[Filed July 18, 1938]
Jackson Barnett ... Findings: Part 1 ... Part 2
| In the Matter of the Estate of ) Jackson Barnett, deceased. ) In re determination of heirs. ) | No. 4556 Equity - Consolidated |
Come now the above named claimants, parties to this
action, and respectfully request the court to make the following
findings of fact and conclusions of law, to-wit:
1. The decedent, Jackson Barnett, was a Creek
Indian duly enrolled on the approved rolls of the Creek Tribe
or Nation of Indians as a full-blood, opposite Roll No. 4524. He
was a citizen of the State of Oklahoma, and a legal resident of
Muskogee County in said state. He died in Los Angeles, California,
on or about May 29, 1954, intestate, survived by no wife or issue,
and by no father or mother or brother or sister. At the time of
his death he was legally domiciled in Muskogee County, Oklahoma,
and was seized and possessed of real and personal property situated
in the Eastern and also in the Northern Judicial Districts of the
State of Oklahoma and in Muskogee County in said state.
2. This suit is a consolidation of certain proceedings and actions instituted in the County Court of Muskogee
County, the District Court of Muskogee County, and the District
Court of McIntosh County, Oklahoma, all of which were by the
United States of America removed to this court, and all of which
look to the administration of Jackson Barnett's estate and the determination of his rightful heirs and the quieting of
title to property. The United States of America, through the
United States Attorney for the Eastern District of Oklahoma,
acting upon the request of the Secretary of the Interior and by
authority of the Attorney General, intervened in said actions
so removed to this court, and prayed that this court require all
persons claiming to be heirs of Jackson Barnett to intervene in
this suit and assert their said claims, and that this court determine who are in fact the heirs at law of Jackson Barnett, to the
end that the property, real and personal, belonging to his estate
and held subject to the supervision of the Department of the Interior
should be distributed to his rightful heirs. Thereupon, on motion
of the parties, all of said causes were consolidated; anl this
court made and duly published an order requiring all persons claiming to be heirs of Jackson Barnett and entitled to share in his
estate to come in and assert their claims in said consolidated
cause on or before a day certain; and the court made an order remanding to the County Court of Muskogee County in part the said cause so removed therefrom, but only for the purpose of appointing
an administrator of the estate of Jackson Barnett and carrying on
all of the administration proceedings except the determination
of the heirs of said Jackson Barnett and the interests therein
which they inherited, and the fixing of charges against said estate
arising out of this suit, all of which this court retained, at the
instance of the United States, with power to render all just and
proper decrees and make all just and proper orders in connection
therewith. The court expressly finds that it has jurisdiction of
this cause and of all persons who claim or have inherited any part
of said estate.
3. Numerous claimants have appeared asserting that
they are the nearest of kin to Jackson Barnett and are his rightful heirs and are entitled to inherit the whole or a portion of
his estate; and a vast amount of evidence has been taken in
support of and in opposition to the respective claims, both
orally in court and by depositions taken before commissioners
appointed by the court; and from the pleadings and evidence in
the cause the court finds as follows:
4. Anna Laura Lowe intervened in this action under
the name of Anna Laura Barnett, asserting that she had been lawfully married to Jackson Barnett and was his wife at the time of
his death, and as such is entitled to inherit all of his estate.
