Findings of Fact and Conclusions of Law, Jackson Barnett case.

[Filed July 18, 1938]

Jackson Barnett ... Findings: Part 1 ... Part 2


JACKSON BARNETT'S KINDRED

18. The court finds that the father of Jackson Barnett was Siah Barnett, a full-blood Creek Indian, who died in the year 1897. The enrollment records of the Commission to the Five Civilized Tribes show that Siah Barnett was the father of Jackson Barnett, and there is no clear, cogent or convincing evidence to the contrary. Also, the credible evidence extrinsic of the enrollment records show that Siah Barnett was the father of Jackson Barnett.

The court finds that Jackson Barnett's mother was a full-blood Creek Indian Woman named Thlesothle, who died about the close of the Civil War and long before the time of the final enrollment and allotment of the members of the Creek Tribe of Indians in the Indian Territory. The enrollment records of the Commission to the Five Civilized Tribes name Thlesothle as the mother of Jackson Barnett, and there is no clear, cogent or convincing evidence to the contrary. Also, the credible evidence extrinsic of the enrollment records show that Thlesothle was Jackson Barnett's mother.

Group I

The court finds that Siah Barnett was survived by a second wife Mary Barnett, enrolled as a full-blood Creek Indian, Roll No. 4506, who died in the year 1916, and who was not the mother of Jackson Barnett, and also that he was survived by the following children:

(a) A son, Jackson Barnett, enrolled as a full-blood Creek Indian, Roll No. 4524, the decedent herein.

(b) A son, David Barnett, enrolled as a full-blood Creek Indian, Roll No. 4955, who died in 1925, predeceasing Jackson Barnett.

(c) A daughter, Eliza Barnett Fish, enrolled as a full-blood Creek Indian, Roll No. 4754, who died shortly after allotment, predeceasing Jackson Barnett.

(d) A daughter, Ellen Barnett Grayson, a full-blood Creek Indian, who died shortly prior to the time of the enrollment and allotment of the members of the Creek Tribe of Indians in the Indian Territory, predeceasing Jackson Barnett.

(e) A daughter, Hannah Bamett Fisher, enrolled as a full-blood Creek Indian, Roll No. 4513, who died in 1901, predeceasing Jackson Barnett.

(f) A daughter, Sissie (or Mariah) Barnett Davis, a full-blood Creek Indian, who died shortly before the time of the enrollment and allotment of the members of the Creek Tribe of Indians in Indian Territory, predeceasing Jackson Barnett.

That (b) David Barnett left surviving him no wife.

He had the following children:

(b) 1 A daughter, Annie Beams, enrolled as a full-blood Creek Indian, Roll No. 4504, who is now living, and who has been declared incompetent since these proceedings were instituted, and for whom J. E. Chancey is legal guardian under letters of guardianship issued by the County Court of Okmulgee County, Oklahoma.

(b) 2 A daughter, Melviney Barnett Ditzler, who is enrolled as a full-blood Creek Indian, Roll No. 4953, and who is now living.

(b) 3 A daughter, Nellie Barnett, who is enrolled as a full-blood Creek Indian, Roll No. 4,498, and who died intestate on or about February 8, 1937, after these proceedings were instituted, and administration of whose estate is now pending in the County Court of Okfuskee County, and of which estate Claude Porter is the duly appointed, qualified and acting administrator. This action as to Nellie Barnett has been revived in the name of Claude Porter as administrator of the estate of Nellie Barnett, deceased.

(b) 4 A son, Jimmy Barnett, enrolled as a full-blood Creek Indian, Roll No. 4497, who is now living.

(b) 5 A son, Tom Barnett, enrolled as a 3/4ths blood Creek Indian, Roll No. 4502, who died on or about April 8, 1908, predeceasing both Jackson Barnett and David Barnett.

(b) 6 A son, Wesley Barnett, enrolled as a full-blood Creek Indian, Roll No. 4955, who died on or about March 27, 1916, predeceasing both Jackson Barnett and David Barnett.

