Mr. H. A. Ledbetter, of Ardmore, Okl., for petitioner.
Messrs. S. R. Bowen, of Washington, D. C., and W. F. Semple, of Durant, Okl., for respondent.
Mr. Justice VAN DEVANTER delivered the opinion of the Court.
A claim to an estate by the curtesy in lands allotted and patented in the name and right of a Choctaw woman then deceased is here in controversy. It was sustained by the state court. 114 Okl. 50, 242 P. 569. The allotment was made and the patent issued under two agreements between the United States and the Choctaw and Chickasaw Tribes. Act June 28, 1898, c. 517, 29, 30 Stat. 505; Act July 1, 1902, c. 1362, 32 Stat. 641.
The agreements set forth a comprehensive scheme for allotting the lands of the two tribes in severalty among [276 U.S. 69, 70] their members, distributing the tribal funds and dissolving the tribes. There were also many other related provisions. Nothing was said about curtesy. The agreements were strictly special laws for the Choctaws and Chickasaws.
By prior enactments couched in general terms Congress had put in force in the Indian Territory, and made applicable to the people therein irrespective of race, several statutes of Arkansas. 1 One of these Arkansas statutes-chapter 20 of Mansfield's Digest-had been construed as recognizing a form of curtesy consummate attaching on the death of the wife intestate where she was then seized of the land. Another-chapter 49 of the same publication-related to descent and distribution. The Choctaw and Chickasaw lands were in the Indian Territory, and so were the lands of several other Indian tribes. The claim in this case is rested on the adopted Arkansas law of curtesy.
The second of the two agreements-it largely superseded the first- required that the lands of the two tribes be allotted among the enrolled members who were living at the date of its ratification. Anticipating that some of these might die before the allotments were made, the agreement provided in section 22 (32 Stat. 643):
[ Footnote 1 ] These congressional enactments and the indicated Arkansas laws are described in Marlin v. Lewallen, 276 U.S. 58 , 48 S. Ct. 248, 72 L. Ed. -, just decided.