194 F. 475 | U.S. Circuit Court for the District of Eastern Oklahoma | 1911
The present consideration of this case is on demurrer to the bill and application for temporary, injunction. The defendants having in the meantime filed their demurrer to the bill, the demurrer and application for temporary injunction were by agreement of counsel heard together.
It appears from the bill that the land in controversy in this case was originally a part of the lands of the Choctaw and Chickasaw Tribes of Indians, located in what was formerly the Chickasaw Nation, Ind. T., now Grady county, Okl. On July 22, 1903, a certificate of allotment, covering a portion of this land, was issued by the Commission to the Eive Civilized Tribes, in the name of Aaron Col
It appears from the bill that subsequent to the issuance of the allotment certificate in the name of the said Aaron Colbert, deceased, and on the lltli day of September, 1903, Alexander Colbert and Martha Colbert, the father and mother of Aaron Colbert, deceased, executed to the defendant Dowden, in consideration of the sum of $1,500, a warranty deed purporting to convey to the said Dowden the lands theretofore allotted in the name of the said Aaron Colbert. On January 9, 1904, one Billy Colbert, purporting tó be the paternal grandfather of the said Aaron Colbert, deceased, for a consideration of $1 and “the further consideration of the love and affection which I have for my sou Alexander Colbert,” executed what purported to be a general warranty deed to the defendant Dowden, covering said Aaron Colbert allotment. On the --day of January, 1904, Filis Colbert, Washington Colbert, and John Colbert, in consideration of the sum of $1, executed what purports to be a quitclaim deed to the defendant Dowden, purporting to convey to him their interest in the Aaron Colbert allotment. On January 3, 1905, the same date upon which she received her certificate of allotment, Carrie F. McClure executed to the defendant Dowden and one E. II. Perry a warranty deed purporting to convey to them the lauds comprising her allotment, as set forth in said allotment certificate. Under the foregoing deeds, the defendant Dowden claims title to the lands in controversy.
The bill charges that heretofore on a date not specifically given
It is further charged that on the 7th day of June, 1907, the defendant Dowden instituted a suit in the United States Court for the Southern District of the Indian Territory, at Chickasha against each of the several persons who have purchased lots from the complainant through the Chickasaw Town-Site Commission in the town of Tuttle, about 125 persons in number, which cause before trial, and owing to the intervention of statehood, was passed to the district court of the Fifteenth judicial district of the state of Oklahoma, sitting in Grady county, and that upon the 8th day of April, 1908, a judgment was entered in said cause against each of the defendants therein named, who were and are purchasers of lots in the town site of Tuttle, in which judgment the defendant Dowden was decreed' to be the owner in fee of the lands in controversy; that the schedule, appraisement, and sale of lots by the town-site commissioners and appraisers to the defendants was without authority; that such schedules, appraisements, and sales, so far as the same involved the lands belonging to the defendant Dowden, were without authority of law and void; and that the patents executed and delivered to the defendants in that suit, purporting to convey certain lots in the town of Tuttle, were issued without authority of law, and were void, and cast a cloud upon plaintiff’s title and were therefore by the court canceled, set aside, and held for naught, and removed as a cloud upon the title of the said Dowden in and to said land.
It is further charged in the bill that on the 19th day of July, 1910, the defendant Dowden filed in the district court of Grady county. Okl., his petition ag'ainst a large number of the purchasers of lots from the complainant through the Chickasaw Town-Site Commission, in the said town of Tuttle, seeking an adjudication of the title to said lots to be in the defendant Dowden, and for possession of the same, which action is now pending undetermined in said court.
