The trial court was without jurisdiction of the alleged offense or of the defendant, for the reason that the evidence showed conclusively and without dispute, both on the part of the state and the defendant, that the alleged offense, if committed, was committed upon defendant's government allotment, on land held by the defendant under trust patent, which was *Page 279 located upon an Indian reservation, and that the defendant was and is a member of the Crow Indian tribe, receiving annuities and with tribal rights, by virtue of which the United States government has exclusive jurisdiction of the alleged crime and of the defendant.
It is expressly provided by United States law that until the issuance of fee-simple patent all allottees to whom trust patents are issued shall be subject to the exclusive jurisdiction of the United States (Chap. 2348, 34 Stat. 182). This is recognized by this court in the case of State v. Monroe, 83 Mont. 566,274 P. 840. In that case, it was held that where a crime is committed within the boundaries of a reservation and upon tribal land by an Indian still under governmental guardianship the jurisdiction is in the federal court, giving as its reason that in such case the Indian is the ward of the United States "in respect of whom there is devolved upon the federal government the duty of protection and with it the power"; citing as authority United States Codes Ann., Title 18, Chap. 15, sec. 548; State v. Big Sheep, 75 Mont. 219, 243 P. 1067; United States v.Pelican, 232 U.S. 442, 34 Sup. Ct. Rep. 396, 58 L. Ed. 676;Apapas v. United States, 233 U.S. 587, 34 Sup. Ct. Rep. 704,58 L. Ed. 1104; United States v. Kagama, 118 U.S. 375, 384,6 Sup. Ct. Rep. 1109, 30 L. Ed. 228; United States v. Ramsey,271 U.S. 467, 46 Sup. Ct. Rep. 559, 70 L. Ed. 1039.
The superintendent of the Crow Indian Agency made the following certificate as to the status of the defendant: "This is to certify that the records of this office show that Bud Phelps is enrolled on the Crow Indian Reservation, and that he is one-fourth Indian. He was allotted 1,000 acres of land, all of which is still held in trust by the Government."
The act of enrolling the defendant as a member of the tribe, and the order allotting him his land in trust, are executive acts of the Department of the Interior of which the court must take judicial notice. (Sec. 10532, Rev. Codes 1921.) The order of the Secretary of the Interior approving the roll of the membership of the Crow Indian tribe, giving the quantum *Page 280 of the Indian blood of the appellant, is conclusive, under section 3502a, Barnes, Federal Code, 1923 Supp., and we assert that under the Acts of Congress, under and by virtue of which allotments were made, the making of the allotment to appellant direct, and payment of annuities to him, give conclusive proof that defendant is an Indian, and entitled to the rights and privileges of the Crow Indian tribe, because annuities are paid only to Indians, and since appellant received annuities, and since he received an allotment, he must, per se be an Indian. (Sec. 3482 et seq., Id.) Appellant received an allotment of land and only an Indian could receive such allotment. (Sec. 3591 et seq., Id.)
The order of the Secretary of the Interior fixing the status of the appellant has been held conclusive by the supreme court of the United States in the following cases: United States v.Ferguson, 247 U.S. 175, 38 Sup. Ct. Rep. 434, 62 L. Ed. 1052;United States v. Chase, 245 U.S. 89, 38 Sup. Ct. Rep. 24,62 L. Ed. 168. In United States v. Atkins, 260 U.S. 220,43 Sup. Ct. Rep. 78, 67 L. Ed. 224, it was held that such enrollment and the conclusiveness thereof is not subject to collateral attack.
Mr. L.A. Foot, Attorney General, Mr. T.H. MacDonald, Assistant Attorney General, Mr. C.C. Guinn, County Attorney of Big Horn County, and Mr. E.G. Toomey and Mr. Carl McFarland, the latter two of Counsel on the appeal, submitted an original and a supplemental brief; Mr. Guinn, Mr. Stanley R. Foot, Assistant Attorney General, and Mr. Toomey argued the cause orally.
Defendant's brief states that he was a "tribal Indian," but such is not the testimony; a tribal Indian and a member of an Indian tribe are quite different. There is no evidence that appellant is of any Indian blood whatsoever. The suggestion took the prosecution by surprise. From appearance and speech, the defendant was not, and was not believed to be, an Indian. All statutes conferring jurisdiction refer strictly to "Indians" and not "members of an Indian tribe." And all citations of *Page 281 appellant refer to "Indians" and not to "members of an Indian tribe." Had defendant assumed the burden cast upon him to show that he was an Indian he might have shown some degree of Indian blood; he might, however, have had a white father and therefore his condition would follow that of his father (31 C.J. 480); or if his mother were white, under some authorities the condition of the mother would control (31 C.J. 480); or if it were shown that he was an alien adopted to membership in the tribe with all the rights of a member, yet he would not be an "Indian" exempt from the jurisdiction of the state court (31 C.J. 481); or if he showed that his ancestors were aliens admitted to membership in the tribe and that he as a descendant acquired tribal rights, nevertheless he would not be an "Indian" within the meaning of the statutes. (Stiff v. McLaughlin, 19 Mont. 300,48 P. 232.)
