230 F. 945 | 8th Cir. | 1916
This is an action of ejectment by Holland, hereafter called plaintiff, to recover the possession of the S. E. % of tire N. E. and the E. % of the S. W. % of the N. E. % of section 16, township 28 N., range 14 E., state of Oklahoma, and damages, from William H. McDaniel and the Paraffine Oil Company, hereafter called defendants. The plaintiff recovered judgment for the possession of the demanded premises and damages for the detention thereof. The defendants sued out -a writ of error from this judgment. The plaintiff also sued out a writ of error from the judgment so far as it related to damages. A jury was waived and the action tried to the court. At the close of all the evidence counsel for defendants made the following requests:
“(1) Defendants request the court to find that the enrollment records of the Commissioner to the Five Civilized Tribes do not show or prove that plaintiff, Robert L. Holland, was a minor and less than twenty-one (21) years of age on September 25, 1912.
' “(2) Defendants further request the court to find that the enrollment records of the Commissioner to the Five Civilized Tribes show that plaintiff, Robert L. Holland, was more than twenty-one (21) years of age on September 25, 1912.
“(3) Defendants request the court to render judgment against the plaintiff and in favor of them, because there is no evidence to support a judgment for plaintiff.”
These requests were denied and an exception allowed. The evidence was as follows: On July 17, 1906, by homestead patent from W. C. Rogers, Principal Chief of the Cherokee Nation approved by the Secretary of the Interior, April 5, 1906, plaintiff became vested with the title to the E. % of the S. W. % of the N. E. % of section 16, township 28, range 14, hereinbefore mentioned. By allotment patent, from W. C. Rogers, Principal Chief of the Cherokee Nation, approved by the Secretary of the Interior September 5, 1906, plaintiff became vested with the title to the S. E. % of Hie N. E. % of the above section and range. Both patents were filed for record April' 24, 1907, and delivered to the plaintiff June 7, 1907. On September 25, 1912, plaintiff by warranty deed in consideration of the payment of $2,000 conveyed the above lands to the defendant McDaniel. September 5, 1913, McDaniel executed and delivered a lease of the land to one C. C. Webber. October 13, 1913, Webber assigned the lease to W. C. Guiler and C. E. Deloe. On October 16, 1913, Guiler and Deloe assigned the lease to the defendant Paraffine Oil Company. From the records of tire Commission to the Five Civilized Tribes there was introduced in evidence by counsel for the plaintiff a record pertaining to the enrollment of Robert Lee Holland, the plaintiff, as a Cherokee citizen. This record showed that Robert Lee Holland was enrolled as a Cherokee citizen by blood October 11, 1900, on the application of
“Q. Gire me the name of the next child? A. Robert Lee Holland. Q. How old is he? A. Ho is about nine, I guess.”
As a part of the record of enrollment by the Commission there was introduced what is called the original census card, which represents the finding and judgment of the Commission on the application of William G. Holland as to' the facts therein stated. So far as the question of the age of Robert Lee Holland is concerned the census card contained the following entries:
Residence: Cooweescoowee District. Cherokee Nation. Cherokee Roll. Post Office: Dewey.
At the lower right-hand comer of the census card that was introduced in evidence by the plaintiff appear the following words and figures: “Date of application for enrollment, Oct. 11, 1900.” It was shown by evidence introduced by the defendants that the words “Date of application for enrollment” were placed upon the card before “Oct. 11, 1900,” long after the census card had been made out, and that they were placed upon the card so that persons examining the record might know what the word and figures “Oct. 11, 1900,” meant. It appeared from the evidence that the census card originally simply contained the word and figures, “Oct. 11, 1900.” There is no question, however, but that the date mentioned was the date of the enrollment. The date of birth of the plaintiff did not appear from any evidence introduced unless the census card showed it. It appeared also from the evidence that the Paraffine Oil Company was in possession of the premises engaged in exploring and mining the same for oil and gas.
