Fields v. United States, 71-69.

Citation191 Ct. Cl. 191,423 F.2d 380
Decision Date20 March 1970
Docket NumberNo. 71-69.,71-69.
PartiesNathaniel 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.
CourtCourt of Federal Claims

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.

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 Foster since the records clearly show that Lucy Foster died on June 22, 1913, and Sallie Foster died on October 28, 1919. In addition, defendant denies the execution of any oil and gas leases with respect to the properties in question. In fact, defendant asserts, as the result of an affidavit filed by Fred H. Massey, Acting Commissioner of Indian Affairs, that no supervision has been exercised over Abe Foster's alleged lands by the Government since 1930, and that no money is now being held by defendant for the benefit of the original allottees or their heirs as the result of oil and gas leases. Defendant does admit that Abe Foster and his mother and wife were allotted 160 acres of land in 1901 exactly as plaintiffs claim.

There are a couple of other points which should be noted in respect to the conflict between plaintiffs and defendant over whether Abe Foster died in 1910 or 1955. Included in the record of this case is a letter from the Clerk for the United States District Court for the Eastern District of Oklahoma to Nathaniel A. Fields, referring to an indictment filed November 12, 1915, against one Oscar Aben, alias Abe W. Foster, for filing a false claim against the United States. This case was dismissed in 1920. In addition, the Government also includes in its appendix to its motion for summary judgment a letter from a superintendent of Indian Affairs, dated February 19, 1931, to Susie Mills Foster (Lucy Foster's daughter) stating that a man had appeared several times in one of the Indian Affairs offices claiming that he was Abe W. Foster. Both of these incidents offer support to plaintiffs' case in that they indicate that Abe Foster might not have died in 1910.

Since this case is before this court on defendant's motion for summary judgment, we must make our decision on that set of facts presented by plaintiffs' pleadings. We will assume, therefore, for purposes of this motion that the four plaintiffs are the children of Abe Foster; that he died in 1955; and that the Department of the Interior has been receiving rents and royalties for the benefit of Abe Foster or his heirs through certain oil and gas leases.

Defendant's first argument is that this court does not have jurisdiction of the subject matter. Plaintiffs contend that this court has jurisdiction as the result of 28 U.S.C. § 1505 (1964), which gives the Court of Claims jurisdiction over any claim against the United States in favor of any "tribe, band, or other identifiable group of American Indians * * *." However, since the instant case is one brought by individual Indians and not a tribe, band, or identifiable group of Indians, we feel that defendant is correct in...

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    ...a trust, as in Confederated Salish and Kootenai Tribes, supra, or a holding pursuant to an implied contract, as in Fields v. United States, 423 F.2d 380, 191 Ct.Cl. 191 (1970). Short was such a case and jurisdiction was assumed. See also Coast Indian Community v. United States, 550 F.2d 639......
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