LexisNexis(TM) = Academic

Doe on the demise of Lafontaine and Another v. Avaline.
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF INDIANA
8 Ind. 6; 1856 Ind. LEXIS = 403

May 29, 1856, = FiledPRIOR HISTORY: [**1] ERROR to = the Miami=20 Circuit Court.

DISPOSITION: The = judgment is=20 reversed with costs. Cause remanded.

HEADNOTES:=20 Repealing Act -- Statute Construed -- The act of February 11th, = 1848,=20 repealing the act for the relief of the Miami Indians, of February 3d, = 1841, and=20 the act relative to suits against the Miami Indians, of February 11th, = 1843, did=20 not repeal the 3d section of chap. 28, R. S. 1843.
Statutory Construction -- The courts will not construe a = statute=20 strictly, merely because it imposes disabilities, especially if, by = strict=20 construction, the object of the legislature would be defeated.
Statutory Construction -- Protective and = remedial=20 statutes imposing disabilities upon persons for their benefit, = must=20 receive a liberal construction.

Indians -- Who=20 are -- A person recognized as an Indian by the community, by the = Indians=20 themselves, by the State and federal authorities, -- stamped as such by = birth,=20 education, and language, -- and having three-eights Indian blood, is = held to be=20 an Indian, within the meaning of the statutes of this State relative to=20 Indians.

Indians -- Section 4 of the = Indian act=20 of February 3d, 1841, provides, "that in all cases, the provisions of = this act=20 shall extend to all persons of Indian descent, who are recognized as = members of=20 any tribe residing in the State of Indiana, down to those having=20 one-eighth Indian blood." Held, that this is the = legislative=20 meaning of the word "Indian," as used in all other statutes of this = state on the=20 same subject, unless, from the context, or in terms, some modification = was=20 clearly intended.

COUNSEL: J. U. = Pettit, N. O.=20 Ross and R. P. Effinger, for plaintiff.

D. D.=20 Pratt, S. C. Taber, R. Brackenridge, Jr., I. Blackford and A. A. Cole, = for=20 defendant.

JUDGES: Stuart, J. = Davison, J.,=20 dissented.

OPINIONBY: Stuart
OPINION: [*6] Stuart, J.--Ejectment for a = section of=20 land in Miami county. Trial by the Court, and judgment for the = defendant.
[*7] The evidence, consisting = partly of=20 admissions, is all made part of the record, in the form of an agreed = case.
Both parties claim title through Catharine = Lasselle; the=20 plaintiffs as the heirs at law, the defendant as the vendee of the = devisee.=20 Catharine was a daughter of the Miami chief, Richardville. Her first = husband,=20 Lafontaine, was also an Indian, and at one time, head chief of the = nation. After=20 the death of Lafontaine, she married Francis D. Lasselle, to whom she = devised=20 the section of land in controversy.

Lasselle conveyed=20 to Avaline, the defendant.

The lessors of = the=20 plaintiffs denying the validity of the will, claim as the heirs of the=20 devisor.

The exact date of the marriage = with Lasselle=20 does not appear, but inferentially it must have been [**2] = some time=20 late in the fall of 1848; for the agreed state of facts, which will be = more=20 fully referred to hereafter, briefly says that "the marriage continued = about six=20 weeks." The will is dated 21st November, 1848, and speaks of Lasselle as = then=20 her husband. Her death occurred in the early part of January, 1849, = taking six=20 weeks from the date of the will as the duration of the marriage.
It is unfortunate that the evidence leaves such events as the = date of=20 her marriage and death in doubt. Matters of such notoriety could have = been=20 easily ascertained. It is to be regretted that they were not supplied. A = statement of these dates would have rendered all the argument addressed = to that=20 point, both by counsel and the Court, unnecessary, and thus superseded = the=20 minute examination which is required to reach these facts by = inference.
There is no controversy but that the act of = 1847, (p.=20 108,) giving married women the power to devise by "last will and = testament," was=20 in force at the date of the devise by Catharine Lasselle to her husband. = But,=20 beyond the bare removal of the disability of coverture in that one = particular,=20 the act can have no bearing on this case.

