Richard v. Parker

• Decision Date: 21 August 1917
• Docket Number: 4799.
• Citation: 245 F. 330
• Parties: RICHARD et al. v. PARKER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

245 F. 330

RICHARD et al. v. PARKER et al.

No. 4799.

United States Court of Appeals, Eighth Circuit.

August 21, 1917

Stone Circuit Judge, dissenting.

Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.

Suit in equity by Eastman Richard and another, administrators of the estate of Samuel Richard, deceased, against Gabe E. Parker and another. Decree for defendants, and complainants appeal. Reversed.

INDIANS 16(3)-- LANDS-- OIL LEASE BY MINOR-- EFFECT OF DEATH OF LESSEE.

In 1912 a Creek minor of the full blood, through his guardian, and with the approval of the Secretary of the Interior, executed an oil and gas lease on his allotment, which was subject to restrictions upon alienation. The lease provided for the payment of royalties to the Indian superintendent for the benefit of the lessor, and under the regulations of the department to which the lease was subject the superintendent was authorized to withhold payment of such royalties until it was considered for the interest of the minor or his heirs that they should be paid over. The lease further provided that, in event restrictions on alienation should be removed it should be released from the supervision of the Secretary and royalties should be paid to the lessor, or the then owner of the land. The lessor died while still a minor, leaving his father as his sole heir. A large sum in royalties had previously been paid to the superintendent, and other royalties were thereafter paid to him. Act May 27, 1908, c 199, Sec. 9, 35 Stat. 315, provides that 'the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land: Provided, that no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee.' Held that, under such statute, the effect of the death of the lessor was to terminate all control over the land and of the lease by the Secretary, and also over the royalties previously collected.

Britton H. Tabor and J. B. Lucas, both of Checotah, Okl., for appellants.

Paul Pinson, Sp. Asst. U.S. Atty., of Muskogee, Okl. (D. H. Linebaugh, U.S. Atty., and W. P. McGinnis, Sp. Asst. U.S. Atty., both of Muskogee, Okl., on the brief), for appellees.

Before CARLAND and STONE, Circuit Judges, and MUNGER, District Judge.

MUNGER District Judge.

Samuel Richard, a minor, was a fullblood citizen of the Creek Nation of the Five Civilized Tribes of Indians, residing in Oklahoma. He held an allotment of 160 acres of land. On April 13, 1912, acting through his guardian, he executed an oil and gas lease of this land to the Kathleen Oil Company. The lease was approved by the probate court and by the Secretary of the Interior. On January 24, 1916, and while yet a minor, Samuel Richard died, and thereafter appellants were appointed as his administrators. The sole heir of Samuel Richard is his father, Eastman Richard, who is one of the administrators.

The lease provides for a payment to the United States Indian superintendent, for the use of the lessor, of a royalty on the proceeds of oil and gas obtained from the land. The lessee and its assigns have extracted large quantities of oil from the land, both before and after the death of the lessor, and have paid the superintendent, as royalties, the sum of $216,145.16. The greater portion of this amount was paid during the lifetime of the lessor. This suit was brought by the administrators of Samuel Richard against the superintendent and cashier of the Five Civilized Tribes to recover this money and to restrain them from collecting royalties further under the lease.

Under the original Creek treaty (Act March 1, 1901, c. 676, 31 Stat. 861) and the supplemental Creek treaty (Act June 30, 1902, c. 1323, 32 Stat. 500) the alienation of allotted lands was forbidden for a fixed period, without the approval of the Secretary of the Interior. By subsequent acts of Congress (Act April 21, 1904, c. 1402, 33 Stat.

189; Act April 26, 1906, c. 1876, 34 Stat. 137; Act May 27, 1908, c. 199, 35 Stat. 312) certain classes of beneficiaries were released from the restrictions upon alienation, but the land of Samuel Richard, as a minor, was subject to restrictions upon alienation during his lifetime. At the time of the execution of the lease to the Kathleen Oil Company, section 2 of the last-mentioned act of Congress contained this provision:

'That all lands other than homesteads allotted to members of the Five Civilized Tribes from which restrictions have not been removed may be leased by the allottee if an adult, or by guardian or curator under order of the proper probate court if a minor or incompetent, for a period not to exceed five years, without the privilege of renewal: Provided, that 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.'

In the lease appeared this condition:

'In event restriction on alienation shall be removed from all the leasehold premises described above, this lease shall be released from the supervision of the Secretary of the Interior, such release to take effect without further agreement, from the date such restrictions are removed, and thereupon the authority and power delegated to the Secretary of the Interior as herein provided shall cease, and all payments required to be made to the United States Indian superintendent shall thereafter be made to lessor or

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