Opinion · Supreme Court of the United States
McDougal v. McKay
McDougal v. McKay, 237 U.S. 372 (1915)
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1915-04-26
- Topic
- general
*380 Mr. Justice McReynolds delivered the opinion of the court. The solution of this controversy requires ascertainment of the heirs of an infant who was enrolled after death, within the intendment of the Supplemental Creek Agreement — Act of June 30, 1902 (c. 1323, 32 Stat. 500). Andrew J. Berryhill, born in May, 1901, died during the following November leaving his father — George Franklin Berryhill — an enrolled Creek Indian, his mother, a non-citizen of that Nation, and seven paternal uncles and aunts.
Citator
UpLaw has not yet analyzed McDougal v. McKay. The absence of a flag is not a finding that it is good law.
- Cited by
- 47 opinions
McDOUGALv. McKAY,237 U.S. 372(1915)
35 S.Ct. 605
McDOUGALv. McKAY.
ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA.
No. 676.
Argued April 14, 1915.
Decided April 26, 1915.
THE facts, which involve the construction and effect of the
Supplemental Creek Agreement of June 30, 1902, and the
ascertainment of heirs of an infant of the Creek Nation enrolled
after death, are stated in the opinion.
As to the Arkansas statutes and the construction thereof in Arkansas and Indian Territory see c. 49 Mansfield's Digest;Robinsonv.Belt,107 U.S. 41;Sangerv.Flow, 48 F. 152;Blaylockv.Muskogee, 117 F. 152;S.C., 64 S.W. 609;McFaddenv.Blocker, 48 S.W. 1043;Boydv.Mitchell, 64 S.W. 610;Zufallv.United States, 43 S.W. 760;Randolphv.United States, 43 S.W. 1098;Carterv.Barton, 48 S.W. 1017;LeBosquetv.Myers, 103 S.W. 770;Bosticv.Eggleston, 104 S.W. 566;Western Investment Co. v.Davis, 104 S.W. 573;Kellyv.McGuire,Page 37415 Ark. 555;Hoganv.Finley,52 Ark. 55;Magnessv.Arnold,31 Ark. 103;Wheelockv.Simons,75 Ark. 19.
The land was a new acquisition in the allottee and not an ancestral estate. Act June 28, 1898,30 Stat. 495; Original and Supplemental Creek Agreements,31 Stat. 861,32 Stat. 500; Act April 26, 1906,34 Stat. 137;Sizemorev.Brady,235 U.S. 441;Reynoldsv.Fewell,236 U.S. 58;Magnessv.Arnold,31 Ark. 103;Hoganv.Finley,52 Ark. 55;McKeev.Henry, 201 F. 74.
Citizenship in Creek Nation is not a property right at all.Cherokee Intermarriage Cases,203 U.S. 76;Wallacev.Adams, 143 F. 716;Stephensv.Cherokee Nation,174 U.S. 445.
The lands of the Creek Nation prior to allotment belonged to the Creek Nation as a political body and not to the individual members. 2 Kappler's Indian Laws, 1904 ed.;Eastern Cherokeesv.United States,117 U.S. 312;Stephensv.CherokeeNation,174 U.S. 445;Cherokee Nationv.Journeycake,155 U.S. 197;Flemingv.McCurtain,215 U.S. 56;Ligonv.Johnson, 164 F. 670;McKeev.Henry, 201 F. 74;Delaware Indiansv.Cherokee Nation,193 U.S. 127;Cherokee Nationv.Hitchcock,187 U.S. 294;Sizemorev.Brady,235 U.S. 441; 2 Minors' Institute, 3d ed., pp. 78 and 86; 2 Blackstone, Lewis ed. 569, *p. 109, and see p. 208;Kellyv.McGuire,15 Ark. 555.
George Franklin Berryhill not only never owned the land but he never could have owned it had Andrew J. Berryhill not lived at the proper time to obtain it as an allotment. Original Creek Agreement,31 Stat. 861.
