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and fourth sections of the act of 1851. This, however, is disputed, and it is necessary to examine the question. The language of the third section (which governs also the fourth) is certainly broad enough to embrace cases of loss by fire. It declares that the liability of the owner or owners of any ship or vessel "for any act, matter or thing, loss, damage, or forfeiture, occasioned or incurred without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners respectively in such ship or vessel and her freight then pending." Why should liability for loss by fire be excepted from the relief here prescribed ? It is just as much within the reason of the law as any other liability; and it is within its terms. If it is excepted, it must be by virtue of some implication arising from other parts of the law. Such an implication is sought in the first section, which declares that no owner or owners of a ship or vessel shall be liable to answer for any loss or damage which may happen to any goods on board of such ship or vessel by reason or means of any fire happening to or on board of said ship or vessel, “unless such fire is caused by the design or neglect of such owner or owners.” It is contended that this section covers the whole ground so far as liability for losses by fire is concerned; and therefore such liability must be impliedly excepted from the relief provided by section three. But we fail to see why this should necessarily follow. Fire, except when produced by lightning, not being regarded in the commercial law as the act of God, ship-owners, as common carriers, were held liable for any loss or damage caused thereby. The first section of the act of 1851 was no doubt intended to change this rule. It was copied (all except the last clause) from the second section of 26 Geo. III. c. 86, passed in 1786. The last clause of the section, excepting from its operation cases in which the fire is caused "by the design or neglect” of the owners, was probably implied in the English statute without being expressed, as in ours. In all cases of loss by fire, not falling within the exception, the exemption from liability is total. But there is no inconsistency or repugnancy in allowing a partial exemption in cases falling within the third section; that is, cases of loss by fire happening without the privity or knowledge of the owners. They may not be able, under the first section, to show that it happened without any neglect on their part, or, what a jury may hold to be neglect; while they may be very confident of showing, under the third section, that it happened without their privity or knowledge. The conditions of proof, in order to avoid a total or a partial liability under the respective sections, are very different. It is true the owners of a ship may desire to contest all liability whatever, as well as to establish a limited liability, if they fail in the first defense; and this they may do, as well in cases of loss by fire as in other cases, in one and the same proceeding. And we see no repugnancy between the two defenses. One is a more perfect defense than the other, and requires a different class or degree of proofs. That is all. In our judgment the case of loss or damage by fire is comprised within the terms and relief of the third and fourth sections of the act.

The judgment of the supreme judicial court of Massachusetts is reversed and the cause remanded, with directions to take such further proceedings as may be in accordance with this opinion.

(109 U. S. 656) Ex parte KAN-GI-SHUN-OA, (otherwise known as Crow Dog,) peti.


(December 17, 1883.)



The murder of one Indian by another in the Indian country is not an offense against

the laws of the United States, since the clause in section 2146 of the Revised Statutes excepting crimes committed by one Indian against another from the operation of the general laws of the United States, is not repealed, either expressly or by implication, by the treaty of 1868 or the agreement of 1877, but

remains in full force. The Indian country embraces all land within the limits of the United States to

which the Indian title has never been extinguished, except that which lies within the exterior geographical limits of a state, and which was not excepted

from the jurisdiction of that state at the time of its admission into the Union. The United States district court for any territory has jurisdiction of all offenses

against the laws of the United States committed upon any part of the Indian country within the exterior boundaries of its judicial district.

Petition for Writs of Habeas Corpus and Certiorari. Walter H. Smith and A. J. Plowman, for petitioner. Sol. Gen. Phillips, for respondent. *MATTHEWS, J. The petitioner is in the custody of the marshal of the United States for the territory of Dakota, imprisoned in the jail of Lawrence county, in the first judicial district of that territory, under sentence of death, adjudged against him by the district court for that district, to be carried into execution January 14, 1884. That judgment was rendered upon a conviction for the murder of an Indian of the Brule Sioux band of the Sioux nation of Indians, by the name of Sin-ta-ge-le-Scka, or in English, Spotted Tail, the prisoner also being an Indian of the same band and nation, and the homicide having occurred, as alleged in the indictment, in the Indian country, within a place and district of country under the exclusive jurisdiction of the United States and within the said judicial district. The judgment was affirmed on a writ of error, by the supreme court of the territory. It is claimed on behalf of the prisoner that the crime charged against him, and of which he stands convicted, is not an offense under the 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,

18. C. 14 N. W. Rep. 437.

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 argon, 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

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 court. 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, 1884, 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 regulat-* ing 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; Hardc. 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 es. cepted 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. 8. 621. This defini. tion, though not now expressed in the Revised Statutes, is implied

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