Kirby v. Parker, Civil Action No. 1162.
| Court | United States District Courts. 10th Circuit. Eastern District of Oklahoma |
| Writing for the Court | RICE |
| Citation | 58 F. Supp. 309 |
| Parties | KIRBY v. PARKER et al. (UNITED STATES, Intervener). |
| Docket Number | Civil Action No. 1162. |
| Decision Date | 28 November 1944 |
58 F. Supp. 309
KIRBY
v.
PARKER et al. (UNITED STATES, Intervener).
Civil Action No. 1162.
District Court, E. D. Oklahoma.
November 28, 1944.
J. B. Moore, of Ardmore, Okl., for plaintiff.
W. H. Landram and Francis Stewart, Asst. U. S. Attys., both of Muskogee, Okl., for the defendants and intervener.
RICE, District Judge.
Out of the peculiar facts of this case arise certain legal questions the answers to which are important in fixing stability of titles to inherited Indian lands. Stability of titles to Indian lands is no less important to the Indian than to the white man who seeks to purchase. Instability of titles is harmful to members of the Five Civilized Tribes. It is a known fact that they will sell their lands, but if the title is in doubt the purchaser will not pay their value — yet the Indian will sell. Some few recover their lands — many do not.
The lands involved were a portion of the allotment of Jim Parker, a full-blood enrolled member of the Mississippi Choctaw Tribe of Indians, who died intestate in 1938, leaving three heirs: Aaron Parker, a son, unenrolled, but agreed to be of 7/8 ths blood; Floy Parker, a daughter, unenrolled, degree of blood not admitted; and Salina Parker, surviving wife, enrolled as a ¼th blood Chickasaw Indian. Aaron Parker conveyed his interest to plaintiff by an unapproved warranty deed. The particular lands were selected by the allottee during his lifetime as tax exempt and properly certified as such pursuant to the Act of Congress approved May 10, 1928, 45 Stat. 495.
Sec. 1, Act of Jan. 27, 1933, 47 Stat. 777, provides as follows:
"That all funds and other securities now held by or which may hereafter come under the supervision of the Secretary of the Interior, belonging to and only so long as belonging to Indians of the Five Civilized Tribes in Oklahoma of one-half or more Indian blood, enrolled or unenrolled, are hereby declared to be restricted and shall remain subject to the jurisdiction of said Secretary until April 26, 1956, subject to expenditures in the meantime for the use and benefit of the individual Indians to whom such funds and securities belong, under such rules and regulations as said Secretary may prescribe: Provided, That where the entire interest in any tract of restricted and tax-exempt land belonging to members of the Five Civilized Tribes is acquired by inheritance, devise, gift, or purchase, with restricted funds, by or for restricted Indians, such lands shall remain restricted and tax-exempt during the life of and as long as held by such restricted Indians, but not longer than April 26, 1956, unless the restrictions are removed in the meantime in the manner provided by law."
The "entire interest" in said lands was not acquired by inheritance by "restricted Indians" if Salina Parker is only a ¼ blood Indian.
This court construed the above language to mean that if any heir inheriting an interest in such tax exempt lands was less than ½ blood the lands did not "remain restricted". Welch v. Weems, No. 243 Civil, this court, decided January 18, 1941.1 The United States Government was a party to Welch v. Weems and did not appeal. Since then this court has consistently so construed the 1933 Act, and no appeals have been taken.
Recognizing the above construction, the government in this case sought to prove that Salina Parker, although enrolled as a ¼ blood, is in fact a full blood. The evidence conclusively shows Floy Parker to be more than ½ blood — so if Salina Parker may be proved to be ½ blood or more, the lands "remained restricted." If the lands remained restricted, the deed from Aaron Parker to plaintiff is invalid, and plaintiff acquired no rights thereunder.
