Farrell v. United States

• Decision Date: 30 September 1901
• Docket Number: 1,534.
• Citation: 110 F. 942
• Parties: FARRELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

110 F. 942

FARRELL v. UNITED STATES.

No. 1,534.

United States Court of Appeals, Eighth Circuit.

September 30, 1901

Syllabus by the Court.

Under its power to regulate commerce with the Indian tribes (Const art. 1, Sec. 8), congress had authority to pass the act of January 30, 1897 (29 Stat. 506), which declares it to be a crime punishable by fine and imprisonment to sell spirituous liquors to any Indian to whom an allotment of lands has been made while the title thereto is held in trust by the government.

Congress did not renounce its constitutional power to regulate the traffic in intoxicating liquors with Indian and mixed-blood patentees while the United States holds the title to their lands in trust for them under the act of February 8, 1887 (24 Stat. 388), by the provisions of that act that such patentees shall have the benefit and be subject to the laws of the state or territory in which they reside, and that they are citizens of the United States, and entitled to all the rights, privileges, and immunities of such citizens, or by any of the other enactments of that statute.

When the authority of an agent is a conclusion of law deducible from various facts, he may not directly testify to it. Where the authority of an Indian agent over a certain Indian was a conclusion of law deducible from the constitution, statutes and the situation and relations of the Indian, the agent was incompetent to testify what his authority was.

An agent may testify to the actual exercise of authority although he is incompetent to testify whether or not he had such authority. An Indian agent may testify that he exercised control over a certain Indian, although his right to exercise that control is a conclusion of law to which he is incompetent to testify.

In ascertaining the tribal and other relations of Indians courts generally follow the executive and legislative departments to which the determination of these relations has been specially intrusted.

A mixed-blood Indian, who has received an allotment and patent of land as a member of a tribe, whose mother was an Indian of that tribe, and whose father was a half-breed who had been recognized as a member of the tribe, is himself a mixed-blood Indian of that tribe, notwithstanding the fact that his grandfather was a white man and a citizen of the United States.

The child of a white citizen and of an Indian mother, who is abandoned by his father, is nurtured and reared by the Indian mother in the tribal relation, and is recognized by the tribe as a member of it, falls under an exception to the general rule that the offspring follows the status of the father, and becomes a member of the tribe of the mother.

S. B. Van Buskirk, for plaintiff in error.

James D. Elliott (William G. Porter, on the brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.

SANBORN Circuit Judge.

Anthony Farrell, the plaintiff in error, was convicted of and sentenced for selling spirituous liquors in South Dakota on January 1, 1900, to Glode La Framboise, a mixed-blood Indian of the Sioux tribe, then in charge of Nathan P. Johnson, an Indian agent of the United States, under the act of January 30, 1897 (29 Stat. 506), which provides that any person who shall sell any spirituous liquor 'to any Indian to whom allotment of land has been made while the title to the same shall be held in trust by the government, or to any Indian a ward of the government under the charge of any Indian superintendent or agent, or any Indian including mixed bloods, over whom the government exercises guardianship,' shall be punished by imprisonment for not less than 60 days, and by a fine of not less than $100, for the first offense. He urges three alleged errors in his trial: (1) That the Indian agent was permitted to testify that Glode La Framboise was under his charge at the time the offense was committed; (2) that the court refused to charge that, if a paternal ancestor of La Framboise was a white man, he was not a mixed blood over whom the government exercised guardianship, nor an Indian under charge of an Indian agent, and the defendant could not be lawfully convicted of selling liquor to him; and (3) that the court refused to hold that the act of January 30, 1897, was either unconstitutional or inapplicable to a mixed-blood Indian who had received an allotment and patent of land and had become a citizen of the United States and of the state of South Dakota under the act of February 8, 1887 (24 Stat. 388).

