Roubedeaux v. Quaker Oil & Gas Co.

• Decision Date: 22 December 1927
• Docket Number: No. 7797.,7797.
• Citation: 23 F.2d 277
• Parties: ROUBEDEAUX et al. v. QUAKER OIL & GAS CO. OF OKLAHOMA et al.
• Court: U.S. Court of Appeals — Eighth Circuit

23 F.2d 277 (1927)

ROUBEDEAUX et al. v. QUAKER OIL & GAS CO. OF OKLAHOMA et al.

No. 7797.

Circuit Court of Appeals, Eighth Circuit.

December 22, 1927.

Eugene B. Smith, of Sapulpa, Okl. (J. T. Smith and R. L. Wilkinson, both of Sapulpa, Okl., on the brief), for appellants.

George S. Ramsey, of Tulsa, Okl., and L. O. Lytle, of Sapulpa, Okl. (Alvin Richards, F. A. Calvert, Edgar A. De Meules, Villard Martin, J. H. Hill, John R. Ramsey, and B. W. Griffith, all of Tulsa, Okl., J. E. Thrift, C. J. Davenport, and D. A. McDougal, all of Sapulpa, Okl., T. J. Flannelly and Paul B. Mason, both of Independence, Kan., and Lewis C. Lawson, of Holdenville, Okl., on the brief), for appellees.

Before WALTER H. SANBORN and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

WALTER H. SANBORN, Circuit Judge.

Lusanna Brink, the complainant below, brought this suit in equity against the Quaker Oil & Gas Company, a corporation of Oklahoma, the Pure Oil Pipe Line Company and Pure Oil Company, corporations of the state of Ohio, and many other defendants to avoid certain deeds for their fraudulent procurement, which she alleges clouded her title to and prevented her from maintaining an action at law for about 160 acres of land in Creek county, Oklahoma, which she alleged she owned, and that the defendants were wrongfully in possession of and to quiet the title to this land in her. There were many defendants; some demurred, some answered, some made motions to dismiss, and some prayed for decrees quieting title in themselves. When all the pleadings had been completed, the facts which conditioned the decision of the controlling issue on the merits of the case were not controverted, and the interested defendants made motions on the pleadings to dismiss the bill, and these motions were granted by the court on the ground that the pleadings disclosed no equity in the plaintiff entitling her to any relief against any of the defendants. All the parties to this suit claim that their respective interests in the title and ownership of this land are derived through inheritance from Sina Crow, that she was a fullblood Creek Indian, that she had the right as such under the Creek Agreements and the pertinent acts of Congress to an allotment of land from the tribal lands of that tribe, that such an allotment was so lawfully selected and made to her, that the ownership and title to it vested in her lawful heirs, and that the land in controversy is that allotment.

Sina Crow died in August, 1899, leaving her daughter, Susie Crow, and Kernal Jack, the father of that daughter, surviving her. Susie Crow died in September, 1899, leaving her father, Kernal Jack, who died in 1903, leaving Wallace Jack, his son by the plaintiff, Lusanna Brink, and Wallace Jack died in 1913. The plaintiff, his mother, claims title by inheritance from Susie Crow through this line. On the other hand, the defendants insist that no right, title, or interest in this land was ever vested in Kernal Jack, Wallace Jack, or the plaintiff, Lusanna Brink, because under the law the title came by inheritance from Sina Crow to her daughter, Susie Crow, from her to her maternal grandmother, Fannie Fulsom, and her maternal aunts, Mollie Tiger and Babie Cumsey, under whom the defendants claim.

The question here presented is one of law, and its answer must be derived from these statutes: The Congress of the United States, by section 6 of the Act of June 30, 1902 (32 Stat. 501), the act to ratify the Creek Supplemental Agreement, provided that "the descent and distribution of land and money provided for by said act" (the Act of March 1, 1901 31 Stat. 861, to ratify the Original Creek Agreement) "shall be in accordance with chapter 49 of Mansfield's Digest of the Statutes of Arkansas now in force in Indian Territory: Provided, that only citizens of the Creek Nation, male and female, and their Creek descendants, shall inherit lands of the Creek Nation. * * *" Sina Crow, Susie Crow, Fannie Fulsom, Mollie Tiger, Babie Cumsey, Kernal Jack, Wallace Jack, and Lusanna Brink were all Creek citizens of full blood residing in the Creek Nation.

