On the trial of a Choctaw Indian for the murder of a negro at
the Choctaw Nation, in the Indian Country, the status of the
deceased is a question of fact, to be determined by the evidence,
and the burden of proof is on the government to sustain the
jurisdiction of the court by evidence. statements alleged to have
been made by the negro in his life time that he
did not belong to the Indian Country are not admissible for that
purpose.
Defendant was indicted in the Circuit Court of the United States
for the Western District of Arkansas, February 15, 1895, for the
murder at the Choctaw Nation, in the Indian Country, of one Levy
Kemp, who was alleged in the indictment to have been "a negro, and
not an Indian." Having been tried and convicted, he was sentenced
to death. He then sued out a writ of error from this Court.
It was proven at the trial that defendant was a Choctaw Indian,
and that Kemp was, by blood, a negro. The crime was alleged to have
been committed in the fall of 1894.
The Indian tribes residing within the territorial limits of the
United States are subject to their authority, and, where the
country occupied by them is not within the limits of any one of the
states, Congress may, by law, punish any offense there committed.
See In re Mayfield, 141 U. S. 106,
141 U. S. 112,
and cases there cited. By section 8 of article VIII of the Treaty
between the Choctaw and Chickasaw Indians, concluded April 28,
1866, 14 Stat. 769, 773, it was agreed by those Indians that a
court or courts might be established in the Indian Territory, with
such jurisdiction and organization as Congress might prescribe,
provided that the same should not interfere with the local
judiciary of said Nations.
The jurisdiction of the Circuit Court of the United States for
the Western District of Arkansas was made to extend, by section
533, Revised Statutes, to "the county lying west of Missouri and
Arkansas known as the
I
ndian Territory.'"
Page 163 U. S. 613
Subsequently, by the Act of Congress of January 6, 1883 (22
Stat. 400, c. 13, section 2), and the Act of March 1, 1889, 25
Stat. 786, c. 333, section 17, certain parts of the territory were
annexed, respectively, to the District of Kansas and the Eastern
District of Texas, leaving that part of the territory which
includes the portion of the Choctaw Nation in which this case arose
to remain within the Western District of Arkansas.
Section 2145, Revised Statutes, provides that except as regards
certain crimes,
"the general laws of the United States as to the punishment of
crimes committed within the sole and exclusive jurisdiction of the
United States, except the District of Columbia, shall extend to the
Indian Country,"
and by section 2146 it is provided that "the preceding section
shall not be construed to extend to crimes committed by one Indian
against the person or property of another Indian."
And by the Act of May 2, 1890,
"to provide a temporary government for the Territory of
Oklahoma, to enlarge the jurisdiction of the United States court in
the Indian Territory, and for other purposes"
it is provided
"that the judicial tribunals of the Indian Nations shall retain
exclusive jurisdiction in all civil and criminal cases arising in
the country in which members of the Nation by nativity or by
adoption shall be the only parties,"
etc.
By the third article of the above-mentioned treaty with the
Choctaws and Chickasaws, they, in consideration of the sum of
$300,000, ceded to the United States certain territory, with the
provision that the said sum should be invested and held in trust
for the said Nations by the United States at interest until the
Legislatures of the Choctaw and Chickasaw Nations, respectively,
should have made such laws, rules, and regulations as might be
necessary to give all persons of African descent, resident in the
said Nations at the date of the Treaty of Fort Smith, and their
descendants, held in slavery among the said Nations previous to the
date of the treaty, all the rights, privileges, and immunities,
including the right of suffrage, of citizens of said Nations, etc.
The second article provided that slavery in the said two nations
should be at once abolished.
Previous to the year 1879, the Choctaw Nation had manifested
Page 163 U. S. 614
a willingness to adopt its freedmen, but the question seems to
have arisen whether the joint or concurrent action of both Nations
was not required to make the adoption by either Nation valid. It is
understood that the Chickasaws, for some reason, refused to agree
to any plan of adoption into their Nation of the freedmen belonging
therein, and that therefore the Choctaw National Council, on
November 2, 1880, sent a memorial to Congress expressing their
willingness to accept their freedmen as citizens and asking for
legislation that would enable them to do so. The only result of
this memorial seems to have been the introduction of a Senate bill,
which was never reported. Two years later, however, in 1882, a
clause was inserted in the Indian appropriation bill, Act of May 17
of that year, c. 163, 22 Stat. 68, 72, providing for the
appropriation of the sum of $10,000 out of the $300,000 reserved by
the third article of the treaty above referred to for the purpose
of educating freedmen of the Choctaw and Chickasaw Nations, to be
expended in the manner directed by the act, and providing further
that either of said Nations might, before the expenditure of the
money so appropriated, adopt and provide for the freedmen of the
said Nations, respectively, and that in such case its proportion of
the money appropriated should be paid over to such Nation. Under
this provision, the Choctaw Nation adopted its freedmen as citizens
by an Act of its legislature of May 21, 1883. This action of the
Choctaw Nation is referred to in the Indian Appropriation Act of
March 3, 1885, 23 Stat. 362, 366.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
It has recently been decided by this Court, in the case of
Alberty v. United States, 162 U.
S. 499, that the Act of May 2, 1890, wherein it provides
that the judicial tribunals of the Indian Nations shall retain
exclusive jurisdiction in all civil
Page 163 U. S. 615
and criminal cases arising in the country in which members of
the Nation by nativity or by adoption shall be the only parties, is
to be construed as meaning the parties to a crime, as well as
parties to a civil controversy, and as, under the present condition
of the laws pertaining to the Choctaw tribe, negroes who have been
adopted into the tribe are within the jurisdiction of its judicial
tribunals, it follows that the averment in the indictment in the
present case that Levy Kemp, the murdered man, was a negro, and not
an Indian, was the averment of a jurisdictional act, which it was
necessary for the prosecution to sustain by competent evidence.
