Criner v. Farve

• Court: Oklahoma Supreme Court
• Writing for the Court: RITTENHOUSE, C. PER CURIAM.
• Citation: Criner v. Farve, 1915 OK 32, 146 P. 10, 44 Okla. 618 (Okla. 1915)
• Decision Date: 19 January 1915
• Docket Number: 3875.
• Parties: CRINER v. FARVE ET AL.

146 P. 10

44 Okla. 618, 1915 OK 32

CRINER v. FARVE ET AL.

No. 3875.

Supreme Court of Oklahoma

January 19, 1915

Syllabus by the Court.

Where a full-blood Mississippi Choctaw Indian dies in 1907, after he has been duly identified and resided upon the lands of the Choctaw Nation for the required length of time, as provided by act of Congress approved July 1, 1902 (32 Stat. at L 651), but before proof of a continuous bona fide residence is made as required by section 42 of said act, and before patent is issued, such Mississippi Choctaw does not have a devisable interest in such lands, and the title to the lands acquired by the heirs after his death under section 5 of the act of April 26, 1906 (34 Stat. 138), is not affected by a will made prior to such proof.

Commissioners' Opinion, Division No. 1. Error from District Court, Carter County; S. H. Russell, Judge.

Action by Madalena Farve and others against John B. Criner. Judgment for plaintiffs, and defendant brings error. Affirmed.

Potterf & Walker, of Ardmore, for plaintiff in error.

T. L Wright and Thomas Norman, both of Ardmore, for defendants in error.

RITTENHOUSE C.

Joseph Baptiste and Felicie Baptiste were full-blood Mississippi Choctaw Indians, duly united in marriage, and there was born of said marriage the following children: Madalena Farve, née Baptiste, Louisa Gardner, née Baptiste, Joseph Baptiste, Jr. John Baptiste, and Sam Baptiste--who were enrolled by the Commissioner to the Five Civilized Tribes as full-blood Mississippi Choctaw Indians, and together with Felicie Baptiste and R. E. Gardner instituted this action in ejectment against John B. Criner to recover possession of the northwest quarter of the northwest quarter of section 21 township 5 south, and range 1 east; also lot No. 7, less 1.89 acres for Gulf, Colorado & Santa Fé Railway Company, of section 6; and lot No. 3, less 3.1 acres for the Gulf, Colorado & Santa Fé Railway Company, of section 7 in township 5 south, and range 2 east; also the north half of the southeast quarter of the southeast quarter, of section 1, township 5 south, and range 1 east, in the Chickasaw Nation Indian Territory.

On February 14, 1903, Joseph Baptiste and Felicie Baptiste were duly and legally identified as Mississippi Choctaws. Afterward, but before proof of residence was made as required by section 42 of the act of July 1, 1902, Joseph Baptiste attempted to alienate by will all of the above-described premises to John B. Criner, who was not in any manner related to him. On or about the 25th day of September, 1907, Joseph Baptiste died, leaving surviving him his wife and the children hereinbefore mentioned, without having made proof as provided by the act of 1902, supra. It appears from the pleadings that Joseph Baptiste moved to and took up his residence within the Choctaw Nation and continuously resided there, until in about March, 1907, when he went to the state of Louisiana, where he died. After his death, his heirs, on July 29, 1908, submitted proof under section 21 of the act of 1906 of his continuous residence in the Choctaw Nation for the time required by section 42 of the act of July 1, 1902. The lands in controversy had been selected as his prospective allotment, but no certificate of allotment or patent was ever issued to him in his lifetime, nor was any proof submitted relative to the required residence during his lifetime. The only proof ever made showing such continuous residence, as required by said section, was made by the heirs after his death.

The manner of acquiring title to the tribal lands in the Choctaw Nation by a Mississippi Choctaw differs somewhat from the manner of acquiring title to said land by a native Choctaw. Sections 41, 42, 43, and 44 of the act of Congress approved July 1, 1902, commonly called the "Supplementary Treaty," reads as follows:

