Norton v. Larney

Decision Date25 April 1923
Docket Number6164.
Citation289 F. 395
PartiesNORTON et al. v. LARNEY.
CourtU.S. Court of Appeals — Eighth Circuit

J. L Hull, of Muskogee, Okl. (G. R. Horner, of Okmulgee, Okl., and N. A. Gibson and T. L. Gibson, both of Muskogee, Okl., on the brief), for appellants.

H. B Reubelt, of Eufaula, Okl. (E. J. Van Court and Clark Nichols both of Eufaula, Okl., on the brief), for appellee.

Before KENYON, Circuit Judge, and BOOTH and JOHNSON, District Judges.

BOOTH District Judge.

This is a suit to quiet title to certain land in appellee (plaintiff below), to cancel a deed of the land made by some of the defendants to the defendant Norton, and to enjoin defendants from asserting any claim against plaintiff to the land. Upon the trial decree was entered for plaintiff.

In this court, for the first time, appellant challenges the jurisdiction of the court below. Nevertheless it is the duty of this court to consider the question of jurisdiction as in every case, and whether raised by the parties or not. C B. & Q.R.R. Co. v. Willard, 220 U.S. 413, 31 Sup.Ct. 460, 55 L.Ed. 521; Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 Sup.Ct. 42, 53 L.Ed. 126; Garvin v. Kogler (C.C.A.) 272 F. 442. It is conceded that there is no diversity of citizenship between the parties, but jurisdiction is rested upon the ground that the suit is one arising under a law of the United States.

The rules for pleading jurisdictional facts are well settled. The facts must be set forth in the plaintiff's complaint by distinct averment, and not by inference. They must be contained in a statement of the plaintiff's own cause of action, and not by way of anticipation of some defense. Shulthis v. McDougal, 225 U.S. 561, 32 Sup.Ct. 704, 56 L.Ed. 1205; Hull v. Burr, 234 U.S. 712, 34 Sup.Ct. 892, 58 L.Ed. 1557; Taylor v. Anderson, 234 U.S. 74, 34 Sup.Ct. 724, 58 L.Ed. 1218; Joy v. St. Louis, 201 U.S. 332, 26 Sup.Ct. 478, 50 L.Ed. 776.

It is not sufficient that title to land is claimed under a law of the United States, unless the suit really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends. Joy v. St. Louis, supra; Shulthis v. McDougal, supra; Scott v. First National Bank (C.C.A.) 285 F. 832; Earnhart v. Switzler, 179 F. 832, 105 C.C.A. 260.

Applying these rules to the complaint in the present case, we are of opinion that the averments were not sufficient to show jurisdiction. However, where the jurisdiction is not challenged by a pleading, but the question is raised for the first time in the appellate court, jurisdiction sufficiently appears if it is shown in any part of the record including the proofs. Robertson v. Cease, 97 U.S. 646, 648, 24 L.Ed. 1057; Sun Printing Ass'n v. Edwards, 194 U.S. 377, 382, 24 Sup.Ct. 696, 48 L.Ed. 1027; Horne v. Hammond Co., 155 U.S. 393, 15 Sup.Ct. 167, 39 L.Ed. 197; Doolan v. Carr, 125 U.S. 618, 8 Sup.Ct. 1228, 31 L.Ed. 844; Mahoning Valley Railway Co. v. O'Hara, 196 F. 945, 116 C.C.A. 495. From the pleadings and the proofs contained in the record in the present case, it clearly appears, and will be adverted to later, that plaintiff's claim is based upon one construction of the Act of March 3. 1905 (33 Stat. 1048), while defendant's claim is based upon a different construction of the same act. This made a federal question, and the court below had jurisdiction of the cause.

The land in question was an allotment pursuant to Act of Congress of March 1, 1901 (31 Stat. 861), made to a citizen of the Creek Tribe of Indians named in the deeds as Cheparney Larney. It is the claim of plaintiff that he is the person who was enrolled as a full-blood Indian on the Creek tribal rolls opposite roll No. 1287, and that he thereby became entitled to an allotment, and that he in fact received the allotment in question. It is the claim of defendants that the person who was enrolled was not the plaintiff, but a son of 'Big Jack,' one of the original defendants; that the son died about November, 1906, and that the defendants succeeded to the rights of said deceased son in the allotted land. A vital question in the case is therefore one of identity, and it involves the construction of the decision of the Commissioner to the Five Civilized Tribes granting and ordering the enrollment involved, and also of the statute under which the Commissioner was acting. The decision of the Commissioner is as follows:

'NC 1010.


