Tiger v. Twin State Oil Co.

• Decision Date: 16 March 1931
• Docket Number: No. 312.,312.
• Citation: 48 F.2d 509
• Parties: TIGER et al. v. TWIN STATE OIL CO. et al.
• Court: U.S. Court of Appeals — Tenth Circuit

48 F.2d 509 (1931)

TIGER et al. v. TWIN STATE OIL CO. et al.

No. 312.

Circuit Court of Appeals, Tenth Circuit.

March 16, 1931.

Charles B. Rogers, of Tulsa, Okl. (E. C. McMichael, of Sapulpa, Okl., on the brief), for appellants.

John M. Goldesberry, U. S. Atty., of Tulsa, Okl., for appellee the United States.

William J. Gregg, of Tulsa, Okl. (G. Earl Shaffer and R. E. Berger, both of Tulsa, Okl., on the brief), for other appellees.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

The appellants, plaintiffs below, are the children of a full-blood Creek Indian whose English name was John Tiger. Plaintiffs demand possession of certain land allotted by the Dawes Commission to one Do-saw-cher, a full-blood Creek, and for an accounting for rents and profits. The defendants in possession deny plaintiffs' claim; they assert that Do-saw-cher was the Indian name of John Tiger; that John Tiger had been allotted other land, enjoyed the use thereof for years, and sold it and enjoyed the proceeds. That shortly after the allotment to Do-saw-cher was made the government discovered that it was a duplicate allotment, the same Indian having theretofore received his allotment under his English name; that upon discovery of the error, the United States canceled the duplicate allotment, and reallotted the land to Leslie King and Alice Colbert, other Creeks entitled to allotments, through whom defendants claim. The United States appeared in the case for itself and on behalf of the Secretary of the Interior and Leslie King and Alice Colbert, and set up in detail the facts concerning the duplication of allotments, and affirmatively prayed for a decree canceling the allotment to Do-saw-cher on account of the gross mistake of fact and law in the making thereof, and that the title of Leslie King and Alice Colbert be quieted in them and their assigns. Upon the issues so joined the case was tried.

While there is room for conjecture in the tribal records, the evidence leaves no doubt as to the facts. On September 9, 1899, Mrs. Emma Lynch, a white woman, was appointed guardian for one "Euchee Indian boy whose name is John Tiger, a minor, under the age of 14 years." The name this boy was known under, in the Euchee Tribe, was Do-saw-cher. Mrs. Lynch then made application for an allotment for John Tiger, her ward. On September 3, 1902, allotment deeds for the land selected by Mrs. Lynch were executed to John Tiger, which were approved by the Secretary of the Interior on December 22, 1902, and filed for record on December 30, 1902. This is not the land involved in this action. Later Joseph Bruner was appointed his guardian, and as such executed a departmental oil and gas lease for him on the land so deeded to him. Siller Kemohah married John Tiger on September 5, 1913; he was known to her as John Tiger Lynch, getting the "Lynch" from his guardian. The marriage license names him as John Tiger. His wife testified that her husband was known in the Euchee Tribe as Do-saw-cher. She and John Tiger are the parents of the plaintiffs. He enlisted in the United States Army as John Tiger, and during his service his wife made several applications for the payment to her of royalties from the land deeded to her husband, and in such applications described herself as "Siller Tiger, the wife of John Tiger." The royalties were paid to her. In 1919 John Tiger applied for a removal of his restrictions, which was granted. In the same year he sold the land to W. R. McKee, the deed being executed by John and Siller Tiger. In 1920 Siller Tiger procured a divorce from her husband John Tiger, and later married Kemohah. John Tiger died in 1924.

