Opinion of the Court-Leonard, J. IV. The courts of the United States cannot punish the crimes of indians committed against other indians. (Intercourse act of 1834, sec. 25; Rev. Stat. secs. 2145, 2146.) V. The rights of indians to self-government are not impaired by the statutes relating to territories. (Rev. Stat. sec. 1839.) By the Court, LEONARD, J.: Relator seeks by mandamus to compel respondent to proceed to the trial of a Shoshone indian named Spanish Jim, for the alleged murder of an indian girl in the town of Belmont, in Nye county, in March, 1883. Respondent admits that he is the duly elected and qualified judge of the fifth judicial district court; that said alleged crime was committed within the jurisdiction of said court, if at all; that the said Spanish Jim has been indicted by a lawful grand jury of Nye county, charged with the crime of murder, and that such indictment is now of record in the district court of the fifth judicial district, in and for Nye county. Respondent refuses to accept the plea of said Spanish Jim, or to try said cause, because the defendant is a Shoshone indian, born in subjection and obedience to his own tribal laws, and at the time the alleged offense was committed was living with the Shoshone tribe or nation, in subjection to, and recognizing the authority of, the chiefs and the laws of said tribe; and the indian girl alleged to have been killed was a Shoshone indian, born in subjection and obedience to said tribal laws, and was, at the time of the alleged killing, living with said tribe, in subjection to, and recognizing the authority of, the chiefs and laws. thereof; that by reason of the foregoing facts, the fifth judicial district court, or judge thereof, has no jurisdiction of crimes committed by one indian against another when both are members of au organized tribe having laws for the government of their own internal affairs. Able arguments in support of relator's views of the law have been filed by the district attorney of Nye county, the attorney general of the state, and the United States district attorney for Nevada. Opinion of the Court-Leonard, J. We have carefully examined all the authorities cited, which are numerous, as well as all others which an extended research has disclosed, and will now express our views upon the question presented. Let it be remembered that what follows is intended to apply to the case before us, where one indian belonging to a tribe which is recognized and treated with as such by the government, having its chief and tribal laws, is accused of killing another of the same tribe; and let it be borne in mind, especially, that what we say does not refer to a case where one indian injures the person or property of another not an indian, or vice versa. It does not refer to a case where an indian leaves his tribe and joins the whites. We entertain no doubt that the state courts, if any, have exclusive jurisdiction. In 1864 congress passed an act authorizing the inhabitants of that portion of the territory of Nevada described therein, to form for themselves, out of said territory, a state government, and providing that said state, when formed, should be admitted into the Union "upon an equal footing with the original states in all respects whatsoever." (Enabling act of congress, 13 Stat. at Large, 30.) The state was formed in pursuance of the provisions of the enabling act upon an equal footing with the original states. Upon these facts, the United States courts, at least, have not jurisdiction. (U. S. v. Ward, McCahon 199; U. S. v. Ward, Woolw. 21; U. S. v. Yellow Sun, 1 Dill. 272; U. S. v. Cisna, 1 McLean 254; U. S. v. Stahl, 1 Woolw. 192; U. S. v. Martin, 8 Saw. 473; U. S. v. Bridleman, 7 Saw. 243; U. S. v. Me Bratney, 104 U. S. 621; U. S. v. Leathers, 6 Saw. 17.) Nor have we any doubt, should such a course be deemed advisable by the legislature, that the state courts may be given jurisdiction over crimes committed by one indian against the person or property of another indian, by extending the criminal laws over them. (Caldwell v. State, 1 Stew. & P. (Ala.) 327; State v. Foreman, 8 Yerg. 256; U. S. v. Yellow Sun, supra; State v. Tassels, Dudley, (Ga.) 229.) This, then, is the principal question presented for our con Opinion of the Court-Leonard, J. sideration: Do our general laws upon crimes and their punishments apply, or were they intended to apply, to indiaus in the situation of the accused; or is it true that indians so situated are not amenable to those laws until they are made so by an affirmative act of the state legislature? Although a state has the right and power to take jurisdiction in a given case, it cannot be exercised by courts, except in pursuance of a provision of the constitution that is self-acting, or an act passed by the legislature. The duty of courts is to expound and enforce laws. They cannot make them. Is there any law of this state to which the accused is amenable for the offense charged? There is no statute extending the criminal laws over the indian tribes, or the individuals thereof. The statute under which the indictment was found is the general act concerning crimes and