Arkansas intelligencer., 1846-05-23

William S. Roger,
serGtesfe Of srsisn in opinion b,te,.. "a, ySr,,
Se 1,rern Court Of the United Staiss for tie D,
Court 'e'ea 'ne opinion OF the
Of The United State, for the Di.,rc, or o'eI'
ger a certhcatc OF division Of opinion bc,wesn a..
Justices Of that Court. '''"s'" 'he
~ appears by the record that Will, n 9 Roo.,.
70, n' was indicted in the above mentioned Court.
'or murder, cha rged TO have been Committed unoa
ceIain Jacob Nicholson. also a white man. IN a..
now occupied and allotted by the law. Of m.
o"ss me BGs :; me
in which he AYERS, that having been A cti,sn NJ tb
United States, he, long before the offence CHARGED i.
10 nave been committed voluntarily removed
10 the cherokee country, and made il his home with
out any intention Of returning to the United
that he Incorporated himself with the said tribe of
dlans as one OF them, and so treated RECOGNIZED
aooP'ed by the said tribe and the proper
thereoi and exercised all the rights Of Cherokee m
dan IN the said tribe, and was domciled in their
country; that by these acts he became citizen Of IN.
Cherokee nation and md still is Cherokee Indian
within The true intent aud meaning Of the act Of Con-
gress IN that behalf made and provided that the said
Jacob Nicholson had in like manner become
ind,an, and was such at the time of the commission
o the said supposed crime. within the true intent
ng Of the Act Of Congress in tha, behalf made
and provided and that therefor the Court had M 4,
rsdiction to cause the Defendant make further or
other answer to the said indictment.
This 10 the substance of the plea and 10 this pIea
The Attorney for the United States demurred setting
down The causes Of demurrer which appear the fore
gong statement Of the case
Several questions been popounded by tbe Coort
which do not arise on the plea Of the accused and
some OF them we think cannot be material in the de-
clon Of the case and need therefore be answered
by this Court.
The country in which the crime is charged 10 have
been committed, part Of the territory Of the United
States, and not within the limits Of any partic uar
Siate II IS true that il is occupied by the tribe Of
Cherokee Indians; but has been assigned To them by
the United States. as place Of domic for the tribe
and they hold and occupy il, with the assent Of the
United States and under their authority. The native
tribes who were found this continent at the time Of
It's discovery have never been acknowledged treated
as independent nations by the European vernments
nor regarded as the Of the territories they re-
'pccively occupied. On the contrary, the whole con-
tinent was divided and parcecd out and gran ted by
the Governments of Europe. as il it had been vacant
and unoccuPied land, and the Indians cont nuaIIy held
TO be and treated subject to their dominion and
control.
1t would be useless at this day inquire whether
Tue principle thus adopted s just or not TO speak
OF the manner in which the power claimed was in mi,
ny instances exercised 1t is due the United State,
however to say, that while they have maintained the
esiabied Gy 9TH oihsr nations. and insisted upon the
same powers md dominion within their territory; vet
from the very moment the General Government came
into existence to this time has exercised its powers
over this in the spirit OF humanity and
Justice, and has endea vored by every means in its
power TO cnlightcn their minds and increase their
comforts, and to them if possible from the
quences of their vices: but had il been otherwise
and were the right and the proprcy OF exercising this
power open to question. yet 1t Is question for
the law king and political department Of the Gov.
ernment, and not for the judicial II is our duty TO
expound and execute the Law we find it, and think
it firmly and clearly established to admit Of dispute
III
limits of the United States subject to their author
ty; and where the country occupied by them is not
within the limits Of Of the States, Congress may
by law punish any offence committed there, matter
whether the offender be white man or an Indian:
conseq uently the fact that Rogers had become mem
bcr OF The tribe Of Chcrokees is no objection to the
jurisdiction of the Court and no defence 10 the indct
mcnt provided the case embraced by The provisions
OF the Act Of Congress OF the 3Oth OF June 1884 ent
tied, "An Act TO regulate trade and intercourse with
the Indian tribes and preserve the peace Of the from
tiers By the 25th section Of that Act. the prisoner
if found guilty 10 undoubtedly liable to punshmc mt,
unless he within the exception contained in the
proyso; which is. that the provisions OF that section,
.shalI not extend to crimes committed by Indian
against the person property OF another ndian and
think it very clear, that white man who at mature
age adopted in Indian tribe, does not hereby he.
come Indian aud not intended to be embraced
in the exception above mentioned. lie may by such
adoption become entitled 10 certain privileges in the
tribe, and make himself amenabe to their laws ana
usagcs, yet he is not Indian and the exception Is
confined TO those who by the usages and customs OF
the Indians are regar ded belonging to their race
1t dues not speak of members Of tribe but OF the race
generally Of the family Of Indians, and intended TO
leave them, both their own tribe an6 other
tribes also to be governed by Indian usages and Gus
toms: would perhaps be found difficult 10 preserve
peace among lhsm, If white men OF every description
might at pleasure settle among them and BY procuring
all adoption by one OF the tribes, throw off all resPns'
bil,y to the laws of the United States and claim to be
treated by the Government and its officers a. IL they
" ere Indians born IN can hardly DO supposed that
Congress intended to grant such exemptions. especially
10 men Of that class who most likely TO become
Indians BY adoption, and who will generally be found
the most mschieyous aud inhabitants OF Inc
indian country
II may have been supposed that the Treaty Of New
Ecota ma de with the Cherokecs in 1885, ought TO nave
some influence upon the construction Of this Act
Congress- end extend the exception to all the agopeu
members of the tribes but there Is nothing in the Irca
in conflict with the we have given 10 tne
law The ffth article Of the Treaty stpulates, II
true that the United States will secure to the Cherokee
nation Tho ,iyht of their National Councils to MIKE
and carry ;nio effect such laws they may deem ne
cessarv or The government and protection oil the per-
.ops and oroperty within their own country, oeiongg
IN ,hsir peope. or such persons as have eonnec.ca
| tben,soIves with them; but proyso Immediately io'
lows tb,t sucb laws shall not be inconsistent WIN 'e
| C,;,m,ion oG the United States, and such ACT OF
con~rss. as had been or might be passed regpiaths
~. - nd intercourse with the Indians Nc" the Acs
os Conarc., under which the prisoner Is ndietea, nsa
80 ns..ed but a few months before and tnis P'o's'
IN The Treaty shews that the shpuiat'on a.o'G '"o