Jonah v. Armstrong

• Decision Date: 10 September 1931
• Docket Number: No. 420.,420.
• Citation: 52 F.2d 343
• Parties: JONAH et al. v. ARMSTRONG et al.
• Court: U.S. Court of Appeals — Tenth Circuit

52 F.2d 343 (1931)

JONAH et al. v. ARMSTRONG et al.

No. 420.

Circuit Court of Appeals, Tenth Circuit.

September 10, 1931.

William W. Pryor and John B. Campbell, both of Holdenville, Okl. (J. Ralph Knight, of Holdenville, Okl., Nathan A. Gibson, of Tulsa, Okl., and Jas. D. Simms, of Wewoka, Okl., on the brief), for appellants.

Warren T. Spies, of Bartlesville, Okl. (B. B. Blakeney and Hubert Ambrister, both of Oklahoma City, Okl., Charles E. Wells, of Shawnee, Okl., M. A. Dennis, of Okmulgee, Okl., G. J. Neuner and E. J. Lundy, both of Tulsa, Okl., H. E. Oakes, of Ponca City, Okl., F. M. Carter, of Bartlesville, Okl., R. J. Roberts, of Wewoka, Okl., Iris C. Saunders, of Shawnee, Okl., Edgar A. deMeules, of Tulsa, Okl., Blakeney & Ambrister, of Oklahoma City, Okl., and Poe, Lundy & Morgan and Ramsey, deMeules, Martin & Logan, all of Tulsa, Okl., on the brief), for appellees.

Before LEWIS and COTTERAL, Circuit Judges, and POLLOCK, District Judge.

COTTERAL, Circuit Judge.

The appellants, twenty-four in number, of whom several were minors represented by guardians, brought this suit on November 21, 1927, against various individuals and oil companies. They alleged that they were enrolled Seminole citizens, and maternal cousins and sole heirs of Isaac Adams, an enrolled Seminole Indian, and inherited various fractional interests in 120 acres of land comprised in homestead and surplus allotments made in his name, after his death in 1900, as his distributive share of the Seminole Indian lands, evidenced by deeds of the nation, dated July 7, 1913, bearing the approval of the Secretary of the Interior; that there had been no administration of his estate or setting apart of the land to his heirs, and that he left no father, mother, brothers, sisters, wife, or issue capable of inheriting his estate; that the defendants are in possession of the land, unlawfully keep plaintiffs out of possession of and are collecting the rents and profits from the land. A decree was sought quieting their title and awarding them the possession of the land.

The defendants filed answers and cross-bills, admitting the allotments, alleging that they were made on the application of Louisa Smith, an enrolled Seminole of the half blood, denying the plaintiffs are cousins and heirs of the allottee, admitting he left no surviving parents, wife, brothers, or issue entitled to inherit his estate, but alleging he was survived by Louisa Smith, his sister, as his sole heir, and on his death she inherited the land as such heir. The defendants trace their title through her as a primary grantor by her deed to H. T. King, of date August 30, 1906, followed by deeds, grants, and mineral leases of her successors in interest. They also plead laches in bringing the suit and the bar of limitations.

Several other bills were filed based on like claims of title against the defendants. There were also interventions of other claimants. All of the cases were consolidated. After a trial, the District Court found all the issues against the plaintiffs and interveners and for the defendants, dismissed the several bills and interventions with prejudice, quieted the defendants' titles and interests, and enjoined the plaintiffs and interveners from asserting an adverse title to the land.

Only the plaintiffs have appealed to this court. In their assignments of error, they complain that the court erred in its findings of fact, the admission of evidence, and the application of the law to the facts.

The primary statute which controls the descent of these allotments is found in section 2 of the Supplemental Treaty with the Seminole Tribe, ratified on June 2, 1900 (31 Stat. 250), which reads as follows: "If any member of the Seminole tribe of Indians shall die after the thirty-first day of December, eighteen hundred and ninety-nine, the lands, money, and other property to which he would be entitled if living, shall descend to his heirs who are Seminole citizens, according to the laws of descent and distribution of the State of Arkansas, and be allotted and distributed to them accordingly: Provided, That in all cases where such property would descend to the parents under said laws the same shall first go to the mother instead of the father, and then to the brothers and sisters, and their heirs, instead of the father."

A decisive issue of fact which arose at the trial was whether Louisa Smith was a sister of the allottee, Isaac Adams by the same mother. This was because the plaintiffs concede that, if the fact was proved, then Louisa, being a Seminole and a qualified heir and the nearest of kin, inherited the allotments, and the defendants claiming title through her as their original grantor are entitled to prevail over the plaintiffs as more distant kin of the allottee. The plaintiffs, while admitting Isaac and Louisa had the same father, contend they had different mothers. The defendants claim they were children of the same mother.

The plaintiffs gave this account of their kinship with the allottee: Hepsey Perryman, a full-blood Creek, lived on Elk creek near Muskogee. About the year 1837, she bore a son named Tom Adams, whose father was Adam Stroyer, a negro. Heister, a Seminole woman who settled in the same locality, was the mother of a large family, one of whom was Nuthcup Harjo, a band chief. Hepsey married Joe Riley, a Seminole, and they had four children, Lucinda, Mesaira, Nellie, and Coody. About 1855, Tom Adams married a Seminole named Jannatta or Jennetta, and by this union Isaac Adams, the allottee, an only child, was born in 1856. After the battle of Honey Springs...