Ned v. Countiss

• Decision Date: 21 June 1921
• Docket Number: Case Number: 11410
• Citation: 203 P. 168,84 Okla. 138,1921 OK 244
• Parties: NED et al. v. COUNTISS et al.
• Court: Oklahoma Supreme Court

1921 OK 244

203 P. 168

84 Okla. 138

NED et al. v. COUNTISS et al.

Case Number: 11410

Supreme Court of Oklahoma

Decided: June 21, 1921

Syllabus

¶0 1. Indians--Descent of Allotments. By the provisions of section 22 of the Supplemental Choctaw-Chickasaw Agreement, approved by act of Congress July 1, 1902 (32 Stat. at L. 641), where a Choctaw Indian died subsequent to the ratification of said agreement, and before receiving his allotment of land, the lands to which such person would have been entitled if living, were allotted in his name, and descended to his heirs according to the laws of descent and distribution as provided in chapter 49 of Mansfield's Digest of the Statutes of Arkansas.

2. Same--Law Governing. The law of descent in force at the date of the certificate of allotment to a member of the Choctaw Tribe of Indians, is the governing law, and this law relates back to the death of the Indian entitled to take the allotment, and identifies the heirs as of that date, and such law should be applied as if the deceased had received title to his allotment and died seized thereof.

3. Same--Nature of Estate. The lands allotted in the name of a duly enrolled Mississippi Ohoctaw Indian, who died in August, 1903, intestate, and without issue, before receiving her allotment, must be considered as an ancestral estate, within the meaning of section 2531, Mansfield's Digest of the Statutes of Arkansas, extended over and put in force in the Indian Territory by act of Congress.

Hatchett & Semple and R. C. Drake, for plaintiffs in error.

Moore & West, for defendants in error.

NICHOLSON, J.

¶1 This suit was instituted in the district court of Jefferson county, by the plaintiffs in error, as plaintiffs below, against the defendants in error, defendants below, for the recovery of an undivided one-half of certain lands situate in Jefferson county, and being the allotment of Linnie Reed, deceased, who was a duly enrolled member of the Choctaw Tribe of Indians, enrolled as a Mississippi Choctaw. The plaintiffs allege in the third paragraph of their petition:

"* * * That they acquired title to said land by inheritance, in the following manner, to wit: Said Linnie Reed died in 1994 intestate, unmarried and without issue, leaving no father nor mother nor brothers nor sisters; that the father of said Linnie Reed was Kit Reed, and these plaintiffs inherited as heirs on the paternal side, an undivided one-fourth, respectively, of the one-half interest which passed to the paternal line; that these plaintiffs are related to Kit Reed in that they are brothers and sisters, respectively, of the said Kit Reed, and the sole heirs on the paternal side" --and, further, that they are full-blood Indians duly enrolled as such upon the approved rolls of the Choctaw Tribe of Indians as Mississippi Choctaws; that they never conveyed their one-half interest in said land and are the owners of the same, and pray judgment for possession thereof, and quieting their title thereto.

¶2 The defendants answered, pleading title in themselves by virtue of conveyances from Victoria Gardner, nee Reed, and Sillie Hawkins, who they allege were the sole heirs at law of Kit Reed, deceased, and Linnie Reed, deceased; and, further, pleaded a decree of the district court of Johnston county, in a case entitled, Victoria Gardner, nee Reed, Sillie Hawkins, minor, by her guardian, R. E. Gardner, and Sam Stout, plaintiffs, against Willie Ned, Annie Postoak, nee Ned, Sarah Johnston, nee Lewis, and Moseley Lewis, defendants, which was a cause appealed from the county court of Johnston county, from a decree determining heirship as to certain real and personal estate of Kit Reed, deceased, and by which the district court decreed Victoria Gardner, nee Reed, and Sam Stout, surviving husband of Sillie Hawkins, deceased, as the sole heirs at law of Kit Reed, deceased. To this answer, reply, consisting of a general denial, was filed. On the trial, the following agreed statement of facts was filed and submitted:

"It is hereby agreed by and between Willie Ned, Annie Postoak, Sarah Johnston, and Moseley Lewis, by their attorneys of record, Hatchett & Semple, and H. D. Countiss and D. A. Cathey, defendants, by their attorneys of record, Moore & West, that said cause may be tried upon the following stipulation of fact, to wit:

"1st. That Linnie Reed was a full-blood Mississippi Choctaw, enrolled opposite No. 1366, and was the daughter of Kit Reed, a full-blood Mississippi Choctaw, enrolled opposite No. 1037, and Victoria Reed, a full-blood Mississippi Choctaw, enrolled opposite No. . . . ; that Linnie Reed died August 8, 1903, near what is now Durwood, Marshall county, Oklahoma, leaving her father, Kit Reed, and her mother, Victoria Reed, and a maternal half sister, Sillie Hawkins.

