Porter v. United States

• Citation: 260 F. 1
• Decision Date: 19 August 1919
• Docket Number: 5321.
• Parties: PORTER v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Eighth Circuit

260 F. 1

PORTER v. UNITED STATES et al.

No. 5321.

United States Court of Appeals, Eighth Circuit.

August 19, 1919

Paul Pinson, of Tulsa, Okl., and Irwin Donovan, of Muskogee, Okl (John J. Shea and Thomas F. Shea, both of Tulsa, Okl., on the brief), for appellant.

James W. Cosgrove, of Muskogee, Okl. (S. M. Rutherford, of Muskogee, Okl., on the brief), for appellees, except the United States.

Before HOOK and CARLAND, Circuit Judges, and YOUMANS, District Judge.

YOUMANS District Judge.

The United States brought this suit to set aside two of three patents for as many allotments which it is alleged were made by mistake to the same Creek citizen under different names when that citizen was entitled to but one allotment. The prayer of the bill was:

'That Nellie Porter, Nellie Deer, and Lettie McGilbra, as described in complainant's bill, be decreed to be one and the same person; that the names of Nellie Deer and Lettie McGilbra, now appearing upon the approved rolls of the Creek Tribe of Indians, be stricken therefrom; that the certificates and patents issued in the names of Nellie Deer and Lettie McGilbra, respectively, be canceled; that the claims of all parties, of whatsoever character, to the lands allotted to said Nellie Deer and Lettie McGilbra, be held for naught; that the rights of Nellie Deer and Lettie McGilbra as allottees and entitled to further distribution of the tribal funds and property be extinguished; that all deeds, mortgages, contracts, powers of attorney, or assignments, or other instruments of whatsoever character, and all claims of all parties in the lands so allotted, be set aside; that the lands so allotted or purported to be allotted to Nellie Deer and Lettie McGilbra be decreed the lands of the Creek Nation or Tribe of Indians; and that complainant be decreed to be entitled to the immediate possession thereof.'

One of the defendants answered under the name of Lettie McGilbra. In her answer she alleged:

'That she is a citizen of the Creek Nation and enrolled on the full-blood rolls of said nation; that she was erroneously enrolled as Nellie Porter, opposite roll No. 7408; also erroneously enrolled as Nellie Deer, opposite roll No. 7064, on the approved rolls of said Creek Nation of Indians; that her real name is Lettie McGilbra, and was enrolled as Lettie McGilbra, opposite roll No. 7907.'

She further alleged that an allotment of land had been made to her arbitrarily under the name of Nellie Porter, that another allotment of land had been made to her arbitrarily as Nellie Deer, and that a third allotment had been made to her as Lettie McGilbra. She further alleged:

'That Nellie Porter, so called, and Nellie Deer, so called, and Lettie McGilbra, are one and the same person, and the real name, as stated above, is Lettie McGilbra, and that the real allotment belonging to defendant Lettie McGilbra, and the one she wishes to retain, is the allotment allotted to Lettie McGilbra above described; that the defendant, answering for herself, further states that she hereby relinquishes all right, title, and interest in and to the allotments allotted to her as Nellie Porter and Nellie Deer, respectively, and hereby disclaims all right, title, and interest in and to said allotments, for the reasons that said names, Nellie Porter and Nellie Deer, are erroneous, and not the real name of defendant; and that she is now Lettie Barnett, nee Lettie McGilbra, and is known and designated by those who know her as such Lettie McGilbra, and as such Lettie McGilbra is entitled as a citizen of the Creek Nation, duly enrolled as such as Lettie McGilbra and entitled to the allotment made to her.'

She further alleged that, when the enrollment of Nellie Porter and Nellie Deer was made, she was a minor of tender age and not able to enroll herself in her proper name, and that no one was authorized to enroll her under the name of Nellie Porter, nor under the name of Nellie Deer. She prayed that she be allowed to retain her real name as Lettie McGilbra, and to retain as her allotment that land which had been allotted to her under the name of Lettie McGilbra.

Afterwards a decree was entered in the cause, the first paragraph of which reads as follows:

'The above matter coming on to be heard on this the 6th day of October, 1916, and it appearing from the pleadings in said cause that Nellie Porter, enrolled as a full-blood opposite roll No. 7408, and Nellie Deer, enrolled as a full-blood opposite roll No. 7064, and Lettie McGilbra, enrolled as a full-blood, opposite roll No. 7907, on the Creek tribal rolls, are one and the same person and that Lettie McGilbra files answer electing to take lands allotted under that name, and praying the court to set same aside to her, and relinquishing all right, title, and claim in and to the land allotted in the name of Nellie Porter, and in the name of Nellie Deer, the prayer of the answer of Lettie McGilbra is hereby granted.'

It was further ordered by the court in said decree that the certificates and patents theretofore issued by the Commission to the Five Civilized Tribes in the names of Nellie Porter and Nellie Deer be canceled and that the names Nellie Porter, opposite roll No. 7408, and Nellie Deer, opposite roll 7064, respectively, be stricken from the approved roll of the Creek Tribe of Indians.

Afterwards on the 9th day of November, 1917, said decree was set aside upon the application of Nancy Heaper, Minerva Frances, Jennie Washington, Annie Givens, Wisey Givens, and Wesley Asbury upon the alleged ground that they were heirs of Lettie McGilbra, deceased, and that said decedent was a distinct and separate...