The Supreme Court of the State of Oklahoma erred in holding that the evidence offered to the effect that the decision of the Circuit Court of Appeals inShulthisv.McDougalhad not been followed or acquiesced in by the bar of the State of Oklahoma, or by thenisi priusjudges, was not admissible. 11 Cyc. 755.Page 375
The Supreme Court of Oklahoma erred in holding that the decision inShulthisv.McDougalhad become a rule of property. 69 Central Law Journal, 217;Robertsv.Underwood, 127 P. 261;Barnesv.Keys, 127 P. 261.
Rules of property can be created only by courts of last resort. 11 Cyc. 756;Ocean Beach Associationv.Brinley,34 N.J. Eq. 438,448;American Mortgage Co. v.Hopper, 64 F. 553;The Madrid, 40 F. 677;Gannonv.Johnston,140 P. 430.
To establish a rule of property the doctrine must be acquiesced in. Bledsoe's Land Laws, 1st ed., § 62.
Justice requires reversal of the rule inShulthisv.McDougal. Masonv.Nelson, 18 L.R.A. (N.S.) 1221.
In support of these contentions see cases citedsupraand Chamberlayne on Evidence, §§ 849-850; Oklahoma Bar Assn. Report, 1909, p. 161;Pigeonv.Buck,38 Okla. 101;Shulthisv.McDougal, 170 F. 529;S.C.,225 U.S. 561; 2 Minors' Insts., 3d ed., p. 519; Rev. Stat., § 2289;32 Stat. 500;34 Stat. 137.Mr. George S. Ramsey, with whomMr. Edgar A. de Meuleswas on the brief, for defendant in error:
The land in question was allotted to the heirs of Andrew J. Berryhill, and while the heirs take by purchase technically, yet the Arkansas law of descent should be applied just the same as if the heirs of Andrew J. Berryhill had actually inherited the allotment.
There should be no difference in the application of the Arkansas law of descent to a case where the heirs take by purchase technically, instead of by actual descent.
The heirs takeper stirpesand not as a classper capita— discussed with cases and authorities cited.
The allotment of a Creek citizen is not a new acquisition under the Arkansas law, but in the nature of an ancestral estate, his allotment being his birthright, and his rightPage 376to the same being acquired by virtue of being a member of the tribe.
Under the Arkansas law of descent it becomes necessary to determine whether or not the estate is ancestral or a new acquisition when there are no descendants — when the allotment passes in the ascending line it is absolutely material to first determine whether the estate is ancestral or new in order to discover the course of descent, that is, whether to the maternal or paternal side, but this is immaterial so long as there are descendants.
To allot the lands of an Indian tribe among the citizens thereof is not the grant or donation of a new title, but is more in the nature of a partition of prior rights.
That an allotment is not a new acquisition and not analogous to the acquisition of title to the public domain of the United States, see opinion of the Eighth Circuit Court of Appeals inShulthisv.McDougal.
As said by this court inWorcesterv.Georgia, 6 Pet. 515, "To contend that the word `allotted' in reference to the land guaranteed to the Indians in certain treaties, indicates a favor conferred rather than a right acknowledged would . . . do injustice to the understanding of the parties."
Indian allottees are not donees of the Government.
