1907, the Arkansas statute controlled in the Quapaw Reservation in the matter of descent.

§ 264. Descent-Sac and Fox.—The law of descent and partition of the state or territory in which the lands are located is made applicable by the provision that the United States shall hold the lands so allotted for the sole use and benefit of the allottee and his heirs according to the laws of the state or territory in which the land is located. The Sac and Fox Reservation being within the limits of the territory of Oklahoma, the Oklahoma territorial statutes upon the subject of descent controlled until statehood, and those of the state since statehood.

§ 265. Tonkawa-Descent.-The Tonkawa Allotment Agreement provides that, in all cases where the allottee has died since said alloting agent set off and scheduled land to such person, the law of descent and partition in force in Oklahoma Territory shall apply thereto, any existing law to the contrary notwithstanding. The law of descent of the state of Oklahoma, as the successor of the territory of Oklahoma, under the terms of the Enabling Act, subsequent to statehood, controls the descent of allotted Tonkawa lands.

§ 266. Wichita and affiliated bands-Descent.-Under the allotment agreement made with the Wichita Tribe (Act March 2, 1895, c. 188, 28 Stat. 897), titles of allottees are to be held in trust for the period of twenty-five years in the manner and to the extent provided in the General Allotment Act, and at the expiration of twenty-five years the title is to be conveyed to the allottee or his heirs free and clear from all incumbrance.

The language used in this allotment agreement undoubtedly makes the laws of descent of the territory and state of Oklahoma applicable to allotted lands of the members of the Wichita and affiliated bands.

CHAPTER 29

DESCENT-HEIRSHIP-HOW DETERMINED

§ 267. Descent-Right of heirship as affected by sections 6458 to 6464, inclusive, Revised Laws of 1910.

268. 269.

Descent-Affidavits as to heirship.

Descent-Enrollment records of the Commission to the Five
Civilized Tribes as evidence of.

270. Heirship as affected by section 6488, Revised Laws of 1910History of statute providing procedure for establishing. Descent-Jurisdiction to determine heirship.

271.

277.

Constitutionality of the statute.

278. Not applicable to lands held under trust patents.

§ 267. Descent-Right of heirship as affected by sections 6458 to 6464, inclusive, Revised Laws of 1910.-Prior to June 17, 1909, sections 6458 to 6464, inclusive, of the Revised Laws of 1910, as found in the Statutes of 1890 and subsequent statutes, provide for the distribution of an estate being administered by the probate court of the territory of Oklahoma and county court of the state of Oklahoma.

Section 6464 of the Revised Laws of 1910 provides that the decree of distribution shall be conclusive as to the rights of heirship, legatees and division, subject only to be reversed, set aside, or modified on appeal.

It is a matter of grave doubt whether this statute prescribes such a procedure as would render a decree of distribution effective as against any one not a party to and not participating in the proceedings.

§ 268. Descent-Affidavits as to heirship.-In the absence of a decree in an administration proceeding fixing those who are entitled to take by inheritance the real estate of a decedent, the lawyer frequently has to determine heir

most common use.

ship, as a matter of fact, upon the evidence submitted. Affidavits of heirship are perhaps the form of evidence in Such affidavits, in general terms, are of little value. Indians do not usually fully appreciate the distinction in relationship which controls the descent of property. An affidavit submitted in evidence of heirship is valuable in so far as it determines the family history, tracing out the relation of each survivor to the deceased. In the absence of better evidence, such affidavits are frequently received and used.

§ 269. Descent-Enrollment records of the Commission to the Five Civilized Tribes as evidence of.-The Commission to the Five Civilized Tribes, in making a census or roll of the members of such tribes, prepared and entered of record a statement of the family history, showing the names of the children, the names of the father and mother, grandfather and grandmother, etc. It has been suggested that the rolls prepared by the Commission are conclusive evidence of the relationship of the various members of the tribe to each other as shown thereon.

No doubt the relationship as shown by these rolls is reasonably accurate, and is of much assistance in determining heirship in controverted cases. There has never been any act of Congress prescribing what legal effect, if any, should be given to these rolls in determining the relationship of members of the tribes.

There is no reason why this enrollment record made in an administrative proceeding, in the absence of a statute giving it that effect, should be conclusive evidence as between parties litigant who happen to be interested in the matter of descent therein recorded.

