The courts of Oklahoma have held that, under § 7 of the Original
Creek Agreement of 1901, a noncitizen husband, while by reason of
nonmembership in the tribe was not to be counted in determining the
distributive shares for the purpose of allotment to, or in the
right of, enrolled members of the tribe, was entitled under tribal
laws to take an heir's part of the lands which had been allotted to
his deceased citizen wife.
De Graffenreid v. Iowa Land &
Trust Co., 20 Okl. 687.
The laws of the Creeks were uncertain and ambiguous, and
although the construction of a tribal law by the Supreme Court of
Oklahoma is not a construction of a law of the state, and this
Court has an undoubted right of review, it will not overturn, in a
case at most only debatable, a rule of construction that for years
has governed transfers of property.
The Supplemental Creek Agreement of 1902, providing that the
descent and distribution of allotments should be in accordance with
§ 49, Mansfield's Digest, Laws of Arkansas, was not an
interpretation
Page 236 U. S. 59
of the provisions for descent and distribution in the Original
Creek Agreement of 1901, but an express repeal thereof and the
establishment of another rule as to the future, but without
affecting the meaning of the provision in the Original Agreement as
to the cases governed by it.
34 Okl. 112 affirmed.
The facts, which involve the construction of the Original Creek
Agreement and the laws of descent applicable to allotments made
thereunder, are stated in the opinion.
MR. JUSTICE HUGHES delivered the opinion of the Court.
The defendant in error brought this action to recover certain
lands which had been allotted under the Original Creek Agreement
(Act of March 1, 1901, c. 676, 31 Stat. 861; 32 Stat.1971). The
allotments described in the complaint had been made on behalf of
two deceased Creeks, Minnie Solander and her infant daughter,
Hettie L. Solander -- that is, the respective allotments ran to the
"heirs" of each. The defendant in error claimed under a lease,
executed on September 7, 1905, by George A. Solander, the surviving
husband of Minnie Solander, and father of the other decedent. At
the time of the death of his wife and daughter, as for some years
previously, George A. Solander "resided in the Creek Nation," but
he was not a citizen of that Nation. The plaintiff in error claimed
under a conveyance from Phoebe B. Trusler, an enrolled Creek, who,
as the sister of Minnie Solander, was the nearest relative of
Indian blood. The question was whether George A. Solander was
entitled to take as "heir" despite
Page 236 U. S. 60
the fact that he was not a Creek citizen. It was answered by the
state court in the affirmative. 34 Okl. 112.
While the complaint embraced a portion of the lands allotted on
behalf of Minnie Solander as well as lands allotted on behalf of
Hettie L. Solander, it appears from the record that the judgment
related exclusively to the latter. According to the agreed
statement of facts, Hettie L. Solander was born on February 22,
1899, and died on November 17, 1899, before receiving her
allotment, and leaving her father and aunt surviving. She was
entitled to be enrolled, and was enrolled, as a member of the
tribe, and the allotment on her behalf was made to her "heirs,"
without further description, on December 4, 1901, under the second
paragraph of § 28 of the Act of 1901,
supra, and the
tribal deed was thereafter executed accordingly. Section 28 is as
follows:
"No person, except as herein provided, shall be added to the
rolls of citizenship of said tribe after the date of this
agreement, and no person whomsoever shall be added to said rolls
after the ratification of this agreement."
"All citizens who were living on the first day of April,
eighteen hundred and ninety-nine, entitled to be enrolled under
section twenty-one of the Act of Congress approved June
twenty-eighth, eighteen hundred and ninety-eight, entitled, 'An Act
for the Protection of the the Indian Territory, and for Other
Purposes,' shall be placed upon the rolls to be made by said
commission under said act of Congress, and 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."
"All children born to citizens so entitled to enrollment,
Page 236 U. S. 61
up to and including the first day of July, nineteen hundred and
then living shall be placed on the rolls made by said commission,
and if any such child die after said date, the lands and moneys to
which it would be entitled if living shall descend to its heirs
according to the laws of descent and distribution of the Creek
Nation, and be allotted and distributed to them accordingly."
"The rolls so made by said commission, when approved by the
Secretary of the Interior, shall be the final rolls of citizenship
of said tribe, upon which the allotment of all lands and the
distribution of all moneys and other property of the tribe shall be
made, and to no other persons."
