The Department of the Interior has no concern with reference to the distribution of unrestricted property belonging to Indian estates regardless of the fact that the question of marriage or divorce may be involved.
INDIAN LANDS - - CEREMONIAL MARRIAGE - - INDIAN CUSTOM
Where Indians, parties to a ceremonial marriage, both of whom were still living in tribal relations, separated with the clear intention of not living together again, such separation constitutes a valid Indian custom divorce.
INDIAN LANDS - - INDIAN CUSTOM DIVORCE - - DESCENT AND
DISTRIBUTION - - ESTOPPEL
Where an Indian wife separated from her Indian husband with clear intention of never living with him again, she is estopped from claiming any share in his estate.
INDIAN LANDS - - INDIAN HEIRSHIP - - SECRETARY OF THE INTERIOR
- - COURTS - - JURISDICTION - - STATUTES
The act of June 25, 1910, made the Secretary of the Interior a special tribunal with exclusive jurisdiction to determine the heirs of deceased Indians, and his decisions thereon are final and conclusive, and not reviewable by the courts even after the expiration of the trust period.
INDIAN LANDS - - INDIAN CUSTOM DIVORCE
In recognizing the validity of Indian custom divorces no distinction is to be made in the kind of marriage which such divorce dissolves so long as the parties contracting the marriage and effecting the divorce are Indian wards of the Government and living in tribal relations.
INDIAN LANDS - - GUARDIANSHIP - - JURISDICTION
When the guardianship of the United States over Indians terminates is a political matter to be determined by Congress, and one over which neither the courts nor the States have any power.
INDIAN LANDS - - INDIAN CUSTOM MARRIAGE
A marriage contracted between members of an Indian tribe, in accordance with customs of such tribe, where the tribal relations and government existed at the time of the marriage, and there was no Federal statute rendering the tribal customs invalid, is a valid marriage for all purposes.
INDIAN LANDS - - INDIAN CUSTOM MARRIAGE - - COMMON LAW MARRIAGE
An Indian custom marriage is a legal marriage according to the customs of the tribe and is, therefore, not to be treated as the equivalent of a common-law marriage among whites.
INDIAN LANDS - - ALLOTMENT - - DESCENT AND DISTRIBUTION - -
TRUST PATENT - - MARRIAGE - - STATUTES
The provision in section 5 of the act of February 8, 1887, making the laws of descent of the State or Territory where the lands are situated applicable after trust patents have been issued was merely for the purpose of establishing a rule for the determination of heirship; the act does not undertake to prescribe what is necessary to constitute the legal relation of husband and wife, or of parent and child.
INDIAN LANDS - - ALLOTMENT - - CITIZENSHIP - - MARRIAGE - -
DIVORCE - - STATUTES
Under the act of May 8, 1906, which amended section 6 of the act of February 8, 1887, an Indian did not become a citizen of the United States upon allotment; consequently, as to allotments thereafter made the allottee did not become subject to State laws, but his domestic relations continued to be governed by tribal custom.
INDIAN LANDS - - ALLOTMENT - - PATENT - - JURISDICTION - -
INDIAN CUSTOM MARRIAGE
The allotment of lands in severalty to Indians does not terminate their tribal relations, but all Indian allottees remain subject to the exclusive jurisdiction of the United States until the issuance of fee simple patents, and so long as this jurisdiction continues the marriage relations of such Indians are to be determined by their tribal customs, and not by the laws of the State.
INDIAN LANDS - - ALLOTMENT - - HEIRSHIP - - STATUTES
The act of February 8, 1887, is primarily an allotment act, whereas the act of June 25, 1910, is for the purpose of determining the heirs of deceased allottees, and if a conflict arises between the provisions of the two acts with reference to the determination of heirship, the latter act governs.
INDIAN LANDS - - INDIAN CUSTOM MARRIAGE - - CEREMONIAL
MARRIAGE - - PRESUMPTION OF ABANDONMENT
The fact that certain members of an Indian tribe who were married and lived together according to tribal custom were subsequently ceremonially married is not sufficient to raise the presumption of abandonment of tribal custom and that Indian custom marriage and divorce are no longer practiced by the tribe.
