United States v. Atkins

• Decision Date: 13 November 1920
• Docket Number: 5420,5425.
• Parties: UNITED STATES v. ATKINS et al. ATKINS et al. v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Eighth Circuit

268 F. 923

UNITED STATES v. ATKINS et al.

ATKINS et al. v. UNITED STATES et al.

Nos. 5420, 5425.

United States Court of Appeals, Eighth Circuit.

November 13, 1920

Paul Pinson, Sp. Asst. U.S. Atty., of Tulsa, Okl., and D. H Linebaugh, Sp. Asst. to the Atty. Gen., of Muskogee, Okl (Archibald Bonds, U.S. Atty., and J. C. Davis, Creek National Atty., both of Muskogee, Okl., on the brief), for the United States.

C. B Stuart, of Oklahoma City, Okl., and Lee Bond, of Leavenworth Kan. (E. C. Hanford, of Seattle, Wash., and M. K. Cruce, of Oklahoma City, Okl., on the brief), for appellees Folk and others.

Joseph M. Hill, of Ft. Smith, Ark., and Malcolm E. Rosser, of Muskogee, Okl., for appellees Atkins and others.

In Case No. 5425:

Joseph M. Hill, of Ft. Smith, Ark., and Malcolm E. Rosser, of Muskogee, Okl. (Napoleon B. Maxey, of Muskogee, Okl., and Henry L. Fitzhugh, of Ft. Smith, Ark., on the brief), for appellants.

C. B. Stuart, of Oklahoma City, Okl., and Lee Bond, of Leavenworth, Kan. (E. C. Hanford, of Seattle, Wash., on the brief), for appellees Folk and others.

Paul Pinson, Sp. Asst. to the U.S. Atty., of Tulsa, Okl., and D. H. Linebaugh, Sp. Asst. Atty. Gen., of Muskogee, Okl. (Archibald Bonds, U.S. Atty., and J. C. Davis, Creek National Atty., both of Muskogee, Okl., on the brief), for the United States.

Before HOOK and CARLAND, Circuit Judges, and VAN VALKENBURGH, District judge.

VAN VALKENBURGH, District Judge.

This case has been once before this court upon appeal from an order appointing a receiver. Some of the questions here presented were there discussed and ruled. The order appointing the receiver was reversed and set aside upon filing of bond in lieu thereof, and the case was remanded to the court below for further proceedings, not inconsistent with the views expressed in the opinion filed. Folk et al. v. United States of America et al., 233 F. 177, 147 C.C.A. 183. The main facts are succinctly stated by Judge Sanborn in that opinion.

One Thomas Atkins was listed for enrollment as a member of the Creek Tribe of Indians by the Dawes Commission on May 23 1901, was duly enrolled as such a citizen by that commission, was on March 1, 1902, reported to the Secretary of the Interior to have been regularly listed for enrollment and enrolled by it, to have been one of the Creek citizens 'living on the 1st day of April, 1899, or born to citizens so entitled to enrollment up to and including the 1st day of July, 1900, and then living,' to have been found upon the 1895 authenticated Creek tribal roll, and to have been enrolled by it as No. 7913 on its roll, and a copy of the part of that roll containing his enrollment and the enrollment of some others was submitted with the report, which the commission closed with this statement:

'The Commission, after having thoroughly examined the rolls of the Creek Nation and such evidence as has been submitted, touching the identification of the persons on roll herewith submitted, is of the opinion that all are entitled to enrollment as Creek citizens by blood, and should be so enrolled.'

The part of the roll so certified to the Secretary was approved by him, the land in the defendants' possession was allotted to Thomas Atkins, a certificate of allotment thereof to him was issued on June 30, 1902, patents therefor, dated April 14, 1903, approved by the Secretary on May 8, 1903, were issued to him and were recorded in the office of the commission on May 16, 1903. It appears, however, that such patents were not actually delivered. Under leases, certain of the defendants were in exclusive possession of the land in controversy, drilling wells and producing oil, when, on February 15, 1915, the United States, on its own behalf and on behalf of the Creek Tribe of Indians, brought this suit to cancel and avoid the enrollment of Thomas Atkins as a Creek citizen, the certificate of allotment, and the patents of the land to him, to perpetually enjoin him and all claiming under him from asserting any interest therein, or in the proceeds thereof, and for the appointment of a receiver pendente lite.

