Under § 22 of the Choctaw and Chickasaw Agreement of July 1,
1902, land allotted in the name of a married Choctaw woman who died
after the ratification of the Agreement and before receiving her
allotment, pass to those who are her heir according to c. 49 of
Manfield's Digest, free from any claim of curtesy. See Marl v.
p. 276 U. S. 58
276 U. S. 71
114 Okla. 50
Certiorari, 274 U. S. 499
a judgment of the Supreme Court of Oklahoma sustaining a claim to
an estate of curtesy in lands allotted and patented in the name and
right of a Choctaw woman after her decease.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
A claim to an estate by the curtesy in lands allotted and
patented in the name and right of a Choctaw woman then deceased is
here in controversy. It was sustained by the state court. 114 Okl.
50. The allotment was made and the patent issued under two
agreements between the United States and the Choctaw and Chickasaw
Tribes. Act June 28, 1898, c. 517, § 29, 30 Stat. 505; Act July 1,
1902, c. 1362, 32 Stat. 641.
The agreements set forth a comprehensive scheme for allotting
the lands of the two tribes in severalty among
Page 276 U. S. 70
their members, distributing the tribal funds and dissolving the
tribes. There were also many other related provisions. Nothing was
said about curtesy. The agreements were strictly special laws for
the Choctaws and Chickasaws.
By prior enactments couched in general terms, Congress had put
in force in the Indian Territory, and made applicable to the people
therein irrespective of race, several statutes of Arkansas.
One of these
Arkansas statutes -- chapter 20 of Mansfield's Digest -- had been
construed as recognizing a form of curtesy consummate attaching on
the death of the wife intestate where she was then seized of the
land. Another -- chapter 49 of the same publication -- related to
descent and distribution. The Choctaw and Chickasaw lands were in
the Indian Territory, and so were the lands of several other Indian
tribes. The claim in this case is rested on the adopted Arkansas
law of curtesy.
The second of the two agreements -- it largely superseded the
first -- required that the lands of the two tribes be allotted
among the enrolled members who were living at the date of its
ratification. Anticipating that some of these might die before the
allotments were made, the agreement provided in § 22:
"If any person whose name appears upon the rolls, prepared as
herein provided, shall have died subsequent to the ratification of
this agreement and before receiving his allotment of land the lands
to which such person would have been entitled if living shall be
allotted in his name, and shall, together with his proportionate
share of other tribal property, descend to his heirs according to
the laws of descent and distribution as provided in chapter
forty-nine of Mansfield's Digest of the Statutes of Arkansas. "
Page 276 U. S. 71
The lands in dispute were allotted under that section, and the
real controversy here is over its construction. It is part of a
special law put in force with the solicited assent of the Choctaws
and Chickasaws, and applicable only to them. We think it would be
understood by the Indians as meaning that lands allotted under it
in the name of a deceased member should pass to those who would be
his or her heirs according to chapter 49 of Mansfield's Digest.
With that chapter specially designated and chapter 20 -- the sole
basis of the Arkansas law of curtesy -- not mentioned, the Indians
certainly would not understand that curtesy was intended. It
follows that § 22 must be construed as intended to pass the full
title free from any claim to curtesy. Marlin v. Lewallen,
p. 276 U. S. 58
* These congressional enactments and the indicated Arkansas laws
are described in Marlin v. Lewallen, ante,
p. 276 U. S. 58