The only=20 question arising on [**3] the validity of the will, resolves = itself=20 into the competence of Catharine to devise. Was she, in November, 1848, = a person=20 competent to make a will under the [*8] laws of Indiana? To = this=20 end, we will inquire first, whether, when the will was made, there was = any=20 statutory disability resting upon the Indians in this State, rendering = any=20 contract or devise of their lands, in certain contingencies, void. And,=20 secondly, if there was, was Catharine Lasselle an Indian within the = meaning of=20 these statutes?

First, then, as to what = acts in=20 relation to the Indians were then in force.

The first=20 act in point of date, seemingly bearing on the question, is chapter 66, = R. S.=20 1843. This act, approved February 3, 1841, is entitled an act for the = relief of=20 the Miami and other Indians. The first, second, third, and fourth = sections=20 abolish, as to the Indians the writ of capias in all its forms. = Suits=20 brought against them are directed to be instituted by summons without = bail. In=20 brief, it abolishes imprisonment for debt, so far as these Indians are=20 concerned, as one measure of relief to them. The other measure of relief = is=20 contained in the fifth section in these words: "No white man or=20 negro [**4] shall hereafter have the benefit of any of the = legal=20 remedies for the collection of debts hereafter contracted by an Indian = within=20 the limits of the State of Indiana; and all contracts hereafter made = with=20 Indians shall be null and void." R. S. 1843, p. 1038.
By joint resolution of the General Assembly, at the same = session,=20 approved seven days thereafter, the fifth section above recited was = suspended=20 for the period of five years. R. S. 1843, p. 1039. So that the fifth = section of=20 the act of February 3, 1841, did not go into operation until February, = 1846.=20 This act and suspending resolution are among the few enactments = published at=20 length in the R. S. of 1843, without revision or alteration.
In the body of the R. S. of 1843, chapter 28, treating of = "real=20 property and the alienation thereof," and under the particular head, "of = the=20 persons capable of holding and conveying lands," the third section = provides,=20 that, "No Indian can hereafter make any contract for or concerning lands = within=20 this State, or in any manner give, sell, devise, or otherwise = dispose of,=20 any such lands, or any interest therein, by which such Indian shall be = divested=20 of the absolute control, possession, or management [**5] of = such=20 [*9] lands, for a longer time than five years, without the = authority=20 or consent of the legislature of this State, except such sale, gift, or = devise=20 shall be to an Indian." R. S. 1843, p. 414.

The R. S.=20 of 1843, in which this provision is embodied, took effect in the spring = of 1844;=20 at what exact time, is not material to the present inquiry.
On the 11th of February, 1843, a further act "relative to = suits against=20 the Miami Indians," regulating the mode of suing the individual Indians = of that=20 tribe, was approved, the third section of which declares that "every = contract=20 which may hereafter be made with any Indian shall be absolutely null and = void."=20 Gen. Laws, 1842-3 pp. 38, 39.

Thus stood = the statute=20 law of the State in relation to Indians, up to the early part of 1848. = On the=20 11th of February of that year, an act was passed repealing the act for = the=20 relief of the Miami Indians, of February 3, 1841, and also the act of = February=20 11th, 1843, "relative to suits against the Miami Indians." But the third = section=20 of the twenty-eighth chapter, R. S. 1843, is not embraced in the terms = of the=20 repealing act. Nor does the act of 1848 repeal the third section of = chapter 28,=20 R. S. 1843, [**6] by implication. For it is not a repeal of = all acts=20 on that subject matter, but a repeal of two specified acts, particularly = identified by the date of their approval. Each act repealed is specially = designated in a separate section. There is no room to indulge a = presumption that=20 it was intended to repeal a third and separate act, on the same subject, = which=20 contains different provisions, was passed at a different time, and is = not=20 mentioned or included in any specific or general terms used in the = repealing=20 act.

