Smith v. Murray (In re Smith's Estate)

• Decision Date: 08 October 1940
• Docket Number: Case Number: 28542
• Citation: 107 P.2d 188,188 Okla. 158,1940 OK 419
• Parties: In re SMITH'S ESTATE. SMITH v. MURRAY et al.
• Court: Oklahoma Supreme Court

1940 OK 419

107 P.2d 188

188 Okla. 158

In re SMITH'S ESTATE.

Case Number: 28542

Supreme Court of Oklahoma

Decided: October 8, 1940

Syllabus

¶0 1. INDIANS--Evidence sustaining finding that surviving wife of Osage allottee is not of Indian blood entitling her to inherit under federal act.

The finding of the trial court that the surviving wife of a deceased Osage allottee is not of Indian blood held not to be against the clear weight of the evidence.

2. CONSTITUTIONAL LAW--"Due process" and "equal protection of the laws"--Province of Legislature to determine who shall inherit.

The prospect of inheritance does not constitute a vested right and the regulation and determination of who shall inherit is peculiarly within the province of the legislative branch of government. Its action on the subject does not offend the constitutional requirements of "due process" and "equal protection of the law" unless it is so obviously arbitrary and unreasonable as to be beyond the pale of governmental authority.

3. SAME--INDIANS--Federal act limiting inheritance of restricted property of Osage Indians to persons of Indian blood held not to violate 5th Amend. U. S. Const.

Section 7 of the Act of Congress of February 27, 1925, limiting the inheritance of restricted lands, moneys or mineral interests, of members of the Osage Tribe of one-half or more Indian blood to persons of Indian blood held not to transcend the constitutional limitations contained in the Fifth Amendment of the Constitution of the United States.

Appeal from District Court, Osage County; Jesse T. Worten, Judge.

In the matter of the estate of Robert Smith, deceased Osage Allottee No. 779. From judgment on the issue of heirship against Juanita Wilson Smith and favorable to Mary Smith Murray, Osage Allottee No. 781, et al., the former appeals. Affirmed.

Bailey E. Bell, of Tulsa, and J. Corbett Cornett, of Pawhuska, for plaintiff in error.

Charles R. Gray and W. N. Palmer, both of Pawhuska, and G. K. Sutherland, of Hominy, for defendants in error.

DAVISON, J.

¶1 The first question to be determined in this case is whether Juanita Wilson Smith, the surviving wife of Robert Smith, deceased, a fullblood restricted Osage Indian allottee, is of Indian blood and entitled to inherit a portion of his estate as one of his heirs at law. Juanita Wilson Smith and Robert Smith were married on the 11th day of July, 1932, subsequent to the passage of the Act of Congress of February 27, 1925, 43 Stat. at L. 1008 (25 U.S.C.A. 331), section 7 of which prohibits inheritance by persons not of Indian blood from those of one-half or more Indian blood of the Osage Tribe, except spouses of then existing marriages.

¶2 The case originated in the county court of Osage county, which decided as a matter of fact that the surviving wife was a white woman and not of Indian blood, and therefore not entitled to inherit. The case was appealed to the district court of Osage county, and the same conclusion was reached by that court.

¶3 On appeal to this court plaintiff in error (Juanita Wilson Smith) first complains that:

"The evidence does not justify the finding that Juanita Wilson Smith is not of Indian blood and not entitled to share in this estate as an heir at law."

¶4 In determining the merits of this finding a review and analysis of the evidence produced by the parties has been made. The record is voluminous, and we shall therefore only epitomize a portion of the important features.

¶5 Juanita Wilson Smith claims to be of Indian blood of the Cherokee Tribe. She attributes her Indian blood to her paternal ancestors, claiming that her great grandfather, Bartholomew Guinn, commonly known as "Bat" Guinn, was of Cherokee Indian blood. The oral evidence on the part of plaintiff in error is that Bat was reputed to be of Indian blood and that he claimed Indian blood, and that there was a family history or tradition of Indian blood.