Defendant says that "there is a trust patent issued to this land." This, however, is immaterial, for he may have secured the land through right of inheritance and yet himself not be an "Indian" under the statutes. His testimony is merely a conclusion of law. A fee is presumed by statute. (Sec. 6866, Rev. Codes 1921; Hoppin v. Lang, 81 Mont. 330, 263 P. 421.) But, more important, it is entirely immaterial that he have some land under trust patent, for he may have part of it or some other land in fee and therefore, even if originally or technically an "Indian," he would be emancipated and subject to the jurisdiction of the state. (State v. Monroe, 83 Mont. 556, 274 P. 840.) Furthermore, while the jurisdiction statutes refer to "Indians" and have always been interpreted as referring to Indians of the blood (U.S.C.A., Tit. 18, sec. 548; Tit. 25, sec. 217), allotment statutes refer to "members of the Crow tribe" — which is quite a different thing (22 Stat. 42; 24 Stat. 389; 41 Stat. 751; 44 Stat. 658). Accordingly, by the plain terms of the statutes, one must be of Indian blood to avail himself of the exclusive jurisdiction of the United States courts, but need only be a member of an Indian tribe to secure allotments, receive annuities, *Page 282 and, of course, to have "tribal rights." This is in obvious accord with the Indian policy of the government — only the red man is to be accorded the protection of federal courts, but the tribal lands and other rights are more liberally bestowed.
Clearly, there are two elements in the test by which it is determined that an accused is within the exclusive jurisdiction of the courts of the United States: (1) He must be an Indian, that is, of some degree of Indian blood, and (2) he must not have been emancipated.
(1) There is no proof, not a scrap of evidence, that Phelps was an Indian: There are an almost unnumbered different states of fact which might exist under this testimony. Even persons of Indian blood, through relationship with those of other races, are not always subject to exclusive federal jurisdiction. (UnitedStates v. Higgins, 110 Fed. 609; United States v. Hadley, 99 Fed. 437; United States v. Rogers, 4 How. 567,11 L. Ed. 1105, at 1107.) Even persons of part Indian blood, adopted into the tribe by treaty with the United States, may not be "Indians" in the sense that they are removed from jurisdiction. (Alberty v. United States, 162 U.S. 499, 16 Sup. Ct. Rep. 864,40 L. Ed. 1051.) (2) Allotments, annuities and "tribal rights" are immaterial: That one has a particular parcel of land by allotment in trust is immaterial, for he may have others in fee; some parcels may be kept in trust to escape taxation or secure other privileges. But all of these incidents to "membership in an Indian tribe" are immaterial. Even the federal courts refuse to take jurisdiction upon such a showing. (United States v.Hadley, 99 Fed. 437, at 438, 439; United States v. Higgins, 110 Fed. 609.)
The burden was on the defendant. It is fundamental that a party seeking to oust a court of jurisdiction has the burden, and in this matter of racial exemption, it has been held a matter of defense. (State v. Big Sheep, 75 Mont. 219, 243 P. 1067.) Furthermore, it was peculiarly within the knowledge or power of the defendant to produce the facts necessary *Page 283 to show his exemption from the jurisdiction of the state; it was, therefore, incumbent upon him to do so. Since he has not availed himself of his alleged rights at the trial and since he had failed to make out facts essential to deprive the trial court of jurisdiction, he cannot now complain; he has subjected himself to the jurisdiction of the lower court and to the jurisdiction of the state. (In re Shaffer, 70 Mont. 609, 227 P. 37; State v. Buckaroo Jack, 30 Nev. 325, 96 P. 497.)
The defense now, however, and as an admission of the insufficiency of the showing, wishes to supply the necessary facts through judicial notice. This is not only unauthorized and contrary to the law of the state, but is impossible. The proposed judicial notice does not come within the statute. (Sec. 10532, Rev. Codes 1921.) No court has ever taken judicial notice of the tribal relations of a defendant. Indian blood, even though it might be apparent to the court or counsel, must be proved and is not a matter for judicial notice. (Ball v. Dancer,44 Okla. 114, 143 P. 855; Murdock v. Farrell, 49 Utah, 314,163 P. 1102; Harriss v. Leeper Bros. Lumber Co., 74 Okla. 204,176 P. 412; Moffer v. Jones, 67 Okla. 171, 169 P. 652.)
