Denoya v. Arrington

• Decision Date: 13 December 1932
• Docket Number: Case Number: 21240
• Citation: 1932 OK 825,20 P.2d 563,163 Okla. 44
• Parties: DeNOYA et al. v. ARRINGTON, Ex'r, et al.
• Court: Oklahoma Supreme Court

1932 OK 825

20 P.2d 563

163 Okla. 44

DeNOYA et al. v. ARRINGTON, Ex'r, et al.

Case Number: 21240

Supreme Court of Oklahoma

Decided: December 13, 1932

Syllabus

¶0 1. Indians--Alienation of Headrights by Those of Indian Blood not Authorized.

There is no act of Congress providing for the sale, incumbering, or alienation of headrights by those of Indian blood. See In re Irwin, 60 F.2d 495.

2. Same--Income Accruing to Headright of Deceased Osage Allottee not Asset of Estate Subject to Payment of Creditors' Claims.

The income accruing to the headright of a deceased Osage allottee subsequent to the death of such allottee is not an asset of the estate of such decedent which can be appropriated for the payment of the claims of creditors.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

In the matter of the estate of Odell DeNoya Bighorse; John L. Arrington, executor. From an adverse judgment, Cecelia La Verne DeNoya and others appeal. Reversed and remanded, with directions.

Holcombe, Lohman & Barney and R. A. Barney, for plaintiffs in error.

Gray & Palmer and Wilson & Duncan, for defendants in error.

Louis N. Stivers, Osage Tribal Atty., amicus curiae.

T. J. Leahy, C. S. Macdonald, and F. W. Files, amici curiae for numerous members of the Osage Tribe of Indians.

McNEILL, J.

¶1 This case arises out of the construction of a last will and testament of a deceased Osage allottee involving an Osage headright The facts are not in dispute.

¶2 It appears that Odell DeNoya Bighorse was an allotted and duly enrolled member of the Osage Tribe of Indians of less than half Indian blood; that she had been granted a certificate of competency on May 3, 1911; that on January 10, 1927, she made and executed her last will and testament, containing, in part, the following provisions:

"First. I direct the payment of my funeral expenses and expenses of my last illness.

"Second. I direct the payment out of my estate of all loans made for my benefit by my mother, Mrs. John Bradshaw.

"Third. I give and bequeath to Joseph Bighorse in case he is my husband at the time of my death the sum of $ 100, provided, however, if he is not my husband at the time of my decease, he to receive nothing from my estate.

"Fourth. I give, devise, and bequeath all the rest, residue, and remainder of my estate, real and personal and mixed, including my headrights, and inherited rights in the Osage Tribe of Indians of which I may die seized, to my children, Cecelia Laverne DeNoya, Mary Otella DeNoya, and Wesley DeNoya, Jr., to share and share equally alike therein.

"* * * In witness whereof, I, Odell DeNoya Bighorse, Osage allottee, No. 1789, roll No. 1908, after this my last will and testament consisting of two sheets of paper, subscribed my name this the 10th day of January 1928. * * *"

¶3 The will was thereafter transmitted to the Secretary of the Interior for approval. It was received by the office of the Commissioner of Indian Affairs on February 7, 1928. It was subsequently approved by the Secretary of the Interior upon the recommendation of the Commissioner of Indian Affairs that it be approved in pursuance of the provisions of the Act of April 18, 1912 (37 Stat. L. 86, 88). subject to the right of the husband of the testatrix to take under the will or under the laws of the state of Oklahoma. Said allottee died January 14, 1928. At the time of her decease her indebtedness was in excess of $ 35,000, which had been incurred subsequent to the issuance of her certificate of competency. This appeal is concerned with what interest, if any, the creditors of said decedent have in the headright of said decedent for the satisfaction of their claims, in view of the fact that said decedent possessed no real or personal property except $ 3,200 in cash in the hands of the Superintendent of the Osage Indian Agency, which was being held by said superintendent by reason of a controversy arising out of an adjudication of incompetency pending in Rogers county.

¶4 The plaintiffs in error are the legatees and devisees under said last will and testament and have appealed to this court from the judgment of the district court of Osage county, wherein it was held that the estate of said decedent should be held open until all claims of the creditors of said decedent should be paid in full from the future income from the headright of said decedent as against the contention of said legatees that said estate was insolvent and should be closed, and thereby enable them to receive their pro rata part of said income under the provisions of said will, for the reason that said creditors were not entitled under the various acts of Congress to have such income appropriated to the settlement of their various claims.

