CAMPBELL
District Judge.
This is
an action in the nature of an ejectment suit by the
plaintiffs against the defendants for the recovery of the
possession of the lands in controversy which it is alleged
the defendants wrongfully withhold from them. There is no
diversity of citizenship alleged. It is alleged that the
matter in dispute exceeds, exclusive of interest and costs
the sum of $5,000, and the plaintiffs contend that the facts
alleged in the petition make it a suit arising under the
Constitution and laws of the United States, and therefore
within the jurisdiction of this court. The defendants have
demurred to the petition, denying that the suit as set forth
in the petition is one arising under the Constitution and
laws of the United States, and contend that this court is
therefore without jurisdiction to entertain the cause. That
portion of the petition upon which plaintiffs rely as
establishing their contention that the suit arises under the
Constitution or laws of the United States is as follows:
'That
plaintiffs derived title to the above-described land
through one Mary Mitchell, a full blood Choctaw Indian, the
allottee of said land, and to whom the Choctaw and
Chickasaw Nations executed an allotment patent, approved by
the Secretary of the Interior of the United States, a
certified copy of said patent is attached to the original
complaint in this case, and marked 'Exhibit A', and
which is hereby referred to and made a part of this second
amended complaint. That said patent contained the following
provision: 'Subject, however, to the provisions of the
act of Congress approved July 1, 1902 (32 Stat. 641).'
That on account of said clause in said patent the entire
act of Congress became a part of said patent, and a copy of
sections 15, 16, 68, and 73 of said act read as follows:
"15.
Lands allotted to members and freedmen shall not be
affected or encumbered by any deed, debt, or obligation of
any character contracted prior to the time at which said
land may be alienated under this act, nor shall said lands
be sold except as herein provided.
"16.
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 alienable after issuance of patent as
follows: One-fourth in acreage in one year, one-fourth in
acreage in three years, and the balance in five years; in
each case from date of patent; provided, that such land
shall not be alienated by the allottee or his heirs at any
time before the expiration of the Choctaw and Chickasaw
tribal government for less than its appraised value.'
"68.
No act of Congress or treaty provision, nor any provision
of the Atoka Agreement, inconsistent with this agreement,
shall be in force in said Choctaw and Chickasaw Nations.,
"73.
This agreement shall be binding upon the United States and
upon the Choctaw and Chickasaw Nations and all Choctaws and
Chickasaws, when ratified by Congress and by a majority of
the whole number of votes cast by the legal voters of the
Choctaw and Chickasaw tribes in the manner following: The
principal chief of the Choctaw Nation, and the Governor of
the Chickasaw Nation, shall within one hundred and twenty
days after the ratification of this agreement by Congress,
make public proclamation that the same shall be voted upon
at any special election to be held for that purpose within
thirty days thereafter, on a certain day therein named; and
all male citizens of each of the said tribes qualified to
vote under the tribal laws shall have a right to vote at
the election precinct most convenient to his residence,
whether the same be within the bounds of his tribe or not.