"41. All persons duly identified by the Commission to the Five Civilized Tribes under the provisions of section 21, of the act of Congress approved June 28, 1898 (30 Stats. 495), as Mississippi Choctaws entitled to benefits under article 14 of the treaty between the United States and the Choctaw Nation concluded Sept. 27, 1830, may, at any time within six months after the date of their identification as Mississippi Choctaws by the said Commission, make bona fide settlement within the Choctaw-Chickasaw country, and upon proof of such settlement to such Commission within one year after the date of their said identification as Mississippi Choctaws shall be enrolled by such Commission as Mississippi Choctaws entitled to allotment as herein provided for citizens of the tribes, subject to the special provisions herein provided as to Mississippi Choctaws, and said enrollment shall be final when approved by the Secretary of the Interior. The application of no person for identification as a Mississippi Choctaw shall be received by said Commission after six months subsequent to the date of the final ratification of this agreement and in the disposition of such applications all full-blood Mississippi Choctaw Indians and the descendants of any Mississippi Choctaw Indians whether of full or mixed blood who received a patent to land under the said fourteenth article of the said treaty of 1830 who had not moved to and made bona fide settlement in the Choctaw-Chickasaw country prior to June 28, 1898, shall be deemed to be Mississippi Choctaws, entitled to benefits under article 14 of the said treaty of Sept. 27, 1830, and to identification as such by said Commission; but this direction or provision shall be deemed to be only a rule of evidence and shall not be invoked by or operate to the advantage of any applicant who is not a Mississippi Choctaw of the full blood, or who is not the descendant of a Mississippi Choctaw who received a patent to land under said treaty, or who is otherwise barred from the right of citizenship in the Choctaw Nation. All of said Mississippi Choctaws so enrolled by said Commission shall be upon a separate roll.

42. When any such Mississippi Choctaw shall have in good faith continuously resided upon the lands of the Choctaw and Chickasaw Nations for a period of three years, including his residence thereon before and after such enrollment, he shall, upon due proof of such continuous, bona fide residence, made in such manner and before such officer as may be designated by the Secretary of the Interior, receive a patent for his allotment, as provided in the Atoka agreement, and he shall hold the lands allotted to him as provided in this agreement for citizens of the Choctaw and Chickasaw Nations.

43. Applications for enrollment as Mississippi Choctaws, and applications to have land set apart to them as such, must be made personally before the Commission to the Five Civilized Tribes. Fathers may apply for their minor children; and, if the father be dead, the mother may apply; husbands may apply for wives. Applications for orphans, insane persons and persons of unsound mind may be made by duly appointed guardian or curator, and for aged and infirm persons and prisoners by agents duly authorized thereunto by power of attorney, in the discretion of said Commission.

44. If, within four years after such enrollment, any such Mississippi Choctaw, or his heirs or representatives if he be dead, fails to make proof of such continuous bona fide residence for the period so prescribed, or up to the time of the death of such Mississippi Choctaw, in case of his death after enrollment, he, and his heirs and representatives if he be dead, shall be deemed to have acquired no interest in the lands set apart to him, and the same shall be sold at public auction for cash, under rules and regulations prescribed by the Secretary of the Interior, and the proceeds paid into the treasurer of the United States to the credit of the Choctaw and Chickasaw Tribes, and distributed per capita with other funds of the tribes. Such lands shall not be sold for less than their appraised value. Upon payment of the full purchase price patent shall issue to the purchaser."

The Mississippi Choctaw, unlike the Native Choctaw, had no right to the land, or a patent thereto, until after he had satisfactorily proved his three years' residence, as provided by section 42, supra. The act of April 26, 1906 (34 Stat. 137), provides that, in the event of the death of an allottee before his patent became effective, it should issue in his name, but that the title to the land should inure to and vest in his heirs. The effect of this was to vest in the heirs the absolute title to said land, provided they could make the necessary proof that the deceased had continuously resided thereon as provided by the act of Congress, supra. Joseph Baptiste did not die until a year after the passage of the act of 1906, supra. After his death, the heirs made the necessary proof, and the patent was issued to Joseph Baptiste. The title under section 5 of the 1906 act, while allotted in his name, was for the benefit of the heirs; and under said section the same inured to and vested in the heirs of the said Joseph Baptiste. Section 5 of the Act of April 26, 1906, reads as follows: "That all patents or deeds to allottees in any of the Five Civilized Tribes to be hereafter issued, shall issue in the name of the allottee, and if any such allottees shall die before such patent or deed becomes effective, the title to the lands described therein shall inure to and vest in his heirs."

The sole and only question in this case then is: Did Joseph Baptiste have a devisable estate in these lands at the time of his death? If he did, then they passed to John B. Criner by virtue of said will. If he did not, then the defendants in error own them by virtue of being his heirs. This court held in the case of Semple v. Baken, 39...