sion was to be made among the "citizens" of the tribes according to the rolls, and by § 12 the allottees were to have undisturbed possession when the report of the allotments had been made to the Secretary of the Interior and confirmed by him. By 29 an agreement with the Choctaws and Chickasaws on the matter was ratified, and by act of July 1, 1902, c. 1362, 32 Stat. 641, a further agreement was ratified, which again excluded all except those whose names were on the roll. Art. 35. The bill charges that these agreements, as well as a part of the act of 1898, were void as excluding some of the plaintiffs who were not residents of the nation on June 28, 1898, and as not having been approved by the class, or a majority of the class, alleged to have been designated by the treaty and patent that we have discussed. The bill goes on to allege that rolls were prepared by the Commission, and approved by the Secretary, within the time allowed by the statutes, (Act of April 26, 1906, c. 1876, § 2, 34 Stat. 137), and that the time has expired, but the rolls were not made in conformity to the act of 1898, and are not correct but fraudulent, in various particulars set forth.

But these allegations make out no case for the plaintiffs. It is said that the statutes recognize individual rights as already existing. It is true that by a treaty of June 22, 1855, 11 Stat. 611, the United States guaranteed the lands "to the members of the Choctaw and Chickasaw tribes, their heirs and successors, to be held in common; so that each and every member of either tribe shall have an equal, undivided interest in the whole" with provisos. But the plaintiffs do not claim under this treaty or mention it in their bill, or a treaty of April 28, 1866, 14 Stat. 769, by Articles 11-36 of which the change from common to individual ownership was agreed, and it was provided that unselected land should "be the common property of the Choctaw and Chickasaw Nations, in their corporate capacities," etc. Art. 33. They might be descendants or the members of the tribe as it was in 1839 or 1842, and yet not members or heirs of members of the tribe

of 1854, therefore it is unnecessary to construe this treaty. Neither do the plaintiffs claim under any title to be derived from the statute providing for distribution according to the rolls of citizenship. They do not allege that they are citizens or attempt to bring themselves within any grant later than the treaty and patent that we have discussed. They disclose that their names are not upon the rolls and that the decision of the Secretary of the Interior has been against them and they show no reason for our not accepting the rolls and decision as final according to the terms of the distributing acts. See West v. Hitchcock, 205 U. S. 80; Garfield v. Goldsby, 211 U. S. 249, 259.

Decree affirmed.

MARBLES v. CREECY, CHIEF OF POLICE.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

No. 23. Submitted November 5, 1909.-Decided November 15, 1909.

The executive of a State upon whom a demand is made for the surrender of a fugitive from justice may act on the papers in the absence of, and without notice to, the accused, and it is for that executive to determine whether he will regard the requisition papers as sufficient proof that the accused has been charged with crime in, and is a fugitive from justice from, the demanding State, or whether he will demand, as he may if he sees fit so to do, further proof in regard to such facts.

A notice in the requisition papers that the demanding State will not be responsible for any expenses attending the arrest and delivery of the fugitive does not affect the legality of the surrender so far as the rights of the accused under the Constitution and laws of the United States are concerned.

The executive of the surrendering State need not be controlled in the discharge of his duty by considerations of race or color, or, in the

Argument for Appellant.

215 U.S.

absence of proof, by suggestions that the alleged fugitive will not be fairly dealt with by the demanding State.

On habeas corpus the court can assume that a requisition made by an executive of a State is solely for the purpose of enforcing its laws and that the person surrendered will be legally tried and adequately protected from illegal violence.

THE facts are stated in the opinion.

Mr. George D. Reynolds for appellant:

The provisions of § 5278, Rev. Stat., will be strictly construed and all the requirements of the statute must be respected. Ex parte Hart, 63 Fed. Rep. 259; Ex parte Morgan, 20 Fed. Rep. 298; Kentucky v. Dennison, 24 How. 66.

