Aldrich v. Hinds

• Decision Date: 24 February 1925
• Docket Number: Case Number: 15152
• Parties: ALDRICH v. HINDS et al.
• Court: Oklahoma Supreme Court

1925 OK 151

245 P. 854

116 Okla. 300

ALDRICH v. HINDS et al.

Case Number: 15152

Supreme Court of Oklahoma

Decided: February 24, 1925

Syllabus

¶0 1. Indians--Allotment After Death--Alienation by Full-Blood Heirs--Approval of Conveyance.

Where lands were selected in 1904 by the administrator of a deceased Chickasaw Indian, and the same were thereafter allotted for the benefit of the heirs, who were full bloods, their conveyance thereof by warranty deed in 1907 was invalid without the approval of the Secretary of the Interior.

2. Same--Restrictions--Power of Congress to Impose.

Although such lands prior to April 26, 1906, were alienable without restrictions and without approval, Congress had power to impose restrictions on the right of alienation of such lands, by virtue of the continuing guardianship of Indians by the federal government, and by reason of the plenary power of Congress to legislate for their protection.

3. Same--Tenancy in Common by Heirs -- Adverse Possession.

Heirs of a deceased Indian, whose allotment was selected by his administrator, took title thereto as tenants in common, and, where possession was taken by some of them through a fiscal agent, such possession was not adverse to any other heir not represented by such agent, nor would such possession set in motion the statute of limitation as against any heir not represented by such agent, since the possession of one tenant in common is the, possession of all.

4. Marriage -- Indian Tribal Marriages -- Validity -- Statutes.

Prior to the extension of the Arkansas law over the Indian Territory, the common law had no application to marriages between members of any of the Five Civilized Tribes, but all such marriages were regulated by tribal laws and customs, and all such marriages and the legitimacy of all children born of such marriages were recognized by Congress by Act May 2, 1890.

5. Same--Presumption and Proof.

Therefore, when the validity of any such marriage prior to 1890 is relied on to establish a right of inheritance, it is incumbent on the person relying thereon to plead and prove the laws and customs of the tribe relating to marriage and the existence of a marriage in fact. The strong presumption which the law indulges in favor of marriage must be supported by some proof of an actual marriage, either regular or irregular, lawful or customary, as distinguished from the common-law relation.

Commissioners' Opinion, Division No. 1.

Error from District Court, Grady County; Will Linn, Judge.

Action by Susan N. Aldrich against E. S. Hinds and another, to recover possession of certain real estate. Decree for defendants, and plaintiff appeals. Affirmed.

[Opinion as published in 110 Okla. 53, 235 P. 1100 , withdrawn for correction, refiled, and republished by order of the court, deleting an inadvertent error in original opinion which affected title to land.]

It appears from the record in this case that Ellis McGee, a duly enrolled citizen of the Chickasaw Tribe of Indians, died August 6, 1903, leaving surviving his widow, Susan McGee, and four children, Sol, Isom, Esau, and Mary. After the death of Ellis McGee, and on December 9, 1904, the administrator of his estate made his selection of the allotable land of the tribe and patents therefor, issued in the name of Ellis McGee for the benefit of his heirs. In January, 1905, Susan McGee, the widow, and her children above named went into the actual possession and occupancy of the lands, through the Southern Trust Company, as fiscal agent, claiming title thereto as sole heirs of Ellis McGee, and so remained in the possession and occupancy thereof until the same was conveyed in 1908, except that on May 16, 1907, Susan McGee and Sol McGee, who was an adult, executed a warranty deed to their several interests in said land to said Southern Trust Company; said deed not being approved.

This action was commenced by Susan N. Aldrich December 15, 1920, to recover possession of an undivided one-fourth interest in the lands allotted in the name of Ellis McGee, claiming to be a child of Ellis McGee by his first marriage. Esau McGee died intestate and without issue June 6, 1906, so that his interest in the allotment descended to his brothers and sisters, and in this way plaintiff claims to be entitled to an undivided one-fourth interest in the land.

Defendants answered by general denial, expressly denied that plaintiff is a daughter of Ellis McGee or entitled to any interest, in his estate as an heir, set up the title of the defendants derived through mesne conveyances from Susan McGee and her children, and pleaded specially that, plaintiff was barred from maintaining this action by the statutes of limitation of the state of Arkansas, in force in the Indian Territory at the time of the selection of this allotment. Plaintiff replied to this answer, and upon the issues thus joined the case was submitted to the court June 23, 1923, resulting in a general finding in favor of the defendants and against the plaintiff and a decree in conformity with such general finding. After unsuccessful motion for new trial, plaintiff has brought the case here by petition in error with case-made attached for review. The parties will be hereafter referred to as plaintiff and defendants, respectively, as they appeared in the trial court.

