The fact that a marriage license has been issued carries with it
a presumption that all statutory prerequisites thereto have been
complied with, and one who claims to the contrary must
affirmatively show the fact.
Persons coming to a public office to transact business who find
a person in charge of it and transacting its business in a regular
way are not bound to ascertain his authority to so act; but to them
he is an officer de facto,
to whose acts the same validity
and the same presumptions attach as to those of an officer de
The evidence shows that the deceased sought, in his lifetime, to
become a citizen of the Cherokee Nation, took all the steps he
supposed necessary therefor, considered himself a citizen, and that
the Cherokee Nation in his lifetime recognized him as a citizen and
still asserts his citizenship. Held
that, under those
circumstances, it must be adjudged that he was a citizen by
adoption, and consequently that the jurisdiction over the offense
charged is, by the laws of the United States and treaties with the
Cherokee Nation, vested in the courts of that Nation.
The case is stated in the opinion.
MR. JUSTICE BREWER delivered the opinion of the Court.
Plaintiffs in error were indicted in the Circuit Court of the
United States for the Western District of Arkansas for the murder
of Fred Rutherford "at the Cherokee Nation in the Indian country"
on December 15, 1895. They were tried in May, 1896, found guilty by
the jury, and, on June 12, the verdict having been sustained, they
were sentenced to be hanged.
The principal question, and the only one we deem it
Page 164 U. S. 658
to notice, is as to the jurisdiction of the court. The
defendants were full-blooded Cherokee Indians. The indictment
charged that Rutherford was "a white man and not an Indian," but
testimony was offered for the purpose of showing that although a
white man, he had been adopted into the Cherokee Nation, which, if
proved, would oust the federal court of jurisdiction within the
rule laid down in Alberty v. United States, 162 U.
. In that case, it was held that the courts of the
Nation have jurisdiction over offenses committed by one Indian upon
the person of another, and this includes, by virtue of the
statutes, both Indians by birth and Indians by adoption. The
Cherokee Nation claimed jurisdiction over the defendants. This
claim was denied by the circuit court, which held that the evidence
of Rutherford's adoption by the Nation was not sufficient, and that
therefore the United States court had jurisdiction of the offense.
An amendment in 1866 to section 5 of article 3 of the Cherokee
Constitution gives the following definition of citizenship:
"All native-born Cherokees, all Indians, and whites legally
members of the Nation by adoption, . . . and their descendants, who
reside within the limits of the Cherokee Nation, shall be taken and
be deemed to be citizens of the Cherokee Nation."
(Laws of Cherokee Nation, 1892, p. 33.) The Cherokee statutes
make it clear that all white men legally married to Cherokee women
and residing within the Nation are adopted citizens. (Sections
659-663, 666 and 667, Laws of the Cherokee Nation, 1892, pp. 329
and following.) Section 659 requires that before such marriage
shall be solemnized, the party shall obtain a license from one of
the district clerks. Sections 660 and 661 provide that one applying
for such license shall present to the clerk a certificate of good
moral character, signed by at least ten respectable citizens of the
Cherokee Nation, and shall also take an oath of allegiance. On
October 4, 1894, Rutherford was married to Mrs. Betsy Holt, a
Cherokee woman. The marriage license, with the certificate of the
minister of the performance of the ceremony, and the endorsement of
the record of the certificate, is as follows:
Page 164 U. S. 659
"Cherokee Nation, Tablequah District"
"To any person legally authorized, greeting:"
"You are hereby authorized to join in the holy bonds of
matrimony and celebrate the rites and ceremonies of marriage
between Mr. Fred Rutherford, a citizen of the United States, and
Mis' Betsy Holt, a citizen of the Cherokee Nation, and you are
required to return this license to me for record within thirty days
from the celebration of such marriage, with a certificate of the
same appended thereto and signed by you."
"Given under my hand and seal of office this the 28th day of
"[Seal of Tablequah District, Cherokee Nation.]"
"R. M. Dennenberg"
"Deputy Clerk, Tablequah District
"This certifies that Mr. Fred Rutherford, of Tablequah District,
C.N., I.T., and Mrs. Betsy Holt, of Tablequah Dist., Cherokee
Nation, I.T., were by me united in the bonds of marriage at my home
on the 4th day of October, in the year of our Lord eighteen hundred
and ninety-four, conformable to the ordinance of God and the laws
of the Cherokee Nation."
"Evans P. Robertson,"
"Minister of the Gospel
"Witness Present at the Marriage
"I hereby certify that the within certificate of marriage has
this day been by me recorded on page 28, Record of Marriages, in
the clerk's office in Tablequah District, Cherokee Nation, this
Feb. 4th, 1896."
"[Seal of the Tablequah District, Cherokee Nation]."
