it was de- 21'L. ed. 538, 539; United States v. Carll

,

United States v. Cook, 17 Wall, 168, 174, ficient, because it did not specify the place 105 U. S. 611, 26' L. ed. 1135; Dunbar v. where the crime was committed, nor does United States, 156 U. S. 185, 39 L. ed. 390, it expressly state that Vicente Serra, the 15 Sup. Ct. Rep. 325; Cochran v. United accused man, knew that Maria Obleno, the States, 157 U. s. 286, 39 L. ed. 704, 15 Sup. woman accused, was, at the time of the Ct. Rép. 628; Markham v. United States, guilty cohabitation, a married woman. It 160 U. S. 319, 40 L. ed. 441, 16 Sup. Ct. Rep. results that there were deficiencies in the 288.

V.

to some superior court, and no such writ, istence of injury was impossible to be conlies in this case."

ceived, in view of the opinion which the In United States v. Ball, 163 U. S. 662, court formed on the facts, in the exercise 41 L. ed. 300, 16 Sup. Ct. Rep. 1192, an at- of the authority vested in it on that subtempt was made to prosecute for the sec-ject. Affirmed. ond time one Millard H. Ball, who had been acquitted upon a defective indictment, which Mr. Justice Harlan dissents. had been held bad upon the proceedings in error prosecuted by others, who had been convicted and who had been jointly prosecuted with Ball. Reversing the court be- WILLIAM MCKAY (Substituted for Mary low, the plea of autrefois acquit, relied on

Kalyton) et al., Plffs. in Err., by Ball, was held good. It was pointed out that the acquittal of Ball upon the defect- | AGNES KALYTON, by Louise Kalyton, Her

Guardian ad Litem. ive indictment was not void, and, therefore, the acquittal on such an indictment was a Error to state court-Federal questionbar. This case was approvingly cited in

when raised in time. Kepner v. United States, 195 U. S. 100,

1. A claim of immunity from suit in 129, 49 L. ed. 114, 124, 24 Sup. Ct. Rep. 797. the state court under the laws of the United It being, then, settled that the conviction States is in time to sustain a writ of error on a defective indictment is not void, but from the Federal Supreme Court, though presents a mere question of error, to be first claimed in a petition for rehearing in reviewed according to law, the proposition the state court, if necessarily involved, exto be decided is this: Did the court below pressly considered, and decided adversely by

such court.* err in holding that it would not consider whether the trial court erred because it had Courts-exclusive jurisdiction of Federal

courts-disputes over Indian allotments. not decided the complaint to be bad, when no question concerning its sufficiency was, tion of controversies necessarily involving

2. State courts were not given jurisdiceither directly or indirectly, made in that

a determination of the title, and, incidentcourt? Thus to understand the proposition ally, of the right to the possession, of Indian is to refute it. For it cannot be that the allotments while the same were held in court below was wrong in refusing to con- trust by the United States, by the prosider whether the trial court erred in a mat-vision of the act of August 15, 1894 (28 ter which that court was not called upon Stat. at L. 286, chap. 290), delegating to the to consider and did not decide. Undoubt. Federal circuit courts the power to deedly, if a judgment of acquittal had result- termine such questions, since the purpose

of that act to continue the exclusive Feded, it would have barred a further prosecu- eral control over disputes concerning allottion, despite the defective indictment. Kepments which, prior to that act, could only ner v. United States, supra.

have been decided by the Secretary of the But it is said the peculiar powers of the Interior, is manifested by its provision that supreme court in the Philippine Islands take a judgment or decree in any such controthis case out of the general rule, since in versy shall be certified by the court to the that court on appeal a trial de novo is had Secretary of the Interior, and by the proeven in a criminal case. But, as pointed vision of the act of February 6, 1901 (31 out in the Kepner Case, whilst that court Stat. at L. 760, chap. 217), that in such on appeal has power to re-examine the law suits “the parties thereto shall be the claimand facts, it does so on the record, and does ant as plaintiff and the United States ag.

party defendant.' not retry in the fullest sense. Indeed, when the power of the court below to review the

[No. 181.] facts is considered, that power, instead of

Argued January 25, 1907. Decided Februsustaining, refutes the proposition relied on.