The position assumed in argument, viz: = that it was=20 the intention of the legislature to repeal all acts relating to Indians, = is,=20 therefore, not only unwarranted, but repelled by the precise language = used by=20 the legislature to indicate how far, and upon what particular statutes = the=20 repealing act should operate. All implication is thus excluded.
The third section of chapter 28, as above quoted, stood as = the law in=20 relation to Indians during the year 1848. But on the [*10] = 15th of=20 January, 1849, that section, also, was repealed in terms of = particularity=20 similar to those employed in the repeal of the other Indian enactments; = thus=20 putting it beyond all doubt that the legislature [**7] did = not=20 repeal, nor intend to repeal, the third section in 1848.
That section, then, waiving, for the present, the question of = Indian=20 blood, is the law of this case, unless Mrs. Lasselle survived its repeal = on the=20 15th of January, 1849. But that can hardly be made out consistently with = the=20 agreed state of facts. For the will is dated November 21, 1848. She was = married=20 then, and speaks of Lasselle in the will as her husband. The only = evidence=20 touching her death is, that "she married Lasselle, with whom she lived = about six=20 weeks, and died." The dates of the marriage and death are nowhere more=20 particularly disclosed. We must presume the marriage to have taken place = some=20 time before the date of the will; for it is not very probable that = she would=20 set about making so grave an instrument amid the festivities of her = wedding-day.=20 If one or two weeks be assumed as a reasonable time for the marriage to = have=20 taken place prior to the date of the will, then the close of her six = week's=20 nuptials would have been in December, 1848. This hypothesis would leave = the=20 third section above quoted still in full force at her death.
Even assuming the very great improbability that the marriage = and the=20 will [**8] bear the same date, the expression "about six = weeks," does=20 not save the devise from the operation of the statute. For that = language, "about=20 six weeks," could hardly be expanded to cover a period of about two = months.=20 These words would as easily cover a period falling short of six weeks as = a=20 period running over a few days. The 3d of January, 1849, would be fully = six=20 weeks from the date of the will, leaving twelve days over to be covered = by the=20 word "about." This construction would clearly be more forced and = unnatural than=20 the other, which supposes the marriage to have taken place some weeks = before the=20 date of the will, and her death about the middle of December.
There can, therefore, be no hesitation in saying that, from = the=20 [*11] record, the third section of chapter 28, R. S. 1843, = was in=20 force at the time of her death. That section, if applicable to the facts = of the=20 case, must govern the construction of the will. Kelly v. = Stinson,=20 8 Blackf. 387.

The section thus in force, = and quoted in=20 full above, may, so far as it bears on the supposed facts of this case, = be thus=20 abstracted, viz: "No Indian can hereafter devise any lands, within this = State,=20 without the authority or [**9] consent of the legislature, = except=20 such devise be to an Indian."

It is not = contended that=20 the previous authority or subsequent consent of the legislature to the = making of=20 the devise in question, had been obtained. Nor is it pretended that = Lasselle was=20 an Indian.

It, therefore, only remains to = inquire, in=20 the terms of the second proposition, was Catherine Lasselle an Indian, = within=20 the meaning of the act in force at the time of her death?
The first thing to be settled is the rule of construction by = which this=20 enactment is to be expounded. It is called by counsel on one side a = disabling=20 act, and hence it is insisted that it should receive a strict = construction. That=20 it imposes disabilities is to some extent true. It places serious = obstacles in=20 the way of the Indian who wishes to dispose of his lands. But these = obstacles=20 are designed for the Indian's benefit. No needless disability is = imposed. It was=20 very far from the object or purpose of the legislature to impose = disabilities on=20 the Indian, solely for the sake of embarrassing his action. The = disability and=20 embarrassment which ensue are mere unavoidable incidents in = accomplishing the=20 end to be obtained: they are not the end or purpose [**10] of = the act=20 itself. The avowed object of the act was the protection and relief of = the=20 Indians. It was to shield them from the wiles and fraudulent practices = of their=20 more intelligent neighbors. Hence, one of the acts already alluded to is = expressly entitled "an act for the relief of the Miami and other = Indians." Yet=20 the act thus entitled (February 3, 1841,) was more stringent and = disabling than=20 that we are now considering. For the act now before us leaves the Indian = at=20 liberty to contract, with the previous authority or subsequent consent, = of the=20 legislature. But the [*12] act of February 3, 1841, declared = all=20 contracts thereafter made with the Indian null and void.
The fact, therefore, that a statute imposes disabilities, = will not, of=20 itself, induce the courts to construe it strictly, especially if, by so = doing,=20 the object of the legislature would be defeated. The effect of strict=20 construction would be fatal to protective legislation. Almost all = protective and=20 remedial laws, in reference to persons, are disabling. The numerous = enactments=20 in relation to infants, femes covert, lunatics, etc., are of this class. = The=20 disability is generally inseparable from the necessary protection;=20 [**11] perhaps it might be said that the protection can only = be=20 afforded by imposing the disability. Such acts are entitled to a liberal = construction, so as fully to accomplish the purpose of the law n1.
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n1 In New York, it = has been=20 settled that the constitutional prohibition of purchases from the = Indians was=20 introduced for their benefit and protection, as well as for the good of = the=20 State, and that it is therefore entitled to a benign and liberal = interpretation.=20 Jackson v. Ingraham, 4 Johns. 163; Jackson v.=20 Waters, 12 id. 365; Goodell v. Jackson, 20=20 id. 693; 20 id. 728, acc.; DeArmas v. Mayor, = etc., 5=20 La. 132; Baltimore v. McKim, 3 Bland 445.