“That the rolls of citizenship and of freedmen of the Five Civilized. Tribes approved by the Secretary of the Interior shall be conclusive evidence as to the quantum of Indian blood of any enrolled citizen or freedman of said tribes and of no other persons to determine questions arising under this act, and the enrollment records of the Commissioner to the Five Civilized Tribes shall hereafter be conclusive evidence as to the age of said citizen or freedman. * * *”
We may accept the record introduced, as conclusive that the plaintiff was nine years of age at the date of the enrollment October 11, 1900; but this does not prove that he was a minor on September 25, 1912, as the finding by the Commission that he was nine years of age on October 11, 1900, is entirely consistent with the fact that he had arrived at the age of 9 years at any time within one year prior to October 11, 1900, for after arriving at the age of nine years he would be 9 until he arrived at the age of 10, which would be a period of one year-.
“3 — 2833
“Land 56330 — 1008 EBH August 2-1, 1908.
“Subject: Computation of Ages of Citizens of Five Civilized Tribes.
“Tlie Honorable, tbe Secretary of the Interior.
“Sir: I have the honor to invite your attention to the inclosed letter of August 14,1908, from J. 6. Wright, Commissioner to the Five Civilized Tribes, inclosing letters from It. D. Wollborno, Ohickasha, Okl., of August 12, 1908, and C. D. Wolfe, Wewoka, Okl, of August 13, 1908, asking that a rule be laid down for a computation of the ages of citizens of the Five Civilized Tribes. He says that these are but two of numerous inquiries that he has received regarding the same subject, and he believes that the department should pass on the question at an early date.
“He presents the proposition in this manner: ,
“Whether a citizen of the Cherokee Nation whose age appears on the final roll as fourteen years, the roll being- approved as of September 1, 1902, should be considered as not having reached his majority until September 1, 1908, even though it could be clearly established that he was born on April 15, 1887, and would be twenty-one years of age on April 15, 1908.
“He reports that there is nothing in the records of his office to establish the exact age of any citizen except where birth affidavits have been required, and in all these cases the persons in connection with whose enrollment such affidavits were required, still lack several years of their majority. In the other cases, testimony was taken regarding the age of persons for whom application was made, but the answer given in every case, so far as an examination of the records shows, is given in years only, and, while the ago is probably that of the nearest year, Mr. Wright says ho believes that It may refer to the age of the applicant on his last birthday or his next subsequent birthday, and he expresses the opinion that this character of record leaves the question of age in doubt.
“It is very seldom that a person on being asked his own age, or the age of any one else, gives any other than the age at the last birthday. The rule is so universal, in the opinion of the office, as to justify a holding that in all cases where the age of a minor is given by parents or relatives, the age given relates to the last preceding birthday. The act of Congress approved May 27, 1908 (Public No. 140) provides (section 3):
“ * * * the enrollment records of the Commissioner to the Five Civilized Tribes shall hereafter be conclusive evidence as to the age of said citizen or freedman.
“It was necessary that a rule be laid down with reference to the determining of ages of enrolled minors in the Five Civilized Tribes to prevent the production of fraudulent proof as to age by persons who purported to take advantage of the lack of age and experience of allottees, and Congress decided that the records of the Commissioner to the Five Civilized Tribes should be the criterion of age because the presumption would be that at the time application was made for enrollment no circumstances existed that tended to induce misrepresentations regarding the ages of persons in behalf of whom proof was being submitted.
“The office recommends that the department hold that the age of any ani-sen or freedman of the Five Civilised Tribes as given m the application for enrollment shall be construed for the purposes of the government, as representing the age of the applicant at that time, and that the date of the application shall be held to be the anniversary of the dale of birth, except where the records show otherwise.
“Very respectfully, F. E. Leupp, Commissioner.”
On August 27, 1908, the recommendation of the Commissioner was approved by the Secretary of the Interior. This recommendation of. the Commissioner, approved by the Secretary, is claimed to be a con
It, therefore, seems clear to us that there was not sufficient evidence introduced from which the court was authorized to find that the plaintiff was a minor on September 25, 1912, and for this reason the judgment below must be reversed and a new trial granted, and it is so ordered. No. 4467-- is dismissed.