Talton V. Mayes - Decision

Decision

The decision of the Cherokee court was upheld with an almost unanimous vote, 8-1. The only person who dissented was Justice Harlan. The case had numerous precedents, particularly Barron v. Baltimore. Since that case was adjudicated in 1833, it had been a settled fact that the Fifth Amendment was a limitation on the powers of the federal government only, which were created by the Constitution.

Since the Court had determined several times previously that the powers of local government the Native American tribes exercised were in existence before the Constitution and therefore were not derived from it, they held in the Talton case that the Fifth Amendment held no sway over the operations of the Cherokee's local justice system, as Talton involved only Cherokee persons and laws. The Court stated that "as the powers of local self-government enjoyed by the Cherokee Nation existed prior to the constitution, they are not operated upon by the Fifth Amendment."

However, it should be noted that since the early 20th century, the Supreme Court has used the Due Process Clause of the Fourteenth Amendment (interpreted, however, to have the same meaning as the 5th amendment) to apply most of the Bill of Rights to the states through the process and doctrine of selective incorporation. Therefore, as to most, but not all, provisions of the Bill of Rights, Barron and its progeny have been circumvented, if not actually overruled.