11 Ala. 826 | Ala. | 1847
The question proposed by the defend-.
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
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-
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
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
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.
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.