ASL-KF128.A4U53v.1p136-142
136 1 ALASKA
FEDERAL REPORTS
31 F. 327
In re SAH QUAH.
District Court, D. Alaska.
May 8,1886.
1. Slaves 1
A custom or rite prevailing among
the uncivilized
tribes of Indians in Alaska,
whereby slaves are bought, sold,
and held in servitude, against
their free will, and subjected to
ill treatment at the pleasure of
the owner, is contrary to the
thirteenth amendment to the
constitution of the United
States, and the "Civil Rights
Bill" of 1866, and a person so
held in slavery will be released
by order of the court upon
writ of habeas corpus.
2. Indians 2
The treaty of March 30, 1867, by
which the territory
of Alaska was ceded to the United
States, made the uncivil-
ized tribes therein subject to
such laws and regulations as the
United States might adopt in
regard to them.
3. Indians 35
The act of congress of March 3,
1873, extending to
Alaska two sections of the act of
June 30, 1834, known as
the "Indian Intercourse
Laws," and relating principally to
the interdiction of the liquor
traffic among the Indians, is to
be construed to make said
territory "Indian Country" only
to the extent of the prohibited
commerce, and did not put
the Alaska Indians on a general
footing with Indians in
other parts of the United States.
4. Indians 2
No treaty having ever been made
with the Alaska In-
dians or tribal independence
recognized, they are not to be
regarded as within the operation
of the custom and policy of
the government arising out of the
ordinance of 1787, relat-
ing to the north-west territory,
whereby the Indian tribes of
the United States have been
treated as free and independent
within their respective
territories, governed by their tribal
laws and customs in all matters
pertaining to their internal
affairs.
5. Indians 36
The Alaska Indians, while not
citizens within the full
meaning of the term, are dependent
subjects, amenable to
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IN RE SAHQUAH
137
the penal laws of the United
States, and subject to the juris-
diction of its courts. The act of
congress of March 3, 1885,
making all Indians amenable to the
criminal laws of the
United States for the offenses
therein designated, is to be re-
garded as aiding this construction
of the law, and the act of
March 3, 1871, prohibiting future
recognition of tribal inde-
pendence among the Indians, is to
be construed in the same
connection.
6. Indians 5
The Indian tribes within the
territory of the United
States are independent political
communities, and a child of
a member thereof, though born
within the limits of the
United States, is not a citizen
thereof, because not born sub-
ject to its jurisdiction.
---
Habeas Corpus.
W. Clark and P. J. Berry, for
petitioner.
M. D. Ball, for respondent.
DAWSON, Judge.
Petitioner alleges that he is
unlawfully restrained of his
liberty by the respondent, who
claims to own him as a slave
and chattel, and prays to be
released from the restraint im-
posed upon him by the respondent.
Respondent, by way of
return to the writ, in substance
alleges that both he and
the petitioner are Indians of the
Thlinket or Kalosian race;
that they are uncivilized natives;
that they and their an-
cestors have inhabited the Alaskan
shores from time where-
of the memory of man runneth not
to the contrary, in com-
munities independent of any other
law, authority, or juris-
diction except that established by
their own rules and cus-
toms; that the buying, selling,
and holding of slaves is one
of the rules and customs of their
race and tribe; that the
civil authorities have no
jurisdiction over them; and im-
pliedly asserting that Alaska is
Indian country, and that
they as inhabitants are subject to
no law, save the usages
and customs of Indians.
The issue presented is important,
and necessarily in-
volved an examination of the
treaty by which this vast
region was ceded to the United
States by his majesty, the
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138 1
ALASKA FEDERAL REPORTS
emperor of all the Russias, as
well as certain acts of con-
gress in relation to Alaska. The
third article of the treaty
of March 30, 1867, is as follows:
"The inhabitants of the ceded
territory, according to
their choice, reserving their
natural allegiance, may return
to Russia within three years; but,
if they should prefer to
remain in the ceded territory,
they, with the exception of
uncivilized native tribes, shall
be admitted to the enjoyment
of all the rights, advantages, and
immunities of citizens of
the United States, and shall be
maintained and protected
in the free enjoyment of their
liberty, property, and re-
ligion. The uncivilized tribes will
be subject to such laws
and regulations as the United
States may, from time to
time, adopt in regard to
aboriginal tribes of that country."
It will be observed that the power
to make laws and
regulations for the government of
the Indians is expressly
reserved in the treaty to the
United States, thus indicating
very clearly that they were even
then regarded as subject
to some power superior to their
own untamed inclinations.