As a full-blood member of the Creek Tribe of Indians,
Jackson Barnett was, at the time of Anna Laura Barnett' s purported
marriage to him and at all times thereafter, a ward of the United
States, and his money and property were subject to the supervision
and control of the Secretary of the Interior, and the United States
had power and authority to institute and carry on suits in his
behalf and in behalf of his heirs. And in an action instituted
during Jackson Barnett' s lifetime in the District Court of the
United States for the Southern District of California, Central
Division, in which the United States of America was plaintiff and
Anna Laura Barnett, nee Lowe, was a defendant, said court
expressly found and adjudged that Jackson Barnett did not have
sufficient mental capacity to enter into a valid marriage, that
the claimant, Anna Laura Barnett, kidnapped Jackson Barnett, and
by the exercise of undue influence upon his weak will and incompetent mind procured him to go through a marriage ceremony with
her; and that said marriage was void ab initio, and that said
Anna Laura Lowe-Barnett is not and never has been the wife of
Jackson Barnett; and said court therein ordered, adjudged and
decreed that the claimant, Anna Laura Barnett, was not and never had been the wife of Jackson Barnett, and that any and all proceedings or ceremonies pretending to have created a marriage between her and the said Jackson Barnett were void, invalid and of
no force or effect, and did not result in the consummation of a
marriage between the said parties; and that all such proceedings so
had were thereby declared null, set aside and cancelled; and that
Anna Laura Barnett had never acquired the status of a wife to
Jackson Barnett, nor any marital rights as his wife, and that any
and all actions or proceedings taken by her as such pretended wife
should be and were cancelled, annulled and set aside; and that said Anna Laura Barnett had no right, title or interest in or to
any of the property, real or personal, of said Jackson Barnett, or
any claim of any nature against him or his property; and that said
Anna Laura Barnett should be and she was thereby forever enjoined
from asserting that she was the wife of Jackson Barnett, and from
claiming or asserting any right or interest in his property during
his lifetime or after his death; and said court ordered, adjudged
and decreed that all property, both real and personal, which
Anna Laura Barnett had obtained or procured from said Jackson
Barnett, be returned and restored to said Jackson Barnett, and that
all muniments of title to such property held by the said Anna
Laura Barnett be cancelled, annulled and set aside, and that Anna
Laura Barnett had no right, title or interest in or to any portion
of the property, either real or personal, then, theretofore or
thereafter belonging to Jackson Barnett.
Anna Laura Barnett appealed from said judgment and
decree to the Circuit Court of Appeals for the Ninth Circuit, and
on March 23, 1936, said court rendered its opinion and made and
entered its order and decree affirming the said judgment of the
District Court of the United States for the Southern District of
California, Central Division. Thereupon the said Anna Laura
Barnett applied to the Supreme Court of the United States for a
writ of certiorari directed to the Circuit Court of Appeals for
the Ninth Circuit, to review the said decision of said Circuit
Court of Appeals, which application for said writ of certiorari
the Supreme Court of the United States denied. Thereupon a mandate
was duly issued to said trial court affirming its said decree, and
was there recorded and a final order thereon was there entered.
By the affirmance by said Circuit Court of Appeals
of said judgment and decree of the District Court of the United
States for the Southern District of California, Central Division,
and by the denial by the Supreme Court of the United States of
Anna Laura Barnett's application for a writ of certiorari, the
said judgment and decree of the District Court of the United States
for the Southern District of California, Central Division, became
and is final; and the same is res adjudicata as to the question of
the validity of the purported marriage between Jackson Barnett and
said Anna Laura Barnett, and is conclusive upon the claimant, Anna
Laura Barnett, that she is not now and never was the lawful wife
of Jackson Barnett, and is not entitled to inherit any part of his
estate.
5. Independently of the judgment and decree mentioned
in the foregoing finding, this court finds from the evidence
introduced in this case that Jackson Barnett from his youth up
had been and was an incompetent person, that he was weak-minded,
was generally known as Crazy Jack, and that he never at any time
had sufficient mental capacity to enter into a valid marriage
contract; that the purported marriage between the claimant, Anna
Laura Barnett, and Jackson Barnett was brought about by Anna
Laura Barnett kidnapping Jackson Barnett and exercising undue
influence upon his weak will and incompetent mind to procure him
to go through said marriage ceremonies; and that said marriage
was void ab initio, and that the claimant, Anna Laura Barnett,
did not thereby become and has never been the wife of Jackson
Barnett, and is not entitled to inherit any part of his estate.
6. The claimant, who calls herself Bertha Barnett,
is a full-blood negro woman, and she contends that she married
Jackson Barnett at the old Fountain Church near Leecher's Ferry
in the Creek Nation about 1879; that there were born to her as
a result of said marriage the claimant, Henry Barnett, alias Jones,
and Mayetta Barnett, alias Kingston; and that she was never
divorced from the said Jackson Barnett and was his wife at the
time of his death.
The court finds that said Bertha Barnett was never
in fact married to Jackson Barnett, and the court seriously doubts
whether she ever saw him in her life. She did not go by the name
of Barnett until after Jackson Barnett died. In Chandler,
Oklahoma, she was known as Birdie Mayberry, and there in May, 1908,
she married, under a marriage license duly issued, another negro
named John McCowan. Her alleged son, Henry Jones, now claiming
to be Henry Bamett and to be the son of Jackson Barnett, always
went under the name of Henry Jones until after Jackson Barnett's
death. Her purported daughter, Mayetta Kingston, is not in fact
her daughter at all, and is not the daughter of Jackson Barnett.
