In re Davis' Estate
| Decision Date | 12 March 1912 |
| Citation | 122 P. 547,32 Okla. 209,1912 OK 189 |
| Parties | In re DAVIS' ESTATE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The act of Congress of April 28, 1904, c. 1824, 33 Stat. at L. 573 continuing and extending in their operation all the laws of Arkansas theretofore put in force in the Indian Territory, so as to embrace all persons and estates in said territory whether Indian, freedman, or otherwise, was not intended to and did not work a repeal of section 15 of the act of July 1 1902, c. 1362, 32 Stat. at L. 642, providing that lands allotted to members and freedmen of the Chickasaw and Choctaw Nations should not be affected by any deed, debt, or obligation, of any character, contracted prior to the time at which said land may be alienated.
The allotted lands of a deceased Choctaw freedman are not liable for any debt or obligation, of any character, contracted prior to the time at which such allotment may be alienated hence cannot be sold by order of the county court for such purpose.
Section 15 of the act of July 1, 1902, providing that lands allotted to members and freedmen of the Choctaw and Chickasaw Nations 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, means that there shall be no burden on the title or charge against such allotment, and that the same shall in no event become liable for any debt or obligation contracted prior to the removal of restrictions.
Belton Davis, a Choctaw freedman allottee, died intestate December 26, 1907, possessed of an allotment of lands in the former Chickasaw Nation. At the time of his death, he was indebted in a sum largely in excess of the value of his personal estate, and upon application of the administrator of the estate the county court made an order directing the sale of said allotment, for the purpose of paying the debts of the estate contracted during the lifetime of the allottee. Held, that the court erred in directing the sale.
Commissioners' Opinion, Division No. 1. Appeal from District Court, Carter County; S. H. Russell, Judge.
In the matter of the estate of Belton Davis, deceased; L. J. Akers, administrator. From an order directing the administrator to sell allotted lands for the payment of debts of decedent, Z. T. Harmon, the purchaser of the lands from the heirs of decedent, appeals. Reversed, with directions to dismiss petition for order of sale.
Johnson & McGill, for plaintiff in error.
Thos. Norman, for defendant in error.
SHARP, C. (after stating the facts as above).
The decision of this case rests upon the construction of certain sections of the various acts of Congress governing allotments made to Choctaw freedmen in the Choctaw and Chickasaw Nations, as well as other acts extending over and putting in force, as to said freedmen, certain of the laws of Arkansas theretofore in force in the Indian Territory.
Counsel for plaintiff in error rest their case primarily upon the act of July 1, 1902, ratified by the Choctaws and Chickasaws September 25, 1902 (32 Stat. L. 642), and upon the provisions of the act of April 26, 1906, c. 1876, 34 Stat. L. pt. 1, p. 137, providing for the final disposition of the affairs of the Five Civilized Tribes in the Indian Territory.
Defendant in error relies principally upon the act of April 28, 1904 (33 Stat. L. 573), entitled "An act to provide for additional United States judges in the Indian Territory, and for other purposes." Other acts of Congress, tending to show the object and purpose of Congress and the policy of the federal government in its dealings with the citizens and freedmen of the Chickasaw and Choctaw Nations, are mentioned, and will be hereafter referred to.
We shall consider, first, the act of April 28, 1904. This act continues and extends in their operation all the laws of Arkansas theretofore put in force in the Indian Territory, so as to embrace all persons and estates in said territory, whether Indian, freedman, or otherwise. Assuming, without deciding, that this provision has reference to all the laws of Arkansas, on whatsoever subject, theretofore put in force by any former act of Congress, beginning with the act of March 1, 1889, creating a United States court at Muskogee, the foregoing provision would mean that neither the adoption nor the enactment of any new law was intended, but that the extension or carrying forward of certain laws, already in force as to United States citizens in the Indian Territory, and under certain conditions to others, to all persons and estates, including freedmen, not theretofore subject to such jurisdiction. But is this act, while in terms containing no exception or saving clause, to be given the broad construction contended for by defendant in error, and sustained by both the county and district courts? The exact question has never before been considered by this court.
