Chancey v. Whinnery
| Decision Date | 02 March 1915 |
| Docket Number | Case Number: 5928 |
| Citation | 1915 OK 123,147 P. 1036,47 Okla. 272 |
| Parties | CHANCEY v. WHINNERY. |
| Court | Oklahoma Supreme Court |
¶0 1. INDIANS--Marriage--Indian Marriages--Validity--Right to Inherit. Marriages between citizens of the Creek Nation residing therein, contracted according to the usages and customs of the tribe of which they were members during the time that the tribal relations existed, where recognized by the general government, will be deemed valid in the courts of this state, and the issue of such marriages regarded legitimate and entitled to all inheritances of property or other rights the same as in the case of the issue of other forms of lawful marriage.
2. MARRIAGE--Indian Marriages-- Validity--Recognition by Federal Government. Prior to the dissolution of the tribal government of the Creek Nation, the United States government expressly recognized the right of the Creek Indians to regulate their own domestic affairs, and to control the intercourse between the sexes by their own customs and usages.
3. MARRIAGE--Second Marriage--Presumption of Validity--Divorce. A second marriage being shown as a fact, a strong presumption is raised in favor of its legality, which is not overcome by mere proof of a prior marriage, and that the husband had not obtained a divorce before the second marriage. The party attacking such second marriage has the burden of proof to show that neither party to the first marriage had obtained a divorce.
4. SAME. The law is so positive in requiring a party who asserts the illegality of a marriage to take the burden of proving it that such requirement is enforced, even though it involve the proving of a negative.
5. SAME.--Indian Marriages. The rule announced in the second preceding paragraph is not affected by the fact that the parties to the respective marriages are Indians, and that the marriages under review were entered into according to the customs and usages of the tribal authorities.
Error from District Court, Okmulgee County; Wade S. Stanfield, Judge.
Action by H. L. Chancey against William J. Whinnery. Judgment for defendant, and plaintiff brings error. Affirmed.
Eaton & Cowley, for plaintiff in error.
William M. Matthews, for defendant in error.
¶1 This case presents error from the district court of Okmulgee county, and involves the title to the allotment of Pompey West, a deceased full-blood Creek Indian, who died intestate on April 17, 1911. At the time of his death said Pompey West left surviving him no wife, no children, no issue of any children, no mother, no brother or sister. On April 24, 1911, Mary Barnett, maternal grandmother of said Pompey West, made and executed to the plaintiff, Chancey, a warranty deed to Pompey's allotment, which deed was duly approved by the county judge of Okmulgee county. On September 19, 1911, Billy West, the putative father of Pompey, executed a deed to said allotment to the defendant, which deed was also approved by the county court. On the part of plaintiff in error it is insisted that Billy West and Sissie Barnett (daughter of Mary Barnett), the mother of Pompey West, were never legally married under the laws or tribal customs of the Creeks, for the reason that, at the time Billy and Sissie assumed their relations by living together, Billy had a living, undivorced wife named Sardeeka, and that hence the relations existing between Billy and Sissie were adulterous, and not matrimonial, and that, even though Pompey was the son of Billy, he was an illegitimate from whom Billy could not inherit at his death. Plaintiff in his amended reply pleads and here relies upon sections 308, 309, 311, 312, 313, 314, 315, of the Creek statute on marriage and divorce, approved October 22, 1881. Constitution and Laws of the Muskogee Nation, Compiled and Codified by A. P. McKellop, under Act October 15, 1892, pp. 108, 109; Constitution and Laws of the Muskogee Nation, as compiled by L. C. Perryman, March 1, 1890, pp. 108, 109.
¶2 By the undisputed evidence it was established that Billy West and Sardeeka had, for a number of years prior to the passage of the above-named act, sustained toward each other the relation of husband and wife, according to the customs and usages of the Creek people. It was further proven that this relationship continued until during the year after the close of the Spieche or Green Peach Rebellion, which, according to the evidence, occurred during the years 1882 and 1883. Billy testified that during the latter year he and Sardeeka separated and abandoned their marriage relations on account of Sardeeka's transgressions; that some years thereafter he met Sissie while the two were employed by Jackson Barnett, and that they then agreed to live together; that he first consulted Jim Barnett (presumably Sissie's father), and obtained his consent to their marriage. Billy and Sissie continued to live and co-habit together until the latter's death, which occurred in about the year 1891. While there is some dispute as to the true relationship sustained by these parties toward each other, there is abundant evidence that they recognized and treated each other as husband and wife, and that they were generally reputed to be such among their relatives and acquaintances, and those with whom they came in contact. This we held in Fender, Adm'r. et al. v. Segro et al., 41 Okla. 318, 137 P. 103, to be sufficient to give rise to a presumption that the parties had previously entered into an actual marriage. Such was the conclusion reached by the trial court, who found that Pompey West left surviving him, as his sole and only heir at law, his father, Billy West; and "the court finds that Pompey West was the legitimate child of Billy West and Sissie Barnett, who were lawfully married according to Creek custom prior to 1890, and that they lived together as husband and wife up until the death of Sissie Barnett."
¶3 The position of counsel for plaintiff in error is, as we understand, that Billy and Sardeeka not having been divorced as provided by the statutes of the Creek Nation, the former was incompetent to enter into the marriage relation with Sissie. The validity of Indian marriages contracted between members of any Indian tribe, in accordance with the laws and customs of such tribe, where the tribal relations and government existed at the time of the marriage, is one generally, if not universally, recognized, and is the settled law of this jurisdiction. Cyr v. Walker, 29 Okla. 281, 116 P. 931, 35 L. R. A. (N. S.) 795; Oklahoma Land Co. et al. v. Thomas et al., 34 Okla. 681, 127 P. 8; Buck v. Branson, 34 Okla. 807, 127 P. 436, 50 L. R. A. (N. S.) 876.
¶4 Billy and Sardeeka having, therefore, been lawfully married according to the tribal customs, and having lived together as husband and wife, subsequent to the passage of the Creek statute regulating divorce, it is insisted that, there being no proof of a legal divorce, it can only follow that the relationship between Billy and Sissie was meretricious, and that Pompey was not, therefore, the legitimate son of Billy. But what proof is there that Billy and Sardeeka were never divorced? The statement by Billy that he had never applied for a divorce from Sardeeka in the district court of the Creek Nation is no evidence that Sardeeka had not obtained a legal divorce from Billy. Marriage will not be destroyed on presumption. The law is astute to preserve the sanctity of the marriage relation, the legitimacy of...
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