INDIAN LANDS - - INDIAN CUSTOM MARRIAGE - - INDIAN CUSTOM
The Department of the Interior can not hold by regulation that one particular tribe of Indians is sufficiently advanced to justify its marriage relations being henceforth regulated in accordance with the white man's law, and that other tribes are not so advanced, but it must recognize Indian custom marriage and Indian custom divorce generally until Congress fixes some other definite and uniform rule.
INDIAN LANDS - - MARRIAGE - - DIVORCE
A law or ordinance adopted by an Indian tribe regulating marriage and divorce is not mandatory and does not invalidate custom marriage and divorce.
INDIAN LANDS - - INDIAN CUSTOM DIVORCE - - EVIDENCE
The question as to when an Indian custom divorce has been consummated is one of fact in each particular case.
INDIAN LANDS - - INDIAN CUSTOM MARRIAGE - - INDIAN CUSTOM
Congress alone has the power to say when Indian custom marriage and divorce shall cease to valid.
INDIAN LANDS - - CITIZENSHIP - - STATUTES
The act of June 2, 1924, which declared all noncitizen Indians born within the territorial limits of the United States to be citizens of the United States did not contemplate any disturbance of the existing status and relations of the Indians with respect to their property and other recognized rights.
INDIAN LANDS - - INDIAN CUSTOM MARRIAGE - - INDIAN CUSTOM
Congress, the courts, and the Department of the Interior have all recognized Indian custom marriage and Indian custom divorce as of equal validity with ceremonial marriage and legal divorce under State laws.
My opinion is requested on certain matters submitted by the Commission of Indian Affairs relating to the department's finding of heirs on October 8, 1927, to the estate of Noah Bredell, a deceased Nez Perce Indian, Fort Lapwai Agency, Idaho. The estate consisted partly of property held in trust by the United States and partly of unrestricted property over which the department has no jurisdiction. The finding of heirs by the department extended only to the property held in trust. An administrator was appointed in Idaho for the unrestricted part of the estate and as to the distribution of this part the department, of course, is not concerned. This is equally true of all property belonging to Indian estates over which the department has no jurisdiction, whether the question of marriage and divorce, as in this case, is involved or not. Under the department's finding of heirs to the estate of Noah Bredell one Lillie Viles, to whom he was married by ceremony, was excluded on the ground that she separated from him under such circumstances as constituted a valid Indian custom divorce. The specific questions submitted for opinion are: (1) Whether the 1927 decision should stand or be reversed and (2) the broad general policy as to what constitutes Indian custom marriage and divorce. Although the department heretofore has frequently had occasion to consider and pass upon similar questions, in view of somewhat prevalent misconceptions it is deemed advisable to review the situation at considerable length. It may be said here that in view of repeated statements and references that have been made concerning the marital history of Noah Bredell, his having been a member of the church and his seeming inclination to follow the white man's ways, the question is not whether he divorced himself from Lillie Viles, but whether her actions and demeanor amounted to a divorce from him according to the Indian custom; and furthermore as to whether such a divorce may be recognized in view of the fact that the parties went through the form of a ceremonial marriage.
The department determined the heirs to the estate of Noah Bredell October 8, 1927. Similar contentions were made at the original hearing for such determination as are now being made for a reopening of the case. No new evidence of a material nature has been added to the record made up at that time. On the question as to whether the separation of the parties may be regarded as a divorce in accordance with Indian custom the pertinent facts re as follows: Noah Bredell and Lillie Viles were married August 18, 1925. She left him the next day and never returned to him. He died on or about August 13, 1926, one year after the marriage and separation. He was about 70 years of age and Lillie Viles was 29. She testified - -
The foregoing not only shows that these parties were still living in tribal relations but clearly indicates that Lillie Viles did not intend to live with Noah Bredell again. She had received his final answer that he could not take of her children, which fairly shows her motive for marrying him at all and as she says was her "main reason" for leaving him. The department was fully justified from the evidence in concluding that her separation or abandonment of Noah Bredell amounted to a valid Indian custom divorce. According to her own testimony she never intended to live with him again which if there were no other reason ought effectually to estop her from claiming any share in his estate. The material question on this phase of the matter is as to what material difference, if any, results from the fact that the parties were married by ceremony instead of by Indian custom in so far as the kind of divorce is concerned.