On the contrary, she is a Creek Freedman and is the daughter of
John Simms or McSimms and Lizzie Manuel, and she was enrolled by
the Commission to the Five Civilized Tribes as a Creek Freedman
under the name of Rosa McSimms, Roll No. 3901. The court finds
that these claims are fraudulent and fictitious. None of these
claimants is related to Jackson Barnett in any manner, and none
of them is entitled to inherit any part of his estate.
Moreover the court finds that Jackson Barnett from
his youth up was an incompetent person, that he was weak-minded,
was generally known as Crazy Jack, and that he never at any time had sufficient mental capacity to enter into a valid marriage contract.
7. The said Ellie or Ollie Johnson claims to be
the wife of Jackson Barnett, and said Martha Randall, alias Nellie
Barnett, claims to be the daughter of the said Jackson Barnett
and Ellie Johnson.
The name of said Ellie Johnson appears opposite
Roll No. 5573 on the approved Creek Roll as a full-blood Creek
Indian. She did not go by the name of Barnett prior to the death
of Jackson Barnett, and in fact has never gone by the name of
Barnett; and Martha Randall did not go under or have the name of
Barnett or the name of Nellie prior to the death of Jackson
Barnett.
The court finds that no marital relation ever existed
between the said Ellie Johnson and the said Jackson Barnett, and
that the said Martha Randall, alias Nellie Barnett, is not the
daughter of the said Jackson Barnett, although she is the daughter
of the said Ellie Johnson. The court finds that Martha Randall,
alias Nellie Barnett, was born on May 13, 1920, and that Jackson
Barnett was about 70 years of age at that time and was not then
in the State of Oklahoma. The court finds that neither of these
claimants is entitled to inherit any part of Jackson Barnett's
estate.
Moreover, the court finds that at the time Ellie or
Ollie Johnson claims to have married Jackson Barnett, the latter
was weak-minded, was generally known as Crazy Jack, was an incompetent person, and did not have sufficient mental capacity
to enter into a valid marriage contract.
8. This person claims that he is the son and only child of Thlesothle or Thlesothla, who, he contends, was a sister of Jackson Barnett. The court finds that there is no credible evidence in the record that Jackson Barnett ever had a sister named Thlesothle or Thlesothla. It appears that Jackson Barnett's mother was named Thlesothle. No sister of Jackson Barnett by the name of Thlesothle or Thlesothla appears on or is referred to in the various tribal rolls or in the enrollment records of the Creek Nation made by the Commission to the Five Civilized Tribes. This claimant himself was not enrolled, although he was born several years before the closing of the roll. The court finds that the claimant is a Mexican or a Spaniard, and is not the slightest relation to Jackson Barnett; and that he is not entitled to share in Jackson Barnett's estate.
9. The above claimants contend that Charles Barnett,
Thomas Barnett, James Barnett and Jackson Barnett were brothers,
and the claimants are Charles Barnett for himself and the descendants of the other alleged brothers.
The court finds that the claim of said parties is
not only not supported by, but is contrary to, all the records of
the Commission to the Five Civilized Tribes relating to Jackson
Barnett and to the claimants themselves. The name of none of the
claimants or of their parents appears in the same family group
with Jackson Barnett on any of the tribal rolls of the Creek
Nation, nor are they connected with Jackson Barnett in any manner by any of the enrollment records of the Commission to the Five Civilized Tribes. Assuming that Charles Barnett, Thomas
Barnett and James Barnett were full brothers, the enrollment
records of the Commission to the Five Civilized Tribes show that
the father of Charles Barnett was Hosiah Hola, and that the mother
of Charles Barnett was Sofoala Dogee; whereas the enrollment
records of Jackson Barnett show that his father was Siah Barnett
and that his mother was Thlesothle. The only testimony introduced
in support of these claims was hearsay evidence of certain witnesses to the effect that they had heard Billy McCombs and
Lawyer Deere say that Lawyer Deere was kin to Thlesothle and
Jackson Barnett. In the face of the tribal rolls and the enrollment records of the Commission to the Five Civilized Tribes, this
hearsay evidence, if competent at all, is far from convincing.
No proof was offered in support of the claims of
Henryetta Howell, nee Barnett, Edna J. Holt, nee Barnett, and
Annie Burgess, nee Barnett, it being recognized that, even if they
are related to Jackson Barnett, they are too far removed to inherit.
The court finds that none of the claimants in this
group is related to Jackson Barnett, and that none of them is entitled to inherit any part of his estate.
