Wall v. Williams

11 Ala. 826

• Court: Supreme Court of Alabama
• Decided: January 15, 1847
• Status: Published

Opinion

COLLIER, C. J.

The question proposed by the defend-. ant below, to her witness, Brashears, and his answer thereto, were rightly excluded by the circuit court. It is the province of a witness to narrate facts, and for the judge to decide the law arising upon them. But here the inquiry addressed to the witness required him to state, what was the status of the defendant and her supposed husband — a conclusion of law depending upon facts: the fact was matter of proof, but the effect of it was • referable to the court. The case of Spence v. Mitchell, 9 Ala. Rep. 744, is unlike the present ; there an objection was for the first time made at the trial, to the admissibility of a deposition, on the ground that all the questions proposed to the witness were not fully answered. We held, that as the deposition was regularly taken, the witness competent, and the facts disclosed admissible, the motion to suppress came too late. [See also, Carter v. Manning & Jackson, 7 Ala. Rep. 851.] In the case before us, the deposition was not suppressed, but a single question and answer which were in themselves inadmissible, were excluded. It is the duty of the court to protect the jury against the admissions of illegal evidence, when it is objected to, no matter through what medium it is offered.

It is enacted, by the 8th section of the act of 1832, “ to extend the jurisdiction of the State of Alabama, over the territory according to the geographical boundaries within the limits of said State, and for other purposes,” “ that in all cases where the suit is brought on contracts hereafter made, to recover money or property from any Indian, the consideration shall be proved by two credible witnessess. ” It is insisted by the counsel for the plaintiff below, and was ruled by the circuit court, that this section applies alone to Indians of full blood. This conclusion is rested upon the assumption that the legislature by using the terms, “ Indians, or persons of mixed blood, descended of Indians,” in the fourth section, recognized two distinct classes, and as Indians are alone mentioned in the ninth section, those of mixed blood are excluded from its operation. If our legislative acts were drawn with a punctilious regard to exactness of expression, the argument would be more potent; but we all know that the different sections of a statute are not always written by the same hand, and this will frequently account for a change of phraseology, from general to special terms, and vice versa.

The fourth section concedes to “ Indians, or persons of mixed blood, descended of Indians,” the right to perpetuate testimony, to record “ wills, and bills of sale and conveyances, with the testimony of such persons.” By the fifth section, white persons living in the Indian country are made subject to the laws'applying to white persons living in any other part of the State. The second section authorizes the court of revenue and roads in any county embracing a portion of the Indian territory, to cause such roads, bridges and ferries to be established within the same as the public good requres. By the third section, Indians are exempted from working on the roads, from performing, military duty, and serving on juries; and it declares that no tax shall be assessed or collected “from any Indian, or person of mixed blood, descended of Indians,” residing in this State. The sixth and seventh sections abolish the laws, usages and customs of the Creek and Cherokee nations of Indians within this State, contrary to the constitution and laws of the same; and it is made penal for either of these tribes, by “ any Indian or Indians,” to meet in council, &c., and make such laws for the government of the same. And the fourteenth section declares, that any contract freely and voluntarily made in writing, &c. whereby any white man shall purchase an improvement, &c., “ of any Indian, on any of the unceded territory,” &e., “ shall be obligatory on the parties to such contract.”

We cannot think the general term “ Indians,” was used in a literal or restricted sense, or intended to indicate a class of persons distinct from “persons of mixed blood, descended of Indians;” but these latter terms were used ex majare cautela, by the draftsman of the section, or the part of it, in which they are found. They are' mere expletives, and do not enlarge the operation of the act. The word “Indians,” is sufficiently expansive to embrace them. It will not be contended, that the third section, in exempting Indians from the performance of military duty, working on roads, or serving on juries, applies exclusively to those of the full blood; or that a Creek or Cherokee of mixed blood could not be prosecuted and punished under the seventh section for meeting in conn-cil, &c., and making laws for the tribe, contrary to the laws and constitution of this State. And there is quite as little pretence that the provisions of the fourteenth section are to be limited to purchases made of Indians of unmixed blood.

