Harris v. Grayson

• Decision Date: 29 May 1923
• Docket Number: Case Number: 11654
• Citation: 1923 OK 310,90 Okla. 147,216 P. 446
• Parties: HARRIS et al. v. GRAYSON et al.
• Court: Oklahoma Supreme Court

1923 OK 310

216 P. 446

90 Okla. 147

HARRIS et al. v. GRAYSON et al.

Case Number: 11654

Supreme Court of Oklahoma

Decided: May 29, 1923

Syllabus

¶0 1. Indians -- Descent and Distribution -- Creek Allotment--Second Descent.

The Supplemental Creek Agreement of June 30, 1902, 32 Stat. at L. 500, providing that the descent of Creek allotments should be according to chapter 49 of Mansfield's Digest of the Laws of Arkansas, and the proviso of section 6 of said treaty, providing: "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--," held, said proviso controls, and confines the devolution of the allotment of a deceased Creek allottee on first descent to Creek citizens or their Creek descendants, but is inapplicable on second descent of such allotment, and the descent of such an allotment, after first descent, is controlled by the applicable provisions of chapter 49 of Mansfield's Digest of the Statutes of Arkansas.

2. Same--Erroneous Judgment.

Record examined, and held, that the trial court committed reversible error in applying the provisions of the proviso of section 6 of said treaty to the estate of the deceased, such deceased having died in April, 1907, and said estate not being the allotment of said deceased, but having come to said deceased by inheritance.

Error from District Court, Creek County; Lucien B. Wright, Judge.

Action by Isom Grayson et al. against James A. Harris et al. to recover certain lands located in Creek County. Judgment for plaintiffs. Defendants appeal. Reversed and remanded, with directions.

Geo. S. Ramsey, G. Earl Shaffer, and Robert F. Blair, for plaintiffs in error.

Thos. H. Owen, A. A Hatch, Watts & Watts, Gidney & Gidney, Turner & Turner, W. T. Hunt, A. C. Hunt, Wallace & Stevens, J.T. Smith, John E. Williams, and Alvin F. Molony, for defendants in error.

PER CURIAM

¶1 This appeal is prosecuted from a judgment of the district court of Creek county, Okla., decreeing possession and ownership of the lands involved there in to the plaintiff Isom Grayson and others, who filed said suit in said court against James A. Harris and William H. Harris and others. The facts out of which the litigation arises are briefly these: An undivided one-half interest in two allotments was sued for by the plaintiffs. One allotment was made in the same of Nancy Colbert, a freedman citizen of the Creek Nation, roll No. 5641, who departed this life in the year 1900. The other allotment was made in the name of Garfield Colbert, a freedman citizen of the Creek Nation, roll No. 5640. At the time of the death of the two allottees, the lands in question had not been set apart to them. The lands were set apart in their names in the summer of 1906, and at that time one Gertrude Grayson succeeded to the half interest in question by operation of law in both said allotments. The said Gertrude Grayson departed this life in April, 1907, intestate, never having been married, and without issue, and it is the interest which the said Gertrude Grayson is admitted to have had at her death that is in controversy here. The other half interest is not in litigation, and there is no occasion to make reference thereto.

¶2 There are several questions raised by the plaintiffs in error for reversal of the cause, but no useful purpose can be served by a discussion of any of the questions involved other than the one controlling the proper disposition of the case. The record discloses, and it is not disputed, that at the time of the death of the said Gertrude Grayson, who succeeded to the half interest in the said land on the selection thereof as one of the heirs of the persons in whose names the land was set apart, she left surviving her as her sole heir at law her maternal grandmother, Cloria Grayson, if the general provisions of chapter 40 of Mansfield's Digest of the Statutes of Arkansas are held to govern the devolution of the property on the death of the said Gertrude Grayson, and are not superseded by the proviso to section 6 of the Supplemental Creek Agreement of July 1, 1902. The said Gertrude Grayson took this land free from restrictions imposed by the act of Congress, and she could have alienated the same, but for the fact that she was a minor, only 15 years of age, at the time of her death. The question is, Which of her relatives inherited from her the property in controversy?