Pursuant to the power reserved in
the treaty, congress, on
the twenty-seventh day of July,
1868, extended the laws of
the United States relating to
customs, commerce, and navi-
gation to and over all the
mainland, islands, and waters of
Alaska, and conferred upon the
president of the United
States power to restrict and
regulate or prohibit the im-
portation and use of fire-arms,
ammunition, and distilled
spirits into and within the
territory. Sections 1954, 1955,
Rev. St.
On the third day of March, 1873
congress amended the
two sections referred to by
extending over this territory
two sections of the act of June
30, 1834, known as the
"Indian Intercourse
Laws," relating almost exclusively to
the interdiction of the liquor
traffic among the Indians, and
to the distillation of ardent
spirits in the Indian country.
But I cannot infer that when
congress, in express terms,
extended two sections of the same
act, and made them ap-
plicable to a certain people, it
was intended to extend the
whole act.
The presumption is clear that by
singling out, mentioning,
and extending two sections only,
the intention was to with-
hold or exclude from the territory
all the other sections of
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IN RE SAH QUAH 139
the act. If I am correct in this
conclusion, it necessarily
follows that only as to the
prohibited commerce mentioned
in the sections referred to, can
Alaska be regarded as In-
dian country. 14 Op.Attys.Gen. 290; 16 Op.Attys.Gen.
141.
What, then, is the legal status of
Alaska Indians? Many
of them have connected themselves
with the mission church-
es, manifest a great interest in
the education of their youth,
and have adopted civilized habits
of life. Their condition
has been gradually changing until
the attributes of their
original sovereignty have been
lost, and they are becoming
more and more dependent upon and
subject to the laws of
the United States, and yet they
are not citizens within the
full meaning of that term.
From the organization of the
government to the present
time, the various Indian tribes of
the United States have
been treated as free and
independent within their respective
territories, governed by their
tribal laws and customs, in
all matters pertaining to their
internal affairs, such as con-
tracts and the manner of their
enforcement, marriage,
descents, and the punishment for
crimes committed against
each other. They have been excused
from all allegiance to
the municipal laws of the whites
as precedents or other-
wise in relation to tribal
affairs, subject, however, to such
restraints as were from time to
time deemed necessary for
their own protection, and for the
protection of the whites
adjacent to them. Cherokee Nat. v.
Georgia, 5 Pet. 1, 16,
17; Jackson v. Goodell, 20 Johns.
(N.Y.) 193.
This policy upon the part of the
United States grew out
of the ordinance of 1787, adopted
by the confederate con-
gress for the government of the
territory north-west of
the Ohio river, and has been
constantly and scrupulously
observed in relation to all
Indians existing under tribal
customs, and with whom the
government has treated, and
cognized as independent tribes.
The doctrine enunciated by the
supreme court of the
United States in the Crow Dog Case
(1883) 109 U.S. 556,
3 S.Ct. 396, is based upon the
idea of the supremacy and
dependence of the Brule Sioux
tribe of Indians, in their
tribal capacity, as admitted and
recognized by the United
States in a treaty stipulation. It
was held that the district
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ALASKA FEDERAL REPORTS
court of Dakota had no
jurisdiction to try and punish Crow
Dog for the murder of a member of
his own race, because
he had been or was liable to be
punished by the local law of
the tribe. But does the rule in
that case apply to the In-
dians of Alaska? I think not, and
for various reasons.
The United States has at no time
recognized any tribal
independence or relations among
these Indians, has never
treated with them in any capacity,
but from every act of
congress in relation to the people
of this territory it is clear-
ly inferable that they have been
and now are regarded as
dependent subjects, amenable to
the penal laws of the
United States, and subject to the
jurisdiction of its courts.
Upon a careful examination of the
habits of these natives,
of their modes of living, and
their traditions, I am inclined
to the opinion that their system
is essentially patriarchal,
and not tribal, as we understand
that term in its application
to other Indians. They are
practically in a state of pupil-
age, and sustain a relation to the
United States similar to
that of a ward to a guardian, and
have no such inde-
pendence or supremacy as will
permit them to sustain and
enforce a system of forced
servitude at variance with the
fundamental laws of the United
States.
Counsel for respondent suggests
that these people are not
included within the thirteenth
amendment to the constitu-
tion, and the subsequent
legislation by congress to enforce
it. Before discussing the
amendment, and its object, it is
necessary to briefly examine the
system of slavery among
these natives. The object of all
intellectual research is the
discovery of truth, and unless we
close our eyes to observa-
tion, and disbelieve an unbroken
chain of human evidence,
we cannot escape the conclusion
that slavery in its most
shocking form has been thoroughly
interwoven with the
social policy of the Indians of
Alaska, and still exists in
many localities under
circumstances of extreme cruelty.
