Under the provision in the Indian Appropriation Act of June 21,
1906, c. 3504, 34 Stat. 325, 366, making it unlawful for traders on
the Osage Indian Reservation to give credit to any individual
Indian head of a family for any amount exceeding seventy-five
percentum of his next quarterly annuity, the burden of proof is on
the person taking and attempting to enforce a note to bring his
claim within the permission of the statute.
The order of pleading does not always determine the burden of
proof. While generally the payee of a note need not allege
consideration in declaring upon it, if there is conflicting
evidence. he has the burden of proof.
Quaere whether the fact that a note is very largely in
excess of the amount permitted to be given by statute does not
constitute a
prima facie case against the holder even if
the burden were not upon him.
25 Okl. 160 reversed.
The facts, which involve the construction and application of the
Act of June 21, 1906, making it unlawful for traders on the Osage
Reservation to give credit beyond a certain amount to Indians, are
stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action on a promissory note for $922.50, dated
September 1, 1906, against an Osage Indian residing on
Page 231 U. S. 682
the Osage Reservation. By the Indian appropriation act of June
21, 1906, c. 3504, 34 Stat. 325, 366, it was made
"unlawful hereafter for the traders upon the Osage Indian
Reservation to give credit to any individual Indian, head of a
family, to an amount greater than seventy-five percentum of the
next quarterly annuity to which such Indian will be entitled."
This amended the previous Act of March 3, 1901, c. 832, 31 Stat.
1058, 1065, by which the limit was 60 percentum. The defendant
demurred, and the demurrer having been overruled, answered that the
note was given for a debt in excess of 57 percent of the next
quarterly annuity due to him after the credit was extended, and
that the note exceeded that amount. It appeared in evidence that
the plaintiff, the defendant in error, was a licensed trader with
the Indians, and the defendant testified that he received as his
quarterly payment $46 for each of the seven members of his family,
which would be $322, in any event, much less than $922.50. It was
not shown when the credits were given. The plaintiff demurred to
the evidence, and the demurrer was sustained by both courts below.
25 Okl. 160.
The supreme court of the state put its decision on the burden of
proof, following the analogy of illegal consideration. We hardly
need consider whether proof that the note was so largely in excess
of the percentage then allowable, especially when coupled with the
improbability that the defendant ever had received in the past an
annuity so much larger as to warrant such a credit, did not
constitute at least a
prima facie case. The Court is of
opinion that, in view of the policy of the statute, the relative
position of the parties, and the protection necessarily extended to
Indians, the burden was on the plaintiff not only to bring his
claim within the permission of the statute in fact as he was warned
by its letter that he must, but also to prove that he had done so,
in case of dispute. He occupied
Page 231 U. S. 683
the position of advantage, and that, rather than formal logic,
determines the burden of proof. It may be that it lay on the
defendant to plead the defense. That is a question of convenience.
Burnet v. Desmornes, 226 U. S. 145,
226 U. S. 147.
But the order of pleading does not always determine the burden of
proof. Generally it is not considered necessary for the payee of a
promissory note to allege a consideration in declaring upon it, but
if there is conflicting evidence, he has the burden of proof.
Delano v. Bartlett, 6 Cush. 364;
Burnham v.
Allen, 1 Gray 496.
Judgment reversed.
