Choctaw and Chickasaw Nations v. Seitz, 4331.

• Decision Date: 07 April 1952
• Docket Number: No. 4331.,4331.
• Citation: 193 F.2d 456
• Parties: CHOCTAW AND CHICKASAW NATIONS v. SEITZ et al.
• Court: U.S. Court of Appeals — Tenth Circuit

193 F.2d 456 (1951)

CHOCTAW AND CHICKASAW NATIONS v. SEITZ et al.

No. 4331.

United States Court of Appeals Tenth Circuit.

December 18, 1951.

Writ of Certiorari Denied April 7, 1952.

W.F. Semple, Tulsa, Okl. (Lynn Adams, Oklahoma City, Okl., Grady Lewis, Washington, D.C., and H.L. Fitzgerald, Jr., Tulsa, Okl., on the brief), for appellants.

George N. Otey, Ardmore, Okl., and Charles B. Cochran, Oklahoma City, Okl. (Otey, Johnson & Evans, Ardmore, Okl., and Richardson, Shartel & Cochran, Oklahoma City, Okl., on the brief), for appellees N.G. Seitz, B.S. Gladney, and J.W. Gladney.

John C. Harrington, Atty., Dept. of Justice, Washington, D.C. (A. Devitt Vanech, Asst. Atty. Gen., Cleon A. Summers, U.S. Atty., Muskogee, Okl., Roger P. Marquis and Elizabeth Dudley, Attys., Dept. of Justice, Washington, D.C., on the brief), for United States.

Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.

PHILLIPS, Chief Judge.

The Choctaw and Chickasaw Nations¹ brought this action against N.G. Seitz, B. S. Gladney, and J.W. Gladney² to recover possession of, and establish their title to, certain lands that were adjudged to be a part of Oklahoma in the final decree entered in State of Oklahoma v. State of Texas, 276 U.S. 596, 48 S.Ct. 297, 72 L.Ed. 723, Id., 281 U.S. 109, 694, 50 S.Ct. 247, 74 L.Ed. 731, 1122, settling the boundary line between the states of Oklahoma and Texas.

The complaint alleges that such lands are approximately 700 acres in area, are located in Love County, Oklahoma, and are a part of the unallotted common domain of the Nations; that such lands are wrongfully and unlawfully withheld by the defendants, who asserted some title, the exact nature of which is unknown to the Nations.

The defendants below filed a motion to dismiss the complaint on the ground of the non-joinder of the United States as a party. The Nations then filed a motion to bring in the United States as a third party defendant. The trial court entered an order making the United States a third party defendant. The United States moved to dismiss as to it on the ground that it had not consented to be sued in such action. The trial court dismissed the action as to the United States on the ground that it had not consented to be sued and sustained the motion of the defendants to dismiss the action on the ground that the United States was an indispensable party.

It is clear that the action does not fall within the purview of § 3 of the Act of April 12, 1926, 44 Stat. 239, 240, which applies only to allotted lands.

In Town of Okemah, Okl. v. United States, 10 Cir., 140 F.2d 963, we held that § 3 of the Act of March 3, 1901, 31 Stat. 1058, 1084, 25 U.S.C.A. § 357, by authorizing condemnation of lands allotted in severalty to Indians, conferred, by implication, permission to sue the United States.³ But, it is likewise clear that the instant action does not fall within the purview of § 3 of the Act of March 3, 1901, supra, which relates solely to actions to acquire title to Indian lands by condemnation.

We held in the Town of Okemah case that there is no statutory provision authorizing the United States to be made a party to suits affecting restricted lands of members of the Five Civilized Tribes apart from § 3 of the Act of March 3, 1901, supra, and § 3 of the Act of April 12, 1926, supra. The same may be said, we think, with respect to suits affecting lands of one or more of the Five Civilized Tribes. Accordingly, we conclude that the United States had not consented to be sued in the instant action and that the order dismissing the action as to the United States was correct.

