This guaranty of self-government was reaffirmed in the treaty of 1866, 14 Stat. 803, the thirteenth article of which reads as follows:
"Art. XIII. The Cherokees also agree that a court or courts may be established by the United States in said territory, 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
Page 163 U. S. 381
adoption (whiteman's name for intermarried Cherokee - this by the way was only allowed till before about 1870, after 1870 there was no longer a catagory of intermarried Cherokee; I have documented knowledge on this because my family was affected by this change), shall be the only parties, or where the cause of action shall arise in the Cherokee Nation, except as otherwise provided in this treaty."
So also, in
"An act to provide a temporary government for the Territory of Oklahoma, to enlarge the jurisdiction of the United States court in the Indian Territory, and for other purposes,"
approved May 2, 1890 (26 Stat. 81), it was provided in section 30 as follows:
"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 (whiteman's word for intermarried Cherokee) shall be the only parties, and as to all such cases the laws of the State of Arkansas extended over and put in force in said Indian Territory by this act shall not apply."
And section 31 of the last-mentioned act closes with the following paragraphs:
"The Constitution of the United States and all general laws of the United States which prohibit crimes and misdemeanors in any place within the sole and exclusive jurisdiction of the United States except in the District of Columbia, and all laws relating to national banking associations, shall have the same force and effect in the Indian Territory as elsewhere in the United States; 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 powers 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."
The issue in this case:
The question whether a statute of the Cherokee nation which was not repugnant to the Constitution of the United States or in conflict with any treaty or law of the United States had been repealed by another statute of that nation, and the determination of what was the existing law of the Cherokee nation as to the Constitution of the grand jury, is solely a matter within the jurisdiction of the courts of that nation, and the decision of such a question in itself necessarily involves no infraction of the Constitution of the United States.
Page 163 U. S. 385
U.S. 645. The question whether a statute of the Cherokee Nation which was not repugnant to the Constitution of the United States or in conflict with any treaty or law of the United States had been repealed by another statute of that Nation, and the determination of what was the existing law of the Cherokee Nation as to the Constitution of the grand jury, was solely a matter within the jurisdiction of the courts of that Nation, and the decision of such a question, in itself, necessarily involves no infraction of the Constitution of the United States. Such has been the decision of this Court with reference to similar contentions arising upon an indictment and conviction in a state court. In re Duncan, 139 U. S. 449. The ruling in that case is equally applicable to the contentions in this particular arising from the record before us.
(This was a criminal case, but the court ruled that the 5th amendment was only applicable against the government not the Cherokee Nation.)