Tapp v. Stuart
| Decision Date | 25 April 1934 |
| Docket Number | No. 897.,897. |
| Citation | 6 F. Supp. 577 |
| Parties | TAPP et al. v. STUART. |
| Court | U.S. District Court — Northern District of Oklahoma |
Goldesberry & Klein, of Tulsa, Okl., for complainant.
Robert Stuart and Ralph A. Barney, both of Pawhuska, Okl., for respondent.
Mary Belle Tapp, an Osage allottee, with a certificate of competency and of less than one-half Indian blood, died a resident of Osage county on June 20, 1927. She left a will, approved by the Secretary of Interior, pursuant to the provisions of an Act of Congress of April 18, 1912. This will was admitted to probate in the county court of Osage county, and the respondent, Charles F. Stuart, is the duly appointed and qualified administrator with the will annexed. Complainants are heirs of the said Mary Belle Tapp, and devisees under the will; Milford E. Tapp being a son of decedent, and Charles H. Tapp her surviving husband. Mary Belle Tapp died seized of her individual "headright" as an enrolled member of the Osage Tribe, and an inherited interest in the Osage "headright" of Adeline Kennedy Lockwood. Since the death of Mary Belle Tapp, a stated amount of income accruing to said "headrights" and collected by the Department of Interior, through the Osage Indian Agency, has been disbursed to respondent as administrator aforesaid. Complainants bring this action against the respondent as such administrator to recover said funds, contending such funds are not subject to administration in the probate cause, and that the departmental disbursements to the respondent were made under a mistaken conception of the law.
The respondent has moved to dismiss, and this motion is now for decision.
I think the only question meriting consideration is: Are the funds above described subject to administration in the county court of Osage county as assets of the estate of Mary Belle Tapp? If this question is answered in the affirmative, the motion to dismiss should be sustained; otherwise it should be overruled. A determination of the question turns upon the construction of the various acts of Congress applicable to the Osage Tribe. Respondent relies upon section 3 of the Act of April 18, 1912 (37 Stat. 86), which in part is as follows: "That the property of deceased * * * allottees of the Osage Tribe * * * shall, in probate matters, be subject to the jurisdiction of the county courts of the State of Oklahoma. * * *"
And also upon the following provision of section 4 of the act of March 2, 1929 (45 Stat. 1480), which is: "Upon the death of any Osage Indian of less than one-half of Osage Indian blood or upon the death of an Osage Indian who has a certificate of competency, his moneys and funds and other property accrued and accruing to his credit shall be paid and delivered to the administrator or executor of his estate to be administered upon according to the laws of the State of Oklahoma."
Respondent further urges the construction placed upon the various pertinent acts of Congress by the Department of Interior in its past practice to pay over to the executors and administrators of deceased Osages, situated similarly to Mary Belle Tapp, funds of the character disbursed to respondent.
I am unable to sanction the position of respondent. The Acts of Congress of June 28, 1906 (34 Stat. 539), April 18, 1912 (37 Stat. 86), March 3, 1921 (41 Stat. 1249), February 27, 1925 (43 Stat. 1008, 25 USCA § 331 note), and March 2, 1929 (45 Stat. 1478), clearly evidence a general congressional intent to preserve to the Osages all "headright" income, free and exempt from claims for debt, except that certain debts of restricted Indians might be paid under approval of the Department of Interior, and also provide that such funds should be disbursed directly to the members of the tribe, or their heirs. The provision of the Act of March 2, 1929 (45 Stat. 1479), with reference to such funds, reading as follows: "* * * And all royalties and bonuses arising therefrom shall belong to the Osage Tribe of Indians, and shall be disbursed to members of the Osage Tribe or their heirs or assigns as now provided by law, after reserving such amounts as are now or may hereafter be authorized by Congress for specific purposes" (section 1), is illustrative of the general design of these acts.
In the case of Taylor v. Tayrien (C. C. A.) 51 F.(2d) 884, it was held that the "headright" of an Osage Indian of less than one-half blood, with a certificate of competency, did not pass to his trustee in bankruptcy.
In a well-reasoned opinion by Justice McNeill, in the case of DeNoya v. Arrington, 163 Okl. 44, 20 P.(2d) 563, 567, the Supreme Court of Oklahoma reached the conclusion that the income accruing to the "headright" of a deceased Osage allottee, subsequent to the death of such allottee, is not an asset of the...
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Tapp v. Stuart
...FRANKLIN E. KENNAMER, District Judge. Many of the facts material to the decision of this case on the merits are stated in Tapp v. Stuart (D. C.) 6 F. Supp. 577. For more than twenty years prior to the commencement of this action, the Secretary of the Interior construed the pertinent acts of......
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Bruce v. Globe Indemnity Co.
...of Oklahoma for the purpose of paying the debts and costs of administration, except expenses of last illness and funeral. Tapp v. Stuart (D. C.) 6 F. Supp. 577, which was an opinion upon a motion to dismiss, and Id. (D. C.) 9 F. Supp. 23, filed in the case December 8, 1934, which was a deci......