1. Judgment held reviewable by certiorari, and not be writ of
error. P. 267 U. S.
2. Paragraph 6 of the Supplemental Creek Agreement, confirmed by
Act of June 30, 1902, c. 1323, 32 Stat. 500, declares that descent
and distribution of land and money provided by Act of March 1,
1901, c. 676, 21 Stat. 861, shall be in accordance with c. 49 of
Mansfield's Digest of the Statutes of Arkansas, in force in the
Indian Territory, but contains provisos (a) that only citizens of
the Creek Nation and their Creek descendants shall inherit lands of
the Creek Nation, but (b) that, if there be no person of Creek
citizenship to take descent, then the inheritance shall go to
noncitizen heirs in the order named in said chapter 49.
that the preferred right of Creek citizens to
inherit Creek allotted lands applies not only to inheritance
immediately from the original allottee, but also in subsequent
stages of devolution, so that where an allotment made originally in
the names of deceased Creek freedmen was inherited from them by an
heir who was a Creek citizen, upon her death it descended to her
more remote kindred, who were Creek citizens, in preference to her
next of kin who was neither a Creek citizen nor a descendant of a
Creek citizen. P. 267 U. S.
Page 267 U. S. 353
3. Where the state court decided as a pure matter of fact that
plaintiffs were Creek citizen, but by error of law denied them
their resultant federal right to preference in inheritance of Creek
that the finding of fact was not so related to
the denial of federal right as to be reexaminable in this Court. P.
267 U. S.
4. The rule that, when the decision of a state court may rest
upon a nonfederal ground adequate to support it, this Court will
not take jurisdiction to determine the federal question has no
application where the nonfederal ground might have been considered
by the state court, but was not. P. 267 U. S.
90 Okla. 147
Error and certiorari to a decree of the Supreme Court of
Oklahoma which reversed a decree in favor of Grayson et
in their suit to recover an interest in a Creek Indian
allotment and for an accounting for oil and gas extracted from
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
This is a suit brought in a state court of Oklahoma to determine
title to an undivided half interest in certain lands in that state
lying within the former Creek Nation. The case is here both on
error and certiorari. 263 U.S. 696. The latter is the appropriate
remedy, and the writ of error will he dismissed.
Defendants in error claim title through one Cloria Grayson, and
it is admitted that they acquired by mesne conveyances, and have
whatever title she had. The lands were originally allotted in the
names of two freedmen, citizens of the Creek Nation, who had died
prior to the allotment, leaving Gertrude Grayson and another as
Page 267 U. S. 354
their only Creek heirs at law, and ownership of an undivided
half interest in the lands passed to each of them. Gertrude Grayson
died intestate and without issue in 1907, leaving as her next of
kin her maternal grandmother, Cloria Grayson, who was not a Creek
citizen, nor a descendant of a Creek citizen, and these plaintiffs
in error, remote kindred in various degrees, all of whom were Creek
citizens. This was prior to the admission of Indian Territory and
the territory of Oklahoma as the State of Oklahoma, and by the Act
of May 2, 1890, c. 182, 26 Stat. 81, 95, § 31, the general law in
force in Indian Territory in respect of descents and distributions
was chapter 49 of Mansfield's Digest of the Statutes of Arkansas.
If this law applies, it is conceded that Cloria Grayson succeeded
to the half interest of Gertrude Grayson as her sole heir at law,
in which event title of defendants in error is good, and plaintiffs
in error have no case. The contention on behalf of plaintiffs in
error, however, is that the rights of the parties are controlled by
the provisos found in paragraph 6 of the Supplemental Creek
Agreement, ratified and confirmed by the Act of June 30, 1902, c.
1323, 32 Stat. 500, 501, as follows:
"6. The provisions of the Act of Congress approved March 1, 1901
(31 Stat.L. 861), 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. "
Page 267 U. S. 355
In addition to claim of title, defendants in error denied that
plaintiffs in error were Creek citizens, and alleged in bar adverse
possession of the lands for the applicable statutory period. The
trial court found for plaintiffs in error on all issues, and
rendered a decree in their favor. Upon appeal, the state supreme
court reversed the decree upon the assumption that the provisos in
paragraph 6 related only to the devolution of the allotment from
the allottee -- that is, the first succession -- and that, since
Gertrude Grayson was not the allottee, but inherited her half
interest by operation of law, the provisos had no application. 90
Okl. 147. The effect of this ruling was to read into the provisos a
limitation which plainly is not there, apparently induced by the
belief that a literal interpretation would lead to absurd and
The conclusion is not in accord with the prior views of this
Court, to which the state supreme court gave no consideration. In
Washington v. Miller, 235 U. S. 422
was held that the proviso that only citizens of the Creek Nation
and their Creek descendants should "inherit lands of the Creek
Nation" looked to the future, as well as to the present. The theory
had been advanced that lands which had passed into private
ownership were no longer lands of the tribe (that is to say, no
longer "lands of the Creek Nation"), and therefore not within the
words of the proviso. Answering that theory, this Court said (p.
235 U. S.
"We think the words indicated were merely descriptive of the
body of lands which were being allotted in severalty and subjected
to the incidents of individual ownership -- that is, the lands in
the Creek Nation. In that sense, they would include the lands as
well after allotment as before. The section as a whole shows that
it looked to the future no less than to the present, and was
intended to prescribe rules of descent applicable to all Creek
allotments. Nothing in the provisos indicates that they were to be
less comprehensive. Their purpose was to
Page 267 U. S. 356
give Creek citizens and their Creek descendants a preferred
right to inherit, and no reason is perceived for giving such a
preference where a citizen entitled to an allotment died before
receiving it that would not be equally applicable if he had died
after it was received."
