235 U.S.

Opinion of the Court.

to debate that the withdrawal, by connivance, of a man from an insane asylum, to which he had been committed as Thaw was, did tend to obstruct the due administration of the law. At least, the New York courts may so decide. Therefore the indictment charges a crime. If there is any remote defect in the earlier proceedings by which Thaw was. committed, which we are far from intimating, this is not the time and place for that question to be tried.

If the conspiracy constituted a crime there is no doubt that Thaw is a fugitive from justice. He was a party to the crime in New York and afterwards left the State. It long has been established that for purposes of extradition between the States it does not matter what motive induced the departure. Roberts v. Reilly, 116 U. S. 80; Appleyard v. Massachusetts, 203 U. S. 222, 226, 227. We perceive no ground whatever for the suggestion that in a case like this there should be a stricter rule.

The most serious argument on behalf of Thaw is that if he was insane when he contrived his escape he could not be guilty of crime, while if he was not insane he was entitled to be discharged; and that his confinement and other facts scattered through the record require us to assume that he was insane. But this is not Thaw's trial: In extradition proceedings, even when as here a humane opportunity is afforded to test them upon habeas corpus, the purpose of the writ is not to substitute the judgment of another tribunal upon the facts or the law of the matter to be tried. The Constitution says nothing about habeas corpus in this connection, but peremptorily requires that upon proper demand the person charged shall be delivered up to be removed to the State having jurisdiction of the crime. Article 4, § 2. Pettibone v. Nichols, 203 U. S. 192, 205. There is no discretion allowed, no inquiry into motives. Kentucky v. Dennison, 24 How. 66; Pettibone v. Nichols, 203 U. S. 192, 203. The technical sufficiency of the indictment is not open. Munsey v. Clough, 196 U. S.

364, 373. And even if it be true that the argument stated offers a nice question, it is a question as to the law of New York which the New York courts must decide. The statute that declares an act done by a lunatic not a crime adds that a person is not excused from criminal liability except upon proof that at the time 'he was laboring under such defect of reason as: 1. Not to know the nature and quality of the act he was doing; or 2. Not to know that the act was wrong.' Penal Law, § 1120. See § 34. The inmates of lunatic asylums are largely governed, it has been remarked, by appeal to the same motives that govern other men, and it well might be that a man who was insane and dangerous, nevertheless in many directions understood the nature and quality of his acts as well, and was as open to be affected by the motives of the criminal law as anybody else. How far such considerations shall be taken into account it is for the New York courts to decide, as it is for a New York jury to determine whether at the moment of the conspiracy Thaw was insane in such sense as they may be instructed would make the fact a defence. Pierce v. Creecy, 210 U. S. 387, 405; Charlton v. Kelly, 229 U. S. 447, 462. When, as here, the identity of the person, the fact that he is a fugitive from justice, the demand in due form, the indictment by a grand jury for what it and the Governor of New York allege to be a crime in that State and the reasonable possibility that it may be such, all appear, the constitutionally required surrender is not to be interfered with by the summary process of habeas corpus upon speculations as to what ought to be the result of a trial in the place where the Constitution provides for its taking place. We regard it as too clear for lengthy discussion that Thaw should be delivered up at once.

Final order reversed.

235 U. S.

Statement of the Case.

SIZEMORE v. BRADY.

ERROR TO THE SUPREME COURT OF THE STATE OF

OKLAHOMA.

No. 59. Submitted November 4, 1914.-Decided December 21, 1914.

The Original Creek Agreement of March 1, 1901, was not a grant in præsenti which invested the then living members of the tribe and their heirs with absolute rights that could not be recalled or impaired by Congress without violating the due process clause of the Fifth Amendment.

Unless and until the Original Creek Agreement of 1901 was carried into effect Congress possessed plenary power as before to deal with the lands and funds to which it related as tribal property. Choate v. Trapp, 224 U. S. 665.

The Supplemental Creek Agreement of 1902 and the Act of May 27, 1902, repealing the provisions of the act of March 1, 1901, recognizing the tribal laws of descent and distribution, and declaring that the descent and distribution of Creek lands and moneys should be in accordance with the specified laws of Arkansas, were valid acts within the plenary power of Congress to deal with Indians and their tribal property.

An exertion of the administrative control of the Government over tribal property of tribal Indians is subject to change by Congress at any time before it is carried into effect and while tribal relations continue.

The descent and distribution of a Creek Indian Allotment, not selected or made until after the Supplemental Creek Agreement of 1902 went into effect, are controlled under that agreement by Chapter 49 of Mansfield's Digest of the Law of Arkansas.

Under Chapter 49 of Mansfield's Digest of the Law of Arkansas a paternal cousin of the intestate inherits real estate to the exclusion of maternal cousins.

33 Oklahoma, 169, affirmed.

THE facts, which involve the construction of the provisions in the Original and Supplemental Creek Agreements regarding the descent and distribution of Creek Indian Allotments, are stated in the opinion.

Argument for Plaintiffs in Error.

