The Original Creek Agreement of March 1, 1901, was not a grant
in praesenti which invested the then living members of the
tribe and their heirs with absolute rights that could not be
recalled or impaired by Congress without violating the due process
clause of the Fifth Amendment.
Unless and until the Original Creek Agreement of 1901 was
carried into effect, Congress possessed plenary power, as before,
to deal with the lands and funds to which it related as tribal
property.
Choate v. Trapp, 224 U.
S. 665.
The Supplemental Creek Agreement of 1902 and the Act of May 27,
1902, repealing the provisions of the Act of March 1, 1901,
recognizing the tribal laws of descent and distribution and
declaring that the descent and distribution of Creek lands and
moneys should be in accordance with the specified laws of Arkansas,
were valid acts within the plenary power of Congress to deal with
Indians and their tribal property.
An exertion of the administrative control of the government over
tribal property of tribal Indians is subject to change by Congress
at any time before it is carried into effect and while tribal
relations continue.
The descent and distribution of a Creek Indian Allotment, not
selected or made until after the Supplemental Creek Agreement of
1902 went into effect, are controlled under that agreement by
Chapter 49 of Mansfield's Digest of the Law of Arkansas.
Under Chapter 49 of Mansfield's Digest of the Law of Arkansas, a
paternal cousin of the intestate inherits real estate to the
exclusion of maternal cousins.
33 Okl. 169 affirmed.
The facts, which involve the construction of the provisions in
the Original and Supplemental Creek Agreements regarding the
descent and distribution of Creek Indian allotments, are stated in
the opinion.
Page 235 U. S. 446
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was a suit to determine conflicting claims to an allotment
selected and made after August 8, 1902, on behalf of Ellis Grayson,
a Creek citizen duly entitled to enrollment, who died unmarried
March 1, 1901, leaving as his only surviving relatives three first
cousins, one on the paternal and two on the maternal side. All were
Creek citizens. In the papers evidencing the selection and approval
of the allotment, as also in the ensuing tribal deed, the
beneficiaries were designated as the "heirs" of the deceased,
without otherwise naming them, and this was in accord with the
usual practice. The suit was brought by the paternal cousin, who
insisted that the title under the allotment and tribal deed passed
to him alone. The others were made defendants, and answered
asserting an exclusive right in themselves. Each side also advanced
an alternative claim that the three took the land in equal parts.
Two questions of law were involved: first, whether the
beneficiaries were to be ascertained according to the Creek tribal
law or according to an Arkansas law presently to be noticed, and
second, whether the governing law preferred either paternal or
maternal relatives when all were of the same degree. The trial
court, concluding that the tribal law was applicable and preferred
maternal relatives, gave judgment for the defendants, but the
supreme court of the state held that the Arkansas law was
controlling and preferred paternal relatives, so the decision below
was reversed, with a direction that judgment be entered for the
plaintiff. 33 Okl. 169. The defendants then sued out this writ of
error.
Anterior to the legislation which we must consider, the Creek
lands and funds belonged to the tribe as a community, and not to
the members severally or as tenants in common. The right of each
individual to participate in
Page 235 U. S. 447
the enjoyment of such property depended upon tribal membership,
and when that was terminated by death or otherwise, the right was
at an end. It was neither alienable nor descendible. Under treaty
stipulations, the tribe maintained a government of its own, with
legislative and other powers, but this was a temporary expedient,
and in time proved unsatisfactory. Like other tribal Indians, the
Creeks were wards of the United States, which possessed full power,
if it deemed such a course wise, to assume full control over them
and their affairs, to ascertain who were members of the tribe, to
distribute the lands and funds among them, and to terminate the
tribal government. This Congress undertook to do. The earlier
legislation was largely preliminary, and need not be noticed.
The first enactment having a present bearing is that of March 1,
1901, 31 Stat. 861, c. 676, called the "Original Creek Agreement,"
which went into effect June 25, 1901, 32 Stat.1971. It made
provision for a permanent enrollment of the members of the tribe,
for appraising most of the lands and allotting them in severalty
with appropriate regard to their value, for using the tribal funds
in equalizing allotments, for distributing what remained, for
issuing deeds transferring the title to the allotted lands to the
several allottees, and for ultimately terminating the tribal
relation. In § 28, this act directed that the enrollment, except as
to children, should include "all citizens who were living" on April
1, 1899, and entitled to enrollment under the earlier legislation,
and then declared that,
"if any such citizen has died since that time, or may hereafter
die before receiving his allotment of lands and distributive share
of all the funds of the tribe, the lands and money to which he
would be entitled, if living, shall descend to his heirs according
to the laws of descent and distribution of the Creek Nation, and be
allotted and distributed to them accordingly. "
Page 235 U. S. 448
So much of that act as recognized the tribal laws of descent and
distribution was repealed by the Act of May 27, 1902, [
Footnote 1] 32 Stat. 258, c. 888, which
also provided:
"And the descent and distribution of lands and moneys provided
for in said act [March 1, 1901] shall be in accordance with the
provisions of chapter forty-nine of Mansfield's Digest of the
Statutes of Arkansas in force in Indian Territory."