ary 25, 1907. Thus the proposition is that the court should have reversed the conviction because IN ERROR to the Supreme Court of the the complaint, when no such question had which, reversing a judgment of the Circuit been raised before final judgment in the Court of Umatilla County, in that state, trial court, and when, as a necessary con- awarded the possession of an Indian allotsequence of the facts found by the court, ment to the appellant. Reversed and rethe testimony offered at the trial without manded for further proceedings. objection or question in any form estab- See same case below, 45 Or. 116, 74 Pac.. lished every essential ingredient of the 491; on rehearing, 45 Or. 127, 78 Pac. 332. crime. In other words, the contention is that reversal should have been ordered for Statement by Mr. Justice White: an error not committed, and when the ex- This suit was commenced in the circuit

*Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1080.

court of Umatilla county, Oregon, by the troversy and to its enjoyment. A decree filing of a complaint in the name of Agnes was prayed quieting her alleged title. Kalyton, suing by her mother, Louise Kaly. The others of the defendants, who were ton, as guardian ad litem. Mary Kalyton alleged to be confederating with Mary Kalyand six other persons were made defend-ton, filed a disclaimer of any interest in the ants, one such (Charles Wilkins) being sued lands in controversy. The cause was heard as the acting United States Indian agent by the court. Deciding that, if Joe Kaly. at the Umatilla reservation.

ton and Louise Kalyton had been married It was alleged in substance as follows: according to the custom of the Indians of By virtue of an act of Congress approved the Cayuse tribe, such marriage would have March 3, 1885 (23 Stat. at L. 340, chap. been void, and that there had been no mar319), and the amendments thereto, a tract riage between the parties, because none had of land in the Umatilla Indian reservation been solemnized in accordance with the laws was duly allotted on April 21, 1891, to one of the state of Oregon, the plaintiff was Joe Kalyton, a member of the Cayuse tribe, held to be an illegitimate child of the deresiding on said reservation. It was alleged ceased, and to have no right, title, or inthat in or about the year 1893 Joe Kalyton, terest in or to the lands in question, and a the allottee, in accordance with the customs decree was entered in favor of the defendof the Cayuse tribe, married Louise ant Mary Kalyton. an Indian woman of that tribe, and the The cause was appealed to the supreme plaintiff, Agnes Kalyton, was issue of the court of the state of Oregon. That court, marriage. In 1898 Joe Kalyton died intes. having found that Joe and Louise Kalyton tate, leaving the plaintiff as his sole heir, were married according to the custom and and, under the laws of Oregon and the pro usage of the Indian tribe to which they bevisions of the act of Congress referred to, longed, and that the plaintiff was the issue she became entitled to the land allotted to of such marriage, held, in view of the legher father, and to the possession and en- islation of Congress, “that the plaintiff herejoyment thereof. It was charged that Mary in was born in lawful wedlock and is the Kalyton and four of the defendants, all in- sole heir of Joe Kalyton, deceased, and, as solvent, claiming to be the heirs of the de- such, entitled to the possession of the real ceased, had taken and held possession of the property of which he died seised.”. The deland in question, which had a rental value of cree of the trial court was, therefore, re$274.75 per annum. It was alleged that versed, and a decree was entered in favor one of the defendants, named Glasscock, of the appellant in accordance with the claimed to have some interest in the land, opinion. A motion for a rehearing was and was confederating with the other de. made and overruled. This motion was based fendants, who were wrongfully alleging upon the contention that the court had erred themseives to be the heirs of Joe Kalyton, in taking jurisdiction of the cause, for the with the object of depriving plaintiff of the reason that it involved the title and right use of the land and the enjoyment of the to possession of public land held in trust rents and profits thereof. Averring that, by the United States for the benefit of Inunder the rules and regulations of the De- dians, and hence the United States was a partment of the Interior, in order that plain- necessary party defendant, and not subject tiff might obtain the use and enjoyment of to the jurisdiction of a state court. We the land, it was requisite that her status say the petition for a rehearing was based as legal heir of the deceased should be ad- upon the grounds just stated, although the judged by a court of competent jurisdic- petition is not in the record, because it is tion, the court was asked to so decree and manifest that such was the case from the to perpetually restrain the defendants from opinion which the court delivered in refusing interfering with her possession and use of the rehearing. 45 Or. 116, 74 l’ac. 491, 78 the land. General relief was also prayed.