10. The above claimants contend that Polly Gibson
was the sister of Thlesothle, Jackson Barnett's mother, and that
they are descendants of Polly Gibson.
Only two witnesses were introduced in support of
this claim, and they were two of the claimants, Martha Jane
Walker and Pauline Stanfield. Martha Jane Walker testified that
her father was a white man, and that her mother was Polly Gibson;
that Polly Gibson was John Leecher's sister; that her mother
died when the witness was a year and a half old; that she had
heard that Thlesothle was her mother's sister; that she never saw
Thlesothle, and that she doesn't remember who told her that the
latter was her mother's sister, but thinks it must have been her
father; that she could not tell when she heard about her relationship to Thlesothle, and does not remember who told her about it;
and that Thlesothle never had any children that she knew of. She
was unable to pronounce Thlesothle's name. She testified that she
did not know who the mother of Jackson Barnett was, and that
Thlesothle was "Jackson Barnett's wife's name, isn't it?".
Pauline Stanfield, the other witness, is also a claimant, and is the niece of Martha Jane Walker. She did not pretend to have any personal knowledge of Thlesothle or to have heard anything about her except what Martha Jane Walker told her. The claimants introduced as exhibits certified copies of certain portions of the enrollment records of the Commission to the Five Civilized Tribes; but none of them tend to show that the claimants are related to Jackson Barnett in any manner.
The claim of these claimants is not sustained by
evidence or by the enrollment records of the Commission to the
Five Civilized Tribes, and the court finds that they are not related to Jackson Barnett and are not entitled to any part of his estate.
11. The above claimants contend that Yarda Barnett
was the father and Thlesothle the mother of Jackson Barnett, and Yarda Barnett by another wife, Judie Barnett, and that the claimants are the sons and daughters of William and James Barnett,
who were paternal half-brothers of Jackson Barnett.
The court finds that these claimants' alleged ancestor
whom they call Yarda Barnett, never appeared on any tribal rolls
under the name of Barnett except as hereinafter noted, and that
his name was Yarda or Cowe Harjo or Yartupper, or Parna. He
appeared on the 1857 Creek Roll, Cowassaude Town (Lower Creek)
under the name Coue Harjo, as the head of a family group composed
of Judy, James, Lydia and Billy. The name Barnett does not appear
in connection with that family or any member thereof on that roll.
Said Cowe Harjo's name appeared on the 1858 Kowsarte Town Roll as
Yartupper, from which he no doubt got the name Yarda, as being the
head of a family composed of Jimmie, Lydia and Billy. The name
Barnett was not used in connection with that family or any
member thereof on that roll. His name appeared on the 1859
Cowsarte Town Roll as Parna, as the head of a family composed of
Indy (probably intended for Judy), Jimmie, Lydia, Billy and Joe.
The name Barnett was not used in connection with that family or
any member thereof on that roll. His name appeared on the 1867
Kowarsarte Town Roll as Cowe Harjo, and the head of a family composed of Jimmie, Judy, Billy, Joseph, Sarah and Sampson. The
name Barnett was not used in connection with that family or any
member thereof on that roll. His name appeared on the 1882
Cowassarda Town Roll as Co-we-ha-go, aged 60 years, and the head
of a family group composed of Judy, age 50; Billy Barnett, age
26; Joseph Barnett, age 24; Luwisa, age 12; and Che-che-na-sa,
age 8. In a separate family group on said roll there appear the
following names: Jim Barnett, age 35; Arlie, age 5; Joseph, age
9. Yarda's name appeared on the 1890 Quassardy Town Roll as
Cowe Harjo, and the head of a family group composed of Judie
Barnett, Louisa Barnett, Jonas Barnett, Harley Barnett, and Betty
Barnett. In a separate family group on said roll there appear
the following names: James Barnett, Martha Barnett, Wesley
Barnett, Joe Barnett and Katee Sharlin; and in another separate
family group there appear on said roll Billy Barnett and Lisa
Barnett.
Cowassaude, Kowsarte, Cowsarte, Kowarsarte,
Cowassarda, and Quassardy are all different spellings of the
same town.
It thus appears that while Jackson Barnett, Siah
Barnett, Dave Barnett, and the other members of Jackson's family
had the name Barnett from prior to the Civil War on down,
nevertheless, prior to 1882, there was no such name as Barnett
in the family of these claimants.