¶3 The defendants in error, the plaintiff's below, were related to her, the degrees, etc., of which relationship it is unnecessary to discuss. They are citizens of the Creek Nation. Gertrude left surviving her a maternal grandmother, Cloria Grayson, a non-citizen of the Creek Nation Had Cloria Grayson been a citizen of the Creek Nation, it is not disputed that she would have inherited the half interest owned by Gertrude at the time of her death, and the plaintiffs in error, James A. Harris and William H. Harris, by mesne conveyances from the said Cloria Grayson, are the unquestioned owners of the one-half interest in said land which they claim. But said Cloria Grayson, maternal grandmother, as aforesaid, of the said Gertrude, being a noncitizen of the Creek Nation, the right of the said plaintiffs in error to a judgment in their favor --not now discussing the other questions in issue--depends upon whether or not the said Cloria Grayson, a noncitizen, could take the inheritance from Gertrude Grayson.

¶4 If the said Cloria Grayson is cut off from inheriting from her grandchild, Gertrude, it is by reason of the first proviso to section 6 of the Supplemental Creek Agreement. Without quoting section 6, the proviso reads as follows: "Provided, that only citizens of the Creek Nation, male and female, and their Creek descendants, shall inherit lands of the Creek Nation," etc. This draws directly in issue what application, if any, this proviso has to a second inheritance of lands which have been allotted under the allotment acts to the various enrolled citizens of the Creek Tribe of Indians. If this proviso does not exclude Cloria Grayson from inheriting, the general provisions of chapter 49 of Mansfield's Digest, Statutes of Arkansas, which were placed in force in the Indian Territory, of which the Creek Nation was a part, in 1897, and further re-enacted and placed in force by the act of April 28, 1904 (33 Stat. L. 573), would be the governing law as to this inheritance, and the said Cloria Grayson was the sole heir of Gertrude.

¶5 The true intent of Congress and of the Creeks can best be ascertained by looking to the acts carrying out the scheme to divide in severalty the tribal property. Shulthis v. McDougal, 170 F. 529.

¶6 Section 7 of the Original Creek Agreement made the Creek law applicable only to allotments--by this language referring to the homestead part thereof--"The homestead of each citizen shall remain, after the death of the allottee, for the use and support of children born to him after the ratification of this agreement, but if he have no such issue * * * the land (his allotment homestead) shall descend to his heirs, according to the laws of descent and distribution of the Creek nation." Nothing is said as to who shall take on death of the first heirs. At that time, the law of succession contained in chapter 49, Mansfield's Digest, was the law of the forum. It cannot be successfully argued that this provision of the Creek law, governing the descent of the homestead allotment referred to as "the land", extended to abrogate the general statute to such an extent it would not control where the Creek-law heir had once taken and in turn died intestate and seized of the land. A fair reading cannot extend the Creek law further than the first descent, and "the land" other than the allotment specifically mentioned. Section 28 of the Original Creek Agreement has no more extended meaning, except "allotment of lands" and "lands" therein used covered both the homestead referred to in the quoted part of section 7, as well as surplus land, it taking both to make the allotment. Nothing can be read into this section which abrogated the general statute on succession, except as to the first succession, to land referred to therein as "allotment of lands". Section 28, supra, of the Original Creek Agreement of March 1, 1901, after providing as of what date citizens should be enrolled on the final rolls to be prepared by the Commission to the Five Civilized Tribes, recited:

"If any such citizen has died since that time, or may hereafter die before receiving his allotment of lands, and distributive share of all of the funds of the tribe, the lands and money to which he would he entitled, if living, shall descend to his heirs, according to the laws of descent and distribution of the Creek Nation, and be allotted and distributed to them accordingly."

¶7 Said section 7, supra, of the same act, in effect provided that in case of death, homestead lands allotted to citizens should, descend to their heirs, according to the laws of descent and distribution of the Creek Nation.

¶8 Shortly thereafter, and in 1902,...