Nunn v. Hazelrigg

• Decision Date: 08 July 1914
• Docket Number: No,3968.
• Citation: 216 F. 330
• Parties: NUNN v. HAZELRIGG.
• Court: U.S. Court of Appeals — Eighth Circuit

216 F. 330

NUNN v. HAZELRIGG.

No, 3968.

United States Court of Appeals, Eighth Circuit.

July 8, 1914

E. J Van Court, of Eufaula, Okl. (Van Court & Reubelt, of Eufaula Okl., on the brief), for plaintiff in error.

Benjamin Martin, Jr., of Muskogee, Okl. (Villard Martin, of Muskogee Okl., on the brief), for defendant in error.

Before SANBORN and SMITH, Circuit Judges, and POPE, District Judge.

SMITH Circuit Judge.

This suit was brought in United States District Court for the Eastern District of Oklahoma in ejectment by the defendant in error, J. T. Hazelrigg, hereafter called the plaintiff, to recover an undivided one-half of approximately 108 acres of land, and against Charles J. Nunn, plaintiff in error hereafter called the defendant. The land in question is a part of the lands of the Creek Nation and constitutes the surplus allotment to one Tena Dan, now Cross. She was enrolled by the commission of the Five Civilized Tribes, known as the Dawes Commission, as an eighth blood Creek Indian. The petition was in a brief form, allowed by the laws of Oklahoma.

The answer alleges in substance: That the land in question was patented to Tena Dan by the principal chief of the Muskogee, or Creek, Nation September 3, 1902, and the patent was approved by the Acting Secretary of the Interior December 22, 1902. The land was conveyed April 22, 1904, by the said Tena Cross and husband by warranty deed to Mary A. Morrow, and on the 27th day of September, 1904, by the said Mary A. Morrow, a widow, by warranty deed to the defendant Charles J. Nunn. On November 4, 1907, said Tena Cross, under the name of Tena Dan, again conveyed said land by warranty deed to Thomas Haggard. On November 22, 1907, said Tena Cross, under that name, conveyed said land by warranty deed to Thomas Haggard to correct the error in the former deed. On November 5, 1907, Thomas Haggard and wife conveyed the land by warranty deed to Charles J. Nunn. The defendant alleges: That on the 27th day of September, 1904, he went into possession and occupancy of said lands under said deed from Mary A. Morrow, and that since said date his possession has been, and is now, exclusive, open, notorious, and adverse to all persons. That, at the time defendant purchased said land from the said Mary A. Morrow, he did so in good faith for the purpose of providing himself with a home, and paid, as a consideration for said deed, the full value of said land. That at said time the defendant knew the said Tena Cross, nee Dan, and her parents, and knew that she and her said parents claimed to be negroes, and were in fact negroes, and had no knowledge that the said Tena Dan was enrolled as a 'mixed blood Indian' on the rolls of the Creek Nation. That the defendant is informed and believes, and upon such information and belief avers and charges, that plaintiff claims to derive his alleged title to said land under the deed hereafter referred to.

'That immediately upon the public having access to the said Indian rolls, and it being ascertained that the said Tena Dan was falsely entered thereon as of mixed blood, plaintiff entered into a conspiracy with J. C. Ruby, G. R. Ruby, and Virgil R. Coss and others, all near relatives and business associates, to cheat and defraud defendant and cloud his said title. That, in furtherance of said conspiracy, the said G. R. Ruby well knowing the premises, and the fact that the said Tena Dan was enrolled as a mixed blood citizen, of the Creek Nation, on July 1, 1907, procured from the said Tena Dan, in the name of J. C. Ruby, a deed (Exhibit G) to said land, which said deed was taken for the use and benefit of said G. R. Ruby, and the same was procured by fraud and no consideration was paid therefor. That with the intention of validating said void deed, and in furtherance of said conspiracy, the said G. R. Ruby, without further consideration, on August 9, 1907, procured a deed (Exhibit H), from the said Tena Dan on said land. That on the 20th day of August, 1907, in furtherance of said conspiracy, and in order to further complicate and cloud defendant's title, the said G. R. Ruby and wife, without consideration, conveyed said land to the said Virgil R. Coss, which said deed is hereto attached, marked 'J,' and made a part of this answer. That on the 13th day of September, 1907, in furtherance of said conspiracy, and in order to further complicate and cloud defendant's title, the said Virgil R. Coss, without consideration conveyed an undivided one-half interest in said land to the said J. T. Hazelrigg, plaintiff herein, which said deed is hereto attached, marked Exhibit K, and made a part of this answer.'

The commission to the Five Civilized Tribes authorized by section 16 of the act of March 3, 1893 (27 Stats. 612, 645, c. 209), and the provision of the act of March 2, 1895 (28 Stats. 910, 939, c. 189), and commonly known as the Dawes Commission, was authorized and directed by the act of June 10, 1896 (29 Stats. 321, 339, c. 398), to: 'Proceed at once to hear and determine the application of all persons who may apply to them for citizenship in any of said nations, and after such hearing they shall determine the right of such applicant to be so admitted and enrolled. * * * In the performance of such duties, said commission shall have power and authority to administer oaths, to issue process for and compel the attendance of witnesses, and to send for persons and papers, and all depositions and affidavits and other evidence in any form whatsoever heretofore taken, where the witnesses giving said testimony are dead or now residing beyond the limits of said territory, and to sue every fair and reasonable means within their reach for the purpose of determining the rights of persons claiming such citizenship, or to protect any of said nations from fraud or wrong, and the rolls so prepared by them shall be hereafter held and considered to be the true and correct rolls of persons entitled to the rights of citizenship in said several tribes: Provided, that if the tribe, or any person, be aggrieved with the decision of the tribal authorities or the commission provided for in this act, it or he may appeal from such decision to the United States District Court: Provided however, that the appeal shall be taken within sixty days, and the judgment of the court shall be final. That the said commission, after the expiration of six months, shall cause a complete roll of citizenship of each of said nations to be made up from their records, and add thereto the names of citizens whose right may be conferred under this act, and said rolls shall be, and are hereby, made rolls of citizenship of said nations or tribes, subject, however, to the determination of the United States courts, as provided herein. The commission is hereby required to file the lists of members as they finally approve them with the Commission of Indian Affairs to remain there for use as the final judgment of the duly constituted authorities. And said commission shall also make a roll of freedmen entitled to citizenship in said tribes and shall include their names in the lists of members to be filed with the Commissioner of Indian Affairs.'

By the act of June 28, 1898 (30 Stats. 495, 503, c. 517), it is provided:

'The roll of Creek freedmen made by J. W. Dunn, under authority of the United States, prior to March fourteenth, eighteen hundred and sixty-seven, is hereby confirmed, and said commission is directed to enroll all persons now living whose names are found on said rolls, and all descendants born since the date of said roll to persons whose names are found thereon, with such other persons of African descent as may have been rightfully admitted by the lawful authorities of the Creek Nation. * * * Said commission shall make such rolls descriptive of the persons thereon, so that they may be * * * identified.'

This makes it important to understand who were meant by Creek freedmen as used in this statute. African slavery existed among the Creeks before the Civil War. The Creeks made a...