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Thus has the Court heretofore = regarded it, in the=20 very analogous case in which the restrictions upon the power of the = Indian to=20 convey were imposed by treaty with the United States. Speaking of the = provision=20 formerly so common in Indian treaties, that they should not sell without = the=20 consent of the president, etc., this court [**12] holds the = following=20 language: "The restrictions upon the Indians to convey were intended for = their=20 benefit, and such restrictions have always received a liberal = construction. It=20 is founded upon the supposition, that they are incompetent to traffic = with the=20 whites upon equal terms." Harris v. Spencer, 3 Ind. = 494.
The generous intentions of the legislature are = to be=20 carried out by such a construction as will secure the contemplated = relief to the=20 Indian,--holding it rigidly to all who assume to deal with him in = derogation of=20 the statute. Wendover v. Tucker, 4 Ind. 381.
We come, then, to the main question in the case, viz: Was = Catherine=20 Lasselle an Indian, within the meaning of the act prohibiting Indians = from=20 devising their lands without the consent of the legislature?
The few adjudicated cases which we have been able to find = touching the=20 meaning of the word "Indian," as used in the statutes of the several = states,=20 present some apparent conflict. The nature of the Indian title, and the = relative=20 position of the Indian [*13] nations to the federal and = state=20 governments, have been accurately defined by the courts in a number of = cases.=20 Fletcher v. Peck, 6 Cranch [**13] 87; = Danforth's=20 lessee v. Thomas, 1 Wheat. 155; Cherokee Nation v.=20 Georgia, 5 Peters, 1; Worcester v. Georgia, 6 = Peters, 515;=20 Clark v. Williams, 19 Pick. 499; Brown v. = Wenham, 10=20 Metc. 495; Goodell v. Jackson, 20 Johns. 693; Unitea = States=20 v. Clarke, 9. Peters, 168; Clark v. Smith, 13 = Peters,=20 195.

But what the legislature meant to = include, under=20 the term "Indian," does not seem to be conclusively settled by = authority. In=20 Ohio the question has been determined by preponderance of blood. Persons = of=20 Indian or negro extraction, who have a preponderance of white blood, are = declared to be "free white citizens," within the meaning of the = constitution and=20 laws of Ohio. Gray v. State, 4 Ohio 353; Jeffries = v.=20 Ankeny, 11 id. 372; Lane v. Baker, 12 = id. 237=20 n2. But the statutes adjudicated upon were purely disabling, without any = corresponding benefit, or intended benefit, to the parties on whom the=20 disability was imposed. Hence such acts came within the rule of strict=20 construction, because their operation was against common = right--excluding=20 certain persons otherwise qualified, from voting, and from = the [**14] =20 benefit of schools. Even then the court was not unanimous.
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n2 In Jeffries v. = Ankeny, 11=20 Ohio 372, Lane, C. J., holds the following language: "The other question = depends=20 upon the construction of that passage of the constitution, 'free = white=20 citizens,' whether it excludes from voting all persons having the=20 intermixture of any other blood than that of entirely white persons. = There have=20 been, even in this State, since its organization many persons of the = precise=20 breed of this plaintiff--I mean the offspring of whites and half-breed=20 Indians--who have exercised political privileges, and filled offices and = worthily discharged the duties of officers. One such is now a clerk of = this=20 Court, and two are now members of this bar; and disfranchisement, for = this=20 cause, will be equally unexpected and startling.

