matter, many taking the view that the state courts had that right under the Enabling Act and the Act of May 27, 1908.12 After this decision was announced the State School Land Department and the Federal Land Bank at Wichita, Kansas, declined to make loans on lands where the title was based on partition proceedings and it was apparent that many titles were affected by that decision. The case attracted such attention in the press at the time that the matter was called to the attention of Congress. The Federal Land Bank was at the time. as it is now, the largest loaning agency in the State of Oklahoma. An examination of the records and the correspondence on file in the Office of the House Committee on Indian Affairs will reflect that Mr. W. P. Z. German, then General Counsel for the Federal Land Bank at Wichita (now general counsel for the Skelly Oil Company at Tulsa, Oklahoma), prepared the first draft of the bill that was submitted to the House Committee. The bill had two primary objectives: First, to clothe the courts with power to render final judgments determining heirs; and, second, to clothe the courts with power to render judgments in partition between full-blood heirs. The two things go hand in hand since the courts could not function in partition proceedings unless they were likewise authorized to render judgments finding who were in fact the heirs of any named deceased Indian. The Senate Committee report calls attention to the fact that this legislation is recommended by Mr. German, the general counsel for the Federal Land Bank. See page 129, Volume 184, Pacific, 76 Okl. 130 (State, ex rel. Miller, v. Huser), wherein the legislative history is set forth at length by Mr. Justice RAINEY of the Oklahoma Supreme Court. The court's attention is also called to the fact that a memorandum brief was filed with the House Committee at the time by W. F. Semple of the Tulsa, Oklahoma Bar, then attorney for the Choctaw Nation and afterwards principal chief of the tribe. That brief was incorporated in both the House and Senate committees' reports on this bill and in that brief the attention of Congress was directed to the decision in Coleman v. Battiest, supra. A large part of Mr. Semple's brief is quoted in the case of State, ex rel. Miller, v. Huser, 76 Okl. 130, 184 Pac. 113. The Huser case was the first case involving the Act of 1918 to come before the Supreme Court. It was decided on July 15, 1919, and in that case the Oklahoma Supreme Court reviewed the legislative history of the act at considerable length. Just a few weeks prior to the decision of the State Supreme Court in the Huser case, Judge R. L. WILLIAMS, Federal Judge of the District Court for the Eastern District of Oklahoma, had the act before him in an heirship proceeding.13 He reviewed the various grants of jurisdiction to the state courts in that case and while the two cases, the Huser case in the In re Jesse Heirs, deal primarily with that part of the act clothing the state courts with jurisdiction to determine heirs, it may be said that lawyers and the courts at the time took these two cases as authoritative expressions of the state and federal courts on subjects that had created considerable uncertainty in the minds of the bench and bar in Oklahoma prior to that time. Everyone felt that in the light of these two decisions, coming down about the same time (the In re Jessie Heirs case was decided in May and the Huser case in July of 1919) that these perplexing questions were permanently and definitely settled. Immediately following these decisions, the State Supreme Court had before it the case of Johnson v. Salmon, 78 Okl. 182, 189 Pac. 537, and it is to be noted that the court cited the case of Coleman v. Battiest theretofore decided by the Oklahoma Court. While it is true the case did not involve partition between full-blood heirs, the powers of Congress in that respect and the purpose of the act were discussed by the court and reference was made to the earlier case of Coleman v. Battiest. Certiorari was denied by this Court in Johnson v. Salmon, 254 U. S. 641, 65 L. ed. 452. That the Act of 1918 was intended to confer jurisdiction of the fullest sort on the state courts is not only made clear by these decisions, state and federal, but the Superintendent of the Five Civilized Tribes in a current report, filed for the year ended June 30, 1919, makes it plain that the Department thought the act conferred full and complete power to act without notice to the Secretary. In discussing this Act of Congress, he states at page 46: "This legislation was prompted, no doubt, by a decision of the Supreme Court of the State of Oklahoma in the case of Coleman v. Battiest (162 Pac. 786), rendered December 19, 1916, wherein the court held that District Courts of Oklahoma were without jurisdiction to order and decree the partition of lands inherited by full-blood *. * * 12 Act of June 16, 1906. 