Washington v. Miller , 34 Okla. 259 ( 1912 )

(after stating the facts as above). There is but one question in this case, viz.: Did George Washington, a full-blood Seminole and the father of Waitie Washington, whose mother was a full-blood Creek, under the admitted facts of the pleadings herein, inherit any estate or interest in the allotment of Waitie Washington? We think the question must be answered in the negative. Section 6 of the Supplemental Creek Agreement, c. 1323, 32 St. at L., page 500, ratified June 30, 1902, was in force at the time the descent was cast in this case, to wit, November 3, 1907. Said section reads as follows, to wit:

"Sec. 6. The provisions of the act of Congress approved March 1, 1901 (31 St. at L. 861), in so far as they provide for descent and distribution according to the laws of the Creek Nation, are hereby repealed and the descent and distribution of land and money provided for by said act shall be in accordance with chapter 49 of Mansfield's Digest of the Statutes of Arkansas, now in force in the 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."

Counsel for plaintiff in error admit that said section is controlling of the question under discussion, provided the same is not repealed or nullified by the act of Congress of April 28, 1904 (c. 1824, 33 St. at L. 573), entitled, "An act providing for additional United States judges in the Indian Territory, and for other purposes," section 2 of which reads as follows:

"Sec. 2. All the laws of Arkansas heretofore put in force in the Indian Territory are hereby continued and extended in their operation, so as to embrace all persons and estates in said territory, whether Indian, freedman, or otherwise, and full and complete jurisdiction is hereby conferred upon the district courts in said territory in the settlements of all estates of decedents, the guardianships of minors and incompetents, whether Indians, freedmen, or otherwise. That the sum of twenty thousand dollars is hereby appropriated out of any money in the treasury not otherwise appropriated, for the payment of salaries of the judges hereby authorized, the same to be immediately available."

In an able and exhaustive brief, which gives, in an interesting and instructive manner, a complete resume of the various enactments on this particular subject in the Indian Territory since 1890, plaintiff in error contends that the last-mentioned act of Congress repeals section 6 of the Supplemental Creek Agreement, supra. We cannot concur in this opinion. There is no repealing clause attached to the act of April 28, 1904 (c. 1824, 33 St. at L. 573), and if the said section 6 was repealed, it would be by implication, and the law does not look with favor upon such repeals. Then, too, the act of April 28, 1904, supra, is a general act, while the Supplemental Creek Agreement of June 30, 1902 (Act June 30, 1902, c. 1323, 32 St. at L. 500), is a special act, and nothing in the general act can work a repeal of the special act unless the language used, and the objects and purposes intended, permit of no other conclusion. We fully agree with counsel that where two statutes are so repugnant to each other that they can not stand or be construed together, the first in point of time is repealed by the last, if not expressly, then by necessary implication. But we do not agree that there is such a conflict or repugnancy between these two acts. The intent of the lawmaker is to be deduced and gathered from the whole statute and by a comparison of other statutes, pari materia.

We must also concede the soundness of the proposition laid down in District of Columbia v. Hutton, 143 U.S. 18, 12 Sup. Ct. 369, 36 L. Ed. 60, where it is said:

"Where two acts are repugnant in any of their provisions, the later act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first. Where two acts are not in express terms repugnant, yet if the later act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act."

But a careful examination of these statutes fails to show any such conflict or repugnancy as would warrant us in saying that a repeal by implication of section 6 of the Supplemental Creek Agreement, supra, was had. On the contrary, the conflict between the two is largely a creature of the imagination, as an examination of those statutes will readily disclose. The act of April 28, 1904, supra, was evidently passed for the sole purpose of taking from the tribal courts their criminal, civil, and probate jurisdiction, and vesting it in the United States courts of the Indian Territory, and by section 2, especially, to set at rest all doubts as to whether or not United States courts could and did have probate jurisdiction, and the act also provided additional facilities in the matter of extra judges and court towns. There was no attempt to provide by said act a new law of descent and distribution. There is nothing in the act that will warrant such an inference or justify such a conclusion. The section of the act of April 28, 1904, supra, complained of reads as follows:

"All the laws of Arkansas heretofore put in force in the Indian Territory are hereby continued and extended in their operation, so as to embrace all persons and estates in said territory, whether Indian, freedmen, or otherwise."

This part of said section does not repeal any law in force in the Indian Territory except those acts which excluded certain persons and estates from the operation of the laws of Arkansas — and the tribal laws did so to a certain extent — making their misdemeanors, and certain felonies, punishable by the United States laws — which were the Arkansas laws — and bringing their estates within the scope of the Arkansas laws for probate purposes. Certainly no other construction can be given to that part of section 2, while the balance of said section deals with the jurisdiction of the Indian Territory courts; as witness:

"And full and complete jurisdiction is hereby conferred upon the district courts in said territory in the settlement of all estates of decedents, the guardianship of minors and incompetents, whether Indian, freedmen or otherwise."

This gave to the United States courts probate jurisdiction in all those enumerated classes of cases, in some of which jurisdiction had not theretofore been exercised. And, as is well said by counsel for defendant in error in his brief: "It also set at rest any doubt which there might be of a United States court having such jurisdiction." Certainly there is no repeal of section 6 of the Supplemental Creek Agreement in this section. This act of April 28, 1904, supra, put in force in the Indian Territory the laws of Arkansas, in certain classes of cases where certain tribal laws had theretofore controlled, but did not in any manner affect the provisions of the special act known as the Supplemental Creek Agreement, of June 30, 1902,supra. To hold that it did, would also, in like effect, hold that it would repeal all the restrictions upon alienation of Indian lands; the provisions for special United States courts; all tribal tax laws; all laws forbidding taxing of Indian lands, etc. Indeed, very few, if any, United States laws would be left in force in the Indian Territory, for, as counsel contend, only such laws would be in force as had theretofore been put in force from the Statutes of Arkansas.

We do not deem further consideration of this subject necessary. Undoubtedly the devolution of the land embraced in this controversy is controlled by section 6 of the Supplemental Creek Agreement, supra, and, such being the case, it is plainly apparent that the plaintiff, George Washington, the full-blood Seminole father of Waitie Washington, a half-blood Creek, did not inherit any interest in his allotment, and therefore the judgment of the district court of Hughes county should be affirmed.

By the Court: It is so ordered.