Okla. Land Co. v. Thomas

• Decision Date: 20 August 1912
• Docket Number: Case Number: 1882
• Citation: 34 Okla. 681,1912 OK 547,127 P. 8
• Parties: OKLAHOMA LAND CO. et al. v. THOMAS et al.
• Court: Oklahoma Supreme Court

1912 OK 547

127 P. 8

34 Okla. 681

OKLAHOMA LAND CO. et al. v. THOMAS et al.

Case Number: 1882

Supreme Court of Oklahoma

Decided: August 20, 1912

Syllabus

¶0 1. INDIANS -- Domestic Affairs -- Intercourse Between Sexes--Customs and Usages. Prior to the dissolution of the tribal government of the Creek Nation, the United States government expressly recognized the right of the Creek Indians to regulate their own domestic affairs, and to control the intercourse between the sexes by their own customs and usages.

2. MARRIAGE -- Indian Customs -- Validity--Children--Legitimization. Marriages by Freedmen citizens of the Creek Nation residing therein, contracted according to the usages and customs of the tribe of which they became members, during the period that the tribal relations existed, and were recognized by the United States government, will be considered valid in the courts of this state, and the children of such marriage will be regarded as legitimate.

3. SAME--Plural Marriages. Plural marriages, if ever authorized by the customs and usages of the Creeks, were thereafter expressly prohibited and forbidden by the act of the Creek Council, passed October 22, 1881.

4. SAME--Federal Statutes--Application. Neither the act of Congress of July 1, 1862 (chapter 126, 12 St. at L. 501), the amendatory act of March 22, 1882 (chapter 47, 22 St. at L. 30 [U. S. Comp. St. 1901, p. 3633]), or the act of March 3, 1887 (chapter 397, 24 St. at L. 635 [U. S. Comp. St. 1901, p. 3635]), in relation to polygamy and unlawful cohabitation, was ever in force in the Creek Nation in the Indian Territory, among the members of said tribe, who intermarried according to the tribal usages and customs, and while the tribal relations were maintained and recognized by the United States government.

5. INDIANS--Property--Descent--Creek Indians. Section 1 of article 2 of chapter 12 of the Laws of the Muskogee (Creek) Nation, and section 258 of chapter 14 of the Laws of said Nation, as compiled and codified by A. P. McKellop, under act of October 15, 1892, confer upon an illegitimate child the right to share in the estate of the putative father who had recognized such child as his own, and did not give to the brothers and sisters of the half blood of such legitimated child the right to share in its estate with a sister of the whole blood; the father having died prior to the death of such child.

6. SAME--Inheritance From Father. Said acts of the Creek Council do not render such child capable of inheriting as the legal representative of such father, but only legitimatizes it as respects the father.

7.INDIANS--Usages and Customs--Evidence. Testimony tending to prove the laws, usages, and customs of the Creek Nation, with regard to the marriage relation and the legitimacy of the children of such marriages, and their consequent legal status as heirs, during the period in question, held, competent, and that it was error to exclude such testimony, if otherwise competent.

N. A. Gibson and H. C. Thurman, for plaintiffs in error.

Horace Speed, Robert F. Blair, and Charles G. Watts, for defendants in error.

SHARP, C.

