Vinson v. Graham

• Decision Date: 22 October 1930
• Docket Number: No. 275.,275.
• Citation: 44 F.2d 772
• Parties: VINSON et al. v. GRAHAM et al.
• Court: U.S. Court of Appeals — Tenth Circuit

44 F.2d 772 (1930)

VINSON et al. v. GRAHAM et al.

No. 275.

Circuit Court of Appeals, Tenth Circuit.

October 22, 1930.

Chester I. Long and W. E. Stanley, both of Wichita, Kan. (A. W. Anderson, of Wewoka, Okl., Peter Q. Nyce, of Washington, D. C., Austin M. Cowan, of Witchita, Kan., Malcolm E. Rosser, of Muskogee, Okl., and Thos. H. Owen, of Oklahoma City, Okl., on the brief), for appellants.

G. J. Neuner and Elmer J. Lundy, both of Tulsa, Okl. (John H. Brennan and Thos. J. Casey, both of Tulsa, Okl., Foster V. Phipps, of Muskogee, Okl., Jack Paden, of Tahlequah, Okl., R. W. Stoutz and Poe, Lundy & Morgan, all of Tulsa, Okl., R. A. Hockensmith and R. R. Smith, both of Okmulgee, Okl., C. H. Jameson, of Tulsa, Okl., and Willmott & Looney, of Wewoka, Okl., on the brief), for appellees.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

PHILLIPS, Circuit Judge.

Dorsey Fife brought this suit against the above named appellees to cancel certain instruments affecting the title to the east half of the northwest quarter of section 14, township 8 north, range 5 east, Seminole county, Oklahoma, less one acre in the northeast corner thereof, to establish his title thereto, to enjoin appellees from removing oil and gas therefrom, and to obtain an accounting for the oil and gas removed therefrom by appellees.

The original suit sought similar relief concerning two other tracts, not involved in this appeal. From a decree dismissing his petition as to the above described tract, Fife appealed. Thereafter Fife died and John H. Vinson, as administrator with the will annexed of the estate of Dorsey Fife, deceased, and Louis Fife, Phillip Fife, Annie A. Brown, née Fife, Clyde W. Brown, Della Fife, Betsey Fife and Chester I. Long, Trustee, as devisees, were substituted as appellants.

The name of Fife appears upon the approved rolls of the citizens of the Seminole Nation as follows: "No. 1077; Name, Fife, Dorsey; Age, 55; Sex, M.; Blood, Adop.; Year, 1897; Band, Okoske, Harjo; No. 239; Census Card No. 316."

On October 2, 1901, an allotment certificate was issued by the Seminole Nation to Fife conveying to him, as a part of his surplus allotment, the land here in controversy. On March 17, 1906, Fife executed and delivered to Thomas H. Smith a warranty deed to such land.

On January 2, 1909, the United States, in behalf of Fife and other members of the Seminole Nation, commenced an action in the United States District Court for the Eastern District of Oklahoma against Smith and others to cancel and set aside certain deeds, and to establish the title of such members to certain lands. Such suit was numbered 444, equity. The bill of complaint in that suit alleged the deed from Fife to Smith of March 17, 1906; that the lands described therein were allotted to Fife as a part of his surplus allotment, as an adopted citizen of the Seminole Tribe of Indians; and that, under the treaties with the Seminoles and the laws of the United States, Fife was not authorized to sell or alienate such land. On April 5, 1909, Smith and other defendants in No. 444 equity filed their joint and several demurrer to the bill of complaint setting up, among others, grounds of objection going to the merits. On December 9, 1912, the court entered its order sustaining such demurrer and dismissing such bill as to the defendant, Smith, and the deed of March 17, 1906. The order of dismissal was without reservation and contained no recitation of the grounds upon which the demurrer was sustained. Therefore, it must be considered as an order dismissing the bill upon the merits, as to Smith and the deed of March 17, 1906. Hickey v. Johnson (C. C. A. 8) 9 F.(2d) 498.

On May 6, 1918, Fife executed and delivered to Smith a warranty deed for such land.

In his bill of complaint in the instant case, Fife alleged that he had executed certain deeds affecting such tract of land; that, at the time of the execution of such deeds, he was a full blood restricted Indian, who was forbidden by acts of Congress to alienate or transfer such tract of land, and for such reason all such deeds made by him were null and void. By an amendment, Fife further alleged that, under the Curtis Act, approved June 28, 1898, 30 Stat. 495, the mineral rights in the Seminole lands were severed from the surface rights; that an allotment of lands under the Seminole agreement (Act July 1, 1898, 30 Stat. 567) did not convey to the allottee the equitable title to the mineral rights; that such mineral rights first vested in the allottees on July 1, 1908, by virtue of the provisions of section 11 of the Act of May 27, 1908, 35 Stat. 312; that at the time of the execution of the deed of March 17, 1906, Fife owned only the surface estate in such tract of land; and that only the surface estate, if any, passed to Smith by virtue of such deed.