¶6 On the part of defendants in error, who are brothers and sisters of the deceased, Robert Smith, the evidence is that Bat was a white man, reputed to be such, and that his brother, Asa, and his sister, Nancy, were white, and that there was no tradition or history of Indian blood in the Guinn family, and that Bat did not claim Indian blood when he first came to the Cherokee Nation. Other testimony was offered by defendants in error to the effect that none of the Guinn family were ever enrolled as Cherokee Indians, and that on several different occasions various members of the Guinn family, including Bat, attempted to be placed on the Cherokee rolls for the purpose of obtaining the benefits following such enrollment, and that those attempts always failed with the exception that an order was made in 1871 by Judge Vann, who was then Chief

¶7 Justice of the Supreme Court of the Cherokee Nation, certifying that Neurana Mitchell, who was a sister of Bat, was of Cherokee blood. Years thereafter, this certificate and order was found and held to be fraudulent and revoked by a United States court. Considerable evidence was offered by plaintiff in error to explain the denial of such enrollment to the Guinns who had applied for enrollment, and to explain that the revocation of the certificate to Neurana Mitchell was made upon technical and jurisdictional grounds and not by reason that she was not of Cherokee Indian blood.

¶8 Members of the Guinn family testified for both parties relative to statements of other kinsfolk of the Guinns pertaining to the statements made by various members of the Guinn family as to whether the members of the family claimed to be of Indian descent and as to tradition of Indian blood in the family. This testimony is in conflict. The testimony of these witnesses as to the looks and habits of the Guinn family as to Indian characteristics is also in conflict.

¶9 Other testimony was offered by persons who had for many years lived in that part of Tennessee where a part of the Guinn family had lived before moving to the Indian Territory. A part of this testimony is to the effect that certain members of the Guinn family continued to live in Tennessee and own land in said state after 1835, when the treaty between the government and the Indians to remove all of the Cherokees from Tennessee, Georgia, and North Carolina to the Indian Territory was made, and that the last part of the Cherokees was moved out of those states by the United States Army in 1839, under the provisions of the treaty of 1835. That Almon Guinn, father of Bat, was permitted to remain in Tennessee, and in 1840, when the land in the Ocoee district was opened exclusively to white settlers, Almon and his brother Joshua were permitted to file and enter. Other testimony, however, was to the effect that if an Indian was less than a half-blood, he could remain and take land.

¶10 The evidence is in conflict as to whether the Guinns were considered as being of Indian blood, and as to whether they had the reputation of being Indians.

¶11 We have not attempted to review or analyze in this opinion the entire evidence as reflected by the record. However, we have read and studied the record, together with the well-prepared briefs presented by the attorneys. From our examination of the entire record, we are impelled to conclude that the finding of the trial court that Juanita Wilson Smith is not possessed of Indian blood is not against the clear weight of the evidence. On this question we approve the finding of the trial court. In re Noel's Heirship, 156 Okla. 177, 10 P.2d 259; In re Miller's Estate, 182 Okla. 534, 78 P.2d 819; Thompson v. Thompson, 177 Okla. 437, 60 P.2d 615; In re Hamm's Estate, 186 Okla. 610, 99 P.2d 895.

¶12 Had it been satisfactorily proven that plaintiff in error was of Indian blood, regardless of the quantum thereof, she would have been permitted, under the law, to recover in this case, assuming this was the only question involved. In re Martin's Estate, 183 Okla. 177, 80 P.2d 561; In re Hamm's Estate, supra. This would be equally true even though plaintiff in error were of Cherokee Indian blood and not of Osage Indian blood. In re Thompson's Estate, 179 Okla. 240, 65 P.2d 442; In re Hamm's Estate, supra.

¶13 It is next contended by plaintiff in error that the Act of Congress of February 27, 1925, supra, is unconstitutional in that it is repugnant to the Fifth Amendment to the Constitution of the United States.

¶14 In connection with this contention reliance is placed upon the Fifth Amendment to the Constitution of the United States, which in common with the other nine of the first ten amendments to that Constitution constitute the Bill of Rights, and in common with the other provisions of the first ten amendments (or according to some authorities, the first eight amendments) comprehend limitations upon the powers of the Federal Government as distinguished from the governments of the several states. 11 Am. Jur. 1095, par. 310.

¶15 However, as counsel for the plaintiff in error point out, there is an analogy between the provisions of the Fifth Amendment and the Fourteenth Amendment to the Federal Constitution which renders them comparable in many respects. The latter applies to and restricts the governmental authority of the several states and its requirements of "due process of law" and equal protection of the laws" as applied to the states find their express or implied counterpart in the Fifth Amendment, which applies with similar strictness and equal force to the government of the United States. Upon this similarity it is said in 11 Am. Jur. pg. 1097:

"It has been said that the limitations upon the power of the Federal Government, expressed in the Fifth Amendment, are to be read in connection with the similar limitations embodied in the Fourteenth Amendment, because the restrictions under these two amendments are in many respects similar."

¶16 (As to the implied "equal protection" requirements of the Fifth Amendment, see United States v. Yount, 267 Fed. 861, and authorities therein...