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Crimes against Indian police to

maintaining order and prohibiting illegal traffic in liquor on the several Indian reservations, thirty thousand dollars: Prorided, That Indians employed at agencies in any capacity shall not be construed as part of agency employees named in section five of the act making appropriations for the Indian service for the fiscal year eighteen hundred and seventy-six, approved March third, eighteen hundred and seventy-five. Act of May 27, 1878 20 Stat. L., St.

1500. That immediately upon and after the passage of be tried in dis- this act any Indians committing against the person of any Mar. 2, 1887. v. Indian policeman appointed under the laws of the United

trict courts.

24, p. 464.

States, or any Indian United States deputy marshal, while lawfully engaged in the execution of any United States process, or lawfully engaged in any other duty imposed upon such policeman or marshal by the laws of the United States, any of the following crimes, namely, murder, manslaughter, or assault with intent to kill, within the Indian Territory, shall be subject to the laws of the United States relating to such crimes, and shall be tried by the district court of the United States exercising criminal jurisdiction where said offense was committed, and shall be subject to the same penalties as are all other persons charged with the commission of said crimes, respectively; and the said courts are hereby given jurisdiction in all such cases. Act of March 2, 1887 (24 Stat. L., 464).

The establishment of Indian police has been authorized by the several acts of appropriation since that of March 27, 1878 (20 Stat. L., 86). The detachments of the force authorized by the Secretary of the Interior to be maintained at the several Indian reservations are employed, under the direction of the respective Indian agents. in the preservation of order and in the execution of the laws relating to the manage ment of Indians and the government of the Indian country.

ALASKA.

Alaska, though unorganized as a Territory, and included in the military department of the Columbia, is no more under military government or jurisdiction thas is any other Territory or any State of the United States. (a) (Dig. J. A. Gen., 147 par. 2.)

a "It is a mistake to suppose that the Territory of Alaska is under military rule any more than any other part of the country, except as to the introduction of spint uous liquors, and the making of arrests for violations of" the existing law regulati ing their introduction and disposition (see INDIAN COUNTRY, sec. 1. note), in cases of which arrests "the military really act as civil officers and in subordination to the civil law." (In re Carr, 3 Sawyer, 318.)

CHAPTER XXXVIII.

EMPLOYMENT OF MILITARY FORCE-IN RESIST-
ING INVASION-IN SUPPRESSING INSURREC-
TION-IN SUPPORT OF THE CIVIL AUTHORITY.

Par.

1501. Power to suppress insurrec

tion.

¡Par.

1536-1550. Civil rights.

1551, 1552. The elective franchise.

1502. Insurrection against the 1553. The public health.

United States.

1503. Insurrection against a State. 1504. Proclamation to insurgents to disperse.

1505. Orders of the President calling forth the militia in case of invasion, etc.

1506. Militia, how apportioned 1507. Subject to Articles of War. 1508-1513. Removal of persons from Indian reservations. 1514-1535. Suspension of inter

course.

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INSURRECTION AGAINST THE UNITED STATES.

tion.

Apr. 20. 1871, c. 22, s. 3, v. 17, p. 14.

Sec. 5299, R.S.

1501. Whenever insurrection, domestic violence, unlawful Power to sup press insurreccombinations, or conspiracies in any State so obstructs or hinders the execution of the laws thereof, and of the United States, as to deprive any portion or class of the people of such State of any of the rights, privileges, or immunities, or protection, named in the Constitution and secured by the laws for the protection of such rights, privileges, or immunities, and the constituted authorities of such State are unable to protect, or, from any cause, fail in or refuse protection of the people in such rights, such facts shall be deemed a denial by such State of the equal protection of the laws to which they are entitled under the Constitution of the United States; and in all such cases, or whenever any such insurrection, violence, unlawful combination, or conspiracy, opposes or obstructs the laws of the United States, or the due execution thereof, or impedes or obstructs

Insurrection against the Gov

United States.

25, s. 1, v. 12, p. 281.

the due course of justice under the same, it shall be lawful for the President, and it shall be his duty, to take such measures, by the employment of the militia or the land and naval forces of the United States, or of either, or by other means, as he may deem necessary, for the suppression of such insurrection, domestic violence, or combinations.' 1502. Whenever, by reason of unlawful obstructions, comernment of the binations, or assemblages of persons, or rebellion against July 29, 1861, c. the authority of the Government of the United States, it shall become impracticable, in the judgment of the President, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State or Territory, it shall be lawful for the President to call forth the militia of any or all the States, and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion, in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed.2

Sec. 5298, R.S.

Insurrection against a State.

Feb. 28, 1795, c. 36, s. 1, v. 1, p. 424;

v. 2, p. 443.

