United States v. McGugin

• Decision Date: 03 February 1940
• Docket Number: No. 293.,293.
• Citation: 31 F. Supp. 498
• Parties: UNITED STATES v. McGUGIN et al.
• Court: U.S. District Court — District of Kansas

31 F. Supp. 498

UNITED STATES v. McGUGIN et al.

No. 293.

District Court, D. Kansas, Third Division.

February 3, 1940.

S. S. Alexander, U. S. Atty., and R. T. McCluggage, Asst. U. S. Atty., both of Topeka, Kans., and Charles E. Collett, of Washington, D. C., for the United States.

Howard T. Fleeson and Wayne Coulson, both of Wichita, Kan., and W. L. Cunningham and D. Arthur Walker, both of Arkansas City, Kan., for defendants.

HOPKINS, District Judge.

The action is one by the United States for the benefit of Jackson Barnett, a full blood Creek Indian and an enrolled member of the Creek Tribe, to recover $137,500 paid to the defendant Harold C. McGugin for services as attorney for the wife of Barnett. This sum was paid McGugin by Mrs. Barnett from a much larger sum received by her in a division of money, all of which was wrongfully withdrawn from funds credited to Barnett with the Treasurer of the United States.

A review of the craft and machinations brought into play by otherwise disinterested parties in dividing up this wealth of the incompetent Indian fully exemplifies the Biblical saying that "The love of money is the root of all evil."

The chief actors, some on the stage and some behind the scenes, included Anna Laura Lowe, an adventuress who dealt in oil leases, keen and vigorous, and anxious for wealth for herself from the flush oil lands of Oklahoma; Harold C. McGugin, energetic, brilliant minded young lawyer, whose talents would have carried him to high place except for this unfortunate performance; Albert B. Fall, Secretary of the Interior; A. J. Ward, attorney for the Creek Indians; M. C. Mott, an Oklahoma lawyer; Carl J. O'Hornett, guardian; and others representing the Indian through the Indian agencies and Interior Department. A cast of fine ability, possessed of unusual talents, and all actuated by a positive and sincere urge to make the show a success. Jackson Barnett, unconcerned and alone in the center of the stage commanded the spot-light in this tragic farce, a befuddled, bewildered performer who did not realize that his illuminated position was a lure to the other actors. "Crazy Jack," as the bulky Indian was known to many, required some prompting, although his lines were simple and well suited to the role he was destined to play. When spoken to, he would grin or smile vacantly and respond with a grunt.

The Indian was domiciled in the state of Oklahoma and there received, when tribal lands were allotted to the individual members of the Creek Tribe, a certain parcel of land to be owned in severalty. He was a ward of the federal government and, under Acts of Congress, restricted in any independent disposition of his property. While he owned the land and in the year 1912, he was adjudged by the probate court of the county of his residence, a mental incompetent, and a guardian of his estate was appointed.

The guardian, with authority from the probate court, leased Barnett's lands for oil, the lease being approved, as it was required to be, by the Secretary of the Interior. The lease provided for the payment of royalties to the representative of the Secretary of the Interior. In the year 1920, the returns from those royalties had reached a sum in excess of $1,000,000 the disposition of which occasioned this and many other court trials.

The guardian Carl J. O'Hornett purchased a tract of about thirty acres of rough, timbered land about eleven miles northwest of the town of Henryetta, in Okmulgee County, Oklahoma, and caused to be constructed thereon a simple, four-room house, without conveniences, as a residence for Barnett. Two or three negroes were there to serve and care for Barnett, but little more was done for his comfort, and slight precautions were taken for his protection against imposition.

The oil royalty proceeds were invested largely in government bonds and were deposited with the Secretary of the Interior and later with the Treasurer of the United States. Barnett's wealth grew and became the subject of comment.

