The policy and legislation of Congress respecting the descent of
Indian allotments, particularly in the Five Civilized Tribes,
reviewed.
An allotment made under the Supplemental Creek Agreement (Act of
June 30, 1902, c. 1323, 32 Stat. 500) before the admission of the
State of Oklahoma, to a Creek Freedman who died after the state's
admission, descends (as among claimants who are all members of the
Creek Tribe) according to the law of that state.
The Oklahoma Enabling Act of June 16, 1906, substituted in this
respect the law of the state --
i.e., the law of the
Territory of Oklahoma as extended to, and as it might be changed
by, the state -- for the law of Arkansas, Mansfield's Digest, c.
49, which had been adopted provisionally in the Supplemental
Agreement (§ 6) and in prior acts, and this substitution is
recognized by the Act of May 27, 1908, c. 199, 35 Stat. 312, §
9.
In designating the Arkansas law as the rule of descent, the
Supplemental Agreement was not intended and did not operate to
confer any vested right of inheritance in respect of allotments
made and deeded while such designation remained in force.
A prospective heir acquires no vested right in the land before
the death of the ancestor, and the rules of descent are subject to
be changed meanwhile by the lawmaking power.
53 Okl. 272 affirmed.
Page 247 U. S. 289
The case is stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
The title to a Creek allotment is here in controversy. The
allotment was made under the Act of March 1, 1901, c. 676, 31 Stat.
861, known as the Original Creek Agreement, and the modifying act
of June 30, 1902, c. 1323, 32 Stat. 500, known as the Supplemental
Creek Agreement. In 1903, the usual tribal deeds, approved by the
Secretary of the Interior and passing the full title, were issued
to the allottee. In June, 1908, she died intestate, leaving her
surviving a father, brothers and sisters, but no mother, husband or
issue. The survivors, like the allottee, were enrolled members of
the tribe, and all were freedmen. In determining who inherited the
land, the courts below applied the Oklahoma law of descent existing
at the time of the allottee's death, 53 Okl. 272, and the question
for decision here is whether, under the legislation of Congress, an
Arkansas law, theretofore put in force in the Indian Territory,
should have been applied.
When the allotment was made and the tribal deeds issued, the
land was in the Indian Territory, but before
Page 247 U. S. 290
the allottee died, that territory and the Territory of Oklahoma
had become the State of Oklahoma.
In early times, when allotments in fee simple to individual
Indians were made only occasionally, there was no congressional
enactment prescribing who should inherit allotted land on the death
of the allottee, and in such cases it was held that, while the
tribal relation continued, the applicable rule of descent was to be
found in the laws and usages of the tribe, and not in the laws of
the state or territory in which the land lay.
Jones v.
Meehan, 175 U. S. 1,
175 U. S. 29-32.
In actual practice, this rule proved unsatisfactory because the
tribal laws and usages were generally crude and often difficult of
ascertainment, and so, in later allotment acts, Congress provided
that the descent should be according to the state or territorial
law. A notable illustration of what came to be the policy of
Congress on the subject is found in the general Allotment Act of
February 8, 1887, c. 119, 24 Stat. 388, the fifth section of which
says that, for a designated period, the United States will hold the
land in trust for the allottee, "or, in case of his decease, of his
heirs according to the laws of the state or territory where such
land is located," and, at the expiration of that period, will
convey the same in fee to the allottee, "or his heirs as
aforesaid," and also
"that the law of descent and partition in force in the state or
territory where such lands are situate shall apply thereto after
patents therefore have been executed and delivered."
True, that act has no direct application to the lands of the
Five Civilized Tribes, of which the Creek tribe is one, but it does
throw much light on what was intended by the subsequent legislation
relating to the descent of those lands when allotted.
A territorial government never was established in the Indian
Territory, and it never had a territorial legislature. Apart from
the tribal laws of the Indians, among which were laws relating to
descent and distribution, the only
Page 247 U. S. 291
laws which became operative there were such as Congress enacted
or put in force.
By acts passed in 1890, 1893, 1897 and 1898, Congress manifested
its purpose to allot or divide in severalty the lands of the Five
Civilized Tribes with a view to the ultimate creation of a state
embracing the Indian Territory; put in force in the territory
several statutes of Arkansas, including Chapter 49 of Mansfield's
Digest relating to descent and distribution; provided that those
statutes should apply to all persons in the territory, irrespective
of race, and substantially abrogated the laws of the several
tribes, including those relating to descent and distribution. Acts
May 2, 1890, c. 182, 26 Stat. 81, § 31; March 3, 1893, c. 209, 27
Stat. 645, § 16; June 7, 1897, c. 3, 30 Stat. 83; June 28, 1898, c.
517, 30 Stat. 495, §§ 11 and 26. This was the situation when the
Act of 1901, known as the Original Creek Agreement, was adopted.
That act, in the course of providing for the allotment in severalty
of the lands of the Creeks, revived their tribal law of descent and
distribution by making it applicable to their allotments, §§ 7 and
28. But the revival was only temporary, for the Act of 1902, known
as the Supplemental Creek Agreement, not only repealed so much of
the Act of 1901 as gave effect to the tribal law, but reinstated
the Arkansas law with the qualification that Creek heirs, if there
were such, should take to the exclusion of others.
* Washington v.
Miller, 235 U.S.
Page 247 U. S. 292
422,
235 U. S.
425-426. The allotment in question was made and the
tribal deeds issued shortly after the Act of 1902 became effective.