Defendant refers this court to the registration of Phelps in the Crow tribe. That registration may mean a variety of things. It would be necessary for the court to examine the laws, customs and usages of the tribe as well as the laws and regulations of the Indian Service before this registration could be read intelligently. (Sioux Mixed Blood, 20 Op. Atty. Gen. 711.) Furthermore, the registration would prove nothing, but then the search would have to proceed to determine whether, if an Indian, the defendant had been emancipated. And all this would only raise a prima facie case, for the state must have a chance to show that the defendant is partly of other blood and that his condition follows that of a parent or ancestor of non-Indian extraction. (5 Wigmore on Evidence, 570, sec. 2567.) *Page 284 Bud Phelps was convicted of the crime of stealing cattle on the Crow Indian Reservation in Big Horn county; he has appealed from the judgment of conviction. It is contended that the defendant is a tribal Indian, residing on the reservation, and consequently the trial court had no jurisdiction to try him.
The history and effect of the paternal position of the government with respect to Indians, declared by treaties and Acts of Congress, are fully covered in State v. Big Sheep,75 Mont. 219, 243 P. 1067, and need no further exposition. The word "jurisdiction" as used in the ordinance of the convention of Montana, preparatory to its admission as a state, agreeing that Congress was to retain the absolute jurisdiction over Indian lands within the Indian reservations in Montana, "means the power of governing such lands; to legislate for them; the power or right of exercising authority over them," and "for the people who are there, as well as concerning the land itself." (UnitedStates v. Partello, (C.C. 1891) 48 Fed. 670, 676.)
As to individuals committing acts proscribed by both federal[1] and state laws, it is sufficient here to say that, if a tribal Indian commits such a crime off the reservation, or a person not a tribal Indian commits such a crime on the reservation, the state court has jurisdiction; but, if a tribal Indian residing on the reservation commits such a crime on Indian land, the jurisdiction of the federal court is exclusive, even though the Indian has been accorded citizenship. (United States v. Thomas, 151 U.S. 577, 14 Sup. Ct. Rep. 426, 38 L. Ed. 276;United States v. Sa-Coo-Da-Cot, (C.C.) Fed. Cas. No. 16,212;State v. Campbell, 53 Minn. 354, 55 N.W. 553, 21 L.R.A. 169;State v. Monroe, 83 Mont. 556, 274 P. 840; State v. BigSheep, supra.)
It is conceded that the crime, if committed, was committed on[2] Indian land. The testimony on which defendant relies to establish his status as an Indian is as follows: "I am *Page 285 thirty-two years old. * * * My ranch has the name `The Lone Wolf Ranch'; this land was allotted to me where I live. There is a trust patent issued to this land for me as a member of the Crow Indian tribe, * * * a trust patent made under government restrictions; that land is all on the Indian reservation. I am a member of the Crow Indian tribe; I receive annuities and have tribal rights; * * * my allotment consists of one thousand acres." This testimony was unchallenged; the defendant was not even cross-examined as to his statements.
The defendant's father and mother were called to the stand, but neither was questioned as to ancestry; the only pertinent statement brought out was that they reside on the reservation, where the father has lived for the past "thirty-four or thirty-five years."
As the parents have resided on the reservation, in Big Horn county, since before defendant's birth, and he testified that he has resided in that county all his life, it is reasonable to presume that he was born and raised on the reservation.
The name "Indian" was given to the inhabitants of this continent, on its discovery by Columbus, under the erroneous supposition that the new land was part of India (People v.Hall, 4 Cal. 399), and it is with reference to the descendants of the aborigines that the term is used in the federal statutes here controlling (Frazee v. Spokane County, 29 Wash. 278,69 P. 779); they do not include white men adopted into the tribes at a mature age, but only those persons who, by the usages and customs of the Indians, are regarded as belonging to their race. (United States v. Rogers, 4 How. (45 U.S.) 567,11 L. Ed. 1105; United States v. Rogers, 27 Fed. Cas. 886, No. 16,187;Ex parte Morgan, (D.C.) 20 Fed. 298; Stiff v. McLaughlin,19 Mont. 300, 48 P. 232.)