This was repeated, with a qualification not material here, in §
6 of the Act of June 30, 1902, 32 Stat. 500, c. 1323, called the
"Supplemental Creek Agreement," which went into effect August 8,
1902.
See 32 Stat. 2021;
Tiger v. Western Investment
Co., 221 U. S. 286,
221 U. S.
301.
Ellis Grayson was living April 1, 1899, and entitled to
enrollment. Had he lived, he would have been entitled, under the
original agreement, to participate in the allotment and
distribution of the tribal property. But he died March 1, 1901,
before the agreement went into effect and without receiving any
part of the lands or funds of the tribe. In these circumstances,
the agreement contemplated that his heirs should take his place in
the allotment and distribution, and should receive "the lands and
money to which he would be entitled, if living;" and it also
contemplated that effect should be given to the Creek laws of
descent and distribution in determining who were his heirs and in
what proportions they were to take the property passed to them in
his right. But, as before said, the Act of May 27, 1902, and the
supplemental agreement repealed the provision giving effect to the
Creek laws of descent and distribution and substituted in their
stead the laws of Arkansas embodied in Chapter 49 of Mansfield's
Digest. This change went into effect before the allotment in
question was selected or made, and has an important
Page 235 U. S. 449
bearing here because, according to the Creek laws, [
Footnote 2] the maternal cousins were
either the sole heirs or joint heirs with the paternal cousin,
while, according to the Arkansas laws, [
Footnote 3] the paternal cousin was the only heir.
On the part of the maternal cousins, it is contended that the
provisions in the original agreement relating to the allotment and
distribution of the tribal lands and funds were in the nature of a
grant
in praesenti, and invested every living member of
the tribe and the heirs, designated in the tribal laws, of every
member who had died after April 1, 1899, with an absolute right to
an allotment of lands and a distributive share of the funds, and
that Congress could not recall or impair this right without
violating the due process of law clause of the Fifth Amendment to
the Constitution. To this we cannot assent. There was nothing in
the agreement indicative of a purpose to make a grant
in
praesenti. On the contrary, it contemplated that various
preliminary acts were to precede any investiture of individual
rights. The lands and funds to which it related were tribal
property, and only as it was carried into effect were individual
claims to be fastened upon them. Unless and until that was done,
Congress possessed plenary power to deal with them as tribal
property. It could revoke the agreement and abandon the purpose to
distribute them in severalty, or adopt another mode of
distribution, or pursue any other course which to it seemed better
for the Indians. And without doubt it could confine the allotment
and distribution to living members of the tribe, or make any
provision deemed more reasonable than the first for passing to the
relatives of deceased members the lands and money to which the
latter would be entitled, if living. In short, the power of
Congress was not exhausted or restrained by the
Page 235 U. S. 450
adoption of the original agreement, but remained the same
thereafter as before, save that rights created by carrying the
agreement into effect could not be devested or impaired.
Choate
v. Trapp, 224 U. S. 665,
224 U. S.
671.
In principle, it was so held in
Gritts v. Fisher,
224 U. S. 640.
There, an act or agreement of 1902 had made provision for allotting
and distributing the lands and funds of the Cherokees in severalty
among the members of the tribe who were living on September 1,
1902, and an Act of 1906 had directed that Cherokee children born
after September 1, 1902, and living on March 4, 1906, should
participate in the allotment and distribution. By enlarging the
number of participants, the later act operated to reduce the
distributive share to which each would be entitled, and, because of
this, the validity of that act was called in question, the
contention being that the prior act confined the allotment and
distribution to the members living on September 1, 1902, and
therefore invested them with an absolute right to receive all the
lands and funds, and that this right could not be impaired by
subsequent legislation. This Court rejected the contention and said
(p.
224 U. S.
648):
"No doubt such was the purport of the act. But that, in our
opinion, did not confer upon them any vested right such as would
disable Congress from thereafter making provision for admitting
newly born members of the tribe to the allotment and distribution.
The difficulty with the appellants' contention is that it treats
the Act of 1902 as a contract when 'it is only an act of Congress,
and can have no greater effect.'
Cherokee Intermarriage
Cases, 203 U. S. 76,
203 U. S.
93. It was but an exertion of the administrative control
of the government over the tribal property of tribal Indians, and
was subject to change by Congress at any time before it was carried
into effect, and while the tribal relations continued.
Stephens
v. Cherokee Nation, 174 U. S. 445,
174 U. S.
488;
Cherokee Nation v. Hitchcock, 187 U. S.
294;
Wallace v. Adams, 204 U. S.
415,
204 U. S. 423. "
Page 235 U. S. 451
We have seen that the allotment in question was not selected or
made until after the supplemental agreement went into effect. The
heirs designated in Chapter 49 of Mansfield's Digest were therefore
the true beneficiaries. According to its provisions, as is
conceded, the paternal cousin was the sole heir.
Judgment affirmed.
[
Footnote 1]
This act went into effect July 1, 1902.
See Joint
Resolution No. 24, 32 Stat. 742.
[
Footnote 2]
Perryman's Compiled Creek Laws of 1890, p. 32, § 6; Bledsoe's
Indian Land Laws,2d ed. § 829.
[
Footnote 3]
Mansfield's Digest, § 2532.