Jefferson v. Cook

• Decision Date: 08 February 1916
• Docket Number: Case Number: 7453
• Citation: 155 P. 852,1916 OK 151,53 Okla. 272
• Parties: * JEFFERSON et al. v. COOK et al.
• Court: Oklahoma Supreme Court

1916 OK 151

155 P. 852

53 Okla. 272

* JEFFERSON et al. v. COOK et al.

Case Number: 7453

Supreme Court of Oklahoma

Decided: February 8, 1916

Syllabus

¶0 1. INDIANS--D scent and Distribution--Statutes. On June 4, 1908, a duly enrolled Creek freedman died intestate after receiving her allotment, leaving her surviving no issue, nor husband, nor mother, leaving her surviving her father and brothers and sisters, all duly enrolled Creek freedmen. Held, that Enabling Act. secs. 13 and 21, and Const. art. 25, sec. 2, in effect repealed that part of section 6 of the Supplemental Agreement (Act Cong. June 30, 1902, c. 1323, 32 Stat. 501) providing that the descent and distribution of land and money provided for by an act of Congress approved March 1, 1901 (31 Stat. 861, c. 676), shall be in accordance with chapter 49 of Mansfield's Digest of the Statutes of Arkansas, and substituted therefor the laws of the Territory of Oklahoma thus extended to and put in force throughout the state, leaving in force the two provisos contained in section 6, which survive and operate as such upon the laws extended to the extent of limiting the same so that "only citizens of the Creek Nation, male and female, and their Creek descendants shall inherit lands of the Creek Nation," and "that if there be no person of Creek citizenship to take the descent and distribution of said estate then the inheritance shall go to non-citizen heirs in the order named in" the laws of the State of Oklahoma.

2. SAME--Rev. Laws 1910, secs. 8416, 8417, and 8418, construed, and held that, as intestate left no issue, nor husband nor mother, the father takes the estate to the exclusion of the brothers and sisters, and that the seventh subdivision of the latter section has no bearing on the case.

James M. Hayes, for plaintiffs in error.

Geo. S. Ramsey, E. R. Perry, N. A. Gibson, Edgar A. De Meules and Malcolm E. Rosser, for defendants in error.

TURNER, J.

¶1 On May 7, 1915, Grant N. Jefferson and Mattie R. Wasson, for themselves, and Willie Noland Jefferson, by his guardian, John J. Jefferson, Jr., sued William J. Cook and Albert Z. English, as administrators of the estate of F. B. Severs, deceased, and others, in the district court of Okmulgee county. The material facts admitted by the demurrer to the petition are that John J. Jefferson, Jr., and one Mary Alice Jefferson were, on June 9, 1905, husband and wife, and were duly enrolled freedmen of the Creek Nation. On that day Mary Alice Jefferson died, leaving her surviving her husband, John J. Jefferson, Jr., and as her only heirs at law their children, the plaintiffs, Grant N. Jefferson, Mattie R. Wasson, and Willie Noland Jefferson, and defendants Thurman Jefferson and Rebecca Jefferson, also Peggy Ann Jefferson, all duly enrolled citizens of said nation. On June 4, 1908, Peggy Ann Jefferson died intestate, a resident of said county, unmarried, a minor, without issue, and the owner of an allotment in the Creek Nation described in the petition, leaving her surviving her father, John J. Jefferson, Jr., and the plaintiffs, Grant N. Jefferson, Mattie R. Wasson, and Willie Noland Jefferson, and the defendants Thurman Jefferson and Rebecca Jefferson. Thereafter the father conveyed the land to F. B. Severs, from whom sprang up the chain of conveyances which is alleged to be a cloud on plaintiffs' title and which they seek to set aside. In the petition plaintiffs set up their title thus:

"The plaintiffs say that upon the death of the said Peggy Ann Jefferson, either under the laws of the State of Oklahoma, or under section 2531 of chapter 49 of Mansfield's Digest of the Laws of the State of Arkansas, which is in part as follows: 'In all 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'--the title to an undivided one-half interest in said land vested in her father, John J. Jefferson, Jr., and the other undivided one-half interest vested in her brothers and sisters, Mattie R. Wasson, Grant N. Jefferson, Thurman Jefferson, Rebecca Jefferson, and Willie Noland Jefferson, who survived her. The plaintiffs say that at all times since June 4, 1908, they have been and are now the joint owners of an undivided three-tenths interest in and to all of said property."

