Hayes v. Barringer

• Decision Date: 13 March 1909
• Docket Number: 2,773.
• Citation: 168 F. 221
• Parties: HAYES v. BARRINGER.
• Court: U.S. Court of Appeals — Eighth Circuit

168 F. 221

HAYES v. BARRINGER.

No. 2,773.

United States Court of Appeals, Eighth Circuit.

March 13, 1909

(Syllabus by the Court.)

The words 'alienable' and 'inalienable,' used to restrict the disposition of lands in the Supplemental Agreement with the Chickasaws and Choctaws (Act July 1, 1902 c. 1362, 32 Stat. 642, 643, Secs. 12, 15, 16), include disposition by will.

The right and equity of an enrolled member of the Chickasaw Nation of Indians, who died testate in 1903 before receiving an allotment, to a just share of the lands of the Chickasaws and Choctaws, was not devisable, and the title to the lands subsequently derived therefrom was not affected by the will.

Prior to March 4, 1906, the Chickasaw Indians had the right to dispose of their devisable property by wills made in accordance with the laws of the Chickasaws, the proper Chickasaw probate court had jurisdiction to probate these wills, and its judgments are impervious to collateral attack.

Arthur G. Moseley and W. H. L. Campbell (Joel Terrell and C. Porter Johnson, on the brief), for plaintiff in error.

Clinton A. Galbraith (Thomas D. McKeown, on the brief), for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and RINER, District Judge.

SANBORN Circuit Judge.

In July, 1903, Sarah Hayes St. John, a full-blood Chickasaw Indian, duly enrolled and entitled to an allotment under Act June 28, 1898, c. 517, 30 Stat. 495 (the Atoka Agreement) and the Supplemental Agreement of July 1, 1902 (32 Stat. 641, c. 1362), devised all her property to the plaintiff, Ida Hayes, and died. Her will was probated and an administrator of her estate was appointed by the proper probate court of the Chickasaw Nation of Indians. This administrator selected 730 acres of the land of the Choctaw and Chickasaw Nations, and these lands were allotted to the deceased pursuant to section 22 of the Supplemental Agreement. Ida Hayes brought an action of ejectment for this land against the defendant in possession, and pleaded her title under this will. The courts in the Indian Territory sustained a demurrer to her complaint and dismissed her suit. Hayes v. Barringer (Ind. T.) 104 S.W. 937.

Prior to March 4, 1906, the Chickasaw Indians had the right to dispose of their devisable property by wills made in accordance with the laws of the Chickasaw Nation; the county and probate court of that nation for Pontotoc county, in which the will here in question was probated, had jurisdiction to hear and allow such a will; and the judgment of the probate of that will is not open to collateral attack. Act June 7, 1897, c. 3, 30 Stat. 83 (U.S. Comp. St. 1901, p. 1618); Act June 28, 1898, c. 517, 30 Stat. 495 (Curtis Act) Secs. 28, 29; Atoka Agreement, 30 Stat. 512; In re Poff's Guardianship (Ind. T.) 103 S.W. 765; Gray v. Coffman, Fed. Cas. No. 5,714; Elliott v. Garvin (C.C.A., 8th Circuit) 166 F. 278; Mehlin v. Ice, 56 F. 12, 5 C.C.A. 403; Cornells v. Shannon, 63 F. 305, 306, 11 C.C.A. 465, 466; Buster v. Wright, 135 F. 947, 953, 68 C.C.A. 505.

But was the interest of this Chickasaw Indian in these lands devisable in 1903? At that time these were the lands of the Choctaw and Chickasaw Nations, held by them, as they held all their lands, in trust for the individual members of their tribes, in the sense in which the public property of representative governments is held in trust for its people. But these were public lands, and, while the enrolled members of these tribes undoubtedly had a vested equitable right to their just shares of them against strangers and fellow members of their tribes, they had no separate or individual right to or equity in any of these lands which they could maintain against the legislation of the United States or of the Indian Nations. Stephens v. Cherokee Nation, 174 U.S. 445, 488, 19 Sup.Ct. 722, 43 L.Ed. 1041; Cherokee Nation v. Hitchcock, 187 U.S. 294, 23 Sup.Ct. 115, 47 L.Ed. 183; Lone Wolf v. Hitchcock, 187 U.S. 553, 23 Sup.Ct. 216, 47 L.Ed. 299; Wallace v. Adams, 143 F. 716, 74 C.C.A. 540; Ligon v. Johnston (C.C.A.) 164 F. 670.

By the Curtis Act (30 Stat. 495), the Atoka Agreement (30 Stat. 505), and the Supplemental Agreement (32 Stat. 641), the United States and the Choctaw and Chickasaw Nations had agreed and enacted that the lands of these tribes should be allotted and conveyed to the enrolled members thereof upon certain conditions and subject to certain restrictions upon the disposition thereof which they had lawfully imposed. The testatrix had been enrolled a member of the Chickasaw Nation, but no lands had been selected or allotted to her when she died. The conditions under which she was to secure, hold, and dispose of these lands were: Where an enrolled person died subsequent to July 1, 1902, and before receiving his allotment, the lands to which he would have been entitled, if living, were to be allotted in his name and to descend to his 'heirs according to the laws of descent and distribution as provided in chapter 49 of Mansfield's Digest of the Statutes of Arkansas' (Ind. T. Ann. St. 1899, Secs. 1820-1843), which chapter by its express terms provides for the descent and distribution of the property of intestates only. Supplemental Agreement (32 Stat. 643) Sec. 22. A homestead, consisting of land equal in value to 160 acres of average allotable land, selected by the allottee, 'shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of the certificate of allotment. ' Section 12 (32 Stat. 642). The remainder of the land allotted 'shall not be alienable by the allottee, or his heirs, at any time before the expiration of the Choctaw and Chickasaw governments (which expired March 4, 1906 (30 Stat. 512)), for less than its appraised value,' but may be alienable one-fourth in acreage in one year, one-fourth in acreage in three years, and one-half in acreage in five years, from the date of the patent. Section 16 (32 Stat. 643). Lands allotted shall not be affected or incumbered by any deed, debt, or obligation of any character contracted prior to the time at which said land may be alienated, nor shall said land be sold except as herein provided. Section 15 (32 Stat. 642).

The courts below were of the opinion that under these restrictions the inchoate right of the testatrix to acquire these lands was not subject to devise, and counsel earnestly argue that this decision was erroneous, because the words 'alienable' and 'inalienable' do not include disposition by will, and because the terms of the restrictions when read together, prohibit contracts, sales, gifts, and conveyances among the living only. There is a decision of the Supreme Court of Kansas which tends to sustain the first reason given by counsel for their contention by an argument that an owner of lands does not alienate them by a devise, because it is death, and not the testator, that separates him from the lands. Vining v. Willis, 40 Kan. 609, 20 P. 232. But the opinion in that case is a construction of section 9, art. 15, of the Constitution of the state of Kansas, which prohibits the alienation of a homestead without the joint consent of the husband and wife. The decision is neither controlling nor very persuasive of the meaning of the words 'alienable' and 'inalienable' in acts of Congress and agreements with Indian Nations, where they are used to carry into effect the settled and salutary public policy of the nation and of the tribes to prevent shrewd and intelligent men from alienating simple, unlearned, and improvident Indians and their heirs from their homesteads and lands.

The question here is not whether or not it is the act of a testator or death that alienates a testator from his property; but it is: What did the Congress of the...