Sunderland v. United States

• Decision Date: 05 March 1923
• Docket Number: 6121.
• Citation: 287 F. 468
• Parties: SUNDERLAND v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

287 F. 468

SUNDERLAND v. UNITED STATES.

No. 6121.

United States Court of Appeals, Eighth Circuit.

March 5, 1923

J. M Springer, of Tulsa, Okl. (E. G. Wilson, of Tulsa, Okl., on the brief), for appellant.

O. H Graves, Sp. Asst. U.S. Atty., of Muskogee, Okl. (Frank Lee U.S. Atty., of Muskogee, Okl., on the brief), for appellee.

Before STONE, Circuit Judge, and TRIEBER and JOHNSON, District Judges.

TRIEBER District Judge.

The United States instituted this action to cancel and set aside three leases and a conveyance of 160 acres of land, made to appellant by Nathaniel Perryman, a half-blood citizen of the Creek Nation of Indians, properly enrolled, and also a decree of the superior court of Tulsa county, state of Oklahoma rendered by default against Nathaniel Perryman, which quieted appellant's title to the premises sued for in this action.

The material allegations in the complaint are that Perryman, a halfblood citizen of the Creek Nation of Indians, properly enrolled, had allotted to him certain lands designated as his homestead, and which were under restrictions of alienation; that, pursuant to and under the rules and regulations prescribed by the Secretary of the Interior, said homestead allotment was sold, the proceeds of said sale being retained by the Secretary of the Interior, to be disbursed under his orders for the benefit of the allottee; that with a portion of the funds thus derived the Indian Department purchased for and on behalf of the said Nathaniel Perryman the land in controversy; that the deed of conveyance for said land, in conformity with the rules and regulations of the Secretary of the Interior, contains in the habendum clause, that it is:

'Subject to the condition that no lease, deed, mortgage, power of attorney, contract to sell, or other instrument affecting the land herein described or the title thereto executed during the lifetime of said grantee at any time prior to April 26, 1931, shall be of any force and effect or capable of confirmation or ratification, unless made with the consent of and approved by the Secretary of the Interior.'

It is then charged that, notwithstanding the restricted character of said land, the defendant obtained from Nathaniel Perryman three separate leases therefor, and an absolute deed of conveyance for the land, without the consent and approval of the Secretary of the Interior. By an amendment to the complaint it is charged that the defendant, Sunderland, had obtained a decree in the superior court of Tulsa county, Okl., quieting title in the defendant Sunderland and the lands involved in this action, but to which action the United States government was not a party.

A motion of appellant to dismiss the complaint was by the court overruled, whereupon he filed his answer. The answer admits the citizenship and enrollment of Perryman, the conveyance of the land in controversy to Perryman, with the restrictive clause as charged in the complaint, the execution by Perryman of the leases and the deed of conveyance to appellant, as charged, and pleads as defense Perryman's right to make the leases and the deed, and also pleads the decree of the superior court of Tulsa county, Okl.; a certified copy of that decree having been introduced in evidence.

Upon a hearing the court below rendered a decree denying relief affecting the leases, but set aside and canceled the deed to appellant, and the decree of the superior court of Tulsa county, state of Oklahoma, and enjoining appellant from setting up any claim of title to said land or any part thereof.

As the United States did not appeal from the part of the decree refusing to cancel the leases, we are only concerned with the part of the decree canceling the deed of conveyance of Perryman to appellant. The undisputed facts established the truth of all the allegations, and the only questions involved are whether the rules and regulations of the Secretary of the Interior were authorized to be made, and, if authorized by Congress, whether Congress had the power to authorize them, and the effect of the decree of the superior court of Tulsa county.

The act of Congress under which the land in controversy is claimed to be restricted, is the act of May 27, 1908, c. 199, 35 Stat. 312. The part of that act material to a determination of the issues involved herein, is in section 1, and it is only necessary to quote the following part of that section.

'Section 1. That from and after sixty days from the date of this act the status of the lands allotted heretofore or hereafter to allottees of the Five Civilized Tribes shall, as regards restrictions on alienation or incumbrance, be as follows: All lands, including homesteads, of said allottees enrolled as intermarried whites, as freedmen, and as mixed-blood Indians having less than half Indian blood including minors shall be free from all restrictions. All lands, except homesteads, of said allottees enrolled as mixed-blood Indians having half or more than half and less than three-quarters Indian blood shall be free from all restrictions. 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.'

By authority of the provision authorizing the Secretary of the Interior to make rules and regulations, he prescribed, among others, the following:

'6. When, however, the Secretary of the Interior finds it to be of the best interest of any applicant that all or part of his restricted lands should be sold with conditions concerning terms of sale and disposal of the proceeds, he may remove the restrictions to become effective only and simultaneously with the execution of the deed by said applicant to the purchaser. Before said deed is executed the designated tract or tracts of land shall be sold upon such terms as the Secretary of the Interior may in each case specifically direct. Whenever the Secretary of the Interior so directs the superintendent for the Five Civilized Tribes will cause a description of the land with necessary information, to be posted at his office, and so far as practicable, on the bulletin board at the court house of each county within the territory occupied by the Five Civilized Tribes, and also at the office of each field clerk for a period of not less than thirty days.' '11. The proceeds of such sales shall be held by said superintendent for the Five Civilized Tribes in his official capacity, and be disbursed for the benefit of the respective Indians.'

'20. In any case where lands are purchased for the use and benefit of any citizen of the Five Civilized Tribes of the restricted class, payment for which is made from proceeds arising from the sale of restricted allotted land, or other moneys held under the control of the Department of the Interior, the superintendent for the Five Civilized Tribes shall cause conveyance of such lands, to be made on form of conveyance containing an habendum clause against alienation or incumbrance until April 26, 1931, as follows: 'To have and to hold said described premises, unto the said grantee, . . . heirs and assigns, forever, free and clear and discharged of all former grants, charges, taxes, judgments, mortgages and other liens and incumbrances of whatsoever nature subject to the condition that no lease, deed,

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