Davison v. Gibson, 204.

• Decision Date: 15 May 1893
• Docket Number: 204.
• Citation: 56 F. 443
• Parties: DAVISON v. GIBSON.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 443

DAVISON v. GIBSON.

No. 204.

United States Court of Appeals, Eighth Circuit.

May 15, 1893

Statement by CALDWELL, Circuit Judge:

Julia Gibson was born a slave in the Creek nation in the Indian Territory. Her master sold her to a slave owner in Missouri who took her to that state, where she was held as a slave until 1854, when her mother purchased her freedom, and brought her back to the Creek nation. During the time she was a slave in Missouri she and Edward Gibson, who was also a slave, sustained towards each other the relation of husband and wife, so far as persons in a state of slavery could sustain that relation. Having been freed as a result of the civil war, Gibson, the defendant in error, went to the Creek nation in 1865, and he and Julia resumed the relation of husband and wife, which relation continued until Julia's death, on the 29th of April, 1891. By virtue of her residence in the Creek nation at the date of the treaty of June 14 1866, (14 Stat. 785,) Julia acquired under article 2 of that treaty all the rights and privileges of a native citizen of the nation. Before Gibson went to the Creek nation, Julia owned and occupied 40 acres of land in that country, given to her by her mother and brother. She also owned some personal property. She left four children surviving her, two of them not the children of the defendant, Gibson. After her death Gibson, her husband, claimed the personal property on the farm, and took possession of the same. J. P. Davison, one of Julia's children, was appointed administrator of her estate, and brought this action of replevin against Gibson in the United States court for the Indian Territory for the personal property, alleging that it belonged to the wife at the time of her death, and that, as her administrator, he was entitled to the possession of the same. There was a trial in the court below, and at the close of the evidence the court instructed the jury to return a verdict for the defendant, to which instruction the plaintiff duly excepted. There was a verdict in accordance with the instruction of the court, and judgment thereon, and the plaintiff sued out this writ of error.

S. B. Dawes (D. M. Wisdom and S. S. Fears, on the brief,) for plaintiff in error.

S. O. Hinds, (W. C. Jackson, on the brief,) for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

CALDWELL Circuit Judge, (after stating the facts.)

Assuming that the relation of husband and wife existed between the interstate and the defendant, by what law are his rights as husband to be determined? The intestate was a citizen and resident of the Creek nation, and the property was there. In the brief of the learned counsel for the defendant it is said:

'The Creeks have no married women's act allowing a wife to own and hold separate property, and in actions in the federal courts in the Indian Territory the rule of decision, in the absence of a statute or proof of the laws, rules, and customs prevailing in the Indian Territory, is the common law.'

It is quite obvious this was the view adopted by the court below, and that it applied in the determination of the case the rules of the common law regulating the right of the husband to the wife's personal property.

The Creek nation has been long recognized by the United States as a 'domestic dependent nation,' (Cherokee Nation v. Georgia, 5 Pet. 1;) as a state in a certain sense, although not a foreign state or a state of the Union, (Holden v. Joy, 17 Wall. 211;) as a distinct community, with boundaries accurately described, (Worcester v. Georgia, 6 Pet. 515;) and as a domestic territory, (Mackey v. Coxe, 18 How. 100.) The right of local self-government has been accorded to the Creek nation from the earliest times. The laws and customs of the nation adopted for the government and protection of the members thereof by birth or adoption have never been interfered with by the United States. Rights acquired under these laws and customs have been respected and enforced. In Mackey v. Coxe, supra, the supreme court said there was 'no reason why the laws and proceedings of the Cherokee territory, so far as relates to rights claimed under them, should not be placed upon the same footing as other territories in the Union.' The Creek nation stands on the same footing.

It is very well settled that it will not be presumed that the English common law is in force in any state not settled by English colonists, (Whitford v. Railroad Co., 23 N.Y. 465; Savage v. O'Neil, 44 N.Y. 298; Flato v. Mulhall, 72 Mo. 522; Marsters v. Lash, 61 Cal. 622,) and it has been expressly decided that it will not be presumed to be in force in the Creek nation, (Du Val v. Marshall, 30 Ark. 230,) or in the Indian Territory, (Pyeatt v. Powell, 2 C. C. A. 367, 51 F. 551.) In Savage v. O'Neil, supra, the court said:

'There is no proof what the laws of Russia in reference to the property rights of married women were, and there is no presumption that the common law was in force there. Such a presumption is indulged by out courts only in reference to England and the states which have taken the common law from England. The courts cannot take notice of the laws of Russia unless they are proved, and in the absence of proof our own laws must of necessity furnish the rule for the guidance of our courts.' If, therefore, the court had no means of ascertaining what the law or custom of the Creek nation was on this question it should have applied the law of the forum. That law is found in chapter 104, Mansf. Dig., put in force in the Indian Territory by act of congress approved May 2, 1890, (26 Stat. 94, c. 182, § 31.) By that law all the property acquired by a wife, either before or after marriage, is her separate estate and property, and descends and is distributed to her children in equal parts. Chapter 104, § 2522, Mansf. Dig. It is true this statute was put in force in the Indian Territory after the marriage of the intestate with the defendant, and that the marital rights of the husband should be determined by the law then in force in the Creek nation; but it would undoubtedly be more rational to presume that the law or custom of the nation on this subject was in harmony with the statute adopted by congress, and that the act of congress was merely declaratory of the previously existing law, than to presume that the English common law, a system utterly at variance with the known habits and customs of Indians, was in force there. As there is no presumption that the domestic relations of the members of the Creek nation residing there are regulated or determined by the common law, we think that the statute adopted by congress on that subject, and which is now the law of the forum, must govern, unless it is shown that there was some prior law or custom of the Creek nation applicable to the case.

This ruling does not conflict with the doctrine of Pyeatt v Powell, supra. That was a suit arising upon a contract entered into between citizens of the United States in the state of Kansas. Neither of the parties to the suit was a member of any of the Indian nations in the Indian...