Locke v. McMurry

• Decision Date: 05 March 1923
• Docket Number: 6188,6189.
• Citation: 287 F. 276
• Parties: LOCKE, Superintendent for Five Civilized Tribes, v. McMURRY et al. McMURRY et al. v. LOCKE, Superintendent for Five Civilized Tribes.
• Court: U.S. Court of Appeals — Eighth Circuit

287 F. 276

LOCKE, Superintendent for Five Civilized Tribes, v. McMURRY et al.

McMURRY et al. v. LOCKE, Superintendent for Five Civilized Tribes.

Nos. 6188, 6189.

United States Court of Appeals, Eighth Circuit.

March 5, 1923

J. D Simms, of Muskogee, Okl. (Grant Foreman, of Muskogee, Okl on the brief), for plaintiffs.

O. H Graves, Sp. Asst. U.S. Atty., of Pryor, Okl. (Frank U.S Atty., of Muskogee, Okl., on the brief), for defendant.

Before STONE, Circuit Judge, and TRIEBER and JOHNSON, District Judges.

TRIEBER District Judge.

This is an action by Joe McMurry and Albert Davidson, as guardians of Lucinda Pittman, to enjoin the defendant Locke, as superintendent for the Five Civilized Tribes, from receiving or attempting to receive or collect royalties under certain oil and gas leases covering the surplus allotment of Robert Pittman, Jr., and asking judgment against the lessees of the land involved, for the royalties and rentals then due. Answers were filed by all the defendants, but it is unnecessary to set them out herein, as the cause was submitted on an agreed statement of facts. The decree adjudged that plaintiffs were entitled to one-half of the royalties, and the lessees having paid into court the amounts due from them for royalties, and the $60,000 for the purchase of the lease having been deposited for the benefit of the party adjudged finally to be entitled thereto, were dismissed. Both parties appealed, each claiming to be entitled to all the royalties and lease moneys.

The agreed statement of facts, on which the cause was heard, so far as material and necessary for a decision, is:

' * * * That Robert Pittman, Jr., * * * enrolled as a half-blood Creek Indian, * * * and * * * allotted to him as a part of his surplus land, * * * ' and that his guardian 'made oil and gas leases covering the above-described land (part of the surplus allotment) on April 1, 1907, and that the leases were approved by the Secretary of the Interior on May 22, 1907. * * * On August 2, 1912, Dana H. Kelsey, predecessor in office of Victor M. Locke, Jr., advised the guardian of Robert Pittman, Jr., a minor, that all restrictions on the land had been removed and that thereafter settlement for the royalty under the terms of the lease should be made to the guardian of said minor, or to the minor himself when he became of age, * * * and at the same time said Dana H. Kelsey, superintendent and predecessor of Victor M. Locke, Jr., defendant herein, notified the lessee oil company that restrictions had been removed, * * * and at the same time notified the Southwestern Surety Insurance Company, being the company having executed the bond to guarantee the payment of all royalties and rentals under the terms of said lease, that restrictions had been removed; * * * that on October 8, 1919, the said Robert Pittman, Jr., died, single, unmarried and without issue, and that at the time of his death he was a resident of Delta county, Colo.; that he was living with his father, Robert Pittman, Sr.; * * * that at the time of the death of Robert Pittman, Jr., Robert Pittman, Sr., the father, and Lucinda Pittman, the mother, were living separate and apart, having been divorced by a decree of divorce in the district court of El Paso county, Colo., on February 24, 1911, and that thereafter the said Robert Pittman, Sr., the father, and Lucinda Pittman, the mother, of Robert Pittman, Jr., lived separate and apart, and were so living separate and apart on October 8, 1919, being the date of the death of Robert Pittman, Jr., and that the said Lucinda Pittman was on said October 8, 1919, living in Tucson, Ariz., and at that time her legal residence was in Muskogee, Okl.; * * * that the said Robert Pittman, Sr., is a white man and a noncitizen of the Creek Tribe of Indians; that he is without Indian blood, and was never adopted as a member of the tribe, and that Lucinda Pittman, the mother of Robert Pittman, Jr., is a full-blood member of the Creek Tribe of Indians, and duly enrolled as such; * * * that the amount of royalty accruing since the date of the death of Robert Pittman, Jr., up to the date of filing of complaint, is the sum of $10,864.05; * * * that the regulations prescribed by the Secretary of the Interior for the purpose of carrying into effect the provisions of the act of Congress approved April 26, 1906 (34 Stat. 267), * * * with regard to the leasing for oil and gas and the collection of the royalty is as follows: 'All leases executed and approved heretofore or hereafter on land from all of which restrictions against alienation have been or shall be removed, even if such leases contain provisions authorizing supervision by this department, shall, after such removal of restrictions against alienation, be operated entirely free from such supervision, and the authority and power delegated to the Secretary of the Interior in said leases shall cease, and all payments required to be made to the superintendent for the Five Civilized Tribes shall thereafter be made to lessor or the then owner of said land, and changes in regulations thereafter made by the Secretary of Interior applicable to oil and gas leases shall not apply to such leased land from which said restrictions are removed, except where a bond is required in said lease it shall be furnished with responsible surety, unless the giving of said bond is waived by the lessor or the owner of the land' * * * that subsequent to the date of the letter of notification mailed by Dana H. Kelsey, superintendent and predecessor in office of Victor M. Locke, Jr., and superintendent for the Five Civilized Tribes, * * * all royalties accruing under the lease from the date of such letters until the date of the death of Robert Pittman, Jr., were paid direct to the guardian of Robert Pittman, Jr., without the intervention and supervision in any form of the superintendent for the Five Civilized Tribes, or any of his employees, servants, or agents; * * * that Lucinda Pittman has been duly adjudged an incompetent, and that Joe McMurry and Albert H. Davidson are her duly qualified and acting guardians.'