"2nd. That Kit Reed died April 24th, 1904, near Durwood. Oklahoma; that at the time of the death of said Kit Reed, that he and Victoria Reed were living anti cohabiting together as man and wife, and that the said Victoria Reed was then pregnant by Kit Reed and that there was born a posthumous child. October 13, 1904; said child lived about six hours.

"3rd. That at the time of the death of Linnie Reed and also Kit Reed the said Linnie Reed was survived by a half sister, Sillie Hawkins, the daughter of her mother. Victoria Reed, by a former husband named Henry Hawkins; that Sillie Hawkins died September 28th, 1912.

"4th. That proof of continuous residence of Linnie Reed was furnished May 25, 1906, and approved August 4, 1906, and the land in controversy was allotted to Linnie Reed by patents approved April 16, 1909, and April 24, 1909.

"5th. That the defendants are the owners of, by purchase from Victoria Reed and Sillie Hawkins of whatever interest they had or might have acquired as heirs of the said Linnie Reed, which plaintiffs concede to be a one-half interest.

"6th. That the plaintiffs are brothers and sisters of Kit Reed and were and are the only brothers and sisters living at the time of his death, and are enrolled as Mississippi Choctaws of the full-blood.

"7th. Either party may offer such record evidence as may be desired subject to objections as to competency, relevance and materiality."

¶3 The court found generally for the defendants, and rendered judgment quieting the title in said defendant D. A. Cathey. The plaintiffs in error present two propositions of law: First. Does the law in force at the date of the selection of the allotment, or the law in force at the date of the issuance of the patent, govern as to the descent of the land of a member of the Choctaw Tribe of Indians? And second. Is the allotment of a Mississippi Choctaw who died prior to statehood, without issue, and whose selection was made prior to statehood, a new acquisition, or an ancestral estate? It appears from the agreed statement of facts that Linnie Reed was a full-blood Mississippi Choctaw Indian duly enrolled; that she died on August 8, 1903, leaving surviving her Kit Reed, her father, Victoria Reed, her mother, and Sillie Hawkins, a maternal half sister. It appears from the record that Linnie Reed was duly identified as a Mississippi Choctaw by the Commission to the Five Civilized Tribes on July 8, 1903; that on August 4, 1906, the Commissioner to the Five Civilized Tribes made an order and finding that satisfactory proof of her removal and settlement had been made, and that she was entitled to enrollment as a Mississippi Choctaw, under the provisions of section 43 of the act of Congress approved July 1, 1902 (32 Stat. at L. 651), and section 21 of the act of Congress approved April 26, 1906 (34 Stat. at L. 137), and it further appeared that allotment certificates were issued on September 20, 1906, and patents issued in April, 1909. By section 22 of the Supplemental Choctaw and Chickasaw Treaty, approved by act of Congress July 1, 1902 (32 Stat. at L. 641), it is provided:

"If any person whose name appears upon the rolls, prepared as herein provided, shall have died subsequent to the ratification of this agreement and before receiving his allotment of land, the lands to which such person would have been entitled if living shall be allotted in his name, and shall, together with his proportionate share of other tribal property, descend to his heirs according to the laws of descent and distribution as provided in chapter forty-nine of Mansfield's Digest of the Statutes of Arkansas: Provided, that the allotment thus to be made shall be selected by a duly appointed administrator or executor. If, however, such administrator or executor be not duly and expeditiously appointed, or fails to act promptly whoa appointed, or for any other cause such selection be not so made within a reasonable and practicable time, the Commission of the Five Civilized Tribes shall designate the lands thus to be allotted."

¶4 And by section 41 of the same treaty, it is provided that all persons duly identified...