The only time the name Barnett appears on any of
the rolls of the Creek Tribe of Indians in connection with the
name Yarda, Cowe Harjo, Yartupper, or Parna, is on the census
card of James Barnett, et al., from which the final and approved
rolls of the Creek Tribe of Indians were made, where the name
"Yarda Barnette" appears as the father of James Barnette, with the
notation that said Yarda Barnette was dead.
Moreover, the evidence shows that Jonas Barnett was
a son of Yarda, and that he died or was killed on or about June
1, 1912; and that James Barnett, who was a son of Yarda, a brother
of Jonas, and the father of the claimants Wesley Barnett, John
Barnett and Harley Timothy, and William Barnett, who was a son of
Yarda, a brother of Jonas, and the father of the claimant Toney
Barnett, both made and filed affidavits in the County Court of
McIntosh County, Oklahoma, in which they swore that they were the
sole heirs of Jonas Barnett and as such had inherited his allotment, and they thereby as full-blood Indian heirs procured said allotment to be sold and the proceeds thereof to be distributed to them. Those affidavits were in effect sworn declarations of James
Barnett and William Barnett, claimant's immediate ancestors, that
Jonas had no other brothers or sisters or half brothers or
sisters, and therefore that Jackson Barnett was not the son of
Yarda.
Moreover, the evidence shows that Yarda already had a
wife, Judy. The claimants Wesley Barnett and John Barnett testified
that they had always understood that Yarda was Jackson Barnett's
father and Thlesothle his mother; and Wesley Barnett testified
that Thlesothle lived in a cottage in Yarda's yard, and that Yarda
would "slip" into her cottage; and that that occasioned difficulty
between Yarda and Judy, and also that Judy was always opposed to
Jackson Barnett being around and would not accept him into the
family. Therefore, assuming Wesley's evidence to be true, it
would follow that, even if Yarda were Jackson Barnett's father,
then Jackson Barnett was illegitimate, and descent from him would
be cast only on the mother's side, which would exclude these
claimants from inheriting anything.
The court finds that there is no tribal record of the
Creek Nation and no record of the Commission to the Five Civilized
Tribes, and no other credible evidence to the effect that Yarda
was in fact the father of Jackson Barnett; and the court finds
that the above named claimants are not related to Jackson Barnett,
and that even if they were, still they would not be entitled to
inherit any part of his estate.
12. The above claimants contend that Jackson Barnett
was the son of Andrew Sullivan and Thlesothle; that Andrew Sullivan
was also the father of Rebecca Smith, who was enrolled as a Creek
Freedman, No. 773, by another woman, namely, Patsy Barnett, and
that Rebecca Smith was the mother of the claimants.
The evidence shows without dispute that Andrew
Sullivan was a full-blood negro, and was the slave of a Creek
Indian named William Sullivan. Andrew Sullivan appears on the
Creek Freedman Rolls as No. 1541, and he appears on the enrollment records of the Commission to the Five Civilized Tribes as
having been the slave of William Sullivan.
The claimants' contention that Andrew Sullivan was
the father of Jackson Barnett is contrary to all the enrollment
records of the Commission to the Five Civilized Tribes, and is
not sustained by credible evidence.
However, if it were the fact that Andrew Sullivan,
a full-blood negro and a slave, was the father of Jackson Barnett,
still these claimants would not be entitled to inherit, for persons
in slavery were incapable of contracting marriage, and the offspring of such persons had no inheritable blood (Walker v. Tyner,
95 Okl. 120, 269 U. S. 529).
It is not contended that Andrew Sullivan and Thlesothle
were married, or that, if Andrew Sullivan was Jackson Barnett's
father, that Jackson was legitimate.
It is true that the Creek Council passed an act to
the effect that "the children of Creek women by negro men, when
they are not of more than half negro blood, shall be considered
bona fide members of the Creek Nation"; but the purpose and effect
of that enactment was merely to make such offspring members of
the Creek Nation, and not to legitimatize them. A person could be
a bona fide member of the Creek Nation and yet be illegitimate.
This statute did not deal with legitimacy, but only with membership
in the Creek Nation.
The court therefore finds first, that Andrew Sullivan
was not the father of Jackson Barnett, and, second, that, even if
he were, the above claimants are not entitled to inherit any part
of Jackson Barnett's estate. Certain persons testified that Andrew
Sullivan recognized Jackson as his son; but, in the first place,
that evidence is not credible; and, in the second place, even if
Andrew Sullivan did recognize Jackson as his son, that fact would
not have entitled Andrew Sullivan or any of his descendants to
inherit from Jackson Barnett (In re Estate McDade, 95 Okl. 120).
