Betsy Love Allen

In 1829, the State of Mississippi extended its sovereignty over the Choctaw and Chickasaw people living within the state.[33] The following year, the United States Congress passed the Indian Removal Act, which authorized negotiations with Native tribes to relinquish their lands east of the Mississippi River in exchange for lands west of the river.[34] That year 1830, Mississippi passed a Citizenship Act, which conferred citizenship on the indigenous population while recognizing their previous marital unions and property rights.[35] Establishing Native property rights was important, as legislation could then be drafted to allot communally held lands to individuals, who would then be able to sell their lands and remove to the west.[33] Accordingly, Chickasaw lands began to be distributed to individuals and the traditional tribal holdings were eliminated.[36] By virtue of two treaties, the Treaty of Pontotoc Creek ratified in 1833 and the Treaty of Washington signed in 1834, terms under which lands would be allotted were agreed.[37]

Richard Green, a historian who focuses on Chickasaw history,[38] noted that by the time the appeal was being heard in 1837, the judges were aware of the removal treaties and that Native women were to receive allotments. Their allotments would not require a husband's permission to be sold, meaning a Chickasaw wife could freely sell her land to any of the white land speculators who had come to Mississippi to buy up property and facilitate the removal of Native people.[39] Academic Megan Benson[4] pointed out that it was also important to Southern interests that as new states were admitted in the west, slavery was expanded into these territories. She recognized the fairly consistent precedent in Mississippi law to exempt slave property from seizure for the payment of debt.[40] Her analysis, as well as that of scholar Joseph Custer, included that the justices deciding the case would also have been influenced by the perceived threat of civil unrest by slaves or free blacks and a desire to control their populations by allowing them to be transported out of the state.[40][41]

In 1784, Alexander Malcom (or Malcolm) paid James Allen five thousand pounds in North Carolina currency to purchase a tract of land in Tennessee. Allen did not transfer the property and in 1829, when Mississippi passed legislation to extended state law over the Chickasaw people, Malcom sued Allen.[13][19][42] James hired John Fisher to represent him in the case Alexander Malcom v. James Allen and draft a deed gift of slaves from his wife to her children.[19] Allen promised to pay Fisher $200 for representing him in the case, but he defaulted on that debt.[13] In an attempt to recover his fees, Fisher sued Allen and won a judgement against him in 1830.[43] Fisher then had the county sheriff seize a slave named Toney to sell at public auction. Fisher and the sheriff believed that Toney was Allen's property because under the rules of coverture, any property owned by a woman automatically became a husband's property when they married.[1] Toney was one of the twenty-five slaves Love had given to her children in 1829, and was the property of Love's daughter Susan.[13]

An interpleader action against Fisher was filed to protest Toney's seizure in the Circuit Court of Monroe County, Mississippi in 1831.[19] Susan was a minor and the bond ($650) for her protest against the sale of her slave was posted by her brother George (who also represented her) and her great-uncle James Colbert. Testimony on Chickasaw law was given by another relative, Benjamin Love.[17][43][44] The court decided in favor of Susan, but Fisher appealed.[19] Allen's claim was that until 1830, Mississippi law had not been extended to the Chickasaw people and there was no obligation for Native persons to follow the territorial or state laws. When it became applicable, the 1830 Citizenship Act validated all marriages and matrimonial unions which had previously occurred under Chickasaw custom and grandfathered Native marital property laws.[20][43] Fisher disputed this, claiming that the jurisdiction of the Mississippi Territory began in 1799 and all inhabitants were subject to the laws of the territorial government from that date.[20] Justice Smith disagreed, noting in his opinion that even after statehood in 1817, the laws of Mississippi had not been extended to all of the inhabitants.[20][27] He concluded that until January 1830, when new legislation extended citizenship to Native people within the state and abolished their tribal government neither the laws nor the state constitution fully applied to the Chickasaw or Choctaw people.[20][45]

Having determined that Mississippi law was inapplicable, Smith then examined tribal custom and acknowledged that a marriage contract by Chickasaw custom conferred no rights for a husband to his wife's separate property.[46] This meant that each person in a marriage held title to their own property, whether that was real or personal property, and debts were individually owed.[1] Because of this practice, a wife's property could not be seized to settle a debt of a husband.[43] Evaluating the status of Toney, Smith confirmed that Betsy Love had deeded him to Susan by virtue of a gift deed signed on November 14, 1829, which was recorded in the Monroe County Clerk's office on November 2, 1830.[19][45][46] Fisher did not deny that Toney had been gifted by Love, but argued that because the instrument had not been recorded within ninety days of the 1830 legislation that the deed was not binding and invalid.[19][47] Chief Justice William L. Sharkey rejected Fisher's argument, because no claim had ever been made against Betsy Love. He continued that "even if the debts had existed at the time of making the gift, but it does not appear that any such debts existed at that time", a creditor of James Allen would not have been able to claim Love's property.[48]

The final ruling of the Mississippi High Court of Errors and Appeals, written in two separate opinions issued by Justices Sharkey and Smith in January 1837, concluded that Chickasaw women were in effect feme soles and not subject to the restrictions of coverture under common law.[49][50] They found that a Native wife's ability to acquire or dispose of her own property or debts applied to those owned prior to marriage, as well as extending during the continuance of the marriage. In other words, no community property interests were created by marriage and thus, a wife's property could not be used to satisfy a husband's debts.[51][52] Fisher lost his case, Allen's debt remained unpaid, and Toney remained enslaved as Susan's property.[53][50]

The year that the case was reviewed a major financial crisis occurred in the United States. According to historian Robert Gilmer, legislators hurt by the 1837 economic depression saw a way to "protect their own interests by using part of the Chickasaw tribal law found in the Fisher v. Allen case and extending its applicability to all married women in Mississippi" through legislation.[53] Benson concurs that neither Fisher v. Allen nor the Married Women's Property Act passed in 1839, had to do with women's rights or protecting women. She argues that equity trusts, which applied to either Native or white women, were previously used successfully to protect women's property.[54][Notes 8] She states that Fisher v. Allen specifically was decided to facilitate removal and that the Women's Property Act was passed to shield men's assets from credit seizures.[58] Gilmer concurred that extending women's rights was "unintentional",[21] and that by removing the protections of coverture for Chickasaw women, which had been inserted in the 1834 Treaty of Washington, Native women became victims of unscrupulous land speculators.[50] He also noted that attempts to modify the bill to prevent husbands from hiding or shielding their assets in their wives' names, as proposed by Senator Spence Grayson, were voted down.[59] Of the five sections in the Act, four dealt specifically with slaves.[53] The first provision allowed a wife to hold as separate property any real or personal property that was free from coverture and acquired other than by gift from her spouse. The remaining provisions allowed a wife to own slaves and the descendants of slaves she owned freely prior to her marriage or those acquired by inheritance or gift after the marriage, separately from her husband; as long as the husband controlled and managed their labor and production, he represented the wife in any suit regarding her property, and any sale was conveyed by a joint deed from the husband and wife.[60]