Jump v. Ellis, 1221.

• Decision Date: 01 March 1938
• Docket Number: No. 1221.,1221.
• Parties: JUMP et al. v. ELLIS, Superintendent of Osage Indian Agency.
• Court: U.S. District Court — Northern District of Oklahoma

22 F. Supp. 380

JUMP et al. v. ELLIS, Superintendent of Osage Indian Agency.

No. 1221.

District Court, N. D. Oklahoma.

March 1, 1938.

Neal E. McNeill, of Tulsa, Okl., for plaintiffs.

Whit Y. Mauzy, U. S. Atty., of Tulsa, Okl., for defendant.

FRANKLIN E. KENNAMER, District Judge.

The bill in the instant case alleges that the plaintiff Josephine Jump, née Strikeaxe, and James Strikeaxe, an incompetent, are heirs of Bennie Strikeaxe, deceased; that the defendant is the present Osage agent in charge of the affairs of the Osage Tribe of Indians, under the supervision of the Secretary of the Interior. The bill further alleges that the deceased, Bennie Strikeaxe, was a member of the Osage Tribe of Indians, and as such was enrolled upon the quarterly rolls prior to the preparing of the final roll of members of the Osage Tribe of Indians entitled to participate in the funds and properties of the Tribe. It is alleged that Bennie Strikeaxe appeared on the rolls opposite Roll No. 588, the last of said roll upon which the name appeared being December, 1905, and that a notation on the roll disclosed the fact that the deceased at that time was "crazy," which undoubtedly was intended to disclose insanity of Bennie Strikeaxe on said date. A pencil notation was also included upon the record to the effect that Bennie Strikeaxe died on December 28, 1905. The bill seeks to have the roll of the Osage Tribe of Indians corrected, amended, or supplemented to include the name of Bennie Strikeaxe, so that the heirs of the deceased, Bennie Strikeaxe, may participate in the funds of the tribe. The theory upon which the relief is sought is that the records of the Osage Tribe of Indians disclosed that Bennie Strikeaxe was a member of the tribe and that the final roll should have included his name; that the roll should be corrected to speak the truth by including the name of Bennie Strikeaxe, and it is sought to compel the defendant, the superintendent of the Osage Indian Agency, to erase the pencil notation disclosing the death of Bennie Strikeaxe prior to the preparation of the final roll, and that, as corrected, the defendant be required to perform an official duty to correctly prepare the roll as it existed in the office of the Osage Indian agent on January 1, 1906, to include the name of Bennie Strikeaxe, and to certify the same to the Commissioner of Indian Affairs. It is contended that the heirs of the deceased, Bennie Strikeaxe, are vested with property rights by reason of the deceased being a member of the tribe, and that they are entitled to have the records amended and corrected.

The defendant has interposed his motion to dismiss, and presents three reasons why the same should be sustained, as follows: That the court is without jurisdiction to determine the cause, because the plaintiffs have heretofore instituted a mandamus action against the Secretary of the Interior in the District of Columbia, where similar issues are involved; that plaintiffs are not entitled to the relief sought, because the tribal rolls of the Osage Indians have become final and are not subject to amendment or change, and finally that there is a want of necessary parties defendant.

The three propositions will be separately discussed.

It is unnecessary to consider at length the first reason urged in support of the motion to dismiss. The pleadings do not disclose the existence of the pending suit in the District of Columbia; however, copies of pleadings have been submitted by the defendant after proper notice thereof to plaintiffs' counsel. Such pleadings disclose the existence of a suit against Hon. Harold L. Ickes, Secretary of the Department of the Interior of the United States. The purpose of the suit is to compel the Secretary of the Interior to place the name of Bennie Strikeaxe on the final roll of the Osage Tribe of Indians, by recompiling the said roll, and to pay the petitioners therein, plaintiffs herein, an amount equal to a per capita share of all payments made to the members of the Osage Tribe of Indians, as well as to make disbursements to them in the future.

Plaintiffs contend that there is no merit in this contention of the defendant, for the reason that they seek the relief herein in order to secure evidence to introduce in the case pending in the District of Columbia, and to have the records in the office of the Indian agent corrected to speak the truth before they are certified to the Commissioner's office, and further because the two actions involve different parties. Plaintiffs rely upon a mandamus action instituted against the Commissioner of Patents to compel him to furnish a copy of an abandoned patent remaining on file in his office, and which was wanted for the purpose of being introduced and used in evidence in another case. United States ex rel. v. Hall, Commissioner, 7 Mackey 14, 18 D.C. 14, 1 L. R.A. 738. The cited case did not seek to correct records in the office of the Commissioner of Patents, but merely sought to compel the delivery of the records in order that they may be used in evidence in another case. This action does not seek to compel the delivery of records for use in the case pending in the District of Columbia. It goes far beyond that in seeking to do indirectly what the plaintiffs cannot do directly. It is unnecessary to rest the decision on the motion to dismiss upon this ground, but it is noteworthy that plaintiffs seek relief greatly in excess of that afforded in the cited case. They seek a correction of records and an amendment to them, contrary to the congressional act governing the final roll of the Osage Indians hereinafter referred to.

The second reason urged in support of the motion to dismiss is conclusive of the case. The Osage Allotment Act, which became effective June 28, 1906, 34 Stat. 539, provided that the roll of the Osage Tribe of Indians, as shown by the records of the United States in the office of the United States Indian agent, at the Osage Agency, as it existed on the 1st day of January, 1906, was declared to be the roll of the tribe and to constitute the legal membership thereof. The act further provided for the revision and approval thereof by the Secretary of the Interior, and further provided that the approval of the Roll by the Secretary of the Interior was made final and conclusive. It is contended here that the December, 1905, pay roll is the determining factor in arriving at the proper final tribal roll. This same contention was urged in the case of Ickes, Secretary, v. Pattison, 65 App.D.C. 116, 80 F.2d 708, certiorari denied U. S. ex rel. Pattison v. Ickes, 297 U.S. 713, 56 S.Ct. 589, 80 L.Ed. 999. The United States Court of Appeals for the District of Columbia, in the cited case, rejected the contention advanced here, and held that the Allotment Act provided for the compilation of the final roll from the records in the office of the Osage Indian agent, rather than from the pay roll then in existence. The decided case properly construes the congressional act. It is unnecessary to note that provision was made in the Allotment Act for the revision of the roll by the Secretary of the Interior, and further that the approval of the roll was required in order to constitute its finality. Congress did not see fit to provide that the...