It is further charged that the defendant Dowden lias caused to be placed of record the deeds above referred to. It is charged in the complaint that the said deeds were executed at a time when the parties grantor therein had no right, title, estate, or interest in the land sought to be conveyed, and are each illegal, and should be adjudicated by the court to be wholly void, inoperative, and of no force and effect as instruments of conveyance against the Choctaw and Chickasaw Nations and the complainant. And it is further charged that each of said deeds was executed at a time when, under the law then in force governing the alienation and transfer of title to lands in the Choctaw and Chickasaw Nations, the grantors in said deeds. could not have legally made such conveyances. It is further charged that in none of the proceedings heretofore instituted and
it is further charged that the purported deeds to the said Dowden above referred to and the several judgments obtained by him in the Oklahoma state courts and the proceedings instituted and now maintained by him in the Oklahoma state courts and the District of Columbia, each and all cast clouds upon the title to the land contained within the town site of Tuttle, and greatly hinder, delay, embarrass, and prevent the complainant from proceeding to collect from the parties to whom said lands were scheduled and sold the remaining unpaid balance of the purchase price of said lands, and hinder, delay, and prevent the complainant from executing and delivering to the purchasers deeds of conveyance of the title of said lots, and the placing of such purchasers'in unrestricted peaceful and qitiet possession of the same, and that the conduct and action of the said defendants in taking the deeds heretofore mentioned and recording the same, and in instituting, prosecuting, and maintaining the several suits above referred to, is all for the purpose of hindering, delaying, interfering with, and defeating the complainant in the discharge of its duty toward the Choctaw and Chickasaw Nations or Tribes of Indians, as required b}^ law. and does hinder, delay, and prevent the complainant from the due execution, fulfillment, carrying out, and completion of the policy of the United States as declared by its aers of Congress and the final disposition, sale, and disposal of town lots in the Choctaw and Chickasaw Nations; and that said acts of the defendants hinder and delay and prevent the complainant from collecting the final payments due it from the purchasers of said town lots and from finally executing and delivering, to the persons lawfully entitled thereto, deeds conveying perfect title to the said lots, all to the great and irreparable injury and damage of the complainant, and in violation of its rights to so execute and carry into effect the laws of the United States, in accordance with their true meaning, and to their full effect, and finally to close up the town-site business in the Choctaw and Chickasaw Nations.
Pending this suit the complainant prays a temporary injunction against the defendants, restraining them from further proceeding to
By their demurrer the defendants urged that it appears from the bill that the complainant is not entitled to the relief prayed; that this court has-no jurisdiction to enjoin the prosecution of a suit in a state court of which the state court has acquired prior jurisdiction and where the state court has already rendered a decree therein; that the plaintiff is without capacity to maintain the action.
It appears from the bill that the respective allotments involved had been selected and certificates of allotment issued to the allotees prior to the execution of the purported conveyances on the part of the heirs in the case of the Colbert allotment and by Carrie D- McClure, the allottee, as to her allotment. . Had these heirs and Carrie D-McClure an alienable interest in these lands at the time these deeds were executed, and, if so, did that interest pass to the defendant Dowden by the deeds relied upon? The provisions under which the lands in controversy were allotted are contained in the Choctaw and Chickasaw agreement approved July 1, 1902 (Act July 1, 1902, c. 1362, 32 Stat. 641); the principal sections relating thereto being as follows:
“See. 11. There shall be allotted to each member of the Ohoetaw and Chickasaw Tribes as soon as practicable after the approval by the Secretary of the Interior of his enrollment as herein provided, land equal in value to three hundred and twenty acres of the average allotable land of the Choctaw and Chic-kasaw Nations, and to each Choctaw and Chickasaw freedman, as soon as practicable after the approval by the Secretary of the Interior of his enrollment, land equal'in value to forty acres of the average allotable land of the Choctaw and Chickasaw Nations. * * *
*481 “Sec. 12. Each member of said tribes shall, at the time of the selection of his allotment, designate as a homestead out of said allotment land equal in value to one hundred and sixty acres of the average allottable land of the Choctaw and Chickasaw Nations, as nearly as may be, which shall bo inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment, and separate certificate and patent shall issue for said homestead.
"Sec. 13. The allotment of each Choctaw and Chickasaw freedmau shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment.
“Sec. 14. When allotments as herein provided have been made to all citizens and freedmen, the residue of lands not herein reserved or otherwise disposed of, if any there be, shall be sold at public auction under rules and regulations and on terms to be prescribed by the Secretary of the Interior, and so much of the proceeds as may bo necessary for equalizing allotments shall be used for that purpose, and the balance shall be paid into the Treasury of the United States to the credit of the Choctaws and Chickasaws and distributed per capita as other funds of the trines.
“Sec. 15. Lands allotted to members and freedmen shall not he affected or incumbered by any deed, debt, or obligation of any character contracted prior to the time at which said lands may bo alienated under this act, nor shall said lands be sold except as herein provided.
“Sec. 1(5. All lands allotted to the members of said tribes, except such land as is set aside to each for a homestead as herein provided, shall be alieuable after issuance of patent as follows: One-fourtli in acreage in one year, one-fourth in acreage in three years, and the balance in five years; in each case from date of pateut: Provided, that such land shall not be alienable by the allottee or Ills heirs at any time before the expiration of the Choctaw and Chickasaw tribal governments for loss than its appraised value.”
