27 F.2d 304 (8th Cir. 1928), 7950, Jefferson v. Gypsy Oil Co.

Docket Nº:7950.
Citation:27 F.2d 304
Party Name:JEFFERSON v. GYPSY OIL CO. et al.
Case Date:June 08, 1928
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 304

27 F.2d 304 (8th Cir. 1928)

JEFFERSON

v.

GYPSY OIL CO. et al.

No. 7950.

United States Court of Appeals, Eighth Circuit.

June 8, 1928

Federal Courts 191

Appeal from the District Court of the United States for the Northern District of Oklahoma; Franklin E. Kennamer, Judge.

Suit by Jane Jefferson, an incompetent, by her guardian, R. C. Vincent and another, against the Gypsy Oil Company and others. Decree for defendants, and plaintiff appeals. Reversed and remanded, with directions.

Page 305

Charles A. Coakley, of Tulsa, Okl. (C. B. Stuart, of Oklahoma City, Okl., E. J. Doerner, of Tulsa, Okl., and Frank F. Lamb, of Okmulgee, Okl., on the brief), for appellant.

James B. Diggs, of Tulsa, Okl. (W. C. Liedtke, Russell G. Lowe, and Redmond S. Cole, all of Tulsa, Okl., C. L. Billings, of Oklahoma City, Okl., and West, Gibson, Sherman, Davidson & Hull, and John Rogers, all of Tulsa, Okl., on the brief, for appellees.

Before KENYON, Circuit Judge, and SCOTT and SYMES, District Judges.

KENYON, Circuit Judge.

This action is one brought in equity in the District Court of the United States for the Northern District of Oklahoma by the guardians of Jane Jefferson, an incompetent adopted citizen of the Creek Nation of Indians, to set aside and cancel certain deeds made by her of a homestead allotment of 40 acres, on the ground that the same were fraudulently obtained from her while she was incompetent, and also that said allotment was restricted land under the patent to her from the government and under the laws of the United States. The complaint also asks the court to enjoin the enforcement of a certain judgment against Jane Jefferson in the district court of Okfuskee county, Oklahoma, in a case brought by her against appellees herein and some others, in which the court held that appellees John H. and Ida H. King had acquired by deeds from Jane Jefferson the fee-simple title to said allotment, on the ground that the same was obtained by fraud and collusion. Rents and revenues from the lands are sought to be recovered, and the cancellation of certain oil leases is asked. Various defendants (appellees here) moved to dismiss the complaint upon a number of grounds; the chief ones being that the court had no jurisdiction to hear and determine the matters set forth in the bill of complaint, as no federal question was involved, and that the bill failed to show any facts entitling plaintiff to equitable relief, in that it failed to show that complainant had no complete, full, and adequate remedy at law. March 8, 1927, the District Court sustained the motions to dismiss; the order in part reading:

'Now on this the 8th day of March, 1927; this cause came on for hearing upon the motion of the defendants to dismiss the bill herein, and the court, after hearing the argument of counsel, takes the same under advisement.

'Now on this the 8th day of March, 1927, the court, being well and sufficiently advised in the premises, finds that the bill herein should be dismissed, for the reason that the plaintiff is not in possession of the lands involved, and for the further reason that the restrictions thereon had been removed at the time of the conveyances upon which the title of defendants is based.

'It is therefore by the court ordered, considered, and adjudged that the bill herein be and the same is hereby dismissed for the reasons heretofore stated, to which action and judgment of the court the plaintiff excepts.'

The controlling questions in this case are: (a) Is the matter in controversy presented by plaintiff's bill one arising under the Constitution or laws of the United States, so as to give jurisdiction to a federal court? (It is not questioned that the amount in controversy exceeds $3,000.) (b) If there is jurisdiction in the federal court of the subject-matter of this action, then is the case presented by the bill within the equitable jurisdiction of the federal court; i.e., is it a case cognizable in equity?

