There is no reason applicable to the allotted lands of either of the tribes why the line of descent of land allotted to a living member should be different from that allotted in the name of a deceased member. There is no reason why, if a Seminole allottee should have died after selecting a homestead and before selecting his surplus allotment, the homestead should have descended under the Seminole law to one set of heirs and the surplus allotment under the Arkansas law to another set of heirs; due regard being had for the prohibition against the enforcement of tribal laws, which, so far as the United States courts in the Indian Territory, and their successors, the courts of the state of Oklahoma, are concerned, effected a repeal of the tribal laws. The Arkansas law of descent should be held to apply to lands allotted to a living member of the tribe. This would not make the rule of descent entirely harmonious because of the modifications by the supplemental agreement of the rule of descent prescribed by the Arkansas statute in giving the mother, brothers and sisters, and their descendants, preference right over the father, where the lands were allotted in the name of a deceased member of the tribe. The Supreme Court of the state has held that chapter 49 of Mansfield's Digest of the Laws of Arkansas, entitled "Descent and Distribution," controls in the descent of lands allotted to a member of the Seminole Tribe of Indians who died on the 23d day of August, 1903, after receiving his allotment.16 This result seems to have been forecasted by an earlier decision of the same court.17 These decisions are sound in principle and should furnish a basis for the application of the general law of descent in the Seminole Nation. For the effect of the Acts of June 7, 1897, June 28, 1898, and April 28, 1904, extending the Arkansas laws in force 16 Heliker-Jarvis Seminole Co. v. Lincoln, 33 Okl. 425, 126 Pac. 723. 17 Bruner v. Sanders, 26 Okl. 673, 110 Pac. 730. BLED.IND.(2D ED.)-18 in the Indian Territory to the persons and estates of citizens and of freedmen as applied to lands allotted to living members of the tribe, reference is made to the discussion thereof as applicable to the Cherokees, Choctaws and Chickasaws. It is probable that the extension of said act in the general terms in which it was extended did not operate to repeal the provisions of the Supplemental Agreement giving to the mother, brothers and sisters preference right over the father in certain cases.18 & 241. Descent of allotted Seminole lands subsequent to November 16, 1907.-The extension of the laws of the territory of Oklahoma over the state of Oklahoma at the incoming of statehood by the terms of the Enabling Act and Constitution of the state no doubt operated to supersede the law of descent applicable to lands allotted to living members of the tribe. The allotment of the Seminole lands having been completed long prior to November 16, 1907, there was no occasion for the application of the special limitations upon the Arkansas statute of lands allotted in the name of a deceased member subsequent to statehood. No special act of Congress stood in the way of an extension of the Oklahoma Territory statutes of descent to allotted lands in the Seminole Nation. The general law of descent in force prior to statehood, in the Indian Territory, was superseded by the general law of descent in force in Oklahoma prior to statehood and extended over the entire state by the Enabling Act and Constitution. While the courts of the state may enforce rights arising out of such exception, there is no occasion for its application after the completion of allotment, and no reason why the laws of the territory of Oklahoma should not be held to be as fully applicable to Seminole allottees as to other citizens of the state. 18 Washington v. Miller, 34 Okl. 259, 129 Pac. 58. § 242. Reversion of allotted lands in default of heirsSection 21 of Act of April 26, 1906.-By section 21 of the Act of April 26, 1906, if an allottee of the Choctaw, Chickasaw, Cherokee, Creek, or Seminole Tribes die intestate and without widow, heirs, or surviving spouse, and seised of any part of his allotment prior to the final distribution of tribal property, and such facts shall become known to the Secretary of the Interior, the lands allotted to such member revert to the tribe and are to be disposed of as surplus lands. If such a condition arises after the distribution of the tribal property, the land reverts to the state. CHAPTER 27 DESCENT, DOWER AND CURTESY UNDER THE ARKANSAS STATUTES IN FORCE IN THE INDIAN TERRITORY § 243. Scope of this title. 244. 245. Descent-Allotted lands of the Five Civilized Tribes-Wheth- 246. Curtesy-Prerequisite of. 247. Curtesy not a vested right. 243. Scope of this title.-It is not the purpose to undertake to trace in full the rule of descent under chapter 49 of Mansfield's Digest of the Statutes of Arkansas extended over and put in force in the Indian Territory, and applicable at different times to the allotted lands of members of the Five Civilized Tribes, nor to enter into a general discussion of the subject of dower and curtesy, but to call attention to certain special features of these provisions as applicable to the extraordinary conditions existing in the Indian Territory during the time they were in force and applicable to the allotted lands of any one of the several tribes. § 244. Descent-Allotted lands of the Five Civilized Tribes-Whether an ancestral estate or a new acquisition.Are lands of the allottees of the Five Civilized Tribes, after they pass upon death to their descendants, an ancestral estate or a new acquisition under the Arkansas statute of descent and distribution? If the unconditional fee to the tribal lands had been in the members of the tribe, and allotment had meant only partition of an estate, the estate received by the allottee would have been ancestral. Such was not the case. The estate in the land held by a member previous to allotment was a mere right of possession and could be alienated only to a member of the tribe. The estate received by the allottee is an absolute fee simple, including the possibility of re version vested in the United States prior to allotment. The estate thus received by the allottee is a larger and more valuable one than his previous possessory right. He takes by deed or patent from the Governor or Principal Chief of his tribe, acting on behalf of the tribe and without reference to whether his father or mother or both be living or dead. For nearly ten years it was practically the unanimous opinion of lawyers residing in the Eastern district of Oklahoma that the estate of the allottee is a new acquisition and not an ancestral estate. This was based upon uniform interpretation given to this statute by the Supreme Court of Arkansas under conditions somewhat similar, though not identical, to those in the Indian Territory. About the time the bar regarded the matter as settled the Circuit Court of Appeals for the Eighth Circuit held the estate of an allottee of the Creek Nation to be ancestral, and not a new acquisition.1 A review of this decision was sought in the Supreme Court of the United States, but the case was dismissed for want of jurisdiction." The Supreme Court of the state has very recently followed the construction given to the Arkansas statute of descent by the Circuit Court of Appeals for the Eighth, Circuit, holding the estate received by the allottee in allotment to be ancestral and not a new acquisition. The case involved the construction of the Arkansas statute of descent as applied to a full-blood Creek Indian who died July 12, 1905, after receiving her patent, intestate, leaving surviving her a husband, father, mother, sister and two brothers, all full-blood Creeks. The father, mother and husband joined in a conveyance, and the sister and brothers brought suit to recover the property and clear title thereto. 1 Shulthis v. McDougal, 170 Fed. 529, 95 C. C. A. 615. 2 Shulthis v. McDougal, 225 U. S. 561, 32 Sup. Ct. 704, 56 L. Ed. 3 Pigeon v. Buck (Okl.) 131 Pac. 1083. |