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Record #3
Scott Rentie, son of Katie Island
RENTIE V. McCOY
35 Okla. 77, 128 P. 244 (1912)
* * *
WILLIAMS, J. The
plaintiffs in error, to wit, Morris Rentie, Katie Rentie and Solomon
Blevins, as plaintiffs, brought an action in ejectment in the lower
court against the defendants in error, Harriet P. McCoy, Edward McCoy,
and J. C. Cloud, as defendants, for the possession of 160 acres of land
situated in Tulsa county. This proceeding in error is to review the
judgment therein.
The parties will be referred to in the
order in which they appeared in the trial court.
The land sued for on August 15, 1902, was
allotted to the heirs of Scott Rentie, who was a Creek freedman, and who
died on July 2, 1899, not having selected his allotment; the said Scott
Rentie being a minor.
Under act of Congress of March 1, 1901,
entitled "An act to ratify and confirm an agreement with the
Muskogee or Creek tribe of Indians, and for other purposes"
(chapter 676, 31 U. S. Stat. 869), section 28 provides: "All
citizens who were living on the first day of April, eighteen hundred and
ninety-nine, entitled to be enrolled under section twenty-one of the act
of Congress approved June twenty-eight, eighteen hundred and
ninety-eight, entitled 'An act for the protection of the people of the
Indian Territory, and for other purposes,' shall be placed upon the
rolls to be made by said commission under said act of Congress, and 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. * * *"
The act of June 30, 1902, entitled
"An act to ratify and confirm a supplemental agreement with the
Creek tribe of Indians, and for other purposes" (chapter 1323, 32
U. S. Stat. 500), section 6, provides: "The provisions of the act
of Congress approved March 1, 1901 (31 U. S. Stat. 861) in so far as
they provide for descent and distribution according to the laws of the
Creek Nation, are hereby repealed and the descent and distribution of
land and money provided for by said act shall be in accordance with
chapter 49 of Mansfield's Digest of the Statutes of Arkansas, now in
force in Indian Territory: Provided, that only citizens of the Creek
Nation, male and female, and their Creek descendants shall inherit lands
of the Creek Nation: And provided further, that if there be no person of
Creek citizenship to take the descent and distribution of said estate,
then the inheritance shall go to noncitizen heirs in the order named in
said chapter 49."
Morris Rentie and Katie Rentie were the
father and mother of said Scott Rentie.
In Shulthis v. McDougal et al., 95
C. C. A. 615, 170 Fed. 529, section 7 of the act of June 30, 1902, which
provides that the lands and moneys to which such members of the Creek
tribe of Indians were entitled should descend to their heirs in
accordance with the provisions of said section 6, was construed, and the
word "descend" there held to indicate the character of the
title or estate which passed to the heirs, it not being intended that
they should take the property as an additional bounty from the tribe,
but by virtue of their heirship, said title being one of inheritance
rather than of purchase, the situation being made the same by such
provision as though the title had become vested in the decedent before
his death; and that the land, to which the decedent was entitled, and
which was the common property of the tribe, did not, strictly speaking,
come to him by grant, inheritance, or purchase, but by a division of
lands held in effect by a tenancy in common, to an interest in which he
was born as a member of the tribe entitled to enrollment therein; but
that, applying the statute by analogy, such land was not a "new
acquisition," but came to him by the blood of his tribal parent;
and that therefore on his death and the subsequent allotment, such
tribal parent took the full title and not merely a life estate.
In Shulthis v. McDougal et al.,
225 U. S. 561, 32 Sup. Ct. 704, 56 L. Ed. 1205, decided by the Supreme
Court of the United States on June 7, 1912, it was held that said case
was one in which the jurisdiction of the Circuit Court depended entirely
upon the theory of diverse citizenship, and therefore the judgment of
the Circuit Court of Appeals was final.
But it is not essential, in order to
dispose of this case, to determine whether Morris and Katie Rentie took
under the act of March 1, 1901, or June 30, 1902, as the father and
mother. Morris Rentie and Katie Rentie were both enrolled as Creek
freedmen, and executed the deed to Davis.
Only two questions are essential to be
determined under this record:
Was said 160 acres of land, which
comprehended the entire allotment of a member of the Creek tribe of
Indians, free from restrictions at the time the same was conveyed by
said Renties to Davis on April 8, 1905?