1. Nathan P. Johnson testified that his residence was the Sisseton agency, that he was the United States Indian agent, and that he knew Glode La Framboise. He was then asked whether or not La Framboise was under his charge as Indian agent at that place on January 1, 1900, and over objection of counsel for Farrell that the question called for a conclusion, and over his exception, he was allowed to answer that he was. The objection to this ruling is that the true answer to this question is a legal conclusion deducible from La Framboise's situation, the acts of congress, and the regulations of the Indian department, and provable only by the facts which conditioned the situation and relations of La Framboise, and not by the direct assertion of any witness. So far as the question and its answer tend to prove the right of the agent to superintend and control the actions of this Indian of mixed blood, the objection is well taken. But it ignores another material issue upon which the testimony was not incompetent, and that was whether or not this agent was in fact exercising his powers of supervision and control as an Indian agent over this mixed blood. If the situation of La Framboise and his relation to his tribe had been proved to be such that under the statutes and regulations the agent had the right to take charge of him, a further material question, whether he had actually done so or not, would still have been unanswered, and the testimony of the agent would have been competent to answer it. It was not less competent, in the absence of all objection to the order of the proof, because it was asked before the situation and relations of La Framboise had been established by the evidence. The testimony of an agent to the authority he has actually exercised may be competent evidence, when his right to exercise that authority is a conclusion of law, to which he cannot lawfully testify.

2. The Indian agent testified that La Framboise was a quarter white,-- a mixed-blood Indian; that he belonged to the Sioux tribe of Indians; that he was a married man; that his children went to the government school under his charge, a mile and a half from the agency; that they were clothed like white men, and went on and off the reservation when they pleased, except when they were going to other agencies. La Framboise testified that he was a mixed-blood Indian. His father testified that he (the father) lived near Veblin S.D.; that his father was a white man and a citizen of the United States, and that he thought he was, but they passed him for an Indian; that he was a half-breed, and his wife was a half-breed; that he voted and paid taxes in South Dakota; that his son had lived on the land he then occupied several years before the reservation was opened; and that he voted, paid taxes, and did not wear Indian clothes. A patent dated June 19, 1889, which recited that the land on which Glode lived was allotted to 'Glode La Framboise, an Indian of the Sisseton and Wahpeton tribe or band,' on May 10, 1888, under the act of February 8, 1887 (24 Stat. 388), and that the United States would hold it in trust for him and his heirs for 25 years, and would then convey it to him, was introduced in evidence. It is assigned as error that in this state of the case the court refused to charge that if the paternal ancestor of Glode La Framboise was a white man the jury could not find the defendant guilty, and that this would be true whether his father or grandfather was a white man. This assignment rests on the general rule that the children of free parents follow the status of their father. Vatt. Law Nat. 101, 102; Ex Parte Reynolds, 5 Dill. 394, 403, Fed. Cas. No. 11,719; U.S. v. Ward (C.C.) 42 F. 320, 322; Ludlam v. Ludlam, 31 Barb. 486. But there is an exception to this rule which has been generally recognized and acted upon by the legislative, the executive, and judicial departments of this government, and by the Indian tribes in their intercourse with the United States. It is that the child of a white citizen and an Indian mother who is abandoned by the father, and is nurtured and reared by the Indian mother in the tribal relation, and is recognized by the tribe as a member of it, follows the status of the mother, and becomes a member of the Indian tribe. U.S. v. Hadley (C.C.) 99 F. 437, 438. The Indians have usually recognized such children as members of their tribes, and have in their treaties jealously protected their rights either as Indians, half-breeds, or mixed bloods, and the acts of congress have often placed them on the same plane with other members of the tribes. There was no evidence that the father of La Framboise was born under the sanction of a lawful marriage, or that his grandfather ever lived with his grandmother or assisted to rear her children. The rational inference from the testimony of his father is that he did not. He testified, 'My father was a white man, so they tell me,'-- a statement which naturally leads to the conclusion that he never saw him, and so did not know his color. Moreover, the executive department of the government had evidently decided that the father of La Framboise followed the status of his mother, for he said he thought he was a white man, but they passed him...