In addition it was shown that:

'On March 8, 1920, Robert Pittman, the father of decedent, Robert Pittman, Jr., by proper and valid quitclaim deed conveyed to Lucinda Pittman his former wife and the mother of said decedent all of his interest in and to said land covered by said oil and gas lease. On March 7, 1922, the Texas Company offered to pay the sum of $60,000 for the execution of an oil and gas lease covering the land involved herein, the former lease having expired. The guardians, with the approval of the county court, accepted said offer and executed such oil and gas lease to said company. By reason of a temporary restraining order issued by this court at the instance of the defendant, Victor M. Locke, Jr., superintendent for the Five Civilized Tribes, said sum of $60,000 was deposited with him to abide the determination of this action.'

The real and only question involved on both appeals is whether the royalties and lease money due Lucinda, the mother of the deceased, are subject to the supervision of the Department of the Interior; she being a full-blood Creek citizen. The acts of Congress applicable to this issue are: Act March 1, 1901, c. 676, 31 Stat. 864; Act May 27, 1902, c. 888, 32 Stat. 258; and Act May 27, 1908, c. 199, 35 Stat. 312.

Section 7 of the act of 1901 contains, among others, the following provision:

'The homestead of each citizen shall remain after the death of the allottee, for the use and support of children born to him after the ratification of this agreement, but if he have no such issue, then he may dispose of his homestead by will, free from limitation herein imposed, and if this be not done, the land shall descend to his heirs according to the laws of descent and distribution of the Creek Nation, free from such limitation.'

Section 1 of the act of 1902, among other provisions not applicable to the issues in this cause, amends that part of section 7 of the act of 1901 hereinbefore quoted by providing that this provision is repealed and--

'The descent and distribution of lands and moneys provided for in said act shall be in accordance with the provisions of chapter 49 of Mansfield's Digest of the Statutes of Arkansas in force in Indian Territory.'

By the Enabling Act of Oklahoma of June 16, 1906 (34 Stat. 267, Secs. 13 and 21), the laws of Oklahoma were substituted for the laws of Arkansas then in force in the Indian Territory, and upon the admission of the state on November 16, 1907, made 'the laws of the territory of Oklahoma, relating to descent and distribution, the laws of the state. ' Jefferson v. Fink, 247 U.S. 288, 293, 38 Sup.Ct. 516, 62 L.Ed. 1117; Harris v. Bell, 250 F. 209, 162 C.C.A. 345, affirmed 254 U.S. 103, 41 Sup.Ct. 49, 65 L.Ed. 159.

The Act of May 27, 1908, contains the following provisions...