Counsel for Parties.

tention on the part of Congress to confer powers or right to be exercised outside of the Territories named therein.

The Supreme Court of Oregon committed no error in affirming the action of the trial court, denying the petition for removal, and its judgment is

Affirmed.

OREGON SHORT LINE AND UTAH NORTHERN RAILWAY COMPANY V. MULLAN. Error to the Supreme Court of the State of Oregon. No. 148. Argued with No. 147.

MR. JUSTICE SHIRAS: The facts of this case are similar to those of the case of The Oregon Short Line and Northern Railway Company v. Jane Skottowe, just decided, and for the reasons there given the judgment of the Supreme Court of Oregon is

Affirmed.

Mr. John M. Thurston for plaintiff in error. Mr. John F. Dillon was on his brief.

Mr. Alfred S. Bennett for defendant in error.

OREGON SHORT LINE AND UTAH NORTHERN RAILWAY COMPANY v. CONLIN.

ERROR TO THE SUPREME COURT OF THE STATE OF OREGON.

No. 229. Argued March 17, 1896. Decided April 20, 1896.

Oregon Short Line and Utah Northern Railway Company v. Skottowe, 162 U. S. 492, affirmed and followed.

THE case is stated in the opinion.

Mr. John M. Thurston, (with whom was Mr. John F Dillon on the brief,) for plaintiff in error.

Mr. Alfred S. Bennett for defendant in error.

Syllabus.

MR. JUSTICE SHIRAS delivered the opinion of the court.

This is a writ of error to the Supreme Court of the State of Oregon, alleging error in the judgment of that court in affirming a judgment of the circuit court of Washington County in that State, wherein Francis Conlin, the defendant in error in this court, recovered damages for personal injuries alleged to have been caused by the negligence of the Oregon Short Line and Northern Railway Company, plaintiff in error.

The only question presented for our consideration is, whether there was error in denying the petition of the defendant company for removal of the cause into the Circuit Court of the United States. The record discloses a similar state of facts and allegations to that considered in the case, just decided, of The Oregon Short Line and Northern Railway Company v. Jane Skottowe. For the reasons there given, we find no error in the judgment of the Supreme Court of the State of Oregon, and it is accordingly

Alberty, the accused, was a negro born in slavery, who became a citizen of the Cherokee Nation under the ninth article of the treaty of 1866. Duncan, the deceased, and alleged to have been murdered, was the illegitimate child of a Choctaw Indian, by a negro woman who was not his wife, but a slave in the Cherokee Nation. Held, that, for purposes of jurisdiction, Alberty must be treated as a member of the Cherokee Nation, but not an Indian, and Duncan as a colored citizen of the United States, and that, for the purposes of this case, the court below had jurisdiction. A man who finds another, trying to obtain access to his wife's room in the night time, by opening a window, may not only remonstrate with him, but may employ such force as may be necessary to prevent his doing so; and if the other threatens to kill him, and makes a motion as if so to do,

Opinion of the Court.

and puts him in fear of his life, or of great bodily harm, he is not bound to retreat, but may use such force as is necessary to repel the assault. The weight which a jury is entitled to give to the flight of a prisoner, immediately after the commission of a homicide, was carefully considered in Hickory v. United States, 160 U. S. 408; and, without repeating what was there said, it was especially misleading for the court in this case to charge the jury that, from the fact of absconding they might infer the fact of guilt, and that flight is a silent admission by the defendant that he is unable to face the case against him.

DEFENDANT, a Cherokee negro, who was known both by his father's name of Burns and that of his former master, Alberty, was convicted of the murder of one Phil Duncan, at the Cherokee Nation, in the Indian Territory. The indictment alleged the crime to have been committed May 15, 1879, but it appeared by the evidence to have been committed in 1880.

Upon judgment of death being pronounced, defendant sued out a writ of error from this court, assigning a want of jurisdiction in the court below and various errors in the charge to the jury connected with the law of homicide, and the inference to be drawn from the flight of the accused.

Mr. William M. Cravens for plaintiff in error.

Mr. Assistant Attorney General Whitney for defendants in

error.

MR. JUSTICE BROWN delivered the opinion of the court.

1. The question of jurisdiction in this case demands a primary consideration. Although the prisoner Alberty was not a native Indian, but a negro born in slavery, it was not disputed that he became a citizen of the Cherokee Nation under the ninth article of the treaty of 1866, 14 Stat. 799, 801, by which the Cherokee Nation agreed to abolish slavery, and further agreed that all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion and are now residents therein or who may return within six months, and their descendants, shall have all the rights of native Cherokees." While this article of the

Opinion of the Court.

treaty gave him the rights of a native Cherokee, it did not, standing alone, make him an Indian within the meaning of Rev. Stat. § 2146, or absolve him from responsibility to the criminal laws of the United States, as was held in United States v. Rogers, 4 How. 567, 573, and Westmoreland v. United States, 155 U. S. 545.

Duncan, the deceased, was the illegitimate child of a Choctaw Indian, by a colored woman, who was not his wife, but a slave in the Cherokee Nation. As his mother was a negro slave, under the rule partus sequitur ventrem, he must be treated as a negro by birth, and not as a Choctaw Indian. There is an additional reason for this in the fact that he was an illegitimate child, and took the status of his mother. Williamson v. Daniel, 12 Wheat. 568; Fowler v. Merrill, 11 How. 375.

He came, however, to the Cherokee Nation when he was about seventeen years of age, and married a freed woman, and a citizen of that Nation. It would seem, however, from such information as we have been able to obtain of the Cherokee laws, that such marriage would not confer upon him the rights and privileges of Cherokee citizenship, beyond that of residing and holding personal property in the Nation; that the courts of the Nation do not claim jurisdiction over such persons, either in criminal or civil suits, and they are not permitted to vote at any elections.

For the purposes of jurisdiction, then, Alberty must be treated as a member of the Cherokee Nation, but not an Indian; and Duncan as a colored citizen of the United States.

By Revised Statutes, § 2145, except as to certain crimes, "the general laws of the United States as to the punishment of crimes committed within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country;" and by § 2146, "the preceding section shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian, nor to any Indian committing any offence in the Indian country who has been punished by the local law of the tribe; or to any case where, by treaty stipulations, the exclusive jurisdiction over such offences is or may be secured to the Indian

Opinion of the Court.

tribes respectively." Obviously this case is not within the first class, because the crime was not committed by one Indian against the person of another Indian; nor within the second class, because there was no evidence that Alberty had been punished by the local law of the tribe; and the only remaining question is whether, by treaty stipulations, the exclusive jurisdiction over this offence has been secured to the Cherokee tribe.

By article 13 of the Cherokee treaty of July 19, 1866, 14 Stat. 799-803, the establishment of a court of the United States in the Cherokee territory is provided for, "with such jurisdiction and organized in such manner as may be prescribed by law: Provided, That the judicial tribunals of the Nation shall be allowed to retain exclusive jurisdiction in all civil and criminal cases arising within their country in which members of the Nation, by nativity or adoption, shall be the only parties, or where the cause of action shall arise in the Cherokee Nation, except as otherwise provided in this treaty." It is admitted that the present case is not within the last exception.

By the act of May 2, 1890, c. 182, to provide a temporary government for the Territory of Oklahoma and to enlarge the jurisdiction of the United States court in the Indian Territory, 26 Stat. 81, it is provided, § 30, "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 by § 31, that "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 parties 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."

It will be observed that while this act follows the treaty so far as recognizing the jurisdiction of the Cherokee Nation as to all cases arising in the country, in which members of the