And this was followed by the Act of April 28, 1904, c. 1824, 33
Stat. 573, § 2, declaring that all statutes of Arkansas theretofore
put in force in the Indian Territory should be taken "to embrace
all persons and estates in said territory whether Indian, freedmen,
or otherwise."
Referring to the purpose with which the Arkansas statutes were
put in force in that territory and to their status there, this
Court said in
Shulthis v. McDougal, 225 U.
S. 561,
225 U. S.
571:
"Congress was then contemplating the early inclusion of that
territory in a new state, and the purpose of those acts was to
provide, for the time being, a body of laws adapted to the needs of
the locality and its people in respect of matters of local or
domestic concern. There being no local legislature, Congress alone
could act. Plainly its action was intended to be merely
provisional. . . ."
By the Enabling Act of June 16, 1906, c. 3335, 34 Stat. 267,
provision was made for admitting into the Union both the Territory
of Oklahoma and the Indian Territory as the State of Oklahoma. Each
territory had a distinct body of local laws. Those in the Indian
Territory, as we have seen, had been put in force there by
Congress. Those in the Territory of Oklahoma had been enacted by
the territorial legislature. Deeming it better that the new state
should come into the Union with a body of laws applying with
practical uniformity throughout the state, Congress provided in the
Enabling Act (§ 13) that
"the laws in force in the Territory of Oklahoma, as far as
applicable,
Page 247 U. S. 293
shall extend over and apply to said state until changed by the
legislature thereof,"
and also (§ 21) that
"all laws in force in the
Territory of Oklahoma at the
time of the admission of said state into the Union shall be in
force
throughout said state, except as modified or changed
by this act or by the Constitution of the state."
The people of the state, taking the same view, provided in their
constitution (Art. 25, § 2) that
"all laws in force in the
Territory of Oklahoma at the
time of the admission of the state into the Union which are not
repugnant to this Constitution, and which are not locally
inapplicable shall be
extended to and remain in force in the
State of Oklahoma until they expire by their own limitation or
are altered or repealed by law."
The state was admitted into the Union November 16, 1907, and
thereupon the laws of the Territory of Oklahoma relating to descent
and distribution (Rev.Stats. Okl. 1903, c. 86, art. 4) became laws
of the state. Thereafter Congress, by the Act of May 27, 1908,
c.199, 35 Stat. 312, § 9, recognized and treated "the laws of
descent and distribution of the State of Oklahoma" as applicable to
the lands allotted to members of the Five Civilized Tribes.
As before indicated, the allottee died in June, 1908, and the
courts below, in determining who inherited the land from her, gave
effect to the state law of Oklahoma existing at the time of her
death.
Two objections to that ruling are pressed on our attention, one,
that the allotment was made and the tribal deeds issued under the
Act of 1902, which contained a provision that the descent should be
according to the Arkansas law, and that thereby those who would be
heirs under that law became invested with a right to inherit which
could not be taken away or impaired by subsequent legislation,
either federal or state, and the other that, even if Congress
possessed the power to substitute
Page 247 U. S. 294
some other law of descent, that power was not exercised. Both
objections are untenable.
Through congressional action, the Arkansas law found in Chapter
49 of Mansfield's Digest had become the local law of descent in the
Indian Territory, and when the Act of 1902 provided that the
descent of Creek allotments should be in accordance with that
chapter, it was but another way of saying that the descent should
be in accordance with the local law. In other words, that act was
made to conform to the general policy of Congress in respect of the
descent of Indian allotments. Other provisions dealt with the
estate which the allottee was to receive, and showed that it was to
be a fee simple. What was said about the rules of descent was
purely legislative, not contractual, and its presence in the act
gave it no effect that it would not have had as a separate
enactment. Like other rules of descent, it was subject to change by
the lawmaking power as to any land not already passed to the heir
by the death of the owner. Not until the ancestor dies is there any
vested right in the heir. Cooley's Constitutional Limitations (7th
ed.) 512.
We have seen that Congress was accustomed to subjecting allotted
Indian lands to the local laws of descent, and also that its action
in putting the Arkansas law in force in the Indian Territory was
intended to be merely provisional. With this in mind, it seems very
plain that the provisions before quoted from the Enabling Act were
intended to result, at the time of the admission of the new state,
in the substitution of the Oklahoma law of descent for that of
Arkansas theretofore put in force in the Indian Territory. The
recognition given to the Oklahoma law by Congress in the Act of
1908 hardly can be explained on any other theory.
It well may be, as held below, that the qualification which
Congress placed on the application of the local
Page 247 U. S. 295
law -- then the Arkansas law -- by the Act of 1902 equally
qualifies the application of the Oklahoma law,
Washington v.
Miller, 235 U. S. 422, but
that question is not here, for the survivors of the allottee are
all Creek citizens.
* The repealing and reinstating portion of the act was as
follows:
"6. The provisions of the act of Congress approved March 1,
1901, . . . insofar as they provide for descent and distribution
according to the laws of the Creek Nation, are hereby repealed, and
the descent and distribution of land and money provided for by said
act shall be in accordance with chapter 49 of Mansfield's Digest of
the Statutes of Arkansas now in force in Indian Territory:
Provided, that only citizens of the Creek Nation, male and
female, and their Creek descendants shall inherit lands of the
Creek Nation,
and provided further that, if there be no
person of Creek citizenship to take the descent and distribution of
said estate, then the inheritance shall go to noncitizen heirs in
the order named in said chapter 49."
There was a like provision, but without the provisos, in the Act
of May 27, 1902, c. 888, 32 Stat. 258.