Cowokochee v. Chapman
| Decision Date | 21 November 1922 |
| Docket Number | 12840. |
| Citation | 215 P. 759,90 Okla. 121,1922 OK 314 |
| Parties | COWOKOCHEE v. CHAPMAN ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 13, 1923.
Further Rehearing Denied June 26, 1923.
Syllabus by the Court.
Where an enrolled citizen of the Creek Tribe of Indians died in November, 1905, having received his allotment of land prior to death, leaving surviving him his father, who was enrolled as a full-blood Seminole Indian and was not a descendant of a Creek citizen, and a brother of the full blood, enrolled as a Creek citizen, the devolution of such deceased allottee's land is governed by the applicable provisions of chapter 49 Mansfield's Digest of the Laws of Arkansas, as qualified by the provisos of section 6 of the Creek Supplemental Agreement, ratified July 26, 1902 (32 Stat. 500), and the father of such deceased allottee is excluded from inheriting any part of the land of such deceased allottee, and the same was inherited by the brother as the Creek heir of the deceased.
Restricted Indian lands are not subject to the payment of the debts of the deceased allottee, and for that reason are not assets of such deceased allottee's estate subject to administration, and a decree of the county court of Seminole county entered in October, 1912, distributing such lands is not conclusive as to the heirs entitled to inherit such lands. A probate court, in distributing the estate of a deceased person, has no jurisdiction to distribute any estate other than the assets of the estate subject to administration, and a decree distributing estate over which the court has no jurisdiction, is a nullity.
Record examined and held, that the judgment of the trial court should be affirmed.
Appeal from District Court, Creek County; Lucien B. Wright, Judge.
Action by Chotkey Wildcat and others against James A. Chapman and R M. McFarlin, in which Cowokochee filed answer and cross-petition. From a judgment for defendants, the cross-petitioner appeals. Affirmed.
Lewis C. Lawson, of Holdenville, for plaintiff in error.
Harry H. Rogers and John Rogers, both of Tulsa, and Gibson & Hull of Muskogee, for defendants in error.
Chotkey Wildcat et al., plaintiffs, commenced this action on June 4, 1914, in the district court of Creek county against Cowokochee, James A. Chapman and R. M. McFarlin for possession of 160 acres of land located in Creek county, Okl. The lands were allotted by Albert Wildcat as his proportionate share of the Creek lands of the Creek Nation. Albert Wildcat appeared upon the final approved rolls of the Creek Nation opposite roll No. 9195, enrolled as one-half blood member of the Creek Tribe of Indians.
Cowokochee appeared and filed answer and cross-petition in the action alleging that he was the owner of an undivided one-half interest in the lands in controversy allotted by Albert Wildcat and prayed the judgment of the court for an order appointing a receiver over said lands pending the litigation. Upon the presentation of the application for the appointment of a receiver, the trial judge denied the same. Thereafter, upon an alleged settlement of the interest of Cowokochee, an order of dismissal was entered dismissing the cross-petition of Cowokochee. Motion thereafter was filed by Cowokochee to reinstate his cross-petition. The cause was tried and resulted in a judgment in favor of the defendants Chapman and McFarlin against the plaintiffs.
The plaintiffs Chotkey et al. prosecuted an appeal, and Cowokochee prosecuted appeals from the order denying his application for receiver and overruling his motion to reinstate his cross-petition. These appeals were disposed of in an opinion by this court delivered by Mr. Justice Turner, reported in 171 P. 50. The judgment of the trial court in this opinion was affirmed, settling the controversy between the plaintiffs and the defendants Chapman and McFarlin. The cause was remanded to the district court for the trial of the issues raised by the cross-petition of Cowokochee, wherein he sought to cancel the deed executed on January 20, 1913, purporting to convey his interest in the land to Chapman, and other issues relating to the nunc pro tunc order of the county court of Seminole county wherein said county court had distributed the estate of Albert Wildcat, deceased.
The cause, thereafter, on April 21, 1921, was tried on the issues between Cowokochee, Chapman, and McFarlin, in the district court of Creek county to the court, and after the trial taken under advisement until the 10th day of October, 1921, at which time the court entered judgment decreeing that Cowokochee had not sustained the allegations of his cross-petition against the defendants Chapman and McFarlin, and was not entitled to the relief prayed for in his cross-petition. Motion by Cowokochee was filed for a new trial. The motion for new trial was overruled by the trial court, and this appeal is prosecuted by Cowokochee, as plaintiff in error, against James A. Chapman and R. M. McFarlin, defendants in error, to reverse the judgment of the trial court.
Upon an examination of the record in this cause, we are of the opinion that there are two legal questions decisive of this appeal: First, did Cowokochee inherit as an heir at law any part of the allotment of Albert Wildcat, deceased? Second, did the county court of Seminole county, Okl., having jurisdiction of the settlement of the estate of Albert Wildcat, deceased, by its decree of distribution distributing the lands in controversy, one-half to John Wildcat and one-half to Cowokochee, October 7, 1912, conclusively establish the heirship to said lands?
The following material facts, as disclosed by the record, must be considered in determining the two legal questions presented: Albert Wildcat, a Creek citizen of the half blood, selected the land in controversy as his allotment, and a patent therefor was issued on the 11th day of March, 1903, and was approved by the Secretary of the Interior April 3, 1908. The allottee, Albert Wildcat, died intestate in the month of November, 1905, while a citizen of what is now Seminole county, Okl. He left surviving him John Wildcat, a full brother, a citizen of the Creek Nation of the half blood, enrolled opposite roll No. 9194; Watty Wildcat, a half brother, a citizen of the Seminole Nation of the full blood, enrolled opposite roll No. 600; Cowokochee, his father, enrolled as a citizen of the Seminole Nation of the full blood opposite roll No. 598.
The mother of Albert Wildcat had died prior to his death. The mother of Albert was a Creek citizen. It is clear from the record that John Wildcat and his brother Albert received their Creek citizenship through the blood of their mother. Mepetha, the mother of John and Albert Wildcat, was a member of the Artusse tribal town of the Creek Nation, and it was by reason of the Creek citizenship of the mother of Albert and John that they were enrolled as Creek citizens. It appears that Cowokochee, the father of Albert and John Wildcat, was enrolled as a full-blood Seminole citizen, and that his father, Cho-fix-i-co-chee, and his mother, Sigey, were not members of any Creek Tribe, but were members of the Gaha Harjo band of the Seminole Tribe of Indians.
Albert Wildcat having died in 1905, prior to the admission of Oklahoma into the Union as a state, the devolution of his estate is governed by the applicable provisions of chapter 49 of Mansfield's Digest of the Statutes of Arkansas, as qualified by the Creek Supplemental Treaty, approved June 30, 1902 (32 Stat. 500). Section 6 of said act provides:
Section 2531, c. 49, of Mansfield's Digest of the Laws of Arkansas, reads:
"In cases where the intestate shall die without descendants, if the estate come by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs; but if the estate be a new acquisition it shall ascend to the father for his life time, and then descend, in remainder, to the collateral kindred of the intestate in the manner provided in this act; and, in default of a father, then to the mother, for her life time; then to descend to the collateral heirs as before provided."
It is well settled in this class of cases that such land in question is an ancestral estate. Shulthis v....
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