34 Stat. 267; Act of May 27, 1908, 35 Stat. 312. 13 In re Jessie Heirs, 259 Fed. 695. "Suits for the partition of lands are usually brought in the District Courts, and this may be done without any notice whatever to the United States probate attorneys, thus depriving some of the heirs, possibly, from obtaining the advice and counsel of representatives of the department.' In the light of this legislative history, it would seem clear that Congress intended to give to the state courts every element of power that was necessary to let judgments in partition cases be final and the failure of the act to provide that notice to the Secretary was dispensed with is in our opinion in keeping with an established policy. No language was inserted in the Act of 1908 (where the estates of minors are dealt with) to the effect that notice to the Secretary was necessary. Nothing was said in the language of Section 9 of the Act of 1908 to the effect that notice must be had on the Secretary before the County Courts could approve deeds by full-bloods. As is well said by the learned judge who wrote the opinion in the Circuit Court of Appeals in this case: "It does not speak of making the United States a party. It is significantly silent in that respect. It appears on its face to be a complete enactment, subjects lands of the nature here involved to the jurisdiction of the District Courts of the state for purposes of partition, and provides that a sale made in a partition action shall free the lands of all restrictions. Yet it will be searched in vain for any provision, suggestion, or indication of a congressional intent or purpose to require that the United States shall be made a party to such an action." Under the authorities, an indispensable party, plaintiff or defendant, is one who has "an interest in the controversy of such a nature that a final decree cannot be made without either affecting his interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience." Therefore, since it is thoroughly established that the United States is not bound by a judgment involving full-blood Indians, to which it was not a party, it would seem that the United States is not an indispensable party to the rendition of such judgment, and, even if it could be said to be an indispensable party thereto, there is no authority for holding, as this case holds, that the judgment, whether it be one in partition or to quiet title or in ejectment, is, simply because of its omission as a party, null and void, where the question of its omission was not raised. All the cases hold that the objection to the omission of an indispensable party can be waived. The rule is clearly stated in Bauman v. Kuhn, et al., 108 N. Y. S. 773, in which it was held: "Where the objection of nonjoinder of a party defendant is not raised, either by demurrer or answer, or in any way presented to the trial court, but is raised for the first time on appeal, it will be deemed to have been waived. "The omission of a necessary party defendant does not oust the court of jurisdiction as to those parties made defendants, and the only effect is that the judgment is not binding on the party omitted.” In the course of the opinion in said case the court said: ((* * * However, the objection of nonjoinder was not raised, either by demurrer or answer, nor was it in any way presented to the trial court, but is raised for the first time on appeal. It must, therefore, be deemed to be waived. The mere fact that necessary parties are not before the court upon the trial of the action does not oust the court of jurisdiction, as far as such persons are concerned who were made parties to the action, and the only effect of such omission is that the judgment is not binding upon the party who has been omitted. Keys v. Ellensohn, 82 Hun. 13, 30 N. Y. Supp. 1035, affirmed 144 N. Y. 700, 39 N. E. 857." See also: 34 C. J., p. 990, Sec. 1409, and authorities under Note 53; Stratton v. Beaver Farmers Canal & Ditch Co., 257 P. (Colo.) 1077; and McCaudless v. Furland, 293 U. S. 67, 79 L. ed. 202. Applying the foregoing to the case at bar, we submit that the partition proceedings involved, if the lands involved were subject to partition, and there was no fraud or vital irregularity in the proceedings, were valid and binding upon the parties thereto, but were not binding upon the United States to litigate if it saw fit so to do. The answer is: It could only attack the partition proceedings for some vital irregularity or fraud, if there were any, or, if the lands involved were not in law or fact, subject to partitition, the United States could attack the proceedings on that ground. In