Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.
The petitioner, Phillip Tooisgah, a full-blood Apache Indian, was indicted, tried and convicted in the Western District of Oklahoma, for the murder of Lucy Tahdooahnippah, a full-blood Comanche Indian. Federal jurisdiction over the offense is based upon the allegation in the indictment to the effect that the homicide occurred on June 2, 1942, in Caddo County, and in the Western District of Oklahoma, in Indian Country upon a reservation and a tract of land within the exclusive jurisdiction of the United States, comprising the Indian allotment of Ellen Mulkehay, patent deed never having been issued to her by the Secretary of the Interior.
When the case was here on appeal, Tooisgah v. United States, 10 Cir., 137 F.2d 713, jurisdiction of the court over the offense was not challenged. We noticed and sustained it, however, under R.S. § 2145, 25 U.S.C.A. § 217; and Section 328 of the Criminal Code, 35 Stat. 1151, 18 U.S.C.A. § 548, Section 9 of the Act of March 3, 1885, 23 Stat. 362, 385, on a stipulation in the record to the effect that the allotment described in the indictment was the Ellen Mulkehay allotment, and that it was trust property to which the United States held legal title for the Indian allottee, citing United States v. Pelican, 232 U.S. 442, 34 S. Ct. 396, 58 L. Ed. 676; United States v. Ramsey, 271 U.S. 467, 46 S. Ct. 559, 70 L. Ed. 1039; Ex parte Nowabbi, 60 Okl.Cr. 111, 61 P.2d 1139; and Ex parte Pero, 7 Cir., 99 F.2d 28.
By this motion to vacate under Section 2255, Title 28, United States Code Annotated, we are asked to re-examine the jurisdiction of the court, it being earnestly contended that the agreed facts do not bring the offense charged within the provisions of either of the jurisdictional acts relied upon, as construed by the authorities cited as controlling.
Section 2255, in material part, provides that a "prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that * * * the court was without jurisdiction to impose such sentence * * * may move the court which imposed the sentence to vacate, set aside or correct the sentence * * * at any time * * *. If the court finds that the judgment was rendered without jurisdiction * * * the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate."
The jurisdiction of the court and of the United States over the offense charged was squarely put in issue on agreed facts, and was sustained as a matter of law in the trial of the case, the court holding that the "defendant had been convicted of murder of a full-blood Comanche Indian upon an Indian reservation." And, while res judicata has not been invoked, nor is it strictly applicable in cases of this kind, Section 2255 affords adequate protection against repetitious motions by expressly providing that the "sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." We have construed this clause as empowering the court to dispose of a "second or successive" motion in the exercise of a sound judicial discretion, "guided and controlled by a consideration of whatever has a rational bearing on the propriety of the relief sought," thus likening successive motions under Section 2255 to successive applications for writs of habeas corpus. See Barrett v. Hunter, 10 Cir., 180 F.2d 510; and see 28 U.S.C.A. § 2244.
Since this is the first motion under Section 2255, cf. Gebhart v. Hunter, 10 Cir., 184 F.2d 644, it may be seriously doubted whether we have unqualified discretion to refuse to entertain it as "a second or successive motion for similar relief." But even so, discretion to entertain the motion, going as it does to the jurisdiction of the court over the offense, based upon agreed facts, seems to us manifestly clear.
Unlike Hatten v. Hudspeth, 10 Cir., 99 F.2d 501, and Davis v. Johnston, 9 Cir., 144 F.2d 862, no new or additional facts are sought to be injected into the case, and no adjudicated facts are sought to be impeached. The question is one of law whether the agreed and adjudicated facts bring the offense within that class over which exclusive federal jurisdiction is extended by statute. Since the motion goes squarely to the jurisdiction of the court on agreed facts; involves human liberties, as well as a possible conflict between state and federal jurisdiction over crimes committed within the boundaries of a sovereign state; and since the question of jurisdiction was not presented or painstakingly considered in the direct appeal, we deem it appropriate to re-examine it here. Cf. Bowen v. Johnston, 306 U.S. 19, 59 S. Ct. 442, 83 L. Ed. 455.
Under R.S. § 2145, 25 U.S.C.A. § 217, the general laws of the United States as to the punishment of crimes committed any place within the sole and exclusive jurisdiction of the United States was extended to "Indian Country." But the following Section 2146, 25 U.S.C.A. § 218, expressly provides in material part that Section 2145 should not extend to crimes by one Indian against the person or property of another Indian.
When R.S. 2145 was originally enacted as Section 25 of the Act of June 30, 1834, 4 Stat. 733, it was and had been the uniform policy of the United States to recognize the Indians in Indian Country as a separate people, with power to regulate their internal and social relations, and thus to leave to the tribal government jurisdiction over crimes and offenses committed by one Indian against the person or property of another Indian in Indian Country. United States v. Joseph, 94 U.S. 614, 617, 24 L. Ed. 295; Ex parte Crow Dog, 109 U.S. 556, 3 S. Ct. 396, 27 L. Ed. 1030; United States v. Kagama, 118 U.S. 375, 381, 6 S. Ct. 1109, 30 L. Ed. 228; United States v. Quiver, 241 U.S. 602, 36 S. Ct. 699, 60 L. Ed. 1196; Cohen Handbook on Federal Indian Law, Ch. 7, p. 122.