"Sec. 22. If any person whose name appears upon the rolls, prepared as herein provided, shall have died subsequent to the ratification of this agreement and before receiving his allotment of land, the lands to which such person would have been entitled if living shall be allotted in his name, and shall, together with his proportionate share of other tribal property, descend to his heirs according to the laws of descent and distribution as provided in chapter forty-nine of Mansfield’s Digest of the Statutes of Arkansas: Provided, that the allotment thus to be made shall be selected by a duly appointed administrator or executor. If, however, such administrator or executor be not duly and expeditiously appointed, or fails to act promptly when appointed, or for any other cause such selection be not so made within a reasonable and practicable time, the Commission to the Five Civilized Tribes shall designate the lands thus to be allotted.
“Sec. 23. Allotment certificates issued by the Commission to the Five Civilized Tribes shall be conclusive evidence of the right of any allottee to the tra ct of land described therein; and the United States Indian agent at the Union Agency shall, upon the application of the allottee, place him in possession of: his allotment, and shall remove therefrom all persons objectionable to such allottee, and the acts of the Indian agent hereunder shall not be controlled by the writ or process of any court.
“Sec. 24. Exclusive jurisdiction is hereby conferred upon the Commission to the Five Civilized Tribes to determine, under the direction of the Secretary of the Interior, all matters relating to the allotment of land.”
Pursuant to the foregoing -provisions of law, the selection was made for Aaron Colbert, deceased, and certificate of allotment issued in his name, as provided by section 22. By section 23 this allotment certificate was conclusive evidence of the right of the heirs to the land therein described.
“Tlie word ‘descend’ is, of course, inapplicable to the actual contingency provided for by the statute, because that contingency contemplates the death of the child before he had actually become seised of any interest in the land. The word ‘descend’ is a word of art, and indicates the transference of property by inheritance. If any significance is to be giren to it as used in this section, it must he held that the intent of the parties to the agreement was that the land should pass to the same persons and in the same proportion that it would have passed if the child had died seised of if.. Any other construction simply obliterates this word, and makes the land pass to the parties who are heirs directly hy allotment from the tribe. The statute itself not only declares that it shall descend, but also declares that it shall be allotted and distributed to the heirs. It is manifest, therefore, that both ideas were in the minds of tlie parties to the agreement. * * It was never the intent, however, either of the tribe or of the federal government, to grant, to parties having a kinsman who had died before tlie actual making of tlie allotment, additional lands as a bounty. These kinsmen got all their rigid, to additional lands under or through tlie enrolled member who had died. Whether the ancestor was actually seised of the property or not in his lifetime was immaterial. It was the. intent of the statute that the property should pass by the same right and in tlie same manner that it would have passed if the person enrolled had survived to receive liis allotment. The tribe was not bestowing such land as a bounty, but was simply providing for the right of inheritance.”
Notwithstanding the death of a duly enrolled member before selection of his allotment, it was provided that the allotment should be made in his name and should “descend” to bis heirs. As held in the Shulthis Case, supra, tiie scheme of the statute clearly indicates that the land was to he regarded the same as if it had been inherited, and that it should be treated the same as if Aaron Colbert had survived to receive his allotment. In section 11, the first section of that portion of the act relating to allotment of lauds, it is provided that there shall be allotted to each member of the tribes land equal in value to 320 acres of average allottable lauds, and to each freedman 40 acres. The term “member” is defined in section 3 of the act as a member or citizen of the tribe other than a freedman. By section 30 of the act, it was provided that the members or citizens to whom allotment should he made should be determined by the final rolls of citizenship therein and elsewhere provided for. That the allotment of lands to members provided for in section 11 contemplated allotments to both living andl dead members, in fact all members appearing upon such final rolls, is indicated by tlie provision in section 22 that, in the case of deceased members, allotments shall be made in their names, liotwith-
I have carefully read and considered the very exhaustive and learned opinion of .the state Supreme Court in Hancock v. Mutual Trust Company, 24 Okl. 391, 103 Pac. 566, wherein a conclusion contrary to that arrived at by me is announced, and I have not reached my conclusions here expressed without the most careful research and thought which I have been able to give the matter. But for the reasons above stated, and especially in view of the holding in the Shulthis Case, supra, I am forced to the conclusion that the restrictions provided in sections 15 and 16 attach to lands allotted under the provision’s of section 22.
For the foregoing reasons, I find that as to the lands originally allotted in the name of Aaron Colbert, deceased, the demurrer is not ■'veil taken, and, as it is general in its nature, it should therefore be overruled.