Pac. 332. In that opinion the question

whether the matter was one of exclusive An answer was filed on behalf of the defendant Mary Kalyton. It was therein

Federal cognizance was elaborately considdenied in substance that there had been a because a decree as to the right of posses

ered, and it was decided that it was not, marriage between Joe and Louise Kalyton, sion would not interfere with the title or and that the plaintiff was their child, and, trust interest of the United States. And averring that Joe Kalyton was a resident the court declared that, for the purposes of and citizen of Oregon and had died intes- determining its jurisdiction, it was wholly tate, unmarried, and without any lineal de irrelevant to consider whether it would have scendant, it was alleged that the defendant, the power to enforce its decree for the pos. as the sister of Joe Kalyton, was his sole session of the allotted land against the ofheir, and as such was the owner of, and en-ficer of the United States in charge of the titled to the possession of, the land in con- Indian reservation in

that officia)

should decline to give effect to the decree, as the general allotment act. By that act, for possession.

as said in United States v. Rickert, 188 The case was then brought to this court. U. S. 432, 435, 47 L. ed. 532, 535, 23 Sup.

Ct. Rep. 478, provision was made for the Messrs. Samuel Herrick, T. G. Hailey, and allotment of lands in severalty to Indians R. J. Slater for plaintiffs in error.

on the various reservations, and for extendMessrs. William Frye White and John B. ing the protection of the laws of the United Cotton for defendant in error.

States and the territories over the Indians.

To that end the President was authorized, Mr. Justice White, after making the fore- whenever, in nis opinion, a reservation or going statement, delivered the opinion of any part thereof was advantageous for agthe court:

riculture and grazing purposes, to cause it, It is contended that we are without juris- or any part thereof, to be surveyed, or rediction because no title, right, or immunity surveyed, if necessary, and to allot the lands was specially set up or claimed under any in the reservation in severalty to any InFederal statute and denied. But, leaving dian located thereon, in certain quantities aside for a moment all other considerations, specified in the statute, the allotments to be it is plain that the defendant below set up made by special agents appointed for that a claim of immunity from suit in the state purpose, and by the agents in charge of the court under the laws of the United States, special reservations on which the allotments and that the right to the immunity so as- were made. In one of the provisos of the serted under an act or acts of Congress 1st section of the act it was declaredwas expressly considered and denied by the "That where the treaty or act of Congress state court. True it is that the immunity setting apart such reservation provides for which was asserted was first claimed in a the allotment of lands in severalty in quanpetition for rehearing; but, as the question tities in excess of those herein provided, the was raised, was necessarily involved, and President, in making allotments upon such was considered and decided adversely by the reservation, shall allot the lands to each state court, there is jurisdiction. Leigh v. individual Indian belonging thereon in quanGreen, 193 U. S. 79, 48 L. ed. 623, 24 Sup. tity as specified in such treaty or act.” Ct. Rep. 390.

A provision of like nature to that hereAt the threshold lies the question raised tofore excerpted from the act of March 3, and decided below relative to the jurisdic- 1885, was embodied in § 5 of the general tion of the state court over the controversy. allotment act of 1887, reading as follows

Allotments of land in severalty to Indians (24 Stat. at L. 389, chap. 1:19): residing upon the Umatilla reservation, in "Sec. 5. That, upon the approval of the Oregon, were authorized by the act of Con- allotments provided for in this act by the gress of March 3, 1885, chap. 319 (23 Stat. Secretary of the Interior, he shall cause at L. 340), which contained the following patents to issue therefor in the name of the provision:

allottees, which patents shall be of the le“The President shall cause patents to is- gal effect, and declare, that the United sue to all persons to whom allotments of States does and will hold the land thus allands shall be made under the provisions of lotted, for the period of twenty-five years, this act, which shall be of the legal effect in trust for the sole use and benefit of the and declared that the United States does Indian to whom such allotment shall have and will hold the land thus allotted, for the been made, or, in case of his decease, of his period of twenty-five years, in trust for the heirs, according to the laws of the state or sole use and benefit of the Indian to whom territory where such land is located, and such allotment shall have been made, or, in that, at the expiration of said period, the case of his decease, of his heirs, according United States will convey the same by patto the laws of the state of Oregon, and that, ent to said Indian, or his heirs, as aforeat the expiration of said period, the United said, in fee, discharged of said trust, and States will convey the same by patent to free of all charge or encumbrance whatsosaid Indian or his heirs as aforesaid, in fee, ever: Provided, That the President of the discharged of said trust, and free of all United States may, in any case, in his discharge or encumbrance whatsoever. Pro- cretion, extend the period. And if any convided, That the law of alienation and de- veyance shall be made of the lands set scent in force in the state of Oregon shall apart and allotted as herein provided, or apply thereto after patents have been exe- any contract made touching the same, becuted, except as herein otherwise provided." fore the expiration of the time above men