(b) 7 A daughter, Hettie Barnett Smoot, enrolled as a full-blood Creek Indian, Roll No. 4954, who died in the year 1920, predeceasing both Jackson Barnett and David Barnett.

That said (c) Eliza Barnett Fish, was survived by husband, Little Fish, enrolled as full-blood Creek Indian, Roll number 4747, who died before Jackson Barnett, and by the following children:

(c) 1 A daughter, Mehaley Fish Hickman, enrolled as full-blood Creek Indian, Roll number 4749, now living.

(c) 2 A daughter, Winey Fish Lewis, enrolled as full-blood Creek Indian, Roll number 4748, now living, who has been adjudged incompetent since these proceedings were filed, and for whom C. E. Griffith is guardian under letters issued by the County Court of Okmulgee County, Oklahoma.

(c) 3 A daughter, Katie Fish Litzey, enrolled as full-blood Creek Indian, Roll number 4750, now living, and who has been adjudged incompetent since these proceedings were filed and for whom Claude Porter is guardian under letters issued by the County Court of Okmulgee County, Oklahoma.

(c) 4 A son, Frazier Fish, enrolled as full-blood Creek Indian, Roll number 4751, now living, who has been adjudged incompetent since these proceedings were filed and for whom Alton Rhea is guardian under letters issued by the County Court of Okfuskee County, Oklahoma.

(c) 5 A daughter, Milley Fish Gilroy, enrolled as full-blood Creek Indian, Roll number 4752, now living.

That said (d) Ellen Barnett Grayson, left surviving her no husband, and only one child:

(d) 1 A daughter, Charity Buckley nee Smith, enrolled as 1/2 blood Creek Indian, Roll number 5824, now living.

That said (e) Hannah Barnett Fisher, left surviving her no husband, and the following children:

(e) 1 A son, William Fisher, enrolled as full-blood Creek Indian, Roll number 4514, now living.

(e) 2 A daughter, Mariah Fisher Tompkins, enrolled as full-blood Creek Indian, Roll number 4514, now living.

(e) 3 A son, Lewis Fisher, enrolled as full-blood Creek Indian, Roll number 4516, now living, who has been adjudged incompetent since these proceedings were filed and for whom Claude Porter is guardian under letters issued by the County Court of Okfuskee County, Oklahoma.

(e) 4 A son, Seaborn Fisher, enrolled as full-blood Creek Indian, Roll number 4517, who has died since these proceedings were filed, intestate, leaving surviving him:

A wife - Rosa Fisher, a white woman, now living;

A daughter - Frances Button nee Fisher, a 1/2 blood Creek Indian, not enrolled, now living;

A daughter - Marion Stevens nee Fisher, a 1/2 blood Creek Indian, not enrolled, now living;

A son - Lawrence H. Fisher, a 1/2 blood Creek Indian, not enrolled, now living.

And the claim of said Seaborn Fisher has been revived in their names and for their benefit.

Group II

The court finds that Tusekiah Micco, also known as Neddie and as Old Man Conner, was a Creek Indian who died long before the time of enrollment and allotment of the members of the Creek Tribe of Indians in Indian Territory, and that he was survived by no wife, and was survived by the following children, to-wit:

(g) A son, William Conner, enrolled as a full-blood Seminole Indian, Roll No. 215, who died intestate in 1900, predeceasing Jackson Barnett.

(h) A daughter, Thlesothle, a full-blood Creek Indian, who was the mother of Jackson Barnett, and who died long before the time of the enrollment and allotment of the members of the Creek Tribe of Indians in Indian Territory.

(i) A daughter, Hannah Williams, enrolled as a full-blood Creek Indian, Roll No. 6641, who died in the year 1900, predeceasing Jackson Barnett.

(j) A son, Thomas Conner, enrolled as a full-blood Creek Indian, Roll No. 8593, who died on or about December 12, 1901, predeceasing Jackson Barnett.