The right of Choctaw freedmen to participate to a limited extent in the allotment of lands, in both the Choctaw and Chickasaw Nations, was recognized in the act of June 28, 1898, c. 517, 30 Stat. L. 495. In section 29 of the foregoing act, it was provided that Choctaw freedmen should be entitled to an allotment of land equal in value to 40 acres of the average land of the two Nations, which should be nontaxable and inalienable, while the title remained in the original allottee, but not to exceed 21 years from the date of patent.
In the Supplemental Agreement, approved July 1, 1902, and ratified by the Choctaw and Chickasaw Nations September 25, 1902 (32 Stat. L. 642), in section 11 thereof, it was provided that each Choctaw freedman, as soon as practicable after the approval of the Secretary of the Interior of his enrollment, was entitled to lands equal in value to 40 acres of the average allottable lands of the Choctaw and Chickasaw Nations. Section 13 provided that the allotment of each Choctaw freedman should be inalienable during the lifetime of the allottee, not exceeding 21 years from the date of the certificate of the allotment; while section 15 provided: "Lands allotted to members and freedmen shall not be affected or encumbered by any deed, debt, or obligation of any character contracted prior to the time at which said land may be alienated under this act, nor shall said lands be sold except as herein provided." All allotments, both to citizens and freedmen, were made under the provisions of the act of July 1, 1902.
The act of April 21, 1904, c. 1402, 33 Stat. 189, provided for the removal of restrictions as follows: "And all the restrictions upon the alienation of lands of all allottees of either of the Five Civilized Tribes of Indians who are not of Indian blood, except minors, are, except as to homesteads, hereby removed, and all restrictions upon the alienation of all other allottees of said tribes, except minors, and except as to homesteads, may, with the approval of the Secretary of the Interior, be removed under such rules and regulations as the Secretary of the Interior may prescribe," etc.
On April 28, 1904, Congress passed an act entitled "An act to provide for additional United States judges in the Indian Territory, and for other purposes," which act, among other things, provided that: "All the laws of Arkansas heretofore put in force in the Indian Territory are hereby continued and extended in their operation, so as to embrace all persons and estates in said territory, whether Indian, freedmen, or otherwise, and full and complete jurisdiction is hereby conferred upon the district courts in said territory in the settlements of all estates of decedents, the guardianships of minors and incompetents, whether Indians, freedmen, or otherwise."
It can hardly be said to be probable that Congress passed a partial removal of restrictions act on April 21st, and seven days thereafter enacted a law removing all restrictions. It can scarcely be doubted that the two acts were under consideration at the hands of Congress at the same time, though the former received executive approval a few days before the latter act. The latter act is general; it simply extended certain laws to new classes, including freedmen, and their estates. It did not purport, by express language, to have to do with the lands of the allottees in the Indian Territory, save in conferring upon the United States court in the Indian Territory full and complete jurisdiction in the settlement of all estates of decedents and guardianships of minors and incompetents. This latter jurisdiction in the United States courts did not exist at the time of the passage of the act. In re Poff's Guardianship, 7 Ind. T. 59, 103 S.W. 765; Hayes v. Barringer, 7 Ind. T. 697, 104 S.W. 937; In re Feland's Estate, 26 Okl. 448, 100 P. 736. The latter act contains no repealing clause.
It is urged by counsel for defendant in error that the passage of said act evidenced an intent to subject the administration of the estates of all persons in the Indian Territory, whether Indian, freedmen, or white, to the same laws, and that the Indian and freedmen estates should be subject to the payment of debts the same as those of deceased white men. This, we admit, must be the necessary conclusion, if the act is given the interpretation contended for.
It is a familiar rule of statutory construction that subsequent legislation may be considered as an aid to the interpretation of prior legislation upon the same subject. Tiger v Western Investment Co. et al., 221 U.S. 286, 31 S.Ct. 578, 55 L.Ed. 738. We will therefore consider such subsequent legislation as may come within the rule announced. The act of April 26, 1906, in section 3, provided that: "Lands allotted to freedmen of the Choctaw and Chickasaw Tribes shall be considered 'homest...
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