other words, the United States was in the same position it would be in the case of a determination of heirship to which it was not a party. If, in such case, an Indian were determined to be the sole heir, when, in truth and in fact, he was not the sole heir, the United States could, in another action, relitigate the question of heirship. The United States was in the same position it would be if a full-blood heir executed a deed to his inherited lands and obtained the approval thereof by the proper probate court, without the United States being a party thereto. In such situation, the United States, in an independent action or proceeding, could question the validity of such approved deed upon the ground of any vital irregularity in the proceedings, upon the ground of fraud, or, if the land was not, for any reason, subject to sale, upon that ground. Otherwise, the United States, quite properly, could do nothing. In this case the record affirmatively shows that the government has stipulated with opposing counsel to the effect that the state laws governing partition were in all respects complied with in the original partition proceedings involved in this case. It is unnecessary to cite authorities to this court on the proposition that these Indians are sui juris. See Winton v. Amos, 255 U. S. 373, 65 L. ed. 684. In United States v. Candelaria, 271 U. S. 444, 70 L. ed. 1027, this court, in referring to the right of the Indian to maintain a suit on his own behalf, said: "Of their capacity to maintain such a suit we entertain no doubt. The existing wardship is not an obstacle, as is shown by repeated decisions of this In the case at bar the court states the basic contention of the government as follows: "The United States then answered, alleging that the partition proceedings were void for lack of the United States as a party and for want of service on the Superintendent under Section 3 of the Act of April 12, 1926." And the court holds that this contention was sound. That such holding is erroneous, we do not entertain the slightest doubt. If the contention of the government had been that it was not bound by the judgment referred to in the partitition proceedings, we would have no complaint, for such is the law. However, we ask the court to inquire into the vital difference between the two contentions. The obvious error in the court's present opinion lies in its failure to recognize the distinction between these two contentions. Moreover, we would like for the court to see that the results of sustaining the aforesaid contention, which the government actually made, and the results of sustaining the aforesaid contention, which we admit the government, under the authorities, was fully justified in making, are quite different. Proposition No. 3 THE GOVERNMENTAL INTERESTS IN THE ACT OF 1918 WERE FULLY PROTECTED BY MEANS OTHER THAN MAKING IT A PARTY TO A PARTITION PROCEEDING This Court in speaking of the governmental interest in partition proceedings, of the policy of the Government in preserving restricted lands for Indians and of seeing that the best price obtainable is had where the lands are sold, says that it does not find any indication that when Congress came to deal with these proceedings it substituted the Oklahoma courts for the Secretary of the Interior in the performance of these functions. The Court then says that these considerations alone would not be fatal "if it could be inferred that those governmental interests were to be protected by means other than making the United States a party." In an effort to clarify this point, we respectfully call attention to the fact that pursuant to Section 6 of the Act of 1908, the Secretary of the Interior had already promulgated rules and regulations and appointed numerous agents and attorneys to safeguard, first, the interests of minor allottees of the restricted class; second, the interests of adult restricted Indians in the management of their individual allotments, and, third, the interests of full-blood adult heirs as to the disposition of inherited lands. This machinery was so elaborate and the expenditures were so tremendous that the United States took advantage of the expenditures as gratuitous appropriations in the various cases which were filed by the Five Tribes of Indians in the Court of Claims pursuant to the general jurisdictional Act approved June 7, 1924, 43 Stat. 537. During the period from 1897 to the end of the fiscal year of 1934, the Government claimed that it had spent gratuitously from the public funds for the benefit of the Choctaw, Chickasaw, Creek, Cherokee, and Seminole Indians in the administration of their affairs the sum of $10,977,303.65. See case K-260, Choctaw Nation v. United States, opinion filed April 1, 1940, Court of Claims, K-260. The