Peggie Woodward v. Robert De Graffenried

• Decision Date: 14 June 1915
• Docket Number: No. 164,164
• Citation: 59 L.Ed. 1310,238 U.S. 284,35 S.Ct. 764
• Parties: PEGGIE WOODWARD, Richard Woodward, Viola Woodward, et al., Plffs. in Err., v. ROBERT P. DE GRAFFENRIED
• Court: U.S. Supreme Court

238 U.S. 284

35 S.Ct. 764

59 L.Ed. 1310

PEGGIE WOODWARD, Richard Woodward, Viola Woodward, et al., Plffs. in Err.,

v ROBERT P. DE GRAFFENRIED.

No. 164.

Submitted February 25, 1915.

Decided June 14, 1915.

Messrs. William R. Lawrence, F. W. Clements, and George S. Ramsey for plaintiffs in error.

Messrs. Thomas H. Owen, Joseph C. Stone, and Charles A. Cook for defendant in error.

Mr. Justice Pitney delivered the opinion of the court:

This was an ejectment suit, brought by defendant in error in the district court of Muskogee county, Oklahoma, to recover an undivided half interest in a tract of 160 acres of land situate in that county, formerly part of the domain of the Creek Nation in the Indian Territory. The tract was allotted to Agnes Hawes, a Creek freedwoman who, after receiving the allotment, died without issue, leaving surviving her husband, Ratus Hawes (under whom defendant in error claims), her mother, Peggie Woodward, one of the plaintiffs in error, and her father, Louis Woodward, since deceased, to whose rights the remaining plaintiffs in error have succeeded. From an agreed statement of facts it appears that Agnes Hawes was a recognized citizen of the Creek Nation, she being a negress of full blood and enrolled on the Freedmen Roll of that Nation; that she died June 29, 1900, having previously made selection of the tract in question as her allotment of land in that Nation before the Commission to the Five Civilized Tribes, and received from the Commission a certificate of allotment therefor; that after her death, and after the adoption of the Original Creek Agreement (act of March 1, 1901, 31 Stat. at L. 861, chap. 676; effective June 25, 1901, 32 Stat. at L. 1971), the Commission awarded the same land to her heirs, and thereafter, on April 1, 1904, a patent for it was duly issued to the 'Heirs of Agnes Hawes,' without naming them, which patent was in due form and approved by the Secretary of the Interior; that the patent, having been properly recorded, was accepted by her heirs; that at her death Agnes was the legal and acknowledged wife of Ratus Hawes, a noncitizen; that she left no children or grandchildren surviving her, had no children by her said husband, and was survived by him and by her parents already mentioned; and that on June 22, 1904, Ratus Hawes conveyed to plaintiff (defendant in error) an undivided half interest in the lands in question, by deed duly acknowledged and recorded in the records at Muskogee.

There was a judgment for the plaintiff, which was affirmed by the supreme court of Oklahoma (36 Okla. 81, 131 Pac. 162), and the present writ of error was allowed.

A brief additional recital should preface a statement of the questions in controversy. The date of the selection by Agnes Hawes and of the allotment to her of the tract in question is not mentioned in the record; but it must have been on or after April 1, 1899, that being the date on which the allotment office for the Creek Nation was opened at Muskogee by the Commission to the Five Civilized Tribes, as appears from their Sixth Annual Report, p. 18, referred to in the marginal note, infra. Therefore, both the allotment and the death of the allottee occurred within the period during which § 11 of the Curtis act (act of June 28, 1898, chap. 517, 30 Stat. at L. 495, 497) was in force in the Creek Nation, by the terms of which the Commission was directed, upon the completion of the citizenship roll and the survey of the lands of the tribe, to 'proceed to allot the exclusive use and occupancy of the surface of all the lands of said nation or tribe susceptible of allotment among the citizens thereof, as shown by said roll, giving to each, so far as possible, his fair and equal share thereof, considering the nature and fertility of the soil, location, and value of same,' with reservations that need not at the moment be specified.

From the facts stated it is also evident that the allotment to Agnes Hawes was made under and by virtue of this section, and therefore comes within the category of allotments confirmed by the Original Creek Agreement (act of March 1, 1901, chap. 676, § 6, 31 Stat. at L. 861, 863).