1. Section 16 of the Creek supplemental
agreement (32 U. S. Stat. 503) provides:
"Lands allotted to citizens (of the
Creek Nation) shall not in any manner whatever, or at any time, be
incumbered, taken, or sold to secure or satisfy any debt or obligation
nor be alienated by the allottee or his heirs before the expiration of
five years from the date of the approval of this supplemental agreement,
except with the approval of the Secretary of the Interior. Each citizen
shall select from his allotment forty acres of land, or a quarter of a
quarter section, as a homestead, which shall be and remain nontaxable,
inalienable and free from any incumbrance whatever for twenty-one years
from the date of the deed therefor, and a separate deed shall be issued
to each allottee for his homestead, in which this condition shall
appear. * * * The homestead of each citizen shall remain, after the
death of the allottee, for the use and support of children born to him
after May 25, 1901, but if he have no such issue then he may dispose of
his homestead by will, free from the limitation herein imposed, and if
this be not done the land embraced in his homestead shall descend to his
heirs, free from such limitation, according to the laws of descent
herein otherwise prescribed."
Section 22 of the Choctaw and Chickasaw
supplemental agreement (32 U. S. Stat. at L. p. 643, c. 1362) provides:
"If any person whose name appears
upon the rolls prepared as herein provided, shall have died subsequent
to the ratification of this agreement and before receiving his allotment
of land, the lands to which such person would have been entitled if
living shall be allotted in his name, and shall, together with his
proportionate share of other tribal property, descend to his heirs
according to the laws of descent and distribution as provided in chapter
forty-nine of Mansfield's Digest of the Statutes of Arkansas: Provided,
that the allotment thus to be made shall be selected by a duly appointed
administrator or executor. If, however, such administrator or executor
be not duly and expeditiously appointed, or fails to act promptly when
appointed, or for any other cause such selection be not so made within a
reasonable and practicable time, the Commission to the Five Civilized
Tribes shall designate the lands thus to be allotted."
In Mullen et al. v. United States,
224 U. S. 455, 32 Sup. Ct. 498, 56 L. Ed. 834, it is said:
"In the cases falling within this
paragraph (said section 22), there is no requirement for the selection
of any portion of the allotted lands as a homestead, and there is no
ground for supposing that it was the intention of Congress that a
provision for such selection should be read into the paragraph, so as to
assimilate it to paragraph 12, relating to allotments to living members.
While the lands were to be allotted in the name of the deceased allottee,
they passed at once to his heirs, and as each heir, if a member of the
tribe, was already supplied with his homestead of 160 acres, there was
no occasion for a further selection for that purpose from the inherited
lands. No distinction is made between the heirs; they might or might not
be members of the tribe; and, where there were a number of heirs, each
would take his undivided share. It is quite evident that there is no
basis for implying the requirement that in such case there should be a
selection of a portion of the allotment as a homestead, and all the
lands allotted under paragraph 22 are plainly upon the same footing.
While it appears from the record that, in the present case, separate
certificates of allotment were issued for homestead and surplus lands,
this was without the sanction of the statute.
"In the agreement with the Creek
Indians (Act of March 1, 1901, 31 Stat. at L. 861, 870, c. 676), it was
provided that in the case of the death of a citizen of the tribe after
his name had been placed upon the tribal roll made by the Commission,
and before receiving his allotment, the lands and moneys to which he
would have been entitled, if living, should descend to his heirs, 'and
be allotted and distributed to them accordingly.' The question arose
whether, in such cases, there should be a designation of a portion of
the allotment as a homestead. In an opinion under date of March 16,
1903, the then Assistant Attorney General for the Interior Department
(Mr. Van Devanter) advised the Secretary of the Interior that this was
not required by the statute. He said: 'After a careful consideration of
the provisions of law pertinent to the question presented, and of the
views of the Commissioner of Indian Affairs and the Commission to the
Five Civilized Tribes, I agree with the latter that, in all cases where
allotment is made directly to an enrolled citizen, it is necessary that
a homestead be selected therefrom and conveyed to him by separate deed;
but that, where the allotment is made directly to the heirs of a
deceased citizen, there is no reason or necessity for designating a
homestead out of such lands, or of giving the heirs a separate deed for
any portion of the allotment, and therefore advise the adoption of that
rule.' It is true that under the Creek agreement, in cases where the
ancestor died before allotment, the lands were to be allotted directly
to the heirs, while under the Choctaw and Chickasaw agreement the
allotment was to be made in the name of the deceased member, and
'descend to his heirs.' This, however, is a merely formal distinction
and implies no difference in substance. In both cases the lands were to
go immediately to the heirs, and the mere circumstance that, under the
language of the statute, the allotment was to be made in the name of the
deceased ancestor, instead of the names of the heirs, furnishes no
reason for implying a requirement that there should be a designation of
a portion of the lands as homestead.