For the purpose of enforcing certain Acts of Congress, it is held that the "child follows the condition of the father," and therefore the child of an Indian woman by a man not an Indian is not an Indian (United States v. Ward, (C.C.) 42 Fed. 320;Smith v. Bonifer, (C.C.) 154 Fed. 883; United *Page 286 States v. Hadley, (C.C.) 99 Fed. 437, 439), and, where such a child is born off the reservation and goes to live on the reservation with his mother some years thereafter, he is not classed as an Indian so as to exempt his property from taxation (United States v. Higgins, (C.C., District of Montana) 110 Fed. 609).
However, much depends upon the statute considered, and cases holding that the child of an Indian woman follows the condition of the mother seem to be as numerous as those declaring the above rule. (United States v. Sander, 27 Fed. Cas. 950, No. 16,220;Alberty v. United States, 162 U.S. 499, 16 Sup. Ct. Rep. 864,40 L. Ed. 1051; Waldron v. United States, (C.C.) 143 Fed. 413;New York Indians v. United States, 40 Ct. of Cl. 448.) This is the rule with reference to the punishment of crimes committed in the Indian Territory (United States v. Sander, 27 Fed. Cas. 950, No. 16,220), and Congress has declared that all children born of a marriage solemnized between a white man and an Indian woman by blood, and not by adoption, where such a woman is, or, at the time of her death, was, recognized by the tribe, shall have the same rights and privileges to the property of the tribe to which the mother belongs, or belonged at the time of her death, as any other member of the tribe. (30 Stats. at Large, 90, sec. 1 (25 U.S.C.A., sec. 184).)
The rights and privileges of the members of the tribe, with reference to the property of the tribe, are principally to receive annuities and rations and the allotment of that portion of the Indian lands to which, as a ward of the government, each Indian member of the tribe is entitled.
Presumptively, a person apparently of mixed blood, residing[3] upon a reservation and claiming to be an Indian, is in fact an Indian. (20 Op. Attys. Gen. 711, 742.)
Since 1875 all "Indians" entitled to receive supplies must be[4] enrolled by the agent of the government in charge of the reservation (18 Stat. 449, sec. 4 [25 U.S.C.A., sec. 133]); so that the fact that a person is receiving annuities demonstrates that he is an enrolled member of the tribe to *Page 287 which money or supplies may be distributed. Since 1899 all "Indians" entitled to annuity money are authorized to receive and receipt for the same after reaching the age of eighteen years (30 Stat. 947, sec. 8 [25 U.S.C.A., sec. 116]), and, for the purpose of inducing such "Indians" to become self-supporting, all male Indians between the ages of eighteen and forty-five years may be required to perform labor for themselves or the tribe to the amount of the payment or equal to the value of the supplies (18 Stat. 449, sec. 3 [25 U.S.C.A., sec. 137]), and payment may be withheld from an "Indian" under the influence of liquor.
That the law respecting annuities applies only to the[5] descendants of the aborigines, but contemplates the inclusion of those of mixed blood, is demonstrated by the Act of Congress of June 30, 1919, which provides that the "final roll" required to be made of each Indian tribe shall show the age and"quantum of Indian blood" of each member of the tribe entitled to receive from the tribal funds. (Sec. 1 (25 U.S.C.A., sec. 163).)
The provisions for annuities and allotments of Indian lands to members of the Crow tribe are found in the Act of Congress April 11, 1882 (22 Stat. 42), ratifying the agreement of the Indians submitted in 1880 (see 1 "Indian Affairs," 195). On June 4, 1920, Congress made provision for the final enrollment of the Crow tribe, and provided for the striking from the roll, within one year, of all names found to have been fraudulently placed thereon. (41 Stat. 751, amended 44 Stat. 658.) The roll of the tribe was therefore complete and permanent long before the filing of the information herein, and fixed the right of any member of the tribe to receive allotment of land within the reservation.
Any Indian to whom an allotment of land has been made, and[6] while the same shall be held by the government in trust, even though not under the control or immediate personal supervision of an Indian agent, and though he may have been made a citizen of the United States and of the state in which he resides, is still an "Indian" within the meaning of federal *Page 288 Acts relating to crime. (United States v. Flynn, Fed. Cas. No. 15,124; Hallowell v. United States, 221 U.S. 317,31 Sup. Ct. Rep. 587, 55 L. Ed. 750; United States v. Kiya, (D.C.) 126 Fed. 879; United States v. Celestine, 215 U.S. 278,30 Sup. Ct. Rep. 93, 54 L. Ed. 195; United States v. Sutton,215 U.S. 291, 30 Sup. Ct. Rep. 116, 54 L. Ed. 200.)
