Reynolds v. Fewell, ante, p.
236 U. S. 58,
followed to the effect that, under § 7 of the Original Creek
Agreement of 1901, a noncitizen husband is entitled under the
tribal laws to take an heir's part of the lands which had been
allotted to his deceased citizen wife, pursuant to the rule of
property established by the highest court of Oklahoma in
De
Graffenreid v. Iowa Land & Trust Co., 20 Okl. 687.
Quaere whether persons entitled to take lands allotted
under § 28 of the Original Creek Agreement on behalf of a deceased
member of the tribe should be ascertained by reference to the time
of the death of the decedent or by reference to the date of the
allotment.
34 Okl. 79 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.
Minnie Solander, a Creek, died intestate on October 8, 1899,
leaving her husband, George Solander (who resided
Page 236 U. S. 69
in the Creek Nation, but was not a citizen thereof), her child,
Hettie L. Solander, and her sister, Phoebe Trusler, surviving.
Hettie L. Solander died intestate on December 19, 1899, [
Footnote 1] without husband or issue;
her father and aunt (above mentioned) survived her. Minnie Solander
was duly enrolled as a member of the Creek tribe, and, after the
death of herself and her daughter, an allotment was made to her
"heirs" of certain land, the title to which is here in controversy.
Her husband, George Solander, on April 27, 1906, executed a
conveyance of this land to William M. Fewell, who brought the
present action in ejectment against the plaintiff in error, John H.
Shellenbarger; the latter claimed the property under a deed from
Phoebe Trusler, the nearest relative of Indian blood.
The Supreme Court of the State of Oklahoma held that the
husband, although a noncitizen, had title to the lands allotted on
behalf of his wife, and that they passed under his conveyance. 34
Okl. 79. And this writ of error has been sued out.
The record in this case does not show the date of the allotment
made on behalf of Minnie Solander, [
Footnote 2] but the state court concluded "from the
admissions in the agreed statement of facts and the briefs of both
parties" that the allotment had been selected, and the certificate
issued, under the Original Creek Agreement of March 1, 1901, 31
Stat. 861, c. 676. This has also been assumed in the argument here.
The case is therefore controlled by § 28 of the Act of 1901,
supra, which provides that the lands to which the deceased
member of the tribe would have been entitled, if living, should
"descend to his heirs according to the laws of descent and
distribution of the Creek Nation, and be allotted . . .
accordingly." Under
Page 236 U. S. 70
these laws, according to the settled rule of construction,
George Solander was entitled to the property, and had the right to
convey.
Reynolds v. Fewell, ante, p.
236 U. S. 58.
The question whether the persons entitled to take lands allotted
under § 28 on behalf of a deceased member of the tribe should be
ascertained by reference to the time of the death of the decedent
or by reference to the date of the allotment has been discussed in
the briefs, but is not material here, inasmuch as, in either event,
George Solander took all the lands in question; it is not necessary
to inquire whether an undivided interest should be treated as one
passing in the first instance to his daughter, and on her death to
him.
Judgment affirmed.
[
Footnote 1]
The date of her death is given in the agreed statement in No.
102,
Reynolds v. Fewell, ante, p.
236 U. S. 58, as
November 17, 1899.
[
Footnote 2]
The date of this allotment is stated in the record in No. 102,
Reynolds v. Fewell, ante, p.
236 U. S. 58, as
December 3, 1901.