Long's Estate, In re

• Decision Date: 05 August 1952
• Docket Number: No. 34777,34777
• Citation: 249 P.2d 103,207 Okla. 259
• Parties: In re LONG'S ESTATE. LONG v. DE HANAS et al.
• Court: Oklahoma Supreme Court

Page 103

249 P.2d 103

207 Okla. 259

In re LONG'S ESTATE LONG v. DE HANAS et al.

No. 34777.

Supreme Court of Oklahoma.

Aug. 5, 1952.

Rehearing Denied Oct. 21, 1952.

Syllabus by the Court.

1. The guardianship of the Federal Government over an Indian or a person of Indian blood does not cease when the Indian becomes a citizen of the United States, but continues notwithstanding the fact that citizenship is conferred upon such Indian.

2. A restriction on alienation contained in an allotment of Indian land by trust patent under Act of Congress runs with the land and operates upon the heirs as well as upon the allottee.

3. By the provisions of 25 U.S.C.A. § 373, a will valid if approved by the Secretary of the Interior may be made by any Indian or person of Indian blood having an interest in any allotment held in Trust by the United States.

4. Section 26 of Act of Congress of March 3, 1921, extending restrictions on certain lands allotted to Quapaw Indians, restricts the lands in which the persons enumerated therein own or inherit an interest, and such restriction extends to inherited interests owned by any Indian or person of Indian blood regardless of whether such person is of Quapaw blood or of the blood of some other tribe.

Bruce B. Potter and Raymond A. Trapp, Blackwell, Homer Chandler, Salina, Kan., for petitioner.

Frank Nesbitt, Nelle Nesbitt and Robert E. Nesbitt, Miami, for respondents.

BINGAMAN, Justice.

On February 7, 1949, Lottie P. Long, hereinafter called plaintiff, filed a petition in the County Court of Ottawa County, seeking to probate a will of his deceased wife, Ruth B. DeHanas Long. The two children of Ruth B. Long by a former husband, appeared in the county court and filed a motion to dismiss the proceeding upon the ground that all property owned by the deceased was restricted and held in trust by the Department of the Interior and that the court had no jurisdiction of the estate. The motion further stated that the will presented for probate by plaintiff had been theretofore passed upon and disapproved by the Secretary of the Interior in proceedings before the Secretary in which the plaintiff was represented. Plaintiff appealed to the District Court and after hearing at which much testimony was introduced, the district court sustained the judgment of the county court and affirmed the dismissal. Plaintiff appeals.

There is little dispute over the essential facts. From the record it appears that Ruth B. Long was the daughter of a half blood Ottawa Indian mother and a white father; that she married one John Buffalo, a member of the Quapaw Tribe of Indians, who predeceased her, leaving to her as his sole heir, certain interests in restricted lands which he had inherited from his parents as members of the Quapaw Tribe of Indians; that thereafter she married one DeHanas, who was the father of her two children, defendants herein, and that the plaintiff Lottie P. Long was her fourth husband; that she obtained a divorce from Long at one time, but thereafter continued to live with him in what might be called 'common law marriage.'

At the time of her death Ruth B. Long left three wills, one dated April 24, 1936, one dated October, 1941, and one dated March 20, 1945. This last will is the will which plaintiff presented for probate. It Ruth B. Long the Secretary of the Interior, at a proceeding in which plaintiff was represented, approved the first will made by deceased and specifically disapproved the two later wills on the ground that at the time of the execution of each the deceased was incompetent to make a will. In this first will, which was approved by the Secretary of the Interior, the deceased left plaintiff a legacy of $100, which was paid to and accepted by him. The lands inherited by deceased from John Buffalo appear to have been valuable for minerals, and at the time of her death some $111,000 in cash, being her proportionate share of the accumulated sum of royalty from mining operations on said lands, was held by the Department of the Interior as restricted funds. It also appears that the deceased inherited from her mother, a member of the Ottawa Tribe, certain property including real estate, and that after the death of her mother a patent in fee to the heirs of her mother was issued by the Interior Department, thus removing all restrictions against it, and that she subsequently sold said lands.

The contentions of the parties revolved around a proper construction of Section 26, of an Act of Congress passed March 3, 1921, 41 Stat.L. p. 1248, which Act extended restrictions on certain lands allotted to citizens of the Quapaw Tribe of Indians. This Act provides that the Act of March 2, 1895, 28 Stat. 907, in so far as the same related to restrictions against alienation of allotments of lands to the Quapaw Indians be amended so as to provide that the restrictions which now exist against the alienation of lands allotted to and allotted lands inherited by certain Quapaw Indians named in the Act, 'and including any Quapaw allotted or inherited lands in which any of the said named Indians have any undivided interests, be, and the same are hereby, extended for the further and additional period of twenty-five years from the date of this Act'. The act then provided that the Secretary of the Interior might remove restrictions after he found an Indian owner to be competent to conduct his own business affairs and provided further for the leasing of the lands embraced in the Act, by the Secretary of the Interior, under such rules and regulations as prescribed by him. It appears that these restrictions were further extended in 1939, but it is conceded that whether these restrictions covered the interests of the deceased and whether the Secretary of the Interior had power to approve her will as to such lands depends upon the interpretation of the language above quoted. All of the lands in which deceased had an interest were lands in which some of the Indians named in the 1921 Act had inherited interests.

Plaintiff first contends that the child of a marriage between a white man and a woman of half Indian blood is not by birth an Indian; that Indian lands inherited by such child are freed of restrictions, and that upon the death of such child the county court has jurisdiction to administer its estate. In support of this assertion plaintiff cites Keith v. U. S., 8 Okl. 446, 58 P. 507; Halbert v. U. S. 283 U.S. 753, 51 S.Ct. 615, 75 L.Ed. 1389, and U. S. v. Hadley, C.C., 99 F. 437. But in these cases entirely different questions were presented than those involved in the instant case. In the Keith case the question was whether the child of an Indian mother and a white father, under the Act covering allotments to citizens of the Arapahoe Tribe, was entitled to an allotment and the court held he was not. Halbert v. U. S. involved a similar question and the court held that the children of a marriage between an Indian woman and a white man usually took the status of the father, but that if the wife retained tribal membership and the children were born in the tribal environment they took the status of the mother. U. S. v. Hadley was a criminal case in which a mixed blood Indian, whose father was a white man, contended that he was to be tried...