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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140         1 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.

 

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