And if this agreement be ratified by said tribes as
aforesaid, the date upon which said election is held shall
be deemed to be the date of final ratification.,
'That,
in open violation of the restrictions against the
alienation of said land contained in the foregoing act of
Congress and in the patent to said land Joe Anderson, one
of the defendants in this action induced Simon Taylor,
Melvin Taylor, Lues Wilson, Anderson Wilson, Lane Wilson,
and Bicy Wilson to execute and deliver to said Joe Anderson
an illegal deed for said land, and said illegal deed is
dated July 31, 1905, and the consideration stated in said
illegal deed is seven hundred fifty dollars ($750). That
$750 is the total price that Joe Anderson paid for said
land, which was a wholly inadequate price. That said land
was in fact worth more than six times said price. That all
of said plaintiffs and grantors in the illegal deed to Joe
Anderson
are Indians by blood, and are wholly ignorant of land
values and are in need of and entitled to the protection of
said restrictions against the alienation of said land
contained in said patent and in said act of Congress. That
the patent to Mary Mitchell to said land was approved by
the Department of Interior September 20, 1905, and the
illegal deed to Joe Anderson before mentioned is dated July
31, 1905. That on the date of said illegal deed to Joe
Anderson said land was not alienable under the act of
Congress approved July 1, 1903 (32 Stat. 641). That, under
said act of Congress, said land was allotted and the title
acquired thereto. That the plaintiffs claim the title to
said land and the right to the possession and rents thereof
under the lastmentioned acts of Congress. That Joe Anderson
and Sabitha Anderson, his wife, has since attempted to
convey said land to Jesse T. Kincannon. That the plaintiffs
and the grantors in the before mentioned illegal deed to
Joe Anderson had no power to convey said land on the date
of said illegal deed, and said illegal deed is repugnant to
an act of Congress approved July 1, 1902 (31 Stat. 641),
and to an act of Congress approved April 26, 1906, and is
an impeachment and impairment of the title to said land of
the plaintiffs derived from the United States under said
act of Congress to the great property loss and damage of
the plaintiffs, and is repugnant to the Constitution of the
United States, and is null and void. That Mary Mitchell is
a full blood Choctaw Indian. That Mary Mitchell died before
July 31, 1905, leaving the plaintiffs as her sole and only
heirs at law, and said heirs are full blood Choctaw
Indians, and are the owners in fee of said land, and who
are now, and have ever since the death of the said Mary
Mitchell been, entitled to the possession of said land, and
said lands are not now nor never have been alienable under
the acts of Congress, approved July 31, 1902 (32 Stat.
641), and the act of Congress approved April 26, 1906,
without the approval of the Secretary of the Interior, and
the Secretary of the Interior has not approved the sale of
said land. That the primary question to be determined in
this case involves a construction of the acts of Congress
above referred to, as it is the contention of the
plaintiffs that the deed executed by plaintiffs to the
defendant Joe Anderson is void by reason of the restriction
on alienation contained in said acts of Congress, and, if
plaintiffs' contention in this particular is not
sustained, they must fail in this action. That it is the
contention of the defendants that, notwithstanding the
restriction imposed by said acts of Congress, that
plaintiffs had a right to convey at the time they executed
said deed, and that the defendant Joe Anderson took good
title, and, if defendant's contention in this regard is
sustained, the plaintiffs fail in this action, so that this
case cannot be decided without a construction by the court
of the acts of Congress above referred to.'
By
section 6122 of Snyder's Complied Laws of Oklahoma, it is
provided:
'In
an action for the recovery of real property, it shall be
sufficient if a plaintiff state in his petition that he has
the legal or equitable estate therein and is entitled to
the possession thereof, describing the same as required by
section 5667, and that the defendant unlawfully keeps him
out of possession. It shall not be necessary to state how
the plaintiff's estate or ownership is derived.'
Section
5667, referred to in the foregoing section, provides that the
land shall be described with such convenient certainty as
will enable an officer holding an execution to identify it.
By section 6123 it is provided:
'That
it shall be sufficient in such action if the defendant in
his answer deny generally the title alleged in the
petition, or that he withholds the possession, as the case
may be. But if he deny the title of the plaintiff,
possession by the defendant shall be taken as
admitted.'
It is
seen, therefore, that, while the plaintiff in an ejectment
suit must recover upon the strength of his own title and not
the weakness
of his adversary's, it is not necessary for him to
suggest in his petition how his estate or ownership is
derived.
The
case of Joy v. St. Louis, 201 U.S. 332, 26 Sup.Ct
478, 50 L.Ed. 776, was a suit in ejectment originally
instituted in the Circuit Court of the United States for the
Eastern District of Missouri. The plaintiff there, as in this
case, set forth in detail that his title was derived through
and by certain patents and acts of Congress, and was
originally vested in one Louis La Beaume, through whom, by a
series of mesne conveyances, the plaintiff claimed title, and
that a controversy had arisen between the plaintiff and the
defendants as to the proper construction or legal effect of
the said letters patent and acts of Congress, and that the
claim of the plaintiff as to the proper construction and
legal effect thereof was...