Appellant claims that the action involves, and its determination depends upon, the construction of certain laws of the United States. If this is true, then federal jurisdiction follows. Of course, a mere statement that a construction of certain federal statutes is involved in a case is not sufficient to bestow such jurisdiction. The dispute must involve a substantial question as to construction of the federal statutes, and not a colorless or frivolous one, and it is for the court to determine from the pleadings whether the question on which federal jurisdiction is based is a substantial one, or a mere makeshift, for the purpose of securing such jurisdiction. All that is necessary to be said as to the law of this subject is said by the Supreme Court in Corrigan et al. v. Buckley, 271 U.S. 323, 329, 46 S.Ct. 521, 523 (70

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L.Ed. 969), as follows: 'The mere assertion that the case is one involving the construction or application of the Constitution, and in which the construction of federal law is drawn in question, does not, however, authorize this court to entertain the appeal; and it is our duty to decline jurisdiction if the record does not present such a constitutional or statutory question substantial in character and properly raised below. Sugarman v. United States, 249 U.S. 182, 184 (39 S.Ct. 191, 63 L.Ed. 550); Zucht v. King, 260 U.S. 174, 176 (43 S.Ct. 24, 67 L.Ed. 194). And, under well-settled rules, jurisdiction is wanting if such questions are so unsubstantial as to be plainly without color of merit and frivolous. ' Norton et al. v. Larney (C.C.A.) 289 F. 395; Binderup v. Pathe Exchange, 263 U.S. 291, 44 S.Ct. 96, 68 L.Ed. 308; Norton et al. v. Larney, 266 U.S. 511, 45 S.Ct. 145, 69 L.Ed. 413. This case must be subjected to the test of the substantiality of the federal question pleaded. We turn to the pleaded facts.

It appears that Jane Jefferson, as an adopted citizen of the Creek Nation, received a patent for the northeast quarter of the southwest quarter of section 13, township 11 north, range 11 east of the Indian base and meridian, in Indian Territory, as her homestead allotment; the deed therefor containing the following provision: 'Subject, however to the conditions provided by said Act of Congress (March 1, 1901, 31 Stat. 861), and which conditions are that said land shall be nontaxable and inalienable and free from any incumbrance whatever for twenty-one years, and subject,' etc.

Appellant contends in the bill of complaint: That the construction of certain acts of Congress is involved in this suit, particularly the Act of May 27, 1908 (chapter 199, 35 Stat. 312), which relates to restrictions on alienation or incumbrance, and provides: 'All lands, including homesteads, of said allottees enrolled as intermarried whites, as freemen, and as mixed-blood Indians having less than half Indian blood, * * * shall be free from all restrictions. * * * All homesteads of said allottees enrolled as mixed-blood Indians having half or more than half Indian blood * * * shall not be subject to alienation * * * prior to April 26, 1931. ' That said act bears upon the previous acts of Congress relating to alienation of allotted lands, being section 16, chapter 1323 of the Act of June 30, 1902 (32 Stat. 500), and part of chapter 1402 of the Act of April 21, 1904 (33 Stat. 189). That appellant is an adopted citizen of the Creek Tribe of Indians, is not of Indian blood, is not a freedman, and is not enrolled as either, but is enrolled as an adopted citizen. That the alienation of her homestead was prevented by restrictions of the statutes in effect at the time the allotment was made to her, and that these restrictions likewise found in her patent were not removed by the Act of May 27, 1908. That, as this act of 1908 does not mention adopted citizens, it does not remove the restrictions upon the homestead of an adopted citizen of the Five Civilized Tribes.

Appellees, on the other hand, contend that the Act of May 27, 1908; removed all the restrictions on the land in suit; that it was intended as a revision of the previous acts of Congress relating to restrictions on allotted lands of the Five Civilized Tribes; that allotments made to all classes of citizens of the Five Civilized Tribes are by said act freed from restrictions, except where such lands are specifically by the act declared to be subject to restriction. Strong reasons are presented for this contention, supported by a long line of Oklahoma decisions which have held such to be the law. MaHarry v. Eatman, 29 Okl. 46, 116 P. 935; Henley v. Davis, 57 Okl. 45, 156 P. 337; McKeever v. Carter et al., 53 Okl. 360, 157 P. 56; Kinzer v. Davis, 64 Okl. 264, 167 P. 753; Chupco et al. v. Chapman et al., 76 Okl. 201, 170 P. 259.

Counsel urge that by these decisions through the years a rule of property has been established, whether right or wrong, and that such construction should be sustained, therefore, by the federal courts-- a question more properly belonging to the trial of the case than as bearing on the question of jurisdiction with which we are now concerned. The test of such jurisdiction, being the right to enter upon inquiry and determine the matter in controversy, does not depend upon the way the court may decide such question. Quagon v. Biddle, Warden (C.C.A.) 5 F. (2d) 608. We find no federal cases passing on the particular question raised here concerning the Act of May 27, 1908. The decisions of the Supreme Court of Oklahoma are, of course, very persuasive on the subject, but are not controlling on the federal courts in the construction of federal statutes. It is apparent that the question of the construction of this statute is not entirely clear. Under the...

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