Roff v. Burney

by David Josiah Brewer

United States Supreme Court

168 U.S. 218

Boff  v.  Burney

This case comes from the United States court for the Indian Territory on a certificate as to jurisdiction. The amended complaint filed in that court, November 6, 1893, besides stating a cause of action in favor of the plaintiff against the defendant, alleges the following facts bearing on the question of jurisdiction: That the plaintiff is a natural born citizen of the United States of America; has never renounced his allegiance to said government, and has never taken an oath of allegiance to any foreign government of any kind whatever; that he has ever been and is yet a citizen of the United States; that the legislature of the Chickasaw Nation, on October 7, 1876, passed the following act:

'Section 1. Be it enacted by the legislature of the Chickasaw Nation, that the right of citizenship is hereby granted to the following named children and nephews of William H. Bourland: Amanda, Matilda, Gordentia and Run Hannah.'

That by this act, which was simply a confirmation of a prior statute, passed in 1857, the parties named therein became adopted citizens of the Chickasaw Nation; that he was duly and legally married to one of the parties named therein, to wit, Matilda Bourland, while she was such adopted citizen; that thereafter, and on October 11, 1883, the legislature of the Chickasaw Nation passed another act, as follows:

'Section 1. Be it enacted by the legislature of the Chickasaw Nation, that the right of citizenship granted to the following-named children and nephews of W. H. Bourland, Amanda, Matilda, Gordentia and Run Hannah, approved October 7, 1876, the same is hereby repealed and annulled.

'Sec. 2. Be it further enacted, that the governor is hereby directed and required to remove said parties and their descendants beyond the limits of this nation, and that this act take effect from and after its passage.'

And that since the passage of the lastnamed act the Chickasaw government, and all the officials thereof, have refused to recognize this plaintiff as a member of the Chickasaw tribe, or a citizen of said Chickasaw Nation, and that the courts of that nation have refused to entertain jurisdiction of any controversy between him and any member of the tribe of Chickasaw Indians, and still refuse to entertain jurisdiction of such controversies.

Article 7 of the treaty of June 22, 1855, between the United States and the Choctaw and Chickasaw tribes (11 Stat. 612), is as follows:

'So far as may be compatible with the constitution of the United States and the laws made in pursuance thereof, regulating trade and intercourse with the Indian tribes, the Choctaws and Chickasaws shall be secured in the unrestricted right of self-government, and full jurisdiction, over persons and property, within their respective limits; excepting, however, all persons with their property, who are not by birth, adoption, or otherwise citizens or members of either the Choctaw or Chickasaw tribe.'

Article 38 of the treaty with the same tribes, of date April 28, 1866, provides (14 Stat. 779):

'Every white person who, having married a Choctaw or Chickasaw, resides in the said Choctaw or Chickasaw Nation, or who has been adopted by the legislative authorities, is to be deemed a member of said nation, and shall be subject to the laws of the Choctaw and Chickasaw Nations according to his domicile, and to prosecution and trial before their tribunals, and to punishment according to their laws in all respects as though he was a native Choctaw or Chickasaw.'

Section 6 of the act creating the United States court in the Indian Territory, approved March 1, 1889 (25 Stat. 784), reads:

'That the court hereby established shall have jurisdiction in all civil cases between citizens of the United States who are residents of the Indian Territory, or between citizens of the United States, or of any state or territory therein, and any citizen of or person or persons residing or found in the Indian Territory, and when the value of the thing in controversy, or damages or money claimed shall amount to one hundred dollars or more: provided, that nothing herein contained shall be so construed as to give the court jurisdiction over controversies between persons of Indian blood only.' This was amended by the act of May 2, 1890, which in section 30 (26 Stat. 94) contains this proviso:

'Provided, however, 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.'

And in section 31 (26 Stat. 96) it was also provided:

'But nothing in this act shall be so construed as to deprive any of the courts of the civilized nations of exclusive jurisdiction over all cases arising wherein members of said nations, whether by treaty, blood, or adoption, are the sole parties, nor so as to interfere with the right and power of said civilized nations to punish said members for violation of the statutes and laws enacted by their national councils where such laws are not contrary to the treaties and laws of the United States.'

C. L. Herbert, for plaintiff in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

Notes