In determining the heirs of deceased Indians the practice of the department long has been not only to recognize Indian custom divorce of an Indian custom marriage, but of a ceremonial marriage as well, and there are valid and conclusive reasons for the practice. There is no question as to recognizing the validity of Indian custom marriages and divorces. Therefore it necessarily follows that they must be treated as being of equal validity with ceremonial marriage and legal divorce under the laws of the State, otherwise their recognition would carry no force whatever. It was held in the case of Kunkel v. Barnett (10 Fed., 2d Series, 804, 805) - -
By the custom established, no formal contract or ceremony is essential to a marriage; a mere meeting and cohabitation as husband and wife constitute marriage. By the same custom a divorce may be effected by a separation by mutual consent.
By the act of June 25, 1910 (36 Stat. 855), the Secretary of the Interior is authorized to determine the heirs of deceased Indians and it is provided that "his decision thereon shall be final and conclusive." It was early held in the case of Bond v. United States (181 Fed. 613), that this act made the Secretary of the Interior a special tribunal for the purpose and in declaring that his decision should be "final and conclusive" made the authority conferred upon him exclusive, thereby depriving the courts of jurisdiction to determine heirship. This ruling was followed in the case of Pel-ata-yakot v. United States (188 Fed. 387), wherein it was held: "The provision is comprehensive, and clearly evinces the intention of Congress to confer exclusive jurisdiction to decide such controversies upon the Secretary of the Interior." It was also held (syllabus) in the case of Parr v. Colfax (197 Fed. 302), referring to the act of 1910: "Such act deprived the Circuit Court of Appeals of jurisdiction to entertain an appeal from a decree sued out after the statute went into effect, since it deprived the court of jurisdiction to enforce any judgment it might render on such appeal." See also McKay v. Kalyton (204 U.S. 458); Caesar v. Krow (176 Pac. 927); Hallowell v. Commons (239 U.S. 506); Lane v. Mickadiet (241 U.S. 201); United States v. Bowling (256 U.S. 484); First Moon v. White Tail (270 U.S. 243). In the case of Spicer v. Coon (238 Pac. 833), the Supreme Court of Oklahoma held that a determination by the Secretary of the Interior of the legal heirs of an Indian allottee as authorized by the act of June 25, 1910, is final and conclusive, and not reviewable by the courts even after expiration of the trust period. That the department is not bound by the laws of the State or the decisions of the courts in matters of this kind was fully settled in the case of Bond v. United States (181 Fed. 613); Blanset v. Cardin (256 U.S. 319), and Sperry Oil Co. v. Chisholm (264 U.S. 488). This is self-evident, otherwise the courts and not the Secretary of the Interior in whom exclusive authority is lodged by law would become the forum for determining heirship.
As exclusive authority rests in the Secretary of the Interior to determine the heirs of deceased Indians and the courts disclaim any jurisdiction in the premises, and in view of the fact that marriage and divorce among the Indians in accordance with tribal custom are recognized as valid, it necessarily follows that an Indian custom marriage is of equal validity with a ceremonial one, and similarly an Indian custom divorce is of equal force with one procured through legal procedure. The department on March 14, 1912, in the (unreported) case of Heirs of Pishedwin, which involved an Indian custom divorce of a ceremonial marriage, held - -
In recognizing the validity of Indian custom divorces, the department does not make any distinction in the kind of marriage which such a divorce dissolves so long as the parties contracting the marriage and effecting the divorce are Indian wards of the Government and living in tribal relations. A marriage between two such Indians, accompanied by certain elements which would make a good common law marriage or a ceremonial marriage among citizens of a State, does not thereby become proof against a subsequent Indian custom divorce.
A marriage "by Indian custom," in the view of the department, is as real a "marriage" as one accompanied by a legal ceremony according to forms prescribed by State laws. Similarly, a divorce by Indian custom, while the parties are wards of the Government, is, in the view of the department, a valid divorce dissolving the prior marriage relation, no matter what may have been the method or the manner by which the marriage was assumed.
