Forsythe v. United States ex rel. Isperhecher ( 1901 )

Gill, J.

The court does not deem it necessary to take up the assignments of error seriatim. The principal question involved is whether or not section 2117 of the Revised Statutes of the United States (section 4327, Ind. T. Ann. St. 1899) is in force in the Creek Nation. If it be, and the defendant had no consent of the nation to bring cattle into the nation, and without such consent did bring 1,500 head of cattle into the nation, then .the defendant is liable to the penalty of one dollar per head. The question as to whether or not an informer might bring a suit of this kind in the name of the United States is rather more technical than real. The court is of opinion that, where a statute of the United States of this kind is violated, any member of the tribe may file in the name of the United States a suit against such party violating the statute, and recover for the United States the penalty prescribed by such statute. It is contended by the appellant in this case that the complaint filed was in the name of the United States on the relation of Isperhecher, who was at the time of the filling of the complaint the principal chief of the Creek Nation. It would have been better had this allegation been in the complaint, but it does not appear in any of the pleadings; nor does it appear in the evidence, nor can the court take judicial notice that he is the principal chief. But, as before stated, any one may file an information of this kind, and it is not necessary, though it would be judicious, that the United States attorney appear in the case. The matter of the consent of the Creek Nation is a matter of proof. If the defendánt had the consent of the Creek Nation, or of any one authorized by it to grant such consent, it must have been in his possession, and he should have shown it in the evidence. This he failed to do, and the court’s instructions to the jury to ascertain the number of cattle illegally brought into the nation by the defendant, and return a verdict accordingly, were eminently correct, under the law and the evidence in the case.

We have examined the demurrer interposed by the plaintiff to the third, fourth, fifth, and sixth defenses of the defendant, and are of opinion that the sustaining of such demurrer was correct. Because the Creek law gives to its citizens consent to inclose one-mile square pastures, and for the exclusive use and benefit of the same for keeping and grazing live stock, would not give these citizens the right to lease such pastures for grazing stock unlawfully brought into the Creek Nation, and before such stock could be brought into the Creek Nation the statute requires that such individual shall first obtain the consent of the Creek Nation, as otherwise he is liable to the penalty; and pleading that the citizen had the exclusive right to pastures fenced under the Creek law by the individual is not a defense where cattle are illegally found in such pastures; and the other proposed defenses are of a similar character, and are in fact no defenses, and the trial court was right in sustaining the demurrer to such defenses. We are of opiniog, upon the whole case, that the judgment of the court below is correct, and the same is therefore by this court affirmed.

Townsend. C. J., and Clayton and Raymond, JJ. concur.