INSURRECTION AGAINST A STATE.

1503. In case of an insurrection in any State against the government thereof, it shall be lawful for the President, Mar. 3, 1807, c. 39, on application of the legislature of such State, or of the Sec. 5297, R. S. executive, when the legislature can not be convened, to call forth such number of the militia of any other State or States, which may be applied for, as he deems sufficient to suppress such insurrection; or, on like application, to employ, for the same purposes, such part of the land or naval forces of the United States as he deems necessary.3

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The power to enforce its laws and to execute its functions in all places does not derogate from the power of the State to execute its laws at the same time and in the same places. The one does not exclude the other except where both can not be ete cuted at the same time. In that case the words of the Constitution itself show which is to yield; "this Constitution and the laws of the United States which shall be made in pursuance thereof; shall be the supreme law of the land." Although no State could establish and maintain a permanent military government, yet it may use its military power to put down an armed insurrection too strong to te controlled by the civil authority. The State must determine for itself what degree of force the crisis demands. (Luther v. Borden, 7 How., 1; see also 16 Opin. Ätt Gen.. 162.) See also note to paragraph 1556, post.

2 The National Government has the right to use physical force in any part of the United States to compel obedience to its laws, and to carry into execution the powers conferred upon it by the Constitution. We hold it to be an incontrovertible principle that the Government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it." (Ex parte Siebold, 100 U. S., 371, 395; Uˇ. S. v. Neagle '15 U.S., 1, 60; Logan v. U. S., 144 U. S., 263, 294.)

As a necessary incident of the power to declare and prosecute war, the Federal Government has a right to transport troops through and over the territory of any State of the Union. (Crandall v. Nevada, 6 Wall., 35. See also 16 Opin. Att. Gen 162; 17 ibid., 242, 333; 19 ibid., 293, and note to par. 1556, post.)

Under article 4, section 4, of the Constitution, the Army may be employed to pro tect a State from "invasion" or "domestic violence" only by order of the President. made "on application of the legislature, or of the executive when the legislature can not be convened." A military commander, of whatever rank or command, can have no authority, except by the order thus made of the President, to furnish troops to a

to insurgents to

July 29, 1861, c.

1504. Whenever, in the judgment of the President, it Proclamation becomes necessary to use the military forces under this disperse. Title, the President shall forthwith, by proclamation, com- 25, s. 2, v. 12, p. mand the insurgents to disperse and retire peaceably to Sec. 5300, R. S. their respective abodes, within a limited time.

INVASION.

282.

ident calling

case of invasion,

Feb. 28, 1795, c.

1505. Whenever the United States are invaded, or are in Orders of Presimminent danger of invasion from any foreign nation or forth militia in Indian tribe, or of rebellion against the authority of the etc. Government of the United States, it shall be lawful for 36, s. 1, v. 1, p. 424. Martin v. Molt, the President to call forth such number of the militia of the 12 Wh., 19, McCall's Case, State or States, most convenient to the place of danger, Phila., 259. or scene of action, as he may deem necessary to repel such invasion, or to suppress such rebellion, and to issue his orders for that purpose to such officers of the militia as he may think proper.'

1506. When the militia of more than one State is called into the actual service of the United States by the President, he shall apportion them among such States according to representative population.

governor or other functionary of a State, to aid him in making arrests or establishing law and order. (Dig. Opin. J. A. Gen., 161, par. 1.)

The proviso of the Constitution, "when the legislature can not be convened," may be said to mean when it is not in session, or can not, by the State law, be assembled forthwith or in time to provide for the emergency. When it is in session, or can legally and at once be called together, it will not be lawful for the President to employ the army on the application merely of the governor. (Ibid., par. 2.)

A military force employed according to article 4, section 4, of the Constitution, is to remain under the direction and orders of the President as Commander in Chief and his military subordinates; it can not be placed under the direct orders or exclu sive disposition of the governor of the State. (Ibid., par. 3.)

In all cases of civil disorders or domestic violence it is the duty of the Army to
preserve an attitude of indifference and inaction till ordered to act by the President,
by the authority of the Constitution or of section 2150, 5297, or 5298, Revised Statutes,
or other public statute. An officer or soldier may, indeed, interfere to arrest a person
in the act of committing a crime, or to prevent a breach of the peace in his presence,
but this he does as a citizen and not i his military capacity. Any combined effort
by the military, as such, to make arrests or otherwise prevent breaches of the peace
or violations of law in civil cases, except by the order of the President or the require-
ment of a United States official authorized to require their services on a posse com-
itatus, must necessarily be illegal. In a case of civil disturbance in violation of the
laws of a State, a military commander can not volunteer to intervene with his com-
mand without incurring a personal responsibility for his acts. In the absence of the
requisite orders he may not even march or array his command for the purpose of ex-
erting a moral effect or any effect in terrorem, such a demonstration, indeed, could
only compromise the authority of the United States, while insulting the sovereignty
of the State. (Ibid., 164. par. 7.)

