Finley v. Thompson
| Decision Date | 11 June 1918 |
| Docket Number | Case Number: 8552 |
| Citation | 1918 OK 339,174 P. 535,68 Okla. 250 |
| Parties | FINLEY v. THOMPSON et al. (JACKSON et al., Interpleaders). |
| Court | Oklahoma Supreme Court |
¶0 1.Indians -- Allotment -- Inheritance -Ancestral Estate--Statute.
N. B., enrolled as a quarter-blood Chicks-saw Indian, died in infancy prior to statehood without descendants after receiving his allotment, leaving surviving him his father, F. B., also enrolled as a Chickasaw, and a sister, L. B., not enrolled, his mother, A. B., enrolled as a Choctaw, having previously died. Subsequent to his death L. B. also died in infancy without descendants, leaving, surviving her father F. B., her maternal grandfather, Y. J., a negro, enrolled as a Choctaw freedman, S. J., a negro half-sister of her mother, and B. F., her great-uncle, a full-blood Choctaw. Held: (1) That the allotment of N. B. was an ancestral estate which came to him through the blood of his tribal parents, and as much through the blood of the mother as the father; (2) that upon the death of N. B. without descendants, his allotment ascended to his father, F. B., and his sister, L. B., in equal parts; (3) that the part of said allotment inherited by L. B. was an ancestral estate which came to her through the blood of her mother; (4) that upon the death of L. B. without descendants, this part of the allotment ascended to Y. J. and S. J., the next of kin of her mother, notwithstanding their negro blood, and not to B. F., her more remote kinsman of Choctaw blood.
2.Indians -- Tribal Marriage--Validity--Power of Courts.
Act Cong. June 28, 1898, c. 517, § 26, 30 Stat. 504, provides; "That on and after the passage of this act the laws of the various tribes or nations of Indians shall not be enforced at law or in equity by the courts of the United States in the Indian Territory." Held, that since the enforcement of this section neither the courts of the state nor of the United States are available for the purpose of declaring a marriage void for no other reason than that it was violative of a tribal law of the Choctaw Nation at the time it was solemnized.
Error from District Court, Johnston County; J. H. Linebaugh, Judge.
Action by Ben Finley against W. J. Thompson and others, in which Yock Jackson and another by order of court filed an interplea. Judgment for defendants, and plaintiff brings error, and the interpleaders bring a cross-petition in error. Reversed and cause remanded, with directions.
Geo. A. Fooshee and D. D. Brunson, for plaintiff in error.
H. A. Ledbetter, F. M. Adams, and John A. McClure, for defendants in error.
Jas. R. Wood, for interpleaders.
¶1 This was a controversy, involving the devolution of the allotment of Nicholas Bean, enrolled as a quarter-blood Chickasaw Indian, who died in infancy after receiving his allotment, leaving surviving him his father, Felin Bean, who was enrolled as a half-blood Chickasaw Indian, and a sister, Lillian Bean; his mother, Abby Bean, nee Jackson, enrolled as a half-blood Choctaw Indian, having previously died. Subsequent to the death of Nicholas Bean, Lillian Bean, his sister, also died in infancy, leaving no descendants. The defendants claim title through conveyances by Felin Bean, the father, and his grantee, executed subsequent to the death of Lillian Bean. The plaintiff in error, Ben Finley, as plaintiff below, commenced this action to cancel these conveyances. Ben Finley, the plaintiff, is a full-blood Choctaw, was the uncle of Abby Bean, and the great-uncle of Nicholas Bean and Lillian Bean. It was his contention that at the death of Nicholas Bean, one-half of his allotment ascended to his father, Felin Bean, and the other half went to his sister, Lillian Bean, and that at the death of Lillian Bean without descendants half of the allotment which came to her ascended through the Choctaw blood of the mother and vested in Ben Finley, he being the only surviving kinsman of Abby Bean. Yock Jackson and Sylvia Jackson, by order of court, filed an interplea, and were styled "interpleaders" in the court below. Yock Jackson, who was a negro enrolled as a Choctaw freedman, alleged that the was the father of Abby Bean, nee Jackson, and the maternal