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INDIAN LANDS - - MARRIAGE - - DIVORCE - - DEPARTMENT OF THE INTERIOR

(1926)


INDIAN LANDS - - MARRIAGE - - DIVORCE -
- DEPARTMENT OF THE INTERIOR


memorandum
INTERIOR - - JURISDICTION

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

DIVORCE

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
DIVORCE

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
DIVORCE

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
DIVORCE

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.

FINNEY, Solicitor:

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 - -

  1. Q. Why did you leave him after two days?
  2. Q. Was there any other reason for leaving him?
  3. Q. Did you ever go back to live with him, or did you ever
    intend to go back to live with him?
  4. A. I never went back; I intended to go back to live with him if he would support my children, but he never would offer to support my children.