McDougal v. Black Panther Oil & Gas Co.

• Decision Date: 07 May 1921
• Docket Number: 5573,5574,5580.
• Citation: 273 F. 113
• Parties: McDOUGAL et al. v. BLACK PANTHER OIL & GAS CO. et al. JACKSON v. SAME. McKINNEY v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

273 F. 113

McDOUGAL et al. v. BLACK PANTHER OIL & GAS CO. et al. JACKSON v. SAME. McKINNEY v. SAME.

Nos. 5573, 5574, 5580.

United States Court of Appeals, Eighth Circuit.

May 7, 1921

Eugene B. Smith, of Sapulpa, Okl., and Archibald Bonds, of Muskogee Okl., for the motion.

Charles B. Stuart, of Oklahoma City, Okl., and Joseph C. Stone, of Muskogee, Okl., for respondent Black Panther Oil & Gas Co.

Before SANBORN and CARLAND, Circuit Judges, and LEWIS, District Judge.

SANBORN Circuit Judge.

In the year 1914 the United States brought this suit against those who it alleged were claimants as or under the full-blood Indian heirs of Barney Thlocco, a deceased full-blood Creek Indian, to whom or to the heirs of whom the lands in question in this case had been duly allotted, patented, and conveyed with the approval of the Secretary of the Interior prior to 1904, for the purpose of having such allotment, patent, and conveyance avoided. Many claimants as or under these heirs to the title to this land, and to the oil and gas derived from it, became parties to the suit, either as defendants or interveners. The Black Panther Oil & Gas Company had an oil and gas lease under a claimant to this heirship who proved to be successful, and has been operating under that lease and under the direction of the court upon and in this land, and paying the royalties to a receiver and to the court below.

In May 1915, that court rendered a decree upon the merits against the United States, which was ultimately affirmed by the Supreme Court, and a decree of its dismissal from this suit based upon the mandate of the Supreme Court, was rendered in the District Court below in February, 1918. By that time the amounts received from the royalties under the control and subject to the disposition of the court below aggregated more than $1,000,000, and that court proceeded to hear and adjudge the claims to this fund and to the land of the defendants and interveners. The hearing of these issues was commenced in December, 1918, and final decrees adjudging the rights of the respective parties were rendered in 1919, and have been brought to this court for review by the appeals of several claimants.

Wiley Knight, a party to the suit below, has made a motion in the appeals above entitled that the cause presented by these appeals be remanded to the court below, with instructions to vacate its findings and final decrees and hold the funds in its control until the county court of Okfuskee county, Okl., has made a final decree who the heirs of Barney Thlocco were, or with instructions to dismiss the cause below outright.

Counsel for Mr. Knight found this motion upon the Act of Congress of June 14, 1918, 40 Stat. 606, U.S. Comp. St. Supp. 1919, Secs. 4234a and 4234b, which provide that:

Section 4234a: 'A determination of the question of fact as to who are the heirs of any deceased citizen allottee of the Five Civilized Tribes of Indians who may die or may have heretofore died, leaving restricted heirs, by the probate court of the state of Oklahoma having jurisdiction to settle the estate of said deceased, conducted in the manner provided by the laws of said state for the determination of heirship in closing up the estates of deceased persons, shall be conclusive of said question: Provided, that an appeal may be taken in the manner and to the court provided by law, in cases of appeal in probate matters generally: Provided further, that where the time limited by the laws of said state for the institution of administration proceedings has elapsed without their institution, as well as in cases where there exists no lawful ground for the institution of administration proceedings in said courts, a petition may be filed therein having for its object a determination of such heirship and the case shall proceed in all respects as if administration proceedings upon other proper grounds had been regularly begun, but this proviso shall not be construed to reopen the question of the determination of an heirship already ascertained by competent legal authority under existing laws. * * * '

Section 4234b: 'The lands of full-blood members of any of the Five Civilized Tribes are hereby made subject to the laws of the state of Oklahoma, providing for the partition of real estate. * * * '

The contention of Mr. Knight's counsel is that, as the answer to the question who were the heirs of Thlocco necessarily conditions the rights of each of the claimants in this suit, the court below had no jurisdiction, after the passage of the act which has been recited, to adjudge their claims or rights, or to render the decrees below by which it determined them. In support of this position they have cited, and the court has read and considered, the opinions of the courts in Hallowell v. Commons, 239 U.S. 506, 507, 508, 36 Sup.Ct. 202, 60 L.Ed. 409; Pel-Ata-Yakot v. United States (D.C.) 188 F. 387, 389; Parr v. Colfax, 197 F. 302, 304, 117 C.C.A. 48; McKay v. Kalyton, 204 U.S. 466, 467, 469, 27 Sup.Ct. 346, 51 L.Ed. 566; Ross v. Stewart, 227 U.S. 532, 537, 33 Sup.Ct. 346, 51 L.Ed. 566; Ross v. States v. Kagama, 118 U.S. 375; ^[1] Caesar v. Krow (Okl.) 176 P. 927, 928-- and in other cases, including State v. Huser, 76 Okl. 130, 184 P. 113, 122, 124, and State v. Wilcox, 75 Okl. 158, 182 P. 673, cited by opposing counsel.

All parties to this suit claim under the heirs of Barney Thlocco and concede: (1) That all the claimants derive their rights from full-blood restricted heirs of a deceased citizen allottee of one of the Five Civilized Tribes; (2) that an answer to the question who were the heirs of Thlocco was indispensable to the just adjudication of the claims of the parties to the suit; (3) that the jurisdiction to adjudge the answer to that question was in terms granted to the probate court, the county court of Okfuskee county, by the Act of June 14, 1918; and (4) that the court below had plenary jurisdiction and dominion of the subjectmatter and the parties to the suit below, and lawful authority to adjudicate all questions in that suit including the answer to the question who were the restricted heirs of Thlocco until the act of June 14, 1918, was passed. But counsel argue that when that act took effect the exclusive jurisdiction to hear and decide that question was vested in the probate court of Okfuskee county, and that all jurisdiction and power of the court below to determine it was revoked and ceased. In support of this contention they seem to place their chief reliance upon the decisions in Hallowell v. Commons, 239 U.S. 506, 507, 508, 36 Sup.Ct. 202, 60 L.Ed. 409, Pel-Ata-Yakot v. United States (D.C.) 188 F. 387, 389, and Parr v. Colfax, 197 F. 302, 304, 117 C.C.A. 48, to the effect that the Act of Congress of June 25, 1910, 36 Stat. 855, granted to the Secretary of the Interior the exclusive jurisdiction to adjudge who were the legal heirs of a deceased intestate Indian allottee, and thereby deprived the courts from that time of the power to adjudge thereby deprived the courts from that time of the power to adjudge that question either in cases then pending or subsequently commenced. But the Act of June 14, 1918, radically differs from that of June 25, 1910, and at first blush does not seem to do more than to give to the probate courts therein mentioned jurisdiction concurrent with the federal and state district courts of the question who were the restricted heirs of the respective deceased allottees described in the act.

It is the established and familiar rule that where two actions between the same parties, involving the same cause of action, proceed at the same time in courts of concurrent jurisdiction, it is not the final judgment in the action first brought, but the first final judgment, although it may be in the action last brought, that renders the issues res adjudicata in both actions. Boatmen's Bank v. Fritzlen (8th C.C.A.) 135 F. 650, 657, 68 C.C.A. 288; Insurance Co. v. Harris, 97 U.S. 331, 336, 24 L.Ed. 959.

Let us compare the acts of 1910 and 1918 with this rule of law in mind. The Act of June 25, 1910 (Comp. St. Sec. 4226)...