US SUPREME COURT DECISIONS

On the trial of a Choctaw Indian for the murder of a negro at the Choctaw Nation, in the Indian Country, the status of the deceased is a question of fact, to be determined by the evidence, and the burden of proof is on the government to sustain the jurisdiction of the court by evidence. statements alleged to have been made by the negro in his life time that he

did not belong to the Indian Country are not admissible for that purpose.

Defendant was indicted in the Circuit Court of the United States for the Western District of Arkansas, February 15, 1895, for the murder at the Choctaw Nation, in the Indian Country, of one Levy Kemp, who was alleged in the indictment to have been "a negro, and not an Indian." Having been tried and convicted, he was sentenced to death. He then sued out a writ of error from this Court.

It was proven at the trial that defendant was a Choctaw Indian, and that Kemp was, by blood, a negro. The crime was alleged to have been committed in the fall of 1894.

The Indian tribes residing within the territorial limits of the United States are subject to their authority, and, where the country occupied by them is not within the limits of any one of the states, Congress may, by law, punish any offense there committed. See In re Mayfield, 141 U.S. 106, 141 U. S. 112, and cases there cited. By section 8 of article VIII of the Treaty between the Choctaw and Chickasaw Indians, concluded April 28, 1866, 14 Stat. 769, 773, it was agreed by those Indians that a court or courts might be established in the Indian Territory, with such jurisdiction and organization as Congress might prescribe, provided that the same should not interfere with the local judiciary of said Nations.

The jurisdiction of the Circuit Court of the United States for the Western District of Arkansas was made to extend, by section 533, Revised Statutes, to "the county lying west of Missouri and Arkansas known as the

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Page 163 U. S. 613

Subsequently, by the Act of Congress of January 6, 1883 (22 Stat. 400, c. 13, section 2), and the Act of March 1, 1889, 25 Stat. 786, c. 333, section 17, certain parts of the territory were annexed, respectively, to the District of Kansas and the Eastern District of Texas, leaving that part of the territory which includes the portion of the Choctaw Nation in which this case arose to remain within the Western District of Arkansas.

Section 2145, Revised Statutes, provides that except as regards 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 it is provided that "the preceding section shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian."

And by the Act of May 2, 1890,

"to provide a temporary government for the Territory of Oklahoma, to enlarge the jurisdiction of the United States court in the Indian Territory, and for other purposes"

it is provided

"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,"

etc.

By the third article of the above-mentioned treaty with the Choctaws and Chickasaws, they, in consideration of the sum of $300,000, ceded to the United States certain territory, with the provision that the said sum should be invested and held in trust for the said Nations by the United States at interest until the Legislatures of the Choctaw and Chickasaw Nations, respectively, should have made such laws, rules, and regulations as might be necessary to give all persons of African descent, resident in the said Nations at the date of the Treaty of Fort Smith, and their descendants, held in slavery among the said Nations previous to the date of the treaty, all the rights, privileges, and immunities, including the right of suffrage, of citizens of said Nations, etc. The second article provided that slavery in the said two nations should be at once abolished.

Previous to the year 1879, the Choctaw Nation had manifested chanrobles.com-red

Page 163 U. S. 614

a willingness to adopt its freedmen, but the question seems to have arisen whether the joint or concurrent action of both Nations was not required to make the adoption by either Nation valid. It is understood that the Chickasaws, for some reason, refused to agree to any plan of adoption into their Nation of the freedmen belonging therein, and that therefore the Choctaw National Council, on November 2, 1880, sent a memorial to Congress expressing their willingness to accept their freedmen as citizens and asking for legislation that would enable them to do so. The only result of this memorial seems to have been the introduction of a Senate bill, which was never reported. Two years later, however, in 1882, a clause was inserted in the Indian appropriation bill, Act of May 17 of that year, c. 163, 22 Stat. 68, 72, providing for the appropriation of the sum of $10,000 out of the $300,000 reserved by the third article of the treaty above referred to for the purpose of educating freedmen of the Choctaw and Chickasaw Nations, to be expended in the manner directed by the act, and providing further that either of said Nations might, before the expenditure of the money so appropriated, adopt and provide for the freedmen of the said Nations, respectively, and that in such case its proportion of the money appropriated should be paid over to such Nation. Under this provision, the Choctaw Nation adopted its freedmen as citizens by an Act of its legislature of May 21, 1883. This action of the Choctaw Nation is referred to in the Indian Appropriation Act of March 3, 1885, 23 Stat. 362, 366.