1. The surviving husband of a woman of the Creek blood and
tribe, whether himself of that blood or not, has no estate of
curtesy in land allotted and patented to her in the distribution of
the tribal property under the original and supplemental Creek
Agreements, Acts of March 1, 1901, and June 30, 1902, and of which
she died seized, intestate and leaving issue. Pp.
276 U. S. 59,
276 U. S.
68.
2. By the Act of June 28, 1898, and prior enactments, tribal
laws in the Indian Territory were displaced and a body of laws
adopted from the statutes of Arkansas was then put in force, for
Indians and whites, except as they might be inapplicable in
particular situations or might be superseded as to any of the Five
Civilized Tribes by future agreements. P.
276 U. S.
62.
3. Statutes of Arkansas adopted by Act of Congress for the
Indian Territory carried with them the settled constructions placed
upon them by the Arkansas courts before such adoption. P.
276 U. S.
62.
4. Under Chapter 20 of Mansfield's Digest of Arkansas Statutes,
as modified by c. 104, both of which were extended to Indian
Territory, curtesy initiate was not recognized and curtesy
consummate was recognized only where the wife died seized of the
land and intestate. P.
276 U. S.
62.
5. The Creek Agreements,
supra, were in the nature of a
comprehensive treaty, rather than a mere supplement to the
fragmentary legislation that preceded them, were to have full
effect regardless of any inconsistency with that legislation, and
are to be construed
Page 276 U. S. 59
not according to the technical meaning of their words, but
according to the sense in which they would naturally be understood
by the Indians. P.
276 U.S.
63.
6. These agreements, given their true status as special laws for
the Creeks, withdrew the lands of the Creek from the adopted
Arkansas laws of curtesy. P.
276 U. S.
65.
7. The Act of April 28, 1904, relating to the jurisdiction of
the Special Courts of Indian Territory, and providing for the
continuance and extension of the Arkansas laws theretofore put in
force there, and conferring full and complete jurisdiction upon the
district courts of the Territory in the settlement of all estates
of decedents, etc., did not subject the lands of the Creeks to the
Arkansas laws of curtesy. P.
276 U. S.
67.
113 Okla. 259
reversed.
Certiorari, 271 U.S. 654, to a judgment of the Supreme Court of
Oklahoma sustaining a claim to an estate by the curtesy in lands
allotted and patented to a Creek woman.
See also the case
next following.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This case presents a controverted claim to an estate by the
curtesy in lands allowed and patented to a Creek woman in the
distribution of the tribal property. The district court of the
county where the lands lay rejected the claim; but, on appeal to
the supreme court of the state, the claim was upheld, three judges
dissenting.
Condren v. Marlin, 113 Okl. 259.
The lands were allotted and patented under two agreements
between the United States and the Creek Tribe which will be
described later on. The allottee was a married
Page 276 U. S. 60
woman of Creek blood and was enrolled as a member of the tribe.
Her husband was a white man without tribal enrollment or
membership. She died intestate November 29, 1904, while seized of
the lands, and was survived by her husband, by issue of her
marriage with him, and by issue of a former marriage, all of the
issue being Creeks and capable of inheriting the lands.
Two questions are pressed on our attention: did the laws then
applicable to the Creek lands provide for an estate by the curtesy?
If so, did they extend it to a husband who was not a Creek where
there were Creek descendants capable of taking the full title?
For many years, the Creeks maintained a government of their own,
with executive, legislative and judicial branches. They were
located in the Indian Territory, and occupied a large district
which belonged to the tribe as a community, not to the members
severally or as tenants in common. The situation was the same with
the Cherokees, Choctaws, Chickasaws, and Seminoles, who, with the
Creeks, were known as the Five Civilized Tribes. All were under the
guardianship of the United States and within territory over which
it had plenary jurisdiction, thus enabling it to exercise full
control over them and their districts whenever it perceived a need
therefor. [
Footnote 1] In the
beginning and for a long period during which the districts were
widely separated from white communities, the United States
refrained in the main from exerting its power of control, and left
much to the tribal governments. Accordingly, the tribes framed and
put in force various laws which they regarded as adapted to their
situations, including laws purporting to regulate descent and
distribution [
Footnote 2] and
to exclude persons who were not members from sharing in
Page 276 U. S. 61
tribal lands or funds. [
Footnote
3] In time, the tribes came, through advancing settlements, to
be surrounded by a large and increasing white population, many of
the whites entering their districts and living there, some as
tenant farmers, stock growers and merchants, and others as mere
adventurers. The United States then perceived a need for making a
larger use of its power. [
Footnote
4] What it did in that regard has a bearing on the questions
before stated.
