[267 U.S. 352, 353] Messrs. Robert M. Rainey and Streeter B. Flynn, both of Oklahoma City, Okl., for plaintiffs in error.
Messrs. Robert F. Blair, of Tulsa, Okl., and George S. Ramsey, of Muskogee, Okl., for defendants in error.
Mr. Justice SUTHERLAND delivered the opinion of the Court.
This is a suit brought in a state court of Oklahoma to determine title to an undivided half interest in certain lands in that state lying within the former Creek Nation. The case is here both on error and certiorari. 263 U.S. 696 , 44 S. Ct. 133. The latter is the appropriate remedy, and the writ of error will he dismissed.
Defendants in error claim title through one Cloria Grayson, and it is admitted that they acquired by mesne conveyances, and have whatever title she had. The lands were originally allotted in the names of two freedmen, citizens of the Creek Nation, who had died prior to the allotment, leaving Gertrude Grayson and another as [267 U.S. 352, 354] their only Creek heirs at law, and ownership of an undivided half interest in the lands passed to each of them. Gertrude Grayson died intestate and without issue in 1907, leaving as her next of kin her maternal grandmother, Cloria Grayson, who was not a Creek citizen, nor a descendant of a Creek citizen, and these plaintiffs in error, remote kindred in various degrees, all of whom were Creek citizens. This was prior to the admission of Indian Territory and the territory of Oklahoma as the state of Oklahoma, and by the Act of May 2, 1890, c. 182, 26 Stat. 81, 95, 31, the general law in force in Indian Territory in respect of descents and distributions was chapter 49 of Mansfield's Digest of the Statutes of Arkansas. If this law applies, it is conceded that Cloria Grayson succeeded to the half interest of Gertrude Grayson as her sole heir at law, in which event title of defendants in error is good, and plaintiffs in error have no case. The contention on behalf of plaintiffs in error, however, is that the rights of the parties are controlled by the provisos found in paragraph 6 of the Supplemental Creek Agreement, ratified and confirmed by the Act of June 30, 1902, c. 1323, 32 Stat. 500, 501, as follows:
The conclusion is not in accord with the prior views of this court, to which the state Supreme Court gave no consideration. In Washington v. Miller, 235 U.S. 422 , 35 S. Ct. 119, it was held that the proviso, that only citizens of the Creek Nation and their Creek descendants should 'inherit lands of the Creek Nation,' looked to the future as well as to the present. The theory had been advanced that lands which had passed into private ownership were no longer lands of the tribe ( that is to say, no longer 'lands of the Creek Nation'), and therefore not within the words of the proviso. Answering that theory this court said ( page 427 [35 S. Ct. 121]):
In the present case stress is laid by defendants in error upon the use of the word 'allotments' in the phrase 'to prescribe rules of descent applicable to all Creek allotments,' and it is insisted that the court meant thereby to limit the operation of the proviso to lands in their descent from the allottee and not thereafter. The word was not used in that restricted sense, but in the broader sense, which includes all Creek lands which had gone through the process of allotment.
The purpose and policy of the provisos rest upon tribal rather than family sentiment, a sentiment which put the interests of the tribe above those of the family, and regarded the claims which spring from tribal membership rather than those arising from close degrees of kinship. This view is expressed in the later case of Campbell v. Wadsworth, 248 U.S. 169, 175 , 39 S. Ct. 63, dealing with the Seminole Agreement of 1899 (31 Stat. 250). Under the provision in that agreement that, if any member of the tribe die after enrollment, the lands, etc., to which he would be entitled, if living, 'shall descend to his heirs who are Seminole citizens,' it was held that the lands of an Indian, enrolled as a Seminole, did not descend to his wife and daughters, enrolled only as Creeks. Answering the position of the state Supreme Court that only 'the most powerful and impelling reasons' could induce it to hold that the Indians intended to exclude their own children from sharing in their property after death, this court said:
The lands of the Creek Nation were tribal lands and the evident purpose of the Indians was to continue at least a semblance of that status so far as it could be done consistently with their distribution in severalty. With the wisdom of that purpose we have nothing to do. It is enough that Congress respected it and gave to it the sanction of law.
On behalf of defendants in error, it is asserted: (1) That there was an entire absence of proof that plaintiffs in error are citizens of the Creek Nation, and we are asked to review the record in that respect in order to determine whether there was any basis for the claim of federal right; and (2) that an examination of the record will show that the plea of the statute of limitations was fully established and, therefore, the decision of the state Supreme Court reasonably may be affirmed on that nonfederal ground.
The point that the evidence fails to show that plaintiffs in error were Creek citizens presents a pure question of fact. The trial court found they were. The state Supreme Court expressly affirmed the finding, and, recognizing the existence of the federal question in the case, put its decision denying the federal right upon an erroneous view of the law. The denial was not the result of the finding of fact, nor is that finding so intermingled with the conclusion of law in respect of the federal right as to cause [267 U.S. 352, 358] it to be necessary to consider the matter of fact in order to pass upon the federal question. See AEtna Life Ins. Co. et al. v. Dunken, 266 U.S. 389 , 45 S. Ct. 129, 69 L. Ed. -- (December 15, 1924); Truax v. Corrigan, 257 U.S. 312, 324 , 325 S., 42 S. Ct. 124, 27 A. L. R. 375; and cases cited; Nor. Pac. Ry. v. North Dakota, 236 U.S. 585, 593 , 35 S. Ct. 439, L. R. A. 1917F, 1148, Ann. Cas. 1916A, 1; Creswill v. Knights of Pythias, 225 U.S. 246, 261 , 32 S. Ct. 822; Kansas City So. Ry. v. Albers Comm. Co., 223 U.S. 573, 591 , 32 S. Ct. 316. The effect of the finding was to establish the existence of a preliminary fact, related to the federal right only in the sense that it brought the case within the reach of the federal law relied on, and called for a determination of the federal question then presented. In other words, the finding simply established a condition, not as a basis upon which to rest a decision of the question of federal right one way or the other, but upon which that question became an issue for consideration and determination. In such case, the ordinary rule applies that the decision of the state court upon a question of fact cannot be made the subject of inquiry here. Telluride Power Co. v. Rio Grande, etc., Ry., 175 U.S. 639, 645 , 20 S. Ct. 245; Illinois v. Economy Power Co., 234 U.S. 497, 523 , 524 S., 34 S. Ct. 973; Dower v. Richards, 151 U.S. 658 , 668, et seq., 14 S. Ct. 452; Crary v. Devlin, 154 U.S. 619 , 14 S. Ct. 1199; Egan v. Hart, 165 U.S. 188, 192 , 17 S. Ct. 300; Carpenter v. Williams, 9 Wall. 785, 786.
Nor need we inquire into the defense of the statute of limitations. The decision now under review entirely ignores it. The rule that when the decision of a state court may rest upon a nonfederal ground adequate to support it, this court will not take jurisdiction to determine the federal question, has no application where, as here, the nonfederal ground might have been considered by the state court but was not. Rogers v. Hennepin County, 240 U.S. 184, 188 , 189 S., 36 S. Ct. 217; Henderson Bridge Co. v. Henderson derson City, 173 U.S. 592, 608 , 19 S. Ct. 553.
It is said that in an earlier opinion the state Supreme Court ruled in favor of defendants in error upon the two points last discussed. But that opinion, it appears, was [267 U.S. 352, 359] withdrawn and the present decision, rendered after a rehearing, is the only one open to our consideration. The decree of the state Supreme Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Writ of error dismissed.