amount allocated to probate attorneys alone up to that date as general expenses was the sum of $1,053,120.71. The regular departmental appropriation bill for the Interior Department for the year 1914 carried an item of $85,000.00 for expenses of probate attorneys, 38 Stat. 582. We are not burdening the record with further citations of appropriations on this point but feel safe in asserting that the records will disclose each subsequent year the appropriation was either continued or increased. It has never been decreased. It is apparent therefrom that this particular group of federal officials must have been exceedingly active. The functions that were being performed by them were certainly well known to the House and Senate Indian Committees. Hence, it cannot be said that Congress failed to keep in mind that the Secretary had taken all precautionary measures to protect the interests of the Indian wards of the Government. Section 6 of the Act of 1908 had already given the agents of the Secretary of the Interior ample authority to inquire into and check probate and fullblood sales records involving the estates of minor and adult members of the Five Civilized Tribes. The Act of 1908 has been construed by this Court, and by the Oklahoma Supreme Court, as conferring authority upon the agents of the Department of Interior not only to make these investigations but to file all suits deemed proper in behalf of full-blood Indians.14 In 1914 the Commissioner of Indian Affairs called a conference of state and county judges and county attorneys to meet with the tribal attorneys and agents of the Department of the Interior at Muskogee, McAlester, and Ardmore to devise ways and means of taking care of the situation in Eastern Oklahoma insofar as full-blood and minor Indians were concerned. As a result of these meetings, the Supreme Court of the State was induced to promulgate rules relative to all types of proceedings involving full-blood minors' sales by guardians and the sales of inherited lands. These rules provided for all type of notices to be served upon the probate attorneys and gave the probate attorneys the fullest power of inquisition. These rules were promulgated by an order of the Supreme Court entered on the 11th of June, 1914, effective July 15, 1914. See Mills, Land Laws of the Five Civilized Tribes, Sec. 971, page 623. The Superintendent of the Five Civilized Tribes in his report for the year ending June 30, 1914, in speaking of these rules at page 71, says: "The Commissioner of Indian Affairs personally visited the Five Tribes in the early part of January 1914 and, with practically all of the county judges, many of the district judges and county attorneys, and the tribal attorneys, held meetings at Muskogee, McAlester, and Ardmore to discuss ways and means to assist in remedying probate conditions in eastern Oklahoma. These meetings were of splendid character and brought about a desire for closer cooperation between the officials of the Government and the County Courts and other state officials in the care and protection of the estates of minors and incompetents." Following the adoption of the above mentioned rules by order of the Oklahoma Supreme Court, Congress in 1914 in the regular Interior Department appropriation bill set aside $85,000.00 for probate attorneys. The Five Tribes area was subdivided into probate attorneys' districts and these attorneys were assigned to permanent positions in the respective districts and the very purpose of the act was to provide an attorney for any full-blood Indian or minor in all types of proceedings in the state courts to the end that his property interests might be fully protected. Appropriations for agents and probate attorneys have been continued from year to year since 1908. In 1920 there were some seventeen (17) probate attorneys' districts in Eastern Oklahoma.15 From the very beginning, these attorneys were required, and it was their duty, to appear in all cases involving full-blood Indians in the County and District Courts. They could appeal from an adverse ruling without giving any bond.18 It is certain that the House and Senate Indian Committees were well advised of the fact that they had made appropriations in large sums of money for these attorneys and the failure to provide in the Act of 1918 for some type of notice upon the United States Government was not as a matter of fact an oversight on the part of Congress. These attorneys have fixed regular court days in each of the county seats in which they function and the Congress well knew that under the regulations promulgated for the handling of guardianship and full-blood Indian matters by probate attorneys, they were required to keep watch on all proceedings involving full-blood Indians and in the light of this history, it can well be understood why 14 Heckman v. Owen, 224 U. S. 413; Pe Hickory Guardianship, 182 Pac. 233. 