Such averment implied that there were negroes who were, and those
who were not, Indians, in a jurisdictional sense.
As the accused was a Choctaw Indian, as the killing took place
in the Indian Territory, and as Kemp was alleged and conceded to be
a negro, the question arises what was the legal presumption as to
the latter's citizenship? Is it to be presumed that he was a
citizen of the United States, or that he was a member and citizen
of the Choctaw tribe?
We understand the learned judge to have assumed that the
presumption was that Kemp was not a member of the Choctaw tribe,
and to have so instructed the jury. His language on this subject
was as follows:
"In the first place, you are required to find that Kemp, the man
killed, or the unknown man, if you should believe his name has not
been established, was a negro, and not an Indian. That means he was
a citizen of the United States. That means that the court has
jurisdiction of the case under the law. You may find that
proposition by circumstances, as well as by what is called
'positive proof.'"
In disposing of the motion for a new trial, the judge said:
"Now it may be said that there are some people who are negroes
who are adopted into that Nation, but that is the exception to the
rule. That is an exception to the general rule. The proof in this
case, as we find by proceeding further on, shows that the deceased,
in this case, was not one of that class. It is certainly a correct
rule of law, when you come to an exception of that character, when
you find a man who is a
Page 163 U. S. 616
negro by blood said to be such, and there was no controversy
over that, and the government proves that fact, that makes a
prima facie case of jurisdiction, because it shows that he
belonged to a race that, as a rule, are not of the Indian race, and
they are only of such Indian race by adoption. When that fact is
proven, it makes a
prima facie case of jurisdiction."
The view of the trial judge therefore seems to have been that a
finding of the fact that the deceased was a negro established the
jurisdiction of the court by reason of a presumption that a negro,
though found within the Indian Territory, was not a member of the
tribe.
In so holding, we think the court erred. If there is any
presumption in such a case, it rather is that a negro found within
the Indian Territory, associating with the Indians is a member of
the tribe by adoption. But we prefer in the present case not to
invoke such a presumption, but to regard the status of the deceased
as a question of fact, to be determined by the evidence. This was
the theory of the indictment, as the allegation concerning Kemp's
citizenship was not restricted to his being a negro, but added the
averment, "not an Indian."
So, too, it is obvious that the attorney for the government did
not rely upon a presumption that a negro found in the Indian
Country was not a member of the tribe, but undertook to sustain the
jurisdictional averment of the indictment by affirmative evidence.
John Le Flore was called by the government to prove that Kemp was
not a resident of the Indian Country, but had come from a place
named "Mt. Kemp," near Little Rock, Arkansas. It is scarcely
necessary to observe that in the case of
United
States v. Rogers, 4 How. 537, where it was held
that Rogers, a white man, was indictable in the circuit court of
the United States for an offense committed in the Indian Territory,
although he had become a member of the Cherokee Tribe, there was no
statute in terms extending jurisdiction of the Indian courts in
civil and criminal cases over their adopted citizens.
Assuming that the government adduced competent evidence tending
to show that Kemp was not a member of the tribe, still the
admission of such evidence would not cure the error
Page 163 U. S. 617
of the instruction as to the presumption. The burden of proof
was on the government to sustain the jurisdiction of the court by
evidence as to the status of the deceased, and the question should
have gone to the jury as one of fact, and not of presumption.
But we are of opinion that the evidence put in by the government
on this question was not competent. It consisted of statements
alleged to have been made by the deceased, in his lifetime, to Le
Flore, the witness, that he did not belong to the Indian Country,
but had come from Arkansas. Such statements do not come within any
rule permitting hearsay evidence. The trial judge appears to have
regarded the testimony as within the rule that declarations of
deceased persons, made against their interest, are admissible; that
as a colored man adopted in the Choctaw Nation gets benefits,
rights, and privileges, a declaration made by him against that
interest would be competent. It may be that in a controversy on
behalf of a deceased negro's right, or that of his representatives,
to participate in the property of the Nation, such admissions might
be competent. But this case is not within any such rule. The object
of the evidence here was not to enforce any rights or claims of the
deceased against the Choctaw Nation, but was to sustain an
allegation in an indictment upon which the jurisdiction of the
United States court depended.
It is contended in this Court on behalf of the government that
exception to this evidence was not sufficiently taken. The record,
however, discloses that the counsel for the defendant at the trial,
objected to the question put to the witness Le Flore to elicit the
statements made by Kemp. It is true that the question had been put
and answered before the objection was made, but the defendant's
counsel asked that the testimony should be excluded, and that an
objection should be noted, and thereupon the judge declared the
evidence competent. It is therefore apparent that the objection was
made in time to enable the government to introduce other and more
competent evidence, and that the judge did not overrule the
objection because it was not taken in time, but because he
Page 163 U. S. 618
deemed the evidence competent. Moreover, in the charge, the
judge instructed the jury that they had a right to take into
consideration the facts that had gone to them for the purpose of
showing who Kemp was, and where he came from; and, as there was no
other evidence on this topic than that of Le Flore, it is plain
that the judge submitted to the jury the evidence of Le Flore as to
the statements as competent. To this portion of the charge the
defendant excepted before the jury retired, and in their presence.
It is indeed now contended that the exception was too indefinite,
but we think that the exception was sufficient to enable the trial
court to perceive the particular matter objected to.
We think, therefore, that the court erred in instructing the
jury that they had a right to find that the deceased was not a
member of the Choctaw Nation from the mere fact that he was a
negro, and also in admitting evidence of the statements of the
deceased and in instructing the jury that such statements were
competent evidence as to his citizenship.
The judgment is reversed and the case remanded with
instructions to set aside the verdict and grant a new
trial.
