Fields v. United States, No. 71-69.

• Court: Court of Federal Claims
• Writing for the Court: PER CURIAM
• Citation: 191 Ct. Cl. 191,423 F.2d 380
• Parties: Nathaniel A. FIELDS, To his own Use and To the Uses of Martha Foster, Sallie Foster, Florence Foster, and Frank Foster, Heirs of Abe W. Foster, a/k/a Abe Foster, Creek Indian, Deceased v. The UNITED STATES.
• Decision Date: 20 March 1970
• Docket Number: No. 71-69.

191 Ct. Cl. 191, 423 F.2d 380 (1970)

Nathaniel A. FIELDS, To his own Use and To the Uses of Martha Foster, Sallie Foster, Florence Foster, and Frank Foster, Heirs of Abe W. Foster, a/k/a Abe Foster, Creek Indian, Deceased
v.
The UNITED STATES.

No. 71-69.

United States Court of Claims.

March 20, 1970.

423 F.2d 381

Ernest C. Dickson, Washington, D. C., attorney of record, for plaintiffs.

David W. Miller, Washington, D. C., with whom was Asst. Atty. Gen., Shiro Kashiwa, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

PER CURIAM:

This is a suit by Nathaniel A. Fields, to his own use, and to the uses of Martha Foster, Sallie Foster, Florence Foster, and Frank Foster to recover certain oil and gas rents and royalties in the total amount of $3,100,000 allegedly held by the Secretary of the Interior. Nathaniel A. Fields states that he is a necessary party to this action as the result of a power of attorney executed by one Abe W. Foster on September 7, 1934, empowering said plaintiff to act in his behalf. The other four plaintiffs all claim to be the children of Abe W. Foster, thus entitling them, as heirs, to the income from the property held by Foster at his death.

This case is before this court on defendant's motion for summary judgment on the grounds that the petition fails to state a claim upon which relief can be granted; that this court lacks jurisdiction of the subject matter; and that plaintiffs' claims are barred by the statute of limitations. For reasons hereinafter stated, defendant's motions for summary judgment is denied without prejudice and action on plaintiffs' petition is suspended pending a determination of certain issues in the Oklahoma State courts. Before proceeding to a discussion of our reasons for the abovestated action, it is necessary to give a full statement of the facts, which are in such great dispute that the versions of both sides will be presented in full.

423 F.2d 382

Plaintiffs allege in their petition that they are the children of Abe W. Foster, a 7/8 Creek Indian (Roll No. 2292), as the result of his marriage in 1891 to Georgie Garian, also a Creek Indian. They further allege that Abe Foster was the surviving heir of Sallie Foster (Roll No. 2293), his mother, and Lucy Foster (Roll No. 6238), another wife. All three (Sallie, Lucy, and Abe) had each been allotted 160 acres of land in 1903 as the result of an act of Congress on March 1, 1901,¹ providing for the allocation of 160 acres of land to each member of the Muskogee Creek Tribe of Indians. Plaintiffs contend that Abe Foster died in 1955, and, therefore, as his only surviving heirs, they are entitled to the benefits from his property, consisting of his original 160 acres plus the 320 acres which he inherited from Sallie and Lucy Foster. Plaintiffs further contend that the benefits to which they are entitled are the oil and gas rents and royalties held by the Secretary of the Interior for the benefit of Abe Foster or his heirs. They claim that, since 1932, oil and gas leases have been executed by the Secretary of the Interior with respect to these three tracts of land held by Abe Foster. One of the leases was executed in 1946 with the Gulf Oil Company and another was with the Texas Oil Company. Both leases were for 10 years and thereafter as long as oil and gas should be produced thereon. The total amount of rents and royalties which have accumulated under these leases is alleged to be $3,100,000, which has been converted into United States Registered Bonds by the Secretary of the Interior.

Defendant's version of the facts is quite different. The Government claims, first of all, that Abe W. Foster died in 1910 and not 1955, and, secondly, that he was impotent and thus incapable of producing children. To support these claims, defendant includes a Proof of Heirship by Annie D. Wisner, a half-sister of Abe Foster, showing that he died on November 9, 1910. Defendant also includes an affidavit dated October 4, 1915, by Abe Foster's mother, Sallie Foster, that her son was impotent. Since Abe Foster died in 1910, defendant contends that it was impossible for him to have been the heir to Lucy and Sallie...