It was not until after the decision in Ex parte Crow Dog, supra, in 1883, that Congress, by Section 9 of the Act of March 3, 1885, 23 Stat. 362, 385, extended federal law and federal jurisdiction over certain enumerated crimes, including murder, when committed by one Indian against the person or property of another Indian, within any territory of the United States, either within or without an Indian reservation, and "within the limits of any Indian reservation" lying wholly within the boundaries of a state. This Section was reenacted as Section 328 of the Criminal Code, 35 Stat. 1151, and has become commonly known as the Ten Major Crimes Act. The phrase "within the limits of any Indian reservation" was subsequently amended to read "on and within any Indian reservation under the jurisdiction of the United States Government". Act of June 28, 1932, 47 Stat. 336, and the Act became known as Section 548 of the United States Code Annotated. The effect of this law as originally enacted, was to repeal "in part the limitation that was imposed by § 2146 upon the effect of § 2145." Donnelly v. United States, 228 U.S. 243, 270, 33 S. Ct. 449, 450, 57 L. Ed. 820; see also United States v. Kagama, supra.
But Section 2146 was not repealed by Section 328, except to the extent necessary to confer federal jurisdiction over certain enumerated crimes when committed by one Indian against another Indian in carefully specified places. Indeed, Section 2146 remained unchanged when it was recodified with Section 2145 as Section 1152 of the Revised Criminal Code, 18 U.S.C.A. It is therefore clear that the offense charged here is not cognizable in the Federal court under Section 2145 (now 1152), and the only question for decision is whether the asserted federal jurisdiction over the offense is sustainable under 328 as an offense of murder of one Indian by another "on and within any Indian reservation under the jurisdiction of the United States Government."
In the resolution of that question it is important to keep in mind that when in 1907, the Territory of Oklahoma was admitted into the Union upon an equal footing with the original states, it thereby acquired full and complete jurisdiction over all persons and things within its boundaries, including the Indians, except to the extent that the federal government expressly retained or asserted paramount jurisdiction over them as guardian and ward. See United States v. McBratney, 104 U.S. 621, 26 L. Ed. 869; Draper v. United States, 164 U.S. 240, 17 S. Ct. 107, 41 L. Ed. 419.
Thus, for purposes of our case, it may be said that the United States retained jurisdiction under Section 2145 for offenses committed by a non-Indian against an Indian, or an Indian against a non-Indian, in "Indian Country," and over certain enumerated crimes, when committed by one Indian against another Indian "within the limits of any Indian reservation lying within the boundaries of a state." See Donnelly v. United States, supra; United States v. Pelican, supra; United States v. Ramsey, supra; Ex parte Nowabbi, supra; Ex parte Wallace, Okl.Cr.App., 162 P.2d 205.
Undoubtedly, the alleged crime was committed on lands originally "on and within any Indian reservation", set apart and established by the Medicine Lodge Treaty of 1867 between the United States and the Kiowa, Comanche and Apache Indians, 15 Stat. 581, 589. See Lone Wolf v. Hitchcock, 187 U.S. 553, 554, 23 S. Ct. 216, 47 L. Ed. 299.
Subsequently, by agreement dated October 6, 1892, approved June 6, 1900, 31 Stat. 676, the Kiowa, Comanche and Apache Indians occupying the reservation agreed with the United States that subject to the allotment of land in severalty to the individual members of the tribes; the setting aside of 480,000 acres of grazing lands, and other considerations, the tribes ceded, conveyed, transferred, relinquished and surrendered forever and absolutely all their claim, title and interest of every kind and character in and to the lands embraced in the reservation. Out of the lands thus ceded, and in part consideration thereof, it was agreed that each member of the respective tribes should have the right to an allotment of 160 acres of land, to be held and owned in severalty. The agreement also provided that when the allotments of land had become selected and approved by the Secretary of the Interior, the titles thereto should be held in trust for the allottees respectively for a period of 25 years in the time and manner and to the extent provided for in the General Allotment Act of February 8, 1887, 24 Stat. 388.
Section 6 of the General Allotment Act, as amended by the Act of May 8, 1906, 34 Stat. 182, provided that at the expiration of the trust period, and when the lands had been conveyed to the Indian allottees in fee, every allottee "shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside", provided that "until the issuance of fee-simple patents all allottees to whom trust patents shall hereafter be issued shall be subject to the exclusive jurisdiction of the United States: And provided further, That the provisions of this Act shall not extend to any Indians in the Indian Territory." See Ex parte Nowabbi, supra. It is not alleged that either Indian involved here occupied the status of an allottee of lands, the title to which is held in trust by the United States, and federal jurisdiction is not invoked or sought to be sustained under the provisions of this Act.
The allotment of lands in severalty within the limits of the established reservation did not for that reason disestablish the reservation of which they were a part, or exclude the allotments from it. United States v. Kiya, D.C., 126 F. 879. Once the reservation is established "all tracts included within it remain a part of the reservation until separated therefrom by Congress." United States v. Celestine, 215 U.S. 278, 285, 30 S. Ct. 93, 95, 54 L. Ed. 195; Cf. Kills Plenty v. United States, 8 Cir., 133 F.2d 292; United States v. Frank Black Spotted Horse, D.C., 282 F. 349; Hatten v. Hudspeth, 10 Cir., 99 F.2d 501.
When, however, the tribes occupying the reservation ceded the lands embraced within it to the United States, relinquishing and surrendering "all their claim, title and interest," subject to the allotments in severalty, and every allottee was given the benefit of and made subject to the laws, both criminal and civil, of the state or territory, with the gift of citizenship and equal protection of the laws, Section 6 of the Act of February 8, 1887, 24 Stat. 388, we think it cannot be doubted that Congress thereby intended to dissolve the tribal government, ...