Hegler v. Faulkner (153 U.S. 109)

J. D. Hegler, a citizen of the state of Ohio, brought an action in the district court of Richardson county, Neb., on October 4, 1878, against George Faulkner, James Cottier, August Schoenheit, and Edwin S. Towle, citizens of the state of Nebraska, to recover from the defendants the possession of certain land situated in the county of Richardson, to which land the plaintiff, in his petition, claimed title, and also to recover the rents and profits of the said property for the period of which such possession had, as alleged, been withheld. Upon motion of the defendants the case was removed, on March 25, 1879, into the circuit court of the United States for the district of Nebraska, where the defendants filed an answer to the petition on May 17, 1879, denying that the plaintiff then had, or had ever had, any title to the land in question, and asserting title thereto in themselves. The case was tried in the circuit court before the court and a jury, and, a verdict having been found for the defendants, judgment in their favor was entered on January 10, 1885. The case was then brought to this court upon a writ of error sued out by the plaintiff; but because the record, as then filed, contained no petition or order for the removal of the case from the state court to the said circuit court, nor any statement of the citizenship of the parties, and because it did not appear, therefore, that the circuit court had had jurisdiction of the case, the judgment was reversed, and the case remanded for further proceedings. 127 U.S. 482, 8 Sup. Ct. 1203. Those defects in the record were afterwards cured, and on June 13, 1889, judgment was again entered in the court below in favor of the defendants, and the plaintiff again sued out a writ of error from this court.

On the trial the plaintiff introduced evidence tending to show that on April 15, 1859, George Washington, a half-breed Indian of the Iowibe, received from William M. Stark, special Indian agent, a certificate of allotment of the land in controversy, issued by virtue of the provisions of the act of congress of July 31, 1854, which gave effect to a treaty made on July 30, 1830, under which certain lands belonging to the tribes which joined in the treaty were set apart for the half-breeds of those tribes, by directing the president to cause the reserved tracts described in the treaty to be surveyed and allotted in fee simple to the persons entitled to receive them; that on April 16, 1859, George Washington conveyed the land so allotted to him to Houston Nuckolls; that Nuckolls conveyed the same, on April 20th, to A. S. Ballard; that Ballard conveyed to James McMillan on September 16th, and that on October 13, 1859, McMillan conveyed to the plaintiff. On September 10, 1860, as the plaintiff's evidence further tended to show, George Washington received from the government a duly-executed patent for the land.

The defendants also claimed to derive title from George Washington, the evidence on their behalf tending to prove that by deed dated November 3, 1866, he conveyed the land to the defendants Schoenheit and Towle, and that on February 28, 1868, he executed another deed to the same parties for the same property.

For the purpose of showing that George Washington was of full age when he transferred the land to Nuckolls, the plaintiff offered in evidence a list bearing the heading, 'Office of Indian Affairs,' the date February 4, 1858, and containing the name, sex, age, degree of blood, and tribe of certain Indians. Upon this list was the name of George Washington, and opposite the name appeared the figures '20,' in the column headed 'Age.' The agent, Stark, testified that this list was received by him from the Indian department, and that it contained the names of the half-breeds entitled to allotment of land in the reservation described in the treaty.

To show under what directions of the government the list was prepared, the plaintiff offered in evidence a letter from the commissioner of Indian affairs to Joseph L. Sharp, which began with a statement of the provisions of the treaty above referred to, and of the said act of congress, and proceeded as follows:

'To enable the president to comply with the act it is necessary to ascertain the number and names of the half-breeds and mixed bloods entitled to participate. You have been appointed commissioner to act under the following instructions: To give notice for all persons interested to appear before you with their applications and evidence. Before commencing to take testimony, consult with the Indian agents and chiefs of the tribes. In making report have regard, not merely to proof applicants may submit, but also to information from above-mentioned and other sources you consider reliable. You will be furnished by the superintendent of Indian affairs at St. Louis with all the information he may discover, bearing on the subject. I direct that you prepare your report in full to embrace a list containing names of all applicants, arranged by tribes and families and single persons, showing names, age, sex, relationship to the tribe, place of residence, who are orphans or wards, and such other facts as you consider useful and proper. In every case, whether admitted or rejected, give briefly your reasons. Transmit your report, with evidence taken, to this office without delay. The several Indian agents for the particular tribes will be instructed to render you all proper assistance in the premises. Before commencing your duties, take and subscribe an oath of office, before some officer authorized to administer oaths, that you will support the constitution of the United States and faithfully discharge your duties as such commissioner, which transmit to this office.'

Upon objection made by the defendants, the court excluded the portion of Stark's testimony relating to the list, and refused to admit the list or the letter of instructions to Sharp in evidence. To these acts of the court the plaintiff excepted, and likewise to certain instructions given and refused.

A. H. Garland and H. J. May, for plaintiff in error.

[Argument of Counsel from pages 112-115 intentionally omitted]

Isham Reavis, for defendants in error.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.