The said (g) William Conner left surviving him no wife, and left surviving the following children, to-wit:

(g) 1 A daughter, Susie Conner, enrolled as a full-blood Seminole Indian, Roll No. 216, now living.

(g) 2 A daughter, Emma Conner now Burgess, enrolled as a full-blood Seminole Indian, Roll No. 217, now living.

(g) 3 A daughter, May (or Hannah) Conner, enrolled as a full-blood Seminole Indian, Roll No. 219, now living.

(g) 4 A daughter, Wynie Conner Hendrix, enrolled as a full-blood Seminole Indian, Roll No. 223, now affiliated with the Caddo or Wichita Tribe of Indians, now living.

The said (h) Thlesothle left surviving her no husband, and only three children, to-wit, a son Jackson Barnett, the decedent herein, a son Har-yar-ye-che, and a son Cumsey or Tecumseh who died in 1891 without issue.

The said (i) Hannah Williams left surviving her no husband, and left surviving the following children, to-wit:

(i) 1 A daughter, Rebecca J. Baker, enrolled as a full-blood Creek Indian, Roll No. 5833, now living.

(i) 2 A son, Nathan Williams, enrolled as a full-blood Creek Indian, Roll No. 6637, who has died since these proceedings were instituted, and who left a will which has been probated in Okfuskee County, Oklahoma, devising his estate as follows:

An undivided one-third interest to his surviving wife, Katie Williams (nee Knight), enrolled as a full-blood Creek Indian, Roll No. 6688, now living.

An undivided one-sixth interest to his son, Marcellus L. Williams, now living, a full-blood Creek Indian, not enrolled, who is a minor, and of whom John F. Davis is the legal guardian under letters of guardianship issued by the County Court of Okfuskee County, Oklahoma.

An undivided one-sixth interest to his step-son, John F. Davis, enrolled as a half-blood Creek Indian, Roll No. 6689, now living.

An undivided one-sixth interest to his step-daughter, Lucy Knight, a half-blood Creek Indian, not enrolled, now living.

An undivided l/6th interest to his daughter, Lois Williams, a 1/2 blood Creek Indian, not enrolled, now living.

(i) 3 A daughter, Susie Williams, enrolled as a full-blood Creek Indian, Roll No. 6645, who died on or about June 24, 1928, predeceasing Jackson Barnett.

The said (j) Thomas Conner left surviving him a wife, Abbie Conner, enrolled as a full-blood Creek Indian, Roll No. 9210, and the following children, to-wit:

(j) 2 A daughter, Nellie Conner Bear, enrolled as a full-blood Creek Indian, Roll No. 9211, and now living.

(j) 3 A son, Willie Conner, enrolled as a full-blood Creek Indian, Roll No. 9212, and now living.

(j) 4 A son, John Conner, enrolled as a full-blood Creek Indian, Roll No. 9213, and now living.

(j) 5 A son, Thomas Conner, Jr., enrolled as a full-blood Creek Indian, Roll No. Minor-226, who died on or about July 27, 1926, predeceasing Jackson Barnett, and leaving surviving him a wife, Bettie Kanard Conner, enrolled as a full-blood Creek Indian, Roll No. 6528, and now living, but leaving no issue.

Group III

Har-yar-ye-che, or Jim Lowe, was a full-blood Creek Indian, of Tuckabatche Town, and was a son of Thlesothle and a half-brother of Jackson Barnett. He died about the year 1898, before the time of the enrollment and allotment of the members of the Creek Tribe of Indians in the Indian Territory. He left surviving him no wife, but left surviving him the following children, to-wit:

(k) A daughter, Susie Low, enrolled as a full-blood Creek-Indian, Roll No. 8358.

(1) A daughter, Leona Lowe, enrolled as a full-blood Creek Indian, Roll No. 8355.

(m) A daughter, Liza Lowe, enrolled as a full-blood Creek Indian, Roll No. 8356.

(n) A daughter, Kizzie Low, enrolled as a full-blood Creek Indian, Roll No. 8818.