Barnett was sixty-six years old in 1920 when he first met Mrs. Lowe. Anna Laura Lowe had read in an oil journal mention of Barnett as the richest Indian in the Country. She was dealing in oil leases, and she testified she planned to see him, intending to negotiate a lease. At any rate, it appears in January, 1920, she arrived at Henryetta, Oklahoma, close to which town Jackson lived. Mrs. Lowe related in her testimony (testimony at another trial but in evidence here) that on her first visit Jackson had said a missionary had told him he ought to have a wife, and he would like her to marry him and that she had replied, "All right, Jackson, I will think about it." On January 30, 1920, she called again at Jackson's place in an automobile with a driver. She found the Indian in his living room and told him that she had come to get married. Jackson entered the automobile, and at Mrs. Lowe's direction, they went to Okemah, the county seat of a nearby county. The clerk there refused to issue a marriage license, and the couple were then driven to Holdenville, another county seat in Oklahoma, and again a marriage license was refused Mrs. Lowe. They were out all night on this trip, after which Jackson was returned to his home near Henryetta. O'Hornett, the guardian, visited her at her hotel and tried (as she testified) to "discourage me in marrying;" that she informed the guardian, "I am leaving on the morning train and am coming back and Jackson and I are going to get married and you nor anyone else can prevent it." She left for Kansas City immediately and three weeks later returned to Oklahoma, going first to Tulsa, seventy-five miles from Henryetta. Mrs. Lowe was acquainted with Alvin L. Moorehead, who had a business office in Tulsa. She employed him to drive her to Barnett's place, and they arrived there about dusk. Barnett came down to the car. He had no shoes, coat or hat. As he approached the car Mrs. Lowe got out and threw her arms around his neck. She asked him to get into the car, and he did so. A colored person brought Jackson's shoes, hat and coat. Jackson put on his coat, got back in the car, and the party drove to Tulsa. Mrs. Lowe rode on the back seat with Jackson. She talked to him and suggested, "Let's get married," and "We are going to get married." He would grunt but make no other reply. From Tulsa, they drove to Coffeyville, in Montgomery County, Kansas. She went to the Probate Judge of that county at Independence, obtained a marriage license, returned to Coffeyville, and there a justice of the peace was procured to perform a marriage ceremony. The woman took legal advice at Coffeyville from the defendant McGugin, who continued as her adviser from that time on.

McGugin and Keith, his partner, immediately began rendering services to Mrs. Barnett. They prevented Barnett being removed from her custody. McGugin apprehended that the marriage ceremony at Coffeyville might be held invalid. He ascertained from a lawyer in Neosho, Missouri, in the southwestern part of that state, what the law of Missouri was upon the question of the marriage of an incompetent under guardianship. He advised Mrs. Barnett to have a second marriage performed in Missouri. He went to Neosho with Mrs. Barnett, taking Barnett with them. She obtained a marriage license from the Probate Judge there, and a second marriage ceremony was performed by the Probate Judge of Newton County, Missouri. This was about February 27, 1920.

A few days later, March 1, 1920 Mrs. Lowe entered into a contract with McGugin's law firm, Keith & McGugin, retaining them as her legal counsel in "upholding the validity of her marriage with Jackson Barnett" and in effect to assist her in obtaining his property. She agreed therein to pay McGugin twenty-five percent of all monies and property which she received from Barnett, such twenty-five percent not to exceed $500,000. She further agreed never to consent to Barnett's disposition by gift or will of more than one-half his property.

McGugin's devotion to the case and actuation by hope of reward is indicated by his statements a few weeks later to Moorehead, who had gone to Coffeyville at Mrs. Barnett's request. Moorehead saw Mrs. Barnett at a hotel. She told Moorehead there was quite a mixup as the guardian had been up there for Jackson. She said she had employed an attorney and telephoned and McGugin came over. McGugin said he was taking care of them and that they had to arrange some way for an Indian baby (this apparently because it was assumed the white woman could not inherit). He talked with McGugin at his office, both then went to the hotel where McGugin gave a secret knock, and Mrs. Lowe opened a little crack of the door. Asked why so much secrecy, McGugin said, "We got to keep him guarded or the old son of a gun will run off." After leaving the hotel, McGugin said, "We are going to be rich * * * when the old man dies." Moorehead said, "These Indians never die, some of them live for centuries," and McGugin responded, "I won't let the old son of a gun live more than five years."

During all these times, Jackson Barnett was mentally incompetent and did not realize what he was doing. He did not know what the marital obligation meant. The county clerk who refused him a marriage license at Holdenville, Oklahoma, who was himself a Creek, so testified. He gave Barnett's mentality as that of an eight year old child. Witnesses who were well informed generally, knew the Creek Indians and their language and Barnett personally, have testified in substance that in 1900 when the town of Henryetta was started Jackson was there; that Jackson was friendly and often asked for a nickel or a dime for tobacco but that when engaged in conversation, he would not respond but just grin with a blank, vacant expression; that usually he would be standing leaning against a wall; that his behavior was contrary to that of full blood Creeks, as they would mingle with one another and with...