James v. Adams

• Decision Date: 09 November 1915
• Docket Number: Case Number: 5821
• Citation: 1915 OK 896,155 P. 1121,56 Okla. 450
• Parties: JAMES et al. v. ADAMS.
• Court: Oklahoma Supreme Court

1915 OK 896

155 P. 1121

56 Okla. 450

JAMES et al. v. ADAMS.

Case Number: 5821

Supreme Court of Oklahoma

Decided: November 9, 1915

Syllabus

¶0 1. DIVORCE--Marriage--Indian Customs. Marriages, contracted between tribal Indians according to the usages and customs of their tribe, at a time when the tribal government and relations are existing, will be upheld by the courts, in the absence of a federal law rendering invalid the laws and customs of the tribe.

(a) A dissolution of the marriage contract, according to such tribal laws, usages, and customs, will be likewise upheld by the courts.

2. MARRIAGE--Validity--Presumption--Dissolution of Former Marriage. Where a man and woman have been living together as husband and wife for many years, and it appears that at the time of marriage the former wife was still living, in the absence of further evidence on the subject, it will be presumed that there had been a lawful separation or divorce between the husband and the former wife.

Error from District Court, Carter County; S. H. Russell, Judge.

Action by Marswis James and another against Homer Adams. Judgment for defendant, and plaintiffs bring error. Affirmed.

Drake & Drake, for plaintiffs in error

H. A. Ledbetter, for defendant in error

BREWER, C.

¶1 This controversy is over the allotment of Moses Anderson, a Choctaw Indian, who, it is alleged, was the son of Silas Anderson and a woman named Jincy. The suit is brought by Marswis James and Simeon James, children of a deceased sister of Jincy. These persons are therefore cousins of the allottee on the mother's side. Homer Adams claims title under deeds from persons who, it is alleged, are children of Silas Anderson and a woman named Amy. If Silas Anderson was legally married to both Amy and Jincy when these various children were born, then defendant Adams' grantors were half brothers and sisters of the allottee, and therefore took the allotment to the exclusion of the cousins, who are plaintiffs. There is no question as to the law of descent, and it is admitted that one or the other of these sets of heirs took the whole estate upon the death of the allottee.

¶2 The status of the plaintiffs as cousins on the maternal side of the allottee not being in dispute, we are only to inquire into the status of the children of Amy, under whom defendant claims. Whether they are half brothers and sisters of the allottee, and therefore his heirs, depends upon both them and the allottee being legitimate children of Silas Anderson. Therefore, to support their heirship, it must appear: First, that Silas Anderson and Amy, their mother. were married, either by a ceremonial marriage, or by tribal custom; and, second, that Silas Anderson was likewise legally married to Jincy, the mother of the allottee. If either the children of Jincy or of Amy were illegitimate, then neither could inherit from the other, under the claim of a common paternity. The rights of defendant, Adams, claiming through Amy's children as presented here, are based on the contentions: (1) That Silas and Amy were legally married by tribal custom, without formal ceremony, and that therefore Amy's children were legitimate. (2) That this tribal marriage between Silas and Amy was dissolved, through tribal custom, and that therefore Silas Anderson was free to marry Jincy, and did so, thus making the allottee, Jincy's son, also the legitimate child of Silas Anderson. If both contentions are true, it follows that all of them are legitimate children of Silas Anderson, and are brothers and sisters, respectively, of the half blood.

¶3 It has been very generally, if not universally, held by the American courts that marriages contracted between tribal Indians, according to the laws and customs of their tribe, at a time when the tribal relations and government were existing, would be upheld, in the absence of a federal law rendering such tribal laws and customs invalid. Cyr v. Walker et al., 29 Okla. 281, 116 P. 931, 35 L. R. A. (N. S.) 795, citing Morgan v. McGhee, 5 Hum. 13; Earl v. Godley, 42 Minn. 361, 44 N.W. 254, 7 L. R. A. 125, 18 Am. St. Rep. 517; Wall v. Williamson, 8 Ala. 48; Johnson v. Johnson, 30 Mo. 72, 77 Am. Dec. 598; La Riviere v. La Riviere, 77 Mo. 512; Kobogum v. Jackson Iron Co., 76 Mich. 498, 43 N.W. 602; Boyer v. Dively et al., 58 Mo. 510. See, also, Coachman v. Sims, 36 Okla. 536, 129 P. 845; Oklahoma Land Co. v. Thomas, 34 Okla. 681, 127 P. 8; Chancey v. Whinnery, 47 Okla. 272, 147 P. 1036.

¶4 In Buck v. Branson et al., 34 Okla. 807, 127 P. 436, 50 L. R. A. (N. S.) 876, the above rule is reaffirmed as to marriages, and it is also shown and decided that the same rule applies as well to the dissolution of the marriage contract. On the last point, the syllabus, after stating the rule as to marriages, adds:

"And the same effect is also given to the dissolution of marriages, under the customs of the tribe, as is given to the marriage relation itself."

¶5 See that case for other authorities.We will treat the two important questions of fact separately:

1. The evidence is ample that the relations between Silas Anderson and Amy were not meretricious, but that they were husband and wife, under the custom of the tribe. There is some evidence even of a ceremonial marriage; but, laying this aside, the facts are undisputed that these full-blood Indians lived

...