19. The court finds that the following named persons were, at the time of the death of said Jackson Barnett, his nearest surviving collateral kindred in equal degree on the paternal side, to-wit:

(b) l, Annie Beams,
(b) 2, Melviney Barnett Ditzler,
(b) 3, Nellie Barnett,
(b) 4, Jimmy Barnett,
(c) l, Mehaley Fish Hickman,
(c) 2, Winey Fish Lewis,
(c) 3, Katie Fish Litzey,
(c) 4, Frazier Fish,
(c) 5, Milley Fish Gilroy,
(d) l, Charity Buckley nee Smith,
(e) l, William Fisher,
(e) 2, Mariah Fisher Tompkins,
(e) 3, Lewis Fisher, and
(e) 4, Seaborn Fisher.

The court further finds that the following named persons were, at the time of the death of Jackson Barnett, his nearest surviving collateral kindred in equal degree on the maternal side, to-wit:

(g) l, Susie Conner,
(g) 2, Emma Conner now Burgess,
(g) 5, May (or Hannah) Conner,
(g) 4, Wynie Conner Hendrix,
(i) l, Rebecca J. Baker,
(i) 2, Nathan Williams,
(j) 2, Nettie Conner Bear,
(j) 3, Willle Conner,
(j) 4, John Conner,
(k) l, Chissie Stepney,
(k) 2, Barney Stepney,
(k) 3, Rhoda Stepney now Gauge,
(k) 4, Ida Gouge, and
(k) 5, Eliza Gouge.

The said (1) Leona Lowe, (m) Liza Lowe, and (n) Kizzie Low, all died before Jackson Barnett did, unmarried and without issue.

The said (k) Susie Low died on or about March 21, 1925, predeceasing Jackson Barnett, and leaving surviving her a husband, Earnest Gouge, who was enrolled as a full-blood Creek Indian, Roll No. 8497, and who is now living,and also leaving surviving her the following children, to-wit:

(k) 1 A son, Chissie Stepney, a full-blood Creek Indian, not enrolled, and now living.

(k) 2 A son, Barney Stepney ( sometimes called Barney Fields), a full-blood Creek Indian, not enrolled, and now living.

(k) 5 A daughter, Rhoda Stepney, now Gouge, a full-blood Creek Indian, not enrolled, and now living.

(k) 4 A daughter, Ida Gouge, a full-blood Creek Indian, not enrolled, now living,and who is a minor, and of whom H. F. Claiborne is the legal guardian under letters of guardianship issued by the County Court of McIntosh County, Oklahoma.

(k) 5 A daughter, Eliza Gouge, a full-blood Creek Indian, not enrolled, and now living.

20. The court finds that, on June 30, 1936, the three groups of persons named above entered into a contract of family settlement with each other in substance as follows: That they would cooperate with each other in defending against all other claims then pending or that might thereafter be filed; that the persons constituting each of said groups should continue to prosecute their respective claims; and that, in the event the court should find that any person or persons in either of said three groups constituted the heir or heirs of Jackson Barnett, then the estate of said Jackson Barnett, or any part thereof, whether real, personal or mixed, so entitled to be awarded to such person or persons, should be awarded to said three groups of parties to said contract, and should be apportioned, divided and paid among and between the groups constituting the parties thereto in the proportion of 50% thereof to the persons constituting Group I, 25% thereof to the persons constituting Group II, and 25% thereof to the persons constituting Group III, which said percentages should be divided and apportioned among the persons constituting the respective groups to which the same should be awarded in such manner and proportions as the persons constituting each group should provide for in a written stipulation filed with the court, and, as to any group which should fail to file such stipulation, then in such manner and proportion as the court should determine. And in said contract each of the persons in each of the groups of parties thereto, in consideration of the premises and of the promises, covenants and concessions made by each of the others, did thereby convey, grant, bargain, sell, assign and transfer to each of the persons constituting the other groups of parties to said contract all such right, title and interest in and to the estate of Jackson Barnett, deceased, as might be necessary to vest in each of the groups of parties thereto and in the members thereof the proportionate parts of said estate hereinbefore set out, to have and to hold the same unto the said grantees, their heirs and assigns, forever; and that, in the event it should finally be determined that any person or persons in either of said groups is or are the heir or heirs of Jackson Barnett, and is or are entitled to inherit all or any portion of his estate, then, without regard to which one of said groups the person or persons might belong whom the court should find entitled to so inherit, and without regard to what proportion of the estate the court should find that such person or persons is or are entitled to inherit, the court was authorized and directed to enter a decree upon said contract awarding 50% of the amount so inherited to the persons constituting Group I, 25% to the persons constituting Group II, and 25% to the persons constituting Group III;

