Marlin v. Lewallen, 40

• Decision Date: 20 February 1928
• Docket Number: No. 40,40
• Citation: 48 S.Ct. 248,276 U.S. 58,72 L.Ed. 467
• Parties: MARLIN v. LEWALLEN et al
• Court: U.S. Supreme Court

276 U.S. 58

48 S.Ct. 248

72 L.Ed. 467

MARLIN

v LEWALLEN et al.

No. 40.

Argued Oct. 18, 1928.

Decided Feb. 20, 1928.

Messrs. Claude A. Niles, of Checotah, Okl., and S. P. Freeling, of Oklahoma City, Okl., for petitioner.

Mr. Harry B. Parris, of Eufaula, Okl., for respondents.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This case presents a controverted claim to an estate by the curtesy in lands allowed and patented to a Creek woman in the distribution of the tribal property. The district court of the county where the lands lay rejected the claim; but on appeal to the Supreme Court of the state the claim was upheld, three judges dissenting. Condren v. Marlin, 113 Okl. 259, 241 P. 826.

The lands were allotted and patented under two agreements between the United States and the Creek Tribe which will be described later on. The allottee was a mar- ried woman of Creek blood and was enrolled as a member of the tribe. Her husband was a white man without tribal enrollment or membership. She died intestate November 29, 1904, while seized of the lands, and was survived by her husband, by issue of her marriage with him and by issue of a former marriage, all of the issue being Creeks and capable of inheriting the lands.

Two questions are pressed on our attention: Did the laws then applicable to the Creek lands provide for an estate by the curtesy? If so, did they extend it to a husband who was not a Creek where there were Creek descendants capable of taking the full title?

For many years the Creeks maintained a government of their own, with executive, legislative and judicial branches. They were located in the Indian Territory and occupied a large district which belonged to the tribe as a community, not to the members severally or as tenants in common. The situation was the same with the Cherokees, Choctaws, Chickasaws, and Seminoles, who with the Creeks were known as the Five Civilized Tribes. All were under the guardianship of the United States and within territory over which it had plenary jurisdiction, thus enabling it to exercise full control over them and their districts whenever it perceived a need therefor.¹ In the beginning and for a long period, during which the districts were widely separated from white communities, the United States refrained in the main from exerting its power of control and left much to the tribal governments. Accordingly the tribes framed and put in force various laws which they regarded as adapted to their situations, including laws purporting to regulate descent and distribution² and to exclude persons who were not members from sharing in tribal lands or funds.³ In time the tribes came, through advancing settlements, to be surrounded by a large and increasing white population, many of the whites entering their districts and living there-some as tenant farmers, stock growers and merchants, and others as mere adventurers. The United States then perceived a need for making a larger use of its power.⁴ What it did in that regard has a bearing on the questions before stated.

By an act of March 1, 1889, 25 Stat. 783, c. 333, a special court was established for the Indian Territory and given jurisdiction of many offenses against the United States and of certain civil cases where not wholly between persons of Indian blood. By an act of May 2, 1890, §§ 29-31, 26 Stat. 93, c. 182, that jurisdiction was enlarged and several general statutes of the state of Arkansas, published in Mansfield's Digest, were put in force in the Territory so far as not locally inapplicable or in conflict with the laws of Congress; but these provisions were restricted by others to the effect that the courts of each tribe should retain exclusive jurisdiction of all cases wholly between members of the tribe, and that the adopted Arkansas statutes should not apply to such cases. By an act of March 3, 1893, 27 Stat. 645, c. 209, § 16, a Commission to the Five Civilized Tribes was created and specially authorized to conduct negotiations with each of the tribes looking to the allotment of a part of its lands among its members, to some appropriate disposal of the remaining lands and to further adjustments preparatory to the dissolution of the tribe. By an act of June 7, 1897, 30 Stat. 83, 84, c. 3, the special court was given exclusive jurisdiction of all future cases, civil and criminal, and the laws of the United States and the state of Arkansas in force in the Territory were made applicable to 'all persons therein, irrespective of race,' but with the qualification that any agreement negotiated by the Commission with any of the Five Civilized Tribes, when ratified, should supersede as to such tribe any conflicting provision in the act. By an act of June 28, 1898, 30 Stat. 495, c. 517 §§ 26 and 28, the enforcement of tribal laws in the special court was forbidden and the tribal courts were abolished.

