Thorn v. Cone

• Decision Date: 13 July 1915
• Docket Number: 3882.
• Citation: 150 P. 701,47 Okla. 781
• Parties: THORN v. CONE ET AL.
• Court: Oklahoma Supreme Court

150 P. 701

47 Okla. 781

THORN v. CONE ET AL.

No. 3882.

Supreme Court of Oklahoma

July 13, 1915

Syllabus by the Court.

The primary allotment of an enrolled full-blood Seminole Indian who died intestate and without descendants after having received her allotment, must be considered as an ancestral estate, within the meaning of section 2531, c. 49, Mansf. Dig. Laws Ark., extended over and put in force in the Seminole Nation by act of Congress.

Sissie and Lena Jefferson, full-blood Seminole Indians, died intestate without descendants, after having received their allotments, on the 12th day of February, 1903, and the 20th day of July, 1904, respectively. Held, that the devolution of their allotments is governed by the applicable provisions of chapter 49, Mansf. Dig. Laws Ark Held, further, said decedents acquired the right to their allotments by their membership in the Seminole Tribe of Indians; that, their father and mother being full-blood Seminole Indians, their allotments came to them through the blood of their tribal parents, and as much through the blood of one as the other; that by virtue of that part of section 2531 of said chapter 49 which provides: "In cases where the intestate shall die without descendants, if the estate came by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs"--said allotments ascended equally to the father and mother of said decedents and to their heirs.

Error from District Court, Seminole County; Tom D. McKeown, Judge.

Action between J. R. Thorn and H. L. Cone and others. From the judgment, Thorn brings error. Reversed and remanded, with directions.

Willmott & Dean, of Wewoka, for plaintiff in error.

Crump Fowler & Skinner, of Wewoka, for defendants in error.

KANE C.J.

This is a controversy between the maternal and paternal kinsmen of Sissie and Lena Jefferson, two full-blood Seminole Indian allottees, who died intestate and without descendants on the 12th day of February, 1903, and the 20th day of July, 1904, respectively, over the devolution of their allotted lands. Upon trial to the court the controversy was decided below in favor of the maternal relations of the decedents, whereupon the paternal relations filed this proceeding in error in the Supreme Court.

The contention of the prevailing parties is stated by their counsel in their brief as follows:

"Our position on the merits of the case is that Sissie Jefferson and Lena Jefferson were enrolled as Seminole citizens for the purpose of allotment, because of the fact that their mother was a Seminole; that because of the fact that the father happened to be a Seminole gave them no status or rights as Seminole citizens, but that they were Seminoles solely because their mother was a Seminole, and for no other reason; that this rule was adopted and followed by the Dawes Commission in preparing the rolls of the Seminoles for allotment; that the rolls so prepared were the rolls upon which allotment of the Seminoles was made; that the Arkansas law of descent was in force at the times of the deaths of these two allottees. Such being the case, applying the rule laid down in the Shulthis Case, 170 F. 529 , the allotment of a child dying without issue or spouse, as in the case at bar, was in the nature of a maternal ancestral estate, and descended to the maternal heirs of the deceased allottees, to the exclusion of the paternal line. Therefore, Sam Harjo being the only heir in the maternal line, he inherited said allotments in fee simple."

The question for review involves an application to the foregoing facts of that part of section 2531 of chapter 49, Mansf. Dig. Laws Ark., which provides:

"In cases where the intestate shall die without descendants, if the estate came by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs."

As we gather the views of counsel from the foregoing excerpt from their brief, they concede the allotments of the decedents were ancestral estates, and that their devolution is governed by the applicable laws of descent and distribution of the state of Arkansas (Heliker Jarvis Seminole Co. v. Peter Lincoln, 33 Okl. 425, 126 P. 723); but they contend that by force of a certain custom peculiar to the Seminoles, such estates come by the mother, and therefore should ascend to the mother and her heirs.

A similar question seems to have been settled...