The life of the slave is entirely
at the disposal of his master
or his mistress, and it has been
customary among them to
kill one or more slaves on the
death of a master, or on the
happening of some other event,
such as the completion of a
new house. Boring the ears, or
putting out an eye, of a
slave, or some other mode of
marking the flesh, has been
and is now a custom with some of
the families of these peo-
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IN RE SAH QUAH 141
pie. The evidence shows that the
object of such mutila-
tion is to impress upon the slaves
their inferiority, and ren-
der their humiliation complete;
that they are believers in
witchcraft, and that, when a
spirit of insubordination be-
comes manifest on the part of the
slaves, the juggler is
called upon, and that he, by
exorcisms and magical incanta-
tions, pretends to drive out the
rebellious spirits, and the
slaves are compelled to
submit. Can such a system be
tolerated in a country whose people
lay claims to civiliza-
tion and Christianity? Does not
every precept of religion,
every principle that underlies our
system of government,
every axiom of our political
fabric, cry out against such
monstrous inhumanity?
What was the object of the thirteenth
amendment to
the constitution? In construing
the constitution, or any
of its amendments, or any of the
laws enacted in obedience;
to its commands, the court may
derive aid from contempo-
raneous exposition; may look to
the history of the time
of its adoption; may ascertain the
evil sought to be reme-
died, and the object to be
accomplished. Story, Const. §
405. The object of the thirteenth
amendment is easily un-
derstood. Its language is sweeping and far reaching.
African slavery had practically
been abolished by the use
of the military arm of the
government. A new era had
dawned upon the American people.
The last vestige of
forced servitude, except for the
punishment of crime, was
to be eliminated from our
political system by organic law.
The thirteenth amendment was
proposed to the several
states by the thirty-eighth
congress on the first of Febru-
ary, 1865, and was declared in a
proclamation of the secre-
tary of state, dated on the
eighteenth day of December fol-
lowing, to have been ratified by
the legislatures of 27 of
fhe then 36 states.
The amendment is brief, but broad
in its scope:
“Section 1. Neither slavery nor
involuntary servitude,
except as a punishment for crime
whereof the party shall
have been duly convicted, shall
exist within the United
States, or any place subject to
its jurisdiction.
“Sec. 2. Congress shall have power to enforce this ar-
ticle by appropriate
legislation."
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142 1 ALASKA
FEDERAL REPORTS
It is, indeed, seldom that so much
meaning is contained
within the compass of so short a
sentence; and, for the
purpose of making the amendment
effectual, the law known
as the "Civil Rights
Bill" was enacted in April, 1866. By
it the last relic of slavery or
forced servitude in any con-
ceivable form, except for the
punishment of crime, is emas-
culated. Section 1990 abolishes
peonage in New Mexico,
and in every state and territory
where it had a foot-hold.
On March 3, 1871, congress passed
a law absolutely for-
bidding any future treaties with
Indian tribes, or the rec-
ognition of tribal independence.
See section 2079, Rev. St.
(25 U.S.C.A. § 71). And by an act
approved March 3,
1885, (23 U.S.St. at Large, 385),
congress made all In-
dians amenable to the criminal
laws of the United States,
and subject to the jurisdiction of
its courts for all offenses
designated in said act, committed
against the person or
property of any other Indian, or
any other person.
The last act of congress referred
to materially strength-
ens the view herein expressed,
that the Indians of Alaska
are under the control of, and
subject to the laws of, the
United States. The petitioner
testifies that he was captured
and sold into slavery when a mere
boy; that his labor from
that time to this has been
appropriated by others. He has
lost one eye, his ears are badly
mutilated, and he is cer-
tainly a sad spectacle of
humiliated manhood. The crack
of the lash, the torture of
mutilation, the fear of death, the
annoyance of the juggler, the
excess of manual labor im-
posed upon him, the extreme
hardships of his life, with the
sense of degradation and
inferiority constantly before him,
have subdued his manhood, and the
pitiable spectacle of his
once stately form is an evidence
of the blighting curse of
slavery. This case has been ably
argued on both sides, and
all the learning accessible to the
attorneys has been brought
to bear, but I can arrive at no
other conclusion than that
the petitioner must be released
from the merciless restraint
imposed upon him, and go forth a
free man, and such is
the order of the court.