Smith v. Sumpsey and Rosie

OWEN, J. Tbis is an action, brought in the district court of Seminole county, to recover an undivided one-half interest in certain lands and to quiet title to the same. The petition alleges that the land was allotted to Ya-fo-la-gee, a member of the Seminole Tribé of Indians; that Kissie Harjo, at the death of the allottee, inherited a one-half interest in same; that thereafter Kissie died, and the land was inherited by the defendants in error as the sole heirs of Kissie. The plaintiff in error, defendant below, claims title through a deed executed by Kissie Harjo on the 28th of August, 1905. The case presents but one question: Did the deed dated August 28, 1905, made by Kissie Harjo, a full-blood Seminole Indian, covering the allotment of Ya-fo-la-gee, deceased, convey title to the plaintiff in error, T. H. Smith? The exact date of the death of the allottee, Ya-fo-la-gee, is uncertain. The case appears to have been tried by the lower court on the theory that it was immaterial whether she died prior to, or after, receiving allotment. The contention is made by counsel for the defendants in error, plaintiffs below, that in either event the land was restricted by the provisions of the original Seminole Agreement (Act of July 1, 1898, c. 542, 30 Stat. L. 567), under the terms of which any contract for the sale of any part of any allotment made prior to the date of the patent is void. The petition alleges that the allotment was made during the life of the allottee. The defendant below, in his answer, alleged the allottee died subsequent to her enrollment, but prior to receiving allotment. The court, in his finding of facts, says: “The court finds that the allotment was selected on the 4th day of November, 1901, and that she was allotted and treated as one who was deceased. The court is unable to determine what the exact date of her death was, whether she died prior to, or subsequent to, November 4, 1901.” In his conclusions of law the court says: “The court concludes as a matter of law that the original Seminole Agreement approved July 1, 1898, providing, among other provisions, that, ‘All contracts for sale, disposition, or incumbrance of any part of any allotment made prior to date of patent shall be void,’ was a positive restriction upon the allotment of the Seminóles; and, except as to the homestead of an allottee who has selected his allotment before death, decided in Stout v. Simpson, the heirs of the deceased in this case were without power to alienate the land in controversy until after the passage of the Act of Congress of jApril 26, 1906, there being no homestead in this allotment.” Judgment was rendered below for the plaintiffs, defendants in error here. The defendant below brings the cause here. We think it was material whether the al-lottee died prior, or subsequent, to receiving her allotment. If she died after allotment, under the holding in the cases of Stout v. Simpson, 34 Okla. 129, 124 Pac. 754, and Lula v. Powell, 64 Okla. 200, 166 Pac. 1050, the deed in question passed title to Kissie’s interest in the homestead portion of the allotment, but was void as to the surplus. If the allottee died prior to receiving allotment, the deed passed title to her interest in the entire allotment, including both homestead and surplus. The original Seminole Agreement provides that all lands belonging to the tribe shall be divided among the members of the tribe, giving to each the right to select his allotment so as to include, any improvements owned by him at the time. It made no provision for the allotment of any land to the heirs of any member of the tribe dying prior to allotment. The language relied upon by counsel for the defendants in error, “all contracts for the sale, disposition or incumbrance of any part of any allotment made prior to the date of the patent, shall be void,” is found in this agreement immediately following the paragraph providing for the allotment of all lands belonging to the Seminole Tribe, and does not apply where the allotment was made after the death of the allottee. In this treaty Congress was dealing with the lands to be allotted to the members of the tribe living at the time of the allotment. In the second Seminole Agreement (Act of June 2, 1900, c. 610, 31 Stat. L. 250), provision was made for the allotment of land after the death of the allottee. Section 2 of this act is as follows :■ “If any member of the Seminole Tribe of Indians shall die after the thirty-first day of December, eighteen hundred and ninety-nine, the lands, money, and