In support of these contentions, seeBrownv.Belmarde,3 Kan. 35;Bassettv.Granger,100 Mass. 348;Baskin's Appeal,3 Pa. 304;Baileyv.Bailey,25 Mich. 185;Beecherv.Wetherby,95 U.S. 517;Beamv.United States, 162 F. 260;Campbellv.Wiggins, Rice's Eq. 10 (S. Car.);Cherokee Nationv.Hitchcock,187 U.S. 294; Const. Laws of Muskogee Nation by McKellop, 57;Choatev.Trapp,224 U.S. 671;Duffyv.Hargan, 50 Atl. Rep. 678;Dunlap's Appeal, 9 A. 936;Dukesv.Faulk,37 S.C. 255;S.C., 34 Am. St. Rep. 745;Delaware Indiansv.United States,193 U.S. 129;Davidsonv.Gibson, 56 F. 443;France's Estate,75 Pa. 220;Page 377Forrestv.Porch,45 S.W. 676(Tenn.);Flemingv.McCurtain,215 U.S. 56;Fairbanksv.United States,223 U.S. 215;Goatv.United States,224 U.S. 458;Harveyv.Beach,38 Pa. 500;Houghtonv.Kendall, 7 Allen (Mass.), 72;Holbrookv.Harrington, 16 Gray (Mass.), 102;Henryv.Thomas, 20 N.E. 519;Hockettv.Alston, 58 S.W. 675;S.C., 110 F. 910;Jonesv.Meehan,175 U.S. 1;Johnsonv.Bodine, 79 N.W. 348;Jamesv.Smith, 58 S.W. 715;Johnsonv.McIntosh, 8 Wheat. 543;Kendallv.Gleason,152 Mass. 457;Kellyv.McGuire,15 Ark. 555;Lipman's Appeal,30 Pa. 180;Lottv.Thompson, 15 S.E. 278 (S. Car.);Lawtonv.Corlies,27 N.E. 847;Ligonv.Johnston, 164 F. 670;Mullenv.Read,64 Conn. 240; 42 Am. St. Rep. 174;Minter's Appeal,40 Pa. 114;Minnesotav.Hitchcock,185 U.S. 396;Martinv.United States, 168 F. 205;Nivensv.Nivens, 64 S.W. 604;Parrv.United States, 153 F. 462;Russellv.Hall,101 U.S. 503;Reynoldsv.Fewell,236 U.S. 58;Randv.Sanger,115 Mass. 124;Rugglesv.Randall, 38 A. 885;Richardsv.Miller,62 Ill. 417;Rushv.Thompson, 53 S.W. 333;Sizemorev.Brady,235 U.S. 441;Shulthisv.McDougal, 170 F. 530;S.C., 162 F. 331;Sweetv.Dutton,109 Mass. 589;Sheetz's Appeal,82 Pa. 213;Stephensv.Cherokee Nation,174 U.S. 445;Spaldingv.Chandler,160 U.S. 394;Templetonv.Walker, 55 Am. Dec. 646;Thornv.Cone(Okla.), not yet reported;United Statesv.Cook, 19 Wall. 591;Washingtonv.Miller,235 U.S. 422;Whitev.Stanfield,146 Mass. 424;Woodv.Robertson, 15 N.E. 457;Woodwardv.James,22 N.E. 150;Wilsonv.Owens, 86 F. 572;Worcesterv.Georgia, 6 Pet. 515.Mr. John B. Meservefiled a brief asamicus curice:
The lands allotted and with which we are concerned in this case were allotted and conveyed by the UnitedPage 378States and the Creek Nation directly to the "heirs of Andrew J. Berryhill, deceased," and such heirs acquired title to said lands by purchase and not by descent. Supp. Creek Agreement, §§ 6 and 7;Townerv.Rodegeb, 75 P. 50;Gouldv.Tucker, 100 N.W. 427;S.C., 105 N.W. 624;McCunev.Essig, 122 F. 588;Warnellv.Finch,15 Tex. 163[15 Tex. 163]; II Blackstone, Com., pp. 209, 240; 3 Washburn on Real Property, p. 4;Tatev.Townsend,16 Miss. 316,319;Johnsonv.Norton,10 Pa. 245;Borgnerv.Brown, 33 N.E. 92;Starrv.Hamilton, 22 Fed. Cases, 1107;Sizemorev.Brady,235 U.S. 441;Hayesv.Barringer, 168 F. 221;Cookv.Childs, 145 P. 406; Act of April 26, 1906, § 5;Malissa Wiley Case, July 13, 1908, Sec'y Interior Opinion;Hallv.Russell,101 U.S. 503;Hershbergerv.Blewett, 55 F. 170;McKeev.Henry, 201 F. 74;Franklinv.Lynch,233 U.S. 505;Woodburyv.United States, 170 F. 302.