70598-45-4 the Congress did not deem it necessary in the Act of 1918 to direct that notice be given to some representative of the Federal Government. In order that this Court may have before it the full background relative to the activities of the agents appointed pursuant to the Act of May 27, 1908, and the Act of 1914 authorizing the appointment of additional probate attorneys, we quote from the report of the Superintendent of the Five Civilized Tribes for the year ending June 30, 1920, at pages 41 and 42 as follows, to-wit: "Under the provisions of Section 6, Act of Congress approved May 27, 1908, the Secretary of the Interior was empowered to appoint local representatives within the State of Oklahoma to inquire into and investigate the conduct of guardians and curators in cutsody of the persons and estates of minor allottees of the Five Civilized Tribes. Representatives appointed under this authority are designated probate attorneys, and there are now 15 of these officers in active service in charge of 17 probate districts. "The principal duties of probate attorneys are to investigate reports of guardians in charge of the estates of restricted minors and incompetents; to represent restricted Indian minors and incompetents in the sale of lands allotted to them; to supervise the sale of land inherited by full-blood heirs; to appear in the District Court in partition proceedings (Act of Congress approved June 14, 1918) for the protection of the individual heirs of the decedent. "The value of services of probate attorneys cannot be overestimated in the conservation of estates of Indian minors and incompetents and in securing adequate consideration for lands conveyed by full-blood Indian heirs." From the above and foregoing quotation, it is perfectly clear that the Department of the Interior made ample provision for the protection of Indians of the full-blood and this was done primarily in pursuance of legislation already on the statute books when the Act of 1918, here under consideration, was passed. In other words, these attorneys derived their basic authority from the provisions of Section 6 of the Act of Congress of May 27, 1908. With these matters before the Department of the Interior and the House and Senate Indian Committees, it is easy to understand why the Congress did not deem it necessary to provide for service of notice in these proceedings upon any representative of the United States Government. That was to be left to the regulations and partition cases were cases in which they were required to function. Proposition No. 4 INHERITED LANDS ARE NOT RESTRICTED LANDS IN THE SENSE IN WHICH THOSE TERMS ARE USED IN THE ACT OF 1908 AND SUBSEQUENT ACTS OF CONGRESS We respectfully suggest that the term "restricted Indian lands" has been considerably confused with lands from which restrictions have been removed. Inherited lands are not restricted lands in the sense in which those words are used in the Act of May 27, 1908, but are on the contrary lands from which all restrictions have been removed. We are concerned in this case with inherited lands and while the tax exemption certificates were issued by the Secretary as to these lands in compliance with the provisions of the Act of May 10, 1928, 45 Stat. 495, the lands are nevertheless inherited lands, burdened only with "qualified restrictions" that pass out upon approval of deeds by full-blood heirs in the proper County Court.18 This Court, in its opinion, speaks of these lands as "restricted lands" and cites the cases of Minnesota v. United States, 305 U. S. 382, 83 L. ed. 235, and Town of Okemah v. United States, (C. C. A. 10th) 140 F. (2d) 963, but we respectfully suggest that while the United States is the guardian and, in fact, the holder of the legal title in the case of the Wild Tribes Indian, it is not the holder of the legal title as to the lands of a deceased Five Tribes Indian and it does not perform any governmental function or the ordinary duties of a guardian with reference to the inherited lands. All power to remove the qualified restrictions, as they are termed in some of the cases, is vested in the County Court alone. By the express language of the Act of May 27, 1908, 35 Stat. 312, death operates to remove all restrictions, meaning, of course, the re 17 Rogers v. Rogers, 263 Fed. 160; Chupco v. Chapman, 76 Okl. 201, 170 Pac. 250, 247 U. S. 506; United States v. Gypsy Oil Co., 10 F. (2) 491; Parker v. Richard, 250 U. S. 253, 63 L. ed. 954; Terrell v. Scott, 129 Okl. 78, 262 Pac. 1072; King v. Mitchell, 69 Okl. 207, 171 Pac. 725; State v. Huser, 76 Okl. 130, 184 Pac. 122. 18 United States v. Easley, 33 Fed. Supplement 442. |