We are thus referred to the "laws of descent and distribution of
the Creek Nation" to ascertain the persons entitled to the
property. This explicit and determinative reference disposes of the
contention that George A. Solander, although he might be an "heir"
under the Creek laws, nevertheless could not take the lands in
controversy because, being a noncitizen, he was not entitled to the
allotment of a distributive share of the tribal lands in his own
right. It is sought to find support for this contention in the
concluding paragraph of § 28, above quoted, which provides that the
approved rolls shall be the final rolls of citizenship, upon which
"allotment of all lands . . . shall be made, and to no other
persons." But this paragraph should be read in the light of § 3 of
the Act of 1901,
supra, under which all lands were to be
allotted "among the citizens of the tribe" so as "to give each an
equal share of the whole in value, as nearly as may be." The
persons who were to receive these equal portions were those duly
ascertained and enrolled, and the rolls approved by the Secretary
of the Interior were to be final with respect to membership in the
tribe and the corresponding determination of the distributive
shares of the tribal lands. Thus, the provision of the last
paragraph of § 28 had manifest regard to those who were to receive
allotments if living,
Page 236 U. S. 62
and to those on whose behalf allotments were to be made if they
had died. In the latter case, the allotment of the distributive
share which would have gone to the enrolled citizen, if living, was
to go to his "heirs." One who took as such "heir" would be
nonetheless entitled because he might have in addition an allotment
in his own right as a member of the tribe; that would not be a
disturbance of the principle of equality in distribution which was
so emphatically laid down. Nor, on the other hand, would one be
excluded from taking, if he were a described "heir," by reason of
the fact that he could not himself have received a distributive
share as an enrolled citizen. The right of such "heir" to take
would not be determined by reference to his status as a citizen or
noncitizen, or by his right to a distributive share of the tribal
lands as one enrolled, but by the status of the decedent and the
fact that he was an "heir" of the decedent within the statutory
definition.
We have recently had occasion to review the course of
legislation with respect to the distribution of the property of
Creek intestates.
Washington v. Miller, 235 U.
S. 422;
Sizemore v. Brady, 235 U.
S. 441. The Creek Nation, as a "distinct political
society" (
Cherokee Nation v.
Georgia, 5 Pet. 1,
30 U. S. 16), had
its own laws governing the devolution of the property of its
citizens. When Congress put in force in the Indian Territory
certain general laws of Arkansas, including Chapter 49 of
Mansfield's Digest, relating to descents and distributions, it
provided that "the judicial tribunals of the Indian Nations" should
retain exclusive jurisdiction in all cases in which members of the
Nation should be the only parties, and that to such cases the laws
of Arkansas should not apply. Act of May 2, 1890, c. 182, §§ 30, 26
Stat. 81, 94, 95. In 1897, however, it was provided that the laws
of the United States and of the State of Arkansas in force in the
Indian Territory should "apply to all persons therein, irrespective
of race" (Act of June 7, 1897, c. 3, 30 Stat. 62, 83), and in 1898,
Congress
Page 236 U. S. 63
abolished the tribal courts and prohibited the enforcement of
the tribal laws. Act of June 28, 1898, c. 517, §§ 26, 28, 30 Stat.
495, 504. The Original Creek Agreement of 1901,
supra,
operated again to make effective, for the purposes stated, the
Creek tribal laws with respect to "descent and distribution" of the
property of Creek intestates (
see §§ 7 and 28), and the
provisions having this import remained in force until their repeal
in the following year. Act of May 27, 1902, c. 888, 32 Stat. 245,
258, 32 Stat. 742; Supplemental Agreement, Act of June 30, 1902, c.
1323, § 6, 32 Stat. 500, 501.
The Creek laws thus made controlling are set forth in the agreed
statement as follows:
"SEC. 6. Be it further enacted that, if any person die without a
will, having property and children, the property shall be equally
divided among the children by disinterested persons, and in all
cases where there are no children, the nearest relation shall
inherit the property. Laws of Muscogee Nation, 1880, p. 132."
"SEC. 8. The lawful or acknowledged wife of a deceased husband
shall be entitled to one half of the estate, if there are no other
heirs, and an heir's part, if there should be other heirs, in all
cases where there is no will. The husband surviving shall inherit
of a deceased wife in like manner. Laws of Muscogee Nation, 1880,
p. 60."
"SEC. 1. All noncitizens, not previously adopted, and being
married to citizens of this Nation, or having children entitled to
citizenship, shall have a right to live in this Nation and enjoy
all the privileges enjoyed by other citizens, except participation
in the annuities and final participation in the lands. Laws of the
Muscogee Nation, 1890, p. 60."
See Perryman's Compiled Creek Laws of 1890, § 6, p. 32;
§ 8, p. 76; § 1, p. 66; Bledsoe's Indian Land Laws, 2d ed., §§
829-831.
It will be observed that §§ 6 and 8 make no distinction between
citizens and noncitizens. Under § 8, it is "the
Page 236 U. S. 64
lawful or acknowledged wife" or "husband" that is entitled to
take. If a noncitizen within this description was to have "an
heir's part," there would seem to be no reason for construing § 6
so as to exclude a noncitizen father of a deceased citizen when the
father is the "nearest relation." And it is contended by the
defendant in error that the provision of § 1 above quoted only
debarred the noncitizen husband, or noncitizen father, from taking
a membership interest in the tribal property -- that is, from being
counted as one of the units in the final distribution of the tribal
lands, and did not deprive him of the right to take the part of an
heir or next of kin in whatever property had come to be owned
individually by the deceased wife or child.
