A report of the names of Indians and half-breeds entitled to
participate in an allotment of land, made under the Act of July 31,
1554, 10 Stat. 315, to the Indian Bureau under instructions to
report in full a list of all applicants, showing names, age, sex,
etc., is not admissible in evidence
Page 153 U. S. 110
in an action between two parties, each of whom claims under the
same person and the same allotment in order to show the age of that
person at the time of the allotment.
In view of the Nebraska statutes concerning the operation of
statutes of limitation, there was no error in the instruction of
the court below in that respect.
J. D. Hegler, a citizen of the State of Ohio, brought an action
in the District Court of Richardson County, Nebraska, on October 4,
1878, against George Faulkner, James Cottier, August Schoenheit,
and Edwin S. Towle, citizens of the State of Nebraska, to recover
from the defendants the possession of certain land situated in the
County of Richardson, to which land the plaintiff, in his petition,
claimed title, and also to recover the rents and profits of the
said property for the period of which such possession had, as
alleged, been withheld. Upon motion of the defendants, the case was
removed, on March 25, 1879, into the Circuit Court of the United
States for the District of Nebraska, where the defendants filed an
answer to the petition on May 17, 1879, denying that the plaintiff
then had, or had ever had, any title to the land in question and
asserting title thereto in themselves. The case was tried in the
circuit court before the court and a jury, and a verdict having
been found for the defendants, judgment in their favor was entered
on January 10, 1885. The case was then brought to this Court upon a
writ of error sued out by the plaintiff, but because the record, as
then filed, contained no petition or order for the removal of the
case from the state court to the said circuit court nor any
statement of the citizenship of the parties, and because it did not
appear therefore that the circuit court had had jurisdiction of the
case, the judgment was reversed, and the case remanded for further
proceedings.
127 U. S. 127 U.S.
482. Those defects in the record were afterwards cured, and on June
13, 1889, judgment was again entered in the court below in favor of
the defendants, and the plaintiff again sued out a writ of error
from this Court.
On the trial, the plaintiff introduced evidence tending to show
that on April 15, 1859, George Washington, a half-breed
Page 153 U. S. 111
Indian of the Iowa Tribe, received from William M. Stark,
special Indian agent, a certificate of allotment of the land in
controversy, issued by virtue of the provisions of the Act of
Congress of July 31, 1854, c. 167, § 5 [4], 10 Stat. 316, 332,
which gave effect to a treaty made on July 30, 1830, 7 Stat. 328,
under which certain lands belonging to the tribes which joined in
the treaty were set apart for the half-breeds of those tribes by
directing the President to cause the reserved tracts described in
the treaty to be surveyed and allotted in fee simple to the persons
entitled to receive them; that on April 16, 1859, George Washington
conveyed the land so allotted to him to Houston Nuckolls; that
Nuckolls conveyed the same, on April 20th, to A. S. Ballard; that
Ballard conveyed to James McMillan on September 16th, and that on
October 13, 1859, McMillan conveyed to the plaintiff. On September
10, 1860, as the plaintiff's evidence further tended to show,
George Washington received from the government a duly executed
patent for the land.
The defendants also claimed to derive title from George
Washington, the evidence on their behalf tending to prove that by
deed dated November 3, 1866, he conveyed the land to the defendants
Schoenheit and Towle, and that on February 28, 1868, he executed
another deed to the same parties for the same property.
For the purpose of showing that George Washington was of full
age when he transferred the land to Nuckolls, the plaintiff offered
in evidence a list bearing the heading, "Office of Indian Affairs,"
the date February 4, 1858, and containing the name, sex, age,
degree of blood, and tribe of certain Indians. Upon this list was
the name of George Washington, and opposite the name appeared the
figures "20" in the column headed "Age." The agent, Stark,
testified that this list was received by him from the Indian
Department, and that it contained the names of the half-breeds
entitled to allotment of land in the reservation described in the
treaty.
To show under what directions of the government the list was
prepared, the plaintiff offered in evidence a letter from the
Commissioner of Indian Affairs to Joseph L. Sharp, which
Page 153 U. S. 112
began with a statement of the provisions of the treaty above
referred to, and of the said act of Congress, and proceeded as
follows:
"To enable the President to comply with the act, it is necessary
to ascertain the number and names of the half-breeds and mixed
bloods entitled to participate. You have been appointed
commissioner to act under the following instructions: to give
notice for all persons interested to appear before you with their
applications and evidence. Before commencing to take testimony,
consult with the Indian agents and chiefs of the tribes. In making
report, have regard not merely to proof applicants may submit, but
also to information from above-mentioned and other sources you
consider reliable. You will be furnished by the superintendent of
Indian affairs at St. Louis with all the information he may
discover bearing on the subject. I direct that you prepare your
report in full to embrace a list containing names of all
applicants, arranged by tribes and families and single persons,
showing names, age, sex, relationship to the tribe, place of
residence, who are orphans or wards, and such other facts as you
consider useful and proper. In every case, whether admitted or
rejected, give briefly your reasons. Transmit your report, with
evidence taken, to this office without delay. The several Indian
agents for the particular tribes will be instructed to render you
all proper assistance in the premises. Before commencing your
duties, take and subscribe an oath of office, before some officer
authorized to administer oaths, that you will support the
Constitution of the United States and faithfully discharge your
duties as such commissioner, which transmit to this office."