We have, then, a case where all the
allotted lands going to the heirs are of the same character, and there
is no restriction upon the right of alienation expressed in the statute.
Had the lands been allotted in the lifetime of the ancestor, one-half of
them, constituting homestead, would have been free from restriction upon
his death. The only difficulty springs from the language of paragraph
16, limiting the right of heirs to sell 'surplus' lands. But, on
examining the context, it appears that this provision is part of the
scheme for allotments to living members, where there is a segregation of
homestead and surplus lands respectively. Whatever the policy of such a
distinction which gives a greater freedom for the disposition by heirs
of homestead lands than of the additional lands, there is no warrant for
importing it into paragraph 22, where there is no such segregation. It
would be manifestly inappropriate to imply the restriction in such
cases, so as to make it applicable to all the lands taken by the heirs,
and there is no occasion or authority for creating a division of the
lands so as to impose a restriction upon a part of them.
There being no restriction upon the right
of alienation, the heirs in the cases involved in this appeal were
entitled to make the conveyances. The bill alleged that the tracts
embraced in these conveyances were 'allotted lands,' and certificates of
allotment had been issued. These Indian heirs were vested with an
interest in the property which, in the absence of any provision to the
contrary, was the subject of sale. The fact that they were 'full-blood'
Indians makes no difference in this case, for, at the time of the
conveyances in question, heirs of the full-blood, taking under the
provisions of paragraph 22 of the supplemental agreement, had the same
right of alienation as other heirs."
The same conclusion had, prior to that
decision by the Supreme Court of the United States, been reached by this
court in Hancock et al. v. Mutual Trust Co. et al., 24 Okl. 391,
103 Pac. 566. See, also, United States v. Jacobs (C. C. A.) 195
Fed. 707.
This land having been allotted to the
heirs by virtue of section 28, supra, under Mullen et al. v. United
States, supra, there being no distinction between section 22 of the
Choctaw and Chickasaw supplemental agreement and section 28 of the Creek
agreement, it being held that section 16 was no part of the scheme for
allotment to living members of the Choctaw and Chickasaw tribes, section
16 of said Creek agreement is a part of the scheme of allotment for
living members, and not where they died prior to allotment. That being
true, the allotment having been made to the heirs under said section 28,
whether mixed or full-bloods, they took it free from restrictions and
the same was alienable. See, also, Reed v. Welty (D. C.) 197 Fed. 419,
which holds to the same effect.
The act of Congress of April 21, 1904
(chapter 1402, 33 U. S. Stat. at L. 204), provides:
"And all the restrictions upon the
alienation of lands of all allottees of either of the Five Civilized
Tribes of Indians who were not of Indian blood, except minors, and
except as to homesteads, are hereby removed, and all the restrictions
upon the alienation of all other allottees of said tribes, except
minors, and except as to homesteads may, with the approval of the
Secretary of the Interior, be removed under such rules and regulations
as the Secretary of the Interior may prescribe. * * *"
This provision was construed in Godfrey
v. Iowa Land & Trust Co., 21 Okl. 293, 95 Pac. 792, and in Goat
et al. v. United States, 224 U. S. 458, 32 Sup. Ct. 544, 56 L. Ed.
841, decided by the United States Supreme Court on April 29, 1912. Under
said provision of the act of April 21, 1904, supra, the restrictions
upon the alienation of lands of all allottees of the Creek tribe of
Indians who were not of Indian blood, except minors, and except as to
homesteads, were removed.
In the case at bar the land was allotted
to the heirs of Scott Rentie, pursuant to the provisions of section 28
of the Creek agreement of March 1, 1901, supra, wherein it was provided
that certain lands should be allotted to the heirs and distributed to
them according to the laws of descent and distribution of the Creek
Nation. Where members of the Creek tribe were living, the land was
allotted to such member of the tribe; but where dead before allotment,
and the land was allotted under said section 28, supra, the
allotment was made to the heirs; and, although the heir may not have
been a member of the Creek tribe (section 6, c. 1323, 32 U. S. Stat.
