William Sizemore v. Foil Brady

• Decision Date: 21 December 1914
• Docket Number: No. 59,59
• Citation: 35 S.Ct. 135,59 L.Ed. 308,235 U.S. 441
• Parties: WILLIAM SIZEMORE et al., Plffs. in Err., v. FOIL M. BRADY
• Court: U.S. Supreme Court

235 U.S. 441

35 S.Ct. 135

59 L.Ed. 308

WILLIAM SIZEMORE et al., Plffs. in Err.,

v FOIL M. BRADY.

No. 59.

Submitted November 4, 1914.

Decided December 21, 1914.

Messrs. Frederick E. Chapin, Andrew B. Duvall, and James B. Diggs for plaintiffs in error.

[Argument of Counsel from pages 441-444 intentionally omitted] Messrs. Grant Foreman and James D. Simms for defendant in error.

[Argument of Counsel from pages 444-446 intentionally omitted] Mr. Justice Van Devanter delivered the opinion of the court:

This was a suit to determine conflicting claims to an allotment selected and made after August 8, 1902, on behalf of Ellis Grayson, a Creek citizen duly entitled to enrolment, who died unmarried March 1, 1901, leaving as his only surviving relatives three first cousins, one on the paternal and two on the maternal side. All were Creek citizens. In the papers evidencing the selection and approval of the allotment, as also in the ensuing tribal deed, the beneficiaries were designated as the 'heirs' of the deceased, whthout otherwise naming them; and this was in accord with the usual practice. The suit was brought by the paternal cousin, who insisted that the title under the allotment and tribal deed passed to him alone. The others were made defendants and answered, asserting an exclusive right in themselves. Each side also advanced an alternative claim that the three took the land in equal parts. Two questions of law were involved: First, whether the beneficiaries were to be ascertained according to the Creek tribal law or according to an Arkansas law presently to be noticed; and, second, whether the governing law preferred either paternal or maternal relatives when all were of the same degree. The trial court, concluding that the tribal law was applicable and preferred maternal relatives, gave judgment for the defendants; but the supreme court of the state held that the Arkansas law was controlling and preferred paternal relatives, so the decision below was reversed, with a direction that judgment be entered for the plaintiff. 33 Okla. 169, 124 Pac. 615. The defendants then sued out this writ of error.

Anterior to the legislation which we must consider, the Creek lands and funds belonged to the tribe as a community, and not to the members severally or as tenants in common. The right of each individual to participate in the enjoyment of such property depended upon tribal membership, and when that was terminated by death or otherwise the right was at an end. It was neither alienable nor descendible. Under treaty stipulations the tribe maintained a government of its own, with legislative and other powers, but this was a temporary expedient and in time proved unsatisfactory. Like other tribal Indians, the Creeks were wards of the United States, which possessed full power, if it deemed such a course wise, to assume full control over them and their affairs, to ascertain who were members of the tribe, to distribute the lands and funds among them, and to terminate the tribal government. This Congress undertook to do. The earlier legislation was largely preliminary and need not be noticed.

The first enactment having a present bearing is that of March 1, 1901 (31 Stat. at L. 861, chap. 676), called the 'Original Creek agreement,' which went into effect June 25, 1901 (32 Stat. at L. 1971). It made provision for a permanent enrolment of the members of the tribe, for appraising most of the lands and allotting them in severalty with appropriate regard to their value, for using the tribal funds in equalizing allotments, for distributing what remained, for issuing deeds transferring the title to the allotted lands to the several allottees, and for ultimately terminating the tribal relation. In § 28 this act directed that the enrolment, except as to children, should include 'all citizens who were living' on April 1, 1899, and entitled to enrolment under the earlier legislation, and then declared that 'if any such citizen has died since that time, or may hereafter die, before receiving his allotment of lands and distributive share of all the funds of the tribe, the lands and money to which he would be entitled, if living, shall descend to his heirs according to the laws of descent and distribution of the Creek Nation, and be allotted and distributed to them accordingly.'

So much of that act as recognized the tribal laws of descent and distribution was repealed by the act of May 27, 1902¹ (32 Stat. at L. 258, chap. 888), which also provided: 'And the descent and distribution of lands and moneys provided for in said act [March 1, 1901] shall be in accordance with the provisions of chapter forty-nine of Mansfield's Digest of the Statutes of Arkansas in force in Indian Territory.' This was repeated, with a qualification not material here, in § 6 of the act of June 30, 1902 (32 Stat. at L. 500, chap. 1323), called the 'Supplemental Creek Agreement,' which went into effect August 8, 1902. See 32 Stat. at L. 2021; Marchie Tiger v. Western Invest. Co. 221 U. S. 286, 301, 55 L. ed. 738, 743, 31 Sup. Ct. Rep. 578.

Ellis Grayson was living April 1, 1899, and entitled to enrolment. Had he lived he would have been entitled, under the original agreement, to participate in the allotment and distribution of the tribal property. But he died March 1, 1901, before the agreement went into effect, and without receiving any part of the lands or funds of the tribe. In these circumstances the agreement contemplated that his heirs should take his place in the allotment and distribution, and should receive 'the lands and money to which he would be entitled, if living;' and it also contemplated that effect should be given to the Creek laws of descent and distribution in determining who were his heirs and in...