Upon objection made by the defendants, the court excluded the
portion of Stark's testimony relating to the list, and refused to
admit the list or the letter of instructions to Sharp in evidence.
To these acts of the court the plaintiff excepted, and likewise to
certain instructions given and refused.
Page 153 U. S. 115
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The plaintiff contended in the court below that the Indian
George Washington was of full age on April 16, 1859, the date of
the conveyance to Nuckolls, or at all events so represented himself
to be, and that Nuckolls relied upon such representations and
purchased and paid for said land accordingly. These questions of
fact were submitted by the court to the jury, and found by them in
favor of the defendants.
The errors assigned are to the action of the court in rejecting
evidence offered by the plaintiff and in refusing instructions
asked for by him. The first offer was that of an exemplification
from the records of the Indian Department of instructions given to
one Joseph L. Sharp, dated May 14, 1856, under which Sharp acted as
an agent for the United States in ascertaining the number and names
of the half-breeds entitled to participate in the division of the
lands granted by the Treaty of Prairie du Chien. Among such
instructions, the agent was directed to prepare
"a report in full, to embrace a list containing names of all
applicants, arranged by tribes and families and single persons,
showing names, age, sex, relationship to the tribe, place of
residence, who are orphans or wards."
This was followed by an offer of a certified copy of a
census
Page 153 U. S. 116
or list of half-breeds entitled to lands, bearing the heading
"Office of Indian Affairs," dated February 4, 1858, containing the
name, sex, age, degree of blood, and tribe of certain Indians. Upon
this list was the name of George Washington, and opposite the name
appeared the figures "20" in the column headed "Age." The purpose
of these offers was stated to be to show that George Washington was
twenty years of age at that date February 4, 1858, and that he was
therefore of full age when, on April 16, 1859, he conveyed the land
allotted to him to Houston Nuckolls. The court below regarded the
evidence offered as inadmissible for that purpose, and the
rejection of the offers is the subject of the first and second
assignments of error.
As leading up to the controlling question -- namely, the age of
the half-breed George Washington -- the offer of the instructions
under which the agent acted in procuring information for his report
would seem to be unobjectionable, but its rejection would not
constitute reversible error unless the offer that followed was
admissible. That was the offer to put in evidence a census or list
filed in the office of Indian affairs, containing the names and
ages of half-breeds who, upon testimony presented to that office,
were regarded as entitled to participate in the allotments or
assignments of the lands awarded by the treaty. If the latter offer
was not a proper one, then the rejection of the preceding offer was
immaterial.
Was, then, this list filed in the Indian Department, and which,
or a copy of which, had been sent to William M. Stark, special
agent to assign or allot these lands, admissible in evidence in a
legal controversy, to prove the age of one of said Indians?
It is contended on behalf of the plaintiff in error that this
list is in the nature of a finding or judgment of the executive
department of the government in matters committed specially to the
President by Congress; that the allotment of these lands to the
half-breeds was expressly devolved upon the President by act of
Congress, 10 Stat. 332, in order to carry out the treaty; that this
act of Congress was one making appropriations for the Indian
Department, and for fulfilling treaty
Page 153 U. S. 117
stipulations; that the department, under the directions of the
President, made rules and regulations to enforce this provision of
law, and did enforce it.
It is indeed true that the President speaks and acts through the
heads of the several departments in relation to subjects that
pertain to their respective duties, and that the allotment of these
lands by the Indian Department must be considered as made by the
President in pursuance of the terms of the act of Congress and of
the treaty. And it may be admitted that the decision of the special
Indian agent, in identifying the Indian half-breeds entitled to
participate and in allotting the portion of each, would, in the
absence of fraud, be conclusive.
Wilcox v.
Jackson, 13 Pet. 498,
38 U. S.
511.
Conclusiveness is a characteristic of the judgment of every
tribunal acting judicially, while acting within the sphere of its
jurisdiction, where no appellate tribunal is created. But such
conclusiveness is restricted to those questions which are directly
submitted for decision. In the case in hand, doubtless the identity
of the half-breed George Washington and his right to receive the
land in question as his share of the lands appropriated by the
treaty were finally found. But neither the treaty, the act of
Congress, nor the instructions of the department contemplated any
special inquiry into the ages of the Indians. It is true that in
the letter of instructions the agent was directed to report as well
the age as the sex and tribal relations of the claimants. But this
was merely to enable the agent, when he came to allot the lands, to
identify the persons entitled to participate. When the allotment
was completed and was followed first by a certificate and finally
by a patent, the purposes of the inquiry were fulfilled, and the
list used to aid the government functionaries in the task of
allotting the lands cannot be regarded as a record to be resorted
to afterwards, in disputes between other parties, to prove the age
of the Indians. No provision was made in either the act of Congress
or the rules and regulations of the Indian Department to preserve
the list as a muniment of title, much less as a public record
admissible to prove merely incidental recitals based on hearsay.
