Los Angeles herald., 1890-05-02

dians preserving their tribal relations
to regulate and govern their own in
ternsl and social concerns. But by this
act Congress made a radical change in
the pre-existing policy, and thereby sub
jected the offences therein defined to the
jurisdiction of the United States tri-
bunals. 1t is under and by virtue of
that act that the Indictment in the
present case was found, and by which it
must be governed. Manifestly, to bring
a defendant within the provisions OF the
act he must be an Indian, and it was
therefore necessary that the Indictment
should allege the defendant to be an In
dian. Such allegation being necessary,
it is, of course, essential that the proof
should correspond; for it is cardinal
rule in criminal procedure that every
material averment of the Indictment
must be established by proof to justify
conviction. In the present case, it is a
fact conceded by the respective counsel
that the defendants father was full
blooded negro and his mother full
blooded Indian; that he was taken by
his father, when very young, from the
reservation, where he was born, to re-
side with the father in Los Angeles
city, and he did so reside for a num-
Der of years, but has since returned
to and lived on the reservation, where
the otfense in question is alleged to have
been committed; and the question now
raised is, whether the defendant is an
Indian within the meaning OF the act of
March 8, 1885. If his parentage was
matter about which there was conflict
ing evidence, or if the fact in relation to
it was not conceded, it would have to be
passed upon by the jury along with all
the other facts OF the case; but, being
conceded, 1T is useless to go into the
circumstances OF the alleged otfense; il
it be true, as contended by counsel for
defendant, that he is not an Indian
within the meaning OF the statute upon
which the indictment is founded. The
statutes of the United States nowhere
define an Indian. As matter of fact,
the defendant is no more an Indian than
he is negro, and no more negro than
he is an Indian. In the case of the
United States VS.. Sanders, Hempst, 1856,
the court held that the quantum OF
Indian blood in the veins did not deter
mine the condition of the offspring OF a
union between white person and an
Indian but further held that the con-
dition of the mother did determine
the question. And the court referred
to the common law as authority for
the position that the condition OF the
mother fixed the status of the offspring.
In the subsequent case of Ex parte Rey-
nolds, Dillon, 403, the court said that
the first point decided in the Sanders
case was sustained by the common law,
as also the last point if applied to the
offspring of connection between free
man and slave. But in Elk parte Rey-
nolds the court pointed out that "by the
common law this rule is reversed with
regard to the offspring OF free persons.
Their offspring follows the condition of
father, and the rule partus sequitatr
patrem prevails in determining their
status. This is the universal maxim OF
the common law with regard to freemen
as old as the common law, or even as
the Roman civil law, and as well settled
as the rule partus seq,titor yentrem-the
one being rule fixing the status OF
freemen = the other being rule defining
the ownership of property-the one APP
plicable to the different political COM
munities or states, whose citizens are in
the enjoyment of the civil rights pos
sessed by people in state OF freedom
the other defining the condition OF the
offspring which had been tainted by the
bondage of the mother.
No other rules than the ones above
enumerated ever did prevail in this or