[254 U.S. 548, 549] Mr. Wm. B. McFarland, of Coeur d'Alene, Idaho, for petitioner.
The Attorney General and Mr. William C. Herron, of Washington, D. C., for the United States.
Mr. Justice BRANDEIS delivered the opinion of the Court.
Louie, an Indian, was indicted under section 273 of the Penal Code ( Comp. St. 10446) in the District Court of the United States for the District of Idaho, Northern Division, for the murder of another Indian within the limits of the Coeur d'Alene reservation. A motion to dismiss for want of jurisdiction was overruled and the defendant was tried and convicted. By motion in arrest of judgment, he objected in terms to the jurisdiction of the court over the person of defendant and over the crime charged on the ground that before the time of the alleged crime he had been declared competent and the land on which the crime was alleged to have been committed had been allotted and deeded to him in fee simple. Compare United States v. Celestine, 215 U.S. 278 , 30 Sup. Ct. 93. This motion also was overruled, the defendant was sentenced, and the case was taken on writ of error to the United States Circuit Court of Appeals for the Ninth Circuit. That court, one judge dissenting, dismissed the writ of error for want of jurisdiction on the ground that, since the sole question presented was whether the District Court had jurisdiction, its decision could be reviewed only by direct writ of error from this court to the District Court. See United States v. Jahn, 155 U.S. 109, 114 , 115 S., 15 Sup. Ct. 39. Compare Raton Waterworks Co. v. City of Raton, 249 U.S. 552 , 39 Sup. Ct. 384. The dissenting judge was of opinion that the Circuit Court of Appeals had jurisdiction of the writ of error, because an additional error relating to the merits had been assigned there, although not raised below. 264 Fed. 295. [254 U.S. 548, 550] A writ of certiorari was granted by this court. 253 U.S. 482 , 40 Sup. Ct. 587.
We have no occasion to consider the question on which the Circuit Court of Appeals divided. The motions made by defendant in the District Court raised a question, not of the jurisdiction of that court, but of the jurisdiction of the United States. The contention was, in essence, that, by reason of the facts set forth in the motions, the defendant was in respect to the acts complained of subject to the laws of the state of Idaho and not to the laws of the United States; in other words, that he did not violate the laws of the United States. Compare United States v. Kiya (D. C.) 126 Fed. 879, 880. Section 328 of the Penal Code (Comp. St. 10502) provides that an Indian committing murder on another Indian 'within the boundaries of any state, and within the limits of any Indian reservation, shall be subject ... to the same penalties as are all other persons committing' the same crime 'within the exclusive jurisdiction of the United States.' United States v. Kagama, 118 U.S. 375 6 Sup. Ct. 1109; Donnelly v. United States, 228 U.S. 243, 269 , 270 S., 33 Sup. Ct. 449, Ann. Cas. 1913E, 710. The defendant, in effect, denied that the killing was, in the statutory sense, within the reservation. If this was true, an essential element of the crime against the United States was lacking; as much so as if it had been established in United States v. Sutton, 215 U.S. 291 , 30 Sup. Ct. 116, or in United States v. Soldana, 246 U.S. 530 , 38 Sup. Ct. 357, that the region into which liquor was introduced was not Indian country. That the District Court for Idaho had jurisdiction to determine whether the locus in quo was a part of the reservation was not questioned. By Section 78 of the Judicial Code (Comp. St. 1063) the whole state of Idaho is comprised within the District of Idaho; by paragraph second of section 24 (section 991) District Courts have original jurisdiction of all [254 U.S. 548, 551] Since defendant's motions in the District Court did not raise a question properly of the jurisdiction of the court, but went to the merits, there was no basis for a direct writ of error from this court. Pronovost v. United States, 232 U.S. 487 , 34 Sup. Ct. 391; Lamar v. United States, 240 U.S. 60, 65 , 36 S. Sup. Ct. 255. He properly sought review in the Circuit Court of Appeals. In United States v. Celestine, 215 U.S. 278 , 30 Sup. Ct. 93, and United States v. Pelican, 232 U.S. 442 , 34 Sup. Ct. 396, where the defense was similar to that presented here, and in United States v. Sutton, supra, and United States v. Soldana, supra, the cases came to this court by direct writ of error to the District Court under the Ciminal Appeals Act of March 2, 1907, c. 2564. 34 Stat. 1246 (Comp. St. 1704). Hallowell v. United States, 221 U.S. 317 , 31 Sup. Ct. 587, where a similar question was involved, came here on certificate. In Clairmont v. United States, 225 U.S. 551, 554 , 32 S. Sup. Ct. 787, it was inadvertently assumed without discussion that the question involved was one of the jurisdiction of the District Court.
The judgment of the Circuit Court of Appeals is reversed and the case remanded to that court for further proceedings in conformity with this opinion.
The CHIEF JUSTICE took no part in the decision of this case.