See also General Orders No. 26, Adjutant-General's Office, of 1894 (A. R., 487), for
instructions as to the use of the military force in support of the civil authority.
The act of February 28, 1795 (1 Stat. L., 424), authorizing the President, under cer-
tain circumstances, to call out the militia, is constitutional, and the President is
the final judge of the emergency justifying such a call. (Martin v. Mott, 12 Wheat.,
19.) By this act the power of deciding whether the exigency had arisen upon which
the Government of the United States is bound to interfere is given to the President.
He is to act upon the application of the legislature, or of the executive, and conse-
quently he must determine what body of men constitute the legislature, and who is
the governor, before he can act. The fact that both parties claim the right to the
government can not alter the case, for both can not be entitled to it. If there is an
armed conflict, like the one of which we are speaking, it is a case of domestic violence,
and one of the parties must be in insurrection against the lawful government. And
the President must, of necessity, decide which is the government, and which party is
unlawfully arraved against it, before he can perform the duty imposed upon him by
the act of Congress. (Luther v. Borden, 7 How., I, II.)

In the case of Houston v. Moore (5 Wheat., 1), it was decided that although a mili
tiaman who refused to obey the orders of the President calling him into the public
service was not, in the sense of the act of February 28, 1795, "employed in the serv
ice of the United States," so as to be subject to the Rules and Articles of War, yet that

5

Sec. 1642, R. S.

Militia, how apportioned. July 17, 1862, c.

201, s. 1, v. 12, p.

597.

Sec. 1643, R. S.

Insurrection against the Gov

United States.

25, s. 1, v. 12, p. 281.

the due course of justice under the same, it shall be lawful for the President, and it shall be his duty, to take such measures, by the employment of the militia or the land and naval forces of the United States, or of either, or by other means, as he may deem necessary, for the suppression of such insurrection, domestic violence, or combinations.' 1502. Whenever, by reason of unlawful obstructions, comernment of the binations, or assemblages of persons, or rebellion against July 29, 1861, c. the authority of the Government of the United States, it shall become impracticable, in the judgment of the President, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State or Territory, it shall be lawful for the President to call forth the militia of any or all the States, and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion, in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed.?

Sec. 5298, R.S.

Insurrection against a State.

Feb. 28, 1795, c. 36, s. 1, v. 1, p. 424;

v. 2, p. 443.

INSURRECTION AGAINST A STATE.

1503. In case of an insurrection in any State against the government thereof, it shall be lawful for the President, Mar. 3, 1807, c. 39, on application of the legislature of such State, or of the Sec. 5297, R. S. executive, when the legislature can not be convened, to call forth such number of the militia of any other State or States. which may be applied for, as he deems sufficient to sup press such insurrection; or, on like application, to employ. for the same purposes, such part of the land or naval forces of the United States as he deems necessary.3

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The power to enforce its laws and to execute its functions in all places does not derogate from the power of the State to execute its laws at the same time and in the same places. The one does not exclude the other except where both can not be exe cuted at the same time. In that case the words of the Constitution itself show which is to yield; "this Constitution and the laws of the United States which shall be made in pursuance thereof; * shall be the supreme law of the land." Although no State could establish and maintain a permanent military government, yet it may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The State must determine for itself what degre of force the crisis demands. (Luther v. Borden, 7 How.,1; see also 16 Opin. Att Gen., 162.) See also note to paragraph 1556, post.

2 The National Government has the right to use physical force in any part of the United States to compel obedience to its laws, and to carry into execution the powers conferred upon it by the Constitution. "We hold it to be an incontrovertible principl that the Government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it.' (Ex parte Siebold, 100 U. S., 371, 395; U. S. r. Neagle, 155 U.S., 1, 60; Logan v. U. S., 144 U. S., 263, 294.)

As a necessary incident of the power to declare and prosecute war, the Federal Government has a right to transport troops through and over the territory of ary State of the Union. (Crandall v. Nevada, 6 Wall., 35. See also 16 Opin. Att. Get 162; 17 ibid., 242, 333; 19 ibid., 293, and note to par. 1556, post.)

Under article 4, section 4, of the Constitution, the Army may be employed to protect a State from "invasion" or "domestic violence" only by order of the President. made "on application of the legislature, or of the executive when the legislature can not be convened." A military commander, of whatever rank or command, can have no authority, except by the order thus made of the President, to furnish troops to å

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