Talton v. Mayes
| Decision Date | 18 May 1896 |
| Docket Number | No. 227,227 |
| Parties | TALTON v. MAYES |
| Court | U.S. Supreme Court |
Habeas corpus proceeding by Bob Talton against Wash. Mayes, high sheriff of the Cherokee Nation. From a judgment discharging the writ and remanding petitioner to the custody of the sheriff, petitioner appeals. Affirmed.
On February 15, 1893, a petition for habeas corpus was filed in the district court of the United States for the Western district of Arkansas, setting forth that the plaintiff therein (who is the appellant here) was, on the 31st day of December 1892, convicted, on a charge of murder, in a special supreme court of the Cherokee Nation, Cooweeskoowee district, and sentenced to be hanged on February 28, 1893, and that petitioner was then held, awaiting the time of execution, in the national jail at Tahlequah, Ind. T., by Wash. Mayes, high sheriff of the Cherokee Nation. It was further alleged that the petitioner was deprived of his liberty without due process of law; that he was in confinement in contravention to the constitution and laws of the United States, and also in violation of the constitution and laws of the Cherokee Nation. These contentions rested upon the averment that the indictment under which he had been tried and convicted was void because returned by a body consisting of 5 grand jurors, which was not only an insufficient number to constitute a grand jury under the constitution and laws of the United States, but also was wholly inadequate to compose such jury under the laws of the Cherokee Nation, which, it was alleged, provided for a grand jury of 13, of which number a majority was necessary to find an indictment. The petitioner, moreover, averred that he had not been tried by a fair and impartial jury, and that many gross irregularities and errors to his prejudice had been committed on the trial. The district judge issued the writ, which was duly served upon the high sheriff, who produced the body of the petitioner, and made reture setting up the conviction and sentence as justifying the detention of the prisoner. Incorporated in the return was a transcript of the proceedings in the Cherokee court had upon the indictment and trial of the petitioner. In the copy of the indictment contained in the original transcript, filed in this court, it was recited that the indictment was found by the grand jury on the 1st day of December, 1892, while the offense therein stated was alleged to have been committed 'on or about the 3d day of December, 1892.' The evidence contained in the transcript, however, showed that the offense was committed on November 3, 1892, and in a supplement to the transcript, filed in this court, it appears that said date was given in the indictment. No motion or demurrer or other attack upon the sufficiency of the indictment was made upon the trial in the Cherokee court based upon the ground that the offense was stated in the indictment to have been committed on a date subsequent to the finding of the indictment, nor is there any specification of error of that character contained in the petition for the allowance of the writ of habeas corpus. After hearing, the district judge discharged the writ and remanded the petitioner to the custody of the sheriff, and from this judgment the appeal now under consideration was llowed.
L. D. Yarrell, for appellant.
R. C. Garland, for appellee.
Mr. Justice WHITE, after stating the case, delivered the opinion of the court.
Prior to May, 1892, a law enacted by the legislature of the Cherokee Nation made it the duty of the judges of the circuit and district courts of the Nation, 14 days before the commencement of the first regular term of said courts, to furnish to the sheriff a list of the names of 5 persons, who should be summoned by the sheriff to act as grand jurors for that district during the year. The first regular term of the courts named commenced on the second Monday in May. On November 28, 1892, a law was enacted providing for the summoning and impaneling of a grand jury of 13, the names of the persons to compose such jury to be furnished to the sheriff, as under the previous law, 14 days before the commencement of the regular term of the circuit and district courts. There was no express repeal of the provisions of the prior law. Under the terms of the act of November 28, 1892, a grand jury could not have been impaneled before the term beginning on the second Monday of May, 1893. The indictment in question was returned in December, 1892, by a grand jury consisting of five persons, which grand jury had been impaneled under the prior law, to serve during the year 1892.
The right of the appellant to the relief which he seeks must exist, if at all, by virtue of section 753 of the Revised Statutes of the United States, which is as follows:
'The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process or decree of a court or judge thereof; or is in custody in violation of the constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations; or unless it is necessary to bring the prisoner into court to testify.'
Appellant and the person he was charged with having murdered were both Cherokee Indians, and the crime was committed within the Cherokee territory.
To bring himself within the statute, the appellant asserts (1) that the grand jury, consisting only of five persons, was not a grand jury within the contemplation of the fifth amendment to the constitution, which it is asserted is operative upon the Cherokee Nation in the exercise of its legislative authority as to purely local matters; (2) that the indictment by a grand jury thus constituted was not due process of law within the intendment of the fourteenth amendment; (3) even if the law of the Cherokee Nation providing for a grand jury of five was valid under the constitution of the United States, such law had been repealed, and was not, therefore, in existence at the time the indictment was found. A decision as to the merits of these contentions involves a consideration of the relation of the Cherokee Nation to the United States, and of the operation of the constitutional provisions relied on upon the purely local legislation of that Nation.
By treaties and statutes of the United States the right of the Cherokee Nation to exist as an autonomous body, subject always to the paramount authority of the United States, has been recognized. And from this fact there has consequently been conceded to exist in that Nation power to make laws defining offenses and providing for the trial and punishment of those who violate them when the offenses are committed by one member of the tribe against another one of its members within the territory of the Nation.
Thus, by the fifth article of the treaty of 1835 (7 Stat. 481), it is provided:
This guaranty of self-government was reaffirmed in the treaty of 1866 (14 Stat. 803), the thirteenth article of which reads as follows:
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