Smith v. United States

• Decision Date: 03 January 1894
• Docket Number: No. 1,003,1,003
• Parties: SMITH v. UNITED STATES
• Court: U.S. Supreme Court

151 U.S. 50

14 S.Ct. 234

38 L.Ed. 67

SMITH

v UNITED STATES.

No. 1,003.

January 3, 1894.

Statement by Mr. Justice BROWN:

This was a writ of error to review the conviction of the plaintiff in error for the murder of one James Gentry, alleged to have been 'a white man, and not an Indian,' on August 1, 1883, in the Cherokee Nation, Indian Territory. The case was tried before the circuit court of the United States for the western district of Arkansas, at the May term of 1893, and the prisoner convicted, and sentenced to death. Thirty-four assignments of error were contained in the record, none of which were considered except the first and last, which raised the question of the jurisdiction of the court, arising from the fact that both the accused and the deceased were Indians.

A. H. Garland, for plaintiff in error.

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

[Argument of Counsel from pages 51-53 intentionally omitted] Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

This case, so far as we have found it necessary to consider it, raises but a single question, namely, whether, Smith being admitted to be a Cherokee Indian, born and raised in the Cherokee Nation, and a citizen of that nation, the undisputed testimony did not also show Gentry to have been an Indian.

If this were the case, then it is clear the court had no jurisdiction of the offense. By Rev. St. § 2145, (c. 4, tit. 28,) relating to the 'government of Indian country,' it is provided 'that except as to crimes the punishment of which is expressly provided for in this title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.' But by section 2146, as amended by the act of February 18, 1875, (18 Stat. 318,) '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, nor to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.' As we held in Re Mayfield, 141 U. S. 107, 11 Sup. Ct. 939, there is nothing in the treaty of July 19, 1866, between the United States and the Cherokee Nation, (14 Stat. 799,) which renders this statute inapplicable, or indicates that the circuit courts of the United States have jurisdiction of crimes committed by one Indian against the person or property of another.

Upon this point a number of witnesses were sworn, who all stated that Gentry claimed to be a Cherokee Indian, and looked like one, having the dark hair, eyes, and complexion of an Indian, and that he was generally recognized as one. Kajo Gentry, his reputed father, appears to have been either of Cherokee blood or mixed Creek and Cherokee. He also was recognized as an Indian, and appears to have been enrolled and participated in the payment of 'bread money' to the Cherokees.

The only testimony to the contrary tended to show that, in 1883, Gentry was not permitted to vote at an election held in the Cherokee Nation, but it also appeared that it was because he had not been in the district long enough. To entitle him to vote at an election, he must not only have been a citizen of the Cherokee Nation, but must have resided in the particular district where he offered to vote six months prior thereto. There was also some testimony tending to show that Gentry had lived for...