Cook v. Childs
| Decision Date | 13 July 1915 |
| Docket Number | Case Number: 3354 |
| Citation | 49 Okla. 321,1915 OK 562,152 P. 88 |
| Parties | COOK et al. v. CHILDS et al. |
| Court | Oklahoma Supreme Court |
¶0 INDIANS--Allotment--Dower. The surviving widow of a deceased member of the Choctaw Tribe of Indians who died after his enrollment was finally approved, and before selecting his allotment, where an allotment was afterwards selected in his name by an administrator, and patent issued therefor under the provisions of section 22 of the act of Congress, July 1, 1902, commonly known as the "Choctaw, Chickasaw Supplemental Agreement," is entitled to dower in the lands selected by such administrator.
Error from District Court, Garvin County; R. McMillan, Judge.
Action by Ellen Cook and another against F. H. Childs, guardian of Newton Nelson Childs, and others. Judgment for defendants, and plaintiffs bring error. Reversed and remanded, with directions.
Patchell & Henderson, for plaintiffs in error.
Alvin F. Pyeatt and Claude S. Arnold, for defendants in error.
¶1 This proceeding is prosecuted to review a judgment of the district court of Garvin county denying dower to plaintiff in error Ellen Cook, and ordering a sale of the lands involved herein, and the proceeds to be distributed among the defendants in error.
¶2 The facts disclosed by the record are that one Sim Nelson, a duly enrolled member of the Choctaw Tribe of Indians, departed this life on May 5, 1903, intestate and without issue, leaving surviving him Ellen Nelson, now Ellen Cook, plaintiff in error, his widow, and Cordelia Jacobs and Sibbie Childs, his sisters. At the time of his death the said Sim Nelson had not selected his allotment of the lands of the Choctaw and Chickasaw Nations. After his death plaintiff in error was appointed administratrix, and on February 2, 1904, selected in his name the lands to which he would have been entitled, being the lands on which he was the owner of the improvements at the time of his death, and upon which prior to and at the time of his death he resided with plaintiff in error. Subsequent to his death his sister, Sibbie Childs, died, and left surviving her certain children, some of whom, and the grantees of the others, began this action in the United States Court in the Indian Territory to apportion the lands so allotted in the name of said Sim Nelson. All of the parties other than the plaintiff in error agreed that the lands might be sold at public sale and the proceeds thereof apportioned among themselves according to their respective several interests. Plaintiff in error contended that she was entitled to one-half of said land as dower. The trial court rendered judgment directing the sale of the allotment and apportioning the proceeds to the heirs, and adjudged that plaintiff in error was not dowable of any part of said lands. It is here urged on behalf of plaintiff in error that she was entitled to dower under the statutes of Arkansas governing such matters, while defendants in error insist that by the provisions of Act Cong. July 1, 1902, c. 1362, 32 Stat. 641, known as the "Choctaw and Chickasaw Supplemental Agreement," they took title to the property to the exclusion of the widow, and this is the sole question presented here on this appeal.
¶3 By section 11 of said Supplemental Agreement it is provided:
"There shall be allotted to each member of the Choctaw and Chickasaw Tribes, as soon as practicable after the approval by the Secretary of the Interior of his enrollment as herein provided, land equal in value to three hundred and twenty acres of the average allotable land of the Choctaw and Chickasaw Nations. * * *"
¶4 Section 35 is as follows:
"No person whose name does not appear upon the rolls prepared as herein provided, shall be entitled to in any manner participate in the distribution of the common property of the Choctaw and Chickasaw Tribes, and those whose names appear thereon shall participate in the manner set forth in this agreement; provided, that no allotment of land or other tribal property shall be made to any person, or to the heirs of any person, whose name is on said rolls, and who died prior to the date of the final ratification of this agreement. * * * "
¶5 Section 22 is as follows:
"If any person whose name appears upon the rolls, prepared as herein provided, shall have died subsequent to the ratification of this agreement and before receiving his allotment of land, the lands to which such person would have been entitled if living shall be allotted in his name, and shall, together with his proportionate share of other tribal property, descend to his heirs according to the laws of descent and distribution as provided in chapter forty-nine of Mansfield's Digest of the Statutes of Arkansas; provided, that the allotment thus to be made shall be selected by a duly appointed administrator or executor."
¶6 By chapter 49, Mans. Dig., it is provided:
¶7 By chapter 53, Mans. Dig., it is provided:
¶8 Defendants in error say that under the uniform holdings of the Supreme Court of the State of Arkansas, before the widow would be endowed of any part of the lands of her husband, he must at some time during marriage have been seised thereof, and they admit that seisin may exist in an equitable as well as a legal estate. This appears to have been the construction placed upon the statute by that court (Blakeney v. Ferguson, 20 Ark. 547; Drenner v. Walker, 21 Ark. 539; Tate v. Jay, 31 Ark. 576; Kirby v. Vantrece, 26 Ark. 368; Cockrill v. Armstrong, 31 Ark. 580); and, taking this as a premise, they argue that Sim Nelson, having died before selecting his allotment or having received the same, died seised of no estate, legal or equitable, therein, and expressions to this effect are found in a line of decisions of which the following may serve as examples: Sanders v. Sanders, 28 Okla. 59, 117 P. 338; Scott v. Jacobs et al., 40 Okla. 522, 140 P. 148; Woodbury v. U. S., 95 C. C. A. 498, 170 F. 302; Wallace v. Adams, 143 F. 716, 74 C. C. A. 540; McKee v. Henry, 201 F. 74, 119 C. C. A. 412; Stephens v. Cherokee Nation, 174 U.S. 445, 19 S. Ct. 722, 43 L. Ed. 1041. And defendants in error therefore conclude that no right of dower exists in plaintiff in error. In the former opinion herein it was held by the court that, by reason of the fact that Sim Nelson died without selecting his allotment and without having been seised of any estate, legal or equitable, therein, it necessarily followed, applying strictly the provisions of chapter 49, Mans. Dig., to the conditions as they existed in the Indian Territory, that plaintiff in error was not entitled to dower in the lands of her deceased husband. Upon further consideration we are of opinion that this conclusion does not necessarily follow.
¶9 At this point a brief review of the conditions existing prior to the matters and things involved herein would, in our judgment, afford considerable aid in determining what was the intention of Congress and the tribes in entering into the Supplemental Agreement and what construction should be placed thereon by the court in order to carry that intention into effect.
¶10 The "Dawes Commission" had been created for the purpose of carrying out the general scheme of the federal government relating to the allotment of tribal lands, and the distribution of other tribal property, and the final winding up of their tribal affairs, and in order to do this it was necessary to definitely ascertain the number of Indians entitled to participate in the distribution of the tribal property before the division could be made, and the Commission, in the prosecution of this work, had begun the preparation of a roll that was to show the number of members there were in the tribe, and the work of finally preparing and completing this roll was an undertaking of such vast proportions that its successful completion would involve a labor of years, and in the course of nature, while the work was in progress, it was inevitable that many of the members would die and others be born into the tribe, and it was necessary that some fixed and definite time should be adopted by which the rights of the individual members should be determined, and the rolls prepared with reference to this date, so that said rolls, when so completed, would show a complete list of all the members who were entitled to participate in the allotment and distribution. Even with this date definitely fixed, many of the persons whose names appeared thereon would die before making their selection, and in order that the death of such person might not disturb the general scheme,...
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