13. The above parties contend that Jackson Barnett
had a sister named Dinah Barnett, that Dinah married one Wiley
Sookey, and that there were born of that union Martha Sookey,
Lucy Sookey, Sallie Sookey, and Bonie Sookey, and that the
claimants are descendants of Dinah Barnett and Wiley Sookey. They
also contend that Jackson Barnett had a first cousin named Mary
Seaman nee Barnett, and that Mary Barnett was the daughter of
another Jackson Barnett who was an uncle of the Jackson Barnett in
question; and that Flora Soloman and Cora Simms are the only
daughters of Mary Barnett, and together with the other claimants
in the group constitute the sole heirs at law and next of kin of
Jackson Barnett, deceased.
The court finds that Louisa Murrell, Crawford Murrell,
Wiley Murrell and Josephine Sookey Thornton were enrolled as half-blood Creeks, and that Emmitt Murrell was born too late to be
enrolled.
The court further finds that Flora Soloman and Cora
Simms are enrolled as Creek Freedmen; and no evidence was offered
in their behalf.
The court finds that the claimants' contentions are
not supported by any of the tribal rolls or records or by any of the
enrollment records of the Commission to the Five Civilized Tribes,
and that there is no credible evidence to the effect that Jackson
Barnett had any sister named Dinah Barnett. There was a Dinah
Sookey, whose heirs received a Loyal Creek payment, and the Loyal
Creek Roll, page 14, shows the following:
Dinah (Hillaby Town) Cr. 35,
Wiley Sookey (Muskogee) 59,
Martha Sookey, Do, 31,
Lucy Murrell, Do, 28,
Sallie Marshall, Do, 25,
Boney Sookey, Do, 25,
The 1857 Town Roll of Hillabee Town shows a family
group in which the name Dinah appears. The 1867 Coweta Town Roll
shows a family group in which the name Wiley Sookey appears, and
the 1882 Coweta Town shows a family group in which the name
Martha Sookey appears. It is significant that Jackson Barnett
did not belong to either Hillaby Town or Coweta Town, but beyond
question belonged to Tuckabachee Town.
None of the rolls of the Creek Nation lists Jackson
Barnett and Dinah Barnett Sookey in the same family group. The
court finds that none of these claimants are entitled to inherit
any part of Jackson Barnett's estate.
14. The above claimants contend that they are the
sole surviving children and heirs of one Jeff Francis, now deceased; their pleadings alleging that Jeff Francis' mother was named "_________________." The testimony in the
case tends to show that her name was Louisa Francis; and they contend that she was a sister of Jackson Barnett.
The court finds from the evidence in the case that the mother of Jeff Francis was not Jackson Barnett's sister, and that the above claimants are not entitled to inherit any part of
Jackson Barnett's estate.
15. The above claimants contend that Siah Barnett
was the father and Thlesothle the mother of Jackson Barnett, and
that Thlesothle was also known as Lizzie; that Siah Barnett and
Thlesothle were also the father and mother of Sarfully, Patilley
and Chokote or Jocohte, who were full brothers of Jackson
Barnett; that Patilley died in 1900, leaving surviving three
children, namely, Joe H. Tiger, one of the claimants, Dick Tiger,
who died before the death of Jackson Barnett, and Annie Tiger,
now the claimant Annie Ponds; and that Sarfulley, a brother of
Jackson Barnett, was also known as Alex Hamilton, and died prior
to the death of Jackson Barnett, leaving surviving him a son,
Peter Hamilton, and a daughter, Hannah Ellis, which latter died
long before the death of Jackson Barnett; and that Chokote died
long prior to the death of Jackson Barnett, leaving no issue; and
that the claimants, Joe H. Tiger, Annie Ponds, and Peter Hamilton,
are niece and nephews respectively of Jackson Barnett, and are
the surviving issue of the brothers of Jackson Barnett, and are all
next of kin to him.
The court finds that Joe H. Tiger and Annie Ponds
nee Tiger are full-blood negroes and were enrolled by the
Commission to the Five Civilized Tribes as Creek Freedmen, and
that Peter Hamilton was enrolled as a five-eighths blood Creek
citizen. The testimony shows that the mother of Peter Hamilton
was a full-blood negro woman.