By an act of March 1, 1889, 25 Stat. 783, c. 333, a special
court was established for the Indian Territory and given
jurisdiction of many offenses against the United States and of
certain civil cases where not wholly between persons of Indian
blood. By an act of May 2, 1890, §§ 29-31, 26 Stat. 93, c. 182,
that jurisdiction was enlarged, and several general statutes of the
state of Arkansas, published in Mansfield's Digest, were put in
force in the Territory so far as not locally inapplicable or in
conflict with the laws of Congress, but these provisions were
restricted by others to the effect that the courts of each tribe
should retain exclusive jurisdiction of all cases wholly between
members of the tribe, and that the adopted Arkansas statutes should
not apply to such cases. By an act of March 3, 1893, 27 Stat. 645,
c. 209, § 16, a Commission to the Five Civilized Tribes was created
and specially authorized to conduct negotiations with each of the
tribes looking to the allotment of a part of its lands among its
members, to some appropriate disposal of the remaining lands, and
to further adjustments preparatory to the dissolution of the tribe.
By an act of June 7, 1897, 30 Stat. 83, 84, c. 3, the special court
was given exclusive jurisdiction of all future cases, civil and
criminal, and the laws of the United
Page 276 U. S. 62
states and the State of Arkansas in force in the Territory were
made applicable to "all persons therein, irrespective of race," but
with the qualification that any agreement negotiated by the
Commission with any of the Five Civilized Tribes, when ratified,
should supersede as to such tribe any conflicting provision in the
act. By an act of June 28, 1898, 30 Stat. 495, c. 517 §§ 26 and 28,
the enforcement of tribal laws in the special court was forbidden,
and the tribal courts were abolished.
Thus, the congressional enactments gradually came to the point
where they displaced the tribal laws and put in force in the
Territory a body of laws adopted from the statutes of Arkansas and
intended to reach Indians as well as white persons, except as they
might be inapplicable in particular situations or might be
superseded as to any of the Five Civilized Tribes by future
agreements.
Of the adopted Arkansas laws, chapters 20, 49, and 104 are all
that need be noticed. Chapter 20 made the common law, as far as
applicable, the rule of decision where not changed by statute.
Chapter 49 provided for the descent and distribution of property of
intestates. Chapter 104 enabled married women to control, convey,
and devise their real property independently of their husbands.
When first enacted, chapter 20 was regarded as recognizing the
common law estate by the curtesy with both its initiate and
consummate gradations. But after the enactment of chapter 104,
which was a later statute, chapter 20 was construed by reason
thereof as no longer recognizing curtesy initiate, which at common
law vested during coverture, and as recognizing curtesy consummate
only where the wife died seized of the land and intestate.
Neelly v. Lancaster, 47 Ark. 175. Both chapters were
adopted for the Indian Territory after that construction had become
well settled; so, according to a familiar rule, the adoption
included that construction.
Joines v.
Patterson,
Page 276 U. S. 63
274 U. S. 544;
Adkins v. Arnold, 235 U. S. 417,
235 U. S. 421;
Gidney v. Chappel, 241 U. S. 99,
241 U. S.
102.
In 1900, the Commission succeeded in negotiating with
representatives of the Creek tribe an agreement such as was
intended by the Acts of March 3, 1893, and June 7, 1897. That
agreement -- known as the Original Creek Agreement -- was ratified
by Congress March 1, 1901, 31 Stat. 861, c. 676, and became
effective May 25, 1901, on its ratification by the tribal council.
32 Stat. 1971. A modifying agreement -- known as the Supplemental
Creek Agreement -- was then negotiated. It was ratified by Congress
June 30, 1902, 32 Stat. 500, c. 1323, and became effective August
8, 1902, through its ratification by the tribal council and the
proclamation of that fact by the President. 32 Stat. 2021.
The Agreements, taken together, embodied an elaborate plan for
terminating the tribal relation and converting the tribal ownership
into individual ownership, and also many incidental provisions
controlling descent and distribution, fixing exemptions from
taxation, preventing improvident alienation, and protecting the
individual allottees and their heirs in the enjoyment of the
property. It is apparent from the terms and scope of the agreements
that they were in the nature of a comprehensive treaty, rather than
a mere supplement to the fragmentary legislation which preceded
them, and it is apparent from their repealing provisions -- § 41 of
one and § 20 of the other -- that they were to have full effect
regardless of any inconsistency with that legislation, as was
contemplated in the Act of June 7, 1897, which extended the adopted
Arkansas laws to Indians.
