Bartlett v. Okla Oil Co.

• Decision Date: 29 September 1914
• Docket Number: 2012.
• Citation: Bartlett v. Okla Oil Co., 218 F. 380 (E.D. Okla. 1914)
• Parties: BARTLETT v. OKLA OIL CO. et al.
• Court: U.S. District Court — Eastern District of Oklahoma

218 F. 380

BARTLETT v. OKLA OIL CO. et al.

No. 2012.

United States District Court, E.D. Oklahoma.

September 29, 1914

Ramsey & De Meules, of Muskogee, Okl., for plaintiff.

Sherman Veasey & O'Meara, of Tulsa, Okl., for defendants.

CAMPBELLDistrict Judge.

The question is on defendants' motion to dismiss the amended bill.From the bill it appears that Chunna Gouge was a duly enrolled full-blood member of the Creek Tribe, who had during her lifetime secured and allotment of the lands in controversy, and who died on November 17, 1907, intestate unmarried, leaving no issue surviving her, but leaving surviving her Jack Gouge, her father, and her mother, Lucinda Gouge, both duly enrolled full-blood members of the Creek Tribe; that her mother, Lucinda, died intestate and without issue surviving her on the 19th day of January, 1908, leaving surviving her the said Jack Gouge, and Big Jack and Bettie her father and mother, respectively, both duly enrolled full-blood members of the Creek Tribe; that both Chunna Gouge and Lucinda Gouge were at the time of their respective deaths residents of McIntosh county, Okl., and the county court of that county had jurisdiction of the settlement of their respective estates; that on May 13, 1912, the said Jack Gouge and Big Jack and Bettie conveyed the land in controversy to the plaintiff by warranty deed, which was on the same day duly approved by order of the county court of McIntosh county, Oklahoma; that the defendants claim title by virtue of the following transactions: That on August 11, 1909, the said Jack Gouge executed and delivered to one Nix and one Regan an instrument in form of a warranty deed, purporting to convey to them the lands in controversy; that on August 17 1909, the said Big Jack executed and delivered to the said Nix an instrument in form of a warranty deed, purporting to convey to him the lands in controversy; that on April 18, 1910, the said Jack Gouge executed to the said Nix an instrument in form of warranty deed, purporting to convey to him the land in controversy, which deed was on the same date approved by order of the county court of Hughes county, Okl., which order was made by the said court under a gross mistake of fact and on false representations that said Chunna Gouge died within the limits of said Hughes county; that by a series of subsequent conveyances from the said Nix and Regan and their grantees the defendants now claim the title to said land; that the deed of August 11, 1909, from Jack Gouge to Nix and Regan, and the deed of August 17, 1909, from Big Jack to Nix, and the deed of April 18, 1910, from Jack Gouge to Nix, and the several subsequent conveyances under which defendants claim, are void, and are clouds upon plaintiff's title.

Prayer that the several conveyances under which defendants claim be canceled and plaintiff's title quieted.

Who were the heirs of Chunna Gouge?This depends on whether the Creek law, the Arkansas law, or the Oklahoma law of descent and distribution applies.She died on November 17, 1907, just one day after the admission of Oklahoma as a state.It is conceded that, had she died prior to statehood, the descent and distribution of her allotted lands would have been according to chapter 49 of Mansfield's Digest of the Laws of Arkansas.

An examination of congressional legislation relating to the allotment in severalty of Indian lands other than those belonging to the Five Civilized Tribes, which were the subject of the legislation to be hereinafter examined, discloses a uniform policy on the part of Congress to provide that the descent and distribution of such lands upon the death of the allottee shall be subject to the general local laws of descent and distribution of the state or territory in which the allotment is situated.

In the General Allotment Act of February 8, 1887(24 Stat. 388, c. 119(Comp. St. 1913, Sec. 4201)), under which act and amendments thereof by far the greater portion of the Indian lands outside of Indian Territory have been allotted in severalty, it was provided (section 5):

'That the laws of descent and partition in force in the state or territory where such lands are situate shall apply thereto after patents therefor have been executed and delivered, except as herein otherwise provided.'

