Marlin v. Lewallen
276 U.S. 58 (1928)

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U.S. Supreme Court

Marlin v. Lewallen, 276 U.S. 58 (1928)

Marlin v. Lewallen

No. 40

Argued October 18, 1927

Decided February 20, 1928

276 U.S. 58

Syllabus

1. The surviving husband of a woman of the Creek blood and tribe, whether himself of that blood or not, has no estate of curtesy in land allotted and patented to her in the distribution of the tribal property under the original and supplemental Creek Agreements, Acts of March 1, 1901, and June 30, 1902, and of which she died seized, intestate and leaving issue. Pp. 276 U. S. 59, 276 U. S. 68.

2. By the Act of June 28, 1898, and prior enactments, tribal laws in the Indian Territory were displaced and a body of laws adopted from the statutes of Arkansas was then put in force, for Indians and whites, except as they might be inapplicable in particular situations or might be superseded as to any of the Five Civilized Tribes by future agreements. P. 276 U. S. 62.

3. Statutes of Arkansas adopted by Act of Congress for the Indian Territory carried with them the settled constructions placed upon them by the Arkansas courts before such adoption. P. 276 U. S. 62.

4. Under Chapter 20 of Mansfield's Digest of Arkansas Statutes, as modified by c. 104, both of which were extended to Indian Territory, curtesy initiate was not recognized and curtesy consummate was recognized only where the wife died seized of the land and intestate. P. 276 U. S. 62.

5. The Creek Agreements, supra, were in the nature of a comprehensive treaty, rather than a mere supplement to the fragmentary legislation that preceded them, were to have full effect regardless of any inconsistency with that legislation, and are to be construed

Page 276 U. S. 59

not according to the technical meaning of their words, but according to the sense in which they would naturally be understood by the Indians. P. 276 U. S. 63.

6. These agreements, given their true status as special laws for the Creeks, withdrew the lands of the Creek from the adopted Arkansas laws of curtesy. P. 276 U. S. 65.

7. The Act of April 28, 1904, relating to the jurisdiction of the Special Courts of Indian Territory, and providing for the continuance and extension of the Arkansas laws theretofore put in force there, and conferring full and complete jurisdiction upon the district courts of the Territory in the settlement of all estates of decedents, etc., did not subject the lands of the Creeks to the Arkansas laws of curtesy. P. 276 U. S. 67.

113 Okla. 259 reversed.

Certiorari, 271 U.S. 654, to a judgment of the Supreme Court of Oklahoma sustaining a claim to an estate by the curtesy in lands allotted and patented to a Creek woman. See also the case next following.

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