The court finds that there were two Tuckabachee Towns,
and two Tuckabachee Town Rolls, one known as Upper Tuckabachee
Town, and the other as Lower Tuckabachee Town, or Tuckabachee
Arkansas Town. The evidence shows that Thlesothle belonged to
Upper Tuckabachee Town, while Sarfulley, Patilla and Chokotee
were listed on the Lower Tuckabachee or Tuckabachee Arkansas
Town Roll. It was the custom in making up the Town Rolls in
the Creek Nation to list the members of the same family in groups,
commencing with the head of the family and following with the
wife and children; the wife, if the husband were dead or if they
were separated, heading the family group. There is not a single
Creek Roll, commencing with the 1857 Roll down to statehood,
which ever listed Thlesothle in the same family group with
Sarfulley, Patilla or Chokotee. On the contrary, both the 1857
and the 1859 Tuckabachee Town Rolls (Upper Creeks) listed
Thlesothle, Jackson, Haryarechee and Tecumseh in the same family
group; and both the 1857 and the 1859 Tuckabachee Town Rolls
(Arkansas District or Lower Creeks) listed Temohechee, Sarfulley,
Patilla and Chokotee in another and separate family group.
Patilla was enrolled by the Commission to the Five
Civilized Tribes opposite Roll No. 7950, and it was stated in
the enrollment record that his father and mother were unknown.
It appears that Sarfulley died before enrollment, as did also
Chokotee.
Peter Hamilton, one of the claimants in this case,
was enrolled by the Commission to the Five Civilized Tribes as
being 26 years of age on the date of enrollment in 1899. He was
present during the trial of this case, but was never placed upon
the stand.
Thlesothle's name does not appear on any rolls after
the 1859 Roll, indicating that she had died between the making
of the 1859 Roll and the 1867 Roll; whereas Temohechee, who heads
the family group including Sarfulley, Patilla and Chokotee, appear-
ed on the 1867 Roll and the 1882 Roll.
The 1857 and 1859 Tuckabatche Town rolls (Upper
Creek) list in one family group Thlesothle, Jackson, Haryarechee and
Tecumseh; while the 1857 and 1859 Tuckabatche Town rolls
(Arkansas District or Lower Creek), a different town, list in
another family group Temohechee or Temothlechee or Temohegee (all being different
spellings of the same name) with Sarfulley or Safullee, Petille or Petilley and Chokote. Considering the
custom of the Creeks in making their town rolls, the foregoing
facts are not only highly persuasive but are almost conclusive
that Thlesothle, Jackson, Haryarechee and Tecumseh belonged to one
family group in Tuckabatche Upper Creek town, while Temohechee,
Sarfulley, Petille and Chokote belonged to another family group in
another town, to-wit, Tuckabatche Lower Creek town. In the face
of those tribal records, it would require clear, cogent and convincing evidence to establish that Sarfulley, Petille and Chokote
were children of Thlesothle; and the evidence to that effect is
not clear, cogent and convincing. None of the enrollment records
of the Commission to the Five Civilized Tribes tend to show any
relationship between Thlesothle on the one hand and Sarfulley,
Petille and Chokote on the other.
The claimants produced several old Indian and negro
witnesses who testified that the mother of Sarfulley, Petille and
Chokote was named Lizzie, and that her Indian name was Thlesothle,
and that she died near Bristow and was buried in the Jack
Tebohee cemetery near Bristow. But two of those witnesses,
namely, Polly Wiles (R. 4293) and Aggie Washington (Harry) (R. 4305),
on being brought back to the stand by the United States, testified
that, although they had previously sworn that Lizzie's Indian name
was Thlesothle, nevertheless they in truth had no knowledge of
that fact, and had never heard of her being called that name by
any person, until Peter Hamilton, one of the claimants, and John
J. Harrison, who was assisting the claimants in their case, came
to them and told them that Lizzie's Indian name was Thlesothle,
and requested them to so testify. Both of those witnesses testified positively, on being recalled by the Government, that they
never knew the mother of Sarfulley, Petille and Chokote to be
Thlesothle and never heard of her having that name until Peter
Hamilton and John J. Harrison told them that that was her Indian
name and for them to so testify. They further testified that
John 3. Harrison paid them each $5.00, and that he stated that if
they succeeded in the case he would pay them more.
Aside from those two witnesses there is no other
evidence in the case purporting directly to connect Thlesothle
with Sarfulley, Petille and Chokote.
