Arizona republican., 1909-06-25
A WITHDRAWAL OF APPEAL
From the Judgment of the
Arizona Supreme Court
Last Winter Holding In
dians Were Unlawfully
Detained at Ft. Huachuca

An order was received at the office
of the clerk of the supreme court
yesterday from Chief Justice Kent at
Tucson, granting the motion of United
States Attorney Alexander To with
draw the notice of appeal of the gov
ernment in the habeas corpus case of
five Navajo Indians who have been
detained as prisoners at Fort Huachu-
ca. The Indians are, By-a-lil-le, Pol
ly, Sisco, Bis-clae, Tha- nah
ki-be-ga and Cliz-e- clOn be-ga. The
motion to withdraw was made under
the direction OF Attorney General
Wickersham.
These Indians were implicated in an
uprising on the Navajo reservation at
Aneth about two years ago. They
were ugly at first rather than vio-
lent and the agent finding that he was
losing control of them informed the
interior department of the seriousness
of the situation. At the request Of
the secretary of the interior the secre-
tary of war directed a troop to be
sent from the nearest post to restore
order The Indians headed by By-a-
lille resisted and two Of them were
killed and the horse of a trooper was
shot.
The Indians then surrendered and
the military took charge of them and
without any process took them to Fort
Huachuca where under an order Of
the war department they were to be
confined at hard labor for an indef-
inite period.
Last fall application was made to
Judge Doan of the second judicial
district for a writ of habeas corpus
on the ground that the Indians were
being unlawfully detained. This pro-
ceeding is said to have been institut-
ed at the instance of the Indian Rights
association. after a hearing, the writ
was dismissed and an appeal was
taken to the supreme court which re-
versed Judge Doan and ordered the
Indians discharged. The government
gave notice of appeal, the notice now
having been withdrawn.
The opinion reversing Judge Doan
was handed down by Associate Jus
tice Nave and was concurred in by
Chief Justice Pent and Associate
Justices Sloan and Campbell.
Among the contentious Of the gov
ernment was this, that section 2149,
r. :. L. S. gives the department pow
er to remove Indians from a reserva-
tion when their presence there is be-
lieved TO be inimical Judge Nave
held that while the department had
the power of removal under this
statute there was a difference be
tween removal" and detention at
hard labor.
Another theory of the government
was that the Indians were prisoners
of war. Judge Nave disposed Of that
with the brief observation that no
state Of war existed at the time the
prisoners were taken. He made also
the ethical observation that that was
no way to treat prisoners of war
anyhow. Since the world had become
civilized, prisoners of war had never
been set at hard labor.
Another contention of the govern
ment was that the Indians were wards
of the government. That was true,
admitted Judge Nave, but he said
they were not the wards of the execu-
tive officers Of the government which
has only such powers as the constitu-
tion and congress confer upon it. No
power had ever been given the gov
ernment to deprive any man of his
liberty without process of law.