George Franklin Berryhill, as the father of Andrew J. Berryhill and as the heir nearest in the line of succession to Andrew J. Berryhill, acquired, under the laws of descent of the State of Arkansas, an estate in fee simple in the lands in controversy.Aumanv.Auman,21 Pa. 348; Mansfield's Digest § (1) 2522;Kelly's Heirsv.McGuire,15 Ark. 555;Brownv.Belmarde,3 Kan. 40;Wardv.Stowe, 27 Am. Dec. 239 (N. Car.);Cooperv.Wilder, 43 P. 591;Braunv.Mathieson, 116 N.W. 789;Wittenbrookv.Wheadon,60 P. 664;Walkerv.Ehresman,113 N.W. 218(Neb.);Aspeyv.Barry,83 N.W. 91(S.D.); Mansfield's Digest § (10) 2531.Mr. E.G. McAdamsandMr. Norman B. Haskellfiled a brief asamici curiae:
No rule of property has been established by the decision of the Circuit Court of Appeals inShulthisv.McDougaland the Oklahoma decisions following it.Page 379
Had Andrew J. Berryhill lived to receive an allotment he would have taken the same, not technically merely, but substantially, by purchase from the United States and the Creek Nation, and not by descent from his tribal parent.
Under those circumstances, he would have taken the allotment as a new acquisition, by purchase from the United States and from the Creek Nation, even if it be assumed for the purpose of the argument that he took an equitable estate therein by descent from his tribal parent, because the source of the legal title is the controlling factor in determining whether an estate be a new acquisition or an ancestral estate.
Andrew J. Berryhill having died prior to the enactment of the legislation authorizing the making of an allotment to his heirs, and no estate, therefore, having vested in him, said allotment was not an acquisition, new or otherwise, in Andrew J. Berryhill; hence the allotment did not descend to his heirs either as an ancestral estate or as a new acquisition, under § 2531, Mansfield's Digest, but vested in his heirs, under § 2522, Mansfield's Digest, by direct grant from the United States and the Creek Nation, becoming a new acquisition in said heirs.
In support of these contentions, seeAnglo-American Land Co. v.Lombard, 132 F. 721;Barkerv.Swenson,66 Tex. 408[66 Tex. 408];Calhoun Mining Co. v.Ajax Mining Co.,27 Colo. 1;S.C.,182 U.S. 499;Collinsv.Durwood,4 Tex. Civ. App. 389;Goodrightv.Wells, 2 Doug. K.B. 771;Hallv.Russell,101 U.S. 503;Hillv.Heard,104 Ark. 23;Kellyv.McGuire,15 Ark. 555;Kuhnv.Fairmont CoalCo.,215 U.S. 349;Nicholsonv.Halsey, 1 Johns. Ch. 417;Robinsonv.Belt,107 U.S. 41;Selbyv.Alston, 3 Ves. Jun. 339;Shulthisv.McDougal, 170 F. 529;S.C.,225 U.S. 561;Sizemorev.Brady,235 U.S. 441;Wilsonv.Beckwith,140 Mo. 359;Woodburyv.United States, 170 F. 302; Devlin on Deeds, §§ 9, 15.Page 380
Andrew J. Berryhill, born in May, 1901, died during the following November leaving his father — George Franklin Berryhill — an enrolled Creek Indian, his mother, a noncitizen of that Nation, and seven paternal uncles and aunts. His name was duly placed on the tribal rolls in October, 1902, and during the years 1904 and 1905 the land presently in controversy (with others) was allotted and patented to his heirs. The father claiming to be Andrew's sole heir — the mother joining — conveyed it June 5, 1906, to defendants in error, Edmond and Perry McKay. Afterwards the paternal uncles and aunts undertook to convey the fee subject to a life estate in the father to McDougal, plaintiff in error. The McKays and parties claiming under them being in possession of the property and extracting oil and gas therefrom, McDougal instituted this proceeding to restrain them and to have his remainder interest declared and confirmed.
The Supreme Court of Oklahoma (43 Okla. 261) held the land must be treated as an ancestral estate in Andrew J. Berryhill and declared the father sole heir. Plaintiff in error maintains that it passed as a new acquisition and the father took a life estate with remainder over to the uncles and aunts. Counsel appearing asamici curiaeinsist Andrew J. Berryhill had no estate therein, and that the wordheirsdesignates persons who themselves took as purchasers.
