Alberty v. United States, 853

• Decision Date: 20 April 1896
• Docket Number: No. 853,853
• Citation: 40 L.Ed. 1051,162 U.S. 499,16 S.Ct. 864
• Parties: ALBERTY v. UNITED STATES
• Court: U.S. Supreme Court

162 U.S. 499

16 S.Ct. 864

40 L.Ed. 1051

ALBERTY

v UNITED STATES.

No. 853.

April 20, 1896.

Defendant, a Cherokee negro, who was known both by his father's name of Burns, and that of his former master, Alberty, was convicted of the murder of one Phil Duncan, at the Cherokee Nation, in the Indian Territory. The indictment alleged the crime to have been committed May 15, 1879, but it appeared by the evidence to have been committed in 1880.

Upon judgment of death being pronounced, defendant sued out a writ of error from this court, assigning a want of jurisdiction in the court below, and various errors in the charge to the jury connected with the law of homicide, and the inference to be drawn from the flight of the accused.

Wm. M. Cravens, for plaintiff in err r.

Asst. Atty. Gen. Whitney, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

1. The question of jurisdiction in this case demands a primary consideration. Although the prisoner, Alberty, was not a native Indian, but a negro born in slavery, it was not disputed that he became a citizen of the Cherokee Nation, under the ninth article of the treaty of 1866 (14 Stat. 799, 801), by which the Cherokee Nation agreed to abolish slavery, and further agreed 'that all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the Rebellion and are now residents therein or who may return within six months, and their descendants, shall have all the rights of native Cherokees.' While this article of the treaty gave him the rights of a native Cherokee, it did not, standing alone, make him an Indian, within the meaning of Rev. St. § 2146, or absolve him from responsibility to the criminal laws of the United States, as was held in U. S. v. Rodgers, 4 How. 567-573, and Westmoreland v. U. S., 155 U. S. 545, 15 Sup. Ct. 243.

Duncan, the deceased, was the illegitimate child of a Choctaw Indian, by a colored woman, who was not his wife, but a slave in the Cherokee Nation. As his mother was a negro slave, under the rule, 'Partus sequitur ventrem,' he must be treated as a negro by birth, and not as a Choctaw Indian. There is an additional reason for this in the fact that he was an illegitimate child, and took the status of his mother. Williamson v. Daniel, 12 Wheat. 568; Fowler v. Merrill, 11 How. 375.

He came, however, to the Cherokee Nation when he was about 17 years of age, and married a freed woman, and a citizen of that Nation. It would seem, however, from such information as we have been able to obtain of the Cherokee laws, that such marriage would not confer upon him the rights and privileges of Cherokee citizenship, beyond that of residing and holding personal property in the Nation; that the courts of the Nation do not claim jurisdiction over such persons, either in criminal or civil suits, and they are not permitted to vote at any elections.

For the purposes of jurisdiction, then, Alberty must be treated as a member of the Cherokee Nation, but not an Indian; and Duncan as a colored citizen of the United States.

By Rev. St. § 2145, except as to certain crimes, 'the general laws of the United States as to the punishment of crimes committed within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country'; and, by section 2146, 'the preceding section shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe; or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.' Obviously, this case is not within the first class, because the crime was not committed by one Indian against the person of another Indiana; nor within the second class, because there was no evidence that Alberty had been punished by the local law of the tribe; and the only remaining question is whether, by treaty stipulations, the exclusive jurisdiction over this offense has been secured to the Cherokee Tribe.

By article 13 of the Cherokee treaty of July 19, 1866 (14 Stat. 779-803), the establishment of a court of the United States in the Cherokee territory is provided for, 'with such jurisdiction and organized in such manner as may be prescribed by law: provided, that the judicial tribunals of the Nation shall be allowed to retain exclusive jurisdiction in all civil and criminal cases arising within their country in which members of the Nation, by nativity or adoption, hall be the only parties, or where the cause of action shall arise in the Cherokee Nation, except as otherwise provided in this treaty.' It is admitted that the present case is not within the last exception.