The Arkansas law of curtesy was among the laws so extended. But
that did not make it presently applicable to the Creek lands, they
being then in tribal ownership. Such applicability would come only
if and when individual
Page 276 U. S. 64
ownership was substituted for tribal ownership. The agreements
provided for such a change, and, had they stopped there, that law
would have become applicable. But instead of stopping there, they
proceeded to deal, among other things, with the taxation,
alienation, and devolution of the lands. Whether these further
provisions in effect excluded curtesy under that law is one of the
questions in this case. Of course, it is a question of
construction.
In taking up this question, it must be remembered that the
agreements were between the United States and a dependent Indian
tribe then under its guardianship, and therefore that they must be
construed
"not according to the technical meaning of their words to
learned lawyers, but according to the sense in which they would
naturally be understood by the Indians. [
Footnote 5]"
Neither agreement contained any mention of curtesy. But they did
provide to whom the land should go on the owner's death intestate.
The Original agreement, in §§ 7 and 28, declared that it should
"descend to his heirs" according to the laws of descent and
distribution of the tribe.
Washington v. Miller,
235 U. S. 422,
235 U. S. 425.
Curtesy was not recognized in those laws. They were crude, and soon
were found to be unsuited to the new situation. The Supplemental
agreement, in § 6, put them aside and substituted chapter 49 of
Mansfield's Digest, with two provisos declaring that members of the
tribe and their Creek descendants, where there were such among
those coming within the terms of that chapter, should "take the
descent" to the exclusion of others. [
Footnote 6]
Grayson v.
Harris,
Page 276 U. S. 65
267 U. S. 352;
chapter 20 of Manfield's Digest, on which the adopted Arkansas law
of curtesy was based, was not mentioned. Chapter 49, which was
particularly called into play, was the adopted Arkansas law of
descent and distribution. It said nothing about curtesy.
Plainly there was nothing in the agreements which could have
been understood by the Indians -- or even by others -- as providing
for curtesy, and this is true of the tribal laws temporarily
recognized by the Original Agreement and of chapter 49 of
Mansfield's Digest which was substituted for them by the
Supplemental Agreement.
Did the agreements, rightly construed, exclude curtesy under
chapter 20 of Mansfield's Digest on which the adopted Arkansas law
of curtesy rested? That law was not a special one for the Creeks,
nor was it more than prospectively applicable to their lands. The
agreements, on the other hand, were negotiated and put in force as
special laws for the Creeks. They dealt particularly with the
allotment in severalty, exemption from taxation, alienation, and
devolution of the Creek lands, and their provisions on these
subjects were such that the Indians naturally would regard them as
complete in themselves, and not affected by other laws not brought
into them by distinct reference. We have seen that the Arkansas law
of curtesy was not thus brought in. Both agreements provided that,
on the death of an individual owner, the lands should "descend" to
the "heirs" according to particular laws designated as controlling
standards -- the
Page 276 U. S. 66
tribal laws of descent being designated in the Original
Agreement and chapter 49 of Mansfield's Digest being substituted by
the Supplemental Agreement. In the absence of any restricting
provision -- and there was none -- the Indians naturally would
regard that provision as comprehending the full title, and intended
to effect its transmission to the persons who would be the heirs
under the laws specially designated, and in the relative
proportions there indicated. They further would understand that
those persons were to take the title to the exclusion of others,
and not that they were to take it subject to a life estate
concurrently passing to another under a law which was not
mentioned. We say "concurrently passing" because the restricted
form of curtesy recognized by the Arkansas law did not attach
during coverture, but only on the wife's death, and then only where
she died seized of the land and intestate.
Neelly v. Lancaster,
supra. It has been described by the Supreme Court of Oklahoma
as "in the nature of an estate by descent," and as passing to the
surviving husband as an heir.
Zimmerman v. Holmes, 59 Okl.
253, 256-257.
Some reliance is placed on the use of the words "descend" and
"heirs" in the provision we are considering, but there can be
little doubt that, in the connection in which they were used, the
Indians would accept them in an untechnical and comprehensive
sense. The decision last cited illustrates that their use in a
broad sense is not unusual.