Section 5 of the Act of Congress of April 26, 1906 (chapter 1876, 34 Stat. 138), provided: "That all patents or deeds to allottees in any of the Five Civilized Tribes to be hereafter issued shall issue in the name of the allottee, and if any such allottee shall die before such patent or deed becomes effective, the title to the lands described therein shall inure to and vest in his heirs, and in case any allottee shall die after restrictions have been removed, his property shall descend to his heirs or his lawful assigns, as if the patent or deed had issued to the allottee during his life, and all patents heretofore issued, where the allottee died before the same became effective, shall be given like effect."

Section 2531 of Mansfield's Digest provided that: "In cases where the intestate shall die without descendants, if the estate come by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs; but if the estate be a new acquisition it shall ascend to the father for his lifetime, and then descend, in remainder, to the collateral kindred of the intestate in the manner provided in this act; and, in default of a father, then to the mother, for her lifetime; then to descend to the collateral heirs as before provided."

This land was selected as an allotment for Sina Crow in 1905. On June 8, 1906, about two months after section 5 (34 Stat. 138), above quoted, of the Act of April 26, 1906, took effect, the Department of the Interior approved the deeds of P. Porter, Principal Chief of the Creek Nation, whereby, in accordance with the provisions of the Creek Agreements and the acts of Congress, he granted and conveyed, as the deeds read, "unto said Sina Crow all right, title, and interest of the Muskogee (Creek) Nation * * * in and to" the lands which are the subject of this litigation. Here was an inheritable estate, which vested in Sina Crow and Susie Crow under section 5 of the Act of April 26, 1906 (34 Stat. 138), as if they had lived until those deeds and that estate became effective, and it came to Susie Crow by her mother. Susie Crow left no descendants, and section 2531 of Mansfield's Digest declared that in such case the estate "shall ascend to the mother and her heirs," who were Fannie Fulsom, Mollie Tiger, and Babie Cumsey. The court below followed the opinion and decision of this court in a similar case (Shulthis v. McDougal et al., 170 F. 529), adjudged that they inherited this land from Susie Crow, and that neither Kernal Jack, Wallace Jack, nor the plaintiff ever had any right, title, or interest therein.

Counsel for the complainant ably and persistently argue, and have submitted elaborate and ingenious briefs in support of their theory, that this conclusion of the court below was a radical error of law. Their contention, as we understand it, is, first, that the proviso in section 6 of the Act of June 30, 1902 (32 Stat. 501), that only citizens of the Creek Nation and their descendants should inherit lands of the Creek Nation, made Creek parentage the first and indispensable qualification of an inheritor of Creek lands; second, that while this qualification is essential to the inheritor in the first descent, it is not essential to the inheritors in the second and subsequent descents; third, that where the source of the right of an allottee to be enrolled was the appearance of her name on the 1895 tribal roll, her Creek citizenship or ancestry was still the first qualification of an inheritor, and in second and further descents the parents of the first inheritor, Susie Crow, were the source of the estate she inherited; that she "received the lands involved herein, as preferred heir by the blood of her tribal parents, by the one as much as by the other"; and, fourth, that the tribe was the source of the estate, and that inheritors required no further qualification to inherit Creek lands than that required by the proviso of section 6 of the Act of June 30, 1902, "that only citizens of the Creek Nation, male and female, and their Creek descendants, shall inherit lands of the Creek Nation."

From these premises counsel draw the conclusions: (1) That the qualifications of Creek ancestry and citizenship required of an inheritor was derived by Susie Crow from Kernal Jack, her father, as much as from Sina Crow, her mother; and (2) that, inasmuch as this indispensable qualification was thus derived, the inheritable land allotted and conveyed to Sina Crow and inherited by Susie Crow descended to and vested in her father, Kernal Jack, upon her death without descendants, under section 2522 of Mansfield's Digest, which declares that, "when any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend: * * * First. To children, or their descendants, in equal parts. Second. If there be no children, then to the father, then to the mother; if no mother, then to the brothers and sisters, or their descendants, in equal parts."

Susie Crow died intestate,...