Two Acts of Congress have spoken regarding the conclusiveness of the approved rolls of citizenship of members of the Five Civilized Tribes. Sec. 19 of the Act of
"That no full-blood Indian of the Choctaw, Chickasaw, Cherokee, Creek or Seminole tribes shall have power to alienate, sell, dispose of, or encumber in any manner any of the lands allotted to him for a period of twenty-five years from and after the passage and approval of this Act, unless such restriction shall, prior to the expiration of said period, be removed by Act of Congress; and for all purposes the quantum of Indian blood possessed by any member of said tribes shall be determined by the rolls of citizens of said tribes approved by the Secretary of the Interior. * * *"
Section 3 of the Act of May 27, 1908, 35 Stat. 312, 313, provides as follows:
"That the rolls of citizenship and of freedmen of the Five Civilized Tribes approved by the Secretary of the Interior shall be conclusive evidence as to the quantum of Indian blood of any enrolled citizen or freedman of said tribes and of no other persons to determine questions arising under this Act and the enrollment records of...
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Brown v. Stufflebean, No. 4128.
...187 F.2d 356 Indians. The Section has been consistently so construed in the Eastern District of Oklahoma. Kirby v. Parker, D.C., 58 F. Supp. 309. While cases from this Court construing Section 1 have not reached the precise point, see Glenn v. Lewis, 10 Cir., 105 F.2d 398; United States v. ......
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Chahta v. Bureau of Indian Affairs, 20-cv-1158-DWD
...Seminole Tribes. The final rolls of the Choctaw Tribe were approved by the Secretary of the Interior in March 1907. See Kirby v. Parker, 58 F.Supp. 309 (E.D. Okla. 1944) (citing 27 Stat. 645, 30 Stat. 495, 503; 31 Stat. 250, 31 Stat. 861, 867; 32 Stat. 500, 501). As a "quasi-judicial tribun......
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Murphy v. Walkup, No. 35073
...In this connection see Green v. Campbell, 187 Okl. 54, 100 P.2d 997; Glenn v. Lewis, 10 Cir., 105 F.2d 398; Kirby v. Parker, D.C., 58 F.Supp. 309, and other authorities cited in Brown v. Stufflebean, 10 Cir., 187 F.2d 347. The court in rendering its judgment in Cause No. 8789, in Walkup's f......
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United States v. CERTAIN LAND IN CITY OF ST. LOUIS, ETC., No. 12548.
...interest cannot be collected on a claim against the United States in the absence of a stipulation for the payment thereof, or a statute 58 F. Supp. 309 requiring such payment, it is not necessary to determine whether the statute requires the Attorney General to give a written opinion respec......
-
Brown v. Stufflebean, No. 4128.
...187 F.2d 356 Indians. The Section has been consistently so construed in the Eastern District of Oklahoma. Kirby v. Parker, D.C., 58 F. Supp. 309. While cases from this Court construing Section 1 have not reached the precise point, see Glenn v. Lewis, 10 Cir., 105 F.2d 398; United States v. ......
-
Chahta v. Bureau of Indian Affairs, 20-cv-1158-DWD
...Seminole Tribes. The final rolls of the Choctaw Tribe were approved by the Secretary of the Interior in March 1907. See Kirby v. Parker, 58 F.Supp. 309 (E.D. Okla. 1944) (citing 27 Stat. 645, 30 Stat. 495, 503; 31 Stat. 250, 31 Stat. 861, 867; 32 Stat. 500, 501). As a "quasi-judicial tribun......
-
Murphy v. Walkup, No. 35073
...In this connection see Green v. Campbell, 187 Okl. 54, 100 P.2d 997; Glenn v. Lewis, 10 Cir., 105 F.2d 398; Kirby v. Parker, D.C., 58 F.Supp. 309, and other authorities cited in Brown v. Stufflebean, 10 Cir., 187 F.2d 347. The court in rendering its judgment in Cause No. 8789, in Walkup's f......
-
United States v. CERTAIN LAND IN CITY OF ST. LOUIS, ETC., No. 12548.
...interest cannot be collected on a claim against the United States in the absence of a stipulation for the payment thereof, or a statute 58 F. Supp. 309 requiring such payment, it is not necessary to determine whether the statute requires the Attorney General to give a written opinion respec......