Daniel Dougal v. Edmond Kay

• Decision Date: 26 April 1915
• Docket Number: No. 676,676
• Citation: 237 U.S. 372,35 S.Ct. 605,59 L.Ed. 1001
• Parties: DANIEL A. McDOUGAL, Plff. in Err., v. EDMOND McKAY, Perry McKay, John V. McKay, and Albert W. Shulthis
• Court: U.S. Supreme Court

237 U.S. 372

35 S.Ct. 605

59 L.Ed. 1001

DANIEL A. McDOUGAL, Plff. in Err.,

v EDMOND McKAY, Perry McKay, John V. McKay, and Albert W. Shulthis.

No. 676.

Argued March 12 and 15, 1915.

Decided April 26, 1915.

Messrs. Malcolm E. Rosser and William S. Cochran for plaintiff in error.

[Argument of Counsel from pages 373-374 intentionally omitted] Messrs. George S. Ramsey and Edgar A. de Meules for defendants in error.

[Argument of Counsel from pages 375-377 intentionally omitted] Messrs. E. G. McAdams, Norman R. Haskell, and John B. Meserve as amici curice.

[Argument of Counsel from pages 377-379 intentionally omitted] Mr. Justice McReynolds delivered the opinion of the court:

The solution of this controversy requires ascertainment of the heirs of an infant who was enrolled after death, within the intendment of the Supplemental Creek Agreement—act of June 30, 1902 (32 Stat. at L. 500, chap. 1323).

Andrew J. Berryhill, born in May, 1901, died during the following November, leaving his father, George Franklin Berryhill, an enrolled Creek Indian, his mother, a noncitizen of that Nation, and seven paternal uncles and aunts. His name was duly placed on the tribal rolls in October, 1902, and during the years 1904 and 1905 the land presently in controversy (with others) was allotted and patented to his heirs. The father, claiming to be Andrew's sole heir,—the mother joining,—conveyed it June 5, 1906, to defendants in error, Edmond and Perry McKay. Afterwards the paternal uncles and aunts undertook to convey the fee subject to a life estate in the father to McDougal, plaintiff in error. The McKays and parties claiming under them being in possession of the property and extracting oil and gas therefrom, McDougal instituted this proceeding to restrain them and to have his remainder interest declared and confirmed.

The supreme court of Oklahoma (43 Okla. 251, 142 Pac. 987) held the land must be treated as an ancestral estate in Andrew J. Berryhill, and declared the father sole heir. Plaintiff in error maintains that it passed as a new acquisition, and the father took a life estate with remainder over to the uncles and aunts. Counsel, appearing as amici curice, insist Andrew J. Berryhill had no estate therein, and that the word heirs designates persons who themselves took as purchasers.

Under treaty stipulations with the United States the Creek Tribe of Indians as a community for a long time owned and occupied large areas now within the borders of Oklahoma and maintained there an organized government. Congress finally assumed complete control over them and undertook to terminate their government and distribute the tribal lands among the individuals. Washington v. Miller, 235 U. S. 422, 59 L. ed. , 35 Sup. Ct. Rep. 119.

The act of March 1, 1901,—Original Creek Agreement (31 Stat. at L. 861, 870, chap. 676),—effective June 25, 1901 (32 Stat. at L. 1971), provided for the enrolment of members living on April 1, 1899, and their children born up to July 1, 1900, and also for allotment of tribal lands. It prescribed further (§ 28) that 'if any such child die after said date, the lands and moneys to which it would be entitled, if living, shall descend to its heirs according to the laws of descent and distribution of the Creek Nation, and be allotted and distributed to them accordingly.'

The Supplemental Creek Agreement—act of June 30, 1902 (32 Stat. at L. 500, 501, chap. 1323), effective August 8, 1902 (32 Stat. at L. 2021)—repealed that portion of the Original one establishing descent and distribution under the Creek law, and directed that thereafter these 'shall be in accordance with chapter 49 of Mansfield's Digest of the Statutes of Arkansas now in force in Indian Territory: Provided, That only citizens of the Creek Nation, male and female, and their Creek descendants shall inherit lands of the Creek Nation: And provided further, That if there be no person of Creek citizenship to take the descent and distribution of said estate, then the inheritance shall go to noncitizen heirs in the order named in said chapter 49.' It also extended the right of enrolment to children born after July 1, 1900, and up to May 25, 1901, and declared, 'if any such child has died since May 25, 1901, or may hereafter die before receiving his allotment of lands and distributive share of the funds of the tribe, the lands and moneys to which he would be entitled if living shall descend to his heirs as herein provided, and be allotted and distributed to them accordingly.'

The pertinent sections of Mansfield's Digest are copied in the margin.¹ They sharply distinguish between an es- tate which came to a decedent by a parent and a new acquisition, and prescribe different rules of inheritance.

In Shulthis v. McDougal, 95 C. C. A. 615, 170 Fed. 529, decided June 3, 1909, by the circuit court of appeals for the eighth circuit, title to another portion of the Andrew J. Berryhill allotment was involved and it became necessary to ascertain his heirs. Having carefully considered the whole subject, that court summed up its conclusions thus (pp. 620, 621):

'So long as the tribal relations continued, a member had no right to have a share of the tribal property set off to him as his private, separate estate, for the constitutional policy of the tribe was ownership in common. But when, as here, the time came to disband the tribe, its ownership as a political society could no longer continue, and the division of its property was far more nearly akin to the partition of property among tenants in common than the grant of an estate by a sovereign owner. Under such a scheme it cannot be said that the property which passed to an allottee is a new right or acquisition created by the allotment. The right to the property antedates the allotment, and is simply given effect to by that act. Viewing the tribal property and its division in this light, Andrew J. Berryhill acquired his right to the land in question by his membership in the tribe. It was his birthright. It came to him by the blood of his tribal parent, and not by purchase. In applying the Arkansas statute, we shall accomplish the purpose of Congress and the Creek Nation best by treating the lands not as a new acquisition by him, but as an inheritance from his parents as members of the tribe. His father was the only parent through whom he derived his right, and to the father the land should pass. If the mother had been a member of the tribe, then the land should properly pass to the parents equally. From this premise it necessarily follows that George Franklin Berryhill succeeded to the entire estate of the property in question.' An appeal to this court was dismissed June 7, 1912, for lack of jurisdiction (225 U. S. 561, 56 L. ed. 1205, 32 Sup. Ct. Rep. 704).

The supreme court of Oklahoma in Pigeon v. Buck, 38 Okla. 101, 131 Pac. 1083 (April 23, 1913), determined the heirs of a fullblooded Creek citizen who, having been duly enrolled, received a patent to her allotment and then died intestate, without descendants, leaving father, mother, brothers, sister, and her husband. After reference to the above-quoted portions of Mansfield's Digest it said (pp. 103, 104): 'That the land in question was...