The allotment to Joe Kalyton was made tioned, such conveyance or contract shall be on April 21, 1891. Before that allotment, absolutely null and void: Provided, That Congress,' on February 8, 1887 (chap. 119, the law of descent and partition in force in 24 Stat. at L. 388), passed what is known I the state or territory where such lands are situate shall apply thereto after patents | terest in the controversy or in its subjects therefor have been executed and delivered, as entitled it to maintain the suit, the court except as herein otherwise provided.” declared (p. 444, 188 U. S., p. 538, 47 L. ed.,

The supervisory power possessed by the p. 483, 23 Sup. Ct. Rep.) that no argument United States over allotted lands while the to establish that proposition was necessary. title remains in the United States was Nor are the principles which were thus anpointed out in the opinion in United States nounced as to the nature and character of v. Rickert, supra, a case which came to this an allotment of Indian lands and the intercourt upon questions certified from a circuit est of the United States therein as trustee court of appeals. The suit was instituted before the expiration of the period for their under the direction of the Attorney Gen- final disposition in any way affected by the eral of the United States for the purpose of decision in Re Heff, 197 U. S. 488, 49 L. ed. restraining the collection of taxes alleged to 848, 25 Sup. Ct. Rep. 506, dealing with the be due the county of Roberts, South Dakota, subjection of allottee Indians in their perin respect of certain permanent improve-sonal conduct to the police regulations of ments on, and personal property used in the the state of which they had become citizens. cultivation of, lands in that county occu- The present suit was commenced in 1899. pied by members of the Sisseton band of At that time there was in force an act apSioux Indians in the state of South Dakota. proved August 15, 1894, chap. 290 (28 Stat. The lands referred to had been allotted un- at L. 286), in which it was provided inter der the provisions of an agreement made in alia, as follows (p. 305): 1889, ratified by an act of Congress in 1891 “That all persons who are, in whole or in [26 Stat. at L. 1036, chap. 543], and more part, of Indian blood or descent, who are enparticularly under 5 of the act of Febru- titled to an allotment of land under any ary 8, 1887, heretofore referred to. Discuss- law of Congress, or who claim to be so ening the interest which the Indians primari- titled to land under any allotment act or ly acquired in the allotted land, it was con- under any grant made by Congress, or who cluded that "the United States retained the claim to have been unlawfully denied or exlegal title, giving the Indian allottee a paper cluded from any allotment or any parcel of or writing improperly called a patent, show- land to which they claim to be lawfully ening that, at a particular time in the future, titled by virtue of any act of Congress, may unless it was extended by the President, he commence and prosecute or defend any acwould be entitled to a regular patent con- tion, suit, or proceeding in relation to their veying the fee.

These lands are right thereto in the proper circuit court of held by the United States in execution of the United States.” its plans relating to the Indians—without And it was provided that "the judgment any right in the Indians to make contracts or decree of any such court in favor of any in reference to them, or to do more than to claimant to an allotment of land shall have occupy and cultivate them—until a regular the same effect, when properly certified to patent conveying the fee was issued to the the Secretary of the Interior, as if such allotseveral allottees.” And the court approv. ment had been allowed and approved by ingly quoted the following passage from an

him.” opinion of the Attorney General, delivered Considering the act of 1894 in Hy-Yuin 1888, advising that allotments of lands Tse-Mil-Kin v. Smith, 194 U. S. 413, 48 L. provided for in an act of Congress were ex. ed. 1045, 24 Sup. Ct. Rep. 681, the court empt from state or territorial taxation,

said: “that the lands covered by the act are held

“Under this statute there is no provision by the United States for the period of rendering it necessary, in a private litigation twenty-five years in trust for the Indians, between two claimants for an allotment, to such trust being an agency for the exercise make the United States a party. The statof a Federal power, and therefore outside ute itself provides that the judgment or dethe province of state or territorial authori- fied to the Secretary of the Interior, is to

cree of the court, upon being properly certity." 19 Ops. Atty. Gen. 169.

have the same effect as if the allotment had It was decided, in view of the object to been allowed and approved by the Secrebe accomplished by allotting Indian lands in tary. This provision assumes that an action severalty, that it was not within the power may be maintained without the government of a state to tax either the permanent im- being made a party, and provides for the filprovements made on allotted lands or the ing of a certificate of the judgment and its personal property consisting of cattle, horses, effect; and the government thereby, in suband other property of like character which stance and effect, consents to be bound by might be furnished to Indians for use upon the judgment, and to issue a patent in acsuch land. And, answering a question as to cordance therewith.” whether the United States had such an in- The Rickert Case settled that, as the nec

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