162 P. 775 (Okla. 1917), 7708, Kenny v. Miles

Docket Nº:7708.
Citation:162 P. 775, 65 Okla. 40, 1917 OK 10
Opinion Judge:BLEAKMORE, C. PER CURIAM.
Party Name:KENNY v. MILES ET AL.
Attorney:Edward R. Hastings, Paul Van Winkle, and John Embry, all of Oklahoma City, for plaintiff in error. H. P. White, of Pawhuska, for defendants in error.
Case Date:January 02, 1917
Court:Supreme Court of Oklahoma
 
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Page 775

162 P. 775 (Okla. 1917)

65 Okla. 40, 1917 OK 10

KENNY

v.

MILES ET AL.

No. 7708.

Supreme Court of Oklahoma

January 2, 1917

Rehearing Denied Jan. 30, 1917.

Syllabus by the Court.

Act Cong. June 28, 1906, c. 3572, 34 Stat. at L. 539, placed no restrictions upon the alienation by heirs of inherited lands allotted and deeded in the right of a member of the Osage Tribe of Indians after his death, save only the mineral interests therein reserved to the tribe, individual disposition of which is expressly inhibited.

The purpose of Act Cong. April 18, 1912, 37 Stat. at L. 86, c. 83, was not to impose restrictions upon alienation of Osage lands, but to authorize the conveyance of such of said lands to which restrictions had attached by reason of their allotment to living members of the tribe, who had subsequently died, leaving surviving them Indian heirs, members of the tribe, to whom certificates of competency were issued.

Commissioners' Opinion, Division No. 3. Error from District Court, Osage County; A. R. Museller, Special Judge.

Action by John Kenny, plaintiff, against Laban Miles and others, defendants. Judgment for defendants, and plaintiff brings error. Affirmed.

Edward R. Hastings, Paul Van Winkle, and John Embry, all of Oklahoma City, for plaintiff in error.

H. P. White, of Pawhuska, for defendants in error.

BLEAKMORE, C.

Plaintiff in error seeks the reversal of a judgment of the district court of Osage county rendered April 2, 1915, upon appeal from the county court of that county, ordering a distribution of the estate of a deceased member of the Osage Tribe of Indians, consisting of lands selected and patented in her name subsequent to her death, and certain proceeds arising from the rental thereof.

The decedent, Lah-tah-sah, a member of the Osage Tribe, entitled to a distributive share of the tribal property by virtue of an act of Congress approved June 28, 1906 (34 Stat. 539), died intestate in 1908, before receiving the same. After her death the lands involved were selected in her right, and deeds therefor, approved by the Secretary of the Interior, were executed in her name as grantee, and recorded. These lands descended to her heirs according to the laws of the state of Oklahoma.

On February 28, 1912, Laban Miles, defendant in error, began an action in the district court of Osage county to effect a partition of said lands, alleging that he was the surviving husband, and John Kenny, the plaintiff

Page 776

in error, the only child, of Lah-tah-sah, and that upon her death each succeeded to an undivided one-half of the lands thereafter allotted and patented in her name. To this petition John Kenny filed his answer and cross-petition, averring that he was the only heir of the decedent, the sole owner, in constructive possession of the premises, and entitled to the exclusive possession thereof, that the claim of Laban Miles constituted a cloud upon his title, etc., and prayed for relief accordingly. The sole controverted issue of fact in this action was the marriage of Laban Miles to Lah-tah-sah. The court, after hearing evidence, made elaborate findings of fact, determined such issue in favor of Miles, ordered partition of the lands, and appointed commissioners for such purpose. Later the administrator of the estate of Lah-tah-sah filed his final report in the county court of Osage county praying a distribution of the portion thereof in his possession, consisting of the lands allotted in her name and the income therefrom. John Kenny appeared in such proceeding and asserted that he was the sole heir of Lah-tah-sah, and entitled to the entire estate. Laban Miles responded, setting forth that such claim had been tried and finally determined by the district court of Osage county in the partition action, and pleaded the judgment therein as conclusive of the rights of Kenny and himself to share equally in the distribution of said lands and proceeds. To this plea of res judicata Kenny demurred. The demurrer was overruled, and upon hearing the property was ordered distributed equally between him and Miles. Appeal was had to the district court, with like result.

Both Kenny and Miles are members of the Osage Tribe, and neither has received a certificate of competency.

The provisions of the act of June 28, 1906, supra, are fully set forth in the opinion of the Supreme Court of the United States in Levindale Lead & Zinc Mining Co. v. Coleman (July 15, 1916) 241 U.S. 432, 36 S.Ct. 644, 60 L.Ed. 1080, as follows:

"That act provided that the roll of the Osage Tribe as it existed on January 1, 1906, with the additions specified, should be the roll of the tribe and constitute its 'legal membership.' Children born between January 1, 1906, and July 1, 1907, to persons whose names were on the roll on the first-mentioned date, 'including the children of members of the tribe who have, or have had, white husbands,' were to be recognized as members for the purposes of the division. Section 1. All lands were to be divided 'among the members of said tribe, giving to each his or her fair share thereof in acres' as specifically set forth; that is, 'each member' as shown by the roll was to be allowed to make three selections of 160 acres each in the manner described. Section 2. Restrictions were imposed as follows: 'Each member of said tribe shall be permitted to designate which of his three selections shall be a homestead, and his certificate of allotment and deed shall designate the same as a homestead, and the same shall be inalienable and nontaxable until otherwise provided by act of Congress. The other two selections of each member, together with his share of the remaining lands allotted to the member, shall be known as surplus land, and shall be inalienable for twenty-five years, except as hereinafter provided.' Section 2, fourth.

After 'each member' had made the three selections, the remaining lands of the tribe, except as stated, were to be divided 'as equally as practicable among said members by a commission to be appointed.' Section 2, fifth. The Secretary of the Interior in his discretion, at the request of any 'adult member of the tribe,' was to issue 'to such member a certificate of competency, authorizing him to sell and convey any of the lands deeded him by reason of this act, except his homestead, which shall remain inalienable and nontaxable for a period of twenty-five years, or during the life of the homestead allottee,' if, upon investigation, 'he shall find any such member fully competent' to care for his affairs. It was provided that upon the issuance of such a certificate of competency the lands of such 'member,' except homestead lands, should 'become subject to taxation,' and that...

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