Nofire v. United States
| Decision Date | 04 January 1897 |
| Docket Number | No. 578,578 |
| Citation | 17 S.Ct. 212,164 U.S. 657,41 L.Ed. 588 |
| Parties | NOFIRE et al. v. UNITED STATES |
| Court | U.S. Supreme Court |
Asst. Atty. Gen. Whitney, for the United States.
Plaintiffs in error were indicted in the circuit court of the United States for the Western district of Arkansas for the murder of Fred Rutherford 'at the Cherokee Nation in the Indian country,' on December 15, 1895. They were tried in May, 1896, found guilty by the jury, and, on June 12th, the verdict having been sustained, they were sentenced to be hanged.
The principal question, and the only one we deem it neces- sary to notice, is as to the jurisdiction of the court. The defendants were full-blooded Cherokee Indians. The indictment charged that Rutherford was 'a white man and not an Indian,' but testimony was offered for the purpose of showing that, although a white man, he had been adopted into the Cherokee Nation, which, if proved, would oust the federal court of jurisdiction within the rule laid down in Alberty v. U. S., 162 U. S. 499, 16 Sup. Ct. 864. In that case it was held that the courts of the Nation have jurisdiction over offenses committed by one Indian upon the person of another, and this includes, by virtue of the statutes, both Indians by birth and Indians by adoption. The Cherokee Nation claimed jurisdiction over the defendants. This claim was denied by the circuit court, which held that the evidence of Rutherford's adoption by the Nation was not sufficient, and that therefore the United States court had jurisdiction of the offense. An amendment in 1866 to section 5 of article 3 of the Cherokee constitution gives the following definition of citizenship: 'All native-born Cherokees, all Indians, and whites legally members of the Nation by adoption, * * * and their descendants, who reside within the limits of the Cherokee Nation, shall be taken and be deemed to be citizens of the Cherokee Nation.' Laws Cherokee Nation, 1892, p. 33. The Cherokee statutes make it clear that all white men legally married to Cherokee women and residing within the Nation are adopted citizens. Laws Cherokee Nation, 1892, p. 329 et seq., §§ 659-663, 666, 667. Section 659 requires that, before such marriage shall be solemnized, the party shall obtain a license from one of the district clerks. Sections 660 and 661 provide that one applying for such license shall present to the clerk a certificate of good moral character, signed by at least 10 respectable citizens of the Cherokee Nation, and shall also take an oath of allegiance. On October 4, 1894, Rutherford was married to Mrs. Betsy Holt, a Cherokee woman. The marriage license, with the certificate of the minister of the performance of the ceremony, and the indorsement of the record of the certificate, is as follows:
'Marriage License.
'Cherokee Nation, Tahlequah District.
'To Any Person Legally Authorized—Greeting:
'You are hereby authorized to join in the holy bonds of matrimony and celebrate the rites and ceremonies of marriage between Mr. Fred Rutherford, a citizen of the United States, and Mis' Betsy Holt, a citizen of the Cherokee Nation, and you are required to return this license to me for record within thirty days from the celebration of such marriage, with a certificate of the same appended thereto and signed by you.
'Given under my hand and seal of office this the 28th day of August, 1894.
'[Seal of Tahlequah District, Cherokee Nation.]
R. M. Dennenberg,
'Deputy Clerk, Tahlequah District.
'This certifies that Mr. Fred Rutherford, of Tahlequah district, C. N., I. T., and Mrs. Betsy Holt, of Tahlequah Dist., Cherokee Nation, I. T., were by me united in the bonds of marriage at my home on the 4th day of October, in the year of our Lord eighteen hundred and ninety-four, conformable to the ordinance of God and the laws of the Cherokee Nation.
'Evans P. Robertson,
'Minister of the Gospel.
'S. E. Robertson,
'Witness Present at the Marriage.
'I hereby certify that the within certificate of marriage has this day been by me recorded on page 28, Record of Marriages, in the clerk's office in Tahlequah district, Cherokee Nation, this Feb. 4th, 1896.
'[Seal of the Tahlequah District, Cherokee Nation].
Arch Spears,
'Deputy Clerk, Tahlequah District, Cherokee Nation.'
The performance of the marriage ceremony was also proved by the minister, a regularly ordained Presbyterian preacher. T. W. Triplett was the clerk of the Tahlequah district at the date of this certificate. R. M. Dennenberg was his deputy but at the time of the issue of the license both the clerk and his deputy were absent, and the signature of the deputy was signed by Juhn C. Dennenberg, his son. The clerk, the deputy, and his son each testified that the latter was authorized to sign the name of the clerk or the deputy in the absence of either, and that the business of the office was largely transacted by this young man, although not a regularly appointed deputy. He made quarterly reports, fixed up records, and issued scrip, and his action in these respects was recognized by the clerk and the Nation as valid. No petition, as required by the statute, was found among the papers of the office, but...
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