United States v. Rogers
45 U.S. 567 (1846)

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U.S. Supreme Court

United States v. Rogers, 45 U.S. 4 How. 567 567 (1846)

United States v. Rogers

45 U.S. (4 How.) 567

Syllabus

The United States has adopted the principle originally established by European nations -- namely that the aboriginal tribes of Indians in North America are not regarded as the owners of the territories which they respectively occupied. Their country was divided and parceled out as if it had been vacant and unoccupied land.

If the propriety of exercising this power were now an open question, it would be one for the lawmaking and political department of the government, and not the judicial.

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 committed there, no matter whether the offender be a white man or an Indian.

The twenty-fifth section of the Act of 30 June, 1834, extends the laws of the United States over the Indian country, with a proviso that they shall not include punishment for "crimes committed by one Indian against the person or property of another Indian."

This exception does not embrace the case of a white man who, at mature age, is adopted into an Indian tribe. He is not an " Indian" within the meaning of the law.

The treaty with the Cherokees concluded at New Echota in 1835 allows the Indian Council to make laws for their own people or such persons as have connected themselves with them. But it also provides, that such laws shall not be inconsistent with acts of Congress. The act of 1834 therefore controls and explains the treaty.

It results from these principles that a plea set up by a white man alleging that he had been adopted by an Indian tribe and was not subject to the jurisdiction of the circuit court of the United States is not valid.

At the April term, 1845, of the Circuit Court of the United States for the District of Arkansas, the grand jury indicted William S. Rogers for the murder of Jacob Nicholson. Both Rogers and Nicholson were alleged, in the indictment, to be "white men and not Indians." The offense was charged to have been committed within the jurisdiction of the court -- that is to say in that part of the Indian country west of the State of Arkansas that is bounded north by the north line of lands assigned to the Osage tribe of Indians, produced east to the State of Missouri, west by the Mexican possessions, south by Red River, and east by the west line of the now State of Arkansas and the State of Missouri (the same being territory annexed to the said District of Arkansas for the purposes in the act of Congress in that behalf made and provided).

The defendant filed the following plea:

"And the defendant in his own proper person, comes into court and, having heard the said indictment read, says that the court ought not to take further cognizance of the said prosecution because, he says, heretofore, to-wit, on the ___ day of November, 1836, he then being a free white man and a citizen of the United States, and having been born in the said United States, voluntarily and of his free will removed to the portion of the country west of the State of Arkansas assigned and belonging to the Cherokee

Page 45 U. S. 568

tribe of Indians and did incorporate himself with said tribe, and from that time forward became and continued to be one of them, and made the same his home, without any intention of returning to the said United States, and that afterwards, to-wit, on the __ day of November, 1836, he intermarried with a Cherokee Indian woman, according to the forms of marriage, and that he continued to live with the said Cherokee woman as his wife until September, 1843, when she died, and by her had several children, now living in the Cherokee nation, which is his and their home."

"And the defendant further says that from the time he removed, as aforesaid, he incorporated himself with the said tribe of Indians as one of them, and was and is so treated, recognized, and adopted by said tribe and the proper authorities thereof, and exercised and exercises all the rights and privileges of a Cherokee Indian in said tribe, and was and is domiciled in the country aforesaid; that before _____ and at the time of the commission of the supposed crime, if any such was committed, to-wit, in the Indian country aforesaid, he, the defendant, by the acts aforesaid, became and was and still is a citizen of the Cherokee nation, and became and was and still is a Cherokee Indian within the true intent and meaning of the act of Congress in that behalf provided. And the said defendant further says that the said Jacob Nicholson, long before the commission of said crime, if any such was committed, although a native-born free white male citizen of the United States, had settled in the tract of country assigned to said Cherokee tribe of Indians west of the State of Arkansas without any intention of returning to said United States; that he intermarried with an Indian Cherokee woman, according to the Cherokee form of marriage; that he was treated recognized, and adopted by the said tribe as one of them, and entitled to exercise and did exercise all the rights and privileges of a Cherokee Indian, and was permanently domiciled in said Indian country as his home,\ up to the time of his supposed murder."

"And the said defendant further says that, by the acts aforesaid, he, the said Jacob Nicholson, was a Cherokee Indian at the time of the commission of the said supposed crime, within the true intent and meaning of the act of Congress in that behalf made and provided. Wherefore the defendant says that this Court has no jurisdiction to cause the defendant to make a further or other answer to said bill of indictment, for said supposed crime alleged in the bill of indictment. And the defendant prays judgment whether he shall be held bound to further answer said indictment."

To this plea the district-Attorney of the United States filed the following demurrer.