Another witness produced by the claimant was John Catt, who when asked whether Patilda's mother's name was Temohechee
answered "she might have been." Asked if any one in Patilda's
family was named Temohechee, he answered, "It must have been." He
testified that he knew Chokote and Sarfulley, and that Sarfulley,
Chokote and Needles were one and the same person, which everyone in
the case knows was not true. He testified that Leecher died before
Thlesothle did, although it is known that Thlesothle died between
1859 and 1867, while Leecher died in December, 1897.
Stepney's Exhibit No. 4, being page 403 of the 1859
Tuckabatche Roll, Arkansas District or Lower Creek, shows family
group number two as consisting of Temothlechee, Sarfullee,
Petillee and Chokote, and that roll shows that Temothlechee drew
$16.65 for herself and the same amount for each of the three
children just named, and receipted for the same.
On the other hand Stepney's Exhibit No. 5, being page
153 of the Upper Tuckabatche Town Roll of 1859 showed that
Thlesothle drew $16.65 for herself, and the same sum for
Haryarechee and Jackson, and receipted for the same. If Thlesothle
was the mother of Sarfulley, Petille and Chokote, it is strange
that, although she drew Haryarechee and Jackson's 1859 payment,
she did not draw Sarfulley, Petille and Chokote's, but that
payment was drawn for them by Temothlechee.
Although it is admitted that Thlesothle and Jackson
were both members of the Bear Clan, the evidence shows that Sarfulley belonged to the Beaver Clan, which, under the laws and
customs of the Creeks, would have been impossible if he had been
Thlesothle's son, as the children all took the clan of their
mother. Sam J. Haynes testified that he thought that Sarfulley
belonged to the Beaver Clan, and Polly Wiles testified that
Sarfulley told her he was a member of the Beaver Clan.
It is impossible to find from the evidence, when the
same is considered in connection with the 1857, the 1859 and the
1867 Tuckabatche town rolls, and in connection with the enrollment
records of the Commission to the Five Civilized Tribes, that Siah
Barnett and Thlesothle were the father and mother of Sarfulley,
Petille and Chokote, or that the claimants in this case are related
to Jackson Barnett in any manner. The court finds that the above
named claimants are not related to Jackson Barnett and are not
entitled to inherit any part of his estate.
16. The claimants above named contend that Lucinda
Watashe and Dora Brady are granddaughters of Jackson Barnett, the
decedent herein; that Jackson Barnett was the father of Albert
Brady who was the father of Lucinda Watashe and Dora Brady.
The enrollment records show that Dora Brady was enrolled as a half-blood Creek opposite Roll No. 5476, and that
her father was Albert Brady, who was enrolled opposite Roll No.
5475; that both Albert and Dora Brady were members of Hickory
Ground Town and that Albert Brady's father was Jackson Barnett,
who was dead at the time of their enrollment on March 6, 1900,
and who, during his lifetime, belonged to Hickory Ground Town.
The court finds that the Jackson Barnett, who was the
father of Albert Brady, was not the Jackson Barnett here in question; that the Jackson Barnett who was the father of Albert
Brady, died before the enrollment of Albert Brady on March 6,
1900, whereas the Jackson Barnett here in question did not die
until May 29, 1934, and that the Jackson Barnett who was the
father of Albert Brady was a member of Hickory Ground Town,
whereas the Jackson Barnett here in question was a member of
Tuckabachee Town.
The court finds that neither of these claimants are
related to the Jackson Barnett with whom we are here concerned, and
that neither is entitled to inherit any part of his estate.
17. The court finds that more than thirty groups,
comprising more than 600 persons, residing in Kentucky, Tennessee,
Texas, Indiana, Missouri, Ohio, Virginia, Arkansas, California,
Washington, other states, and even Canada, have filed intervening
petitions herein, claiming to be lineal descendants of or collateral
related to Jackson Barnett. The larger number of those claimants
contend that Jackson Barnett lived in Kentucky and Tennessee while
he was a young man. In fact they claim under not less than five
different Jackson Barnetts. The Kentucky claimants claim that he
married in Kentucky, and the Tennessee claimants claim that he
married in Tennessee, and three separate groups of claimants contend
that he lived in either Kentucky or Tennessee as a young man, about
the close of the Civil War.
The court finds that none of these claims is well
founded; that the Jackson Barnett here in controversy was born
in the Creek Nation in the Indian Territory, and until Anna
Laura Lowe-Barnett took him to Kansas and California, he was
never out of what formerly constituted Indian Territory; and
the court finds that none of the claimants in this case, except
those hereinafter mentioned, is of kin to Jackson Barnett and is entitled to share in his estate: Part 2