Such a
Page 153 U. S. 118
list does not come within the rule which permits, for some
purposes, the use of
"official registers or records kept by persons in public office
to write down particular transactions occurring in the court of
their public duties or under their particular observation."
1 Greenl. Ev. § 483.
"It must be remembered that official registers are not, in
general, evidence of any fact not required to be recorded in them
and which did not occur in the presence of the registering officer.
Thus, a parish register is evidence only of the time of a marriage
and of its celebration
de facto, for these are the only
facts necessarily within the knowledge of the party making the
entry. So a register of baptism, taken by itself, is evidence only
of that fact. Neither is the mention of the child's age in the
register of christenings proof of the day of its birth to support a
plea of infancy."
1 Greenl.Ev. § 493.
In
Mutual Benefit Life Ins. Co. v. Tisdale,
91 U. S. 238, where
the right of action depended on the death of a third person, it was
held that letters of administration upon the estate of such person,
granted by the proper probate court in a proceeding to which the
defendant was a stranger, afforded no legal evidence of such death,
and it was said:
"The only ground for the admission of the letters of
administration is that granting them is a judicial act; but a
judgment is not evidence of any matter to be inferred by argument
therefrom, or which comes collaterally in question, or is
incidentally cognizable,"
citing the
Duchess of Kingston's Case, and many
others.
In
Connecticut Life Ins. Co. v. Schwenk, 94 U. S.
593, it was held that an entry in the minute book of a
lodge of Odd Fellows, of which the deceased was a member, made
prior to the issue of a policy and showing his age as recorded by
the secretary of the lodge in the usual manner of keeping its
records, was not admissible as evidence of such age.
We do not deem it necessary to discuss this question at greater
length. Our conclusion is that the court below did not err in
excluding the list offered. It was not an official record, intended
as a mode of preserving the recollection of
Page 153 U. S. 119
facts, nor was it based upon the personal knowledge of the party
making the entry. It was mere hearsay.
Error is assigned to the instructions given by the court to the
jury on the subject of disaffirmance by George Washington within a
reasonable time after becoming of age. The statutes of Nebraska on
this subject are as follows:
"SEC. 42. A minor is bound not only by contract for necessaries,
but also by his other contracts unless he disaffirms them within a
reasonable time after he attains his majority and restores to the
other party all money or property received by virtue of the
contract and remaining within control of the ward at any time after
attaining his majority."
"SEC. 43. No contract can be thus disaffirmed in cases where, on
account of the minor's own misrepresentations as to his majority or
from his having engaged in business as an adult, the other party
had good reason to believe the minor capable of contracting."
Sess.Laws Neb., 2d Session, 1856, 165.
The instruction excepted to was in the following terms:
"There might be some question about the rescinding of the
contract within a reasonable time; but if the testimony should
satisfy the jury that George Washington was but fifteen or sixteen
years old, or thereabout, in 1859, when it is claimed he made the
deed to Houston Nuckolls, then it would take until 1865 for him to
attain his majority, and he would have to disaffirm the contract
within a reasonable time after attaining his majority, and within a
year or so would be a reasonable time."
The ground of the objection is the contention that a reasonable
time for an infant to disaffirm is not a question of law, but a
question of fact, to be determined upon the circumstances of each
case.
It cannot be fairly said that the court below treated the
question as one of law, and gave a binding instruction upon it. On
the contrary, the question was left to the jury, with the
observation that within a year or so would be a reasonable time.
The Nebraska statute contains the following section:
"SEC. 246. The above limitations of action for the
Page 153 U. S. 120
recovery of real property shall not apply to minors so far as to
prevent them from having at least one year after attaining their
majority within which to commence such actions."
There is no substantial difference between "at least one year
after attaining majority" and "within a year or so;" and, even if
the remark of the learned judge be regarded as an instruction, it
would seem, by analogy to the statute of limitations, to have been
well founded.
The record discloses several other exceptions, but they do not
seem to be relied on in the brief of the plaintiff in error. It is
said that the charge contained inconsistencies, and must have
confused the jury. Such a statement is not entirely without
foundation, but we think that, upon the whole, the case was fairly
submitted. It is obvious that the case turned upon the question as
to the age of George Washington at the time of the allotment and at
the time of making the conveyance by him to Houston Nuckolls, under
whom the plaintiff claims, and that question is treated in the
briefs of both parties as the controlling one in issue.
With the list furnished by the department for the use of the
agent out of the case, the weight of the evidence as to the
minority of the half-breed at the time of his conveyance to
Nuckolls was plainly with the defendants, and warranted the verdict
of the jury in their behalf.
The judgment of the court below is
Affirmed.
