(dissenting).
With all due respect to the opinion of the majority in this case I am compelled to dissent. The rule of law laid down in the syllabus is incorrect as applied to couples co-habiting in the Indian Territory prior to 1890.
I cannot agree that the record shows a marriage according to Cherokee law of Nellie Smoke and Wilson Towie.
The purpose of the enrollment records was primarily to determine who were entitled to be enrolled as members of one of the Five Civilized Tribes, here the Cherokee Tribe. The record on Isaac Tower was that “The father of this boy seemed to be identified as Wilson Towie.”
The evidence in this case including the enrollment record does not show legitimacy of the plaintiff.
The evidence in this case shows that both before and after the death of plaintiff’s mother she was referred to as Nellie Smoke and Mrs. Nellie Smoke.
Although I think there was sufficient evidence by plaintiff to raise the presumption that he was the legitimate son of Wilson Towie, I am of the opinion that the defendants have rebutted this presumption of legitimacy. It became the burden of the plaintiff to show that his father and mother had been married according to Cherokee Tribal Laws. There was no evidence of this.
There was no evidence that Wilson Towie ever recognized the plaintiff as his legitimate child after he is supposed to have done so when the boy was three years of age. He specifically stated in his will that he had no children. The trial judge heard all the testimony and saw the documentary evidence. We think he was correct in finding that the plaintiff did not establish that he was a legitimate child of Wilson Towie. The evidence in this case is too flimsy to establish this fact.
The Cherokee Nation, prior to the time that Mansfield Digest of the Laws of Arkansas was extended over the Five Civilized Tribes by the Act of Congress of 1890, 26 Stat. 81, had laws setting out the formal requirements for marriage of its citizens which were extant in 1888 when plaintiff was born. If there was a tribal custom as to marriage at the time plaintiff was born it was not plead or proved. The common law marriage was not recognized among the Cherokees. I set out the provisions of the Constitution and Laws of the Cherokee Nation of 1875 and 1892:
“Sec. 95. Marriages may be solemnized by any of the judges of the courts of this Nation, or by the clerks of the several districts or by any ordained minister of the Gospel in regular communion with any religious society. Any marriage contracted in writing in the presence of two or more attending witnesses, who shall sign the marriage contract as such shall be lawful.
“Sec. 96. No particular form of marriage shall be required in the solemnization of marriages, except that the parties shall solemnly declare in the presence of the judge, clerk or minister officiating, or the attending witnesses, that they take each other as husband and wife; * * *
“Sec. 97. It shall be the duty of all persons contracting marriage in the presence of witnesses * * * to report the same to the clerk of the district in which such marriage was solemnized, for registration, giving the full names of the contracting parties, their ages and previous places of residence, and the clerk shall at once make record of the same, in a book to" be kept for that purpose.”
*493In Aldrich v. Hinds et al., 116 Okl. 300, 245 P. 854, we held as follows:
“Prior to the extension of the Arkansas law over the Indian Territory, the common law had no application to marriages between members of any of the Five Civilized Tribes, hut all such marriages were regulated by tribal laws and customs, and all such marriages and legitimacy of all children born of such marriages were recognized by Congress by Act May 2, 1890.”
This being a case of equitable cognizance and after having read the record in this case and weighed the evidence I am of the opinion that the judgment of the trial court finding for the defendants is not against the clear weight of the evidence.
I dissent.
I am authorized to state that BLACKBIRD, V. C. J., and BERRY, J., concur in the views expressed herein.