For we lay on one side, as quite untenable, the contention of defendant in error that the allotment was made not under the Curtis act, but under the Creek Agreement of February 1, 1899, which failed to become law. The principal ground of the contention is that conditions precedent to allotment, prescribed in terms or necessarily implied from § 11 of the Curtis act, had not been performed in the Creek Nation: the rolls of citizenship not having been completed, no appraisement or classification of the lands having been made for determining what lands were susceptible of allotment and for equalizing the value of allotments no selections having been approved by the Secretary of the Interior, etc. Not to mention other answers that might be made to this, it is sufficient for the present to say that the only lawful authority to allot Creek lands possessed by the Commission prior to the adoption of the Original Creek Agreement was derived from the Curtis act, and that all allotments made during the intervening period were made under instructions issued by the Secretary of the Interior with express reference to the latter act. This will be more particularly shown when we come to discuss, as we must, the proper construction of the two acts referred to, and their effect upon the title to the allotted tract. The fact that conditions precedent imposed by the Curtis act had not been performed when the Commission proceeded to make Creek allotments after its passage and prior to the Original Creek Agreement may have furnished one of the reasons for the express ratification of such allotments contained in § 6 of the Agreement; but this, of course, is far from saying that the allotments were not made under the Curtis act.

The case presented, therefore, is that of a Creek allotment selected by the citizen and made by the Dawes Commission under § 11 of that act, followed first by the death of the allottee after receiving the allotment and prior to the Original Creek Agreement, and then by action of the Commission, after ratification of that Agreement, awarding the lands to the 'heirs' of the deceased allottee, and the ultimate issue of a patent to them.

The principal question is: By what law are the beneficiaries of the allotment and patent to be determined? Plaintiffs in error contend that, by the terms of § 11 of the Curtis act, Agnes Hawes took an estate of inheritance, subject to the reservation of the minerals; that at her death this interest descended to her heirs, according to the Arkansas laws of descent, under which the husband was not an heir, and acquired no interest in the land by the curtesy, there being no child born of the marriage; and that § 6 of the Original Creek Agreement in ratifying the allotment vested an absolute title in her heirs, which related back to the date of the allotment or else to the date of her death, and carried the minerals with it. It is the contention of defendant in error, sustained by the Oklahoma courts, that the allotment to Agnes Hawes under the Curtis act did not vest in her the fee or any heritable interest; that the (equitable) fee was first vested in her 'heirs' by the provisions of the Original Creek Agreement, they taking by purchase, and not by descent; and that who should take as her 'heirs' must be determined according to the Creek laws of descent, under which the surviving husband took an undivided half interest, which passed by his deed to defendant in error.

It is not open to question that at the death of Agnes Hawes (June 29, 1900) the Arkansas law of descent was in force in the Creek Nation. This court, in a recent decision, pointed out the successive acts of legislation; culminating in §§ 26 and 28 of the Curtis act itself, by which Congress had displaced the tribal laws of descent and distribution, and substituted the Arkansas law as expressed in chapter 49 of Mansfield's Digest. Washington v. Miller, 235 U. S. 422, 424, 59 L. ed. ——, 35 Sup. Ct. Rep. 119. But, as shown in that case (p. 425), the Original Creek Agreement contained provisions which reinstated the Creek laws of descent and distribution for certain purposes affecting the allotments in that Nation. Whether they apply to the present case is a subordinate question, to be discussed in its order.

In order to determine the questions thus presented it is necessary first to ascertain the true meaning of § 11 of the Curtis act, and then to consider the pertinent provisions of the Original Creek Agreement.

In Barnett v. Way (1911) 29 Okla. 780, 119 Pac. 418, a case precisely in point with the present,—the allotment having been made under § 11 of the Curtis act and the allottee having died thereafter and before the ratification of the Original Creek Agreement,—the supreme court of Oklahoma held the rule of descent and distribution obtaining at the death of the allottee to be immaterial because she had no title in fee, legal or equitable, that could descend; and further held that by § 6 of the Original Agreement her allotment was ratified, and by § 28 was vested in her heirs, to be ascertained as to the date of her death, according to the rule of descent and distribution then in force in the Creek Nation governing the devolution of property owned by any of its deceased members at the time of the member's death. To the same effect is Divine v. Harmon, 30 Okla. 820, 121 Pac. 219. These decisions are invoked by defendant in error as establishing a rule of property. But, as the first of them was rendered only a little more than three years ago, after the present action was commenced, and less than a year before it was decided by the supreme court of Oklahoma, it seems proper that, while giving due weight to the state decisions, we should re-examine the questions upon their merits.

Upon a first attentive reading of the...