On September 17, 1915, an amended bill was filed, and September 12, 1916, a bill of complaint supplemental thereto. The complainant alleges that the Dawes Commission was charged with the duty of determining who were entitled, under the acts of Congress, to be enrolled as citizens of the Creek Nation, and no one was entitled to be so enrolled who was not living on April 1, 1899, that Thomas Atkins was not living on that day, 'that no evidence of any character was produced before, or obtained or had by, said commission with respect to the right of the alleged Thomas Atkins under said act of Congress to be so enrolled,' and that in causing his name to be placed on the roll of Creek citizens by blood the commission acted arbitrarily and summarily, and without any knowledge, information, or belief that he was in existence or living or dead on April 1, 1899; further that the said enrolled and allotted Thomas Atkins was, and is, a distinctly mythical person, and consequently that the Dawes Commission was without jurisdiction to enroll that name or allot lands to him, and the patents in question were and are utterly void; further, that the commission, as a basis for the enrollment of the name of Thomas Atkins, used, as necessarily material evidence upon the question of the citizenship of Thomas Atkins, the 1895 pay roll containing his name; that that pay roll was false and fraudulent in so far as it contained that name; that the defendant Minnie Atkins caused it to contain said name, well knowing that it had no rightful place thereon, and concealed the fact that it represented a mythical person; that the proceedings of the Dawes Commission, resulting in said enrollment, were ex parte and subject to attack in this proceeding in equity. The supplemental bill presented the fact that the patents, though issued, had never been delivered, and prayed that this cause be not set down for trial until the Secretary of the Interior might assume and exercise in the premises a jurisdiction claimed still to exist in him over the subject-matter of the controversy.

In order that the issues presented to this court for determination may be more clearly defined, it is necessary to review somewhat the proceedings in the court below after the case had been remanded for trial upon the merits as heretofore stated. The condition of the record is thus succinctly presented by Judge Campbell, and for precision and clearness we quote from his memorandum opinion of December 1, 1917:

'At an early stage in the taking of testimony in this case, after the plaintiff (United States) had produced the greater part of the evidence upon which it relied as to just what transpired before the Dawes Commission in May, 1901, at Okmulgee, when Thomas Atkins was listed for enrollment, and when it proposed to enter upon that branch of the case which involved the offering of proof in support of its contention that Thomas Atkins never had any existence, the objection was made by counsel for the defendants Atkins, Page, and allied interests that such evidence was inadmissible, as being immaterial to any proper issue in the case. It was then urged that the evidence already adduced by the plaintiff, so far from establishing the charge that the Dawes Commission had enrolled Thomas Atkins without having any evidence upon the question as to whether he was living April 1, 1899, on the contrary, established that it had heard testimony upon this point. It was further urged in support of the objection that the government's proof also showed that the hearing before the Dawes Commission as to the right of Thomas Atkins to be enrolled was not ex parte as contended by the Government, but that the commission had acted as a quasi judicial body in listing for enrollment and enrolling Thomas Atkins as a member of the Creek Tribe, had heard evidence upon the things conditioning his right to enrollment, to-wit: as to his being a citizen by blood of the tribe, his residence with the tribe, and his having been living on April 1, 1899, and that his enrollment by the commission and the issuance of patents pursuant thereto amounted to a judgment of that tribunal conclusively determining in his favor these several questions of fact as against any future collateral attack and against any direct proceeding to vacate or set aside such enrollment and patents except upon the grounds upon which the final judgment of a judicial or quasi-judicial tribunal may be attacked, that is, for such fraud or such mistake of law or fact as when established renders such judgments voidable. That the fraud charged against Minnie Atkins in relation to the procurement of the placing of the name of Thomas Atkins on the 1895 Creek Roll was not the character of fraudulent act for which the judgment of the commission could be attacked, in that, if it was fraud, it involved a matter in issue before the commission, and not an extrinsic or collateral matter. It was urged therefore that the question of the existence or non-existence of Thomas Atkins was necessarily involved in the question of his being alive or dead on April 1, 1899, and that question having been conclusively determined by the commission could not be retried in this court. The matter was then orally argued quite fully and the court, largely on the authority of Iowa Land & Trust Co. v. United States, 217 F. 11, 133 C.C.A. 121, overruled the objection and permitted the plaintiff to offer proof as to whether Thomas Atkins ever existed, to which issue, as afterward developed, has been addressed the greater part of the testimony making up the colossal record in this case.

'Just before the close of the taking of the

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