Said contract has been introduced in evidence. The court finds that it was duly and lawfully executed by all of the parties comprising each of said groups; that, as to such of said parties as were minors or incompetents, it was duly and lawfully executed in their behalf by their legally appointed guardians, duly authorized thereunto by proper orders of the county courts having jurisdiction of said guardianships, and that the execution of said contract by each guardian of any minor or incompetent party was also subsequently lawfully approved by the county court of the State of Oklahoma having jurisdiction of said guardianship.

The court further finds that said contract was duly and lawfully approved as a contract of family settlement and conveyance by valid order of the County Court of Muskogee County, Oklahoma, duly made and entered in the case entitled, "In the Matter of the Estate of Jackson Barnett, deceased, No. 5917", on the probate docket of the County Court of Muskogee County, Oklahoma, on May 18, 1937.

The court also finds that said contract was duly and legally approved in writing by the Secretary of the Interior on September 2, 1937.

In the administration of estates involving the determination of disputed heirship, the law favors contracts of family settlement, reasonable in their terms, the effect of which is to avoid the delay and expense of litigation and the division of relatives into hostile groups. The court finds that the contract in question, considering the facts and circumstances, is reasonable in its provisions; that it was validly and lawfully executed; that all the parties thereto, including the guardians of minors and incompetents, had full knowledge of its terms, provisions, purpose and legal effect at the time they executed the same; that, all the parties to said contract have in good faith complied fully with all the conditions imposed upon them or any of them in said order of approval made by the Secretary of the Interior; and that, said contract having been approved by the proper county courts of the State of Oklahoma and by the Secretary of the Interior, the same is hereby approved, and will be given effect by this court.

21. The terms and provisions of said approved contract render it unnecessary for the court to find, other than as hereinafter set forth, which of the persons named in said three groups are in fact the nearest of kin to Jackson Barnett, if any of them are nearer of kin than any of the others. The court does find, however, that the persons named in numerical paragraph 19 hereof are in fact the nearest of kin to Jackson Barnett, and together are entitled to have distributed to them the entire estate of Jackson Barnett to the exclusion of all other persons whomsoever. Most of said persons so found to be the nearest of kin to Jackson Barnett are duly enrolled full-blood Creek Indians; and most of the others are enrolled Creek Indians having one-half or more Indian blood, and some of them are descendants of enrolled Creek and Seminole Indians born too late to be enrolled but nevertheless possessing one-half or more Indian blood.

22. Jackson Barnett being survived by no wife, no father, no mother, no child, and no brother and no sister, the devolution of his estate is governed by the sixth subdivision of section 1617, Oklahoma Statutes 1951, which reads as follows:

"If the decedent leaves no issue, nor husband, nor wife, and mo father or mother, or brother or sister, the estate must go to the next of kin in equal degree, excepting that, when there are two or more collateral kindred, in equal degree, but claiming through different ancestors, those who claimed through the nearest ancestors must be preferred to those claiming through an ancestor more remote."