In common parlance, the word “.Indians,” includes not only those who have no admixture of blood with the white or negro races, but those descendants of Indians who have become thus mixed, yet retain their distinctive character as members of the tribe from which they trace their descent. The treaty with the Choctaws in 1830, gives to “ each Choctaw head of a family being desirous to remain and become a citizen of the State,” &c. six hundred and forty acres of land; and this has been held to embrace not only Indians of full, but those of mixed blood also.

The object of a requisition upon a party contracting with an Indian, was, in the language of the court of errors of New York, “to save the Indians from falling victims to their own weakness, and to the superior intelligence, and sometimes to the cupidity of the whites.” The statute was intended, “as a guard against the imposition and' frauds to which that unfortunate race of men are exposed, from their ignorance and mental debasement.” [Goodel v. Jackson, 20 Johns. Rep. 720.] The ignorance of the half breed is in general quite equal to that of the Indian whose blood is unadulterated, and certainly requires the same protection for his rights. So far then as the reason of the enactment we are considering is concerned, they both come within its spirit, and we have seen that the language employed is sufficiently comprehensive to embrace them. It therefore follows that the charge of the circuit court, in limiting the operation of the act of 1832, misapprehended the law. [See Pack v. Pack, 9 Por. Rep. 297.]

The 14th article of the treaty referred to, is as follows : “Each Choctaw head of a family being desirous to remain, and become a citizen of the States, shall be permitted to do so, by signifying his intention to the agent within six months from the ratification of this treaty, and he or she shall thereupon be entitled to a reservation of one section of six hundred and forty acres of land, to be bounded by sectional lines of survey; in like manner shall be entitled to one half that quantity for each unmarried child which is living with him over ten years of age; and a quarter section to such child as may be under ten years of age, to adjoin the location of the parent. If they reside upon such lands, intending to become citizens of the States, for five years after the ratification of this treaty, in that case a grant in fee simple shall issue ; said reservation shall include the present improvement of the head of the family, or a portion of it. Persons who claim under this article, shall not lose the privilege of a Choctaw citizen, but if they ever remove, are not to be entitled to any portion of the Choctaw annuity.” [7 U. S. Statutes, by Peters, 335.] It would perhaps have been more correct if the treaty had employed the term inhabitant or resident instead of “ citizen of the States,” as Indians cannot, consistently with the constitution and laws, be invested with all the rights, and bound to all the duties of citizens. But no consequence can result from the inaccurate use of a word in this instance; for the reservee who resided upon his reservation for five years after the treaty was ratified, intending to become a citizen,'&c., was entitled to a grant in fee simple: yet by his claim of land he was “ not to lose the privilege of a Choctaw citizen.” Having obtained a title to his reservation, he could sell or abandon it at pleasure; his citizenship as a Choctaw never having been lost, it might be resumed without any other prejudice, than the loss of his interest in the Choctaw 'annuity. The fact then, that the defendant and her supposed husband had received patents for lands under the fourteenth section of the treaty, does not make them citizens; a grant to an Indian, or a foreigner, does not change his political or civil condition; either of them are competent to hold land under a treaty, or a legislative grant. [20 Johns. R. 693.[ It may be asked, as in the case here cited — Do our laws allow “ Indians to participate equally with us in our civil and political privileges ? Do they vote at our elections, or are they represented in our legislature, or have they any concern as jurors or magistrates, in the administration of justice? Are they subject to our laws of marriage and divorce, and would we sustain a criminal prosecution for bigamy, if they should change their wives or husbands at pleasure, and according to their .own customs, and contract new matrimonial alliances ? I apprehend that every one of these questions must be answered in the negativeat least so long as they continue a distinct and independent community.

