Mashunkashey v. Mashunkashey

• Decision Date: 29 September 1942
• Docket Number: Case Number: 30126
• Parties: MASHUNKASHEY v. MASHUNKASHEY et al.
• Court: Oklahoma Supreme Court

1942 OK 314

134 P.2d 976

191 Okla. 501

MASHUNKASHEY v. MASHUNKASHEY et al.

Case Number: 30126

Supreme Court of Oklahoma

Decided: September 29, 1942

Syllabus

¶0 1. INDIANS--Power to legislate respecting devolution of Indian estates reserved to federal government by Enabling Act.

Under the provisions of section 1 of the Enabling Act (34 Stat. 267), the power to legislate with respect to the devolution of Indian lands and property was reserved to the federal government.

2. SAME--Act of Congress limiting right to inherit property of Osage Indians held constitutional.

Section 7 of the Act of Congress of February 27, 1925, limiting the right to inherit the property of Osage Indians of one-half or more Indian blood to heirs of Indian blood, is a valid exercise of the legislative powers of the Congress.

3. CONSTITUTIONAL LAW--Federal legislation superseding conflicting state law.

Where there is conflict between state law and federal legislation, which is within the exclusive sphere of federal authority, the state law is superseded.

4. INDIANS--Act of Congress limiting right to inherit property of Osage Indians applies to restricted property of individual Indians.

Section 7, supra, applies to the restricted lands, moneys, and mineral interests of individual Osage Indians.

5. SAME--Sufficiency of evidence to support finding that surviving wife of decedent is not of Indian blood.

Record examined, and held, that the finding of the trial court that the surviving wife of decedent is not of Indian blood is not contrary to the clear weight of the evidence.

Appeal from District Court, Tulsa County; Oras A. Shaw, Judge.

In the matter of the estate of Charles Mashunkashey, deceased. Petition by Ben Mashunkashey to determine heirs. From adverse judgment, upon appeal to district court from county court, Margaret Mashunkashey, surviving wife, appeals. Affirmed.

N. E. McNeill and S. R. Lewis, both of Tulsa, for plaintiff in error.

Ralph A. Barney and John L. Arrington, both of Pawhuska, and Phil W. Davis, of Tulsa, for defendants in error.

OSBORN, J.

¶1 This is an appeal from a decree of the district court of Tulsa county determining the heirs of Charles Mashunkashey, a deceased Osage Indian. The appellant is Margaret Mashunkashey, surviving wife of the deceased, who will be referred to as defendant.

¶2 The proceeding originated in the county court. Ben Mashunkashey, a half brother of the deceased, filed a petition in the administration proceedings to determine the heirs of deceased alleging that he was the sole heir. Responses were filed by Pah-pu-son-tsa, grandmother of deceased, and James E. Blaine, Jr., in which they claimed the right to inherit a portion of the property for reasons not necessary to mention here. The sole issue herein presented is whether or not Margaret Mashunkashey, the surviving wife of the deceased, is an heir to his estate or any portion thereof. The county court held that she was an heir to said estate and an appeal was perfected to the district court. The district court held that although Margaret Mashunkashey was the surviving wife of decedent, she was not of Indian blood, and therefore specifically prohibited from inheriting any portion of the estate by the provisions of section 7 of the Act of Congress of February 27, 1925 (43 Stat. 1011, 25 U. S. C. A., section 331, note).

¶3 In this connection, it is not contended that there is any money or property belonging to said estate except "restricted lands, moneys and mineral interests," as used in said act, if same is applicable.

¶4 Charles Mashunkashey was a member of the Osage Tribe of Indians of the full blood. He died on June 10, 1934, possessed of considerable real and personal property including approximately 3 2/3rds headrights. Defendant and decedent were married by ceremonial marriage under license issued December 6, 1931, and lived together as husband and wife until the date of decedent's death. Decedent left no issue, no father, no mother, no full brother or sister, and no issue of any deceased brother or sister, but left a half brother, Ben Mashunkashey, plaintiff herein.

¶5 Section 7 of the Act of Congress of February 27, 1925, is as follows:

"Hereafter none but heirs of Indian blood shall inherit from those who are of one-half or more Indian blood of the Osage Tribe of Indians any right, title or interest to any restricted lands, moneys or mineral interests of the Osage Tribe: Provided, That this section shall not apply to spouses under existing marriages."