While the agreed statement asserts that the laws above quoted
are the "only" Creek statutes "in relation to descent and
distribution" at the time in question, the plaintiff in error
insists that we should take judicial notice of numerous other
provisions of the Creek laws which it is urged must control. Thus,
we are referred -- taking those statutes which are most nearly in
point -- to §§ 299 and 300 of McKellop's Compilation (1893) of
Creek Laws to the effect that "no noncitizen shall, on account of
marriage with a citizen of this Nation, acquire any right
pertaining or belonging to a citizen of this Nation," and that
"no noncitizen shall have the right to reside in or to own any
improvement in this Nation, except as provided for in the treaties
between this Nation and the United States,"
and also to § 108 (McKellop's Comp. 1900), apparently approved
October 30, 1894, that "no noncitizen shall be permitted to own
houses or fences of any kind within the Nation, or any interest
therein," and that
"any purchase, grant, lease, or other conveyance of lands of the
Muskogee Nation, or title or claim thereto given by any citizen or
person claiming to be a citizen, contrary to § 2116 of the United
States Intercourse Laws"
shall be void.
Page 236 U. S. 65
It is not certain that any of these last-mentioned provisions
was intended to apply to the succession of a husband or father in
case of intestacy. On the other hand, the acquisition of property
rights within the Nation by an intermarried person, although a
noncitizen, was distinctly recognized by the Creek Act of April 6,
1894 (McKellop's Comp. 1900, §§ 76, 77), relating to the
jurisdiction of the tribal courts. This act provided:
"SEC. 76. The courts of this Nation shall have and exercise
jurisdiction over all controversies arising out of or pertaining to
property rights acquired in this Nation and situated in the same by
noncitizens who have intermarried with citizens of this Nation, and
by reason of such marriage secured rights and privileges in this
Nation under which such property was acquired and accumulated by
them. The jurisdiction of our courts shall extend to controversies
over property and property rights acquired by intermarried
noncitizens of our Nation who, by virtue of this intermarriage with
citizens, acquired such property rights and privileges, and that
irrespective of whether such controversies are between noncitizens
and citizens of the Muskogee Nation or between any persons
whomsoever, who claim in this Nation property rights under and
through such intermarried noncitizens which are by them acquired in
the manner aforesaid, and all persons hereafter intermarrying with
citizens of this Nation shall thereby be deemed to consent that the
courts of this Nation exercise jurisdiction over all property
rights and privileges that they acquire in this Nation by virtue of
their said marriage."
"SEC. 77. All property brought into this Nation by noncitizens
in consequence of intermarriage of such noncitizens with citizens
of this Nation shall likewise be under the jurisdiction of the
courts of this Nation."
That the intermarried noncitizen could inherit under the tribal
laws appears to have been the conclusion reached
Page 236 U. S. 66
in an unreported case (
Porter v. Brook) in the United
States court for the Western District of the Indian Territory, and
this ruling was followed by the Supreme Court of the State of
Oklahoma in the case of
De Graffenreid v. Iowa Land & Trust
Co., 20 Okl. 687. It was held that a noncitizen husband, while
by reason of the fact of his nonmembership he was not to be counted
in determining the distributive shares for the purpose of allotment
to, or in the right of, enrolled members of the tribe, was entitled
under the tribal laws to take an heir's part of the lands which had
been allotted to his deceased citizen wife. In that case, the
descent was controlled by the provision of § 7 of the Original
Creek Agreement that the land allotted should descend to the heirs
of the allottee "according to the laws of descent and distribution
of the Creek Nation," the same expression that is used in § 28.
This decision as to the right of intermarried noncitizens to
inherit has been repeatedly followed and has become a rule of
property which, recognizing the importance of the security of
titles, we should not disturb unless it is clearly wrong. But, so
far from the case being one of manifest error, it is apparent from
the review of their provisions that the most that can be said is
that the Creek laws were uncertain and ambiguous, and that their
proper construction as an original question might be regarded as
doubtful. It is true, of course, as urged by the plaintiff in
error, that we are not dealing with a statute of a state, the
meaning of which is necessarily settled by the state court, but
even where we have undoubted right of review, we ought not to
overturn, in a case at most debatable, a local rule of construction
which for years has governed transfers of property.
See Nadal
v. May, 233 U. S. 447,
233 U. S. 454.
It is insisted that the supplemental Creek Agreement of 1902
(
supra), in § 6, contains an interpretation by Congress of
the words used in §§ 7 and 28 of the Act of 1901. But we do not so
read the later statute. Its evident
Page 236 U. S. 67
purpose was not to interpret the reference in the Act of 1901 to
the Creek laws of "descent and distribution," or to define the
content and significance of such laws, but to supersede the former
provision and to establish another rule. The previous provision
with respect to descent and distribution according to the Creek
laws was expressly repealed, and it was provided that "the descent
and distribution" should be in accordance with Chapter 49 of
Mansfield's Digest of the statutes of Arkansas, with the proviso
that Creek heirs, if there were such, should take to the exclusion
of others. This was a recognition of dissatisfaction with the
provision of the original agreement which made the Creek laws
controlling, but the meaning and application of that provision in
the cases governed by it were in no way affected.
We are therefore of the opinion that George A. Solander was
entitled to the land which was allotted on behalf of his infant
daughter, and, as in the case of an allotment of this sort, the
restriction upon alienation was not applicable, he had the right to
make the conveyance under which the defendant in error claims.
Skelton v. Dill, 235 U. S. 206.
The judgment of the state court is affirmed.
Judgment affirmed.