"And the said United States, by Samuel H. Hempstead, District Attorney,

Page 45 U. S. 569

comes and says that the said first plea of the defendant to the jurisdiction of this Honorable Court is insufficient in law, and that by reason of anything therein contained, this Court ought not to refuse to entertain further jurisdiction of the crime in said bill of indictment alleged."

"And the following causes of demurrer are assigned to said plea:"

"1st. That a native-born citizen of the United States cannot expatriate himself so as to owe no allegiance to the United States without some law authorizing him to do so."

"2d. That no white man can rightfully become a citizen of the Cherokee tribe of Indians, either by marriage, residence, adoption or any other means, unless the proper authority of the United States shall authorize such incorporation."

"3d. That the proviso of the act of Congress relating to crimes committed by one Indian upon the property or person of another Indian was never intended to embrace white persons, whether married and residing in the Indian nation or not."

And upon the argument of the said demurrer, the following questions arose, and were propounded for the decision of the court, but, the judges being divided in opinion upon the same, upon motion, ordered that they be entered of record and certified to the next term of the Supreme Court of the United States for its opinion and decision thereupon.

"1st. Was it competent for the accused, being a citizen of the United States, either under the fourth clause of the eighth section of the first article of the Constitution of the United States or under any act of Congress passed in virtue of the Constitution of the United States upon the subject of naturalization or in virtue of any admission, obligation, or duty incumbent upon the government of the United States and implied by the said clause, section, and article of the Constitution or any of the said acts of Congress in reference to citizens of the United States, or to foreign governments, their subjects or citizens, upon the authority of the will and act of the accused, and without any form, mode, or condition prescribed by the government of the United States, to divest himself of his allegiance to that government and of his character of citizen of the United States?"

"2d. Could the accused, as a citizen of the United States or a resident within the same, possess the right or the power resulting from the nature and character of the civil and political institutions of the United States or as appertaining to and inherent in him as a free moral and political agent or derived to him from the law of nature or from the law of nations, founded either upon natural right or upon convention, voluntarily and entirely put off his allegiance to and his character of citizen of the United States

Page 45 U. S. 570

and transfer that allegiance and citizenship to any other government, state, or community?"

"3d. Could the tribe of Indians residing without the limits of anyone of the states, but within the territory of the United States, as set forth in the pleadings in this prosecution, and designated as the Cherokee tribe, and also as the Cherokee nation (and by whom the accused alleges that he has been adopted), be held and recognized, in reference to the government and under the laws of the United States, as a separate and distinct government or nation, possessing political rights and powers such as authorize them to receive and adopt, as members of their state, the subjects or citizens of other states or governments, with the assent of such subjects or citizens, and particularly the citizens of the United States, and thereby to sever their allegiance and citizenship from the states or governments to which they previously appertained, and to naturalize such subjects or citizens, and make them exclusively or effectually members, subjects, or citizens of the said Indian tribe with regard to civil and political rights and obligations?"

"4th. Could the accused, by any act or assent of his own, combined with the acts, authority, or assent of the above-mentioned tribe, residing within the territory aforesaid, so change and put off his character, rights, and obligations as a citizen of the United States as to become in his social, civil, and political relations and condition a Cherokee Indian?"

"5th. Does the twenty-fifth section of the Act of Congress of 30 June, 1834, entitled 'An act to regulate trade and intercourse with the Indian tribes, and to preserve the peace of the frontiers,' and the proviso to that section, limit the operation of the said act, and give effect to the said proviso, as to instances of crimes committed by natives of the Indian tribes of full blood, against native Indians of full blood only, or do the said section and proviso have reference also to Indians (natives), or others adopted by and permanently resident within the Indian tribes, or have they relation to the progeny of Indians by whites or by negroes, or of whites or negroes by Indians, born or permanently resident within the Indian tribes and limits, or to whites or free negroes born and permanently resident in the tribes, or to negroes owned as slaves, and resident within the Indian tribes, whether procured by purchase, or there born the property of Indians?"

"6th. Does the plea interposed by the accused in this prosecution, the facts whereof are admitted by the demurrer, constitute a valid objection to the jurisdiction of this Court?"

The twenty-fifth section of the act of 1834, referred to in the fifth point certified, enacts as follows:

"That so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction

Page 45 U. S. 571

of the United States shall be in force in the Indian country, provided that the same shall not extend to crimes committed by one Indian against the person or property of another Indian."

The defendant moved the court for an order to discharge him from imprisonment, on the ground that the court were divided in opinion on his plea to the jurisdiction, but the court overruled the motion, and remanded him to the custody of the marshal.

The case came up to this Court upon the points certified, and was argued by Mr. Mason Attorney-General, on behalf of the United States.

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