grandfather of Nicholas Bean and Lillian Bean. Sylvia Jackson alleged that she was the only surviving child of Yock Jackson and a half-sister to Abby Bean, nee Jackson. Yock Jackson and Sylvia Jackson contend that inasmuch as they are the next of kin of Abby Bean, the interest in the allotment of Nicholas Bean which passed to Lillian Bean upon his death ascended to them upon the death of the latter without descendants. On behalf of the defendants it is contended: (1) That inasmuch as Nicholas Bean was enrolled as a Chickasaw Indian, taking the enrollment blood of his father, Felin Bean, it must be held that this allotment came to him by his father, and therefore upon his death the entire estate immediately ascended to Felin Bean, the grantor of the defendants; (2) but if the foregoing contention is found to be untenable, Nicholas Bean being enrolled as a Chickasaw Indian, at his death one-half of his allotment went to Felin Bean and the other half to Lillian Bean, and at the death of Lillian Bean without descendants the half of the allotment that went to her ascended to Felin Bean. In either of these events Felin Bean had a right to convey the entire estate to the defendants. The trial court took the view:
"That upon the death of Nicholas Bean the land sued for in this action ascended to his father, Felin Bean, and his sister, Lillian Bean, and upon the death of Lillian the whole of said title vested in said Felin Bean"
¶2 --and entered judgment in favor of the defendants, to reverse which this proceeding in error was commenced by Ben Finley as plaintiff in error, and Yock Jackson and Sylvia Jackson, as interpleaders and cross-petitioners in error.
¶3 It is agreed between counsel for the respective parties that the devolution of the land in controversy is governed by chapter 49, Mansfield's Digest of the Laws of Arkansas, in force in the Indian Territory prior to statehood, and that the controlling part thereof is section 2531, which provides:
"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 lifetime, 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 lifetime; then to descend to the collateral heirs as before provided."
¶4 It is also conceded that the allotment of Nicholas Bean was an ancestral estate, and that its devolution is governed by the principles announced in Shulthis v. McDougal, 170 F. 529, 95 C.C.A. 615; Pigeon v. Buck. 38 Okla. 101, 131 P. 1083; Id., 237 U.S. 386, 35 S. Ct. 608, 59 L. Ed. 1007; McDougal v. McKay, 237 U.S. 372, 35 S. Ct. 605, 59 L. Ed. 1001; Id., 43 Okla. 251, 142 P. 987.
¶5 With these preliminary questions taken as settled and out of the way, we will now proceed to examine the contentions of the respective parties.
¶6 If we understand the defendants' first contention, it amounts to this: Inasmuch as Nicholas Bean was enrolled as a Chickasaw, the tribal blood of his father, it must be held that his allotment came to him by his father, and therefore, upon the death of Nicholas without descendants, the land ascended to his father and his heirs, to the exclusion of his Choctaw mother and her heirs. We are unable to agree with this proposition. In Kelly v. McGuire, 15 Ark. 555, where section 2531, supra, was fully considered, it was held that:
"The manifest intention of the first part of this section, was to preserve ancestral estates in the line of the blood from whence they came."
¶7 This, no doubt, is a correct statement of the purpose of the section; but, in our judgment, it does not support the contention that the intention of the statute, when applied to Indian allotments, was to preserve the allotment in the line of any particular strain of Indian blood. In Thorn v. Cone et al., 47 Okla. 781, 150 P. 701, where the deceased allottees and their parents were all members of the Seminole Tribe of Indians, it was held that the allottees acquired the right to their allotments by their membership in the Seminole Tribe, and that, their father and mother being full-blood Seminoles, their allotments came to them through the blood of their tribal parents, and as much through the blood of one as the other.
¶8 In the case at bar, Nicholas Bean, by virtue of his mixed blood, had the right to acquire an allotment...
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