Allotments of lands by trust patent containing restrictions against alienation and the like are made only to "Indians" entitled to receive rations and annuities from the government, and "until the issuance of fee-simple patents all allottees to whom trust patents shall be issued shall be subject to the exclusive jurisdiction of the United States." (Act of Feb. 8, 1887, 24 Stats. at Large, 390, Chap. 119, sec. 6, Act of May 8, 1906, 34 Stats. at Large, 182, Chap. 2348 (25 U.S.C.A., sec. 349.) Those of mixed blood, residing on the reservation and maintaining tribal relations, are "Indians" entitled to these allotments (Sully v. United States, (C.C.) 195 Fed. 113;United States v. Gardner, (D.C.) 189 Fed. 690), but, in the absence of a special enactment so providing, or by tribal laws, while Indian nations were accorded local self-government, a white man married to an Indian woman, residing on a reservation and made a member of the tribe or nation, is not entitled to share in tribal funds or in the allotment of Indian lands. (Red Bird v.United States, 203 U.S. 76, 27 Sup. Ct. Rep. 29, 51 L. Ed. 96.)
It is clearly shown, on consideration of the above applicable[7] laws, that the defendant is an enrolled member of the Crow Indian tribe, has resided on the reservation all his life, and has been recognized by the tribe and by the government authorities as of the Indian race and granted annuities and the allotment of Indian lands, and is therefore in fact an "Indian," and that, as an "allottee," he is subject to the exclusive jurisdiction of the United States until the issuance of a fee-simple patent for his land.
Three objections are raised to this conclusion: First, that[8, 9] defendant may have taken by inheritance rather than in his own right; second, that he may have been erroneously *Page 289 enrolled and granted tribal rights; and, third, that he may hold other lands to which fee-simple patent has issued and is therefore emancipated.
As defendant's father and mother are still living, it would be a violent and unwarranted presumption to say that the positive declaration of Congress that, as an allottee, he is subject to the exclusive jurisdiction of the United States, is to be set at naught because he might in some manner have taken his allotment by inheritance. As to descent of right to allotment, see 26 Stats. at Large, 795, Chap. 383, sec. 5 (25 U.S.C.A., sec. 371).
As to the second objection, we must presume that official duty has been regularly performed (sec. 10606, subd. 15, Rev. Codes 1921).
With reference to the final objection, it is held in State v. Monroe, supra, that, where an Indian is emancipated by receiving fee-simple patent to his allotted land, the subsequent allotment to him of land on division of additional Indian land cannot restore him to the condition of a ward of the government, but no such condition could be assumed to exist here.
Under the special Act of June 4, 1920, above, provision is made for disposition of the Crow lands, by first issuing trust patents for the amount of land each Indian is entitled to and the prorating of all excess land on the reservation. Owing to the great extent of the reservation as compared with the membership of the tribe (see Ann. Rep. Comm. Ind. Affairs, June 30, 1932), there is nothing strange in the fact that Phelps held 1,000 acres of allotted land; the above Act requires each member of the tribe to designate 640 acres, allotted or to be allotted, as a homestead; but it is not reasonable to assume that, having received fee-simple patent to his allotted land, Phelps should have received a further allotment of 1,000 acres of surplus land.
It is clear from the statutes and decisions cited that the law[10] intends that only "Indians" shall receive annuities and the allotment of tribal lands, and that an allottee remains a ward of the government until a fee-simple patent is issued *Page 290 for his allotted land; further, that, if such a ward of the government commits a crime, triable in the federal court, upon tribal lands within a reservation, whether such lands have been allotted or not, the federal court has exclusive jurisdiction. (State v. Monroe, supra, and cases cited.)
It would seem that the right to receive an allotment may depend upon Indian ancestry without regard to the place of birth, so that a child, shown to have been born off the reservation to an Indian woman who has severed tribal relations and married a white man, may receive an allotment on return to the reservation and tribe, but, being thus born to United States citizenship, the act of the government agents in making the allotment cannot "deprive him of his birthright," and consequently cannot deprive the state court of jurisdiction. (United States v. Hadley, supra; United States v. Logan, (C.C.) 105 Fed. 240.) On the other hand, as indicated by the cited cases, jurisdiction depends further upon the person under investigation being born a member of the tribe.
Herein the testimony of the defendant, in effect showing that he is a member of the tribe, born on the reservation, and receiving annuities and holding allotted land, as only an Indian lawfully can, constituted a prima facie showing that the state court was without jurisdiction of his person, which showing the state made no attempt to controvert. On the uncontradicted evidence, therefore, we are compelled to hold that the judgment entered is a nullity and must be reversed.
The judgment is reversed and the cause remanded to the district court of Big Horn county, with direction to dismiss the information.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES ANGSTMAN, STEWART and ANDERSON concur.
Rehearing denied February 16, 1933. *Page 291