Our construction of that provision had support in another
closely related to it. The allotment of the tribal lands was to be
made among the enrolled members, including children born to them up
to and including May 25, 1901, and each of these was to receive
with other lands a tract designated as a homestead. Section 16
of
Page 276 U. S. 67
the Supplemental Agreement, closely copying a part of § 7 of the
Original Agreement, provided:
"The homestead of each citizen shall remain, after the death of
the allottee, for the use and support of children born to him after
May 25, 1901, but, if he have no such issue, then he may dispose of
his homestead by will, free from the limitation herein imposed, and
if this be not done, the land embraced in his homestead shall
descend to his heirs, free from such limitation, according to the
laws of descent herein otherwise prescribed."
Of course, the homestead of a wife could not remain after her
death for the use and support of children, as this provision
directed it should in certain instances, and also pass on her death
to her husband for his life by way of curtesy. So it is at least
inferable from that direction that both the United States and the
Indians understood there was to be no curtesy.
These considerations make it apparent, we think, that the
agreements, given their true status as special laws for the Creeks
and rightly construed, excluded curtesy under the adopted Arkansas
law -- or, putting it in another way, withdrew the lands of the
Creeks from the operation of that law.
After the agreements were put in force, Congress included in an
act of April 28, 1904, 33 Stat. 573, c. 1824, relating to the
jurisdiction of the special courts for the Indian Territory, a
provision reading as follows:
"All the laws of Arkansas heretofore put in force in the Indian
Territory are hereby continued and extended in their operation, so
as to embrace all persons and estates in said Territory, whether
Indian, freedman, or otherwise, and full and complete jurisdiction
is hereby conferred upon the district courts in said Territory in
the settlements of all estates of decedents, the guardianships
of
Page 276 U. S. 68
minors and incompetents, whether Indians, freedmen, or
otherwise."
It is contended that this provision subjected the lands of the
Creeks to the Arkansas law of curtesy, and modified the agreements
accordingly. We are of a different opinion. The provision was
couched in general terms, did not refer to the agreements, did not
mention curtesy or the Creek lands, and contained no repealing
clause. No doubt it was intended to extend the operation of the
Arkansas laws in various ways, but it fell far short of manifesting
a purpose to make them effective as against special laws enacted by
Congress for particular Indians, such as the agreements with the
Creeks. We have so construed it in other cases not distinguishable
in principle.
Washington v. Miller, 235 U.
S. 422,
235 U. S. 427;
Taylor v. Parker, 235 U. S. 42,
235 U. S. 44.
And the supreme court of the state had taken a like view of it even
before our decisions were given.
In re Davis' Estate, 32
Okl. 209;
Taylor v. Parker, 33 Okl.199.
We accordingly hold that, at the time of the allottee's death --
November 29, 1904 -- the laws applicable to the lands of the Creeks
did not provide for an estate by the curtesy.
The supreme court of the state, in holding otherwise in this and
other cases cited in its opinion, passed in silence over the status
of the agreements as special laws and the exclusive nature of their
provisions, and rested its decision on the other legislation
adopting and extending the Arkansas laws. In this it departed from
applicable decisions of this Court, and in effect put aside some of
its own earlier rulings.
As we hold there was no law providing for an estate by the
curtesy, the fact that the surviving husband was not a Creek
becomes immaterial.
Judgment reversed.
[
Footnote 1]
Stephens v. Cherokee Nation, 174 U.
S. 445,
174 U. S. 483
et seq.; Cherokee Nation v. Hitchcock, 187 U.
S. 294,
187 U. S. 305,
et seq.
[
Footnote 2]
Bledsoe's Indian Land Laws (2d ed.) pp. 640-643.
[
Footnote 3]
Perryman's Creek Laws 1890, c. 7; McKellop's Creek Laws 1893, c.
22;
Cherokee Intermarriage Cases, 203 U. S.
76.
[
Footnote 4]
Heckman v. United States, 224 U.
S. 413,
224 U. S.
431-435;
Sizemore v. Brady, 235 U.
S. 441,
235 U. S.
446.
[
Footnote 5]
Jones v. Meehan, 175 U. S. 1,
175 U. S. 11;
Northern Pacific Ry. Co. v. United States, 227 U.
S. 355,
227 U. S.
366-367;
Choctaw Nation v. United States,
119 U. S. 1,
119 U. S. 28;
Choate v. Trapp, 224 U. S. 665,
224 U. S.
675.
[
Footnote 6]
The full section read as follows:
"The provisions of the act of Congress approved March 1, 1901
(31 Stat. 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
non-citizen heirs in the order named in said chapter 49."