Nivens v. Nivens

4 Indian Terr. 574 | Ct. App. Ind. Terr. | 1903

Clayton, J.

At our October, 1901, term, an opinion was handed down in this case, reversing the decree of the court below, 4 Ind. Ter. Rep., p.30(64S. W. 604) on the ground that by the provision of the act of Congress entitled “An act for the protection of the people of the Indian Territory, and for other purposes" (Act June 28, 1898, c. 517, 30 Stat. 495), commonly called the “Curtis Bill," provided that on and after the passage of this act, the laws of the various tribes or nations of Indians shall not be enforced at law or in equity .by the courts of the United States in the Indian Territory;” and therefore, as the courts of the Cherokee Nation had been abolished by law, and the laws of Arkansas relative to descents and distributions had been extended over the Indian Territory that the distribution of the estate must be had under the 'Arkansas statute. The court lost sight of the fact that the intestate had died before the passage of the Curtis Bill and while the Cherokee laws were in full force and effect, and therefore the rights of the parties herein as widow and heirs had vested under the Cherokee laws. A motion for rehearing was filed and allowed, the case reargued, and at our June, 1902, term, another opinion was handed down, setting aside the judgment of this court at its October, 1901, term, and affirming the judgment of the court below. This last judgment of the court was correct, but, as the affirmance was thought to be had on .incorrect grounds, another motion for rehearing was filed and allowed, and at our June, 1903, term, was argued and submitted. As the only question in this case now is as to whether the distribution of the estate of Jeff Nivens should have been under the Cherokee or Arkansas law, we will confine ourselves to that issue. Jeff Nivens died before the passage of the Curtis Bill, leaving surviving him his wife, Bettie Nivens, the appellee. He left no children or other descendants. The Cherokee statute of descent provides that: . “Whenever any person shall die possessed of property not devised, the same shall descend in the following order, to wit: First, in equal parts to the husband or wife, and the children of such intestate and their descendants. The descendants of a deceased child or grandchild to take the share of the deceased parent equally among them.” Comp. Laws Cherokee Nation, 1892, § 518, p. 267. Under this statute the widow of Jeff Niven$ was entitled to all of the estate of her deceased husband, including his share of the estate of his father, Moses Nivens; and, inasmuch as he had died before the enactment of the Curtis Bill, the rights of the appellee, Bettie Nivens, as widow and heir, had vested under the Cherokee act, and no subsequent act of Congress annulling the laws of the Cherokee Nation could divest those vested rights. Such an act -would be retroactive, and in violation of the fifth amendment to the Constitution of the United States. Wade on Retroactive Laws, 156; Steamship vs Joliffe, 2 Wall. 450, 17 L. Ed. 805; Memphis vs U. S., 97 U. S. 293, 24 L. Ed. 920; Lawson’s Rights & Remedies, vol. 7, § 3850 Black, Const. Prohib. 176, 183, 207; Sutherland on Stat. Const. 490; Wilkinson vs Leland, 2 Pet. 627, 7 L. Ed. 542; Sims vs Irvine, 3 Dall. 425, 1 L. Ed. 665. As the master’s report, which was confirmed, and the decree of the-court below, were based upon this view of the law, we find no error in the proceedings, and it is therefore affirmed; and the original judgment of this court, reversing the same, is set aside.

Affirmed.

Gill, C. J., and Raymond and Townsend, JJ., concur.