"Deputy Clerk, Tablequah District, Cherokee Nation
The performance of the marriage ceremony was also proved by the
minister, a regularly ordained Presbyterian preacher. T. W.
Triplett was the clerk of the Tablequah District at the date of
this certificate. R. M. Dennenberg was his deputy,
Page 164 U. S. 660
but at the time of the issue of the license, both the clerk and
his deputy were absent, and the signature of the deputy was signed
by Juhn C. Dennenberg, his son. The clerk, the deputy, and his son
each testified that the latter was authorized to sign the name of
the clerk or the deputy in the absence of either, and that the
business of the office was largely transacted by this young man,
although not a regularly appointed deputy. He made quarterly
reports, fixed up records, and issued scrip, and his action in
these respects was recognized by the clerk and the Nation as valid.
No petition, as required by the statute, was found among the papers
of the office, but there was testimony that all the papers of the
office had been destroyed by fire since the date of the marriage
license, and the younger Dennenberg testified that a petition was
presented containing the names of ten citizens; that he could not
remember the names, but at the time made inquiry and satisfied
himself that they were all respectable Cherokee citizens. There was
testimony also that Rutherford offered to vote at an election
subsequent to his marriage; that his vote was challenged, and on
inquiry it was ascertained that he was a Cherokee citizen, and his
vote received. Upon these facts, the question is presented whether
Rutherford was a Cherokee citizen by adoption. The circuit court
held that the evidence was insufficient to show that fact, and that
therefore that court had jurisdiction.
With this conclusion we are unable to concur. The fact that an
official marriage license was issued carries with it a presumption
that all statutory prerequisites thereto had been complied with.
This is the general rule in respect to official action, and one who
claims that any such prerequisite did not exist must affirmatively
show the fact. Bank of United States v.
12 Wheat. 64, 25 U. S. 70
4 How. 327; Butler v.
9 Wall. 766; Weyauwega v. Ayling,
99 U. S. 112
Gonzales v. Ross, 120 U. S. 605
Callaghan v. Myers, 128 U. S. 617
Keyser v. Hitz, 133 U. S. 138
Knox County v. Ninth National Bank, 147 U. S.
, 147 U. S. 97
this last case, it is said:
"It is a rule of very general application, that where an act is
done which can be done
Page 164 U. S. 661
legally only after the performance of some prior act, proof of
the later carries with it a presumption of the due performance of
the prior act."
It is true that the younger Dennenberg, who signed the marriage
license, was neither clerk nor deputy, but he was an officer de
if not de jure.
He was permitted by the clerk
and the deputy to sign their names. He was the only person in
charge of the office. He transacted the business of the office, and
his acts in their behalf and in the discharge of the duties of the
office were recognized by them and also by the Cherokee Nation as
valid. Under those circumstances, his acts must be taken as
official acts, and the license which he issued as of full legal
force. As to third parties at least, he was an officer de
and if an officer de facto,
the same validity
and the same presumptions attached to his actions as to those of an
officer de jure.
Again, it is evident that Rutherford intended to change his
nationality, and become a Cherokee citizen. He took the steps which
the statute prescribed, and did, as he supposed, all that was
requisite therefor. He was marrying a Cherokee woman, and thus to a
certain extent allying himself with the Cherokee Nation. He sought
and obtained the license which was declared legally prerequisite to
such marriage if he intended to become an adopted citizen of that
Nation. That he also obtained a marriage license from the United
States authorities does not disprove this intention. It only shows
that he did not intend that there should be any question anywhere,
by any authority, as to the validity of his marriage. He asserted,
and was permitted to exercise, the right of suffrage as a Cherokee
citizen. Suppose, during his lifetime, the Cherokee Nation had
asserted jurisdiction over him as an adopted citizen; would he not
have been estopped from denying such citizenship? Has death changed
the significance of his actions? The Cherokee Nation not only
recognized the acts of young Dennenberg as the acts of the clerk,
but, since the death of Rutherford, it has asserted its
jurisdiction over the Cherokees who did the killing -- a
jurisdiction which is conditioned upon the fact that the party
killed was a Cherokee citizen.
Page 164 U. S. 662
It appears, therefore, that Rutherford sought to become a
citizen, took all the steps he supposed necessary therefor,
considered himself a citizen, and that the Cherokee Nation in his
lifetime recognized him as a citizen, and still asserts his
citizenship. Under those circumstances, we think it must be
adjudged that he was a citizen by adoption, and, consequently, the
jurisdiction over the offense charged herein is, by the laws of the
United States and treaties with the Cherokee Nation, vested in the
courts of that Nation.
The judgment of the circuit court must be reversed, and the
case remanded with instructions to surrender the defendants to the
duly constituted authorities of the Cherokee Nation.