23. The persons constituting neither of the groups heretofore mentioned, parties to said contract, have filed with the court any stipulation providing the manner and proportions in which that part of Jackson Barnett's estate to be awarded to the persons constituting said group should be divided and distributed. The court therefore finds that, under the laws of descent and distribution of the State of Oklahoma, and giving effect to the approved contract of family settlement made and entered into by the nearest of kin of Jackson Barnett, the estate of Jackson Barnett, both real and personal, descended to and is vested in the following named persons in the proportions set opposite their respective names, to-wit:

(b) l, Annie Beams (an incompetent)an undivided l/28th interest
(b) 2, Melviney Barnett Ditzleran undivided l/28th interest
(b) 4, Jimmy Barnettan undivided l/28th interest
(b) 5, Estate of Nellie Barnett, deceasedan undivided l/28th interest
(c) l, Mahaley Fish Hickmanan undivided l/28th interest
(c) 2, Winey Fish Lewis, (an incompetent)an undivided l/28th interest
(c) 5, Katie Fish Litzey, (an incompetent)an undivided l/28th interest
(c) 4, Frazier Fish, (an incompetent)an undivided l/28th interest
(c) 5, Millie Fish Gilroyan undivided l/28th interest
(d) l, Charity Buckley Smithan undivided l/28th interest
(e) l, William Fisheran undivided l/28th interest
(e) 2, Mariah Fisher Tompkinsan undivided l/28th interest
(e) 5, Lewis Fisheran undivided l/28th interest
(e) 4, Rosa Fisher, as heir of Seaborn Fisher, deceasedan undivided l/84ths interest
            Frances Sutton nee Fisher, as heir of Seaborn Fisher, deceasedan undivided l/126ths interest
            Marion Stevens nee Fisher, as heir of Seaborn Fisher, deceasedan undivided l/126ths interest
            Lawrence H. Fisher, as heir of Seaborn Fisher, deceasedan undivided l/126ths interest
Aggregating an undivided 1/2 interest.
(g) l, Susie Conneran undivided l/36ths interest
(g) 2, Emma Conner now Burgessan undivided l/36ths interest
(g) 3, May (or Hannah) Conneran undivided l/36ths interest
(g) 4, Wynie Conner Hendrixan undivided l/56ths interest
(i) l, Rebecca J. Bakeran undivided l/36ths interest
(i) 2, Katie Williams nee Knight, as heir and devisee of Nathan Williams, deceasedan undivided l/108ths interest
            Lois Williams, as heir and devisee of Nathan Williams, deceasedan undivided l/216ths interest
            Marcellus L. Williams, minor, as heir and devisee of Nathan Williams, deceasedan undivided l/216ths Interest
            John F. Davis, as heir and devisee of Nathan Williams, deceasedan undivided l/216ths interest
            Lucy Knight, as heir and devisee of Nathan Williams, deceasedan undivided l/216ths interest
(j) 2, Nettie Conner now Bearan undivided l/56th interest
(j) 3, Willie Conneran undivided l/56th interest
(j) 4, John Conneran undivided l/36th. interest
Aggregating an undivided l/4th interest
(k) l, Chissie Stepneyan undivided l/20th interest
(k) 2, Barney Stepneyan undivided l/20th interest
(k) 5, Rhoda Stepney now Gougean undivided l/20th interest
(k) 4, Ida Gouge, a minoran undivided l/20th interest
(k) 5, Eliza Gougean undivided l/20th interest
Aggregating an undivided l/4th interest

24. The court further finds that, excepting only Rosa Fisher, the widow of Seaborn Fisher, who is a white woman, all the persons hereinbefore found to be the distributees of Jackson Barnett's estate are restricted Creek Indians; and that their respective shares in said estate, excepting such sums as this court may fix or allow as charges thereon because of or in connection with this suit, should be held by the Secretary of the Interior and disbursed under his supervision for the use and benefit of said distributees as are the funds of other restricted Creek Indians.

Respectfully submitted,

Anglin & Stevenson
Dick Jones
E. W. Smith
Stone, Moon, & Stewart
Leon C. Phillips
Hayes, Richardson, Shartel, Gilliland & Jordan
L. O. Lytle
George H. Jennings
R. S. Cate
H. B. Parris
H. G. House
Howell Parks
Gibson & Holleman
J. Garfield Buell

Attorneys for claimants constituting Groups I, II, and III.