The following facts should have been clearly stated in the warrant issued by the Governor of surrendering State to show that it is issued in a case authorized by law and the power to issue the warrant depends upon the following facts:

1. That the person is charged in some State or Territory of the United States with treason, felony or other crime.

2. That he had fled from justice and was found to be a fugitive from justice.

3. That he was found in the State.

4. That the executive authority of the State from which he fled had demanded his delivery to be removed to the State having jurisdiction of the crime.

If the warrant omits to state that the person has fled from justice or that he is found in the asylum it is defective. Matter of Romaine, 23 California, 585, 592.

The executive of the asylum State is not required by the act of Congress to cause the arrest of appellant and his delivery to the agent appointed to receive him without proof of the fact that he was a fugitive from justice. Ex parte Reggel, 114 U. S. 642.

A warrant for arrest and return must recite and set forth the evidence necessary to authorize the state executive to issue it and unless it does it is illegal and void and the warrant is

sued by the Governor of surrendering State should have stated that as such governor he had found appellant to have been a fugitive from justice. In re Doo Woon, 18 Fed. Rep. 898; Kentucky v. Dennison, 24 How. 66; Ex parte Smith, 3 McLean, 121.

Where the warrant alone is before the court and is insufficient on its face the prisoner must necessarily be discharged. Standahl v. Richardson, 34 Minnesota, 115; Ex parte Powell, 20 Florida, 806.

The warrant must recite that the person charged is a fugitive from justice and it is not enough that it state that the demanding executive has represented him to be such. In re Jackson, 2 Flippin, 183.

In a petition for a writ of habeas corpus verified by the oath of the petitioner as required by § 754, Rev. Stat., facts duly alleged may be taken to be true unless denied by the return or controlled by other evidence, and in this case the return of the jailor did not deny that the prisoner was not present in the demanding State at the time when the crime was alleged to have been committed. Whitten v. Tomlinson, 160 U. S. 231.

There was no appearance or brief for appellee.

MR. JUSTICE HARLAN delivered the opinion of the court.

The appellant Marbles was indicted in the Circuit Court of Warren County, Mississippi, for the crime of having, in violation of the laws of Mississippi, made a deadly assault with the willful and felonious intent to kill and murder the person assaulted. Miss. Code, § 1043. The deputy sheriff of the county furnished a certified copy of the indictment to the Governor of Mississippi, as well as his affidavit that Marbles was a fugitive from the justice of that State and had taken refuge in Missouri, and applied for a requisition upon the Governor of Missouri for the arrest of the alleged criminal and his delivery to the agent of Mississippi, to be conveyed to the VOL. CCXV-5

latter State and there dealt with according to law. Thereupon the Governor of Mississippi issued his requisition, in the ordinary form, except that there was in it this unusual, not to say, extraordinary, provision: "This State will not be responsible for any expense attending the execution of this requisition for the arrest and delivery of fugitives from justice.”

The Governor of Missouri honored the requisition made upon him and issued his warrant for the arrest of Marbles and his delivery to the designated agent of Mississippi. That warrant recited the fact that the accused was proceeded against as a fugitive from justice, and that the Governor of Mississippi had, as required by the statute of the United States, produced to the Governor of Missouri a copy of the indictment certified to be authentic, and charging the fugitive with having committed the crime of assault to kill. Rev. Stat., § 5278.

Marbles was arrested under this warrant, and, being in custody, sued out a writ of habeas corpus from one of the judges of the Circuit Court of the United States for his discharge upon the ground that he was deprived of his liberty in violation of the Constitution of the United States. The application for the writ was heard in that court. The reasons assigned in support of the contention just stated were: That the Governor of Missouri had no jurisdiction to issue a warrant for his arrest, in that it was not shown before that officer that the accused was a fugitive from the justice of Mississippi, or had fled from that State, nor was there any evidence before the Governor of Missouri that the petitioner was personally or had been continuously present in Mississippi when the crime in question was alleged to have been committed; that it appeared on the face of the indictment accompanying the requisition that no crime under the laws of Mississippi was legally charged or had been committed by the accused; that it did not appear before the Governor of Missouri, when the requisition was presented to him, that the petitioner was, in fact, a fugitive from the justice of Mississippi; that said req