Washington v. Stover, 22564.

• Court: Supreme Court of Oklahoma
• Citation: 36 P.2d 469,169 Okla. 143,1934 OK 502
• Docket Number: 22564.
• Parties: WASHINGTON v. STOVER et al.
• Decision Date: 02 October 1934

36 P.2d 469

169 Okla. 143, 1934 OK 502

WASHINGTON
v.
STOVER et al.

No. 22564.

Supreme Court of Oklahoma

October 2, 1934

Syllabus by the Court.

Section 1 of the Act of Congress approved June 14, 1918 (40 Stat. 606, 25 USCA § 375), confers jurisdiction upon the county courts of Oklahoma to determine the question of fact as to who are the heirs of any deceased citizen allottee of the Five Civilized Tribes of Indians, leaving restricted heirs, although such Indian citizen may also leave heirs who are unrestricted.

Appeal from District Court, McIntosh County; Harve L. Melton, Judge.

Action by Wallace Washington against Reuben Stover, George C. Hooten, Lee Hooten, and the Deming Investment Company. The action was dismissed with prejudice as to the defendants George C. Hooten, Lee Hooten, and the Deming Investment Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Britton H. Tabor, of Checotah, for plaintiff in error.

Clark & Jack Nichols, of Eufaula, and Wm. F. Newbold, Jr., of Muskogee, for defendant in error.

PER CURIAM.

The undisputed facts in this case disclose that one Mary Washington, enrolled as a full-blood Creek Indian, died in McIntosh county, Okl., November 27, 1922. She left surviving as her sole and only heirs, her husband, Wallace Washington, plaintiff in error, a brother, Martin Simmons, and a half-sister, Susan Harjo; the husband being a white man, and the brother and sister restricted Creek Indians. That some time after the death of Mary Washington, Susan Harjo instituted an action in the county court of McIntosh county, Okl., for the purpose of determining the question of fact as to who were the heirs of Mary Washington. Service by publication, only, was had upon the unknown heirs of Mary Washington, and Wallace Washington had no actual notice or knowledge that the action had been filed until more than six months after the decree was entered. The county court determined that Susan Harjo was a sister, that Martin Simmons was a brother, and Willie Bruner was the husband of the allottee, and that these three were the sole heirs of the allottee. It is agreed that the proceedings in the county court were regular, that no fraud was perpetrated, and that the notice by publication complied with the law. The only question presented by the brief of plaintiff in error is as follows: "That, although the trial court found plaintiff was lawful husband and heir of allottee at time of her death, the court erred in holding as a matter of law that the determination of heirship proceeding had in the County Court barred plaintiff from his inheritance, because the plaintiff is a nonrestricted heir of deceased allottee."

Plaintiff in error takes the position that the Act of Congress approved June 14, 1918 (40 Stat. 606, 25 USCA § 375), confers jurisdiction upon the county courts to determine the question of fact as to who are the heirs of deceased Indian allottees, members of the Five Civilized Tribes, where the heirs are all restricted Indians, but says that such is not the case where any of the heirs are unrestricted, and to so hold would be unconstitutional, being in contravention of section 12, article 7, of the Constitution.

The act reads as follows: "A determination of the question of fact as to who are the heirs of any deceased citizen allottee of the Five Civilized Tribes of Indians who may die or may have heretofore died, leaving restricted heirs, by the probate court of the State of Oklahoma having jurisdiction to settle the estate of said deceased, conducted in the manner provided by the laws of said State for the determination of heirship in closing up the estates of...