other property to which he would be entitled if living, shall descend to his heirs who are Seminole citizens, according to the laws of descent and distribution of the state of Arkansas, and be allotted and distributed to them accordingly.” This section is very similar to section 28 of the original Creek Treaty (Act March 1, 1901, c. 676, 31 Stat. L/861), section 22 of the Choctaw - Chickasaw Supplemental Treaty (Act July 1, 1902, c. 1362, 32 Stat. L. 641), and section 20 of the Cherokee Treaty (Act July 1, 1902, e. 1375, 32 Stat. L. 716). Their purpose and general nature are not different. Bruner v. Sanders, 26 Okla. 673, 110 Pac. 730. *188 In the ease of Skelton v. Dill, 235 U. S. 206, 35 Sup. Ct. 60, 59 L. Ed. 198, it was Jiekl that lands in the Creek Nation allotted after the death of the allottee, under section 28 of that, treaty, passed to the heirs free from restrictions ; that the restrictions imposed under the other sections of the treaty did not apply to allotments made after the death of the allottee. To the same effect, under this treaty, is Welty v. Reed, 231 Red. 930, 146 C. C. A. 126; Woodward v. De Graffenried, 238 U. S. 284, 35 Sup. Ct. 764, 59 L. Ed. 1310; Rentie v. McCoy, 35 Okla. 77, 128 Pac. 244; Deming Investment Co. v. Bruner Oil Co., 85 Okla. 395, 130 Pac. 1157. In the case of Greenlees v. Wettack, 43 Okla. 16, 141 Pac. 282, the identical question was presented to this court under the Cherokee Treaty. It was held that the heirs took the land, under section 20, free from restrictions. In the case of Greenlees v. Morris, 239 U. S. 627, 36 Sup. Ct. 163, 60 L. Ed. 474, the United States Supreme Court, in construing the Cherokee Treaty, held to the same effect; the allotment having been made after the death of the allottee. In the case of Mullen v. United States, 224 U. S. 448, 32 Sup. Ct. 494, 56 L. Ed. 834, it was held that lands, under section 22 of the Choctaw-Chickasaw Treaty, were taken by the heirs without restriction; and that section 16 of that treaty, which provides the land shall not be alienable until after the, issuance of patents, has no application where the Indian died before receiving an allotment. That Congress never intended the' issuance of patents should be a restriction running with the land is evident from the language found in section 19 of the act of April 26, 1906, c. 1876, 34 Stat. L. 137, as follows: “That conveyances heretofore made by members of any of the Five Civilized Tribes subsequent * * * to removal of restriction, where patents thereafter issue, shall not be deemed or held invalid solely because said conveyances were made prior to issuance and recording or delivery of patent or deed. * * )f Counsel for defendants in error, in his brief, expresses his willingness to rest this case on the holding of this court in the case of Stout v. Simpson, supra. The court below treated this case as one in which the'allotment was selected after the death of the allottee, but failed to make the distinction between the question presented in Stout v. Simpson and this case. It was admitted in Stout v. Simpson that the allotment was made during the life of the allottee. It was held the death of the allottee, under the Act of March 3, 1903, c. 994, 32 Stat. 982, removed the restrictions on the homestead, but the restrictions contained in the original agreement applied to the surplus, the allotment having been made under the original agreement, and prior to the death of the allottee. In that case it was held the restrictions did not apply to leases made by the heirs of the allottee. Counsel for defendants in error relies, also, on the cases of Marey v. Board of County Com’rs, 45 Okla. 1, 144 Pac. 611, and McGeisey v. Board of Com’rs, 45 Okla. 10, 144 Pac. 614. The question under consideration in those cases was whether land held by full-blood Indian heirs was taxable. The cases turned on whether the land was subject to taxation within the meaning of the terms of the act of May 27, 1908, c. 199, 35 Stat. 312, providing that all land from which restrictions have been removed shall be subject to taxation. This court held the land was not alienable except with the approval of the county court, and that the necessity of that approval was such a restriction as to render the land nontaxable. The judgment of the lower court is reversed, and the cause remanded, with directions to proceed further in accordance with the views herein expressed. TURNER, HARDY, BRETT, and RAINEY, JJ., concur. SHARP, O. J., and THACKER and MILEY, JJ., dissent. KANE, J., absent, not participating.