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THE

OKLAHOMA

LAW JOURNAL

VOLUME VII

Edited and Published by
D, H, Fernandes

Guthrie, Oklahoma

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IN THE UNITED STATES CIRCUIT COURT
FOR THE EASTERN DISTRICT OF THE
STATE OF OKLAHOMA, AT MCALESTER.

JUNE TERM, 1908.
ALBERT W. SHULTHIS, Complainant,
Vs.

EQUITY No. 1. D. A. MACDOUGAL, EDMOND MCKAY, PERRY MCKAY AND THE KIEFER OIL AND GAS COMPANY, Defendants. GEORGE FRANKLIN BERRYHILL, Intervenor.

Syllabus. 1. Under the provisions of section 28 of the Original Agreement between the United States and the Creek Nation and approved by Act of Congress of March 1, 1901, no child born to Creek citizens after July 1, 1900, was eligible to the roll. Under the provisions of the Act of Congress of May 27, 1902, and section 7 of the Supplemental Agreement made with the Creeks and approved by Congress June 30, 1902, children born to citizens subsequent to July 1, 1900, up to and including May 25, 1901, and living upon the latter date, were eligible to the roll of citizenship, and directed to be enrolled by the Commission. If any such child died after May 25, 1901, or at any time before receiving his allotment, it was provided that "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.” Section 6 of the said Supplemental Agreement, approved in 1902, repealed the provisions of the Act of Congress of March 1, 1901, in so far as they provided for descent and distribution according to the laws of the Creek Nation, and directed that “the descent and distribution of land and money provided for shall be in accordance with Chap ter 49 of Mansfield's Digest of the Statutes of Arkansas.” (1) HELD: That a child born to citizens of the Creek Nation on May 6, 1901, living May 25, 1901, dying in November, 1901, enrolled by the Commission on October 8, 1902, allotment selected on April 28, 1904, and patent issued to his heirs on October 10, 1904, the Arkansas law of descent and distribution embodied in chapter 49 of Mansfield's Digest nominated the heirs of such deceased child and fixed the shares and portions the heirs derived in such allotment set apart and patented to them.

2. Whom the parties to the agreement meant to include within the term 'heirs,' if not clearly expressed, must be ascertained by resort to such extraneous light as the provisions and other acts and agreements relating to the same subject, and the history and surrounding conditions at the time will afford.

3. The use of the term "descend” in the Act of Congress and the Agreements being applied where descent, technically speaking, could not take place, creates an uncertainty and ambiguity calling for construction.

4. Where the deceased died before being enrolled, and the allotment selected or patented to him, his heirs take by purchase, as donees of the nation, and not by descent.

5, It was the evident intent of Congress and the Tribe to allot the lands in severalty among the citizens upon the basis of justice, equity and equality, and it was the intention of the parties to the Supplemental Agreement that in casc a member of the tribe died before receiving his allotment which he would have been entitled to, if living, his heirs should take in all respects and with the same effect as if such member had not died until after receiving the allotment.

6. Under the Arkansas law of descent and distribution an allotment acquired by a Creek citizen by selection and certificate of allotment or by patent became a new acquisition, and upon the death of such citizen, before allotment or after allotment, without issue, or brothers or sisters, leaving a father, such father took a life estate, the fee passing to the uncles and aunts.

7. A life tenant of lands containing minerals, oil or gas cannot open mines or wells, or lease the land to others for such purposes.

8. In construing statutes like the ones in question, it is generally safe to reject an interpretation that does not naturally suggest itself to the mind of a casual reader, but is rather the result of a laborious effort to extract from the statute a meaning which it does not at first seem to convey.

9. In construing any treaty or agreement between the United States and an Indian tribe, such treaty or agreement must be construed not according to the technical meaning of its words to learned lawyers, but in the sense which they would naturally be understood by the Indians.

10. Under the provisions of section 22 of the Act of Congress approved April 26, 1906, providing “That the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his or her share of the lands of the tribe to which he or she belongs or belonged may sell and convey the lands INHERITED from such decedent;" the heirs, (not full-bloods) of a deceased Indian, who died before his selection was made or patent issued, may sell and convey the allotment inuring to them as such heirs.

11. The term "inherited” used in section 22 of said Act of Congress is synonomous with the word 'descend' as used in the Original Agreement and Supplemental Agreement and covers those cases where heirs take by

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