Moore

• Citation: 83 P. 400,72 Kan. 169
• Decision Date: 11 November 1905
• Docket Number: 14,194
• Parties: J. P. MOORE, as Administrator, etc., v. NAH-CON-BE et al
• Court: Kansas Supreme Court

83 P. 400

72 Kan. 169

J. P. MOORE, as Administrator, etc., v. NAH-CON-BE et al

No. 14,194

Supreme Court of Kansas

November 11, 1905

Decided. July, 1905.

Error from Jackson district court; MARSHALL GEPHART, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT--Order of Revivor--Regularity Presumed. In the absence of any showing to the contrary an order of revivor made by the district court will be presumed by this court to have been properly and legally made.

2. INDIANS--Allotment of Lands--Citizenship. When lands composing an Indian reservation have been allotted and patented in severalty among the members of the band or tribe of Indians occupying such lands, each and every allottee becomes a citizen of the state wherein such reservation is located, and subject to the laws thereof.

3. INDIANS--Tribal Customs--Marriage--Divorce. A marriage or divorce between members of an Indian tribe, valid under the rules and customs of such tribe, will be recognized and enforced by the courts of this state; but a marriage or divorce between Indians after they become citizens of this state must be in compliance with the laws of this state.

Crane & Woodburn Bros., for plaintiff in error.

J. A Rokes, for defendants in error.

GRAVES J. All the Justices concurring.

OPINION

GRAVES, J.

This suit was commenced in the district court of Jackson county on May 2, 1903, to partition property belonging to the estate of Shough-ne-gish-go-quah, deceased. The plaintiff, Wa-me-go, and the defendant, Nah-con-be, alias Henry Clay Bear, each claimed to have been the legal husband of the deceased at the time of her death, and therefore entitled to one-half of her estate. This claim constitutes the principal question in this case. To determine this dispute it is necessary to consider the following facts: Prior to February 8, 1887, Wa-me-go, who commenced this suit, and all the other parties named herein, were members of the Prairie band of the Pottawatomie tribe of Indians, and resided on the diminished Pottawatomie reservation, in Jackson county, Kansas. By an established custom among these Indians marriage is regarded as a relation which may be assumed or dissolved at the pleasure of the parties thereto. No formal contract or ceremony is essential -- a mere mating and cohabitation as husband and wife constitute marriage. This important relation may by the same custom be terminated whenever it becomes tiresome, or when for any reason a change is desired. Separation by mutual consent is equivalent to an absolute divorce, and the parties are thereafter free to form other marital alliances, as may best suit their pleasure or convenience.

In accordance with this custom Wa-me-go and Shough-ne-gish-go-quah were married, and became the parents of two sons, George and Henry Wa-me-go. While they were living together as husband and wife the lands of the reservation were allotted among the Indian occupants thereof, and patents were duly issued and delivered in accordance with such allotment, whereby the allottees became the owners in severalty of the lands allotted to them respectively. By such allotment each of the parties named herein became the owner in severalty of a part of the land so allotted, and Shough-ne-gish-go-quah became the owner of the land in controversy.

After this allotment was completed, and patents had been duly issued and delivered to each of the above mentioned allottees in compliance with the provisions of chapter 119 of volume 24 of the United States Statutes at Large (page 388), Wa-me-go and Shough-ne-gish-go-quah, upon the supposition that they were still living under the tribal customs, as formerly, separated and ceased to live together as husband and wife, and each again married, in accordance with the tribal custom. Thereafter Shough-ne-gish-go-quah and the defendant, Nah-con-be, alias Henry Clay Bear, lived together as husband and wife, and continued so to cohabit until her death, which occurred August 2, 1900.

The separation of the plaintiff and Shough-ne-gish-go-quah, and their subsequent marital relations as hereinbefore stated, took place by virtue of the Indian custom, and had no other sanction or authority. Afterward George Wa-me-go died, leaving his parents, both of whom were then living, as his sole heirs at law.

After the trial in the district court, and after the case-made had been settled and signed, Wa-me-go died, and the suit was revived in the name of J. P. Moore, administrator of the estate of Wa-me-go, who brings the case here, joining Henry Wa-me-go as a defendant in error.

Defendant in error Nah-con-be has filed a motion to dismiss the petition in error for the reason that the subject of the suit appears to be real estate, in which an administrator has no interest. Upon this motion the plaintiff in error claims that after the final decree in the district court, and before the order of revivor was made, all the parties agreed that the lands in controversy should be sold and the proceeds placed in the hands of the United States Indian agent until the final decree was entered in the case, and that then such proceeds should be disposed of in accordance with such final decree; and some evidence (including a conveyance of...