¶2 In sustaining a demurrer to their petition the court, in effect, held that they had no interest in the land, and that the father took title to the allotment as the sole heir of Peggy Ann under the laws of descent and distribution of the state. Rev. Laws 1910, sec. 8416 et seq. Counsel for plaintiffs contend that in this he erred, because, they say, that inasmuch as this allotment was, as stated in the deeds conveying to Peggy Ann both her homestead and surplus, made in pursuance of and subject to the terms of both the Original (Act March 1, 1901) and Supplemental Agreements (Act June 30, 1902), the Arkansas law of descent and distribution constituted a contract between Peggy Ann and the United States and the Creek Nation, and thus became a vested right in her, which, on descent cast, sent the land one-half to the father and the other to her brothers and sisters, as directed by section 6 of the Supplemental Agreement, which reads:

"The provisions of the act of Congress approved March 1, 1901 (31 Stat. L. 861), in so far as they provide for descent and distribution according to the laws of the Creek Nation, are hereby repealed and the descent and distribution of land and money provided for by said act shall be in accordance with chapter 49 of Mansfield's Digest of the Statutes of Arkansas now in force in Indian Territory: Provided, 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 non-citizen heirs in the order named in said chapter 49." (32 Stat. 501.)

¶3 It is sufficient to say of this contention that the agreements referred to are not contracts, but acts of Congress, subject to repeal by Congress at any time. In Gritts v. Fisher, 224 U.S. 640, 648, 32 S. Ct. 580, 583 (56 L. Ed. 928), the court, speaking to the Cherokee Agreement of 1902, said:

"The difficulty with the appellant's contention is that it treats the act of 1902 as a contract, when 'it is only an act of Congress and can have no greater effect.'" See, also Red Bird v. United States, 203 U.S. 76 at 76-93, 27 S. Ct. 29, 51 L. Ed. 96, where such was again expressly held.

¶4 Such was, in effect, our holding in Brady v. Sizemore et al., 33 Okla. 169 at 169-173, 124 P. 615 at 615-617. There we said:

"What we Would hold if, prior to the ratification of said Supplemental Agreement and the consequent operation of said section 6, which in terms repealed the provisions of the Original Agreement in so far as the same provided for descent and distribution of the Creek Nation and substituted therefor the laws of descent and distribution contained in chapter 49 of Mansfield's Digest of Arkansas, rights have vested in virtue of that part of the act repealed, we need not state. It is sufficient to say that no such question is here presented, and no rights having thus accrued, Congress, prior thereto, had a right to change the legislative intent and make other provision regarding those allotments, which it did by enacting section 6, changing the course of their devolution, and provide, in effect, as it did that the laws of Arkansas should thereto apply, instead of the laws of the Creek Nation." See Sizemore et al. v. Brady, 235 U.S. 441, 35 S. Ct. 135, 59 L. Ed. 308; Cooley on Constitutional Law, 512.

¶5 If it were necessary to cite additional authority to support this view, we might call attention to the fact that, as section 6 of the Supplemental Agreement expressly repeals the provisions of the Original Agreement in so far as they provide for descent and distribution according to the laws of the Creek Nation, Congress thereby placed a legislative construction on the former act in keeping with what we have just held. Whether the court erred in sustaining the demurrer to plaintiffs' petition turns upon the question of what effect Enabling Act, secs. 13 and 21, and Const. art. 25, sec. 2, had upon said section 6. And in order to determine whether the Enabling Act, which was general legislation, repealed said section in whole or in part, and substituted therefor the laws of descent and distribution of the Territory of Oklahoma extended to and put in force throughout the state when erected, it is necessary to first determine which part, if any, of said section is general, and which is special legislation; for it is as to the former only that the Enabling Act works a repeal, leaving unaffected such special legislation as may be contained in said section. And first let us see what led up to the enactment of section 6. Prior to Act May 2, 1890, c. 182, 26 Stat. 81, the Creeks maintained their own tribal government in that part of this state then known as the Creek Nation. They had their own laws, which were administered in their tribal courts, and among them laws governing the descent and distribution of property belonging to their citizens dying intestate. Then along came said act, which by sections 30 and 31 extended over and put in force in the Indian Territory certain general laws of Arkansas, and among them chapter 49 of Mansfield's Digest of 1884, which pertained to descent and distribution, with the proviso that:

"The judicial tribunals of the Indian Nations shall retain exclusive jurisdiction in all civil and criminal cases arising in the country in which members of the nation by nativity or by adoption shall be the only parties; and as to all such cases the laws of the State of Arkansas

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