By the act of May 2, 1890, to provide a temporary government for the territory of Oklahoma, and to enlarge the jurisdiction of the United States court in the Indian Territory (26 Stat. 81), it is provided (section 30) 'that the judicial tribunals of the Indian Nations shall retain exclusive jurisdiction in all civil and criminal cases arising in the country in which members of the Nation, by nativity or by adoption, shall be the only parties'; and, by section 31, that 'nothing in this act shall be so construed as to deprive any of the courts of the civilized Nations of exclusive jurisdiction over all cases arising wherein members of said Nations, whether by treaty, blood or adoption, are the sole parties; nor so as to interfere with the right and power of said civilized Nations to punish said parties for violation of the statutes and laws enacted by their national councils, where such laws are not contrary to the treaties and laws of the United States.'

It will be observed that while this act follows the treaty so far as recognizing the jurisdiction of the Cherokee Nation as to all cases arising in the country in which members of the Nation, by nativity or by adoption, are the sole or only parties, it omits that portion of the thirteenth article of the treaty wherein is reserved to the judicial tribunals of the Nation exclusive jurisdiction 'where the cause of action shall arise in the Cherokee Nation,' and to that extent apparently supersedes the treaty.

The real question as respects the jurisdiction in this case is as to the meaning of the words 'sole' or 'only parties.' These words are obviously susceptible of two interpretations. They may mean a class of actions as to which there is but one party; but as these actions, if they exist at all, are very rare, it can hardly be supposed that congress intended to legislate with respect to them, to the exclusion of the much more numerous actions to which there are two parties. They may mean actions to which members of the Nations are the sole or only parties, to the exclusion of white men, or persons other than members of the Nation; and as respects civil cases, at least, this seems the more probable construction.

But the difficulty is with regard to criminal cases, to which the defendant may be said to be the only party, and, if not, as to who is the other party, the sovereignty in whose name the prosecution is conducted (in this case, the United States), or the prosecuting witness, or, in a homicide case, the person who was killed. Some light is thrown upon this by the seventh article of the same treaty, wherein a special provision is made for the jurisdiction of the United States court to be created in the Indian Territory; and, until such court was created therein, the United States district court, nearest to the Cherokee Nation, was given 'exclusive original jurisdiction of all cases, civil and criminal, wherein an inhabitant of the district hereinbefore described [meaning the Canadian district of the Cherokee Nation] shall be a party, and where an inhabitant outside of said district, in the Cherokee Nation, shall be the other party, as plaintiff or defendant in a civil cause, or shall be defendant or prosecutor in a criminal case.' It is true that the homicide in this case was not committed within the Canadian district, and, therefore, that this seventh article has no direct application; but it has an indirect bearing upon the thirteenth section, as indicating an intention on the part of congress to treat the prosecutor in a criminal case as the other party to the cause, and, so long as the party injured is alive, it may be proper to speak of him as such; and this we understand to have been the construction generally given. While it is impossible to speak of the deceased in a murder ase as a party, in any proper sense, to a criminal prosecution against his assailant, it can scarcely have been the intention of congress to vest jurisdiction in the federal courts of cases in which the accused, an Indian, was guilty of a felonious assault upon a white man, not resulting in death, and deny it in case of a fatal termination, upon the ground that the accused is the only party to the cause.

In construing these statutes in their application to criminal cases, and in connection with the treaty, there are but three alternative courses:

(1) To treat the defendant as the sole party, in which case the Indian courts would have jurisdiction, whether the victim of the crime were an Indian or a white man. In the Case of Mayfield, 141 U. S. 107, 11 Sup. Ct. 939, which was a case of adultery, in which the name of the prosecuting witness did not appear, we held that as there was no adverse party, the woman being a consenting party, the defendant was to be regarded as the sole party to the proceeding.

(2) To treat the United States as the other party to the cause, in which case the federal courts would have jurisdiction of all criminal cases, except as they might be limited by...