Bledsoe v. United States
| Decision Date | 27 August 1965 |
| Docket Number | No. 8075.,8075. |
| Citation | 349 F.2d 605 |
| Parties | C. C. BLEDSOE, Appellant, v. UNITED STATES of America and Lorena Mashburn, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Bruce W. Gambill of McCoy, Kelly & Gambill, Pawhuska, Okl., for appellant.
Elizabeth Dudley, Atty., Dept. of Justice, Washington, D. C. (J. Edwards Williams, Acting Asst. Atty. Gen., John M. Imel, U. S. Atty., Sam E. Taylor, Asst. U. S. Atty., and Roger P. Marquis, Atty., Dept. of Justice, with her on the brief), for appellees.
Before MURRAH, Chief Judge, and PICKETT and BREITENSTEIN, Circuit Judges.
The United States brought this action in the United States District Court for the Northern District of Oklahoma, seeking to remove Bledsoe, an alleged trespasser, from a leasehold of 160 acres of restricted Osage Indian land, and a declaratory judgment determining the rights of Bledsoe and Lorena Mashburn to a lease on the property. At the time the action was filed Bledsoe was claiming the right to possession of the land under lease No. 40910, which had expired by its terms on March 31, 1963. Mashburn claims the right to present possession of the property by virtue of lease No. 41928, executed November 21, 1962, to become effective for a 5-year term on April 1, 1963. The land is owned in equal undivided interests by Vivian Osage Big Eagle, Andrew Harry Nuckolls, and Homer Troy Big Eagle, restricted Osage Indians. Vivian is an incompetent, represented by Betty Wayman, her appointed guardian; Andrew is a minor, residing with his adoptive parents, Mr. & Mrs. Thomas L. Nuckolls; and Homer is a minor in the custody of Dorothy Robinson, pursuant to a state court decree following the divorce of his parents. Homer's natural mother is Hazel Robinson. His natural father is deceased.
When the notice to quit the premises was served upon Bledsoe, he had been in possession of the property nearly a year beyond the expiration date of his lease. Shortly after receipt of the notice, he tendered a check in the amount of one year's rental to the Superintendent of the Osage Indian Agency. This payment was accepted. After the institution of this action, Bledsoe, on July 20, 1964, again tendered a year's rental, purporting to cover the period from April 1, 1964 to April 1, 1965. This latter payment was refused. In his answer, in addition to the foregoing payment and tender, Bledsoe alleged that he had been in possession of the land for more than 12 years and that he then held a lease for the period through March 31, 1966, "from non-Osage Hazel Robinson, natural mother of Homer Troy Big Eagle, and Thomas Nuckolls, adoptive father of Andrew Harry Nuckolls."
The Mashburn lease, to which Bledsoe objects, was executed for Vivian, Andrew and Homer by their respective representatives. As so executed, the Mashburn lease was approved by the Superintendent. It is Bledsoe's principal contention that the Superintendent lacked authority to approve the Mashburn lease as to all interests because the lease was executed by only two of the three proper parties. He urges that under Oklahoma law, the proper person to sign for Homer Troy Big Eagle is his natural mother, rather than the court-appointed custodian, because upon death of one natural parent the custody of a minor child vests in the surviving parent. Bledsoe cites Hughes v. Bowen, 193 Okl. 269, 143 P.2d 139, as authority for his position. However that case involved a situation in which the mother was awarded the custody of minor children, and the mother subsequently died leaving no one in legal custody of the children. The court concluded that under these circumstances the custody then automatically inured to the surviving parent and the divorce court was without jurisdiction to award custody to anyone else. When the Big Eagles were divorced, both were adjudged to be unfit parents and the custody of the minor child, Homer, was awarded to Dorothy Robinson. We do not think that the rule of Hughes v. Bowen, supra, should be extended to include the present situation where the custody of the child is in a third person. In the absence of a controlling interpretation of state law, we will accept the determination of the trial court...
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