From the beginning of our government the Indian nations or tribes have been regarded as dependent, political communities and wards of the United States.⁴

Under § 16 of the Act of April 26, 1906, 34 Stat. 137, 143, the lands involved in this action, if such lands belong to the Nations, are subject to disposition by the Secretary of the Interior under rules and regulations to be prescribed by him and the proceeds of such sales are to be deposited in the United States Treasury to the credit of the Nations.

By reason of its guardianship and its governmental interest in such lands, the United States would not be bound by a judgment in this action, unless it became a party thereto.⁵

Hence, we reach the question, Is the United States an indispensable party? In Silver King Coalition Mines Co. of Nevada v. Silver King Consolidated Mining Co., 8 Cir., 204 F. 166, 169, the court defined an indispensable party as follows: "An indispensable party is one who has such an interest in the subject-matter of the controversy that a final decree cannot be rendered between the other parties to the suit without radically and injuriously affecting his interest, or without leaving the controversy in such a situation that its final determination may be inconsistent with equity and good conscience."⁶

Since, unless the United States becomes a party to the action it will not be bound by any judgment entered therein, a judgment entered as between the Nations and the defendants below would not radically and injuriously affect the interest of the United States. The question then narrows to whether a judgment could be entered as between the Nations and the defendants below which would be consistent with equity and good conscience.

Since Heckman v. United States, 224 U.S. 413, 442, 446, 32 S.Ct. 424, 433, 56 L.Ed. 820, it has been settled that a restricted allottee may bring an action to establish title to his allotted lands. In that case, the court said: "Undoubtedly an allottee can enforce his right to an interest in the tribal or other property (for that right is expressly granted), and equally clear is it that Congress may enforce and protect any condition which it attaches to any of its grants. * * * The allottee may be permitted to bring his own action, or, if so brought, the United States may aid him in its conduct, * * *."

In Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 113, 39 S.Ct. 185, 186, 63 L.Ed. 504, the court held that the pueblo might maintain an action to prevent a threatened disposal of lands by administrative officers in disregard of their ownership. The court said: "Of their capacity to maintain such a suit we entertain no doubt. The existing wardship is not an obstacle, as is shown by repeated decisions of this court, of which Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299, is an illustration."

In Creek Nation v. United States, 318 U.S. 629, 640, 63 S.Ct. 784, 789, 87 L.Ed. 1046, the court said: "The tribes have not yet been dissolved, and they have had, both as a general legal right and by virtue of the very section of the 1906 Act under discussion here, the power to bring actions on their own behalf. That the United States also had a right to sue did not necessarily preclude the tribes from bringing their own actions." (Italics ours.)

In United States v. Candelaria, 271 U.S. 432, 443, 444, 46 S.Ct. 561, 563, 70 L.Ed. 1023, the court held that while a pueblo community in New Mexico is a juristic person with capacity to sue and defend with respect to its lands, a judgment against the pueblo in a suit brought by it to quit title to its lands, to which the United States was not a party, was not a bar to the United States afterwards maintaining a suit to quiet the title to the same lands. The court said:

"It was settled in Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 39 S.Ct. 185, 63 L.Ed. 504, that under territorial laws enacted with congressional sanction each pueblo in New Mexico — meaning the Indians comprising the community — became a juristic person and enabled to sue and defend in respect of its lands * * *.

"The Indians of the pueblo are wards of the United States, and hold their lands subject to the restriction that the same cannot be alienated in any wise without its consent. A judgment or decree which operates directly or indirectly to transfer the lands from the Indians, where the United States has not authorized or appeared in the suit, infringes that restriction. The United States has an interest in maintaining and enforcing the restriction which cannot be affected by such a judgment or decree. This court has said in dealing with a like situation:

"`It necessarily follows that, as a transfer of the allotted lands contrary to the inhibition of Congress would be a violation of the governmental rights of the United States arising from its obligation to a dependent people, no stipulations, contracts, or judgments rendered in suits to which the Government is a stranger, can affect its interest. The authority of the United States to enforce the restraint lawfully created cannot be impaired by any action without its consent.'"

Thus, it will be seen that the decisions in Heckman v. United States, supra, Lane v. Pueblo of Santa...