"We=20 regard this matter as clearly settled by the interpretation which the = expression=20 in the constitution has received by this court, on the circuit and in = bank. In=20 1831, in the case of Gray v. State, 4 Ohio 353; and in = 1833, in=20 the case of Williamson v. School Directors, Wright, = (Ohio,) 178,=20 it was held that, in the constitution, and the laws on this subject, = there were=20 enumerated three descriptions of persons--whites, blacks, and = mulattoes--upon=20 the two last of whom disabilities rested; that the mulatto was the = middle term=20 between the extremes, or the offspring of a white and a black; that = all=20 nearer white than black, or the grade between the mulattoes and the = whites,=20 were entitled to enjoy every political and social privilege of the white = citizen; and no other rule could be adopted, so intelligible and = practicable as=20 this; and that further refinements would lead to inconvenience, and to = no good=20 result."

This ruling was affirmed by a = majority of the=20 Court in Lane v. Baker, 12 Ohio 237.

In=20 People v. Hall, 4 Cal. 399, Murray, C. J., in a learned = opinion=20 says: "In using the words, 'no black, or mulatto person, or Indian shall = be=20 allowed to give evidence for or against a white person,' the = legislature, if any=20 intention can be ascribed to it, adopted the most comprehensive terms, = to=20 embrace every known class or shade of color, etc. The use of these terms = must,=20 by every sound rule of construction, exclude every one who is not of = white=20 blood."

Again he says:--"The word 'white' = has a=20 distinct significance, which, ex vi termini, excludes black, = yellow, and=20 all other colors."

In Medway v. = Natick, 7=20 Mass. 88, the Court said: "It is our unanimous opinion that a mulatto is = a=20 person begotten between a white and a black. This is the definition = given by the=20 best lexicographers, and we believe it also to agree with the popular = use of the=20 term. The pauper's father in this case was a mulatto, and her mother was = a white=20 woman. The pauper is then not a mulatto." To the same effect, see = Thurman=20 v. State, 18 Ala. 276.

In North = Carolina, a=20 "person of color" is defined to be "a person descended from a negro = within the=20 fourth degree inclusive, though an ancestor in each intervening = generation was=20 white." State v. Dempsey, 9 Ired. 384. The meaning of the = word=20 "mulatto" has been fixed in that State, by statute, in these words: "All = free=20 mulattoes, descended from negro ancestors to the fourth generation = inclusive,=20 though one ancestor of each generation may have been a white person, = shall come=20 within the act." And the State constitution, art. 1, s. 3 of the = amendment=20 describes in the same manner "free mulattoes or free persons of mixed = blood."=20 Id.

In South Carolina, "The line of = distinction=20 between 'white persons' and men of color is not accurately ascertained. = It means=20 a person of mixed white or European and negro descent, without defining = exactly=20 the proportions of blood. A remote taint will not degrade a person to = the class=20 of persons of color--but a mere predominance of white blood is not = sufficient to=20 rescue a person from that class. It is held to be a question of fact for = a jury,=20 upon the evidence of features and complexion, and reputation as to = parentage,=20 and that a distinct and visible admixture of negro blood, makes one a = mulatto.=20 If the admixture of African blood does not exceed the proportion of = one-eighth,=20 the person is deemed white. This is the rule in Louisiana, and in the = code=20 noir of France, for her colonies." State v. Davis, 2 = Bailey=20 558.

In Alabama, a negro is defined to be a = black man=20 descended from the races of Southern Africa, and the word "negro" does = not=20 include the word "mulatto." Felix v. State, 18 Ala. 720. = And a=20 mulatto is the cross between a negro and a white. Thurman v. = State,=20 supra.