In the present case, stress is laid by defendants in error upon
the use of the word "allotments" in the phrase "to prescribe rules
of descent applicable to all Creek allotments," and it is insisted
that the court meant thereby to limit the operation of the proviso
to lands in their descent from the allottee and not thereafter. The
word was not used in that restricted sense, but in the broader
sense, which includes all Creek lands which had gone through the
process of allotment.
The purpose and policy of the provisos rest upon tribal, rather
than family, sentiment, a sentiment which put the interests of the
tribe above those of the family and regarded the claims which
spring from tribal membership, rather than those arising from close
degrees of kinship. This view is expressed in the later case of
Campbell v. Wadsworth, 248 U. S. 169
248 U. S. 175
dealing with the Seminole Agreement of 1899 (31 Stat. 250). Under
the provision in that agreement that, if any member of the tribe
die after enrollment, the lands, etc., to which he would be
entitled, if living, "shall descend to his heirs who are Seminole
citizens," it was held that the lands of an Indian, enrolled as a
Seminole, did not descend to his wife and daughters, enrolled only
as Creeks. Answering the position of the state supreme court that
only "the most powerful and impelling reasons" could induce it to
hold that the Indians intended to exclude their own children from
sharing in their property after death, this Court said:
"While it is true that it seems unnatural for the Indians to
have preferred more distant relatives to their own children in
providing for the descent and distribution of their property, yet,
from the terms of the act before us and also
Page 267 U. S. 357
from the provisions of the Supplemental Creek Agreement that
'only citizens of the Creek Nation, male and female, and their
Creek descendants shall inherit lands of the Creek Nation' (32
Stat. 500), it is clear that, with the Indians, the interests of
the tribe were paramount to those of the family, and it was with a
knowledge of the mode of life of their primitive people, better and
more intimate than the courts can now command, that they determined
that this paramount purpose would best be served by giving to
children born of mixed marriages the tribal status of their
The lands of the Creek Nation were tribal lands, and the evident
purpose of the Indians was to continue at least a semblance of that
status so far as it could be done consistently with their
distribution in severalty. With the wisdom of that purpose we have
nothing to do. It is enough that Congress respected it and gave to
it the sanction of law.
On behalf of defendants in error, it is asserted: (1) that there
was an entire absence of proof that plaintiffs in error are
citizens of the Creek Nation, and we are asked to review the record
in that respect in order to determine whether there was any basis
for the claim of federal right, and (2) that an examination of the
record will show that the plea of the statute of limitations was
fully established, and therefore the decision of the state supreme
court reasonably may be affirmed on that nonfederal ground.
The point that the evidence fails to show that plaintiffs in
error were Creek citizens presents a pure question of fact. The
trial court found they were. The state supreme court expressly
affirmed the finding, and, recognizing the existence of the federal
question in the case, put its decision denying the federal right
upon an erroneous view of the law. The denial was not the result of
the finding of fact, nor is that finding so intermingled with the
conclusion of law in respect of the federal right as to cause
Page 267 U. S. 358
it to be necessary to consider the matter of fact in order to
pass upon the federal question. See Aetna Life Ins. Co. et al.
v. Dunken, 266 U. S. 389
Truax v. Corrigan, 257 U. S. 312
257 U. S.
-325, and cases cited; Nor. P. Ry. v. North
Dakota, 236 U. S. 585
236 U. S. 593
Creswill v. Knights of Pythias, 225 U.
, 225 U. S. 261
Kansas City So. Ry. v. Albers Comm'n Co., 223 U.
, 223 U. S. 591
The effect of the finding was to establish the existence of a
preliminary fact, related to the federal right only in the sense
that it brought the case within the reach of the federal law relied
on, and called for a determination of the federal question then
presented. In other words, the finding simply established a
condition, not as a basis upon which to rest a decision of the
question of federal right one way or the other, but upon which that
question became an issue for consideration and determination. In
such case, the ordinary rule applies that the decision of the state
court upon a question of fact cannot be made the subject of inquiry
here. Telluride Power Co. v. Rio Grande, etc., Ry.,
175 U. S. 639
175 U. S. 645
Illinois v. Economy Power Co., 234 U.
, 234 U. S.
-524; Dower v. Richards, 151 U.
, 151 U. S. 668
et seq.; Crary v. Devlin, 154 U.
; Egan v. Hart, 165 U.
, 165 U. S. 192
9 Wall. 785, 76 U. S. 786
Nor need we inquire into the defense of the statute of
limitations. The decision now under review entirely ignores it. The
rule that, when the decision of a state court may rest upon a
nonfederal ground adequate to support it, this Court will not take
jurisdiction to determine the federal question, has no application
where, as here, the nonfederal ground might have been considered by
the state court but was not. Rogers v. Hennepin County,
240 U. S. 184
240 U. S.
-189; Henderson Bridge Co. v. Henderson
City, 173 U. S. 592
173 U. S.
It is said that in an earlier opinion the state supreme court
ruled in favor of defendants in error upon the two points last
discussed. But that opinion, it appears, was
Page 267 U. S. 359
withdrawn and the present decision, rendered after a rehearing,
is the only one open to our consideration. The decree of the state
supreme court is reversed, and the cause remanded for further
proceedings not inconsistent with this opinion.
Writ of error dismissed.