Scott v. Epperson

• Decision Date: 07 January 1930
• Docket Number: Case Number: 18811
• Citation: 284 P. 19,141 Okla. 41,1930 OK 15
• Parties: SCOTT et al. v. EPPERSON et al.
• Court: Oklahoma Supreme Court

1930 OK 15

284 P. 19

141 Okla. 41

SCOTT et al. v. EPPERSON et al.

Case Number: 18811

Supreme Court of Oklahoma

Decided: January 7, 1930

Syllabus

¶0 1. Marriage--Marriage Between Full-Blood Creek Indian and Person of Negro Blood in Indian Territory in 1903 Held Valid.

Mansfield's Digest of the Laws of Arkansas, which was in force over the Indian Territory prior to statehood, contained no prohibition against marriage between a full-blood Creek Indian and a person having one-fourth negro blood, and a marriage entered into between such persons in the Indian Territory in 1903 was a valid marriage.

2. Same--Validity of Marriage not Affected by Oklahoma Statute.

Section 7499, C. O. S. 1921, declaring unlawful marriage between a person of African descent and a person not of African descent is a declaration of the policy of the state to protect society against serious social evils, but it does not affect a marriage status, legally created within the Indian Territory prior to statehood, between a full-blood Creek Indian and a person of African descent.

Commissioners' Opinion, Division No. 2.

Error from District Court, Seminole County; George C. Crump, Judge.

Action by Lillian Scott et al., against A. B. Epperson et al. A demurrer to plaintiffs' petition was sustained, and plaintiffs appeal. Affirmed.

Orr & Woodford, for plaintiffs in error.

Park Wyatt, for defendant in error A B. Epperson.

JEFFREY, C.

¶1 Lillian, Moses, Norah, Willmott and Tiger Scott, as plaintiffs below, filed their petition against A. B. Epperson, Herman Shephard, J.C. Fore, O. Brixley, M. F. Mainard, Jr., Doss-McAlester Royalty Company, F. G. Searight, W. A. Mason, R. H. Todd, G. E. Rogers, Mrs. Charles Malone, J. W. Dana, Tecumseh National Bank, and Equitable Farm Mortgage Company, in which they ask for possession of an undivided one-third interest in the S. 1/2 of the N.E. 1/4 of section 33, township 10 north, range 6 east in Seminole county, Okla., and to have canceled certain instruments of conveyance affecting the title to said interest in the land. The petition alleged that Lucy Grayson, an adopted citizen of the Seminole Tribe of Indians and enrolled opposite Roll No. 1530, was originally allotted the above described 80 acres of land as her surplus allotment of the Seminole tribal lands; that she was of one-fourth negro blood; that, on December 18, 1903, she and James Scott, a full-blood Creek Indian, both being residents of what was then Indian Territory, procured a marriage license, and entered into a ceremonial marriage; that they lived together as husband and wife until death of Lucy Grayson in 1916; and that of said pretended marriage these plaintiffs are the only sons and daughters. The petition further alleges that upon the death of Lucy Grayson, James Scott, as her pretended heir at law, conveyed an undivided one-third interest in and to said land, which was later approved by the probate court having jurisdiction of the settlement of her estate. The petition further alleges the pretended marriage between Lucy Grayson and James Scott was illegal and void, and that plaintiffs were the sole heirs of said Lucy Grayson, and were entitled to take the entire interest in and to said land. The interest of all defendants appears to depend upon the validity of the conveyance by James Scott. The several defendants filed general demurrers to the petition, which were by the court sustained. Plaintiffs elected to stand upon the petition, and the same was by the court dismissed. From the order dismissing the petition, plaintiffs have appealed, and here complain of the court's ruling on the demurrers.

¶2 The right of James Scott to inherit an undivided one-third interest in the land upon the death of Lucy Grayson can only be sustained by reason of a lawful relation of husband and wife existing between them at the time of the death of Lucy Grayson. This is the only question presented by this appeal. It is contended by counsel for plaintiffs that by reason of the fact that James Scott, under the Constitution and laws of this state, was a white man, and Lucy Grayson a negro, the relation of husband and wife could not be maintained, and that James Scott could not inherit upon her death.

¶3 Since Mansfield's Digest of the Laws of Arkansas was in force over the Indian Territory, by reason of the Curtis Act of 1898, at the time of marriage between the parties, we think it proper to first determine whether or not there were any inhibitions against the marriage at that time in the place of their domicile. The particular provision governing marriage between the races in the Indian Territory in 1903 was section 4593 of chapter 103, Mansfield's Digest of the Laws of Arkansas, which is as follows:

"All marriages of white persons with negroes or mulattoes are declared to be illegal and void."

¶4 The question then is, does the expression "white persons" include a full-blood member of the Creek Tribe of Indians? When the above provision of the statutes was adopted by the Legislature of Arkansas, there were no Indian tribes domiciled within the state of Arkansas, and there was no occasion to classify them or to adopt legislation relative to them. It could hardly be said that the Legislature of Arkansas had in mind the matter of controlling the domestic relations of a class or race of people who were not inhabitants of that state. Indians were and are generally referred to as such, or as red men. We cannot presume that they are included within the term "white persons," but must presume that the expression was used in its ordinary acceptation, which, according to the lexicographers, means persons having a light complexion, as members of the Caucasian race; opposed to negro, also the red, yellow and brown races. We are of the opinion that there was no inhibition against the marriage of Lucy Grayson, who was of African descent, and James Scott, a full-blood Indian, in the Indian Territory in 1903; and that the marriage between them was a valid subsisting marriage upon the advent of statehood.

¶5 But it is contended that even though James Scott and Lucy Grayson were legally married in 1903, the marriage relation could not be maintained between them after statehood by reason of the applicable provisions of the statutes and Constitution, which were put in force over the Indian Territory at statehood. Section 11 of art. 23 of the Constitution provides that the words, "colored, colored race,...