- - - - - - = - - - - - -=20 End Footnotes- - - - - - - - - - - - - - [**15]
In Tennessee the courts seem to pay no regard to the = preponderance of=20 blood, but regard the habits of the party--the position in which he has = placed=20 himself, as the criterion. Thus, in Tuten v. Martin, 11 = Tenn. 452,=20 it was held that a white citizen of the United States, by marrying an = Indian=20 wife, residing among the Indited States, by marrying an Indian wife, = residing=20 among the the head of an Indian family, and upon being enrolled as such, = was=20 entitled to a reservation under the treaties of 1817 and 1819. Neither = rule--the=20 preponderance of blood, nor the habits and quo animo of the = party--seems=20 free from difficulty. But where there is Indian blood, conjoined with = Indian=20 habits and character, it would be taking hazardous liberties with = language for=20 the courts to say that such persons were not included within the terms = of the=20 third section of the act above recited.
[*14] That Catherine Lasselle was an Indian, in = the=20 ordinary and popular acceptation of the term, does not seem to admit of=20 controversy. On that point, the following admissions in the agreed state = of=20 facts are pertinent and conclusive, viz: "That the said Catherine has = always=20 been recognized by the community [**16] in which she lived, = by the=20 State authorities, and by the general government as a member of the = Miami tribe=20 of Indians; as, also, by the chiefs, warriors, and head men of the = tribe; that=20 she was so recognized in treaty stipulations, and, with others, was = exempted, by=20 act of Congress, from emigrating west. That the language of the Miami = Indians=20 was her vernacular tongue, and that she spoke that language almost = entirely.=20 That in December, 1842, and ever since, more than half of all the = persons known,=20 called, and recognized as Indians in this State, were not full bloods, = but=20 mixed, being part white." In the face of these admissions, it would be = very=20 difficult to find any reason for holding that Catharine Lasselle was not = an=20 Indian within the meaning of the statute. According to the admission, = she was=20 always recognized as an Indian by the State authorities: she, and such = as she,=20 were therefore, within the intention of the law-making power, when the = word=20 "Indian" was used in the act. Recognized as an Indian, as it is truly = admitted=20 she was, by the community, by the Indians themselves, by the State and = federal=20 authorities; her birth, education, and language stamping the same = character=20 upon [**17] her; the law under consideration, intended for = the relief=20 of the Indians, and, to prevent fraud, requiring a liberal construction; = we=20 cannot set aside all these, and decide simply on the preponderance of = blood. On=20 the contrary, taking all these admissions, in connection with the fact = of her=20 having three-eighths Indian blood, we think her clearly an Indian, = within the=20 meaning of the disabling act.

There is a = further=20 familiar rule of construction applicable to this case, which seems to = remove all=20 doubt. The several acts we have been examining all relate to the = Indians. They=20 are, therefore, in pari materia, and are all to be construed = together as=20 one act, whether repealed or not. Smith's Com. 751. The author refers to = Church v. Crocker, 3 Mass. 17; Thayer v. Dudley, = [*15] id. 296; Holbrook v. Holbrook, 1 = Pick. 254;=20 10 id. 235; Paine 11; Dougl. 27; 1 Burr. 447. An examination of = these=20 authorities, fully bears out the pertinent application of the rule to = this=20 case.

In one of these Indian acts the = legislature have=20 defined what they mean by "Indian." Thus, in the fourth section of the = act of=20 February 3, 1841, it is provided "that, in all cases, the=20 provisions [**18] of this act shall extend to all persons of = Indian=20 descent, who are recognized as members of any tribe residing in the = State of=20 Indiana, down to those having one eighth Indian blood." R. S. 1843, p. = 1038.=20 This we must regard as the legislative meaning of the word "Indian" used = in all=20 the other acts, unless, either from the context or in terms, some = modification=20 was clearly intended. Nothing of that kind is contended for. Every = consideration=20 points directly to its deliberate use by the legislature in the same = sense. 6=20 Bac. Abr. 379; id. 382. In passing the third section R. S. 1843, p. 414, = the=20 legislature must therefore be presumed to have had the fourth section of = the act=20 of February, 1841, in view. They must be taken to have used the word = "Indian" in=20 the one place, in the same sense in which they had defined it in the = other. The=20 Court is not at liberty to presume that in using the word "Indian" in = the one=20 act, the General Assembly designed to change its import, or use it in a=20 different sense from what they had elsewhere defined it. Were Catherine = herself=20 alive, and claiming the protection of this act, we could not have a = moment's=20 hesitation.

We are clearly of the opinion = that=20 Catherine [**19] Lasselle was an Indian, within the meaning = of the=20 laws of this State, and, as such, incompetent to devise. The judgment of = the=20 Circuit Court sustaining her will, must, therefore, be reversed.
Per Curiam.--The judgment is reversed with costs. = Cause=20 remanded.

Davison, J., dissented.
Filed May 29, 1856.

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