501), and may not have, by virtue of any membership in such tribe,
participated in receiving a distributive share by virtue of such
membership, under the terms of this legislation he had land allotted to
him if he was an heir of said deceased Indian. If so, was such heir an
allottee within the terms of the act of April 21, 1904, supra?
The heirs of Scott Rentie being freedmen and adults and not of Indian
blood, as to such land except homesteads as was allotted to them as his
heirs the restriction thereon was removed by said provision of the act
of April 21, 1904.
In Frame et al. v. Bivens et al.
(C. C.) 189 Fed. 785, Judge Campbell, in construing that portion of the
act of April 21, 1904 (33 U. S. Stat. at L. p. 204, c. 1402, § 1),
said: "In view of the class of persons, the character of the land
affected by the act, and the local conditions and circumstances which
evidently occasioned this legislation, I cannot conceive that Congress
intended that while an individual of the class named might convey his
land by deed absolute and indefeasible, without regard to the adequacy
of the consideration, he might not convey it conditionally as provided
by this mortgage."
Assuming for the purpose of this case
that the restrictions imposed by section 16 of the Creek agreement of
March 1, 1901, applied to the land allotted to the heirs of Scott Rentie,
it would be inconceivable that Congress intended to remove restrictions
upon the lands of the members of the tribe who had had allotted to them,
as a part of their distributive share of the public domain of the Creek
Nation, certain lands as their allotments, where they were adults and
not of Indian blood, and the same was not their homestead, and at the
same time it did not intend to remove such restrictions as existed on
heirs who had had allotted to them certain lands as the heirs of a
member of said tribe; such heirs being adults and not of Indian blood,
and the land not being a part of the homestead.
Did any restriction remain on the other
40 acres, to wit, the homestead, after the death of Scott Rentie?
Section 8 of chapter 1323 (Act of June
30, 1902, 32 U. S. Stat. at L. 501) provided:
"All children who have not
heretofore been listed for enrollment living May 25, 1901, born to
citizens whose names appear upon the authenticated rolls of 1890 or upon
the authenticated rolls of 1895 and entitled to enrollment as provided
by the act of Congress approved March 1, 1901 (31 Stat. at L. 861),
shall be placed on the rolls made by said commission. And if any such
child has died since May 25, 1901, or may hereafter die, before
receiving his allotment of lands and distributive share of the funds of
the tribe, the lands and moneys to which he would be entitled to if
living shall descend to his heirs as herein provided and be allotted and
distributed to them accordingly."
Section 6 of the same act provides:
"The descent and distribution of
land and money provided for in said act shall be in accordance with
chapter 49 of Mansfield's Digest of the Statutes of Arkansas now in
force in Indian Territory: Provided, that only citizens of the Creek
Nation, male and female, and their Creek descendants shall inherit lands
of the Creek Nation: And provided further, that if there be no persons
of Creek citizenship to take the descent and distribution of said
estate, then the inheritance shall go to noncitizen heirs in the order
named in said chapter 49."
Such "heirs were vested with an
interest in the property, which, in the absence of any provision to the
contrary, was the subject of sale." (Goat et al. v. United
States, supra; Mullen et al. v. United States, supra.) This section
is illuminative in construing section 16 of the same act, which
provides:
"The homestead of each citizen shall
remain, after the death of the allottee, for the use and support of
children born to him after May 25, 1901, but if he have no such issue
then he may dispose of his homestead by will, free from the limitation
herein imposed, and if this be not done the land embraced in his
homestead shall descend to his heirs, free from such limitation,
according to the laws of descent herein otherwise prescribed."
Section 6, c. 1323 (32 Stat. at L. 501),
having repealed the "provisions of the act of Congress approved
March 1, 1901 (31 Stat. at L. 861), in so far as they provide for
descent and distribution according to the laws of the Creek
Nation," provided that "the descent and distribution of land
and money provided for by said act shall be in accordance with chapter
49 of Mansfield's Digest of the Statutes of Arkansas" then in force
in the Indian Territory; "provided, that only citizens of the Creek
Nation, male and female, and their Creek descendants shall inherit lands
of the Creek Nation; and provided further, that if there be no person of
Creek citizenship to take the descent and distribution of said estate,
then the inheritance shall go to noncitizen heirs in the order named in
said chapter 49." Section 7 provided that:
"All children born to those citizens
who are entitled to enrollment as provided by the act of Congress
approved March 1, 1901 (31 Stat. at L. 861), subsequent to July 1, 1900,
and up to and including May 25, 1901, and living upon the latter date,
shall be placed on the rolls made by said Commission. And if any such
child has died since May 25, 1901, or may hereafter die before receiving
his allotment of lands and distributive share of the funds of the tribe,
the lands and moneys to which he would be entitled if living shall
descend to his heirs as herein provided and be allotted and distributed
to them accordingly."
