Messrs. Henry C. Lewis, of Washington, D. C., and Paul A. Ewert, of Joplin, Mo., for appellant.
Mr. A. C. Wallace, of Miami, Okl., for appellees.
Mr. Leslie C. Garnett, of Washington, D. C., for United States, by special leave. [256 U.S. 319, 320]
Mr. Justice McKENNA delivered the opinion of the Court.
Appellant brought this suit to have himself declared to be owner of an undivided one-third interest in all lands (they are described in the bill) and other property of which his wife, Fannie Crawfish Blanset, died seised or possessed, free and clear of all claims and demands of the appellees, and to declare void a will of his wife and its approval by the Secretary of the Interior.
The basis of the bill is the contention that under the laws of Oklahoma no man and no woman while married shall bequeath more than two- thirds of his or her property away from the other and that the prohibition extends to an Indian woman's allotment, under acts of Congress, of restricted lands.
The bill is quite involved and contains many repetitions. Its ultimate propositions may be paraphrased as follows: Appellant is a white man, and his wife, Fannie Crawfish Blanset, was an Indian woman of the Quapaw Tribe. She was an allottee of the lands herein involved which were restricted lands so called; that is, nonalienable for the period of 25 years. She made a will devising her land to appellees, they being her children or grandchildren, and bequeathed to them also all trust funds which might be held by the United States for her. The will was approved by the Assistant Commissioner of Indian Affairs and by the Assistant Secretary of the Interior under and in pursuance of the provisions of an Act of Congress of June 25, 1910 (36 Stat. 858, 859), as amended February 14, 1913 (37 Stat. 678 [Comp. St. 4228]), and filed in the office of the Secretary of the Interior, where such wills are properly and lawfully filed, and are of record.
Congress, by the foregoing and other legislation, provided:
By that section appellant is made heir to property worth $40,000 of the estate of his wife, while the will gives him only $5; that the will is null and void, and that to the extent of his heirship his wife died intestate, and that he is an heir at law of one-third of her estate, that notwithstanding section 8341 each of the appellees is claiming to be the owner of a one-third undivided interest in and to all of the remaining restricted lands, inherited or otherwise, of which Fannie Crawfish Blanset died possessed and of a one-third interest to all trust funds held by the United States to her use and benefit, such claims being made under and by virtue of the will.
There is an allegation in the bill to the effect that appellant's wife left little or no personal property except moneys held in trust for her from the sale of inherited Indian lands by the United States; that by section 8419 dower and curtesy were abolished, and by section 8418 it was provided as follows:
And by [256 U.S. 319, 322] section 6328 it is provided:
It is alleged:
On motion of defendants (appellees here) the bill was dismissed for want of equity. The ruling was affirmed by the Circuit Court of Appeals.
The case is not in broad compass and presents as its ultimate question the accordance or discordance of the laws of Congress and the laws of the state; and whether there is accordance or discordance depends upon a comparison of section 8341 of the Oklahoma Code, upon which appellant relies, and the acts of Congress referred to in the bill and what was done under them.
That comparison we proceed to make. By section 8341 of the Code:
The provision of the Code is determinative, appellant contends, because the law of 'descents and distributions' of Arkansas was made applicable to the Indian Territory May 2, 1890 (26 Stat. 94, 95), and extended in its application in 1904 (33 Stat. 573), and, while at those times 'testamentary power had not been given to restricted allottees [the property in this case was a restricted allotment and the period of restriction had not expired] of any tribe but property descended, as to all tribes, wherever located, according to the local law,' yet when Oklahoma was admitted as a state the Arkansas law was superseded by the Oklahoma Code. For this Jefferson v. Fink, 247 U.S. 288 , 38 Sup. Ct. 516, is adduced.
But against the contention and conclusion the act of Congress approved February 14, 1913 (37 Stat. 678), is opposed. Section 2 of that act is as follows:
The Secretary of the Interior made regulations which were proper to the exercise of the power conferred upon him and the execution of the act of Congress and it would seem that no comment is necessary to show that section 8341 is excluded from pertinence or operation.
But this conclusion counsel resists. He says:
That is, and to make application to the pending case, at the instant his wife died, appellant became heir at law to one-third of her property under the laws of the state. Appellant's reasoning is direct and confident. By his wife's death he asserts her allotment was emancipated from government control; that under section 8341 her will was void, she there fore [256 U.S. 319, 325] died intestate, and he became her heir of an undivided one-third of her allotment under section 8418 set out in the bill.
And the further contention is that section 8341 is continued because the act of Congress does not expressly provide how the land shall be devised, and because it recognizes that the state laws of descent are applicable in case the Secretary disapproves the will after the death of the testator.
If the first contention be true, the act of Congress is reduced to impotence by its contradictions. According to the contention it permits a will and immediately provides for its defeat at the very instant it is to take effect and can only take effect. Such antithetical purpose cannot be imputed to Congress and it is repelled by the words of section 2. They not only permit a will but define its permissible extent, excluding any limitation or the intrusion of any qualification by state law. They provide that one having an interest 'in any allotment held under trust or other patent containing restrictions on alienation ... shall have the right prior to the expiration of the trust or restrictive period and before the issuance of a fee simple patent or the removal of restrictions to dispose of such property (italics ours) by will in accordance with regulations to be prescribed by the Secretary of the Interior.' And it is further provided 'that the Secretary of the Interior may approve or disapprove the will either before or after the death of the testator' and that neither circumstance shall 'operate to terminate the trust or restrictive period, but the Secretary of the Interior may, in his discretion, ... cause patent in fee to be issued to the devisee or devisees.'
To the other contention (if it may be called such) the answer is that the contingency (disapproval of the will after the death of the testator) did not occur, and besides there were alternatives to the contingency irreconcilable with the disposition of the property under the state Code. [256 U.S. 319, 326] The act of Congress is careful of conditions. In the first instance it is concerned with testacy, that is, the existence of a will. A will existing, the allotment is disposed of by it. A will not existing-either not executed or, if executed, canceled-there is intestacy, and the state laws of descent and distribution obtain. In the present case there is a will and it is uncanceled, and therefore the contention of appellant is untenable. And it will also be observed, by recurring to the act of Congress, powers are invested in the Secretary which preclude interference or control by anybody, or right in anybody to have canceled 'the patent in fee' which is empowered 'to be issued to the devisee or devisees,' a right appellant asserts in the present case. In a word, the act of Congress is complete in its control and administration of the allotment and of all that is connected with or made necessary by it, and is antagonistic to any right or interest in the husband of an Indian woman in her allotment under the Oklahoma Code. And we agree with the Court of Appeals that the act of Congress was the prompting of prudence to 'afford needed protection to dependent and natural heirs against the waste of the estate as the result of an unfortunate marriage and enforced inheritance by state laws.' And there can be no doubt that the act was the suggestion of the Interior Department, and its construction is an assistant, if not demonstrative criterion, of the meaning and purpose of the act. Swigart v. Baker, 229 U.S. 187 , 33 Sup. Ct. 645; Jacobs v. Prichard, 223 U.S. 200 , 32 Sup. Ct. 289; United States v. Hermanos, 209 U.S. 337 , 28 Sup. Ct. 532. And the regulations of the department are administrative of the act and partake of its legal force.
Our conclusion is the same as that of the Court of Appeals:
The court added that the conclusion was in accord with the views of the Supreme Court of the state, referring to Brock v. Keifer, 59 Okl. 5, 157 Pac. 88.