In the Osage Allotment Act(ActJune 28, 1906, c. 3572, Sec. 6, 34 Stat. 539), it was provided:

'That the lands, moneys, and mineral interests herein, provided for, of any deceased member of the Osage Tribe shall descend to his or her legal heirs, according to the laws of the territory of Oklahoma, or of the state in which said reservation may be hereafter incorporated, except where the decedent leaves no issue nor husband nor wife, in which case said lands, moneys, and mineral interests must go to the mother and father equally.'

Similar provisions are found in many other such acts.

By reference to the Choctaw-Chickasaw Agreement, approved July 1, 1902(ActJuly 1, 1902, c. 1362, 32 Stat. 641), it is seen (section 16) that Congress had in mind the fact that the lands would, upon the death of the allottee, pass to his heirs, and the surplus land is made inalienable in the hands of the heirs in case the allottee should die within the term of the restrictions.It is provided (section 22) that, where a member dies before receiving his allotment, the land shall pass direct to his heirs, according to the provisions of chapter 49 of the Laws of Arkansas, theretofore extended over the Indian Territory.No special provision, however, is made in this legislation relating to allotment of land in severalty to the Choctaws and Chickasaws for the descent and distribution of the lands so allotted to living allottees.In the case of these two tribes, Congress leaves the matter of descent and distribution of allotted lands to be controlled by general legislation.

Likewise, by reference to the Cherokee Agreement, approved July 1, 1902(ActJuly 1, 1902, c. 1375, 32 Stat. 716), it is seen that while it contemplates the passing of the lands allotted thereunder from the allottee to his heirs, and the restriction upon alienation following it into the hands of the heirs (section 14), and provides, in case of the death of an enrolled member before receiving his allotment, the lands to which he would have been entitled if living shall pass direct to his heirs according to the laws of Arkansas in force in the Indian Territory, no special provision is made in this act in relation to the descent and distribution of allotted lands of deceased Cherokee allottees.Here again Congress has left the matter of such descent and distribution to be controlled by general local laws.

Turning now to the Seminole Agreements: The only provision relating to laws of descent and distribution is found in the agreement approved June 2, 1900(ActJune 2, 1900, c. 610, 31 Stat. 250), reading as follows:

'Second.If any member of the Seminole Tribe of Indians shall die after the thirty-first day of December, eighteen hundred and ninety-nine, the lands, money, and other property to which he would be entitled if living, shall descend to his heirs who are Seminole citizens, according to the laws of descent and distribution of the state of Arkansas, and be allotted and distributed to them accordingly: Provided, that in all cases where such property would descend to the parents under said laws the same shall first go to the mother instead of the father, and then to the brothers and sisters, and their heirs, instead of the father.'

But the foregoing provision has no relation to cases where the allottee dies after having received his allotment, but is clearly confined in its operation to cases where the allottee dies before receiving his allotment, as in the other agreements referred to, and provision is made for the allotment of his share of the lands direct to his heirs according to the Arkansas law.Here again Congress refrains from legislating especially with regard to the descent and distribution of Seminole allotted lands, leaving that matter, as in the case of the other tribes mentioned, to be controlled by general law.The question then arises: What general law controlled as to the devolution of these Indian estates?

By act of Congress approved May 2, 1890(26 Stat. 81, c. 182) certain laws of the state of Arkansas, as published in Mansfield's Digest, so far as not locally inapplicable or in conflict with any other act of Congress, were extended over and put in force in Indian Territory until Congress should otherwise provide.Among these laws was chapter 49 of said Digest, providing in detail for the descent and distribution of real and personal property.But by the same act it was provided that the judicial tribunals of the several nations or tribes should retain exclusive jurisdiction of all civil and criminal cases in which members of such nations should be the only parties, and that nothing in the act should be so construed as to deprive any such courts of exclusive jurisdiction over all cases where members of the tribes were the sole parties, and that as to all such cases the laws of the state of Arkansas, extended over Indian Territory by the act, should not apply.This no doubt reserved from the effect of chapter 49 of the Arkansas law so extended the devolution of the property of deceased members of the Five Civilized Tribes, leaving that to be controlled by tribal laws.By the Indian Appropriation Act of June 7, 1897(30 Stat. 83, c. 3), it was provided: 'Provided, further, that on and after January first, eighteen hundred and ninety-eight, the United States courts in said territory shall have original and exclusive jurisdiction and authority to try and determine all civil causes in law and equity thereafter instituted and all...