Levindale Lead & Zinc Min. Co. v. Coleman

• Decision Date: 07 May 1914
• Docket Number: 2626.
• Citation: 140 P. 607,43 Okla. 13,1914 OK 230
• Parties: LEVINDALE LEAD & ZINC MINING CO. ET AL. v. COLEMAN.
• Court: Oklahoma Supreme Court

140 P. 607

43 Okla. 13, 1914 OK 230

LEVINDALE LEAD & ZINC MINING CO. ET AL. v. COLEMAN.

No. 2626.

Supreme Court of Oklahoma

May 7, 1914

Rehearing Denied May 12, 1914.

Syllabus by the Court.

C., a white man, married Mary C., a full-blood member of the Osage Tribe of Indians, of which marriage one child, a son, was born on the 27th of February, 1906. The son died a few hours after his birth, and the wife died the following day, both intestate. C. inherited from both decedents certain lands which were allotted to them under the act of Congress of June 28, 1906 (34 Stat. 539, c. 3572), which lands he afterwards conveyed to the L. L. & Z. M. Co., a corporation. Neither C his wife, nor son had ever procured certificates of competency. Held, that the restrictions upon alienation imposed by the above act attach to and run with the land, and the inability to convey disqualifies the white heir as well as the immediate Indian allottees.

Appeal from District Court, Osage County; John J. Shea, Judge.

Action by Charles Coleman against the Levindale Lead & Zinc Mining Company and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Geo. B Denison, of Vinita, for plaintiffs in error.

S. H King, of Tulsa, and P. A. Shinn, of Pawhuska, for defendant in error.

KANE C.J.

This was an action commenced by the defendant in error, plaintiff below, against the plaintiffs in error, defendants below, to cancel and set aside certain deeds, made, executed, and delivered by the plaintiff, purporting to convey to the defendants certain inherited lands in the Osage Nation. After the issues were made up, the court below sustained a motion by the plaintiffs for judgment upon the pleadings, and entered judgment accordingly, to reverse which this proceeding in error was commenced.

It seems that the plaintiff, a white man, married one Mary Che-she-walla, a full-blood member of the Osage Tribe of Indians, in January, 1906, of which marriage a son, Joseph was born. The son lived but a few hours after his birth, and the wife and mother died the following day. The son was enrolled as a member of the tribe, and he and his mother received allotments as such. The plaintiff, who was also an enrolled member of the tribe, inherited the land in controversy from his wife and son. The question is, Were the restrictions upon alienation removed from the lands in controversy at the time the plaintiff executed the deed he now seeks to set aside, neither he, his wife, nor his son having procured certificates of competency? Recently a similar question has been answered in the negative by the United States Circuit Court of Appeals for the Eighth Circuit in the case of W. H. Aaron and M. L. Levin v. United States of America, ...