Betsy Love Allen (after 1782 – July 1837) was a Chickasaw merchant and planter who ran a trading post on the Natchez Trace and maintained a large cattle plantation. Born into a wealthy and influential family, she owned property in her own right under Chickasaw law. When an attorney attempted to seize one of the people her children enslaved to pay off a debt that her husband owed, a trial ensued. The verdict—that Allen was in effect a feme sole under Chickasaw law and not subject to coverture—established the legal precedent for the State of Mississippi to pass the first Married Women's Property Act in the United States.
Although the law ostensibly gave women property rights, it did not allow them to control their property without their husbands' authority or permission. Instead, it was passed to enable men to shield their property from seizure to pay off debt. Under Chickasaw law, Allen had control over her possessions. She died before the forced removal of her people to Indian Territory in 1837 and is remembered for the lawsuit that protected her right to own property.
Early life Elizabeth Love was born after 1782, in the Chickasaw Nation in Mississippi. Her mother, Sally Colbert, was the oldest daughter of James Colbert, a North Carolinian trader who had settled in the Chickasaw lands in Alabama as a child in 1729, and his first Chickasaw wife. Colbert became a wealthy plantation owner who enslaved around one hundred and fifty people and founded a prominent Chickasaw family of mixed-race children. The Colbert-Love marriage created a union of two families, which became influential in Chickasaw politics and the tribe's relationship with the United States government throughout the early nineteenth century. The families were part of the planter class and enslaved numerous people, as well as virtually controlling the commerce of the Chickasaw Nation with traders from the Southern Colonies.
Betsy's father, Thomas Love, a Loyalist, fled to the Chickasaw Nation around 1782 after the British defeat in the Gulf Coast campaign during the American Revolutionary War. He fathered thirteen children with two wives, Sally, and his second wife, Homahota or Emahota, who was also known as French Nancy, was of mixed Chickasaw-French heritage, and near the age of his older children. With his first wife, who was of the clan In-cun-no-mar, Thomas had seven sons – Henry, Isaac, Sloan, Benjamin, Samuel, Robert, and William – and three daughters, Delilah, Elizabeth, and Nancy. The sons were educated at the Choctaw Academy in Kentucky, but all of the Love children were educated and spoke both Chickasaw and English. By 1820, the majority of the Love family lived about six miles southwest of present-day Holly Springs, in a farming community. In 1826, a Presbyterian mission was established known as the Martyn Mission near Pigeon Roost Creek, and many of the family members joined this church.
Before her marriage, Love had obtained a plantation from the communal lands of the tribe, as well as enslaved people, farm equipment, and livestock. By 1803, she had married James B. Allen, who had previously been married to and divorced from her maternal aunt, Susie Colbert. The couple were not married under the laws of the Mississippi Territory, but rather by Native custom. James Allen was a North Carolinian who had been a lawyer in Nashville, Tennessee, before moving to the Chickasaw Nation before 1793, where he became an interpreter at the Chickasaw Agency. Under Chickasaw matrilineal custom, Love would not have taken Allen's name, nor would any of her property have become her husband's upon marriage. The Allen family appeared on the 1818 Chickasaw Annuity Roll and besides James and Elizabeth, included children George, Sarah (aka Sally), Louisiana (aka Lucy), Mississippi, Alexander, and Susannah (aka Susan). In 1829, Love deeded several of the people she enslaved to her children, which, at that time, also included Tennessee, Mary (aka Polly), Elizabeth, and Samuel. Her last child, Mourning, was born in 1833 and applied for a Chickasaw allotment in Indian Territory but died in 1899 before the finalization of the Dawes Rolls.
Love and Allen lived in what would become Monroe County, Mississippi on communal lands occupied by the extended Love family. At one point, they operated and ran a trading post on the Natchez Trace, and also maintained a large cattle ranch near Toccopola, Mississippi. Under the terms of the allotment treaties, each Chickasaw citizen received an individual allotment of of land and for one to ten enslaved people. Families with five or fewer members were allotted of land, families with between six and ten members were granted , and families with more than ten members received . In 1836, Love sold some of her Chickasaw allotments at auction for (), an amount that was exceeded by only five others out of the four hundred Natives who sold land that year.
Property dispute Background In 1829, the State of Mississippi extended its sovereignty over the Choctaw and Chickasaw people living within the state. 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. In 1830, Mississippi passed a Citizenship Act, which conferred citizenship on the indigenous population while recognizing their previous marital unions and property rights. Establishing Native property rights was necessary, 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 Western United States. Accordingly, Chickasaw lands began to be distributed to individuals, and the traditional tribal holdings were eliminated. Under 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.
Richard Green, a historian who focuses on Chickasaw history, 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. Academic Megan Benson pointed out that it was also crucial to enslavers 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 debt payment. 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 enslaved people or free blacks and a desire to control their populations by allowing them to be transported out of the state.
Fisher v. Allen (1829–1830) 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 extend state law over the Chickasaw people, Malcom sued Allen. James hired John Fisher to represent him in the case Alexander Malcom v. James Allen and draft a deed gift of enslaved people from his wife to her children. Allen promised to pay Fisher $200 for representing him in the case, but he defaulted on that debt. To recover his fees, Fisher sued Allen and won a judgment against him in 1830. Fisher then had the county sheriff seize an enslaved person named Toney to sell at a 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. Toney was one of the twenty-five enslaved people Love had given to her children in 1829 and was the property of Love's daughter Susan.
Appeal (1831–1837) An interpleader action against Fisher was filed to protest Toney's seizure in the Circuit Court of Monroe County, Mississippi, in 1831. Susan was a minor, and the bond ($650) for her protest against the sale of Toney was posted by her brother George (who also represented her) and her great-uncle James Colbert. Another relative, Benjamin Love, testified on Chickasaw law. The court decided in favor of Susan, but Fisher appealed. Allen claimed 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 that had previously occurred under Chickasaw custom and grandfathered Native marital property laws. 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. 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. 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.
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. This meant that each person in a marriage held title to their property—whether real or personal property—and debts were individually owed. Because of this practice, a wife's property could not be seized to settle a husband's debt. Evaluating the status of Toney, Smith confirmed that Betsy Love had deeded him to Susan by a gift deed signed on November 14, 1829, which was recorded in the Monroe County Clerk's office on November 2, 1830. 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. 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.
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. They found that a Native wife's ability to acquire or dispose of her property or debts applied to those owned before marriage, as well as extending during the continuance of the marriage. In other words, no community property interests were created by marriage; thus, a wife's property could not be used to satisfy a husband's debts. Fisher lost his case, Allen's debt remained unpaid, and Toney remained enslaved as Susan's property.
Aftermath (1837–1839)