Said sections 7 and 8 shed light in the
construction of said section 16 of the same act. The homestead of each
citizen shall remain after the death of the allottee for the use and
support of the children born to him after May 25, 1901; but if he have
no such issue then he may dispose of his homestead by will free from the
limitation herein imposed, and if this be not done the land embraced in
his homestead shall descend to his heirs free from such limitation,
according to the laws of descent herein otherwise prescribed.
In the former part of section 16 it was
provided that:
"Lands allotted to citizens shall
not in any manner whatever or at any time be incumbered, taken or sold
to secure or satisfy any debt or obligation or be alienated by the
allottee or his heirs before the expiration of five years from the date
of the approval of this supplemental agreement, except with the approval
of the Secretary of the Interior. Each citizen shall select from his
allotment forty acres of land, or a quarter of a quarter section, as a
homestead, which shall be and remain nontaxable, inalienable, and free
from any incumbrance whatever for twenty-one years from the date of the
deed therefor, and a separate deed shall be issued to each allottee for
his homestead, in which this condition shall appear."
Obviously the homestead descends at the
death of the allottee, where no will has been made, according to the
laws of descent prescribed in said act free from any limitation against
alienation.
The Choctaw and Chickasaw homesteads are
alienable by the heirs upon the death of the allottee. Section 12, c.
1362, 32 U. S. Stat. 642; Mullen et al. v. United States, supra.
Section 8, c. 994 (32 U. S. Stat. 982),
of the Seminole Agreement provided that:
"The homestead * * * shall be
inalienable during the lifetime of the allottee, not exceeding
twenty-one years from the date of the deed for the allotment. A separate
deed shall be issued for said homestead and during the time the same is
held by the allottee it shall not be liable for any debt contracted by
the owner thereof."
Section 13, c. 1375, of the Cherokee
Agreement (32 U. S. Stat. 716, 717), provides:
"Each member of said tribe shall, at
the time of the selection of his allotment, designate as a homestead out
of said allotment land equal in value to forty acres of the average
allottable lands of the Cherokee Nation, as nearly as may be, which
shall be inalienable during the lifetime of the allottee, not exceeding
twenty-one years from the date of the certificate of allotment. Separate
certificate shall issue for said homestead. During the time said
homestead is held by the allottee the same shall be nontaxable and shall
not be liable for any debt contracted by the owner thereof while so held
by him."
Upon the authority of Mullen et al. v.
United States, the Seminole and Cherokee homesteads likewise become
alienable upon the death of the allottee. Now to conclude that the
five-year limitation contained in the first paragraph of section 16, c.
1323 of the Supplemental Creek Agreement (32 U. S. Stat. 503), remained
on the land after the death of the allottee, would be to reach a
conclusion at variance with the scheme in the allotment of the Five
Civilized Tribes, and is not borne out by the context of said
supplemental Creek treaty. The same conclusion reached in this case has
also been reached by Judge Campbell of the United States District Court
of the Eastern District of Oklahoma. In re Lands of Five Civilized
Tribes (D. C.) 199 Fed. 811.
So far as Barnes v. Stonebraker,
28 Okla. 75, 113 Pac. 903, and Sanders v. Sanders et al., 28
Okla. 59, 117 Pac. 338, are not in harmony with this opinion, the same
are overruled.
It is clear to our minds that the deed
was delivered, and that there is no conflict in the evidence that would
require a submission of such question to the jury. This is not a suit to
reform the deed and have it declared a conveyance for a life estate. If
the deed had been for a life estate, and Rentie had an estate in fee, he
could not retake the premises during his lifetime. The holder of the
reversionary interest would be the only one that would be entitled to
possession, which would be after his death.
All the Justices concur.
See Record #1 Record #2
Record #3 Record
# 4 Record
#5 Record 6
Source:
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