delivered the opinion of the court.
It has recently been decided by this court in the case of
Alberty
v.
United States,
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?
¥e understand the learned judge to have assumed that the presumption was thаt 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; thаt 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 disрosing 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 dеceased 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 charaсter, when you find a man who is a *616 negro by blood said to be such, and there was no controversy over that, and the government proves that fact, that makes a jprima fade cаse 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 аdoption. When that fact is proven it makes a prima fade 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 thе 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 determinеd 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 tribе, but undertook to sustain the jurisdictional averment of the indictment by affirmative evidence. John le More was called by the Government to prove that Kemp was not a resident of the Indian country, but had come from a place named Mount Kemp, near Little Book, Arkansas. It is scarcely necessary to observe that, in thе case of United States v. Rogers, 4 How. 567, where it was held that [Rogers, a white man, was indictable in the Circuit Court of the United States for an offence 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 adoptеd 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 nоt cure the error *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 аppears to have regarded the testimony as within the rule that declarations of deceased persons made against their interest are admissible — that аs 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 questions 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 tо introduce other and more competent evidence, and that the judge did not overrule the objection because it was not taken in time, but because hе *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 hаd 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 lе 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 defendаnt 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 exceрtion 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 оf 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 in* structions to set aside the verdict and grant a new trial.