[212 U.S. 542, 543] Messrs. A. E. Crane and F. T. Woodburn for appellant.
[212 U.S. 542, 545] Solicitor General Hoyt for appellee.
Mr. Chief Justice Fuller delivered the opinion of the court:
Toy Toy and Columbia George, both Indians of the Umatilla tribe, were jointly indicted in a state court in Oregon for the crime of murder in the first degree, committed on an Indian woman on the United States Indian reservation in Umatilla county, Oregon; were separately tried and convicted, and each sentenced to death. Columbia George appealed from the judgment of conviction on the ground, among others, that the state court was without jurisdiction, inasmuch as the crime was committed by Indians upon an Indian, on an Indian reservation, and that it was therefore within the exclusive jurisdiction of the Federal courts. In a careful opinion by Wolverton, J., the supreme court of the state of Oregon upheld this contention, and, reversing the judgment of the trial court, ordered the dis- [212 U.S. 542, 547] charge of the defendant. State v. Columbia George, 39 Or. 127, 65 Pac. 604. Thereupon defendants were indicted under 5339 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3627) in the circuit court of the United States for the district of Oregon. regularly tried and convicted of murder ( without capital punishment), and sentenced to imprisonment for the term of their natural lives.
At October term, 1905, application was made to this court for leave to file a petition for the writ of habeas corpus, which was denied March 5, 1906, 201 U.S. 641 , 50 L. ed. 901, 26 Sup. Ct. Rep. 759. Thereafter a petition for writ of habeas corpus on behalf of Toy Toy only was filed in the circuit court of the United States for the western district of Washington. That court denied the petition, and the case is now before this court on appeal.
The indictment in this case charged Columbia George and Toy Toy, Indians, with the murder of Annie Edna, an Indian woman, upon the Umatilla reservation, within the state and district of Oregon.
On the face of the record the United States circuit court for the district of Oregon, in which these Indians were last tried and convicted, had jurisdiction of the offense and of the defendants. They were tried, found guilty, and sentenced to the penitentiary for life. Five years thereafter Toy Toy applied for the writ of habeas corpus, and alleged that the indictment, arraignment, trial, judgment, sentence, and commitment were wholly null and void for want of jurisdiction over subject-matter and person. The petition alleged:
If such were the facts, and they made out a want of jurisdiction under the applicable statutes, which, on the merits, we do not hold, the circuit court, nevertheless, was authorized to hear and pass upon those questions in the first instance, and its decision was open to review in the appellate court by writ of error. But it could not be attacked collaterally as absolutely void, and habeas corpus cannot be availed of as a writ of error.
And see United States v. Shipp, 203 U.S. 573 , 51 L. ed. 323, 27 Sup. Ct. Rep. 165, 8 A. & E. Ann. Cas. 265.
We are of opinion that the circuit court was right in denying the application for the writ of habeas corpus, and that its final order must be affirmed.
It is true that the writ was granted in the case of Re Heff, 197 U.S. 488 , 49 L. ed. 848, 25 Sup. Ct. Rep. 506, but the explanation of that case, given in the case of Re Lincoln, 202 U.S. 178 , 50 L. ed. 984, 26 Sup. Ct. Rep. 602, deprives it of any weight here.
Final order affirmed.