Appellees alleged title through mesne conveyances commencing with the Smith deed of March 17, 1906; alleged that the Barnsdall Oil Company and the Wolf Oil Company were the owners of oil and gas leases to such land; and alleged the decree in No. 444 equity as an estoppel under the doctrine of res judicata.

The trial court found that Fife was a three-quarter blood Indian, enrolled as an adopted Seminole. It concluded that Fife was barred from prosecuting the instant suit, in respect to the tract of land above described, by reason of the decree in No. 444 equity, under the doctrine of res adjudicata.

The Seminole agreement of December 16, 1897, 30 Stat. 567, provided that "all contracts for sale, disposition, or encumbrance of any part of any allotment made prior to date of patent shall be void."

The Act of April 21, 1904, 33 Stat. 189, 204, provided: "And all the restrictions upon the alienation of lands of all allottees of either of the Five Civilized Tribes of Indians who are not of Indian blood, except minors, are, except as to homesteads, hereby removed." This limited the restrictions of the treaty, in respect to surplus allotments made to adults, to allottees of Indian blood.

Section 19 of the Act of April 26, 1906, 34 Stat. 137, 144, Thomas Annotated Acts of Congress, Five Civilized Tribes, page 245, provided:

"That no full-blood Indian of the * * * Seminole tribes shall have power to alienate, sell, dispose of, or encumber in any manner any of the lands allotted to him for a period of twenty-five years from and after the passage and approval of this Act, unless such restriction shall, prior to the expiration of said period, be removed by Act of Congress; and for all purposes the quantum of Indian blood possessed by any member of said tribes shall be determined by the rolls of citizens of said tribes approved by the Secretary of the Interior: * * * Provided further, That conveyances heretofore made by members of any of the Five Civilized Tribes subsequent to the selection of allotment and subsequent to removal of restriction, where patents thereafter issue, shall not be deemed or held invalid solely because said conveyances were made prior to issuance and recording or delivery of patent or deed; but this shall not be held or construed as affecting the validity or invalidity of any such conveyance, except as hereinbefore provided; and every deed executed before, or for the making of which a contract or agreement was entered into before the removal of restrictions, be and the same is hereby, declared void. * * *"

Section 1 of the Act of May 27, 1908, 35 Stat. 312, Thomas, Id., page 259, in part provides:

"That from and after sixty days from the date of this Act the status of the lands allotted heretofore or hereafter to allottees of the Five Civilized Tribes shall, as regards restrictions on alienation or incumbrance, be as follows: All lands, including homesteads, of said allottees enrolled as intermarried whites, as freedmen, and as mixed-blood Indians having less than half Indian blood including minors shall be free from all restrictions. All lands, except homesteads, of said allottees enrolled as mixed-blood Indians having half or more than half and less than three-quarters 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, including minors of such degrees of blood, and all allotted lands of enrolled full-bloods, and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees of blood, shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance prior to April twenty-sixth, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe."

Counsel for appellants contend that the decree in No. 444 equity is not a bar to the relief sought in the instant case, under the doctrine of res adjudicata. They predicate this contention upon two principal propositions.

As their first proposition, counsel for appellants assert that a decree of a court cannot remove restrictions on alienation by an Indian, imposed by acts of Congress, or render valid a deed made in violation of such restrictions. In support of this proposition, they cite and rely upon Tidal Oil Co. v. Flanagan, 87 Okl. 231, 209 P. 729; Cotton v. McClendon, 128 Okl. 48, 261 P. 150; Bell v. Fitzpatrick, 53 Okl. 574, 157 P. 334; Crow v. Hardridge, 73 Okl. 136, 175 P. 115; Bilby v. Malone, 130 Okl. 217, 266 P. 760; Brink v. Canfield, 78 Okl. 189, 187 P. 223; and Goodrum v. Buffalo (C. C. A. 8) 162 F. 817.

In the first four of the cases cited above, it was held that each of the judgments, relied upon as an estoppel, had been rendered by a court which had no jurisdiction of the subject matter of the action, namely, the real property of a restricted Indian minor. The two Oklahoma cases last cited involved estates of...