Cicero I. Murray, for plaintiff in error.

Bond, Melton & Melton, for defendants in error.

LOGSDON, C.

¶1 This is an equitable proceeding brought to establish plaintiff's right of inheritance to an undivided one-fourth interest in the lands allotted in the name of Ellis McGee after his death, for the benefit of his heirs, and for an accounting for the rents and profits.

¶2 Plaintiff presents her case in the brief under the single proposition that the only question to be decided in the case is whether or not the cause of action of the plaintiff in error was barred by the statute of limitations which was in force prior to statehood, being the 7-year limitation (of Arkansas).

¶3 On the other hand, in addition to taking issue, on this legal proposition, defendants insist that the general finding of the trial court that plaintiff is not entitled to recovery includes a finding against her on the issue of legitimacy, and that such finding is not clearly against the weight of the evidence.

¶4 The legal proposition presented involves the effect and operation of section 22 of Act Cong. April 26, 1906 (34 Stat. 145), upon the right of alienation by full-blood heirs of inherited lands selected and allotted after the death of the allottee, descent of which was cast prior to the passage and approval of that act.

¶5 It has long been settled that prior to Act April 26, 1906, and by virtue of the provisions of section 22 of the Supplemental Treaty (Act of July 1, 1902 [32 Stat. 641]), there was no restriction upon such right of alienation. Mullen v. United States, 224 U. St. 448, 32 S. Ct. 494, 56 L. Ed. 834; Hancock v. Mutual Trust Co., 24 Okla. 391, 103 P. 566; Hoteyabi v. Vaughn, 32 Okla. 807, 124 P. 63.

¶6 But by Act April 26, 1906, in section 22 thereof, it was provided that all conveyances of inherited lands by full-blood heirs should be subject to the approval of the Secretary of the Interior. That this restriction on alienation of inherited lands by full-blood Indians embraced all heirs of that class, whether descent was cast prior or subsequent to the passage and approval of that act, is no longer an open question. In Brader v. James, 49 Okla. 734, 154 P. 560 (affirmed, 246 U.S. 88, 38 S. Ct. 285, 62 L. Ed. 591), this court definitely determined that such was the effect and operation of that restriction. In the body of that opinion Justice, Sharp said:

¶7 "Nor is there anything in the language used, or in the history of the times, to indicate a purpose to confine the operation of the statute to sales and conveyances made by full-blood heirs to lands thereafter inherited, and to exclude lands inherited, but not conveyed, prior to its adoption. The one class needed protection as much as the other, and both are equally within the statute, fairly construed."

¶8 This court's conclusion as to the effect, and operation of the restriction provision is announced in this language:

"Our conclusion, then, is that the proviso or latter clause of section 22 of the Act of April 26, 1906, means just what it says, and requires that all deeds made by full-blood Indian heirs of inherited allotted lands, since the passage of the act, in order to be valid, must be approved by the Secretary of the Interior. This, too, regardless of the fact that Cerena Wallace, the full-blood allottee, died before the passage of the Act of April 26, 1906, for it is the law in force at the date of conveyance, and not that of the time of the death of the ancestor, that controls."

¶9 This construction has been followed and approved by this court in Sampson v. Stapleton, 55 Okla. 547, 155 P. 213; McCosar v. Chapman, 59 Okla. 78, 157 P. 1059; Bruner v. Nordmeyer et al., 64 Okla. 163, 166 P. 126; Cravens et al. v. Amos et al., 64 Okla. 71, 166 P. 140; Moffett et al. v. Conley et al., 63 Okla. 3, 163 P. 118.

¶10 That Congress had power to reimpose restrictions on alienable inheritances by virtue of the government's guardianship over the Indians, and by reason of its plenary authority to legislate for their protection, has also been determined. Heckman v. United States, 224 U.S. 413, 32 S. Ct. 424, 56 L. Ed. 820; Monson v. Simonson, 231 U.S. 341, 34 S. Ct. 71, 58 L. Ed. 260. Neither can a conveyance, made in violation of that restriction, form the basis of a plea of estoppel or set in motion the statute of limitations in favor of one claiming thereunder. Wrigley et al. v. McCoy et al., 73 Okla. 161, 175 P. 259; Patterson et. al v. Carter, 83 Okla. 70, 200 P. 855; Sandlin et al. v. Barker et al., 95 Okla. 113, 218 P. 519.

¶11 It follows that the purported conveyance from Susan McGee on May 16, 1907, to the Southern Trust Company, made without the...