¶6 Defendant, Margaret Mashunkashey, contends that the above-quoted provision is invalid and ineffective in that the Congress, in attempting to provide for the distribution of, and the right to succession to, the estate of deceased persons, has exceeded its legislative powers. We will epitomize defendant's argument in support of this proposition, as follows:

¶7 The powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively, or to the people. Tenth Amendment, U. S. Constitution. The tenure, transfer, control, and disposition of real property are matters which rest exclusively with the state where the property lies. Sunderland v. United States, 266 U. S. 226, 45 S. Ct. 64, 69 L. Ed. 259; United States v. Fox, 94 U. S. 315, 24 L. Ed. 192; Tiger v. Slinker, 4 Fed. 2d 714, and authorities cited; Beaver v. Short, 300 Fed. 113, and authorities cited. The distribution of, and the right of succession to, the estates of deceased persons are matters exclusively of state cognizance.

¶8 Cope v. Cope, 137 U. S. 682, 11 S. Ct. 222, 33 L. Ed. 832. The title and methods of disposition of real property within the state, whether inter vivos or testamentary, are not matters placed under the control of federal authorities. United States v. Fox, supra; Beaver v. Short, supra. The title to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situated. United States v. Crosby, 7 Cranch, 115, 3 L. Ed. 287.

¶9 Plaintiffs urge that these principles are not applicable here in that the legislation involved is within a field of legislation specifically reserved to the Congress, that is, legislation with respect to the Indians, their lands and property.

¶10 Under section 8, art. 1 of the Federal Constitution, the federal government was given the power "to regulate commerce with foreign nations, among the several states, and with the Indian Tribes."

¶11 Section I of the Enabling Act (34 Stat. 267) provides:

"That the Inhabitants of all that part of the area of the United States now constituting the Territory of Oklahoma and the Indian Territory, as at present described, may adopt a Constitution and become the State of Oklahoma, as hereinafter provided: Provided, that nothing contained in the said Constitution shall be construed to limit or impair the rights of persons or property pertaining to the Indians of said Territories (so long as such rights shall remain unextinguished) or to limit or affect the authority of the Government of the United States to make any law or regulation respecting such Indians, their lands, property or other rights by treaties, agreement, law or otherwise, which it would have been competent to make if this Act had never been passed."

¶12 Section 3 of said act in part provides:

"That the people inhabiting said proposed state do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe, or nation; and that until the title to any such public land shall have been extinguished by the United States the same shall be and remain subject to the jurisdiction, disposal and control of the United States."

¶13 In section 3, art. 1, of the Constitution it was provided that:

"The people inhabiting the state do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe or nation:"

¶14 The above-quoted provisions have been construed many times by this court. In the recent case of Neal v. Travelers Ins. Co., 188 Okla. 131, 106 P.2d 811, 817, we said:

"In view of the above-quoted provisions of the Enabling Act and the acceptance thereof by the Constitutional Convention, the power to regulate and legislate with regard to the Indian citizens of Oklahoma was, by consent of the state, expressly reserved to Congress."

¶15 In the case of Scioto Oil Co. v. O'Hern, 67 Okla. 106, 169 P. 483, it was said:

"These provisions in the Enabling Act were effectual to preserve the authority of the government of the United States over the Indians, their lands, property, or other rights which it had prior to the passage of the act, and the government retained and yet retains the right to control the same which it had prior to the admission of the state, except where that right has been relinquished by Congress. Brader v. James, 49 Okla. 734, 154 P. 560. And the legislation of Congress respecting subjects within its jurisdiction derives no force from any agreement or compact with the proposed new state nor by reason of its acceptance of such enactment as one of the terms of its admission, but is effectual solely because the power of Congress extended to the subject, and such legislation was lawfully within congressional authority. Coyle v. Smith, 221 U. S. 559, 31 S. Ct. 688, 55 L. Ed. 853; Ex parte Webb, 225 U. S. 663, 32 S. Ct. 769, 56 L. Ed. 1248. . .

"It is well settled that the state has no control over those matters which are within the exclusive sphere of federal jurisdiction, and when said laws conflict with any law of Congress upon the subject, the state law is superseded. Western Union Tel. Co. v. Bank of Spencer, 53 Okla. 398, 156 P. 1175."

¶16 In the case of Brader v. James, 49 Okla. 734...