Under treaty stipulations with the United States the Creek Tribe of Indians as a community for a long time owned and occupied large areas now within the borders ofPage 381Oklahoma and maintained there an organized government. Congress finally assumed complete control over them and undertook to terminate their government and distribute the tribal lands among the individuals.Washingtonv.Miller,235 U.S. 422.
The act of March 1, 1901, — Original Creek Agreement (c. 676,31 Stat. 861, 870) — effective May 25, 1901 (32 Stat. 1971), provided for the enrollment of members living on April 1, 1899, and their children born up to July 1, 1900, and also for allotment of tribal lands. It prescribed further (§ 28) that "if any such child die after said date, the lands and moneys to which it would be entitled, if living, shall descend to its heirs according to the laws of descent and distribution of the Creek Nation, and be allotted and distributed to them accordingly."
The Supplemental Creek Agreement — Act of June 30, 1902, c. 323,32 Stat. 500, 501, effective August 8, 1902 (32 Stat. 2021), repealed that portion of the Original one establishing descent and distribution under the Creek Law and directed that thereafter these "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." It also extended the right of enrollment to children born after July 1, 1900, and up to May 25, 1901, and declared "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."Page 382
The pertinent sections of Mansfield's Digest are copied in the margin.1They sharply distinguish between an estatePage 383which came to a decedent by a parent and a new acquisition and prescribe different rules of inheritance.
InShulthisv.McDougal(170 F. 529), decided June 3, 1909, by the Circuit Court of Appeals for the Eighth Circuit, title to another portion of the Andrew J. Berryhill allotment was involved and it became necessary to ascertain his heirs. Having carefully considered the whole subject that court summed up its conclusions thus (pp. 534-535):
"So long as the tribal relations continued, a member had no right to have a share of the tribal property set off to him as his private, separate estate, for the constitutional policy of the tribe was ownership in common. But when, as here, the time came to disband the tribe, its ownership as a political society could no longer continue, and the division of its property was far more nearly akin to the partition of property among tenants in common than the grant of an estate by a sovereign owner. Under such a scheme it cannot be said that the property which passed to an allotted is a new right or acquisition created by the allotment. The right to the property antedates the allotment, and is simply given effect to by that act. Viewing the tribal property and its division in this light, Andrew J. Berryhill acquired his right to the land in question by his membership in the tribe. It was his birthright. It came to him by the blood of his tribal parent, and not by purchase. In applying the Arkansas statute, we shall accomplish the purpose of Congress and the Creek Nation best by treating the lands not as a new acquisition by him, but as an inheritance from his parents as members of the tribe. His father was the only parent through whom hePage 384derived his right, and to the father the land should pass. If the mother had been a member of the tribe, then the land should properly pass to the parents equally. From this premise it necessarily follows that George Franklin Berryhill succeeded to the entire estate of the property in question." An appeal to this court was dismissed June 7, 1912, for lack of jurisdiction (225 U.S. 561).
The Supreme Court of Oklahoma inLena Pigeonv.WilliamBuck,38 Okla. 101(April 23, 1913), determined the heirs of a full-blooded Creek citizen who, having been duly enrolled, received a patent to her allotment and then died intestate, without descendants, leaving father, mother, brothers, sister and her husband. After reference to the above-quoted portions of Mansfield's Digest it said (pp. 103-104): "That the land in question was not a new acquisition, and pursuant to these sections, when construed together, passed to John Pigeon and Mate Pigeon, the father and mother of the deceased, is no longer an open question in this jurisdiction, having in effect been decided by the Circuit Court of Appeals for the Eighth Circuit inShulthisv.McDougal, 170 F. 529. . . . Many titles to lands on the eastern side of this State have been acquired on the strength of this decision, and to such an extent that the same has become a rule of property there (De Waltv.Cline,35 Okla. 197;S.C.,128 P. 121;MaHarryv.Eatman,29 Okla. 46;S.C.,116 P. 935;Duffv.Keaton,33 Okla. 92;S.C.,124 P. 291), we hold that John Pigeon and Mate Pigeon, his wife, are the persons to whom, on the death of the allottee, this estate passed in equal moieties, and that plaintiffs in error, plaintiffs below, have no interest therein."