¶5 A "headright" may be considered as the right of the tribal members and their heirs to share in the distribution of the funds received from the oil, gas, and mineral rights which were reserved to the tribe as a communal interest.

¶6 The question presented for determination turns upon the construction and effect of the acts of Congress in dealing with the Osage Tribe of Indians relative to the income from the mineral rights reserved to said tribe. There is a distinct difference between the income which has accrued to an Osage headright prior to the death of the allottee and that which may accrue subsequent thereto. In the instant case it does not appear to be questioned that the creditors would be entitled to have all funds of this nature and character which had accrued to the credit of said decedent at the time of her death, or accruing from such funds during the fiscal quarter of her decease, to apply to the liquidation of the debts incurred by said decedent, but it is maintained by the plaintiffs in error that said creditors, in the absence of a specific act of Congress, cannot apply the income derived from the headright of a deceased Osage allottee accruing after the death of such allottee beyond the fiscal quarter within which such allottee died, to the payment of their claims against the estate of such decedent.

¶7 In determining whether the income accruing to an Osage headright subsequent to the death of such allottee is an asset of the estate of such deceased Osage allottee, which can be taken by an administrator or an executor and applied to the payments of the debts of such decedent, we shall refer to some of the pertinent portions of the various acts of Congress. The Osage Tribe of Indians purchased their lands with their own money from the Cherokee Tribe, and this land was to be held in trust by the United States for the use and benefit of said Osage tribe. Prior to the Osage Allotment Act of June 28, 1906, 34 Stat. L. 539, the title to the lands and funds for said tribe remained in the tribe. By said Act of 1906, the lands were divided in severalty among the 2,229 members of said tribe, with certain reservations, limitations, and restrictions.

¶8 Section 1 of said Act of 1906 deals with the enrollment of the tribe. Section 2 provides for the selection and division of the lands belonging to the Osage Tribe of Indians among the enrolled members of the tribe. Paragraph 7 of said section 2 provides, in part, as follows:

"That the Secretary of the Interior, in his discretion, at the request and upon the petition of any adult member of the tribe, may issue to such member a certificate of competency, authorizing to sell and convey any of the lands deeded him by reason of this act, except his homestead, which shall remain inalienable and nontaxable for a period of 25 years, or during the life of the homestead allottee, if upon investigation, consideration, and examination of the request he shall find any such member fully competent and capable of transacting his or her own business and caring for his or her own individual affairs; Provided, that upon the issuance of such certificate of competency the lands of such member (except his or her homestead) shall become subject to taxation, and such member, except as herein provided, shall have the right to manage, control, and dispose of his or her lands the same as any citizen of the United States: Provided, that the surplus lands shall be nontaxable for the period of three years from the approval of this act, except where certificates of competency are issued or in case of the death of the allottee, unless otherwise provided by Congress: And provided, further, that nothing herein shall authorize the sale of the oil, gas, coal, or other minerals covered by said lands, said minerals being reserved to the use of the tribe for a period of 25 years, and the royalty to be paid to said tribe as hereinafter provided: And provided, further, that the oil, gas, coal, and other minerals upon said allotted lands shall become the property of the individual owner of said land at the expiration of said 25 years, unless otherwise provided for by act of Congress."

¶9 This 25 year period has now been extended until April 8, 1958, by Act of March 2, 1929, 45 Stat. L. 1478. It is to be observed that, notwithstanding the granting of certificates of competency to the allottees, said section 2 specifically prohibits the sale of the oil, gas, coal, or other minerals covered by said land therein mentioned.

¶10 Section 3 of said act provides:

"That the oil, gas, coal, or other minerals covered by the lands for the selection and division of which provision is herein made are hereby reserved to the Osage Tribe for a period of 25 years from and after the 8th day of April, 1906. * * *"

¶11 Section 4 of said act provides:

"That all funds belonging to the Osage Tribe, and all moneys due, and all moneys that may become due, or may hereafter be found to be due the said Osage Tribe of Indians, shall be held in trust by the United States for the period of 25 years from and after the 1st day of January, 1907, except as herein provided:"

¶12 In reference to the segregation of the funds and the placing of the same to the credit of the...