Parker v. Riley

• Decision Date: 14 May 1917
• Docket Number: 4520.
• Citation: 243 F. 42
• Parties: PARKER, Superintendent for Five Civilized Tribes, et al. v. RILEY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

243 F. 42

PARKER, Superintendent for Five Civilized Tribes, et al. v. RILEY et al.

No. 4520.

United States Court of Appeals, Eighth Circuit.

May 14, 1917

Paul Pinson, Sp. Asst. U.S. Atty., of Muskogee, Okl. (D. H Linebaugh, U.S. Atty., of Muskogee, Okl., and Carter Smith Sp. Asst. U.S. Atty., of Tulsa, Okl., on the brief), for appellants.

W. J Horton, of South McAlester, Okl. (R. A. Smith, of McAlester Okl., on the brief), for appellee Riley.

C. H. Tully, of Eufaula, Okl., for other appellees.

Before SANBORN, Circuit Judge, and REED and BOOTH, District Judges.

SANBORN Circuit Judge.

On October 3, 1912, Tootie Riley, a minor, by her guardian, Julia Willingham, a minor, by her guardian, and Doc Willingham, the sole heirs at law of Emma Derrisaw Willingham, who before her marriage to Doc Willingham was Emma Derrisaw, a full-blood Creek Indian, made an oil and gas mining lease of 40 acres of land in Creek county, Okl., which had been allotted to Emma Derrisaw as her homestead, and provided in the lease that the royalties payable by the lessee should be paid, and they have been paid, to the United States Indian superintendent, Union agency, and to his successor, Gabe E. Parker, superintendent of the Five Civilized Tribes, who, together with W. M. Baker, cashier and special disbursing agent for the Five Civilized Tribes, now hold the same in trust for the benefit of the lessors. More than $15,000 are thus held and are ready for distribution, and the question in this case is when and in what way it should be divided among the lessors. The court below held that each of them was entitled to receive one-third thereof, and so decreed. From this decree the officers appeal, and their counsel present numerous objections and theories inconsistent with the adjudication below.

In the first place they contend that the approval of the lease by the Secretary of the Interior did not effect the removal of the restrictions on alienation of the part of the property which the lease granted to the lessee the right to take from it, and hence that the fund must be retained until 1931: (a) Because a removal of restrictions is expressly a distinct act from the approval of a lease; and (b) because an oil and gas mining lease is not an alienation of land. The first argument in support of this contention is founded on the fact that in the disposition of the lands of the Indians Congress imposed more extensive restrictions upon their homesteads than upon their other allotted lands, and upon sections 1, 2, and 9 of the act of May 27, 1908 (35 Stat. 312, 315, c. 199). These are the provisions of these sections material to this controversy:

Section 1: 'All homesteads of said allottees enrolled as mixed-blood Indians having half or more than half Indian blood, including minors of such degrees of blood, and all allotted lands of enrolled full-bloods, and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees of blood, shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance prior to April twenty-sixth, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. The Secretary of the Interior shall not be prohibited by this Act from continuing to remove restrictions as heretofore, and nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this act.'

Section 2: 'Leases of restricted lands for oil, gas or other mining purposes, leases of restricted homesteads for more than one year, and leases of restricted lands for periods of more than five years, may be made, with the approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise.'

Section 9: 'That if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March 4, 1906, the homestead of such * * * allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section 1 hereof, for the use and support of such issue, during their life or lives, until April 26, 1931, * * * in the event the issue hereinbefore provided for die before April 26, 1931, the land shall then descend to the heirs, according to the laws of descent and distribution of the state of Oklahoma, free from all restrictions.'

Emma Derrisaw's homestead allotment was duly selected, allotted, and patented to her. In the year 1901 her daughter, Tootie Riley, was born. In July 1905, Emma Derrisaw and Doc Willingham intermarried, and as the result of this marriage Julia Willingham was born on February 11, 1907. In November, 1907, Emma Derrisaw Willingham died intestate. As Julia Willingham is her only issue born since March 4, 1906, the right to use and occupation of the homestead until April 26, 1931, is vested in her by the terms of section 9, subject to the termination of that right by her death before that time, or by the removal of restrictions on alienation from the land, either in whole or in part. Subject to this homestead right of Julia, the title to the land, according to the laws of descent and distribution of Oklahoma, vested in Tootie Riley, Julia Willingham, and Doc Willingham in fee in equal shares upon the decease of Emma Derrisaw Willingham. The fact that the lease was lawfully and regularly made and that it was duly approved by the Secretary is conceded.

But counsel call attention to the declaration of section 9 to the effect that the homestead in cases of this class shall remain inalienable 'unless restrictions against alienation thereof are removed therefrom by the Secretary of the Interior in the manner prescribed by section 1 hereof,' and insist that the approval of the lease was ineffective to remove the restrictions on alienation from the leasehold or from the royalties collected from it, because the Secretary in the approval of the lease acted under section 2, and not under section 1 of the act of May 27, 1908. They also urge that under section 5 of the act (35 Stat. 313), which declares that any attempted alienation or incumbrance by deed, mortgage, contract to sell, or other instrument or method of incumbering real estate, which affects the title to land allotted to allottees of the Five Civilized Tribes, prior to the removal of restrictions therefrom, and also any lease of such restricted land made in violation of law, shall be absolutely null and void, necessarily renders the attempted removal of any restriction upon alienation by the approval of a lease by the Secretary void unless the restriction upon alienation had been first removed by a prior proceeding under section 1. These arguments, however, seem too subtle and ingenious to be sound. Section 1 provides that the Secretary may remove the restrictions on alienation wholly or in part under such rules and regulations concerning terms of sale and disposal of the proceeds as he may prescribe. Section 2 provides that leases of restricted lands for oil, gas, or mining purposes approved by the Secretary under rules and regulations provided by him shall be valid. Valid leases of lands valuable for their oil, gas, or mineral result in the extraction and disposition of the most valuable part of the property and necessarily remove from that part of the property all restrictions upon alienation. If they failed to remove such restrictions, they would be ineffective and void. If approved under section 2 they necessarily remove the restrictions from the property in part under rules and regulations provided by the Secretary, and if restrictions were removed to the same extent under section 1 they would likewise be removed under rules and regulations provided by the Secretary.

Section 1 is indeed broader than section 2, and it authorizes the Secretary to remove the restrictions wholly as well as partly from the land; but as the whole is greater than any of its parts, and includes them all, section 1 includes the power to remove the restrictions on the leaseholds and their products which the Secretary is also empowered to remove by means of his approval of leases under section 2. It may be that the provision in section 9 that the homestead shall remain inalienable unless the restrictions are removed under section 1 refers to the removal of the restrictions wholly and not in part. However this may be, the court is without doubt that it was neither the intent of Congress nor is it the effect of that provision to invalidate leases approved by the Secretary under section 2, or to deprive them of the indispensable effect of valid leases, the removal of the restrictions on alienation from the leaseholds they evidenced, and the royalties they provide. Nor, since restrictions on alienation may be removed from leaseholds and their royalties either under section 1 or under section 2, is it essential to the validity of the removal under either section that the same or a like removal should have been first sought and procured under the other. This construction of this act is consonant with the cardinal rules that every statute should receive a rational, sensible interpretation, that the intention of the legislative body should be ascertained and given effect, if possible, and that this intention must be deduced, not from a part, but from the entire statute which expresses it, because the enacting body did not express its intention by a portion but expressed it by all, of the law it passed upon the subject. ...