Ex parte Tiger

2 Indian Terr. 41 | Ct. App. Ind. Terr. | 1898

Clayton, J.

The first two specifications of error may be considered together. They are to the effect that the petitioner was put upon his trial on a charge of murder without an indictment having been presented against him by a grand jury. There is no such a thing as a grand jury known to the constitution or laws of the Creek Nation. A grand jury has never been impaneled by the tribal courts of that nation. Article 4, § 4, of the constitution of the Creek Nation, however, provides that it shall be the duty of the prosecuting attorney to indict and prosecute all offenders against the laws of his district. It is contended by the counsel for the petitioner that the word “indict, ” as here used in the Creek constitution, must be given its common-law signification, and, as at common law no indictment could be found or presented except through the interposition of a grand jury, that the Creek prosecuting attorney could not indict except through the interposition of a grand jury. If the Creek Nation derived its system of jurisprudence through the common law, there would be, much plausibility in this reasoning. But they are strangers to the common law. They derive their jurisprudence JErom an entirely different source, and they are as unfamiliar with common-law terms and definitions as they are with Sanskrit or Hebrew. With them, “to indict” is to file a written accusation charging a person with crime; and, when they ingrafted in the constitution that it should be the duty of the prosecuting attorney to indict and prosecute all offenders against their laws, they simply meant that he himself should write out and file this written accusation, and upon the charge which he should so prepare and file, he should prosecute. As an evidence of this, they have ever since the adoption of this constitution pursued this course, and neither their constitutional conventions nor legislatures have provided any other method for presenting to the courts offenders against their laws.

Creek Laws. Indictment. Creek Laws. Signing Information. Review of Creek Laws. Jurisdiction of U.S. Court.

The fact that the information filed by the prosecuting attorney of the Creek Nation was not signed by him does not affect the verdict, or the judgment of the court rendered upon it. At most, it was but a mere informality, which, not having been objected to in the Creek courts before trial, was cured by verdict. But, whether it was or not, the Creek courts were alone competent to pass upon any errors or informalities either in the indictment or in the proceedings; and the United States courts cannot, by habeas corpus or other process, interfere with their absolute control over the arrests, presentment, trial and punishment of their own people, as the law then stood. The case of Talton v. Mayes, 163 U. S. 376; 16 Sup. Ct. 986, is conclusive of this case. The supreme court of the United States in that case decide: (1) The crime of murder, committed by one Cherokee Indian upon the person of another within the jurisdiction of the Cherokee Nation, is not an offense against the United States, but an offense against the local laws of the Cherokee Nation; (2) thp provision as to the grand jury in the fifth amendment to the federal constitution has no application to criminal procedure in the courts of the Cherokee Nation, whose powers of local self-government were enjoyed before the constitution was made; (3) the finding of an indictment by a grand jury of less than 13 does not violate the due-process clause of the constitution; (4) the question of the repeal of one statute of the Cherokee Nation by another, and as to what is the existing law of that nation as to the constitution of a grand jury, are solely for the courts of that nation to decide, without any right of review in federal courts by habeas corpus proceedings. Let the judgment of the court below be affirmed.

Townsend, J., concurs.