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The end of Rayna Tom Carmen

For The Madera Tribune

These grave markers show that Rayna Carmen and Wilbur McSwain are buried in the same cemetery at North Fork.


By Sept. 12, 1958, Rayna Tom Carmen, a Mono Indian, had been waiting eight years for the door to San Quentin’s gas chamber to open for him. He had first been put on death row in June 1950 for the murder of another North Fork Indian, Wilbur McSwain. When that conviction was overturned, Carmen was brought back to Madera County for another trial. In 1951, he was once more convicted and returned to death row.

The mandatory appeal was made and once again denied, but something was different this time. Assistant United States Attorney Robert Peckham had turned up in court claiming that the U. S. Federal Courts could possibly have exclusive jurisdiction over Carmen because he was an Indian.

The appeals court shrugged its shoulders at Peckham’s suggestion, saying that the fact that Carmen was an Indian didn’t count. This was all defense attorney Mason Bailey needed. He let loose with a barrage of petitions that kept Carmen out of the gas chamber and the courts busy for several years. Petition followed petition and reprieve followed reprieve until a meeting of the California State Supreme Court in August of 1957.

At that hearing, the court sought the services of a referee, John P. McMurray, Judge of the Superior Court of Inyo County. The court wanted to know if Carmen was an Indian in the legal sense of the word. McMurray answered unequivocally, Yes.

“Carmen and his victim, McSwain,” explained McMurray, “belonged to a tribe of Indians, namely, the Mono Indians who live in the North Fork area in Madera County in this state.”

“The extent, nature and character of the tribal organization to which these men belonged was a loose type of tribal organization, which, however, has its own language. Perhaps the main distinguishing tribal feature is a primitive burial ceremony upon the death of a member of the tribe.”

“Some members of the tribe still weave baskets of distinctive designs and use the cradleboard of ‘hoops’ in which to carry babies.”

“The members of the tribe at times meet in order to raise money to protect their interests as Indians. They also hold social gatherings several times a year which are restricted to the members of the tribe. It is customary for members of the tribe to collect acorns which are ground into flour and meal and are baked into bread. They also consider the butterfly worm as a delicate item of diet.”

Even with this, the State Supreme Court still ruled against Bailey, who by now was insisting, and insisting quite loudly, that because Carmen was an Indian, Madera County had had no business trying him for murder in the first place. By Sept. 1958, the determined barrister made his way into Federal Court where one more interesting fact was uncovered.

On September 12, 1958, the United States District Court, N.D. California, heard Bailey’s petition for a Writ of Habeas Corpus. In considering the Writ, the court noted that in neither of Carmen’s trials were the prosecutor, the defense attorney, nor the judge aware of something known as “The Ten Crimes Act.” This legislation was passed in 1885 and provided that any Indian who committed any of the ten listed crimes in Indian Country (murder was one) had to be tried in a Federal Court just as if the crime had been committed on an Indian Reservation. The court considered the “Maggie Jim Allotment” where the crime took place, to be “Indian Country. Thus Carmen had to be released from custody and tried in a Federal Court.

The Warden released him to federal marshals who held him in custody in Fresno. For the first time in eight years, while he may not have been out of jail, Rayna Carmen was finally out from under a death cloud — at least for the time being.

A two-year court battle then ensued over whether or not the “Maggie Jim Allotment” constituted “Indian Country,” and when a Federal Court ruled that it fit the legal definition of “Indian Country,” a federal grand jury issued a murder indictment against Carmen. Before he could be tried however, Fresno Judge M.D. Crocker stepped in to order another extensive psychiatric examination for Carmen. As a result, Carmen never stood trial again for the murder of Wilbur McSwain. He was sent to a federal mental institution in St. Louis, Missouri.

For the next three years, psychiatrists argued back and forth over Carmen’s sanity, and the murder charge was finally dismissed. He remained in the Missouri institution for another four years and then was released and returned to North Fork, and then history repeated itself, in a way.

On March 4, 1982, Carmen was convicted of killing Shirley A. Sherman in the parking lot of the Buckhorn Bar after running her down with his car. He was sentenced to 24 years in prison and died in Vacaville in 1986. He was brought back to North Fork once more, and now he lies in the same North Fork cemetery that holds his first victim, Wilbur McSwain.

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