In Wall v. Williamson, 8 Ala. Rep. 48, it was held that a marriage between a man and woman of Choctaw extraction and belonging to that tribe of Indians, according to their usages and customs, and before they were superseded by the ' laws of Alabama, will be recognized as valid. Further, that if by the Choctaw law, the husband took no part of the wife’s property, the wife must as a necessary consequence retain the capacity to contract, yet she could not be sued in a court of law, while the marriage continued. The question is left open, whether the husband could dissolve the marriage by the abandonment of his wife, if they continued to reside in Alabama after their tribe had departed, but it is said to be “ very clear that the same effect must be given to a dissolution of the marriage by the Choctaw law, as given to the marriage by the same law. By that law it appears the husband may at pleasure dissolve the relationship. His abandonment is evidence that he has done so. We conceive the same effect must be given to this act as would be given to a lawful decree in a civilized community dissolving the marriage. If the marriage was by the Choctaw law dissoluble at the pleasure of the husband, and was dissolved by his abandonment, then the wife could be sued as a feme sole. Lastly, abandonment was inferable from the fact of the husband’ leaving his wife, and going with his tribe west of the Mississippi. [See also, Morgan v. McGhee, 5 Hump. Rep. 13; Hantz v. Sealy, 6 Binn. Rep. 405; Fenton v. Reed, 4 Johns. Rep. 52; State v. Murphy, 6 Ala. Rep. 765, and cases there cited.]

The decision in eighth Alabama Reports, covers almost the entire branch we are now considering of the case before us, and we think, if the jury affirm t[ie truth of the facts stated by the witnesses at the trial, the defendant may be sued as a feme sole. It is said, “ the characteristic features of the marriage contract is its permanency; for although it originates in the will of the parties, yet after being contracted, the duration of the union is wholly independent of the will of the parties.” [Shelf. on Marriage and Divorce, 3.] But when a man and woman agree to cohabit for an indefinite period as husband and wife, “ that, in a state of nature, would be a marriage, and in the absence of civil and religions institutions, might safely be presumed to be, as it is popularly called, a marriage in the sight of God.” It has been made a question how long the cohabitation must continue by the law of nature — whether to the end of life. In answer to that inquiry it is said, “ that it cannot be a mere casual arid temporary commerce, but must be a contract at least extending to such purposes of a more permanent nature in the intention of the parties. The contract thus formed in the state of nature, is adopted as a contract of the greatest importance in civil institutions, and it is charged with á vast variety of obligations merely civil. [Id. 9.] Marriages among the Indian tribes must be regarded as taking place in a state of nature, and if according to the usages and customs of the particular tribe, the parties are authorized to dissolve it at pleasure, the right of dissolution will be considered a term of the contract. Either party may take advantage of this term, unless it be expressly, or impliedly waived by them, or they may perhaps acquire such relations to society as will give permanency to the contract, and take from them the right to annul it.

It will be observed, that the cohabitation of the defendant and D. W. Wall commenced previous to the extension of the jurisdiction of this State over the Indian territory, by the act of 1832; that this enactment abolished only the “laws, usages, and customs of the Creek and Cherokee nations of Indians,” —leaving those of the Choctaws in full force, except so far as they might interfere with the exercise of the jurisdiction conferred upon the tribunals of the State. There is then nothing in the statute which takes from the contract its dissoluble quality by act of the parties — nor can the asking a reservation under the treaty, the acceptance of a patent from the United States for the land embraced by it, and the continued cohabitation in this State for more than five years after the ratification of the treaty, and the departure of the mass of their tribe to the west, have that effect. We have seen that all these cannot take from the defendant and D. W. Wall their citizenship as Choctaws. The treaty secures to them the right of resuming at pleasure their status iti the tribe, without reference to time. It cannpt in this view of the case be assumed, that the marriage was consummated in contemplation of a residence in Alabama, so as to make this Staté the matrimonial domicil, and its laws govern the relation of the parties. Considering the character of the Indians, their indisposition to renounce native habits and associations, the residence of the parties, &c., such an assumption cannot be indulged.

This exposition of the law applicable to the pleading and facts stated in the record, may suffice to guide the action of the circuit court on a future trial. We will not stop to consider with particularity the questions arising upon the pleadings, or the charges asked or given to the jury, farther than has been already done. In limiting the operation of the 9th section of the act of 1832 to Indians of full blood, we have seen that the law was incorrectly ruled; the judgment is therefore reversed, and the cause remanded.