McKee v. Henry

• Decision Date: 11 November 1912
• Docket Number: 3,718.
• Citation: 201 F. 74
• Parties: McKEE v. HENRY.
• Court: U.S. Court of Appeals — Eighth Circuit

201 F. 74

McKEE v. HENRY.

No. 3,718.

United States Court of Appeals, Eighth Circuit.

November 11, 1912

Preston C. West, of Muskogee, Okl. (Lex V. Deckard, of Okmulgee Okl., on the brief), for appellant.

George S. Ramsey, of Muskogee, Okl. (William M. Matthews and C. L Thomas, both of Muskogee, Okl., on the brief), for appellee.

Before SANBORN, HOOK, and SMITH, Circuit Judges.

SMITH Circuit Judge.

Clarence N. Warden was not a member of the Creek or Muskogee tribe of Indians, and has never been received or enrolled as such, but he lawfully married a woman of part Creek Indian blood. She was recognized as a member of the Creek tribe, and bore to Warden two sons, Coy Warden and Hugh Warden, and then died leaving as her sole issue said sons. Hugh Warden was born in January, 1899, and died November 28, 1899.

Under the fourteenth article of the treaty of March 24, 1832 (7 Stat. 366), the third article of the treaty of February 14 1833 (7 Stat. 417), by the letters patent issued to the Creek Nation of the 11th day of August, 1852, and the third article of the treaty of August 7, 1856 (11 Stat. 699), the lands of the Creek Nation situated in Indian Territory were held by them as a tribe in fee simple so long as they should exist as a nation and continue to occupy the lands. By Act March 1 1901, c. 676, 31 Stat. 861, confirming the agreement between the Dawes Commission, on behalf of the United States, and the Creek tribe of Indians, as by said act amended, provision was made for the allotment of said lands in severalty.

'All citizens who were living on the first day of April, eighteen hundred and ninety-nine, entitled to be enrolled under section twenty-one of the act of Congress approved June twenty-eighth, eighteen hundred and ninety-eight, entitled 'An act for the protection of the people of the Indian Territory, and for other purposes,' shall be placed upon the rolls to be made by said Commission under said act of Congress, and if any such citizen has dies since that time, or may hereafter die, before receiving his allotment of lands and distributive share of all the funds of the tribe, the lands and money to which he would be entitled, if living, shall descend to his heirs according to the laws of descent and distribution of the Creek Nation, and be allotted and distributed to them accordingly.'

Hugh Warden having lived from January, 1899, to November, 1899, his name was properly put upon the rolls. On June 30, 1902 (32 Stat. 500, c. 1323), Congress with certain modifications confirmed a supplemental agreement on the same subject with the Creek Indians which contained the following:

'6. The provisions of the act of Congress approved March 1, 1901 ((Act March 1, 1901, c. 676) 31 Stat.L. 861), in so far 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.'

Subsequently and on November 12, 1902, there was allotted to said Hugh Warden the 160 acres of land here in controversy. July 1, 1904, the Principal Chief of the Creeks executed a deed of this land, which was approved by the Secretary of the Interior, to the heirs of Hugh Warden. June 3, 1908, Clarence N. Warden conveyed the land to W. L. McKee, and this deed was recorded. Hugh Henry is the guardian of Coy Warden, and brought this suit, alleging he was in possession of the premises in question, and asking a decree canceling the deed from Clarence N. Warden to W. L. McKee and quieting his title. The case was submitted upon an agreed statement of facts, a decree was entered as prayed, and Mr. McKee appeals.

The sole question in this case is as to who took the title to the lands under the conveyance to the heirs of Hugh Warden-- his father, Clarence N. Warden, or his brother, Coy Warden. There is little or no dispute that under the laws of descent and distribution of the Creek Nation the father of Hugh Warden was his heir, and, on the other hand, under chapter 49 of Mansfields Digest of the Statutes of Arkansas and the provision 'that only citizens of the Creek Nation, male and female, and their Creek descendants shall inherit lands of the Creek Nation,' Coy Warden was the sole of Hugh Warden, and the question is: Was the act of June 30, 1902, made after the enrollment, but before any allotment had been made to Hugh Warden, applicable to this tract; and, if so, was it valid? This case has been argued with great care; but, in the view taken of it, it will be only necessary to consider a small number of the points presented. It must be remembered that this land was in only partially organized territory of the United States at the time in question, and the Constitution provides:

'The Congress shall have power to * * * make all needful rules and regulations respecting the territory * * * belonging to the United States. ' Section 3, article 4, of United States Constitution.

That is to say, Congress had full power to make laws of descent in Indian Territory...