Thus the congressional enactments gradually came to the point where they displaced the tribal laws and put in force in the Territory a body of laws adopted from the statutes of Arkansas and intended to reach Indians as well as white persons, except as they might be inapplicable in particular situations or might be superseded as to any of the Five Civilized Tribes by future agreements.

Of the adopted Arkansas laws, chapters 20, 49, and 104 are all that need be noticed. Chapter 20 made the common law, as far as applicable, the rule of decision where not changed by statute. Chapter 49 provided for the descent and distribution of property of intestates. Chapter 104 enabled married women to control, convey and devise their real property independently of their husbands. When first enacted, chapter 20 was regarded as recognizing the common-law estate by the curtesy with both its initiate and consummate gradations. But after the enactment of chapter 104, which was a later statute, chapter 20 was construed by reason thereof as no longer recognizing curtesy initiate, which at common law vested during coverture, and as recognizing curtesy consummate only where the wife died seized of the land and intestate. Neelly v. Lancaster, 47 Ark. 175, 1 S. W. 66, 58 Am. Rep. 752. Both chapters were adopted for the Indian Territory after that construction had become well settled; so, according to a familiar rule, the adoption included that construction. Joines v. Pat- terson, 274 U. S. 544, 47 S. Ct. 706, 71 L. Ed. 1194; Adkins v. Arnold, 235 U. S. 417, 421, 35 S. Ct. 118, 59 L. Ed. 294; Gidney v. Chappel, 241 U. S. 99, 102, 36 S. Ct. 492, 60 L. Ed. 910.

In 1900 the Commission succeeded in negotiating with representatives of the Creek tribe an agreement such as was intended by the Acts of March 3, 1893, and June 7, 1897. That agreement-known as the Original Creek Agreement-was ratified by Congress March 1, 1901, 31 Stat. 861, c. 676, and became effective May 25, 1901, on its ratification by the tribal council. 32 Stat. 1971. A modifying agreement-known as the Supplemental Creek Agreement-was then negotiated. It was ratified by Congress June 30, 1902, 32 Stat. 500, c. 1323, and became effective August 8, 1902, through its ratification by the tribal council and the proclamation of that fact by the President. 32 Stat. 2021.

The Agreements, taken together, embodied an elaborate plan for terminating the tribal relation and converting the tribal ownership into individual ownership, and also many incidental provisions controlling descent and distribution, fixing exemptions from taxation, preventing improvident alienation and protecting the individual allottees and their heirs in the enjoyment of the property. It is apparent from the terms and scope of the agreements that they were in the nature of a comprehensive treaty rather than a mere supplement to the fragmentary legislation which preceded them; and it is apparent from their repealing provisions-section 41 of one and section 20 of the other-that they were to have full effect regardless of any inconsistency with that legislation, as was contemplated in the Act of June 7, 1897, which extended the adopted Arkansas laws to Indians.

The Arkansas law of curtesy was among the laws so extended. But that did not make it presently applicable to the Creek lands, they being then in tribal ownership. Such applicability would come only if and when indi- vidual ownership was substituted for tribal ownership. The Agreements provided for such a change, and had they stopped there that law would have become applicable. But instead of stopping there they proceeded to deal, among other things, with the taxation, alienation and devolution of the lands. Whether these further provisions in effect excluded curtesy under that law is one of the questions in this case. Of course it is a question of construction.

In taking up this question it must be remembered that the Agreements were between the United States and a dependent Indian tribe then under its guardianship, and therefore that they must be construed, 'not according to the technical meaning of their words to learned lawyers, but according to the sense in which they would naturally be understood by the Indians.'⁵

Neither Agreement contained any mention of curtesy. But they did provide to whom the land should go on the owner's death intestate. The Original Agreement, in sections 7 and 28, declared that it should 'descend to his heirs' according to the laws of descent and distribution of the tribe. Washington v. Miller, 235 U. S. 422, 425, 35 S. Ct. 119, 59 L. Ed. 295. Curtesy was not recognized in those laws. They were crude and soon were found to be unsuited to the new situation. The Supplemental Agreement, in section 6, put them aside and substituted chapter 49 of Mansfield's Digest, with two provisos declaring that members of the tribe and their Creek descendants, where there were such among those coming within the terms of that...