This is a prosecution for adultery committed on one of the Sioux Indian Reservations in the state of South Dakota. Both participants in the act were Indians belonging to that reservation. The statute upon which the prosecution is founded was originally adopted as part of the act of March 3, 1887 (chap. 397, 24 Stat. at L. 635), and is now § 316 of the Penal Code [35 Stat. at L. 1149, chap. 321, Comp. Stat. 1913, § 10,489]. The section makes no mention of Indians, and the question for decision is whether it embraces adultery committed by one Indian with another Indian, on an Indian reservation. The district court answered the question in the negative.
At an early period it became the settled policy of Congress to permit the personal and domestic relations of the Indians with each other to be regulated, and offenses by one Indian against the person or property of another Indian to be dealt with, according to their tribal customs and laws. Thus the Indian intercourse acts of 1796 (chap. 30, 1 Stat. at L. 469), and 1802 (chap. 13, 2 Stat. at L. 139), provided for the punishment of various offenses by white persons against Indians and by Indians against white persons, but left untouched those by Indians against each other; and the act of 1834 (chap. 161, 4 Stat. at L. 729, Comp. Stat. 1913, § 4148), while providing that 'so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States shall be in force in the Indian country,' qualified its action by saying, 'the same shall not extend to crimes committed by one Indian against the person or property of another Indian.' That provision with its qualification was later carried into the Revised Statutes as §§ 2145 and 2146, Comp. Stat. 1913, §§ 4148, 4149. This was the situation when this court, in Ex parte Crow Dog (Ex parte Kang-Gi-Shun-Ca) 109 U.S. 556, 27 L. ed. 1030, 3 Sup. Ct. Rep. 396, held that the murder of an Indian by another Indian, on an Indian reservation, was not punishable under the laws of the United States, and could be dealt with only according to the laws of the tribe. The first change came when, by the act of March 3, 1885 (chap. 341, § 9, 23 Stat. at L. 385, Comp. Stat. 1913, § 10,502), now § 328 of the Penal Code, Congress provided for the punishment of murder, manslaughter, rape, assault with intent to kill, assault with a dangerous weapon, arson, burglary, and larceny, when committed by one Indian against the person or property of another Indian. In other respects the policy remained as before. After South Dakota became a state, Congress, acting upon a partial cession of jurisdiction by that state (chap. 106, Laws 1901), provided by the act of February 2, 1903, (chap. 351 32 Stat. at L. 793, Comp. Stat. 1913, § 10,503), now § 329 of the Penal Code, for the punishment of the particular offenses named in the act of 1885 when committed on the Indian reservations in that state, even though committed by others than Indians; but this is without bearing here, for it left the situation in respect of offenses by one Indian against the person or property of another Indian as it was after the act of 1885.
We have now referred to all the statutes. There is none dealing with bigamy, polygamy, incest, adultery, or fornication, which in terms refers to Indians, these matters always having been left to the tribal customs and laws, and to such preventive and corrective measures as reasonably could be taken by the administrative officers.