We recognize the unusual difficulties surrounding the problem presented upon the record, and appreciate the very forceful arguments offered in support of the conflicting theories. The circumstances are novel, and the canonsPage 385of descent contained in Mansfield's Digest are not precisely applicable thereto; but these rules must be accommodated to the facts and the great purpose of Congress effectuated as nearly as may be. And not only would it be improper for us to disregard the effect of the decisions already announced by the Circuit Court of Appeals and the Supreme Court of Oklahoma, which are supported by cogent reasoning, but considering the peculiar and rapidly changing conditions within that State especial consideration must be accorded to them. We accordingly accept the doctrine announced therein and hold: (1) The property must be treated as an ancestral estate which passed in accordance with the applicable provisions of chapter 49, Mansfield's Digest. (2) As the father, George Franklin Berryhill, was of Creek blood, and the mother not, he took a fee simple title to all the land in question. If both parents had been of Creek blood and duly enrolled each would have taken one-half.Sizemorev.Brady,235 U.S. 441, has been referred to as in conflict with the doctrine herein approved. In that case lands were allotted and patented after August 8, 1902, to the heirs of Grayson, an enrolled Creek, who died March 1, 1901, and a contest arose between a paternal cousin and cousins on the maternal side. The former — Brady — claimed descent should be determined according to Mansfield's Digest and that he was sole heir. The latter — Sizemore and Newberry — maintained the Creek Law applied and that they were the only heirs. The Supreme Court of Oklahoma decided in favor of Brady (33 Okla. 169) and in this court the plaintiffs in error expressly admitted that he should prevail "in event the court should hold said lands passed under Chapter 49 of Mansfield's Digest of the Laws of Arkansas, in accordance with the Act of Congress known as the Creek's Supplemental Agreement." We concluded the Arkansas statute controlled and of course did not undertake to decide thePage 386question here presented. Moreover, it is not possible from the record in the cause accurately to trace the blood of the maternal relatives.
The judgment of the court below must beAffirmed.
- Page 382Section 2522. When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow's dower, in the following manner:First. To children, or their descendants, in equal parts.Second. If there be no children, then to the father, then to the mother; if no mother, then to the brothers and sisters, or their descendants, in equal parts.Third. If there be no children, nor their descendants, father, mother, brothers or sisters, nor their descendants, then to the grandfather, grandmother, uncles and aunts and their descendants, in equal parts, and so on in other cases, without end, passing to the nearest lineal ancestor, and their children and their descendants, in equal parts.Section 2531. In cases where the intestate shall die without descendants, if the estate come by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs; but if the estate be a new acquisition it shall ascend to the father for his lifetime, and then descend, in remainder, to the collateral kindred of the intestate in the manner provided in this act; and, in default of a father, then to the mother, for her life-time; then to descend to the collateral heirs as before provided.Section 2532. The estate of an intestate, in default of a father and mother, shall go, first, to the brothers and sisters, and their descendants, of the father; next, to the brothers and sisters, and their descendants, of the mother. This provision applies only where there are no kindred, either lineal or collateral, who stand in a nearer relation.Section 2533. Relations of the half-blood shall inherit equally with those of the whole blood in the same degree; and the descendants of such relatives shall inherit in the same manner as the descendants of the whole blood, unless the inheritance come to the intestate by descent, devise, or gift, of some one of his ancestors, in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance.Section 2534. In all cases not provided for by this act, the inheritance shall descend according to the course of the common law.Section 2543. The expression used in this act, "where the estate Page 383 shall have come to the intestate on the part of the father," or "mother," as the case may be, shall be construed to include every case where the inheritance shall have come to the intestate by gift, devise or descent from the parent referred to, or from any relative of the blood of such parent. ↩