From this brief recital it incontrovertibly appears that the father of plaintiffs, using his English name of John Tiger, accepted an allotment made to him, enjoyed the use of it for years, sold it and used the proceeds. The object of this action is to procure another allotment under his Indian name of Do-saw-cher. Plaintiffs' claim is that the "John Tiger" appearing on the records of the Dawes Commission was intended to identify another Indian called "Johnny" or "John Peter," and that John Tiger accepted, used and sold an allotment intended for John Peter, and has never had his own allotment. The trial court found against this claim on the facts, and we agree. But it is immaterial; for it cannot be disputed that this land was intentionally allotted and deeded to the father of plaintiffs, and the name used by him is but incidental. We turn now to the history of the land involved in this action.

On the rolls of the Dawes Commission appeared the name "Do-saw-cher." No one applied for an allotment under this enrollment, and accordingly the Dawes Commission arbitrarily allotted to "Do-saw-cher" the land in litigation, and in 1903 patents to him were executed, approved and recorded. They were sent to the Principal Chief of the Creek Nation for delivery, but no one called for them. In 1904 the Dawes Commission discovered that John Tiger, who already had his allotment, was the same individual as Do-saw-cher, and that the Do-saw-cher allotment was therefore a duplicate. The Commission procured affidavits supporting the fact of duplication and transmitted them to the Secretary of the Interior with its recommendation that Do-saw-cher's name be stricken from the rolls and the deeds issued in his name be canceled. The Secretary directed that this be done, and accordingly the name Do-saw-cher was stricken from the rolls; the Principal Chief of the Tribe canceled his signature to the deeds, and they were returned to the Secretary of the Interior. The land was later allotted to Leslie King and Alice Colbert, under whom defendants claim. Leslie King and Alice Colbert, and their assigns, have been in possession since 1907 or 1908.

The trial court denied a motion to dismiss the answer and cross-petition of the United States, and the answers of the defendants; and upon final hearing dismissed the plaintiffs' bill and entered a decree upon the cross-petition of the United States, striking the name of Do-saw-cher from the rolls, canceling the deeds issued in his name, and quieting the titles of the defendants. The plaintiffs appeal.

There can be no question of the correctness of that part of the decree which dismissed plaintiffs' bill. There is not the slightest doubt that the father of plaintiffs was granted his full allotment, accepted it, enjoyed it and sold it. That neither he nor his children are entitled to two allotments is conceded. The assertion of a claim to a second allotment is a fraud on every other member of the Tribe. That courts of equity can never be used as an aid in the perpetration of a fraud has been so long settled that the rule has become axiomatic. The plaintiffs' father has had his full share of the tribal property. That he used the name of John Tiger for that purpose is but incidental, for allotments are made to individuals and not to names. The father of plaintiffs cannot use his English name of Tiger to get one full allotment and his Indian name of Do-saw-cher to get another.

There is another all-sufficient reason why plaintiffs cannot prevail. Section 23 of the Creek Agreement (31 Stat. 861, 867) provides:

"Any allottee accepting such deed shall be deemed to assent to the allotment and conveyance of all the lands of the tribe, as provided herein, and as a relinquishment of all his right, title, and interest in and to the same, except in the proceeds of lands reserved from allotment.

"The acceptance of deeds of minors and incompetents, by persons authorized to select their allotments for them, shall be deemed sufficient to bind such minors and incompetents to allotment and conveyance of all other lands of the tribe, as provided herein."

By accepting the allotment selected by Mrs. Lynch, the plaintiffs' father expressly relinquished all his right, title, and interest to the land here in controversy.

Plaintiffs argue that John Tiger and Do-saw-cher are two individuals; the evidence to the contrary is overwhelming; but if they are, there is no dispute that plaintiffs' father is the individual who accepted the allotment he later sold to McKee; if Do-saw-cher is another individual, he is a phantom that is no kin to plaintiffs, and they have no concern with his allotment or this lawsuit. Plaintiffs claim that John Tiger on the rolls is in fact John Peter in the flesh; that John Tiger in the flesh is Do-saw-cher on the rolls; that plaintiffs' father accepted John Peter's allotment by mistake, lived on it for years and sold it by mistake. But the claim is not borne out...