These records, however, were prepared under the supervision of an officer charged with the duty of making a correct record, with every motive to thoroughly investigate, correctly ascertain and properly enter of record the relationship of the parties. They were compiled from informa

tion given by the members of the families affected, and at a time when there could have been no purpose to subserve by concealing or incorrectly stating any fact in connection. therewith. These enrollment records, in most cases, more correctly speak the truth than will interested witnesses. The cause of justice will be subserved by their admission in evidence in controverted questions of heirship.

§ 270. Heirship as affected by section 6488, Revised Laws of 1910-History of statute providing procedure for establishing. The Act of Legislature of June 17, 1909, with slight verbal changes, appears in the Revised Laws of 1910 as section 6488. It is identical, except some slight difference in details, which are unimportant, with section 1664 of the California Code. The language is so nearly identical as to make it manifest that section 6488 of the Revised Laws of 1910 of Oklahoma was copied from section 1664 of the Code of Civil Procedure of California.

Having adopted this statute from the California Code, we received it with the interpretation theretofore given by the court of last resort of the state of California. It has been construed and applied in numerous cases by the Supreme Court of that state,1 having been in force there since 1885.

1 Rice v. Ruble, 134 Pac. 49; Hegler v. Faulkner et al., 153 U. S. 109, 14 Sup. Ct. 779, 38 L. Ed. 653; Roach v. Coffey, 73 Cal. 281, 14 Pac. 840; Hitchcock v. Superior Court, 73 Cal. 295, 14 Pac. 872; Estate of Oxarart, 78 Cal. 109, 20 Pac. 367; In re Jessup, 81 Cal. 408, 21 Pac. 976, 22 Pac. 742, 1028, 6 L. R. A. 594; In re Grider, 81 Cal. 571, 22 Pac. 908; Smith v. Westerfield, 88 Cal. 374, 26 Pac. 206; In re Burton, 93 Cal. 459, 29 Pac. 36; Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40; Blythe v. Ayres, 102 Cal. 254, 36 Pac. 522; Estate of Blythe, 108 Cal. 125, 41 Pac. 33; In re Blythe's Estate, 110 Cal. 226, 42 Pac. 641; Estate of Blythe, 112 Cal. 689, 45 Pac. 6; In re Joseph's Estate, 118 Cal. 660, 50 Pac. 768; McDonald v. McCoy, 121 Cal. 55, 53 Pac. 421; In re Healy's Estate, 122 Cal. 162, 54 Pac. 736; In re Kasson's Estate, 127 Cal. 496, 59 Pac. 950; In re Sheid's Estate, 129 Cal. 172, 61 Pac. 920; More v. More, 133 Cal. 489, 65 Pac. 1044, 66 Pac. 76; In re Christensen's Estate, 135 Cal. 674, 68 Pac. 112; In re Mills' Estate, 137 Cal. 298, 70 Pac. 91, 92 Am. St. Rep. 175; In re Wickersham's Estate, 138 Cal. 355, 70 Pac. 1076, 71 Pac. 437; In re Kasson's Estate, 141 Cal.

The California Code divides the section into eight paragraphs, with a separate paragraph title for each. The entire section is entitled, in the California Code, "Distribution on Final Settlement."

§ 271. Descent-Jurisdiction to determine heirship.County courts of the state in which administration proceedings are pending have jurisdiction, when the same is properly invoked, to determine who are the heirs of the deceased and entitled to distribution in whole or in part of such estate. The necessary steps to invoke jurisdiction

are as follows:2

(a) The filing of a petition.

(b) The securing of an order directing service of notice. (c) The service of notice.

(d) Proof of service of notice, and decree establishing

same.

(a) A petition must be filed praying the court to ascertain and declare the rights of all parties to said estate and all interests therein and to whom distribution thereof should be made. It must not be filed before the expiration of one year from the granting of letters of administration, and not after the closing of the administration.

(b) An order must be made by the court directing service of notice on all persons interested in said estate to appear and show cause on a date to be fixed not less than sixty days nor over four months from the date of the making of the order. Such notice must set forth the name of the deceased, the name of the executor or administrator of the estate, the names of all persons who have appeared claiming any interest in the estate up to the time of the making of the order, and the names of such other persons as the court may direct.3

33, 74 Pac. 436; Lindy v. McChesney, 141 Cal. 351, 74 Pac. 1034; In re Sutro's Estate, 143 Cal. 487, 77 Pac. 402.

2 Blythe v. Ayres, 102 Cal. 254, 36 Pac. 522.

3 Bruner v. Ft. Smith & W. R. Co., 33 Okl. 711, 127 Pac. 700.