235 U. 8.

Mr. Frederick E. Chapin, Mr. Andrew B. Duvall and Mr. James B. Diggs for plaintiffs in error:

Where an enrolled member, a citizen of the Creek Tribe or Nation of Indians, who dies prior to the going into effect of the act of March 1, 1901, 31 Stat. 861, known as the Creek Agreement, was, under the terms of such treaty, entitled to receive an allotment, and died without have selected or received such allotment, the allotment such citizen would have been entitled to under the treaty had be lived to select and receive the same descends to his beirs under the Original Creek Agreement. These heirs are to be ascertained as of the date of the death of such enrolled Creek citizen, and the right of the heirs of such enrolled member or citizen of the Creek Nation to such slotment is a vested right, which cannot be impaired or taken away by subsequent legislation. In support of these contentions see Aspey v. Barry, 83 N. W. Rep. 91; Aumuan v. Auman, 21 Pa. St. 348: Aylett v. Swope, 17 S. W. Rep. 208: Ballentine v. Wood. 9 Atl Rep. 382; Barclay v. Cameron, 35 Texas, 242: Barnett v. Way, 119 Pac. Rep. 4:8: Best v. Dor, 18 Wall 112: Borgner v. Brown, 33 N. E. Rep. 92; Brown v. Belmark, 3 Kansas, 35; Brooks v. Kip. 35 Ail Rep. 658; Burke v. Modern Woodmen, $4 Pac. Rep. 275: Choose v. Tropp. 224 U. S. 665, 671; Czì v. Lord. 20 Kansas, 390: Cooper v. Wilder, 43 PacRep. 590: Chers v. Buncion, 1 Black, 352; Dem. Man v. 3 How. 461: Denison v. Placher, 53 Alabama, 411: Deren v. Gizem 35 N. E. Rẹp. 1101; Drew v. Carroll, 28 N. E. Rep. 148: Darbin v. Redman, 40 N. E. Rep. 133: Eižens v. Fže 5 N. E. Rep. 650: Gimore v. Morrill. 8 Ter. 74. Goodiel v. 0 Cour, & Texas, 375; Gould v. Twober, 105 N. W. Rep. 624. Gray v. Cofman, 10 Fed. Cas. 108. Ground v. Diagmen, 127 Pac. Rep. 1078; Hall v. Busse 101 U. S. 53: Erum v. M 86 Pac. Rep. 371: Estes v. Berger, 158 Fed. Rep. 221; Holiveod v. Hall A Maryland. 29: Enry Gas Co. v. United States, 191

235 U.S.

Argument for Plaintiffs in Error.

Fed. Rep. 137; Hobbie v. Ogden, 53 N. E. Rep. 106; Irving v. Diamond, 100 Pac. Rep. 557; Jackson v. Lyon, 9 Cowan, 664; Johnson v. Norton, 10 Pa. St. 245; Jones v. Meehan, 175 U. S. 1, 11; Jumbo Cattle Co. v. Bacon, 79 Texas, 5; Leathers v. Gray, 2 S. E. Rep. 455; McCrea's Appeal, 36 Atl. Rep. 412; McKee v. Henry, 201 Fed. Rep. 74; Meadowcroft v. Winnebago Co., 54 N. E. Rep. 949; Mullen v. United States, 224 U. S. 448; Niles v. Anderson, 5 How. 365, 383; Prentice v. Stearns, 113 U. S. 435; Reichert v. Felps, 6 Wall. 160; Reynolds v. Fewell, 124 Pac. Rep. 623; Rock Hill College v. Jones, 47 Maryland, 1; Shallenberger v. Fewell, 124 Pac. Rep. 617; Shulthis v. McDougal, 170 Fed. Rep. 529; Spangenberg v. Guiney, 3 Ohio Dec. 163; Starnes v. Hill, 112 Nor. Car. 1; Starr v. Hamilton, 22 Fed. Cas. 1107; Stratton v. McKinne, 62 S. W. Rep. 636; Tate v. Townsend, 16 Mississippi, 316; Turner v. Fisher, 222 U. S. 204; United States v. Brooks, 10 How. 42, 460; Walker v. Ehresman, 111 N. W. Rep. 219; Ward v. Stow, 27 Am. Dec. 239; White v. Martin, 66 Texas, 340; Wilburn v. Wilburn, 83 Indiana, 55; Wittenbrook v. Wheadon, Pac. Rep. 664; Wray v. Doe, 10 Smedes & M. 452, 461.

60

If the act of June 30, 1902, 32 Stat. 500, known as the Supplemental Creek Agreement which was in force at the time of the selection of the land, determines the heirs, such agreement is prospective in operation, and does not, and was not intended to, operate on or affect the estates of members or citizens of the Creek Tribe or Nation who died prior to the going into effect of the Supplemental Agreement; but such Supplemental Agreement was passed for the purpose of affecting, and was intended to affect, only the descent of estates where such descent took place after its going into effect. Carroll v. Carroll, 16 How. 275; Chew Heong v. United States, 112 U. S. 536; City R. R. v. Citizens Railway, 166 U. S. 557; Murry v. Gibson, 151 How. 421; United States v. Peggy, 1 Cranch, 103; White v. United States, 101 U. S. 545; note 12, L. R. A. 50.