The National tribune. [volume] (Washington, D.C.) 1877-1917, 1902-12-25

sistent with the law Of nature. The fact
as we have seen, is otherwise
'In Morgan Y. McGhee @ Hemph
Tenn. 14) the court says as to Cherukee
Indian tribal marriage (the kind alleget
in this claim:
$40 hold this marriage to be voii
in the nation and might be productive o.
much mischief
''And similar Choctaw marriage wa;
held valid in the case of Wall v. William
son. e Ala, 4S; II Ala. $780,
''Sucl marriage. therefore, as is al
legged herein is a valid marriage according
to the law of the place where the partie.
resided at the time of marriage or at thu
time when the right to pension accrued,
as specified in the act of Aug. Z, 1882
and is provable herein, under said act. un
less it be of the class of marriages which
are by it expressly excepted from its oper
alton; viz. such as are mentioned i'll sec
ton 4I05 of the Revised Statutes. The
alleged marriage herein is manifestly no,
Of this excepted class. as the parties did
not cohabit to date of the soldiers enlist
sential element of the marriage which is
proyable under said section.
1T is noted that the exception in the act
OF Aug. Z. 1889. is not as to marriages
generally in the cases Of colored and In
dian soldiers. but only as to such mar.
riages' of these soldiers as are mentioned
in said section 4705. If Congress had in
tended that all cases of coiored and Indian
soldiers should be provable as to maria &C
only and solely under said section 4I05, il
would doubtless have provided plainly in
except in cases of colored and Indian sol
ders' should be proyable as provided in
that act. BY limiting the exception, how
ever. to such marriages only as are men,
toned in said section 47O5 Congress
eyinced clear intent to make other thar
those marriages prOyable according to the
general rule established by that act, which
was merely cOnfirmatory of the rule which
had heretofore existed in practice. The
notes, by plain implication, that 'othcI
proof of marriage was contemplated by
Congress as admissible, the proof men.
toned in said section being declared mere.
ly to be sufficient without other proof,
for reasonable purposes.
ITO give to said section 1905 the ex.
elusive construction given it in this claim
would result in defeating the direct, affirm.
alive grant of pension contained in section
4105 of the Revised Statutes, which grants
pension to the widows and minor children
of all soldiers and sailors who die from
causes OF service origin. Said section 400
was manifestly not intended to be in dero-
CATION of any other statute or of any pen
sioEabe rights whatever. but was clearly
intended to be only auxiliary to and in aid
of TIE laws granting pensions, enabling
certain grantees of those laws to receive
the pension now provided by law without
other proof of marriage than as specified
in said section. and leaving unimpaired the
right Of those or Of other grantees to re-
eeive such pension, granted them by said
section 4!O2, by proving marriage in any
other way.
Statutes in pari materia are to be con-
strued tremendously, so that each may
have, if possible, its full effect Sutherland
on Stat Constr. secs. 239, 24O; and a
statute is not construed as exclusive un-
less that intent clearly appears Eullicll
on Interpretation of Stat, sec. 20S).
at is. therefore, held that, in establish
ing marriage in claims ON account of
colored or Indian soldiers or sailors who
died from causes arising in service and
line of duty, said section 4I05 does not ex-
clude proof of marriage by the law of the
place where the PARTIES resided at the
time of marriage, or at the time when the
right to pension accrued, as provided in
the act of Aug. z, 1882.
''The evidence in this claim tends to
of the soldier under Cherokee Indian
tribal marriage. The testimony, however.
is meager, conflicting, and unsatisfactory,
and before final adjudication of the claim
it should be submitted for a thorough
special examination as to the validity of
such marriage and the claimants domestic
status hereunder. There should be a par
ticular investigation and report of the
facts as to the alleged marriage of the
claimants parents, whether there was any
ceremony or rite of any kind, whether it
was recognized by them throughout their
joint lives and by the community as a valid
marriage under the laws and customs of
the Cherokee Nation. and whether appel
liant was similarly recognized as the legit-
innate child of the soldier at the time of
the latter's death. Testimony should be
procured as to what was then held and
considered by the Cherokee Nation to be
marriage. and as to what were the essen
tails IN the formation of the relation. SO
that the sufIiciency or insufficiency of the
facts in appellants case to show valid
tribal marriage and his legitimacy NAV be
intelligently determined.
The papers are returned herewith ac-
cordingly for such examination, upon com.
pletion of which they should be retrans-
mitted, with your report, for the final dis
position of the appeal"