1. Section 23 of the Act of April 26, 1906, disposing of the
affairs of the Five Civilized Tribes, which provides:
"Every person of lawful age and sound mind may by last will and
testament devise and bequeath all of his estate, real and personal,
and all interest therein,"
was intended (save the proviso limiting full-bloods) to enable
the Indian to dispose of his estate by will on the same footing as
any other citizen, notwithstanding restrictions previously imposed
against alienation of allotments (
e.g., by
Choctaw-Chickasaw Supplemental Agreement, July 1, 1902, §§ 12 and
16), leaving the regulatory local law of wills free to operate as
in the case of other persons and property. P.
267 U. S.
375.
Page 267 U. S. 374
2. Hence, the will of a married half-blood Choctaw woman
devising her homestead and surplus allotments is subject to the
provision of the Oklahoma law (Rev.L.1910, § 8341) forbidding any
woman while married to "bequeath more than two-thirds of her
property away from her husband."
Id.
96 Okla. 26
affirmed.
Error to a decree of the Supreme Court of Oklahoma which
affirmed a decree in favor of the plaintiff, Wallace, in his suit
to quiet title to an interest in certain Choctaw Indian
allotments.
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
This is a suit to quiet title to a one-third interest in
homestead and surplus lands originally allotted to Patsy Poff, a
half-blood Choctaw Indian woman, under the Act of July 1, 1902, c.
1362, 32 Stat. 641. She died August 7, 1916; David H. Poff, her
husband, surviving. By her will made in 1912, which was duly
probated, she devised the entire allotment to Juanita and Oleta
Blundell, her great granddaughters, bequeathing to her husband only
a nominal sum. Defendant in error asserts title through mesne
conveyances vesting in him the interest of David H. Poff. His suit
is based on the provisions of § 8341, Rev.Laws Okla.1910 (§ 11224,
Comp.Stat. Okla.1921), which reads:
"Every estate and interest in real or personal property to which
heirs, husband, widow, or next of kin might succeed may be disposed
of by will: Provided, that no marriage contract in writing has been
entered into between the parties; no man while married shall
bequeath
Page 267 U. S. 375
more than two-thirds of his property away from his wife, nor
shall any woman while married bequeath more than two-thirds of her
property away from her husband: Provided, further, that no person
who is prevented by law from alienating, conveying, or encumbering
real property while living shall be allowed to bequeath same by
will."
Plaintiff in error contends that this statute, as applied to
Patsy Poff's will, is in direct conflict with § 23 of the Act of
Congress of April 26, 1906, disposing of the affairs of the Five
Civilized Tribes, c. 1876, 34 Stat. 137, 145, and therefore
invalid. Section 23 is as follows:
"Every person of lawful age and sound mind may by last will and
testament devise and bequeath all of his estate, real and personal,
and all interest therein: Provided, that no will of a full-blood
Indian devising real estate shall be valid if such last will and
testament disinherits the parent, wife, spouse, or children of such
full-blood Indian unless acknowledged before and approved by a
judge of the United States Court for the Indian Territory or a
United States commissioner."
There was an amendment in 1908 in a detail not important here.
It was held below that the state statute applied, that there was no
conflict with the federal statute, that defendant in error was
entitled to recover, and the decree went accordingly.
96 Okla.
26.
A brief reference to the state of the law at the time of the
passage of § 23 will help to clear the way for a correct
determination of the question. By §§ 12 and 16 of the Supplemental
Agreement with the Choctaws and Chickasaws, ratified by the Act of
July 1, 1902,
supra, lands of the kind here involved were
declared to be inalienable during specified periods of time. It is
settled that this restriction against alienation extended to a
disposition by will,
Taylor v. Parker, 235 U. S.
42, and, but for § 23, it is plain that the devise in
question at least as to the homestead, would have been without
effect.
Page 267 U. S. 376
But, it must be borne in mind, the restriction was in respect of
the specified lands, and did not affect the testamentary power of
the Indians to dispose of their alienable property, which power, on
the contrary, has been fully recognized first by an extension of
the appropriate laws of Arkansas over the Indian Territory, and
then, upon the admission of the State of Oklahoma, by the
substitution therefor of Oklahoma law.
Taylor v. Parker, supra;
Jefferson v. Fink, 247 U. S. 288,
247 U. S. 294.
The general policy of Congress prior to the adoption of § 23
plainly had been to consider the local law of descents and wills
applicable to the persons and estates of Indians except insofar as
it was otherwise provided. Thus, by § 2 of the Act of April 28,
1904, c. 1824, 33 Stat. 573, the laws of Arkansas, theretofore put
in force in the Indian Territory, were expressly "continued and
extended in their operation so as to embrace all persons and
estates in said territory, whether Indian, freedmen, or otherwise,"
and jurisdiction was conferred upon the courts of the Territory in
the settlement of the estates of decedents, etc., whether Indian,
freedmen, or otherwise.
Section 23 must be read in the light of this policy, and, so
reading it, we agree with the ruling of the state supreme court
that Congress intended thereby to enable "the Indian to dispose of
his estate on the same footing as any other citizen, with the
limitation contained in the proviso thereto." The effect of § 23
was to remove a restriction theretofore existing upon the
testamentary power of the Indians, leaving the regulatory local law
free to operate as in the case of other persons and property. There
is nothing in
Blanset v. Cardin, 256 U.
S. 319, cited to the contrary, which militates against
this view. That case involved the will of a Quapaw woman devising
her restricted lands away from her husband. It was held that § 8341
of the Oklahoma laws did not apply, because it was in conflict with
an act of Congress. But the act there
Page 267 U. S. 377
considered was very different from the one now under review.
There, the authority to dispose of restricted property by will was
limited by the provisions of the Act of February 14, 1913, c. 55,
37 Stat. 678, that the will must be "in accordance with regulations
to be prescribed by the Secretary of the Interior," and that no
will "shall be valid or have any force or effect unless and until
it shall have been approved" by that officer. By this language, the
intent of Congress to exclude the local law and to establish the
regulations of the Secretary as alone controlling was made evident,
and it was so held. But here, the federal statute contains no
provision of like character; it is without qualification except in
the single particular set forth in the proviso, and clearly it does
not stand in the way of the operation of the local law.
Affirmed.