'Department of the Interior,

'Commissioner to the Five Civilized Tribes.
'In the Matter of the Application for the Enrollment of Cheparney Larney as a Citizen by Blood of the Creek Nation.
'It appears from the records of this office that on April 24, 1905, testimony was offered 'in the matter of the application for the enrollment of certain new borns, as citizens of the Creek Nation,' which embraced a child of Jacob Larney (or Green) and Bettie Larney (or Green), which is herein considered as an original application for the enrollment of said person as a citizen by blood of the Creek Nation. Further proceedings were had February 16, 1907.
'It appears from the testimony that about July 19, 1905, a Creek field party went to the home of said child for the purpose of obtaining information with reference to the right to enrollment of said child, and that the parents refused to give such information, because of the influence over them of the Snake or disaffected faction of the Creeks; that the clerk in charge is under the impression that said child is a male, but states that he could not learn the name of said child. In view of the fact that the full name of said child could not be ascertained, and that it is believed that said child is a male, reference to said person will hereinafter be made under the name of Cheparney Larney, the Creek word 'Cheparney' signifying 'little boy.'
'The evidence and the records of this office show that said Cheparney Larney is the child of Jacob Larney and Bettie Larney, whose names appear as 'Big Jack' and 'Bettie' on a schedule of citizens by blood of the Creek Nation, approved by the Secretary of the Interior March 28, 1902, opposite Nos. 8291 and 8292, respectively. The evidence shows that about July 19, 1905, said Cheparney Larney appeared to be about one year old.
'Although the evidence herein is not as full and complete as has heretofore been required by this office to establish the right of a person to be enrolled as a citizen of the Creek Nation, in view of the provisions of the Act of Congress approved April 26, 1906 (34 Stat. 137), fixing March 4, 1907, as the date after which the Secretary of the Interior shall have no jurisdiction to approve the enrollment of any person as a citizen of said Nation, it is believed that the evidence herein should be considered sufficient to establish the facts necessary to enrollment.
'It is therefore ordered and adjudged that said Cheparney Larney is entitled to be enrolled as a citizen by blood of the Creek Nation, under the provisions of the Act of Congress approved March 3, 1905 (33 Stat. 1048), and the application for his enrollment as such is accordingly granted.
'Tams Bixby, Commissioner.
'Muskogee, Indian Territory, February 23, 1907.'

It is undisputed that the allotment deeds to the land were delivered to the father of plaintiff, and that plaintiff has been in possession of the land since prior to the commencement of the present suit. The court below, holding that there was an ambiguity in the record, received evidence as to the identity of the person enrolled, and decided in favor of the plaintiff. It is the contention of appellants in this court:

(1) That the Commissioner's decision is conclusive evidence that the person enrolled was the child of 'Big Jack' and Bettie, his wife.

(2) That if the decision of the Commissioner is not conclusive to that effect, yet that the weight of the evidence introduced upon the trial establishes the fact.

1. The Dawes Commission was a special tribunal having judicial powers. Its judgments were conclusive, in the absence of fraud or gross mistake, or arbitrary action, as to the questions it was authorized to decide, and also as to every issue of law and fact that it was necessary for it to determine in order to decide those questions. U.S. v. Wildcat, 244 U.S. 111, 37 Sup.Ct. 561, 61 L.Ed. 1024; Kimberlin v. Commission to Five Civilized Tribes, 104 F. 653, 44 C.C.A. 109; Malone v. Alderdice, 212 F. 668, 129 C.C.A. 204; Folk v. U.S., 233 F. 177, 147 C.C.A. 183; Nunn v. Hazelrigg, 216 F. 330, 132 C.C.A. 474; U.S. v. Atkins (C.C.A.) 268 F. 923. But the decisions of the Commission and the recitals and reports contained therein as to matters whose determination was not indispensable to enable it to adjudicate who should be enrolled, what lands should be allotted to those enrolled, and how, are not of judicial or conclusive effect. Malone v. Alderdice, supra; Porter v. U.S., 260 F. 1, 171 C.C.A. 37; U.S. v. Lena (C.C.A.) 261 F. 144. See also Hegler v. Faulkner, 153 U.S. 109, 117, 14 Sup.Ct. 779, 38 L.Ed. 653.

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