(Italics supplied.) which is tantamount to saying that a ceremonial marriage between Indians, being of no more validity nor of any more binding force than one according to tribal custom would have been, such marriage can and will be treated as a valid Indian custom marriage regardless of the ceremony performed in accordance with the laws of the State, as the ceremony was unnecessary to constitute a valid marriage. For similar reasons their separation according to Indian custom constitutes a valid divorce without going through the form of legal procedure to procure it. The fact that the Indian may go through a legal ceremony when without such ceremony and by Indian custom the marriage would have been equally valid can not affect the efficacy of a subsequent Indian custom divorce, the parties still living in tribal relations. As to the validity of Indian custom marriage and divorce, and as further showing the attitude of the courts, reference is made to the following ases. It was held in the case of Cyr v. Walker (116 Pac. 931, 934) - - time, recognized the validity of marriages contracted between the members of any Indian tribe in accordance with the laws and customs of such tribe, where the tribal relations and government existed at the time of the marriage, and there was no federal statute rendering the tribal customs or laws invalid (Morgan v. McGhee, 5 Hump. (Tenn.) 13; Earl v. Godley, 42 Minn. 361, 44 N. W. 254, 7 L. R. A. 125, 18 Am. St. Rep. 517); and such marriages
between a member of an Indian tribe and a white person, not a member of such tribe, have been held and regarded as valid, the same as such marriages between members of the tribe. Morgan v. McGhee, supra; Wall v. Williamson, 8 Ala. 48; Wall v. Williams, 11 Ala. 826; Johnson v. Johnson, 30 Mo. 72, 77 Am. Dec. 598; La
Riviere v. La Riviere, 77 Mo. 512. And the same effect is given to the dissolution of the marriages under the custom of the tribe as is given to the marriage relation itself. Wall v. Williamson, supra; Wall v. Williams, supra.
See also State v. Columbia George (65 Pac. 604); McBean v. McBean (61 Pac. 418); Kobogum v. Jackson Iron Co. (43 N. W. 602); Earl v. Godley (44 N. W. 254); James v. Adams (155 Pac. 1121); Davidson v. Roberson (218 Pac. 878); Ortley v. Ross (110 N. W. 982); Coker v. Moore (249 Pac. 694), and Kunkel v. Barnett (10 Fed., 2d Series 804). The latter case leaves no doubt as to the correctness of the position taken by the department in this matter.
It was held in the case of Tiger v. Western Investment Co. (221 U.S. 286) -
It is for Congress, in pursuance of long established policy of this Government, and not for the courts, to determine for itself when, in the interest of the Indian, Government guardianship over him shall cease.
In contending for the reopening of the instant case the belief seems to prevail that even in a case where the marriage is by Indian custom, procedure in accordance with the laws of the State ought to be required to dissolve it. Apparently this is on the theory that marriage by custom among the Indians is the same as or equivalent to common law marriage among the whites. While the two forms possess some elements in common, they are, nevertheless, distinct and independent. For in accordance with the immemorial tribal custom an Indian marriage and an Indian divorce according to such tribal custom are as much a legal marriage and a legal divorce among the Indians as are ceremonial marriages and legal divorces among whites. They are in accordance with what constitutes tribal law. It was held in the case of Buck v. Branson (127 Pac. 436), syllabus - -
A marriage contracted between members of an Indian tribe, in accordance with the customs of such tribe, where the tribal relations and government existed at the time of such marriage, and there was no federal statute rendering the tribal customs invalid, will be recognized by the courts as a regular and valid marriage for all purposes.
Also in the case of McFarland v. Harned (243 Pac. 141, 143) - - Marriage, according to tribal customs, is neither a common-law nor a ceremonial marriage, but is nevertheless a legal marriage according to the customs of the tribe when such customs are recognized by Congress as regulating their domestic relations.
The case of Buck v. Branson, supra, was followed by that of James v. Adams (155 Pac. 1121), wherein it was held (syllabus) - - Marriages, contracted between tribal Indians according to the usages and customs of their tribe, at a time when the tribal government and relations are existing, will be upheld by the courts, in the absence of a federal law rendering invalid the laws and customs of the tribe.
A dissolution of the marriage contract, according to such tribal laws, usages, and customs, will be likewise upheld by the courts.
It was held in Kunkel v. Barnett (10 Fed., 2d Series, 804, 806): While it is true the decisions are not uniform as to the validity of Indian divorces, it may safely be stated that, so long as the Indians live together under the tribal relation and are not subject to the laws of the state, but only to the jurisdiction of the Congress, and the paramount federal law places no limitation upon such tribes in reference to managing their own affairs, including their domestic relations, marriages and divorces according to the usages and customs of the tribe will be treated as valid by the courts.
Also in the cast of La Framboise v. Day (161 N. W. 529), it was held
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