punishments, (Stat. 1861, 58,) which is as follows: "Murder is the unlawful killing of a human being with malice aforethought, either express or implied. Every person convicted of murder of the first degree shall suffer death, and every person convicted of murder of the second degree shall suffer imprisonment in the state prison for a term not less than ten years and which may be extended for life. An indian is a human being and a person. The indian girl alleged to have been murdered was a human being, and the accused is a person. If we stick to the letter of the law we must find that the fifth judicial district court has jurisdiction. Our duty, however, is to ascertain the intention of the legislature in passing this law. In doing this we must follow certain well settled rules of construction that are peculiarly applicable to the present case. "The court should put itself in the position of the legislature-stand, in contemplating the statute, where the makers stood-the better to discover the reason and scope of the provision. They who voted for the measure must have had in mind a meaning for the enacted words; and the meaning thus perceived must be given them by the court. If the statute is old, or if it is modern, the court should transport itself back to the time when it was framed, consider the condition of Opinion of the Court-Leonard, J. things then existing, and give it the meaning which the language, as then used, and the other considerations, require. The court knowing the present law, knows also its history and the prior law. Such prior law, the legislature, being presumed to know it, must have had in mind in enacting the statute; therefore, in the construction, the court should take it into account. * * *They do not close their eyes to what they know of the history of the country and of the law, of the condition of the law at the particular time, of the public necessity felt, and other like things. * * * (Bish. Writ. Laws, sec. 75 et seq.) The exercise of even doubtful power will not be attributed to the legis lature; therefore, construction will lean against it. (Id. 82.) The courts will presume the legislature intended its acts to be reasonable, constitutional and just; and when possible, consistently with any fair rendering of the words, will so construe them as not to make them otherwise. But this rule will not be carried to the extent of giving the enactment a meaning plainly repugnant to its terms. (Id. 90.) The last sentence quoted is explained by the author under section one hundred and forty-five, where he says: "Interpretation cannot, without sufficient indication in the words employed, aided by such surroundings as the law permits the court to look into, import words into the statute." Says the Court in U. S. v. Kirby, 7 Wall. 482: “All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over the letter. The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law, which enacted that whoever drew blood in the streets should be punished with the utmost severity,' did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense Opinion of the Court-Leonard, J. accepts the ruling cited by Plowden, that the statute of 1 Edward II., which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire, for he is not to be hanged because he would not stay to be burnt.'' Tested by the above and other well settled rules of construction, let us endeavor to ascertain whether in the passage of the general criminal statute under which the accused was indicted, the territorial legislature intended to include within its scope indians in his situation. If we find that such intention did not exist, then it will not be necessary to consider the question of power on the part of the legislature to do so, except so far as an examination of the latter question may assist us in arriving at a proper solution of the former. If the legislature did not intend to legislate concerning acts committed by one tribal indian against another, then the courts of this state have not jurisdiction of the present case, unless by the constitution, or some subsequent legislation, jurisdiction has been extended so as to include it. In other words, unaffected by any valid subsequent proceeding giving jurisdiction if the legislature of 1861 did not so intend, the statute must be construed as though indians like the accused had been excepted in terms. The indian question was deemed of such importance by congress, when Nevada was admitted as a territory in March, 1861, that in the organic act it was provided, * * that nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the indians in said territory, so long as such rights shall remain unextinguished by treaty between the United States and such indians; * * * or to affect the authority of the government of the United States to make any regulations respecting such indians, their lands, property or other rights, by treaty, law or otherwise, which it would have been competent for the government to make if this act had never been passed." It also provided that the governor of the territory should perform the duties and receive the emoluments of the superintendent of indian 66* |