¶1 This action involves the title to the surplus allotment of Lucretia Scott, a freedman citizen of the Creek Nation. The plaintiffs below, hereinafter referred to as plaintiffs, claim title by deeds of conveyance as follows: Warranty deed to 80 acres of said land from Ellen Johnson, since deceased, and Robert Johnson, her husband, the said Ellen Johnson, formerly Ellen Scott, being the alleged heir at law of her deceased sister, Lucretia Scott; and by last will and testament, duly probated, of said Ellen Johnson, deceased, who devised her remaining interest in the estate of her deceased sister to her husband, Robert Johnson, who by subsequent deed, after the due probation of said last will and testament, conveyed to the plaintiffs the remaining interest in said 122 acres of land. The plaintiffs in error, hereinafter referred to as defendants, claim title to said lands by warranty deeds executed by Walter Scott, Sammie Scott, Tom Scott, Letha Guess (nee Scott), Tackie Scott, Butcher Scott, and Peter Scott, whom they allege were the brothers and sisters of Lucretia Scott, and from whom they inherited the lands in controversy. Plaintiffs, however, claim that Lucretia Scott and Ellen Johnson were the illegitimate daughters of Malissa Gregory, nee Bruner, deceased, who was in her lifetime a duly enrolled freedman citizen of the Creek Nation. While the answer of the defendants put in issue the question whether Ellen Johnson obtained any rights in the estate of Lucretia Scott, it is admitted in this court that said Ellen Johnson succeeded to a one-seventh interest in the said estate, and claimed that the other six-sevenths passed to the grantors of defendant Oklahoma Land Company. These grantors, save Peter, were the children of Nellie Scott, nee Grayson, and Dixon Scott. Nellie and Dixon were married at the Old Agency by Rev. John Kernal, December 24, 1877, in accordance, as claimed by plaintiffs, with the customs and laws of the Creek Nation. There is direct evidence tending to show that Dixon and Nellie lived together as husband and wife until his death in March, either in 1891 or 1892. Ellen and Lucretia (or "Tekie" Scott) were the children of Malissa Bruner. Ellen was born January 10, 1888, and was about eighteen months older than Lucretia. These children took the names of their reputed father, Dixon Scott. On the part of plaintiffs it was contended that Ellen and Lucreia were the bastard children of Malissa Bruner, while the defendants contended that, under the customs, and usages of the Muskogee or Creek Nation, Malissa, the mother of said children, was a lawful wife of Dixon Scott, and that Lucretia having died unmarried, without issue, and having left surviving her no father or: mother, her estate would descend to the brothers and sisters of the half-blood equally with those of the whole blood in the same degree. It was further contended on the part of the defendants that, independent of the question of the marriage of Malissa to Dixon, the latter having during his lifetime recognized Ellen and Lucretia as his offspring, said children, even though illegitimate at their birth, were by such recognition for all purposes legitimated, and their status became the same as if born in lawful wedlock. We have, therefore, the two questions to consider: (1) Was Malissa, according to the customs and usages of the Muskogee (Creek) Nation, a lawful wife of Dixon; (2) the legal effect that would follow the reputed father's parental recognition. The first of these questions involves various considerations. Defendants contend: That, at the time of the accrual of the rights of their grantors, the status of the parties, their property rights, and all civil rights and duties, were governed and controlled by the usages, customs, and laws of the Muskogee (Creek) Nation of Indians, and that the first written law on the subject of marriage was passed by the Creek National Council, and approved October 22, 1881. The provisions of this statute here applicable are as follows:

"Section 308. From and after the passage of this act, all marriages between citizens, who are now living together as man and wife, are hereby legalized.

"Sec. 309. No new marriage shall be contracted whilst either party has a husband or wife living, nor between parties who are nearer of kin than the third degree."--That prior to the passage of said act, according to the usages and customs of the Creek people, marriage could be consummated either with or without any formal ceremony, and that when a man and woman commenced cohabiting together they were deemed man and wife, and that at the time it was customary for a man to cohabit with two or more women, all of whom were considered as his wives, and that the children of such marriages were considered the legitimate offspring of the father to all intents and purposes, as if there had been but one wife. The first section mentioned legalized former marriages between citizens at the time living together as man and wife, while the latter section prohibits the contracting of new marriages while either party has a living husband or wife. Other provisions of chapter 23, of which the sections set out form a part, authorize the dissolution of the marriage ties by divorce proceedings in the tribal district courts, so that the latter section, being construed in connection with that which follows, was doubtless intended to apply only to cases where the husband or wife, as the case might be, had a living undivorced husband or wife. It is urged by plaintiffs in error that this act was a recognition on the part of the National Council that there existed a custom among the Creek people that permitted plural or polygamous marriages. The question is one of importance. The baneful influence of polygamy upon society, and upon the home, as an existing institution, is not involved. If such was the custom among the Creek people, it is now obsolete except in so far as it may have to do with the devolution of titles in what is hoped may be a limited number of cases. The relationship, whatever it was, that existed between Dixon and Malissa, was one that was governed by the usages, customs, and laws of the Creek people.

¶2 In article 2 of the treaty between the United States and the Muskogee Nation, concluded June 14, 1866 (14 St. at L. 785), it was provided:

"And inasmuch as there are among the Creeks many persons of African descent, who have no interest in the soil, it is stipulated that hereafter these persons lawfully residing in said Creek country under their laws and usages, or who have been thus residing in said country, and may return within one year from the ratification of this treaty, and their descendants and such others of the same race as may be permitted by the laws of the said nation to settle within the limits of the jurisdiction of the Creek Nation as

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